SEARCH AND SEIZURE

EN BANC

G.R. Nos. 94054-57 February 19, 1991

VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners,

vs.
HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents.

G.R. Nos. 94266-69 February 19, 1991

JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR., NONILON A. BAGALIHOG, MAYOR

NESTOR C. LIM and MAYOR ANTONIO KHO, petitioners,
vs.
HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C. ALFANE, respondents.

Francisco R. Llamas for petitioners in G.R. Nos. 94054-57.

Jolly T. Fernandez, Elenito Bagalihog, Orlando M. Danao and Hechanova, Ballicid & Associates for
petitioners in G.R. Nos. 94266-69.

GUTIERREZ, JR., J.:

May a Judge without ascertaining the facts through his own personal determination and relying
solely on the certification or recommendation of a prosecutor that a probable cause exists issue a
warrant of arrest?

On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the
Masbate Domestic Airport, located at the municipality of Masbate province of Masbate,
Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio
Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. Dante
Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot,
although, he himself suffered a gunshot wound.

An investigation of the incident then followed.

Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O.
Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an
amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim,
Sr., Mayor Susana Lim of Masbate (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio
T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in
G.R. Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with the
airport incident. The case was docketed as Criminal Case No. 9211.

After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating
therein that:
 . . . after weighing the affidavits and answers given by the witnesses for the prosecution
during the preliminary examination in searching questions and answers, concludes that a
probable cause has been established for the issuance of a warrant of arrest of named
accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon
Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor
Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla alias Tidoy. (Rollo, p. 58,
G.R. Nos. 94054-57)

xxx xxx xxx

In the same Order, the court ordered the arrest of the petitioners and recommended the amount of
P200,000.00 as bail for the provisional liberty of each of the accused.

Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was
granted by the court and they were allowed to post bail in the amount of P150,000.00 each. Except
for Jimmy Cabarles, all the rest of the accused posted bail at P200,000.00 each.

On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages
were transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C.
Alfane was designated to review the case.

On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima
facie case against the petitioners but differed in the designation of the crime in that the ruled that ". .
. all of the accused should not only be charged with Multiple Murder With Frustrated Murder" but for
a case of MURDER for each of the killing of the four victims and a physical injuries case for inflicting
gunshot wound on the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane, p.
186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente
Lim, Sr. and Mayor Susana Lim was denied.

On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate
informations of murder against the twelve (12) accused with a recommendation of no bail.

On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition
for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90)

On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the
Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of
justice, to wit:

Acting on the petition for change of venue of the trial of Criminal Cases Nos. 5811, 5812,
5813, and 5814 from the Regional Trial Court, Masbate, Masbate to any of the Regional Trial
Courts at Quezon City or Makati, the Court Resolved to (a) GRANT the aforesaid petition for
transfer of venue in order to avoid miscarriage of justice (Article VIII, Section 5(4) of the
Philippine Constitution); (b) DIRECT the Clerk of Court, Regional Trial Court, Masbate,
Masbate to transmit the records of the aforesaid cases to the Executive Judge, Regional
Trial Court, Makati, for raffling among the other branches of the court; and (c) ORDER the
Regional Trial Court of Masbate, Masbate to desist from further taking cognizance of the said
cases until such time that the petition is finally resolved.

The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.
Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and
manifestations which in substance prayed for the following:

1. An order be issued requiring the transmittal of the initial records of the preliminary inquiry
or investigation conducted by the Municipal Judge Barsaga of Masbate for the best
enlightenment of this Honorable Court in its personal determination of the existence of a
probable cause or prima facie evidence as well as its determination of the existence of guilt,
pursuant to the mandatory mandate of the constitution that no warrant shall issue unless the
issuing magistrate shall have himself been personally convinced of such probable cause.

2. Movants be given ample opportunity to file their motion for preliminary investigation as a
matter of right; and

3. In the event that this court may later be convinced of the existence of a probable cause, to
be allowed to file a motion for reduction of bail or for admission of bail. (p. 17, Rollo, G.R.
Nos. 94054-57)

In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there
really exists a prima facie case against them in the light of documents which are recantations of
some witnesses in the preliminary investigation. The motions and manifestations were opposed by
the prosecution.

On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and
manifestations and issued warrants of arrest against the accused including the petitioners herein.
The respondent Judge said:

In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court
of Masbate, Masbate which found the existence of probable cause that the offense of
multiple murder was committed and that all the accused are probably guilty thereof, which
was affirmed upon review by the Provincial Prosecutor who properly filed with the Regional
Trial Court four separate informations for murder. Considering that both the two competent
officers to whom such duty was entrusted by law have declared the existence of probable
cause, each information is complete in form and substance, and there is no visible defect on
its face, this Court finds it just and proper to rely on the prosecutor's certification in each
information which reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied)

xxx xxx xxx

The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.

In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY
RESTRAINING ORDER, effective immediately and continuing until further orders from this Court,
ordering the respondent judge or his duly authorized representatives or agents to CEASE and
DESIST from enforcing or implementing the warrant of arrest without bail issued against the
petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14.

In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved:

xxx xxx xxx

 . . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and
directing the respondent judge to recall/set aside and/or annul the legal effects of the
warrants of arrest without bail issued against and served upon herein petitioners Jolly T.
Fernandez, Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release them from
confinement at PC-CIS Detention Center, Camp Crame, Quezon City; and (2) TEMPORARY
RESTRAINING ORDER, effective immediately and continuing until further orders from this
Court, ordering the respondent judge or his duly authorized representatives or agents, to
CEASE AND DESIST from enforcing or implementing the warrants of arrest without bail
issued against petitioners Mayors Nestor C. Lim and Antonio T. Kho.

The primary issue in these consolidated petitions centers on whether or not a judge may issue a
warrant of arrest without bail by simply relying on the prosecution's certification and recommendation
that a probable cause exists.

This is not a novel question. In the case of Placer v. Villanueva (126 SCRA 463 [1983]), we ruled
that a judge may rely upon the fiscal's certification of the existence of probable cause and, on the
basis thereof, issue a warrant of arrest. However, the certification does not bind the judge to come
out with the warrant of arrest. This decision interpreted the "search and seizure" provision of the
1973 Constitution which provides:

. . . no search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses he may produce
...

We ruled:

. . . The issuance of a warrant is not a mere ministerial function; it calls for the exercise of
judicial discretion on the part of the issuing magistrate. This is clear from the following
provisions of Section 6, Rule 112 of the Rules of Court.

Warrant of arrest, when issued. — If the judge be satisfied from the preliminary examination
conducted by him or by the investigating officer that the offense complained of has been
committed and that there is reasonable ground to believe that the accused has committed it,
he must issue a warrant or order for his arrest.

Under this section, the judge must satisfy himself of the existence of probable cause before
issuing a warrant or order of arrest. If on the face of the information the judge finds no
probable cause, he may disregard the fiscal's certification and require the submission of the
affidavits of witnesses to aid him in arriving at a conclusion as to the existence of a probable
cause. This has been the rule since U.S. v. Ocampo (18 Phil. 1) and Amarga v. Abbas (98
Phil. 739). And this evidently is the reason for the issuance by respondent of the questioned
orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits of the
prosecution witnesses and other evidence which, as a matter of long-standing practice had
been attached to the information filed in his sala, respondent found the informations
inadequate bases for the determination of probable cause. For as the ensuing events would
show, after petitioners had submitted the required affidavits, respondent wasted no time in
issuing the warrants of arrest in the case where he was satisfied that probable cause existed.

The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the
1987 Constitution. We stated:
 The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:

Art. III, 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 after examination under oath or
affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.

The addition of the word "personally" after the word "determined" and the deletion of the
grant of authority by the 1973 Constitution to issue warrants to "other respondent officers as
may be authorized by law", has apparently convinced petitioner Beltran that the Constitution
now requires the judge to personally examine the complainant and his witnesses in his
determination of probable cause for the issuance of arrest. This is not an accurate
interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the
existence of probable cause for the issuance of a warrant of arrest, the judge is not required
to personally examine the complainant and his witnesses. Following established doctrine and
procedures, he shall: (1) personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause and, on the basis thereof,
issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of supporting affidavits of witnesses
to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the
preliminary examinations and investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts.

The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990),
reiterated the above interpretation of "personal" determination by the Judge:

We emphasize important features of the constitutional mandate that ". . . no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge . . ." (Article III, Section 2, Constitution)

First, the determination of probable cause is a function of the Judge. It is not for the
Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge
and the Judge alone makes this determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely
assists him to make the determination of probable cause. The Judge does not have to follow
what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable
cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if
any), and all other supporting documents behind the Prosecutor's certification which are
material in assisting the Judge to make his determination.

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest from the preliminary
investigation proper which ascertains whether the offender should be held for trial or
released. Even if the two inquiries are conducted in the course of one and the same
proceeding, there should be no confusion about the objectives. The determination of
probable cause for the warrant of arrest is made by the Judge. The preliminary investigation
proper –– whether or not there is reasonable ground to believe that the accused is guilty of
the offense charged and, therefore, whether or not he should be subjected to the expense,
rigors and embarrassment of trial –– is the function of the Prosecutor.

The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [19891):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have
authority to conduct preliminary investigations. That authority, at one time reposed in
them under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964,
(See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in
Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from
them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985,
(Promulgated on November 11, 1984) which deleted all provisions granting that
power to said Judges. We had occasion to point tills out in Salta v. Court of Appeals,
143 SCRA 228, and to stress as well certain other basic propositions, namely: (1)
that the conduct of a preliminary investigation is "not a judicial function . . . (but) part
of the prosecution's job, a function of the executive," (2) that whenever "there are
enough his or prosecutors to conduct preliminary investigations, courts are
counseled to leave this job which is essentially executive to them," and the fact "that
a certain power is granted does not necessary mean that it should be indiscriminately
exercised.

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective
on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin
Today of October 29, 1988) did not restore that authority to Judges of Regional Trial
Courts; said amendments did not in fact deal at all with the officers or courts having
authority to conduct preliminary investigations.

This is not to say, however, that somewhere along the line RTC Judges also lost the
power to make a preliminary examination for the purpose of determining whether
probable cause exists to justify the issuance of a warrant of arrest (or search
warrant). Such a power –– indeed, it is as much a duty as it is a power –– has been
and remains vested in every judge by the provisions in the Bill of Rights in the 1935,
the 1973 and the present [1987] Constitutions securing the people against
unreasonable searches and seizures, thereby placing it beyond the competence of
mere Court Rule or Statute to revoke. The distinction must, therefore, be made clear
while an RTC Judge may no longer conduct preliminary investigations to ascertain
whether there is sufficient ground for the filing of a criminal complaint or information,
he retains the authority, when such a pleading is filed with his court, to determine
whether there is probable cause justifying the issuance of a warrant of arrest. It might
be added that this distinction accords, rather than conflicts, with the rationale of Salta
because both law and rule, in restricting to judges the authority to order arrest,
recognize the function to be judicial in nature.

We reiterate that preliminary investigation should be distinguished as to whether it is an

investigation for the determination of a sufficient ground for the filing of the information or it is
an investigation for the determination of a probable cause for the issuance of a warrant of
arrest. The first kind of preliminary investigation is executive in nature. It is part of the
 prosecution's job. The second kind of preliminary investigation which is more properly called
preliminary examination is judicial in nature and is lodged with the Judge. . . .

Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990)
there is a statement that the judge may rely on the resolution of COMELEC to file the information by
the same token that it may rely on the certification made by the prosecutor who conducted the
preliminary investigation in the issuance of the warrant of arrest. We, however, also reiterated that ".
. . the court may require that the record of the preliminary investigation be submitted to it to satisfy
itself that there is probable cause which will warrant the issuance of a warrant of arrest." (Section 2,
Article III, Constitution). Reliance on the COMELEC resolution or the Prosecutor's certification
presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the
Judge and he relies on the certification or resolution because the records of the investigation sustain
the recommendation. The warrant issues not on the strength of the certification standing alone but
because of the records which sustain it.

It is obvious from the present petition that notwithstanding the above decisions, some Judges are
still bound by the inertia of decisions and practice under the 1935 and 1973 Constitutions and are
sadly confused or hesitant. Prosecutors are also interested in a clear cut ruling. We will, therefore,
restate the rule in greater detail and hopefully clearer terms.

There is no problem with search warrants which are relatively fewer and far between and where
there is no duplication of work between the Judge and the Prosecutor. The problem lies with
warrants of arrest especially in metropolitan or highly urban areas. If a Judge has to personally
question each complainant and witness or go over the records of the Prosecutor's investigation page
by page and word for word before he acts on each of a big pile of applications for arrest warrants on
his desk, he or she may have no more time for his or her more important judicial functions.

At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ".
. . probable cause to be personally determined by the judge . . .", not by any other officer or person.

If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of
the investigation are in Masbate, he or she has not personally determined probable cause. The
determination is made by the Provincial Prosecutor. The constitutional requirement has not been
satisfied. The Judge commits a grave abuse of discretion.

The records of the preliminary investigation conducted by the Municipal Court of Masbate and
reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the
warrants of arrest against the petitioners. There was no basis for the respondent Judge to make his
own personal determination regarding the existence of a probable cause for the issuance of a
warrant of arrest as mandated by the Constitution. He could not possibly have known what
transpired in Masbate as he had nothing but a certification. Significantly, the respondent Judge
denied the petitioners' motion for the transmittal of the records on the ground that the mere
certification and recommendation of the respondent Fiscal that a probable cause exists is sufficient
for him to issue a warrant of arrest.

We reiterate the ruling in Soliven v. Makasiar that the Judge does not have to personally examine
the complainant and his witnesses. The Prosecutor can perform the same functions as a
commissioner for the taking of the evidence. However, there should be a report and necessary
documents supporting the Fiscal's bare certification. All of these should be before the Judge.

The extent of the Judge's personal examination of the report and its annexes depends on the
circumstances of each case. We cannot determine beforehand how cursory or exhaustive the
1âw phi 1
Judge's examination should be. The Judge has to exercise sound discretion for, after all, the
personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as
the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's
certification and investigation report whenever necessary. He should call for the complainant and
witnesses themselves to answer the court's probing questions when the circumstances of the case
so require.

It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent
Judge documents of recantation of witnesses whose testimonies were used to establish a prima
facie case against them. Although, the general rule is that recantations are not given much weight in
the determination of a case and in the granting of a new trial (Tan Ang Bun v. Court of Appeals, et al.
G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) the
respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over
the records of the preliminary examination conducted earlier in the light of the evidence now
presented by the concerned witnesses in view of the "political undertones" prevailing in the cases.
Even the Solicitor General recognized the significance of the recantations of some witnesses when
he recommends a reinvestigation of the cases, to wit:

It must be pointed out, however, that among the documents attached to this Petition are
affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and
an affidavit executed by one, Camilo Sanano, father of the complainant's witnesses, Renato
and Romeo Sanano. It was precisely on the strength of these earlier written statements of
these witnesses that the Municipal Trial Court of Masbate found the existence of a prima
facie case against petitioners and accordingly recommended the filing of a Criminal
Information. Evidently, the same written statements were also the very basis of the "Fiscal's
Certification", since the attached affidavits of recantation were not yet then available. Since
the credibility of the prosecution witnesses is now assailed and put in issue and, since the
petitioners have not yet been arraigned, it would be to the broader interest of justice and fair
play if a reinvestigation of this case be had to secure the petitioners against hasty
prosecution and to protect them from an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and also to protect the State from useless and
expensive trials (Salonga v. Paño G.R. No. 59524, February 18,1985). (Rollo of G.R. Nos.
94054-56, pp. 200-201)

We reiterate that in making the required personal determination, a Judge is not precluded from
relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends
on the circumstances of each case and is subject to the Judge's sound discretion. However, the
Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest.

Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's
certification and issued the questioned Order dated July 5, 1990 without having before him any other
basis for his personal determination of the existence of a probable cause.

WHEREFORE, the instant petitions are hereby GRANTED. The questioned Order of respondent
Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared
NULL and VOID and SET ASIDE. The Temporary Restraining Orders and Preliminary Mandatory
Injunction issued in the instant Petitions are made PERMANENT.

SO ORDERED.
 THIRD DIVISION

G.R. No. 113447 October 9, 1997

ALAIN MANALILI y DIZON, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PANGANIBAN, J.:

When dealing with a rapidly unfolding and potentially criminal situation in the city streets where
unarguably there is no time to secure an arrest or a search warrant, policemen should employ
limited, flexible responses — like "stop-and-frisk" — which are graduated in relation to the amount of
information they possess, the lawmen being ever vigilant to respect and not to violate or to treat
cavalierly the citizen's constitutional rights against unreasonable arrest, search and seizure.

The Case

This rule is reiterated as we resolve this petition for review on certiorari under Rule 45 of the Rules of
Court, seeking the reversal of the Decision of the Court of Appeals dated April 19, 1993 and its
Resolution dated January 20, 1994 in CA G.R. CR No. 07266, entitled "People of the Philippines vs.
Alain Manalili y Dizon."

In an Information dated April 11, 1988,1 Petitioner Alain Manalili y Dizon was charged by Assistant
Caloocan City Fiscal E. Juan R. Bautista with violation of Section 8, Article II of Republic Act No.
6425, allegedly committed as follows:2

That on or about the 11th day of April 1988 in Caloocan City, MM, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused without any authority of law,
did then and there wilfully, unlawfully and feloniously have in his custody, possession and
control crushed marijuana residue, which is a prohibited drug and knowing the same to be
such.

Contrary to Law.

Upon his arraignment on April 21, 1988, appellant pleaded "not guilty" to the charge.3 With the
agreement of the public prosecutor, appellant was released after filing a P10,000.00 bail bond.4 After
trial in due course, the Regional Trial Court of Caloocan City, Branch 124, acting as a Special
Criminal Court, rendered on May 19, 1989 a decision5 convicting appellant of illegal possession of
marijuana residue. The dispositive portion of the decision reads:6

WHEREFORE, in view of all the foregoing, this Court finds the accused ALAIN MANALILI Y
DIZON guilty beyond reasonable doubt of violation of Section 8, Article II, of Republic Act
No. 6425, as amended (Illegal Possession of Marijuana residue), and hereby sentences (sic)
said accused to suffer imprisonment of SIX (6) YEARS and ONE (1) DAY; and to pay a fine
of P6,000.00; and to pay the costs.
 xxx xxx xxx

Appellant remained on provisional liberty.7 Atty. Benjamin Razon, counsel for the defense, filed a
Notice of Appeal8 dated May 31, 1989. On April 19, 1993, Respondent Court9 promulgated its
assailed Decision, denying the appeal and affirming the trial court:10

ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby AFFIRMED in all
respects. Costs against appellant.

Respondent Court11 denied reconsideration via its assailed Resolution dated January 20, 1994,
disposing:

ACCORDINGLY, accused-appellant's motion for reconsideration is, as is hereby DENIED.

The Facts

Version of the Prosecution

The facts, as found by the trial court, are as follows:12

At about 2:10 o'clock in the afternoon of April 11, 1988, policemen from the Anti-Narcotics
Unit of the Kalookan City Police Station were conducting a surveillance along A. Mabini
street, Kalookan City, in front of the Kalookan City Cemetery. The policemen were Pat.
Romeo Espiritu and Pat. Anger Lumabas and a driver named Arnold Enriquez was driving a
Tamaraw vehicle which was the official car of the Police Station of Kalookan City. The
surveillance was being made because of information that drug addicts were roaming the
area in front of the Kalookan City Cemetery.

Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle. They
then chanced upon a male person in front of the cemetery who appeared high on drugs. The
male person was observed to have reddish eyes and to be walking in a swaying manner.
When this male person tried to avoid the policemen, the latter approached him and
introduced themselves as police officers. The policemen then asked the male person what
he was holding in his hands. The male person tried to resist. Pat Romeo Espiritu asked the
male person if he could see what said male person had in his hands. The latter showed the
wallet and allowed Pat. Romeo Espiritu to examine the same. Pat. Espiritu took the wallet
and examined it. He found suspected crushed marijuana residue inside. He kept the wallet
and its marijuana contents.

The male person was then brought to the Anti-Narcotics Unit of the Kalookan City Police
Headquarters and was turned over to Cpl. Wilfredo Tamondong for investigation. Pat.
Espiritu also turned over to Cpl. Tamondong the confiscated wallet and its suspected
marijuana contents. The man turned out to be the accused ALAIN MANALILI y DIZON.

Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl.
Tamondong wrapped the same with a white sheet of paper on which he wrote "Evidence "A"
4/11/88 Alain Manalili". The white sheet of paper was marked as Exhibit "E-3". The residue
was originally wrapped in a smaller sheet of folded paper. (Exhibit "E-4").

Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic Chemistry
Section requesting a chemical analysis of the subject marijuana residue (Exhibit "D"). Cpl.
 Tamondong thereafter prepared a Joint Affidavit of the apprehending policemen (Exhibit "A").
Pat. Angel Lumabas handcarried the referral slip (Exhibit "D") to the National Bureau of
Investigation (NBI), including the subject marijuana residue for chemical analysis. The
signature of Pat. Lumabas appears on the left bottom corner of Exhibit "D".

The Forensic Chemistry Section of the NBI received the aforesaid referral slip and the
subject marijuana residue at 7:40 o'clock in the evening of April 11, 1988 as shown on the
stamped portion of Exhibit "D".

It was NBI Aida Pascual who conducted the microscopic and chemical examinations of the
specimen which she identified. (Exhibit
"E")13 Mrs. Pascual referred to the subject specimen as "crushed marijuana leaves" in her
Certification dated April 11, 1988 (Exhibit "F").14 These crushed marijuana leaves gave
positive results for marijuana, according to the Certificate.

Mrs. Pascual also conducted a chromatographic examination of the specimen. In this

examination, she also found that the "crushed marijuana leaves" gave positive results for
marijuana. She then prepared a Final Report of her examinations (Exhibit "G").

After conducting the examinations, Ms. Pascual placed the specimen in a white letter-
envelope and sealed it. (Exhibit "E"). She then wrote identification notes on this letter-
envelope. (Exhibit "E-1").

Pat. Lumabas carried the Certification marked as Exhibit "F" from the NBI Forensic
Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl. Tamondong prepared a
referral slip addressed to the City Fiscal of Kalookan City. (Exhibit "C")

On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was walking in front of
the cemetery when he was apprehended.15

Version of the Defense

The trial court summarized the testimonies of the defense witnesses as follows:16

At about 2:00 o'clock in the afternoon of April 11, 1988, the accused ALAIN MANALILI was
aboard a tricycle at A. Mabini street near the Kalookan City Cemetery on the way to his
boarding house. Three policemen ordered the driver of the tricycle to stop because the
tricycle driver and his lone passenger were under the influence of marijuana. The policemen
brought the accused and the tricycle driver inside the Ford Fiera which the policemen were
riding in. The policemen then bodily searched the accused and the tricycle driver. At this
point, the accused asked the policemen why he was being searched and the policemen
replied that he (accused) was carrying marijuana. However, nothing was found on the
persons of the accused and the driver. The policemen allowed the tricycle driver to go while
they brought the accused to the police headquarters at Kalookan City where they said they
would again search the accused.

On the way to the police headquarters, the accused saw a neighbor and signalled the latter
to follow him. The neighbor thus followed the accused to the Kalookan City Police
Headquarters. Upon arrival thereat, the accused was asked to remove his pants in the
presence of said neighbor and another companion. The policemen turned over the pants of
the accused over a piece of bond paper trying to look for marijuana. However, nothing was
found, except for some dirt and dust. This prompted the companion of the neighbor of the
 accused to tell the policemen to release the accused. The accused was led to a cell. The
policemen later told the accused that they found marijuana inside the pockets of his pants.

At about 5:00 o'clock in the afternoon on the same day, the accused was brought outside the
cell and was led to the Ford Fiera. The accused was told by the policemen to call his parents
in order to "settle" the case. The policemen who led the accused to the Ford Fiera were Pat.
Lumabas, Pat. Espiritu and Cpl. Tamondong. Pat. Lumabas was the policeman who told the
accused to call his parents. The accused did not call his parents and he told the policemen
that his parents did not have any telephone.

At about 5:30 o'clock in the afternoon of the same day, the accused was brought in the office
of an inquest Fiscal. There, the accused told the Fiscal that no marijuana was found on his
person but the Fiscal told the accused not to say anything. The accused was then brought
back to the Kalookan City Jail.

Loreto Medenilla, the tricycle driver who was allegedly with the accused when he and the
accused were stopped by policemen and then bodily searched on April 11, 1988, testified.
He said that the policemen found nothing either on his person or on the person of the
accused when both were searched on April 11, 1988.

Roberto Abes, a neighbor of the accused, testified that he followed the accused at the
Kalookan City Police Headquarters on April 11, 1988. He said that the police searched the
accused who was made to take off his pants at the police headquarters but no marijuana
was found on the body of the accused.

Appellant, who was recalled to the stand as sur-rebuttal witness, presented several pictures showing
that tricycles were allowed to ply in front of the Caloocan Cemetery.17

The Rulings of the Trail and the Appellate Courts

The trial court convicted petitioner of illegal possession of marijuana residue largely on the strength
of the arresting officers' testimony. Patrolmen Espiritu and Lumabas were "neutral and disinterested"
witnesses, testifying only on what transpired during the performance of their duties. Substantially
they asserted that the appellant was found to be in possession of a substance which was later
identified as crushed marijuana residue.

The trial court disbelieved appellant's defense that this charge was merely "trumped up," because
the appellant neither took any legal action against the allegedly erring policemen nor moved for a
reinvestigation before the city fiscal of Kalookan City.

On appeal, Respondent Court found no proof that the decision of the trial court was based on
speculations, surmises or conjectures. On the alleged "serious" discrepancies in the testimonies of
the arresting officers, the appellate court ruled that the said inconsistencies were insubstantial to
impair the essential veracity of the narration. It further found petitioner's contention — that he could
not be convicted of illegal possession of marijuana residue — to be without merit, because the
forensic chemist reported that what she examined were marijuana leaves.

Issues

Petitioner assigns the following errors on the part of Respondent Court:

 I

The Court of Appeals erred in upholding the findings of fact of the trial court.

II

The Court of Appeals erred in upholding the conviction of (the) accused (and)
in ruling that the guilt of the accused had been proved (beyond) reasonable
doubt.

III

The Court of Appeals erred in not ruling that the inconsistencies in the
testimonies of the prosecution witnesses were material and substantial and
not minor.

IV

The Court of Appeals erred in not appreciating the evidence that the accused
was framed for the purpose of extorting money.

The Court of Appeals erred in not acquitting the accused when the evidence
presented is consistent with both innocence and guilt.

VI

The Court of Appeals erred in admitting the evidence of the prosecution

which are inadmissible in evidence.

Restated more concisely, petitioner questions (1) the admissibility of the evidence against him, (2)
the credibility of prosecution witnesses and the rejection by the trial and the appellate courts of the
defense of extortion, and (3) the sufficiency of the prosecution evidence to sustain his conviction.

The Court's Ruling

The petition has no merit.

First Issue: Admissibility of the Evidence Seized

During a Stop-and-Frisk

Petitioner protests the admission of the marijuana leaves found in his possession, contending that
they were products of an illegal search. The Solicitor General, in his Comment dated July 5, 1994,
which was adopted as memorandum for respondent, counters that the inadmissibility of the
marijuana leaves was waived because petitioner never raised this issue in the proceedings below
nor did he object to their admissibility in evidence. He adds that, even assuming arguendo that there
was no waiver, the search was legal because it was incidental to a warrantless arrest under Section
5 (a), Rule 113 of the Rules of Court.
We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In the
landmark case of Terry vs. Ohio,18 a stop-and-frisk was defined as the vernacular designation of the
right of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s):

. . . (W)here a police officer observes an unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the persons
with whom he is dealing may be armed and presently dangerous, where in the course of
investigating this behavior he identified himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the encounter serves to dispel his
reasonable fear for his own or others' safety, he is entitled for the protection of himself and
others in the area to conduct a carefully limited search of the outer clothing of such persons
in an attempt to discover weapons which might be used to assault him. Such a search is a
reasonable search under the Fourth Amendment, and any weapon seized may properly be
introduced in evidence against the person from whom they were taken.19

In allowing such a search, the United States Supreme Court held that the interest of effective crime
prevention and detection allows a police officer to approach a person, in appropriate circumstances
and manner, for purposes of investigating possible criminal behavior even though there is insufficient
probable cause to make an actual arrest. This was the legitimate investigative function which Officer
McFadden discharged in that case, when he approached petitioner and his companion whom he
observed to have hovered alternately about a street corner for an extended period of time, while not
waiting for anyone; paused to stare in the same store window roughly 24 times; and conferred with a
third person. It would have been sloppy police work for an officer of 30 years' experience to have
failed to investigate this behavior further.

In admitting in evidence two guns seized during the stop-and-frisk, the US Supreme Court held that
what justified the limited search was the more immediate interest of the police officer in taking steps
to assure himself that the person with whom he was dealing was not armed with a weapon that
could unexpectedly and fatally be used against him.

It did not, however, abandon the rule that the police must, whenever practicable, obtain advance
judicial approval of searches and seizures through the warrant procedure, excused only by exigent
circumstances.

In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a
previously secured judicial warrant; otherwise, such search and seizure is unconstitutional and
subject to challenge.20 Section 2, Article III of the 1987 Constitution, gives this guarantee:

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 after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.

Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence as a
"fruit of the poisonous tree," falling under the exclusionary rule:

Sec. 3. . . .

(2) Any evidence obtained in violation of . . . the preceding section shall be inadmissible for
any purpose in any proceeding.
This right, however, is not absolute.21 The recent case of People vs. Lacerna enumerated five
recognized exceptions to the rule against warrantless search and seizure, viz.: "(1) search incidental
to a lawful arrest, (2) search of moving vehicles, (3) seizure in plain view, (4) customs search, and
(5) waiver by the accused themselves of their right against unreasonable search and
seizure."22 In People vs. Encinada,23 the Court further explained that "[i]n these cases, the search and
seizure may be made only with probable cause as the essential requirement. Although the term
eludes exact definition, probable cause for a search is, at best, defined as a reasonable ground of
suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in
the belief that the person accused is guilty of the offense with which he is charged; or the existence
of such facts and circumstances which could lead a reasonably discreet and prudent man to believe
that an offense has been committed and that the item(s), article(s) or object(s) sought in connection
with said offense or subject to seizure and destruction by law is in the place to be searched."

Stop-and-frisk has already been adopted as another exception to the general rule against a search
without a warrant. In Posadas vs. Court of Appeals,24 the Court held that there were many instances
where a search and seizure could be effected without necessarily being preceded by an arrest, one
of which was stop-and-frisk. In said case, members of the Integrated National Police of Davao
stopped petitioner, who was carrying a buri bag and acting suspiciously. They found inside
petitioner's bag one .38-cal. revolver with two rounds of live ammunition, two live ammunitions for a
.22-cal. gun and a tear gas grenade. In upholding the legality of the search, the Court said that to
require the police officers to search the bag only after they had obtained a search warrant might
prove to be useless, futile and much too late under the circumstances. In such a situation, it was
reasonable for a police officer to stop a suspicious individual briefly in order to determine his identity
or to maintain the status quo while obtaining more information, rather than to simply shrug his
shoulders and allow a crime to occur.

In the case at hand, Patrolman Espiritu and his companions observed during their surveillance that
appellant had red eyes and was wobbling like a drunk along the Caloocan City Cemetery, which
according to police information was a popular hangout of drug addicts. From his experience as a
member of the Anti-Narcotics Unit of the Caloocan City Police, such suspicious behavior was
characteristic of drug addicts who were "high." The policemen therefore had sufficient reason to stop
petitioner to investigate if he was actually high on drugs. During such investigation, they found
marijuana in petitioner's possession:25

FISCAL RALAR:

Q And why were you conducting surveillance in front of the Caloocan

Cemetery, Sangandaan, Caloocan City?

A Because there were some informations that some drug dependents were
roaming around at A. Mabini Street in front of the Caloocan Cemetery,
Caloocan City.

xxx xxx xxx

Q While you were conducting your surveillance, together with Pat. Angel
Lumabas and one Arnold Enriquez, what happened, if any?

A We chanced upon one male person there in front of the Caloocan

Cemetery then when we called his attention, he tried to avoid us, then
prompting us to approach him and introduce ourselves as police officers in a
polite manner.
 xxx xxx xxx

Q Could you describe to us the appearance of that person when you

chanced upon him?

A That person seems like he is high on drug.

Q How were you able to say Mr. Witness that that person that you chanced
upon was high on drug?

A Because his eyes were red and he was walking on a swaying manner.

Q What was he doing in particular when you chanced upon him?

A He was roaming around, sir.

Q You said that he avoided you, what did you do when he avoided you?

A We approached him and introduced ourselves as police officers in a polite

manner, sir.

Q How did you introduce yourselves?

A In a polite manner, sir.

Q What did you say when you introduced yourselves?

A We asked him what he was holding in his hands, sir.

Q And what was the reaction of the person when you asked him what he was
holding in his hands?

A He tried to resist, sir.

Q When he tried to resist, what did you do?

A I requested him if I can see what was he was (sic) holding in his hands.

Q What was the answer of the person upon your request?

A He allowed me to examine that something in his hands, sir.

xxx xxx xxx

Q What was he holding?

A He was holding his wallet and when we opened it, there was a marijuana
(sic) crushed residue.
Furthermore, we concur with the Solicitor General's contention that petitioner effectively waived the
inadmissibility of any evidence illegally obtained when he failed to raise this issue or to object thereto
during the trial. A valid waiver of a right, more particularly of the constitutional right against
unreasonable search, requires the concurrence of the following requirements: (1) the right to be
waived existed; (2) the person waiving it had knowledge, actual or constructive, thereof; and (3) he
or she had an actual intention to relinquish the right.26 Otherwise, the Courts will indulge every
reasonable presumption against waiver of fundamental safeguards and will not deduce
acquiescence from the failure to exercise this elementary right. In the present case, however,
petitioner is deemed to have waived such right for his failure to raise its violation before the trial
court. In petitions under Rule 45, as distinguished from an ordinary appeal of criminal cases where
the whole case is opened for review, the appeal is generally limited to the errors assigned by
petitioner. Issues not raised below cannot be pleaded for the first time on appeal.27

Second Issue: Assessment of Evidence

Petitioner also contends that the two arresting officers' testimony contained "polluted, irreconcilable
and unexplained" contradictions which did not support petitioner's conviction.

We disagree. Time and again, this Court has ruled that the trial court's assessment of the credibility
of witnesses, particularly when affirmed by the Court of Appeals as in this case, is accorded great
weight and respect, since it had the opportunity to observe their demeanor and deportment as they
testified before it. Unless substantial facts and circumstances have been overlooked or
misappreciated by the trial court which, if considered, would materially affect the result of the case,
we will not countenance a departure from this rule.28

We concur with Respondent Court's ruling:

(e)ven assuming as contended by appellant that there had been some inconsistencies in the
prosecution witnesses' testimonies, We do not find them substantial enough to impair the
essential veracity of their narration. In People vs. Avila, it was held that — "As long as the
witnesses concur on the material points, slight differences in their remembrance of the
details, do not reflect on the essential veracity of their statements.

However, we find that, aside from the presumption of regularity in the performance of duty, the
bestowal of full credence on Pat. Espiritu's testimony is justified by tangible evidence on record.
Despite Pat. Lumabas' contradictory testimony, that of Espiritu is supported by the Joint
Affidavit29 signed by both arresting policemen. The question of whether the marijuana was found
inside petitioner's wallet or inside a plastic bag is immaterial, considering that petitioner did not deny
possession of said substance. Failure to present the wallet in evidence did not negate that marijuana
was found in petitioner's possession. This shows that such contradiction is minor and does not
destroy Espiritu's credibility.30

Third Issue: Sufficiency of Evidence

The elements of illegal possession of marijuana are: (a) the accused is in possession of an item or
object which is identified to be a prohibited drug; (b) such possession is not authorized by law; and
(c) the accused freely and consciously possessed the said drug.31

The substance found in petitioner's possession was identified by NBI Forensic Chemist Aida Pascual
to be crushed marijuana leaves. Petitioner's lack of authority to possess these leaves was
established. His awareness thereof was undeniable, considering that petitioner was high on drugs
when stopped by the policemen and that he resisted when asked to show and identify the thing he
was holding. Such behavior clearly shows that petitioner knew that he was holding marijuana and
that it was prohibited by law.

Furthermore, like the trial and the appellate courts, we have not been given sufficient grounds to
believe the extortion angle in this case. Petitioner did not file any administrative or criminal case
against the arresting officers or present any evidence other than his bare claim. His argument that
he feared for his life was lame and unbelievable, considering that he was released on bail and
continued to be on bail as early as April 26, 1988.32 Since then, he could have made the charge in
relative safety, as he was no longer in the custody of the police. His defense of frame-up, like alibi, is
viewed by this Court with disfavor, because it is easy to concoct and fabricate.33

The Proper Penalty

The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act No. 4103, as
amended) by sentencing petitioner to a straight penalty of six years and one day of imprisonment,
aside from the imposed fine of six thousand pesos. This Act requires the imposition of an
indeterminate penalty:

Sec. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised
Penal Code, or its amendments, the court shall sentence the accused to an indeterminate
sentence the maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said Code, and the
minimum which shall be within the range of the penalty next lower to that prescribed by the
Code for the offense; and if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less than the minimum
term prescribed by the same. (As amended by Act No. 4225.)

Sec. 2. This Act shall not apply to persons convicted of offenses punished with death penalty
or life-imprisonment; to those convicted of treason; to those convicted of misprision of
treason, rebellion, sedition or espionage; to those convicted of piracy; to those who are
habitual delinquents; to those who shall have escaped from confinement or evaded
sentence; to those who having been granted conditional pardon by the Chief Executive shall
have violated the terms thereof; to those whose maximum term of imprisonment does not
exceed one year, not to those already sentenced by final judgment at the time of approval of
this Act, except as provided in Section 5 hereof. (Emphasis supplied)

The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty for
illegal possession of marijuana:

Sec. 8. . . . .

The penalty of imprisonment ranging from six years and one day to twelve years and a fine
ranging from six thousand to twelve thousand pesos shall be imposed upon any person who,
unless authorized by law, shall possess or use Indian hemp.

Prescinding from the foregoing, the Court holds that the proper penalty is an indeterminate sentence
of imprisonment ranging from six years and one day to twelve years.34

WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with MODIFICATION.
Petitioner is sentenced to suffer IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12)
YEARS, as maximum, and to PAY a FINE of SIX THOUSAND PESOS. Costs against petitioner.
SO ORDERED.

THIRD DIVISION

G.R. No. 93239 March 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDISON SUCRO, accused-appellant.

The Solicitor General for plaintiff-appellee.

Fidencio S. Raz for accused-appellant.

GUTIERREZ, JR., J.:

Edison Sucro was charged with and convicted of violation of Section 4, Article II of the Dangerous
Drugs Act, under an Information which reads:

That on or about the 21st day of March, 1989, in the evening, in the Poblacion, Municipality
of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, acting as a pusher or broker in the business of
selling, administering, delivery, giving away to another and/or distributing prohibited drugs,
did then and there wilfully, unlawfully and feloniously and without authority of law have in his
possession and control nineteen (19) pieces of marijuana cigarette sticks and four (4) tea
bags of dried marijuana leaves which were confiscated from him by the police authorities of
Kalibo, Aklan, shortly after having sold one tea bag of dried marijuana leaves to a customer.
(Rollo, p. 9)

Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not guilty" to the
offense charged. Trial ensued and a judgment of conviction was rendered, the pertinent portion of
which reads:

WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty of the sale of
prohibited drug under Section 4, Article II of the Dangerous Drug Act, as amended, and
sentencing him to suffer the penalty of life imprisonment, and pay a fine of P20,000, and
costs. He shall be entitled to full credit in the service of his sentence with the period for which
he has undergone preventive imprisonment to the date of promulgation of this judgment. All
the items of marijuana confiscated in this case are declared forfeited in favor of the State.
(Rollo, p. 41)

From the foregoing judgment of conviction, accused-appellant interposes this appeal, assigning the
following as errors allegedly committed by the court a quo, to wit:

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE PROSECUTION

EXHIBITS "E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO BE THE CORPUS
 DELICTI; FURTHERMORE, THAT THE SAME WERE TAKEN WITHOUT THE REQUIRED
WARRANT OF SEARCH AND ARREST SINCE THE ACCUSED WAS NOT IN THE ACT OF
COMMITTING ANY OFFENSE AT THE TIME OF HIS ARREST.

II

THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO GUILTY OF
THE SALE OF PROHIBITED DRUGS UNDER SECTION 4, ARTICLE II, OF THE
DANGEROUS DRUGS ACT AND SENTENCING HIM TO SUFFER A PENALTY OF LIFE
IMPRISONMENT AND TO PAY A FINE OF P 20,000.00. (Appellant's Brief, p. 1)

The antecedent facts of the case as summarized by the Solicitor General are as follows:

On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan, was instructed
by P/Lt. Vicente Seraspi, Jr. (Station Commander of the INP Kalibo, Aklan) to monitor the
activities of appellant Edison Sucro, because of information gathered by Seraspi that Sucro
was selling marijuana. (p. 6, TSN, May 2,1989).

As planned, at about 5:00 P.M. on said date, Pat. Fulgencio Positioned himself under the
house of a certain Arlie Regalado at C. Quimpo Street. Adjacent to the house of Regalado,
about 2 meters away, was a chapel. Thereafter, Pat. Fulgencio saw appellant enter the
chapel, taking something which turned out later to be marijuana from the compartment of a
cart found inside the chapel, and then return to the street where he handed the same to a
buyer, Aldie Borromeo. After a while appellant went back to the chapel and again came out
with marijuana which he gave to a group of persons. (pp. 6-8, 15-18, Ibid). It was at this
instance that Pat. Fulgencio radioed P/Lt. Seraspi and reported the activity going on. P/Lt.
Seraspi instructed Pat. Fulgencio to continue monitoring developments. At about 6:30 P.M.,
Pat. Fulgencio again called up Seraspi to report that a third buyer later Identified as Ronnie
Macabante, was transacting with appellant. (pp. 18-19, Ibid)

At that point, the team of P/Lt. Seraspi proceeded to the area and while the police officers
were at the Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt. Seraspi to intercept
Macabante and appellant. P/Lt. Seraspi and his team caught up with Macabante at the
crossing of Mabini and Maagma Sts. in front of the Aklan Medical Center. Upon seeing the
police, Macabante threw something to the ground which turned out to be a tea bag of
marijuana. (pp. 6-8, TSN, June 19, 1989) When confronted, Macabante readily admitted that
he bought the same from appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May 24,
1989) The police team was able to overtake and arrest appellant at the corner of C. Quimpo
and Veterans Sts. The police recovered 19 sticks and 4 teabags of marijuana from the cart
inside the chapel and another teabag from Macabante, The teabags of marijuana were sent
to the PC-INP Crime Laboratory Service, at Camp Delgado, Iloilo City for analysis. The
specimens (Exhibits "G" to "G-18", Exhibits "E" to "E-4") were all found positive of marijuana.
(pp. 47, TSN, Sept. 4, 1989)" (Appellee's Brief, pp. 3-6)

As can be seen from the facts, the issue hinges mainly on whether or not the arrest without warrant
of the accused is lawful and consequently, whether or not the evidence resulting from such arrest is
admissible.

We rule in the affirmative.

The accused-appellant contends that his arrest was illegal, being a violation of his rights granted
under Section 2, Article III of the 1987 Constitution. He stresses that there was sufficient time for the
police officers to apply for a search and arrest warrants considering that Fulgencio informed his
Station Commander of the activities of the accused two days before March 21, 1989, the date of his
arrest.

This contention is without merit.

Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest
without warrant is considered lawful. The rule states:

Arrest without warrant, when lawful. — A peace officer or private person may, without
warrant, arrest a person:

(a) When in his presence, the person to be arrested has committed, is actually committing, or
is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; (Emphasis supplied)

An offense is committed in the presence or within the view of an officer, within the meaning of the
rule authorizing an arrest without a warrant, when the officer sees the offense, although at a
distance, or hears the disturbances created thereby and proceeds at once to the scene thereof.
(U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910])

The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to monitor the
activities of the accused who was earlier reported to be selling marijuana at a chapel two (2) meters
away from Regalado's house.

Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He saw Sucro
talk to some persons, go inside the chapel, and return to them and exchange some things. These,
Sucro did three times during the time that he was being monitored. Fulgencio would then relay the
on-going transaction to P/Lt. Seraspi.

Anent the second requirement, the fact that Macabante, when intercepted by the police, was caught
throwing the marijuana stick and when confronted, readily admitted that he bought the same from
accused-appellant clearly indicates that Sucro had just sold the marijuana stick to Macabante, and
therefore, had just committed an illegal act of which the police officers had personal knowledge,
being members of the team which monitored Sucro's nefarious activity.

The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that
police officers have personal knowledge of the actual commission of the crime when it had earlier
conducted surveillance activities of the accused. Thus, it stated:

When Luciano and Caraan reached the place where the alleged transaction would take
place and while positioned at a street comer, they saw appellant Regalado Bati and Warner
Marquez by the side of the street about forty to fifty meters away from them (the public
officers). They saw Marquez giving something to Bati, who, thereafter handed a wrapped
object to Marquez who then inserted the object inside the front of his pants in front of his
abdomen while Bati, on his part, placed the thing given to him inside his pocket. (p. 2)

xxx xxx xxx

 . . . Both Patrolman Luciano and Caraan actually witnessed the same and their testimonies
were based on their actual and personal knowledge of the events that took place leading to
appellant's arrest. They may not have been within hearing distance, specially since
conversation would expectedly be carried on in hushed tones, but they were certainly near
enough to observe the movements of the appellant and the buyer. Moreover, these
prosecution witnesses are all law enforcers and are, therefore, presumed to have regularly
performed their duties in the absence of proof to the contrary (People v.
Bati, supra citing People v. Agapito, G.R. No. 73786, October 12, 1987)

The accused questions the failure of the police officers to secure a warrant considering that
Fulgencio himself knew of Sucro's activities even prior to the former's joining the police force.
Fulgencio reported Sucro's activities only three days before the incident.

As the records reveal, Fulgencio and Sucro had known each other since their childhood years and
that after Fulgencio joined the police force, he told the accused-appellant not to sell drugs in their
locality. Hence, it is possible that because of this friendship, Fulgencio hesitated to report his
childhood friend and merely advised him not to engage in such activity. However, because of reliable
information given by some informants that selling was going on everyday, he was constrained to
report the matter to the Station Commander.

On the other hand, the failure of the police officers to secure a warrant stems from the fact that their
knowledge acquired from the surveillance was insufficient to fulfill the requirements for the issuance
of a search warrant. What is paramount is that probable cause existed. Thus, it has been held in the
case of People v. Lo Ho Wing, et al. (G.R. No. 88017, January 21, 1991):

In the instant case, it was firmly established from the factual findings of the trial court that the
authorities had reasonable ground to believe that appellant would attempt to bring in
contraband and transport it within the country. The belief was based on intelligence reports
gathered from surveillance activities on the suspected syndicate, of which appellant was
touted to be a member. Aside from this, they were also certain as to the expected date and
time of arrival of the accused from China. But such knowledge was clearly insufficient to
enable them to fulfill the requirements for the issuance of a search warrant. Still and all, the
important thing is that there was probable cause to conduct the warrantless search, which
must still be present in such a case.

As the Solicitor General has pointed out:

There are several instances when a warrantless search and seizure can be effected without
necessarily being preceded by an arrest provided the same is effected on the basis of
probable cause (e.g. stop and search without warrant at checkpoints). Between warrantless
searches and seizures at checkpoints and in the case at bar the latter is more reasonable
considering that unlike in the former, it was effected on the basis of probable cause. Under
the circumstances (monitoring of transactions) there existed probable cause for the arresting
officers, to arrest appellant who was in fact selling marijuana and to seize the contraband.

That searches and seizures must be supported by a valid warrant is not an absolute rule (Manipon,
Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions granted by law is a search
incidental to a lawful arrest under Sec. 12, Rule 126 of the Rules on Criminal Procedure, which
provides that a person lawfully arrested may be searched for dangerous weapons or anything which
may be used as proof of the commission of an offense, without a search warrant. (People v.
Castiller, G.R. No. 87783, August 6, 1990)
The accused-appellant claims that the arrest having been done without warrant, it follows that the
evidence obtained therefrom is inadmissible.

As earlier discussed, there is nothing unlawful about the arrest considering its compliance with the
requirements of a warrantless arrest. Ergo, the fruits obtained from such lawful arrest are admissible
in evidence.

Edison Sucro assails the trial court's reliance on the statement of Macabante whose reason for
testifying could be merely to escape prosecution.

We quote the trial court's finding as to the testimony of Macabante:

The non-filing of a complaint against him for possession of marijuana may have been the
reason of (sic) his willingness to testify in court against the accused. But this does not
necessarily taint the evidence that proceeds from his lips. As explained by Lt. Seraspi, the
best sources of information against drug pushers are usually their customers, especially if as
in this case, there is no other direct evidence of the selling except the testimony of the buyer.
We accept this observation as a realistic appraisal of a situation in which drug users are, and
should be employed by law enforcement authorities to bolster the drive against pushers who
are the real felons in our society. We have observed the demeanor of the witness in court,
and found him to be straightforward, unhesitating, and spontaneous in his declarations, so
that we are satisfied as to his intention and disposition to tell the truth (Rollo, p. 40)

Time and again it has been held that the findings of the trial court are entitled to great weight and
should not be disturbed on appeal unless it is shown that the trial court had overlooked certain facts
of weight and importance, it being acknowledged. that the court below, having seen and heard the
witnesses during the trial, is in a better position to evaluate their testimonies (People v. Umali, et al.,
G.R. No. 84450, February 4, 1991 citing People v. Alvarez, 163 SCRA 745 [1988]; People v.
Dorado, 30 SCRA 53 [1969]; and People v. Espejo, 36 SCRA 400 [1970]).

Furthermore, the testimony of Macabante was corroborated on material points by public officers
Fulgencio and Seraspi.

There is nothing in the record to suggest that the police officers were compelled by any motive than
to accomplish their mission to capture a drug pusher in the execution of the crime, the presumption
being that police officers perform their duties regularly in the absence of any evidence to the contrary
(Rule 131, Sec. 3(m), Revised Rules on Evidence; People v. Castiller, supra citing People v.
Natipravat, 145 SCRA 483 [1986]).

The prosecution evidence was further bolstered by the findings of the Forensic Chemist that the
items seized were all positive for marijuana.

In contrast to the evidence presented by the prosecution, accused-appellant's defense is alibi which
is unavailing considering that he was positively identified by Macabante to be the person from whom
he bought marijuana.

Sucro alleges that he could not have committed the crime since he was with his uncle and cousin
distributing handbills for his Auntie's candidacy. The fact, however, remains that it does not preclude
the possibility that he was present in the vicinity as established by his admission that he moved a lot
and even had the occasion to meet Macabante on the street.
It is well-settled that mere denials cannot prevail against the positive identification of the appellant as
the seller of the prohibited substances. (People v. Khan, 161 SCRA 406 [1988]; and People v. Paco,
170 SCRA 681 [1989])

Premises considered, this Court is convinced that appellant Edison Sucro had indeed committed the
offense charged. The trial court's decision must be upheld.

WHEREFORE, the decision appealed from is hereby AFFIRMED.

SO ORDERED.

EN BANC

G.R. No. 129296 September 25, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ABE VALDEZ y DELA CRUZ, accused-appellant.

DECISION

QUISUMBING, J.:

For automatic review is the decision1 promulgated on February 18, 1997, by the Regional Trial Court
of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 3105. It found appellant Abe
Valdez y Dela Cruz guilty beyond reasonable doubt for violating Section 9 of the Dangerous Drugs
Act of 1972 (R.A. No. 6425), as amended by R.A. No. 7659. He was sentenced to suffer the penalty
of death by lethal injection.

In an Information dated September 26, 1996, appellant was charged as follows:"That on or about
September 25, 1996, at Sitio Bulan, Barangay Sawmill, Municipality of Villaverde, Province of Nueva
Vizcaya, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
who was caught in flagrante delicto and without authority of law, did then and there wilfully (sic),
unlawfully and feloniously plant, cultivate and culture seven (7) fully grown marijuana plants known
as Indian Hemp weighing 2.194 kilos, from which dangerous drugs maybe (sic) manufactured or
derived, to the damage and prejudice of the government of the Republic of the Philippines.

"That the property where the said seven (7) fully grown marijuana plants were planted, cultivated
and cultured shall be confiscated and escheated in favor of the government.

"CONTRARY TO LAW."2

On November 15, 1996, appellant was arraigned and, with assistance of counsel, pleaded not guilty
to the charge. Trial on the merits then ensued.

The first witness for the prosecution was SPO3 Marcelo Tipay, a member of the police force of
Villaverde, Nueva Vizcaya. He testified that at around 10:15 a.m. of September 24, 1996, he
received a tip from an unnamed informer about the presence of a marijuana plantation, allegedly
owned by appellant at Sitio Bulan, Ibung, Villaverde, Nueva Vizcaya.3 The prohibited plants were
allegedly planted close to appellant's hut. Police Inspector Alejandro R. Parungao, Chief of Police of
Villaverde, Nueva Vizcaya then formed a reaction team from his operatives to verify the report. The
team was composed of SPO3 Marcelo M. Tipay, SPO2 Noel V. Libunao, SPO2 Pedro S. Morales,
SPO1 Romulo G. Tobias and PO2 Alfelmer I. Balut. Inspector Parungao gave them specific
instructions to "uproot said marijuana plants and arrest the cultivator of same."4

At approximately 5:00 o'clock A.M. the following day, said police team, accompanied by their
informer, left for the site where the marijuana plants were allegedly being grown. After a three-hour,
uphill trek from the nearest barangay road, the police operatives arrived at the place pinpointed by
their informant. The police found appellant alone in his nipa hut. They, then, proceeded to look
around the area where appellant had his kaingin and saw seven (7) five-foot high, flowering
marijuana plants in two rows, approximately 25 meters from appellant's hut.5 PO2 Balut asked
appellant who owned the prohibited plants and, according to Balut, the latter admitted that they were
his.6 The police uprooted the seven marijuana plants, which weighed 2.194 kilograms.7 The police
took photos of appellant standing beside the cannabis plants.8 Appellant was then arrested. One of
the plants, weighing 1.090 kilograms, was sent to the Philippine National Police Crime Laboratory in
Bayombong, Nueva Vizcaya for analysis.9 Inspector Prevy Fabros Luwis, the Crime Laboratory
forensic analyst, testified that upon microscopic examination of said plant, she found cystolitic hairs
containing calcium carbonate, a positive indication for marijuana.10 She next conducted a chemical
examination, the results of which confirmed her initial impressions. She found as follows:

"SPECIMEN SUBMITTED: Exh "A" - 1.090 grams of uprooted suspected marijuana plant placed
inside a white sack with markings.

xxx

"FINDINGS: Qualitative examination conducted on the above stated specimen gave POSITIVE
result to the test for Marijuana, a prohibited drug."11

The prosecution also presented a certification from the Department of Environment and Natural
Resources that the land cultivated by appellant, on which the growing marijuana plants were found,
was Lot 3224 of Timberland Block B, which formed part of the Integrated Social Forestry Area in
Villaverde, Nueva Vizcaya.12 This lot was part of the public domain. Appellant was acknowledged in
the certification as the occupant of the lot, but no Certificate of Stewardship had yet been issued in
his favor.13

As its sole witness, the defense presented appellant. He testified that at around 10:00 o'clock A.M.,
September 25, 1996, he was weeding his vegetable farm in Sitio Bulan when he was called by a
person whose identity he does not know. He was asked to go with the latter to "see
something."14 This unknown person then brought appellant to the place where the marijuana plants
were found, approximately 100 meters away from his nipa hut.15 Five armed policemen were present
and they made him stand in front of the hemp plants. He was then asked if he knew anything about
the marijuana growing there. When he denied any knowledge thereof, SPO2 Libunao poked a fist at
him and told him to admit ownership of the plants.16 Appellant was so nervous and afraid that he
admitted owning the marijuana.17

The police then took a photo of him standing in front of one of the marijuana plants. He was then
made to uproot five of the cannabis plants, and bring them to his hut, where another photo was
taken of him standing next to a bundle of uprooted marijuana plants.18 The police team then brought
him to the police station at Villaverde. On the way, a certain Kiko Pascua, a barangay peace officer
of Barangay Sawmill, accompanied the police officers. Pascua, who bore a grudge against him,
because of his refusal to participate in the former's illegal logging activities, threatened him to admit
owning the marijuana, otherwise he would "be put in a bad situation."19 At the police headquarters,
appellant reiterated that he knew nothing about the marijuana plants seized by the police.20

On cross-examination, appellant declared that there were ten other houses around the vicinity of
his kaingin, the nearest house being 100 meters away.21 The latter house belonged to one Carlito
(Lito) Pascua, an uncle of the barangay peace officer who had a grudge against him. The spot
where the marijuana plants were found was located between his house and Carlito Pascua's.22

The prosecution presented SPO3 Tipay as its rebuttal witness. His testimony was offered to rebut
appellant's claim that the marijuana plants were not planted in the lot he was cultivating.23 Tipay
presented a sketch he made,24 which showed the location of marijuana plants in relation to the old
and new nipa huts of appellant, as well as the closest neighbor. According to Tipay, the marijuana
plot was located 40 meters away from the old hut of Valdez and 250 meters distant from the hut of
Carlito Pascua.25 Tipay admitted on cross-examination that no surveyor accompanied him when he
made the measurements.26 He further stated that his basis for claiming that appellant was the owner
or planter of the seized plants was the information given him by the police informer and the proximity
of appellant's hut to the location of said plants.27

Finding appellant's defense insipid, the trial court held appellant liable as charged for cultivation and
ownership of marijuana plants as follows:

"WHEREFORE, finding the accused GUILTY beyond reasonable doubt of cultivating marijuana
plants punishable under section 9 of the Dangerous Drugs Act of 1972, as amended, accused is
hereby sentenced to death by lethal injection. Costs against the accused.

"SO ORDERED."28

Appellant assigns the following errors for our consideration:

THE TRIAL COURT GRAVELY ERRED IN ADMITTING AS EVIDENCE THE SEVEN (7)
MARIJUANA PLANTS DESPITE THEIR INADMISSIBILITY BEING PRODUCTS OF AN
ILLEGAL SEARCH.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT OF VIOLATION OF

SECTION 9, REPUBLIC ACT NO. 6425 DESPITE THE INADMISSIBILITY OF
THE CORPUS DELICTI AND THE FAILURE OF THE PROSECUTION TO PROVE HIS
GUILT BEYOND REASONABLE DOUBT.

III

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF

DEATH UPON APPELLANT DESPITE FAILURE OF THE PROSECUTION TO PROVE
THAT THE LAND WHERE THE MARIJUANA PLANTS WERE PLANTED IS A PUBLIC
LAND ON THE ASSUMPTION THAT INDEED APPELLANT PLANTED THE SUBJECT
MARIJUANA.29
Simply stated, the issues are:

(1) Was the search and seizure of the marijuana plants in the present case lawful?

(2) Were the seized plants admissible in evidence against the accused?

(3) Has the prosecution proved appellant's guilt beyond reasonable doubt?

(4) Is the sentence of death by lethal injection correct?

The first and second issues will be jointly discussed because they are interrelated.

Appellant contends that there was unlawful search. First, the records show that the law enforcers
had more than ample time to secure a search warrant. Second, that the marijuana plants were found
in an unfenced lot does not remove appellant from the mantle of protection against unreasonable
searches and seizures. He relies on the ruling of the US Supreme Court in Terry v. Ohio, 392 US 1,
20 L. Ed 2d 898, 88 S. Ct. 1868 (1968), to the effect that the protection against unreasonable
government intrusion protects people, not places.

For the appellee, the Office of the Solicitor General argues that the records clearly show that there
was no search made by the police team, in the first place. The OSG points out that the marijuana
plants in question were grown in an unfenced lot and as each grew about five (5) feet tall, they were
visible from afar, and were, in fact, immediately spotted by the police officers when they reached the
site. The seized marijuana plants were, thus, in plain view of the police officers. The instant case
must, therefore, be treated as a warrantless lawful search under the "plain view" doctrine.

The court a quo upheld the validity of the search and confiscation made by the police team on the
finding that:

"...It seems there was no need for any search warrant. The policemen went to the plantation site
merely to make a verification. When they found the said plants, it was too much to expect them to
apply for a search warrant. In view of the remoteness of the plantation site (they had to walk for six
hours back and forth) and the dangers lurking in the area if they stayed overnight, they had a valid
reason to confiscate the said plants upon discovery without any search warrant. Moreover, the
evidence shows that the lot was not legally occupied by the accused and there was no fence which
evinced the occupant's desire to keep trespassers out. There was, therefore, no privacy to protect,
hence, no search warrant was required."30

The Constitution31 lays down the general rule that a search and seizure must be carried on the
strength of a judicial warrant. Otherwise, the search and seizure is deemed "unreasonable."
Evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for
being the proverbial fruit of a poisonous tree and should be excluded.32 Such evidence shall be
inadmissible in evidence for any purpose in any proceeding.33

In the instant case, there was no search warrant issued by a judge after personal determination of
the existence of probable cause. From the declarations of the police officers themselves, it is clear
that they had at least one (1) day to obtain a warrant to search appellant's farm. Their informant had
revealed his name to them. The place where the cannabis plants were planted was pinpointed. From
the information in their possession, they could have convinced a judge that there was probable
cause to justify the issuance of a warrant. But they did not. Instead, they uprooted the plants and
apprehended the accused on the excuse that the trip was a good six hours and inconvenient to
them. We need not underscore that the protection against illegal search and seizure is
constitutionally mandated and only under specific instances are searches allowed without
warrants.34 The mantle of protection extended by the Bill of Rights covers both innocent and guilty
alike against any form of high-handedness of law enforcers, regardless of the praiseworthiness of
their intentions.

We find no reason to subscribe to Solicitor General's contention that we apply the "plain view"
doctrine. For the doctrine to apply, the following elements must be present:

(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties;

(b) the evidence was inadvertently discovered by the police who have the right to be where
they are; and

(c) the evidence must be immediately apparent; and

(d) plain view justified mere seizure of evidence without further search.35

In the instant case, recall that PO2 Balut testified that they first located the marijuana plants before
appellant was arrested without a warrant.36 Hence, there was no valid warrantless arrest which
preceded the search of appellant's premises. Note further that the police team was dispatched to
appellant's kaingin precisely to search for and uproot the prohibited flora. The seizure of evidence in
"plain view" applies only where the police officer is not searching for evidence against the accused,
but inadvertently comes across an incriminating object.37 Clearly, their discovery of the cannabis
plants was not inadvertent. We also note the testimony of SPO2 Tipay that upon arriving at the area,
they first had to "look around the area" before they could spot the illegal plants.38 Patently, the seized
marijuana plants were not "immediately apparent" and a "further search" was needed. In sum, the
marijuana plants in question were not in "plain view" or "open to eye and hand." The "plain view"
doctrine, thus, cannot be made to apply.

Nor can we sustain the trial court's conclusion that just because the marijuana plants were found in
an unfenced lot, appellant could not invoke the protection afforded by the Charter against
unreasonable searches by agents of the State. The right against unreasonable searches and
seizures is the immunity of one's person, which includes his residence, his papers, and other
possessions.39 The guarantee refers to "the right of personal security"40 of the individual. As appellant
correctly points out, what is sought to be protected against the State's unlawful intrusion are
persons, not places.41 To conclude otherwise would not only mean swimming against the stream, it
would also lead to the absurd logic that for a person to be immune against unreasonable searches
and seizures, he must be in his home or office, within a fenced yard or a private place. The Bill of
Rights belongs as much to the person in the street as to the individual in the sanctuary of his
bedroom.

We therefore hold, with respect to the first issue, that the confiscated plants were evidently obtained
during an illegal search and seizure. As to the second issue, which involves the admissibility of the
marijuana plants as evidence for the prosecution, we find that said plants cannot, as products of an
unlawful search and seizure, be used as evidence against appellant. They are fruits of the proverbial
poisoned tree. It was, therefore, a reversible error on the part of the court a quo to have admitted
and relied upon the seized marijuana plants as evidence to convict appellant.

We now proceed to the third issue, which revolves around the sufficiency of the prosecution's
evidence to prove appellant's guilt. Having declared the seized marijuana plants inadmissible in
evidence against appellant, we must now address the question of whether the remaining evidence
for the prosecution suffices to convict appellant?

In convicting appellant, the trial court likewise relied on the testimony of the police officers to the
effect that appellant admitted ownership of the marijuana when he was asked who planted them. It
made the following observation:

"It may be true that the admission to the police by the accused that he planted the marijuana plants
was made in the absence of any independent and competent counsel. But the accused was not, at
the time of police verification; under custodial investigation. His admission is, therefore, admissible in
evidence and not violative of the constitutional fiat that admission given during custodial investigation
is not admissible if given without any counsel."42

Appellant now argues that his admission of ownership of the marijuana plants in question cannot be
used against him for being violative of his right to counsel during the police investigation. Hence, it
was error for the trial court to have relied upon said admission of ownership. He submits that the
investigation conducted by the police officers was not a general inquiry, but was meant to elicit
information on the ownership of the marijuana plants. Appellant theorizes that since the investigation
had narrowed down to him, competent and independent counsel should have assisted him, when
the police sought information from him regarding the ownership of the prohibited plants. Appellant
claims the presumption of regularity of duty of officers cannot be made to apply to his purported
voluntarily confession of ownership of the marijuana plants. Nor can it override his constitutional right
to counsel during investigation.

The Office of the Solicitor General believes otherwise. The OSG avers that appellant was not yet
under custodial investigation when he admitted to the police that he owned the marijuana plants. His
right to competent and independent counsel, accordingly, had not yet attached. Moreover,
appellant’s failure to impute any false motive for the police officers to falsely accuse him indicates
that the presumption of regularity in the performance of official duties by police officers was not
sufficiently rebutted.

The Constitution plainly declares that any person under investigation for the commission of an
offense shall have the right: (1) to remain silent; (2) to have competent and independent counsel
preferably of his own choice; and (3) to be informed of such rights. These rights cannot be waived
except in writing and in the presence of counsel.43 An investigation begins when it is no longer a
general inquiry but starts to focus on a particular person as a suspect, i.e., when the police
investigator starts interrogating or exacting a confession from the suspect in connection with an
alleged offense.44 The moment the police try to elicit admissions or confessions or even plain
information from a person suspected of having committed an offense, he should at that juncture be
assisted by counsel, unless he waives the right in writing and in the presence of counsel.45

In the instant case we find that, from the start, a tipster had furnished the police appellant's name as
well as the location of appellant's farm, where the marijuana plants were allegedly being grown.
While the police operation was supposedly meant to merely "verify" said information, the police chief
had likewise issued instructions to arrest appellant as a suspected marijuana cultivator. Thus, at the
time the police talked to appellant in his farm, the latter was already under investigation as a
suspect. The questioning by the police was no longer a general inquiry.46

Under cross-examination, PO2 Balut stated, he "did not yet admit that he is the cultivator of that
marijuana so we just asked him and I think there is no need to inform (him of) his constitutional rights
because we are just asking him..."47 In trying to elicit information from appellant, the police was
already investigating appellant as a suspect. At this point, he was already under custodial
investigation and had a right to counsel even if he had not yet been arrested. Custodial investigation
is "questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way."48 As a suspect, two armed
policemen interrogated appellant. Behind his inquisitors were a barangay peace officer and three
other armed policemen.49 All had been dispatched to arrest him.50 From these circumstances, we may
infer that appellant had already been deprived of his freedom of action in a significant way, even
before the actual arrest. Note that even before he was arrested, the police made him incriminatingly
pose for photos in front of the marijuana plants.

Moreover, we find appellant's extrajudicial confession flawed with respect to its admissibility. For a
confession to be admissible, it must satisfy the following requirements: (1) it must be voluntary; (2) it
must be made with the assistance of competent and independent counsel; (3) it must be express;
and (4) it must be in writing.51 The records show that the admission by appellant was verbal. It was
also uncounselled. A verbal admission allegedly made by an accused during the investigation,
without the assistance of counsel at the time of his arrest and even before his formal investigation is
not only inadmissible for being violative of the right to counsel during criminal investigations, it is also
hearsay.52 Even if the confession or admission were "gospel truth", if it was made without assistance
of counsel and without a valid waiver of such assistance, the confession is inadmissible in evidence,
regardless of the absence of coercion or even if it had been voluntarily given.53

It is fundamental in criminal prosecutions that before an accused may be convicted of a crime, the
prosecution must establish by proof beyond reasonable doubt that a crime was committed and that
the accused is the author thereof.54 The evidence arrayed against the accused, however, must not
only stand the test of reason,55 it must likewise be credible and competent.56 Competent evidence is
"generally admissible" evidence.57 Admissible evidence, in turn, is evidence "of such a character that
the court or judge is bound to receive it, that is, allow it to be introduced at trial."58

In the instant case, the trial court relied on two pieces of probative matter to convict appellant of the
offense charged. These were the seized marijuana plants, and appellant's purportedly voluntary
1âwphi 1

confession of ownership of said marijuana plants to the police. Other than these proofs, there was
no other evidence presented to link appellant with the offense charged. As earlier discussed, it was
error on the trial court's part to have admitted both of these proofs against the accused and to have
relied upon said proofs to convict him. For said evidence is doubly tainted.

First, as earlier pointed out, the seized marijuana plants were obtained in violation of appellant's
constitutional rights against unreasonable searches and seizures. The search and seizure were
void ab initio for having been conducted without the requisite judicial warrant. The prosecution's very
own evidence clearly establishes that the police had sufficient time to obtain a warrant. There was
no showing of such urgency or necessity for the warrantless search or the immediate seizure of the
marijuana plants subject of this case. To reiterate, said marijuana plants cannot be utilized to prove
appellant's guilt without running afoul of the constitutional guarantees against illegal searches and
the inadmissibility of evidence procured pursuant to an unlawful search and seizure.

Second, the confession of ownership of the marijuana plants, which appellant allegedly made to the
police during investigation, is not only hearsay but also violative of the Bill of Rights. The purported
confession was made without the assistance of competent and independent counsel, as mandated
by the Charter. Thus, said confession cannot be used to convict appellant without running afoul of
the Constitution's requirement that a suspect in a criminal investigation must have the services of
competent and independent counsel during such investigation.
In sum, both the object evidence and the testimonial evidence as to appellant's voluntary confession
of ownership of the prohibited plants relied upon to prove appellant's guilt failed to meet the test of
Constitutional competence.

The Constitution decrees that, "In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved..."59 To justify the conviction of the accused, the prosecution must adduce
that quantum of evidence sufficient to overcome the constitutional presumption of innocence. The
prosecution must stand or fall on its evidence and cannot draw strength from the weakness of the
evidence for the accused.60 Absent the required degree of proof of an accused's guilt, he is entitled
to an acquittal.61 In this case, the seized marijuana plants linking appellant to the crime charged are
miserably tainted with constitutional infirmities, which render these inadmissible "for any purpose in
any proceeding."62 Nor can the confession obtained during the uncounselled investigation be used
against appellant, "it being inadmissible in evidence against him."63 Without these proffered but
proscribed materials, we find that the prosecution's remaining evidence did not even approximate
the quantum of evidence necessary to warrant appellant's conviction. Hence, the presumption of
innocence in his favor stands. Perforce, his acquittal is in order.

In acquitting an appellant, we are not saying that he is lily-white, or pure as driven snow. Rather, we
are declaring his innocence because the prosecution's evidence failed to show his guilt beyond
reasonable doubt. For that is what the basic law requires. Where the evidence is insufficient to
overcome the presumption of innocence in favor of the accused, then his "acquittal must follow in
faithful obeisance to the fundamental law."64

WHEREFORE, the decision promulgated on February 18, 1997, by the Regional Trial Court of
Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 3105, finding Abe Valdez y Dela
Cruz, guilty beyond reasonable doubt of violating Section 9 of the Dangerous Drugs Act of 1972, and
imposing upon him the death penalty, is hereby REVERSED and SET ASIDE for insufficiency of
evidence. Appellant is ACQUITTED and ordered RELEASED immediately from confinement unless
held for another lawful cause.

SO ORDERED.

EN BANC

G.R. No. 128222 June 17, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CHUA HO SAN @ TSAY HO SAN, accused-appellant.

DAVIDE, JR., C.J.:

Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquitttal and the reversal of the
judgment of 10 February 1997 of the Regional Trial Court (RTC) of San Fernando, La Union, Branch
66, finding him guilty of transporting, without appropriate legal authority, the regulated substance
methamphetamine hydrochloride, in violation of Section 15, 1 Article III of Republic Act No. 6425,
otherwise known as the Dangerous Drugs Act of 1972 as further amended by R.A. No. 7659,2 and
sentencing him to "die by lethal injection." In view thereof, the judgement was brought to this Court
for automatic review pursuant to Article 47 of the Revised Penal Code, as amended by Section 11 of
R.A. No. 7659.

In response to reports of rampant smuggling of firearms and other contraband, Jim Lagasca Cid
(hereafter CID), as Chief of Police of the Bacnotan Police Station, of La Union began patrolling the
Bacnotan coastline with his officers. While monitoring the coastal area of Barangay Bulala on 29
March 1995, he intercepted a radio call at around 12:45 p.m. from Barangay Captain Juan Almoite
(hereafter ALMOITE) of Barangay Tammocalao requesting police assistance regarding an unfamiliar
speedboat the latter had spotted. According to ALMOITE, the vessel looked different from the boats
ordinarily used by fisherfolk of the area and was poised to dock at Tammocalao shores. CID and six
of his men led by his Chief Investigator, SPO1 Reynoso Badua (hereafter BADUA), proceeded
forthwith to Tammocalao beach and there conferred with ALMOITE. CID then observed that the
speedboat ferried a lone male passenger. As it was routine for CID to deploy his men in strategic
places when dealing with similar situations, he ordered his men to take up positions thirty meters
from the coastline. When the speedboat landed, the male passenger alighted, and using both hands,
carried what appeared a multicolored strawbag. He then walked towards the road. By this time,
ALMOITE, CID and BADUA, the latter two conspicuous in their uniform and issued side-arms,
became suspicious of the man as he suddenly changed direction and broke into a run upon seeing
the approaching officers. BADUA, however, prevented the man from fleeing by holding on to his right
arm. Although CID introduced themselves as police officers, the man appeared impassive. Speaking
in English, CID then requested the man to open his bag, but he seem not to understand. CID thus
tried speaking Tagalog, then Ilocano, but still to no avail. CID then resorted to what he termed "sign
language;" he motioned with his hands for the man to open the bag. This time, the man apparently
understood and acceded to the request. A search of the bag yielded several transparent plastic
packets containing yellowish crystalline substances. CID then gestured to the man to close the bag,
which he did. As CID wished to proceed to the police station, he signaled the man to follow, but the
latter did not to comprehend. Hence, CID placed his arm around the shoulders of the man and
escorted the latter to the police headquarters.

At the police station, CID surmised, after having observed the facial features of the man, that he was
probably Taiwanese. CID then "recited and informed the man of his constitutional rights" to remain
silent, to have the assistance of a counsel, etc. Eliciting no response from the man, CID ordered his
men to find a resident of the area who spoke Chinese to act as an enterpreter. In the meantime,
BADUA opened the bag and counted twenty-nine (29) plastic packets containing yellowish
crystalline substance which he and CID suspected was shabu. The interpreter, Mr. Go Ping Guan,
finally arrived, through whom the man was "apprised of his constitutional rights." The police
authorities were satisfied that the man and the interpreter perfectly understood each other despite
their uncertainty as to what language was spoken. But when the policemen asked the man several
questions, he retreated to his obstinate reticence and merely showed his I.D. with the name Chua
Ho San printed thereon. CHUA's bag and its contents were sent to the PNP Crime Laboratory at
Camp Diego Silang, Carlatan, San Fernando, La Union for laboratory examination. In the meantime,
CHUA was detained at the Bacnotan Police Station. 1âwphi1.nêt

Later that same day, Police Chief Inspector and Forensic Chemist Theresa Ann Bugayong Cid of the
Philippine National Police, Region I, received a letter request3 from CID — incidentally her husband
— to conduct a laboratory examination of twenty-nine (29) plastic packets placed inside a
multicolored strawbag. In her Chemistry Report No. D-025-95,4 she stated that her qualitative
examination established the contents of the plastic packets, weighing 28.7 kilos, to be positive of
methamphetamine hydrochloride or shabu, a regulated drug.

CHUA was initially charged with illegal possession of methaphetamine hydrochloride before the RTC
which docketed the case as Criminal Case No. 4037. However, pursuant to the recommendation of
the Office of the Provincial Prosecutor, La Union, that the facts of the case could support an
indictment for illegal transport of a regulated drug, the information was subsequently amended to
allege that CHUA "willfully, unlawfully and feloniously transpor(ted) 28.7 kilos of [m]ethamphetamine
[h]ydrochloride (shabu) without the necessary permit or authority to transport the same" in violation
of Section 15, Article III of R.A. 6425 as amended by R.A. 7659.

At his arraignment on 31 July 1995, CHUA entered a plea of not guilty. The RTC was satisfied that
CHUA understood the amended information read to him in Fukien by the Fukien-speaking
interpreter, Thelma Sales Go.

Thereafter, the RTC exerted all efforts to obtain the services of a Taiwanese Interpreter through the
auspices of the Department of Foreign Affairs. However, it was only after directing the request to the
Taipei Economic and Cultural Office in the Philippines that interpreters were assigned to CHUA.

Trial finally ensued. The State presented evidence tending to establish the above narration of facts
which were culled chiefly from the testimony of CID, its first witness, and whose testimony, in turn,
was substantially corroborated by witnesses BADUA and ALMOITE.

Experts witness Theresa Ann Cid, confirmed the entries of her chemistry report in that the contents
of the 29 plastic packets weighing 28.7 kilos sent to her for chemical analysis were pure,
unadulterated methamphetamine hydrochloride or shabu. She also explained that they were
unwashed, hence they appeared yellowish.

For the defense, CHUA testified in his own behalf through interpreter Steven Yu. He disclosed that
he hails from Taiwan and was employed in a shipbuilding and repairing company. On 21 March
1995, he was instructed by his employer Cho Chu Rong (hereafter RONG) to board the latter's 35-
tonner ship which would embark for Nan Au Port, Mainland China where they would buy fish. Upon
arrival at their destination, RONG left the ship, came back without the fish, but with two bags, the
contents of which he never divulged to CHUA. RONG then showed to CHUA a document
purportedly granting them authority to fish on Philippine waters. So they sailed towards the
Philippines and reached Dagupan, Pangasinan on 29 March 1995. At around 10:30 a.m., they
disembarked on a small speedboat with the two bags RONG brought with him from China. While,
sailing, RONG made several phone calls using his mobile phone. CHUA heard RONG asked the
person on the other side of the line if he could see the speedboat they were riding. Apparently, the
person on shore could not see them so they cruised over the waters for about five hours more when
finally, low on fuel and telephone battery, they decided to dock. CHUA anchored the boat while
RONG carried the bags to shore. The tasks completed, RONG left to look for a telephone while
CHUA rested and sat one and half (1 1/2) meters away from one bag. A child thereafter pointed out
to him that one bag was missing much to RONG's dismay when he learned of it. When a crowd
started to mill around them, the police arrived. CHUA then realized that RONG was nowhere to be
found. The police immediately approached CHUA, and with nary any spoken word, only gestures
and hand movements, they escorted him to the precinct where he was handcuffed and tied to a
chair. Later, the police, led by an officer who CHUA guessed as the Chief of Police arrived with the
motor engine of the speedboat and a bag. They presented the bag to him, opened it, inspected and
weighed the contents, then proclaimed them as methaphetamine hydrochloride.
CHUA denounced the prosecution's story as a distortion of the truth. He denied he was ever favored
with an interpreter or informed of his "constitutional rights," particularly of his right to counsel.
Consequently, his arrest was tainted with illegality and the methamphetamine hydrochloride found in
the bag should have been regarded inadmissible as evidence. He also maintained that CID never
graced the occasion of his setting foot for the first time at Tammocalao beach. BADUA certainly
never prevented him from running away, as such thought failed to make an impression in his mind.
Most significantly, he denied ownership and knowledge of the contents of the bag, emphasizing that
RONG alone exercised dominion over the same.

Elmer Parong, (hereafter PARONG) a Sangguniang Bayan member, recalled that on the date in
question, he arrived at the beach with the police. He saw CHUA standing with a bag beside him. He
also remembered hearing from the people congregating at the beach that CHUA arrived with a
companion and a certain policeman Anneb had chased the latter's car. He additionally claimed that
when the crowd became unruly, the police decided to bring CHUA to police headquarters. There, the
mayor took charge of the situation — he opened CHUA's bag with the assistance of the police, he
called for a forensic chemist surnamed CID to take a sample of the contents of the bag, and he
ordered his officials to find an interpreter. Throughout the proceedings, photographers were busy
taking pictures to document the event.

Last to testify was Arsenio CRAIG, a farmer and resident of Tammocalao who narrated that he was
standing with CHUA on the beach when two men and a lady arrived. They were about to get a bag
situated near CHUA when they detected the arrival of the local police. They quickly disappeared.
CRAIG then noticed ALMOITE and PARONG at the beach but not CID.

In a decision promulgated on 10 February 1997, the RTC found that the prosecution successfully
discharged its burden of proving that CHUA transported 28.7 kilos of methamphetamine
hydrochloride without legal authority to do so. Invoking People v. Tagliben5 as authority, the RTC
characterized the search as incidental to a valid in flagrante delicto arrest, hence it allowed the
admission of the methamphetamine hydrochloride as corpus delicti. The RTC also noted the futility
of informing CHUA of his constitutional rights to remain silent, and to have competent and
independent counsel preferably of his own choice, considering the language barrier and the
observation that such irregularity was "rectified when accused was duly arraigned and . . .
(afterwards) participated in the trial of this case." The RTC then disregarded the inconsistencies and
contradictions in the testimonies of the prosecution witnesses as these referred to minor details
which did not impair the credibility of the witnesses or tarnish the credence conferred on the
testimonies thus delivered.

The RTC also believed that CHUA conspired not only with his alleged employer RONG and the
Captain of the 35-tonner vessel in the illegal trade of prohibited drugs on Philippine shores, but with
several other members of an organized syndicate bent on perpetrating said illicit traffic. Such
predilection was plainly evident in the dispositive portion, to wit:

WHEREFORE, and in view of all the foregoing, as proven and established by

convincing and satisfactory evidence that the accused had conspired and acted in
concert with one Cho Chu Rong, not to mention Chen Ho Fa, the Skipper of the 35-
tonner ship they used in coming to the Country from China and Taiwan, this Court
finds the accused Chua Ho San @ Tsay Ho San guilty beyond reasonable doubt of
the offense of Violation of Sec. 15, Art. III of R.A. No. 6425, as amended by R.A. No.
7659 as charged in the Information, and considering the provisions of Sec. 20 of R.A.
No. 7659 that the maximum penalty shall be imposed if the quantity
sold/possessed/transported is "200 grams or more" in the case of Shabu, and
considering, further that the quantity involved in this case is 28.7 kilograms which is
 far beyond the weight ceiling specified in said Act, coupled with the findings of
conspiracy or that accused is a member of an organized syndicated crime group, this
Court, having no other recourse but to impose the maximum penalty to accused, this
Court hereby sentences the said accused Chua Ho San @ Tsay Ho San to die by
lethal injection; to pay a fine of Ten Million Pesos (P10,000,000.00); and to pay the
costs.

The Court hereby orders Director Ricareido [sic] Sarmiento of the Philippine National
Police to immediately form an investigating Committee to be composed by [sic] men
of unimpeachable integrity, who will conduct an exhaustive investigation regarding
this case to determine whether there was negligence or conspiracy in the escape of
Cho Chu Rong and the two (2) or three (3) persons who approached the accused in
the seashore of Tammocalao, Bacnotan, La Union, and attempted to take the
remaining bag from accused, as well as the whereabouts of the other bag; and to
furnish this Court a copy of the report/result of the said investigation in order to show
compliance herewith sixty (60) days from receipt hereof.

The confiscated 28.7 kilograms of Methaphetamine Hydrochloride or Shabu is

ordered turned over immediately to the Dangerous Drugs Board for destruction in
accordance with the law.

The fiberglass boat with its motor engine is hereby ordered confiscated in favor of the
government and to be turned over to the Philippine National Police, La Union
Command, for use in their Bantay-Dagat operations against all illegal seaborne
activities.

SO ORDERED. 6

Before this Court, CHUA posits that the RTC erred in (1) admitting as competent evidence the 29
plastic packets of methamphetamine hydrochloride since they were indubitably "forbidden fruits;" (2)
granting weight and credence to the testimonies of prosecution witnesses despite glaring
inconsistencies on material points; and in (3) appreciating conspiracy between him and an organized
syndicate in the illicit commerce of prohibited drugs since this was not alleged in the information.

The Solicitor General traverses CHUA's contentions by asserting that: (1) the search was licitly
conducted despite the absence of search and seizure warrants as circumstances immediately
preceding to and comtemporaneous with the search necessitated and validated the police action;
and (2) that there was an effective and valid waiver of CHUA's right against unreasonable searches
and seizures since he consented to the search.

We reverse the RTC.

Enshrined in the Constitution is the inviolable right to privacy home and person. It explicitly ordains
that people have the right to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose.7 Inseparable, and not
merely corollary or incidental to said right and equally hallowed in and by the Constitution, is the
exclusionary principle which decrees that any evidence obtained in violation of said right is
inadmissible for any purpose in any proceedings.8

The Cosntitutional proscription against unreasonable searches and seizures does not, of course,
forestall reasonable searches and seizure. What constitutes a reasonable or even an unreasonable
search in any particular case is purely a judicial question, determinable from a consideration of the
circumstances involved.9 Verily, the rule is, the Constitution bars State intrusions to a person's body,
personal effects or residence except if conducted by virtue of a valid of a valid search warrant issued
in compliance with the procedure outlined on the Constitution and reiterated in the Rules of Court;
"otherwise such search and seizure become "unreasonable" within the meaning of the
aforementioned constitutional provision."10 This interdiction against warrantless searches and
seizures, however, is not absolute and such warrantless searches and seizures have long been
deemed permissible by jurisprudence11 in instances of (1) search of moving vehicles, (2) seizure in
plain view, (3) customs searches, (4) waiver or consent searches, (5) stop and frisk situations (Terry
search),12 and (6) search incidental to a lawful arrest. The last includes a valid warrantless search
and seizure pursuan to an equally valid warrantless arrest, for, while as a rule, an arrest is
considered legitimate if effected with a valid wararnt of arrest, the Rules of Court recognize
permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot
pursuit, and (3) arrests of escaped prisoners. 13

This Court is therefore tasked to determine whether the warrantless arrest, search and seizure
conducted under the facts of the case at bar constitute a valid exemption from the warrant
requirement. Expectedly and quite understandably, the prosecution and the defense painted
extremely divergent versions of the incident. But this Court is certain that CHUA was arrested and
his bag searched without the benefit of a warrant.

In cases of in fragrante delicto, arrests, a peace officer or a private person may without a warrant,
arrest a person, when, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense. The arresting officer, therefore, must have
personal knowledge of such facts14 or as recent case law15 adverts to, personal knowledge of facts or
circumstances convincingly indicative or constitutive of probable cause. The term probable cause
had been understood to mean a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty
of the offense with which he is charged.16 Specifically with respect to arrests, it is such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an offense
has been committed by the person sought to be
arrested. 17 In People v. Montilla,18 the Court acknowledged that "the evidentiary measure for the
propriety of filing criminal charges, and correlatively, for effecting warrantless arrest, has been
reduced and liberalized." Noting that the previous statutory and jurisprudential evidentiary standard
was "prima facie evidence" and that it had been dubiously equated with probable cause, the Court
explained:

[F]elicitously, those problems and confusing concepts (referring to prima

facie evidence and probable cause) were clarified and set aright, at least on the
issue under discussion, by the 1985 amendment of the Rules of Court which
provides in Rule 112 thereof that the quantum of evidence required in preliminary
investigation is such evidence as suffices to "engender as well founded belief" as to
the fact of the commission of the crime and the respondent's probable guilt thereof. It
has the same meaning as the related phraseology used in other parts of the same
Rule, that is, that the investigating fiscal "finds cause to hold the respondent for trial,"
or where "a probable cause exists." It should, therefore, be in that sense, wherein the
right to effect a warrantless arrest should be considered as legally authorized."
(emphasis supplied)19

Guided by these principles, this Court finds that there are no facts on record reasonably suggestive
or demonstrative of CHUA's participation in on going criminal enterprise that could have spurred
police officers from conducting the obtrusive search. The RTC never took the pains of pointing to
such facts, but predicated mainly its decision on the finding that was "accused was caught red-
handed carrying the bagful of [s]habu when apprehended." In short, there is no probable cause. At
least in People v. Tangliben, the Court agreed with the lower court's finding that compelling reasons
(e.g., accused was acting suspiciously, on the spot identification by an informant that accused was
transporting prohibitive drug, and the urgency of the situation) constitutive of probable cause
impelled police officers from effecting an in flagrante delicto arrest. In the case at bar, the Solicitor
General proposes that the following details are suggestive of probable cause — persistent reports of
rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in
appearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's
illegal entry into the Philippines (he lacked the necessary travel documents or visa), CHUA's
suspicious behavior, i.e. he attempted to flee when he saw the police authorities, and the apparent
ease by which CHUA can return to and navigate his speedboat with immediate dispatch towards the
high seas, beyond the reach of Philippine laws.

This Court, however, finds that these do not constitute "probable cause." None of the telltale
clues, e.g., bag or package emanating the pungent odor of marijuana or other prohibited
drug,20 confidential report and/or positive identification by informers of courier(s) of prohibited drug
and/or the time and place where they will transport/deliver the same,21 suspicious demeanor or
behavior 22 and suspicious bulge in the waist23 — accepted by this Court as sufficient to justify a
warrantless arrest exists in this case. There was no classified information that a foreigner would
disembark at Tammocalao beach bearing prohibited drug on the date in question. CHUA was not
identified as a drug courier by a police informer or agent. The fact that the vessel that ferried him to
shore bore no resemblance to the fishing boats of the area did not automatically mark him as in the
process of perpetrating an offense. And despite claims by CID and BADUA that CHUA attempted to
flee, ALMOITE testified that the latter was merely walking and oblivious to any attempt at
conversation when the officers approached him. This cast serious doubt on the truthfulness of the
claim, thus:

Q: How far were you when the accused put the bag on his sholder?

A: We were then very near him about three meters away from the
male person carrying the bag.

Q: To what direction was he facing when he put the bag on his

shoulder?

A: To the east direction.

Q: In relation to you, where were you.

A: With the company of Sgt. Reynoso and Maj. Cid we approached

the accused and when Maj. Cid went near him, he spoke in
Tagalong, English and Ilocano which accused did not understand
because he did not respond.

Q: When Maj. Cid was talking, what was the accused doing at that
time?

A: He was walking.

Q: To what direction he was walking?

A: He was walking to the east direction. (sic)

 Q: He was walking away from you or going near you?

A: He was going away from us. That is why Sgt. Reynoso held the
right arm of the accused.

Q: Was Sgt. Badua able to hold the right arm of the accused?

A: Yes sir and he stopped.24

True, CHUA entered Philippine territory without a visa. This was not obvious to the police. But
gossamer to the officers' sense perception and view were CHUA disembarking from a speedboat,
CHUA walking casually towards the road, and CHUA carrying a multicolored strawbag. These acts
did not convey any impression that he illegally entered Philippine shores. Neither were these overt
manifestations of an ongoing felonious activity nor of CHUA's criminal behevior as clearly
established in CID's testimony, thus:

Q Was the accused committing a crime when you introduced

yourselves:

A No, sir.

Q No, so there was no reason for you to approach the accused

because he was not doing anything wrong?

A No, sir, that is our objective, to approach the person and if ever or
whatever assistance that we can give we will give.25

The search cannot therefore be denominated as incidental to an arrest. While a contemporaneous

search of a person arrested may be effected to deliver dangerous weapons or proofs or implements
used in the commission of the crime and which search may extend to the area within his immediate
control where he might gain possession of a weapon or evidence he can destroy,26 a valid arrest
must precede the search. The process cannot be reversed.

In a search incidental to a lawful arrest, as the precedent arrest determines the

validity of the incidental search, the legality of the arrest is questioned in a large
majority of these cases, e.g., whether an arrest was merely used as a pretext for
conducting a search. In this instance, the law requires that there be first a lawful
arrest before a search can be made — the process cannot be reversed.27

To reiterate, the search was not incidental to an arrest. There was no warrant of arrest and
the warrantless arrest did not fall under the exemptions allowed by the Rules of Court28 as
already shown. Fom all indications, the search was nothing but a fishing expedition. It is
worth mentioning here that after introducing themselves, the police officcers immediately
inquired about the contents of the bag. What else could have impelled the officers from
displaying such inordinate interest in the bag but to ferret out evidence and discover if a
felony had indeed been committed by CHUA — in effect to "retroactively establish probable
cause and validate an illegal search and seizure."

The State then attempted to persuade this Court that there was a consented search, a legitimate
waiver of the constitutional guarantee against obtrusive searches. It is fundamental, however, that to
constitute a waiver, it must first appear that the right exists; secondly, that the person involved had
knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had
an actual intention to relinquish the right.29 CHUA never exhibited that he knew, actually or
constructively of his right against unreasonable searches or that he intentionally conceded the same.
This can be inferred from the manner by which the search performed, thus:

Q Together with your Chief Investigator, what was the first thing that
you did when you approached him (CHUA)?

A We introduced ourselves as police officers, sir.

Q Okey, in the first place why did you introduce yourselves?

A That is normal practice in our part, sir.

xxx xxx xxx

Q If it is possible. Okey (sic) now, after introducing yourselves what

did you do?

A He did not answer me and he did not utter any word,

Q When he did not utter any word. What else did he do?

A I asked again a question that if he can open his bag sir.

Q And did he understand your question when you requested him to

open his bag?

A No, sir, there is no answer.

Q No answer?

A Yes, sir, no answer.

Q And when there was no answer what did you do next?

A I used sign language sir.

Q Will you demonstrate to this Honorable Court how you

demonstrated that sign language of opening the bag mr. (sic)
witness?

A I pointed to the zipper of the bag and then made an action like this
sir.

xxx xxx xxx

SHERIFF:
 The witness demonstrating (sic) by pointing to the straw bag and then
manifesting a sign to open the zipper of the straw bag moving his
right hand from left to right or from the opening to the end of the
zipper.

COURT: From the start of the zipper where you open it up to the end
of the zipper.

Witness: Yes, sir, and then I made a motion like this.

(The witness repeating the motion described on record.)

COURT: Did you open that personally?

WITNESS:

A No, your honor.

Q Now, mr. (sic) witness, why did you request the accused to open
the bag?

A Because it is our duty also to inspect his belongings sir.

Q Why, why was it — no, I reform my question your honor. Is it

normal procedure for you to examine anybody or to request anybody
to open his bag?

A The fact that he was a foreigner, sir, it is also our duty to inspect
the baggage, it is our routine duty of a police (sic), sir.

Q Is that the normal duty of a police officer to request a person to

open his bag?

A yes, sir.

Q Okey, (sic) you did not ask the accused, mr. (sic) witness, to open
his bag?

A No, sir.

Q But you simply requested him to open the nag?

A Yes, sir.30

CHUA obviously failed to understand the events that overran and overwhelmed him. The police
officers already introduced themselves to CHUA in three languages, but he remained completely
deadpan. The police hence concluded that CHUA failed to comprehend the three languages. When
CHUA failed to respond again to the police's request to open the bag, they resorted to what they
called "sign language." They claimed that CHUA finally understood their hand motions and gestures.
This Court disagrees. If CHUA could not understand what was orally articulated to him, how could he
understand the police's "sign language." More importantly, it cannot logically be inferred from his
alleged cognizance of the "sign language" that he deliberately, intelligently, and consciously waived
his right against such an intrusive search. This Court is not unmindful of cases upholding the validity
of consented warrantless searches and seizure. But in these cases, the police officers' request to
search personnel effects was orally articulated to the accused and in such language that left no
room for doubt that the latter fully understood what was requested. In some instances, the accused
even verbally replied to the request demonstrating that he also understood the nature and
consequences of such request.31

It was eventually discovered that the bag contained the regulated subtance. But this is a trifling
matter. If evidence obtained during an illegal search even if tending to confirm or actually confirming
initial information or suspicion of felonious activity is absolutely considered inadmissible for any
purpose in any proceeding, the same being the fruit of a poisonous trees32 how much more of
"forbidden fruits" which did not confirm any initial suspicion of criminal enterprise as in this case —
because the police admitted that they never harbored any initial suspicion. Casting aside the
regulated substance as evidence, the remaining evidence on record are insufficient, feeble and
ineffectual to sustain CHUA's conviction.

Indeed, the likelihood of CHUA having actually transported methamphetamine hydrochloride cannot
be quickly dispelled. But the constitutional guarantee against unreasonable searches and seizures
cannot be so carelessly disregarded, as overzealous police officers are sometimes wont to do.
Fealty to the Constitution and the rights it guarantees should be paramount in their minds, otherwise
their good intentions will remain as such simply because they have blundered. "There are those who
say that . . . 'the criminal is to go free because the constable has blundered.'. . . In some cases this
will undoubtedly be the result. But . . . 'there is another consideration — the imperative of judicial
integrity . . . The criminal goes free, if he must, but it is the law that sets him free. Nothing can
destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of
the charter of its own existence."33

As to the averred glaring inconsistencies in the testimonies of the posecution witnesses, this Court
considers them trivial as they refer to insignificant details which will not affect the outcome of the
case. On a passing note, this Court calls the attention of the trial court regarding its erroneous
appreciation of conspiracy. This aggravating circumstance is without question unsupported by the
records. Conspiracy was not included in the indictment nor raised in the pleadings or proceedings of
the trial court. It is also fundamental that conspiracy must be proven just like any other criminal
accusation, that is, independently and beyond reasonable doubt.34

WHEREFORE, for all the foregoing, the decision of the Regional Trial Court, Branch 66, San
Fernando, La Union in Criminal Case No. 4037 is hereby REVERSED and SET ASIDE and
accused-appellant CHUA HO SAN @ TSAY HO SAN is hereby ACQUITTED of the crime charged,
the evidence not being sufficient to establish his guilt beyond reasonable doubt.

Costs de oficio.

SO ORDERED.

THIRD DIVISION
 G.R. No. L-63630 April 6, 1990

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MEDEL TANGLIBEN Y BERNARDINO, defendant-appellant.

The Office of the Solicitor General for plaintiff-appellee.

Katz N. Tierra for defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court, Branch 41, Third Judicial Region at
San Fernando, Pampanga, Branch 41, finding appellant Medel Tangliben y Bernardino guilty beyond
reasonable doubt of violating Section 4, Article II of Republic Act 6425 (Dangerous Drugs Act of
1972 as amended) and sentencing him to life imprisonment, to pay a fine of P20,000 and to pay the
costs.

The information filed against the appellant alleged:

That on or about the 2nd day of March, 1982, in the municipality of San Fernando, Province
of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused MEDEL TANGLIBEN y BERNARDINO, knowing fully well that Marijuana is
a prohibited drug, did then and there willfully, unlawfully and feloniously have his possession,
control and custody one (1) bag of dried marijuana leaves with an approximate weight of one
(1) kilo and to transport (sic) the same to Olongapo City, without authority of law to do so. (At
p. 6, Rollo)

The prosecution's evidence upon which the finding of guilt beyond reasonable doubt was based is
narrated by the trial court as follows:

It appears from the evidence presented by the prosecution that in the late evening of March
2, 1982, Patrolmen Silverio Quevedo and Romeo L. Punzalan of the San Fernando Police
Station, together with Barangay Tanod Macario Sacdalan, were conducting surveillance
mission at the Victory Liner Terminal compound located at Barangay San Nicolas, San
Fernando, Pampanga; that the surveillance was aimed not only against persons who may
commit misdemeanors at the said place but also on persons who may be engaging in the
traffic of dangerous drugs based on informations supplied by informers; that it was around
9:30 in the evening that said Patrolmen noticed a person caring a traveling bag (Exhibit G)
who was acting suspiciously and they confronted him; that the person was requested by
Patrolmen Quevedo and Punzalan to open the red traveling bag but the person refused, only
to accede later on when the patrolmen identified themselves; that found inside the bag were
marijuana leaves (Exhibit B) wrapped in a plastic wrapper and weighing one kilo, more or
less; that the person was asked of his name and the reason why he was at the said place
and he gave his name as Medel Tangliben and explained that he was waiting for a ride to
Olongapo City to deliver the marijuana leaves; that the accused was taken to the police
headquarters at San Fernando, Pampanga, for further investigation; and that Pat. Silverio
Quevedo submitted to his Station Commander his Investigator's Report (Exhibit F).
 It appears also from the prosecution's evidence that in the following morning or on March 3,
1982, Pat. Silverio Quevedo asked his co-policeman Pat. Roberto Quevedo, who happens to
be his brother and who has had special training on narcotics, to conduct a field test on a little
portion of the marijuana leaves and to have the remaining portion examined by the PCCL at
Camp Olivas, San Fernando, Pampanga; that Pat. Roberto Quevedo conducted a field test
(Exhibit H) on the marijuana leaves and found positive result for marijuana (Exhibit E); that
the remaining bigger quantity of the marijuana leaves were taken to the PCCL at Camp
Olivas by Pat. Roberto Quevedo that same day of March 3, 1982 (Exhibit A and A-1) and
when examined, the same were also found to be marijuana (Exhibit C and C-1). (At pp. 9-
10, Rollo)

Only the accused testified in his defense. His testimony is narrated by the trial court as follows:

The accused declared that he got married on October 25, 1981 and his wife begot a child on
June 10, 1982; that he was formerly employed in the poultry farm of his uncle Alejandro
Caluma in Antipolo, Rizal; that he is engaged in the business of selling poultry medicine and
feeds, including chicks, and used to conduct his business at Taytay, Rizal; that he goes to
Subic at times in connection with his business and whenever he is in Subic, he used to buy
C-rations from one Nena Ballon and dispose the same in Manila; that he never left his
residence at Antipolo, Rizal, on March 2, 1982; that on March 3, 1982, he went to Subic to
collect a balance of P100.00 from a customer thereat and to buy C-rations; that he was able
to meet Nena Ballon at 6:00 o'clock in the evening and he stayed in Nena's house up to 8:00
o'clock because he had a drinking spree with Nena's son; that he tried to catch the 8:00
o'clock trip to Manila from Olongapo City but he failed and was able to take the bus only by
9:00 o'clock that evening that it was a Victory Liner Bus that he rode and because he was
tipsy, he did not notice that the bus was only bound for San Fernando, Pampanga; that upon
alighting at the Victory Liner Compound at San Fernando, Pampanga he crossed the street
to wait for a bus going to Manila; that while thus waiting for a bus, a man whom he came to
know later as Pat. Punzalan, approached him and asked him if he has any residence
certificate; that when he took out his wallet, Pat. Punzalan got the wallet and took all the
money inside the wallet amounting to P545.00; that Pat. Punzalan told him that he'll be taken
to the municipal building for verification as he may be an NPA member; that at the municipal
building, he saw a policeman, identified by him later as Pat. Silverio Quevedo, sleeping but
was awakened when he arrived that Pat. Quevedo took him upstairs and told him to take out
everything from his pocket saying that the prisoners inside the jail may get the same from
him; that inside his pocket was a fifty-peso bill and Pat. Quevedo took the same, telling him
that it shall be returned to him but that it was never returned to him; that he was thereafter
placed under detention and somebody told him that he is being charged with possession of
marijuana and if he would like to be bailed out, somebody is willing to help him; and, that
when he was visited by his wife, he told his wife that Patrolman Silverio Quevedo took away
all his money but he told his wife not to complain anymore as it would be useless. (Rollo, pp.
10-11)

Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment of error in his
appeal:

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT AND

FINDING HIM GUILTY OF THE CRIME CHARGED ON INSUFFICIENT AND DOUBTFUL
EVIDENCE. (At p. 48, Rollo)

The Solicitor-General likewise filed his brief, basically reiterating ating the lower court's findings.
However, before this Court had the chance to act on appeal, counsel de oficio Atty. Enrique Chan
died. Thereafter, this court appointed a new counsel de oficio, Atty. Katz Tierra and pursuant thereto,
the Deputy Clerk of Court, in behalf of the Clerk of Court, required the new counsel to file her
appellant's brief. The latter complied and, in her brief, raised the following assignment of errors:

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE PACKAGE OF

MARIJUANA ALLEGEDLY SEIZED FROM DEFENDANT-APPELLANT AS IT WAS A
PRODUCT OF AN UNLAWFUL SEARCH WITHOUT A WARRANT.

II

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE ALLEGED PACKAGE

OF MARIJUANA LEAVES AS THE LEAVES SUPPOSEDLY SEIZED FROM ACCUSED
WHEN IT WAS NEVER AUTHENTICATED.

III

THE LOWER COURT ERRED IN NOT RULING THAT THE PROSECUTION FAILED TO
PROVE THE GUILT OF DEFENDANT-APPELLANT. (At pp. 92-93, Rollo)

It is contended that the marijuana allegedly seized from the accused was a product of an unlawful
search without a warrant and is therefore inadmissible in evidence.

This contention is devoid of merit.

One of the exceptions to the general rule requiring a search warrant is a search incident to a lawful
arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on Criminal Procedure provides:

Section 12. Search incident to a lawful arrest. A person lawfully arrested may be searched
for dangerous weapons or anything which may be used as proof of the commission of an
offense, without a search warrant.

Meanwhile, Rule 113, Sec. 5(a) provides:

. . . A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense.

Accused was caught in flagrante, since he was carrying marijuana at the time of his arrest. This case
therefore falls squarely within the exception. The warrantless search was incident to a lawful arrest
and is consequently valid.

In the case of People v. Claudia, 160 SCRA 646, [1988] this Court, confronted with the same issue,
held that:

Appellant Claudio was caught transporting prohibited drugs. Pat. Daniel did not need a
warrant to arrest Claudio as the latter was caught in flagrante delicto. The warrantless search
 being an incident to a lawful arrest is in itself lawful. (Nolasco V. Paño, 147 SCRA 509).
Therefore, there was no infirmity in the seizure of the 1.1 kilos of marijuana.

We are not unmindful of the decision of this Court in People v. Amininudin, 163 SCRA 402 [1988]. In
that case the PC officers had earlier received a tip from an informer that accused-appellant. was on
board a vessel bound for Iloilo City and was carrying marijuana. Acting on this tip, they waited for
him one evening, approached him as he descended from the gangplank, detained him and
inspected the bag he was carrying. Said bag contained marijuana leaves. The Court held that the
marijuana could not be admitted in evidence since it was seized illegally. The records show,
however, that there were certain facts, not sing in the case before us, which led the Court to declare
the seizure as invalid. As stated therein:

The present case presented no such urgency From the conflicting declarations of the PC
witnesses, it is clear that they had at react two days within which they could have obtained a
warrant of arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His
name was known. The vehicle was identified. The date of its arrival was certain. And from
the information they had received, they could have persuaded a judge that there was
probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort
was made to comply with the law. The Bill of Rights was ignored altogether because the PC
lieutenant who was the head of the arresting team, had determined on his own authority that
a "search warrant was not necessary."

In contrast, the case before us presented urgency. Although the trial court's decision did not mention
it, the transcript of stenographic notes reveals that there was an informer who pointed to the
accused-appellant as carrying marijuana. (TSN, pp. 52-53) Faced with such on-the-spot information,
the police officers had to act quickly. There was not enough time to secure a search warrant. We
cannot therefore apply the ruling in Aminnudin to the case at bar. To require search warrants during
on-the-spot apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors,
smugglers of contraband goods, robbers, etc. would make it extremely difficult, if not impossible to
contain the crimes with which these persons are associated.

Accused-appellant likewise asserts that the package of marijuana leaves supposedly seized from
him was never authenticated and therefore should not have been admitted as evidence. He
capitalizes on the fact that the marijuana package brought by patrolman Roberto Quevedo to the PC
Crime Laboratory for examination did not contain a tag bearing the name of the accused. We rule,
however, that since Patrolman Quevedo testified that he gave the marijuana package together with a
letter-request for examination, and the forensic chemist Marilene Salangad likewise testified that she
received the marijuana together with the letter-request and said letter-request bore the name of the
accused, then the requirements of proper authentication of evidence were sufficiently complied with.
The marijuana package examined by the forensic checklist was satisfactorily identified as the one
seized from accused.

Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was not properly
authenticated, still, we cannot discount the separate field test conducted by witness Roberto
Quevedo which yielded positive results for marijuana.

Lastly, the appellant claims that the evidence upon which he was convicted was insufficient and
doubtful and that the prosecution failed to prove his guilt.

In attacking the sufficiency of evidence, the appellant avers that the informer should have been
presented before the lower court. We discard this argument as a futile attempt to revive an already
settled issue. This Court has ruled in several cases that non-presentation of the informer, where his
testimony would be merely corroborative or cumulative, is not fatal to the prosecution's case.
(People v. Asio, G.R. No. 84960, September 1, 1989; (People v. Viola, G.R. No. 64262, March 16,
1989; People v. Capulong, 160 SCRA 533 [1988]; People v. Cerelegia, 147 SCRA 538).

As to doubtfulness of evidence, well-settled is the rule that findings of the trial court on the issue of
credibility of witnesses and their testimonies are entitled to great respect and accorded the highest
consideration by the appellate court. Since credibility is a matter that is peculiarly within the province
of the trial judge, who had first hand opportunity to watch and observe the demeanor and behavior of
witnesses both for the prosecution and the defense at the time of their testimony (People v. Tejada,
G.R. No. 81520, February 21, 1989; People v. Turla, 167 SCRA 278), we find no reason to disturb
the following findings:

The testimony of prosecution witnesses Patrolmen Silverio Quevedo and Romeo Punzalan
are positive and sufficiently clean to show the commission by the accused of the offense
herein chatted. These prosecution witnesses have no motive to fabricate the facts and to
foist a very serious offense against the accused. The knowledge on what these witnesses
testified to were (sic) acquired by them in the official performance of their duties and then,
(sic) being no showing that they are prejudiced against the accused, their testimonies
deserve full credit.

The testimonies of the afore-mentioned petitioner that what they found in the possession of
the accused were marijuana leaves were corroborated by the examination findings
conducted by Pat. October to Salangad of the PCCL, with station at camp Olivas, San
Fernando, Pampanga (Exhibits C and C-1). (Rollo, p. 11)

Moreover, if there is truth in the testimony of the accused to the effect that Pat. Punzalan got
all the money from his wallet when he was accosted at the Victory Liner Terminal and was
told just to keep quiet otherwise he will be "salvaged" why will Pat. Punzalan still bring the
accused to the municipal Building for interrogation and/or verification? Would not Pat.
Punzalan be exposing his identity to the accused? This is unnatural. And this is also true on
the testimony to the accused that Pat. Silverio Quevedo got his fifty-peso bill arid never
returned the same to him. If the policemen really got any money from the accused and that
the marijuana leaves do not belong to the accused, why will the two policemen still produce
in Court as evidence that expensive-looking traveling red bag (Exhibit G) taken from the
accused and which contained the marijuana in question if the instant case is a mere
fabrication?

As already stated, all the evidence, oral and documentary, presented by the prosecution in
this case were all based on personal knowledge acquired by the prosecution witnesses in
the regular performance of their official duties and there is nothing in their testimonies to
show that they are bias (sic) or that they have any prejudice against the herein accused.
Between the testimonies of these prosecution witnesses and that of the uncorroborated and
self-serving testimony of the accused, the former should prevail. (Rollo, p. 13)

Likewise, the appellant chose to limit his defense to his own testimony. He could have availed
himself through compulsory court processes of several witnesses to buttress his defense. Since not
one other witness was presented nor was any justification for the non-appearance given, the
inadequacy of his lone and uncorroborated testimony remains. It cannot prevail vis-a-vis the positive
testimonies given by the prosecution witnesses.

Moreover, the appellant's having jumped bail is akin to flight which, as correctly observed by the
lower court, is an added circumstance tending to establish his guilt.
We take exception, however, to the trial court's finding that:

The dried marijuana leaves found in the possession of the accused weighs one (1) kilo, more
or less. The intent to transport the same is clear from the testimony of Pat. Silverio Quevedo
who declared, among other things, that when he confronted the accused that night, the latter
told him that he (accused) is bringing the marijuana leaves to Olongapo City. Moreover,
considering the quantity of the marijuana leaves found in the possession of the accused and
the place he was arrested which is at San Fernando, Pampanga, a place where the accused
is not residing, it can be said that the intent to transport the marijuana leaves has been
clearly established. (Rollo, pp. 13-14)

The alleged extrajudicial confession of the accused which, on the other hand, he categorically
denied in court, that he is transporting the marijuana leaves to Olongapo City cannot be relied upon.
Even assuming it to be true, the extrajudicial confession cannot be admitted because it does not
appear in the records that the accused, during custodial investigation, was apprised of his rights to
remain silent and to counsel and to be informed of such rights. In People v. Duero 104 SCRA 379
[1981], the Court pronounced that "inasmuch as the prosecution failed to prove that before Duero
made his alleged oral confession he was informed of his rights to remain silent and to have counsel
and because there is no proof that he knowingly and intelligently waived those rights, his confession
is inadmissible in evidence. This ruling was reiterated in People v. Tolentino, 145 SCRA 597 [1986],
where the Court added that:

In effect, the Court not only abrogated the rule on presumption of regularity of official acts
relative to admissibility of statements taken during in-custody interrogation but likewise
dispelled any doubt as to the full adoption of the Miranda doctrine in this jurisdiction. It is now
incumbent upon the prosecution to prove during a trial that prior to questioning, the
confessant was warned of his constitutionally protected rights.

The trial judge likewise found the marijuana to weigh one kilo, more or less, and from this finding
extracted a clear intent to transport the marijuana leaves. It may be pointed out, however, that
although the information stated the weight to be approximately one kilo, the forensic chemist who
examined the marijuana leaves testified that the marijuana weighed only 600 grams Such amount is
not a considerable quantity as to conclusively confer upon the accused an intent to transport the
marijuana leaves.

Nor can it be said that the intent to transport is clearly established from the fact that the accused was
arrested at San Fernando, Pampanga, a place which is not his residence. Conviction of a crime with
an extremely severe penalty must be based on evidence which is clearer and more convincing than
the inferences in this case.

What was therefore proved beyond reasonable doubt is not his intent to transport the marijuana
leaves but his actual session.

The offense committed by the appellant is possession of marijuana under Section 8 of Republic Act
No. 6425 (Dangerous Drugs Act of 1972 as amended).

WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED but MODIFIED.
The appellant is sentenced to suffer the penalty of imprisonment ranging from six (6) years and one
(1) day to twelve (12) years and fine of Six Thousand (P6,000.00) Pesos.

SO ORDERED.
 SECOND DIVISION

G.R. No. 138881 December 18, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LEILA JOHNSON Y REYES, accused-appellant.

DECISION

MENDOZA, J.:

This is an appeal from the decision,1 dated May 14, 1999, of the Regional Trial Court, Branch 110,
Pasay City, finding accused-appellant Leila Johnson y Reyesguilty of violation of §16 of R.A. No.
6425 (Dangerous Drugs Act), as amended by R.A. No. 7659, and sentencing her to suffer the
penalty of reclusion perpetua and to pay a fine of ₱500,000.00 and the costs of the suit.

The information against accused-appellant alleged:

That on June 26, 1998 inside the Ninoy Aquino International Airport, and within the jurisdiction of this
Honorable Court, the above-named Accused did then and there willfully, unlawfully and feloniously
possess three plastic bags of methamphetamine hydrochloride, a regulated drug, each bag
weighing:

#1 ONE HUNDRED EIGHTY SEVEN POINT FIVE (187.5) grams;

#2ONE HUNDRED NINETY EIGHT POINT ZERO (198.0) grams; and

#3 ONE HUNDRED NINETY FOUR POINT SEVEN (194.7) grams, respectively,

or a total of FIVE HUNDRED EIGHTY POINT TWO (580.2) grams of methamphetamine

hydrochloride.

That the above-named accused does not have the corresponding

license or prescription to possess or use said regulated drug.

CONTRARY TO LAW.2

Upon being arraigned, accused-appellant pleaded not guilty,3 whereupon trial was held.

The prosecution presented four witnesses, namely, NBI Forensic Chemist George de Lara, SPO4
Reynaldo Embile, duty frisker Olivia Ramirez, and SPO1 Rizalina Bernal. The defense presented
accused-appellant who testified in her own behalf.

The facts are as follows:

Accused-appellant Leila Reyes Johnson was, at the time of the incident, 58 years old, a widow, and
a resident of Ocean Side, California, U.S.A. She is a former Filipino citizen who was naturalized as
an American on June 16, 1968 and had since been working as a registered nurse, taking care of
geriatric patients and those with Alzheimer’s disease, in convalescent homes in the United States.4

On June 16, 1998, she arrived in the Philippines to visit her son’s family in Calamba, Laguna. She
was due to fly back to the United States on July 26. On July 25, she checked in at the Philippine
Village Hotel to avoid the traffic on the way to the Ninoy Aquino International Airport (NAIA) and
checked out at 5:30 p.m. the next day, June 26, 1998.5

At around 7:30 p.m. of that day, Olivia Ramirez was on duty as a lady frisker at Gate 16 of the NAIA
departure area. Her duty was to frisk departing passengers, employees, and crew and check for
weapons, bombs, prohibited drugs, contraband goods, and explosives.6

When she frisked accused-appellant Leila Johnson, a departing passenger bound for the United
States via Continental Airlines CS-912, she felt something hard on the latter’s abdominal area. Upon
inquiry, Mrs. Johnson explained she needed to wear two panty girdles as she had just undergone an
operation as a result of an ectopic pregnancy.7

Not satisfied with the explanation, Ramirez reported the matter to her superior, SPO4 Reynaldo
Embile, saying "Sir, hindi po ako naniniwalang panty lang po iyon." ("Sir, I do not believe that it is just
a panty.") She was directed to take accused-appellant to the nearest women’s room for inspection.
Ramirez took accused-appellant to the rest room, accompanied by SPO1 Rizalina Bernal. Embile
stayed outside.8

Inside the women’s room, accused-appellant was asked again by Ramirez what the hard object on
her stomach was and accused-appellant gave the same answer she had previously given. Ramirez
then asked her "to bring out the thing under her girdle." Accused-appellant brought out three plastic
packs, which Ramirez then turned over to Embile, outside the women’s room.9

The confiscated packs, marked as Exhibits C-1, C-2 and C-3, contained a total of 580.2 grams of a
substance which was found by NBI Chemist George de Lara to be methamphetamine hydrochloride
or "shabu."10

Embile took accused-appellant and the plastic packs to the 1st Regional Aviation and Security Office
(1st RASO) at the arrival area of the NAIA, where accused-appellant’s passport and ticket were
taken and her luggage opened. Pictures were taken and her personal belongings were itemized.11

In her defense, accused-appellant alleged that she was standing in line at the last boarding gate
when she was approached by Embile and two female officers. She claimed she was handcuffed and
taken to the women’s room. There, she was asked to undress and was then subjected to a body
search. She insisted that nothing was found on her person. She was later taken to a room filled with
boxes, garbage, and a chair. Her passport and her purse containing $850.00 and some change were
taken from her, for which no receipt was issued to her. After two hours, she said, she was
transferred to the office of a certain Col. Castillo.12

After another two hours, Col. Castillo and about eight security guards came in and threw two white
packages on the table. They told her to admit that the packages were hers. But she denied
knowledge and ownership of the packages. She was detained at the 1st RASO office until noon of
June 28, 1999 when she was taken before a fiscal for inquest.13 She claimed that throughout the
period of her detention, from the night of June 26 until June 28, she was never allowed to talk to
counsel nor was she allowed to call the U.S. Embassy or any of her relatives in the Philippines.14
On May 14, 1999, the trial court rendered a decision, the dispositive portion of which reads:15

WHEREFORE, judgment is hereby rendered finding the accused LEILA JOHNSON Y REYES,
GUILTY beyond reasonable doubt of the offense of Violation of Section 16 of Republic Act 6425 as
amended and hereby imposes on her the penalty of RECLUSION PERPETUA and condemns said
accused to pay a fine of FIVE HUNDRED THOUSAND PESOS (₱500,000.00) without subsidiary
imprisonment in case of insolvency and to pay the costs of suit.

The Methamphetamine Hydrochloride (shabu) having a total net weight of 580.2 grams (Exhibits "G",
"C-2" and "C-3") are hereby confiscated in favor of the government and the Branch Clerk of Court is
hereby ordered to cause the transportation thereof to the Dangerous Drugs Board for disposition in
accordance with law.

The accused shall be credited in full for the period of her detention at the City Jail of Pasay City
during the pendency of this case provided that she agreed in writing to abide by and comply strictly
with the rules and regulations of the City Jail.

SO ORDERED.

Accused-appellant contends that the trial court convicted her: (1) "despite failure of the prosecution
in proving the negative allegation in the information;" (2) "despite failure of the prosecution in proving
the quantity of methamphetamine hydrochloride;" (3) "despite violation of her constitutional rights;"
and (4) "when guilt was not proven beyond reasonable doubt."16

First. Accused-appellant claims that she was arrested and detained in gross violation of her
constitutional rights. She argues that the "shabu" confiscated from her is inadmissible against her
because she was forced to affix her signature on the plastic bags while she was detained at the 1st
RASO office, without the assistance of counsel and without having been informed of her
constitutional rights. Hence, she argues, the methamphetamine hydrochloride, or "shabu," should
have been excluded from the evidence.17

The contention has no merit. No statement, if any, was taken from accused-appellant during her
detention and used in evidence against her. There is, therefore, no basis for accused-appellant’s
invocation of Art. III, §12(1) and (3). On the other hand, what is involved in this case is an arrest in
flagrante delicto pursuant to a valid search made on her person.

The trial court held:

The constitutional right of the accused was not violated as she was never placed under custodial
investigation but was validly arrested without warrant pursuant to the provisions of Section 5, Rule
113 of the 1985 Rules of Criminal Procedure which provides:

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a
warrant, arrest a person:

(a) when in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;

(b) when an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and
(Underscoring supplied)

xxxx

A custodial investigation has been defined in People. v. Ayson 175 SCRA 230 as "the questioning
initiated by law enforcement officers after a person has been taken [in] custody or otherwise
deprived of his freedom in any significant way. This presupposes that he is suspected of having
committed an offense and that the investigator is trying to elicit information or [a] confession from
him."

The circumstances surrounding the arrest of the accused above falls in either paragraph (a) or (b) of
the Rule above cited, hence the allegation that she has been subjected to custodial investigation is
far from being accurate.18

The methamphetamine hydrochloride seized from her during the routine frisk at the airport was
acquired legitimately pursuant to airport security procedures.

Persons may lose the protection of the search and seizure clause by exposure of their persons or
property to the public in a manner reflecting a lack of subjective expectation of privacy, which
expectation society is prepared to recognize as reasonable.19 Such recognition is implicit in airport
security procedures. With increased concern over airplane hijacking and terrorism has come
increased security at the nation’s airports. Passengers attempting to board an aircraft routinely pass
through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected
to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical
searches are conducted to determine what the objects are. There is little question that such
searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests
involved, and the reduced privacy expectations associated with airline travel.20 Indeed, travelers are
often notified through airport public address systems, signs, and notices in their airline tickets that
they are subject to search and, if any prohibited materials or substances are found, such would be
subject to seizure. These announcements place passengers on notice that ordinary constitutional
protections against warrantless searches and seizures do not apply to routine airport procedures.

The packs of methamphetamine hydrochloride having thus been obtained through a valid
warrantless search, they are admissible in evidence against the accused-appellant herein.
Corollarily, her subsequent arrest, although likewise without warrant, was justified since it was
effected upon the discovery and recovery of "shabu" in her person in flagrante delicto.

Anent her allegation that her signature on the said packs (Exhibits C-1, C-2 and C-3 herein) had
been obtained while she was in the custody of the airport authorities without the assistance of
counsel, the Solicitor General correctly points out that nowhere in the records is it indicated that
accused-appellant was required to affix her signature to the packs. In fact, only the signatures of
Embile and Ramirez thereon, along with their testimony to that effect, were presented by the
prosecution in proving its case.

There is, however, no justification for the confiscation of accused-appellant’s passport, airline ticket,
luggage, and other personal effects. The pictures taken during that time are also inadmissible, as
are the girdle taken from her, and her signature thereon. Rule 126, §2 of the Revised Rules of
Criminal Procedure authorizes the search and seizure only of the following:

Personal property to be seized. 3/4 A search warrant may be issued for the search and seizure of
personal property:
 (a) Subject of the offense;

(b) Stolen or embezzled and other proceeds or fruits of the offense; and

(c) Used or intended to be used as the means of committing an offense.

Accordingly, the above items seized from accused-appellant should be returned to her.

Second. Accused-appellant argues that the prosecution failed to fully ascertain the quantity of
methamphetamine hydrochloride to justify the imposition of the penalty of reclusion perpetua.

Section 20 of R.A. No. 6425, as amended by R.A. No. 7659, states:

Section 20 - Application Of Penalties, Confiscation And Forfeiture Of The Proceeds or Instrument Of

The Crime – The penalties for offenses under Section 3, 4, 7, 8 and 9 of Article II and Sections 14,
14-A, 15 and 16 of Article III of this Act, shall be applied if the dangerous drugs involved is in any of
the following quantities:

1. 40 grams or more of opium;

2. 40 grams or more of morphine;

3. 200 grams or more of shabu, or methylamphetamine hydrochloride;

4. 40 grams or more of heroin;

5. 750 grams or more of indian hemp of marijuana;

6. 50 grams of marijuana resin or marijuana resin oil;

7. 40 grams or more of cocaine or cocaine hydrochloride; or

8. In case of other dangerous drugs, the quantity of which is far beyond therapeutic
requirements as determined and promulgated by the Dangerous Drugs Board, after public
consultation/hearings conducted for the purpose.

Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range
from prision correccional to reclusion perpetua depending upon the quantity.

Under this provision, accused-appellant therefore stands to suffer the penalty of reclusion
perpetua to death for her possession of 580.2 grams of shabu.

Accused-appellant attempts to distinguish between a quantitative and a qualitative examination of

the substance contained in Exhibits C-1, C-2 and C-3. She argues that the examination conducted
by the NBI forensic chemist was a qualitative one which merely yielded positive findings for shabu,
but failed to establish its purity; hence, its exact quantity remains indeterminate and unproved.

This contention is likewise without merit.

The expert witness, George De Lara, stated that the tests conducted would have indicated the
presence of impurities if there were any. He testified:

PROS. VELASCO By mixing it twice, Mr. Witness, if there are any adulterants or impurities, it will be
discovered by just mixing it?

WITNESS If some drugs or additives were present, it will appear in a thin layer chromatographic
examination.

PROS. VELASCO Did other drugs or other additives appear Mr. Witness?

WITNESS In my thin layer chromatographic plate, it only appears one spot which resembles or the
same as the Methamphetamine Hydrochloride sample

....

PROS. VELASCO So, Mr. Witness, if there are any adulterants present in the chemicals you have
examined, in chemical examination, what color it will register, if any?

WITNESS In sample, it contained a potassium aluminum sulfate, it will not react with the reagent,
therefore it will not dissolve. In my examination, all the specimens reacted on the re-agents, sir.

PROS. VELASCO And what is potassium aluminum sulfate in layman’s term?

WITNESS It is only a tawas.

....

COURT In this particular case, did you find any aluminum sulfate or tawas in the specimen?

WITNESS None, your Honor.

....

ATTY. AGOOT I will cite an example, supposing ten grams of Methamphetamine Hydrochloride is
mixed with 200 grams of tawas, you will submit that to qualitative examination, what will be your
findings, negative or positive, Mr. Witness?

WITNESS It will give a positive result for Methamphetamine Hydrochloride.

ATTY. AGOOT That is qualitative examination.

WITNESS And also positive for aluminum sulfate.21

A qualitative determination relates to the identity of the material, whereas a quantitative analysis
requires the determination of the percentage combination of the components of a mixture. Hence, a
qualitative identification of a powder may reveal the presence of heroin and quinine, for instance,
whereas a quantitative analysis may conclude the presence of 10 percent heroin and 90 percent
quinine.22
De Lara testified that he used a chromatography test to determine the contents of Exhibits C-1, C-2
and C-3. Chromatography is a means of separating and tentatively identifying the components of a
mixture. It is particularly useful for analyzing the multicomponent specimens that are frequently
received in a crime lab. For example, illicit drugs sold on the street may be diluted with practically
any material that is at the disposal of the drug dealer to increase the quantity of the product that is
made available to prospective customers. Hence, the task of identifying an illicit drug preparation
would be an arduous one without the aid of chromatographic methods to first separate the mixture
into its components.23

The testimony of De Lara established not only that the tests were thorough, but also that the
scientifically correct method of obtaining an accurate representative sample had been obtained.24 At
any rate, as the Solicitor-General has pointed out, if accused-appellant was not satisfied with the
results, it would have been a simple matter for her to ask for an independent examination of the
substance by another chemist. This she did not do.

Third. Accused-appellant argues that the prosecution failed to prove the negative allegation in the
information that she did not have a license to possess or use methamphetamine hydrochloride or
"shabu."

Art. III of Republic Act No. 6425, as amended by Republic Act No. 7659 provides:

SEC. 16. Possession or Use of Regulated Drugs. - The penalty of reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any
person who shall possess or use any regulated drug without the corresponding license or
prescription, subject to the provisions of Section 20 hereof. 1âwphi1

Accused-appellant claims that possession or use of methamphetamine hydrochloride or "shabu,"a

regulated drug, is not unlawful unless the possessor or user does not have the required license or
prescription. She points out that since the prosecution failed to present any certification that she is
not authorized to possess or use regulated drugs, it therefore falls short of the quantum of proof
needed to sustain a conviction.

The contention has no merit.

The question raised in this case is similar to that raised in United States v. Chan Toco.25 The accused
in that case was charged with smoking opium without being duly registered. He demurred to the
information on the ground that it failed to allege that the use of opium had not been prescribed as a
medicine by a duly licensed and practicing physician.

This Court denied the motion and said:

The evident interest and purpose of the statute is to prohibit and to penalize generally the smoking of
opium in these Islands. But the legislator desired to withdraw from the operation of the statute a
limited class of smokers who smoked under the advice and by prescription of a licensed and
practicing physician . . . . Hence where one is charged with a violation of the general provisions of
the Opium Law, it is more logical as well as more practical and convenient, if he did in fact smoke
opium under the advice of a physician, that he should set up this fact by way of defense, than that
the prosecution should be called upon to prove that every smoker, charged with a violation of the
law, does so without such advice or prescription. Indeed, when it is considered that under the law
any person may, in case of need and at any time, procure the advice of a physician to use opium or
some of its derivatives, and that in the nature of things no public record of prescriptions of this kind is
or can be required to be kept, it is manifest that it would be wholly impracticable and absurd to
impose on the prosecution the burden of alleging and proving the fact that one using opium does so
without the advice of a physician. To prove beyond a reasonable doubt, in a particular case, that one
using opium does so without the advice or prescription of a physician would be in most cases a
practical impossibility without the aid of the defendant himself, while a defendant charged with the
illegal use of opium should find little difficulty in establishing the fact that he used it under the advice
and on the prescription of a physician, if in fact he did so.26

An accused person sometimes owes a duty to himself if not to the State. If he does not perform that
duty he may not always expect the State to perform it for him. If he fails to meet the obligation which
he owes to himself, when to meet it is an easy thing for him to do, he has no one but himself to
blame.

Moreover, as correctly pointed out by the Solicitor General, there is nothing in R.A. No. 6425 or the
Dangerous Drugs Act, as amended, which requires the prosecution to present a certification that
accused-appellant has no license or permit to possess shabu. Mere possession of the prohibited
substance is a crime per se and the burden of proof is upon accused-appellant to show that she has
a license or permit under the law to possess the prohibited drug.

Fourth. Lastly, accused-appellant contends that the evidence presented by the prosecution is not
sufficient to support a finding that she is guilty of the crime charged.

This contention must likewise be rejected.

Credence was properly accorded to the testimonies of the prosecution witnesses, who are law
enforcers. When police officers have no motive to testify falsely against the accused, courts are
1âwphi1

inclined to uphold this presumption. In this case, no evidence has been presented to suggest any
improper motive on the part of the police enforcers in arresting accused-appellant. This Court
accords great respect to the findings of the trial court on the matter of credibility of the witnesses in
the absence of any palpable error or arbitrariness in its findings.27

It is noteworthy that, aside from the denial of accused-appellant, no other witness was presented in
her behalf. Her denial cannot prevail over the positive testimonies of the prosecution witnesses.28 As
has been held, denial as a rule is a weak form of defense, particularly when it is not substantiated by
clear and convincing evidence. The defense of denial or frame-up, like alibi, has been invariably
viewed by the courts with disfavor for it can just as easily be concocted and is a common and
standard defense ploy in most prosecutions for violation of the Dangerous Drugs Act.29

The Court is convinced that the requirements of the law in order that a person may be validly
charged with and convicted of illegal possession of a dangerous drug in violation of R.A. No. 6425,
as amended, have been complied with by the prosecution in this case. The decision of the trial court
must accordingly be upheld.

As regards the fine imposed by the trial court, it has been held that courts may fix any amount within
the limits established by law.30 Considering that five hundred eighty point two (580.2) grams of shabu
were confiscated from accused-appellant, the fine imposed by the trial court may properly be
reduced to ₱50,000.00.

WHEREFORE, the decision of the Regional Trial Court of Pasay City, Branch 110, finding accused-
appellant guilty of violation of §16 of R.A. No. 6425, as amended, and imposing upon her the penalty
of reclusion perpetua is hereby AFFIRMED with the MODIFICATION that the fine imposed on
accused-appellant is reduced to ₱50,000.00. Costs against appellant.
The passport, airline ticket, luggage, girdle and other personal effects not yet returned to the
accused-appellant are hereby ordered returned to her.

SO ORDERED.

EN BANC

G.R. No. 91107 June 19, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MIKAEL MALMSTEDT, *defendant-appellant.

The Solicitor General for plaintiff-appellee.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.

PADILLA, J.:

In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to

as the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch
10, in Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as
amended, otherwise known as the Dangerous Drugs Act of 1972, as amended. The factual
background of the case is as follows:

Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in
December 1988 as a tourist. He had visited the country sometime in 1982 and 1985.

In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of
the following day, he took a bus to Sagada and stayed in that place for two (2) days.

At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in
Sagada to catch the first available trip to Baguio City. From Baguio City, accused planned to take a
late afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the country,
scheduled on 13 May 1989. From Sagada, accused took a Skyline bus with body number 8005 and
Plate number AVC 902.1

At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the
Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa,
ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province,
for the purpose of checking all vehicles coming from the Cordillera Region. The order to establish a
checkpoint in the said area was prompted by persistent reports that vehicles coming from Sagada
were transporting marijuana and other prohibited drugs. Moreover, information was received by the
Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had in
his possession prohibited drugs.2
The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set
up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all
vehicles coming from the Cordillera Region.

At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider
and CIC Galutan boarded the bus and announced that they were members of the NARCOM and that
they would conduct an inspection. The two (2) NARCOM officers started their inspection from the
front going towards the rear of the bus. Accused who was the sole foreigner riding the bus was
seated at the rear thereof.

During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on
accused's waist to be a gun, the officer asked for accused's passport and other identification papers.
When accused failed to comply, the officer required him to bring out whatever it was that was
bulging on his waist. The bulging object turned out to be a pouch bag and when accused opened the
same bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown
packing tape, prompting the officer to open one of the wrapped objects. The wrapped objects turned
out to contain hashish, a derivative of marijuana.

Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus,
accused stopped to get two (2) travelling bags from the luggage carrier.

Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in
each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same which
did not feel like foam stuffing. It was only after the officers had opened the bags that accused finally
presented his passport.

Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad,
Benguet for further investigation. At the investigation room, the officers opened the teddy bears and
they were found to also contain hashish. Representative samples were taken from the hashish found
among the personal effects of accused and the same were brought to the PC Crime Laboratory for
chemical analysis.

In the chemistry report, it was established that the objects examined were hashish. a prohibited drug
which is a derivative of marijuana. Thus, an information was filed against accused for violation of the
Dangerous Drugs Act.

During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue
of illegal search of his personal effects. He also claimed that the hashish was planted by the
NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by him, but
were merely entrusted to him by an Australian couple whom he met in Sagada. He further claimed
that the Australian couple intended to take the same bus with him but because there were no more
seats available in said bus, they decided to take the next ride and asked accused to take charge of
the bags, and that they would meet each other at the Dangwa Station.

Likewise, accused alleged that when the NARCOM officers demanded for his passport and other
Identification papers, he handed to one of the officers his pouch bag which was hanging on his neck
containing, among others, his passport, return ticket to Sweden and other papers. The officer in turn
handed it to his companion who brought the bag outside the bus. When said officer came back, he
charged the accused that there was hashish in the bag. He was told to get off the bus and his picture
was taken with the pouch bag placed around his neck. The trial court did not give credence to
accused's defense.
The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his
failure to raise such defense at the earliest opportunity. When accused was investigated at the
Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer that the hashish was planted by
the NARCOM officers in his bag. It was only two (2) months after said investigation when he told his
lawyer about said claim, denying ownership of the two (2) travelling bags as well as having hashish
in his pouch bag.

In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt
for violation of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended.3 The
dispositive portion of the decision reads as follows:

WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond
reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of
Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life
imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), with subsidiary
imprisonment in case of insolvency and to pay the costs.

Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at
Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under Section 20, Article IV
of Republic Act 6425, as amended.

SO ORDERED.4

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused
argues that the search of his personal effects was illegal because it was made without a search
warrant and, therefore, the prohibited drugs which were discovered during the illegal search are not
admissible as evidence against him.

The Constitution guarantees the right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures.5 However, where the search is made
pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a
warrant may be made by a peace officer or a private person under the following circumstances.6

Sec. 5 Arrest without warrant; when lawful. –– A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed is actually committing, or
is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and

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

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded
against in accordance with Rule 112, Section 7. (6a 17a).
Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was
actually being committed by the accused and he was caught in flagrante delicto. Thus, the search
made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law,
which allow a warrantless search incident to a lawful arrest.7

While it is true that the NARCOM officers were not armed with a search warrant when the search
was made over the personal effects of accused, however, under the circumstances of the case,
there was sufficient probable cause for said officers to believe that accused was then and there
committing a crime.

Probable cause has been defined as such facts and circumstances which could lead a reasonable,
discreet and prudent man to believe that an offense has been committed, and that the objects
sought in connection with the offense are in the place sought to be searched.8 The required probable
cause that will justify a warrantless search and seizure is not determined by any fixed formula but is
resolved according to the facts of each case.9

Warrantless search of the personal effects of an accused has been declared by this Court as valid,
because of existence of probable cause, where the smell of marijuana emanated from a plastic bag
owned by the accused,10 or where the accused was acting suspiciously,11 and attempted to flee.12

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs, their Commanding Officer also received
information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his
possession. Said information was received by the Commanding Officer of NARCOM the very same
morning that accused came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension of herein accused,
that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there
was no time to obtain a search warrant. In the Tangliben case,13 the police authorities conducted a
surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga,
against persons engaged in the traffic of dangerous drugs, based on information supplied by some
informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was
apprehended and searched by the police authorities. It was held that when faced with on-the-spot
information, the police officers had to act quickly and there was no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus
(where accused was riding) and the passengers therein, and no extensive search was initially made.
It was only when one of the officers noticed a bulge on the waist of accused, during the course of the
inspection, that accused was required to present his passport. The failure of accused to present his
identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that
accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has
nothing to hide from the authorities, to readily present his identification papers when required to do
so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs
in his possession, plus the suspicious failure of the accused to produce his passport, taken together
as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide
something illegal from the authorities. From these circumstances arose a probable cause which
justified the warrantless search that was made on the personal effects of the accused. In other
words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in
opening one of the wrapped objects found inside said bag (which was discovered to contain
hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed
inside them, were prompted by accused's own attempt to hide his identity by refusing to present his
passport, and by the information received by the NARCOM that a Caucasian coming from Sagada
had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to
act accordingly, including, to search even without warrant, in the light of such circumstances, would
be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.

WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is
hereby AFFIRMED. Costs against the accused-appellant.

SO ORDERED.

EN BANC

G.R. No. 83988 September 29, 1989

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S

RIGHTS (ULAP), petitioners,
vs.
GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT
COMMAND, respondents.

Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.:

This is a petition for prohibition with preliminary injunction and/or temporary restraining order,
seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional
and the dismantling and banning of the same or, in the alternative, to direct the respondents to
formulate guidelines in the implementation of checkpoints, for the protection of the people.

Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of
the Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner
Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association
whose members are all members of the IBP.

The factual background of the case is as follows:

On 20 January 1987, the National Capital Region District Command (NCRDC) was activated
pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission
of conducting security operations within its area of responsibility and peripheral areas, for the
purpose of establishing an effective territorial defense, maintaining peace and order, and providing
an atmosphere conducive to the social, economic and political development of the National Capital
Region.1 As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various
parts of Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are
worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical
disposition of the military manning the checkpoints, considering that their cars and vehicles are
being subjected to regular searches and check-ups, especially at night or at dawn, without the
benefit of a search warrant and/or court order. Their alleged fear for their safety increased when, at
dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan,
was gunned down allegedly in cold blood by the members of the NCRDC manning the checkpoint
along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the
checkpoint and for continuing to speed off inspire of warning shots fired in the air. Petitioner
Valmonte also claims that, on several occasions, he had gone thru these checkpoints where he was
stopped and his car subjected to search/check-up without a court order or search warrant.

Petitioners further contend that the said checkpoints give the respondents a blanket authority to
make searches and/or seizures without search warrant or court order in violation of the
Constitution; 2 and, instances have occurred where a citizen, while not killed, had been harassed.

Petitioners' concern for their safety and apprehension at being harassed by the military manning the
checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has
been presented before the Court to show that, in the course of their routine checks, the military
indeed committed specific violations of petitioners' right against unlawful search and seizure or other
rights.

In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's
Right (ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege
that any of their rights were violated are not qualified to bring the action, as real parties in interest.

The constitutional right against unreasonable searches and seizures is a personal right invocable
only by those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a
reasonable or unreasonable search and seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved. 5

Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without
a search warrant by the military manning the checkpoints, without more, i.e., without stating the
details of the incidents which amount to a violation of his right against unlawful search and seizure,
is not sufficient to enable the Court to determine whether there was a violation of Valmonte's right
against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but
is to be resolved according to the facts of each case. 6

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked
on the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not
constitute unreasonable search.

The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be
considered as a security measure to enable the NCRDC to pursue its mission of establishing
effective territorial defense and maintaining peace and order for the benefit of the public.
Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the
interest of public security. In this connection, the Court may take judicial notice of the shift to urban
centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings
in cities of police and military men by NPA "sparrow units," not to mention the abundance of
unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all
of which are reported in media, most likely brought about by deteriorating economic conditions —
which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the
inherent right of the state to protect its existence and promote public welfare and an individual's right
against a warrantless search which is however reasonably conducted, the former should prevail.

True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the
same manner that all governmental power is susceptible of abuse. But, at the cost of occasional
inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal
times, when conducted within reasonable limits, are part of the price we pay for an orderly society
and a peaceful community.

Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and
a review and refinement of the rules in the conduct of the police and military manning the
checkpoints was ordered by the National Capital Regional Command Chief and the Metropolitan
Police Director. 10

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

SECOND DIVISION

G. R. Nos. 102009-10 July 6, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROLANDO DE GRACIA, CHITO HENSON and JOHN DOES, accused. ROLANDO DE
GRACIA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Nicolas R. Ruiz, II for accused-appellant.

REGALADO, J.:

The incidents involved in this case took place at the height of the coup d' etat staged in December,
1989 by ultra-rightist elements headed by the Reform the Armed Forces Movement-Soldiers of the
Filipino People (RAM-SFP) against the Government. At that time, various government
establishments and military camps in Metro Manila were being bombarded by the rightist group with
their "tora-tora" planes. At around midnight of November 30, 1989, the 4th Marine Battalion of the
Philippine Marines occupied Villamor Air Base, while the Scout Rangers took over the Headquarters
of the Philippine Army, the Army Operations Center, and Channel 4, the government television
station. Also, some elements of the Philippine Army coming from Fort Magsaysay occupied the
Greenhills Shopping Center in San Juan, Metro Manila. 1
Accused-appellant Rolando de Gracia was charged in two separate informations for illegal
possession of ammunition and explosives in furtherance of rebellion, and for attempted homicide,
docketed as Criminal Cases Nos. Q-90-11755 and Q-90-11756, respectively, which were tried jointly
by the Regional Trial Court of Quezon City, Branch 103.

In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several John Does whose
true names and identities have not as yet been ascertained, were charged with the crime of illegal
possession of ammunition and explosives in furtherance of rebellion, penalized under Section 1,
paragraph 3, of Presidential Decree No. 1866, allegedly committed as follows:

That on or about the 5th day of DECEMBER, 1989, in QUEZON CITY, METRO
MANILA, PHILIPPINES, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together and mutually helping
one another, and without authority of law, did then and there willfully, unlawfully,
feloniously and knowingly have in their possession, custody and control, the following
to wit:

Five (5) bundles of C-4 or dynamites

Six (6) cartoons of M-16 ammunition at 20 each
One hundred (100) bottles of MOLOTOV bombs

without first securing the necessary license and/or permit to possess the same from
the proper authorities, and armed with said dynamites, ammunition and explosives
and pursuant to their conspiracy heretofore agreed upon by them and prompted by
common designs, come to an agreement and decision to commit the crime of
rebellion, by then and there participating therein and publicly taking arms against the
duly constituted authorities, for the purpose of overthrowing the Government of the
Republic of the Philippines, disrupting and jeopardizing its activities and removing
from its allegiance the territory of the Philippines or parts thereof. 2

In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto Bicus, Rodolfo Tor
and several John Does were charged with attempted homicide allegedly committed on December 1,
1989 in Quezon City upon the person of Crispin Sagario who was shot and hit on the right thigh.

Appellant was convicted for illegal possession of firearms in furtherance of rebellion, but was
acquitted of attempted homicide.

During the arraignment, appellant pleaded not guilty to both charges. However, he admitted that he
is not authorized to possess any firearms, ammunition and/or explosive. 3 The parties likewise
stipulated that there was a rebellion during the period from November 30 up to December 9, 1989. 4

The records show that in the early morning of December 1, 1989, Maj. Efren Soria of the Intelligence
Division, National Capital Region Defense Command, was on board a brown Toyota car conducting
a surveillance of the Eurocar Sales Office located at Epifanio de los Santos Avenue in Quezon City,
together with his team composed of Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry
Aquino, one S/Sgt. Simon and a Sgt. Ramos. The surveillance, which actually started on the night of
November 30, 1989 at around 10:00 P.M., was conducted pursuant to an intelligence report received
by the division that said establishment was being occupied by elements of the RAM-SFP as a
communication command post.

Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen meters away from
the Eurocar building near P. Tuazon Street, S/Sgt. Henry Aquino had earlier alighted from the car to
conduct his surveillance on foot. A crowd was then gathered near the Eurocar office watching the
on-going bombardment near Camp Aguinaldo. After a while, a group of five men disengaged
themselves from the crowd and walked towards the car of the surveillance team. At that moment,
Maj. Soria, who was then seated in front, saw the approaching group and immediately ordered Sgt.
Sagario to start the car and leave the area. As they passed by the group, then only six meters away,
the latter pointed to them, drew their guns and fired at the team, which attack resulted in the
wounding of Sgt. Sagario on the right thigh. Nobody in the surveillance team was able to retaliate
because they sought cover inside the car and they were afraid that civilians or bystanders might be
caught in the cross-fire.

As a consequence, at around 6:30 A.M. of December 5, 1989, a searching team composed of F/Lt.
Virgilio Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion, Sgt. Patricio Pacatang, and elements
of the 16th Infantry Battalion under one Col. delos Santos raided the Eurocar Sales Office. They
were able to find and confiscate six cartons of M-16 ammunition, five bundles of C-4 dynamites, M-
shells of different calibers, and "molotov" bombs inside one of the rooms belonging to a certain Col.
Matillano which is located at the right portion of the building. Sgt. Oscar Obenia, the first one to enter
the Eurocar building, saw appellant De Gracia inside the office of Col. Matillano, holding a C-4 and
suspiciously peeping through a door. De Gracia was the only person then present inside the room. A
uniform with the nametag of Col. Matillano was also found. As a result of the raid, the team arrested
appellant, as well as Soprieso Verbo and Roberto Jimena who were janitors at the Eurocar building.
They were then made to sign an inventory, written in Tagalog, of the explosives and ammunition
confiscated by the raiding team. No search warrant was secured by the raiding team because,
according to them, at that time there was so much disorder considering that the nearby Camp
Aguinaldo was being mopped up by the rebel forces and there was simultaneous firing within the
vicinity of the Eurocar office, aside from the fact that the courts were consequently closed. The group
was able to confirm later that the owner of Eurocar office is a certain Mr. Gutierrez and that appellant
is supposedly a "boy" therein.

Appellant Rolando de Gracia gave another version of the incident. First, he claims that on November
30, 1989, he was in Antipolo to help in the birthday party of Col. Matillano. He denies that he was at
the Eurocar Sales Office on December 1, 1989. Second, he contends that when the raiding team
arrived at the Eurocar Sales Office on December 5, 1989, he was inside his house, a small nipa hut
which is adjacent to the building. According to him, he was tasked to guard the office of Col.
Matillano which is located at the right side of the building. He denies, however, that he was inside
the room of Col. Matillano when the raiding team barged in and that he had explosives in his
possession. He testified that when the military raided the office, he was ordered to get out of his
house and made to lie on the ground face down, together with "Obet" and "Dong" who were janitors
of the building. He avers that he does not know anything about the explosives and insists that when
they were asked to stand up, the explosives were already there.

Appellant stated that he visited Col. Matillano in 1987 at the stockade of the Philippine Constabulary-
Integrated National Police (PC-INP), and that he knew Matillano was detained because of the latter's
involvement in the 1987 coup d' etat. In July, 1989, appellant again went to see Matillano because
he had no job. Col. Matillano then told him that he could stay in the PC-INP stockade and do the
marketing for them. From that time until his arrest at the Eurocar office, appellant worked for
Matillano.

De Gracia believes that the prosecution witnesses were moved to testify against him because "bata
raw ako ni Col. Matillano eh may atraso daw sa kanila si Col. Matillano kaya sabi nila ito na lang
bata niya ang ipitin natin."
On February 22, 1991, the trial court rendered judgment 5 acquitting appellant Rolando de Gracia of
attempted homicide, but found him guilty beyond reasonable doubt of the offense of illegal
possession of firearms in furtherance of rebellion and sentenced him to serve the penalty
of reclusion perpetua. Moreover, it made a recommendation that "(i)nasmuch as Rolando de Gracia
appears to be merely executing or obeying orders and pursuant to the spirit contained in the 2nd
paragraph of Art. 135, R. P. C., the court recommends that Rolando de Gracia be extended
executive clemency after serving a jail term of five (5) years of good behavior.

That judgment of conviction is now challenged before us in this appeal.

Appellant principally contends that he cannot be held guilty of illegal possession of firearms for the
reason that he did not have either physical or constructive possession thereof considering that he
had no intent to possess the same; he is neither the owner nor a tenant of the building where the
ammunition and explosives were found; he was merely employed by Col. Matillano as an errand
boy; he was guarding the explosives for and in behalf of Col. Matillano; and he did not have actual
possession of the explosives. He claims that intent to possess, which is necessary before one can
be convicted under Presidential Decree No. 1866, was not present in the case at bar.

Presidential Decree No. 1866 provides as follows:

Sec. 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of

Firearms or Ammunition or Instruments Used or intended to be Used in the
Manufacture of Firearms or Ammunition. — The penalty of reclusion temporal in its
maximum period to reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any firearms, part of
firearms, ammunition or machinery, tool or instrument used or intended to be used in
the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty
of death shall be imposed.

If the violation of this Section is in furtherance of, or incident to, or in connection with
the crimes of rebellion, insurrection or subversion, the penalty of death shall be
imposed.

Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally affecting public
order and safety due to the proliferation of illegally possessed and manufactured firearms,
ammunition and explosives, and which criminal acts have resulted in loss of human lives, damage to
property and destruction of valuable resources of the country. The series of coup d' etats unleashed
in the country during the first few years of the transitional government under then President Corazon
P. Aquino attest to the ever-growing importance of laws such as Presidential Decree No. 1866 which
seek to nip in the bud and preempt the commission of any act or acts which tend to disturb public
peace and order.

I. The first issue to be resolved is whether or not intent to possess is an essential element of the
offense punishable under Presidential Decree No. 1866 and, if so, whether appellant De Gracia did
intend to illegally possess firearms and ammunition.

The rule is that ownership is not an essential element of illegal possession of firearms and
ammunition. What the law requires is merely possession which includes not only actual physical
possession but also constructive possession or the subjection of the thing to one's control and
management. 6 This has to be so if the manifest intent of the law is to be effective. The same evils,
the same perils to public security, which the law penalizes exist whether the unlicensed holder of a
prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary
concept of the possession can have no bearing whatsoever. 7

But is the mere fact of physical or constructive possession sufficient to convict a person for unlawful
possession of firearms or must there be an intent to possess to constitute a violation of the law? This
query assumes significance since the offense of illegal possession of firearms is a malum
prohibitum punished by a special law, 8 in which case good faith and absence of criminal intent are
not valid defenses. 9

When the crime is punished by a special law, as a rule, intent to commit the crime is not necessary.
It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law.
Intent to commit the crime and intent to perpetrate the act must be distinguished. A person may not
have consciously intended to commit a crime; but he did intend to commit an act, and that act is, by
the very nature of things, the crime itself. In the first (intent to commit the crime), there must be
criminal intent; in the second (intent to perpetrate the act) it is enough that the prohibited act is done
freely and consciously. 10

In the present case, a distinction should be made between criminal intent and intent to possess.
While mere possession, without criminal intent, is sufficient to convict a person for illegal possession
of a firearm, it must still be shown that there was animus possidendi or an intent to possess on the
part of the accused. 11 Such intent to possess is, however, without regard to any other criminal or
felonious intent which the accused may have harbored in possessing the firearm. Criminal intent
here refers to the intention of the accused to commit an offense with the use of an unlicensed
firearm. This is not important in convicting a person under Presidential Decree No. 1866. Hence, in
order that one may be found guilty of a violation of the decree, it is sufficient that the accused had no
authority or license to possess a firearm, and that he intended to possess the same, even if such
possession was made in good faith and without criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm

cannot be considered a violation of a statute prohibiting the possession of this kind of
weapon, 12 such as Presidential Decree No. 1866. Thus, although there is physical or constructive
possession, for as long as the animus possidendi is absent, there is no offense committed.

Coming now to the case before us, there is no doubt in our minds that appellant De Gracia is indeed
guilty of having intentionally possessed several firearms, explosives and ammunition without the
requisite license or authority therefor. Prosecution witness Sgt. Oscar Abenia categorically testified
that he was the first one to enter the Eurocar Sales Office when the military operatives raided the
same, and he saw De Gracia standing in the room and holding the several explosives marked in
evidence as Exhibits D to D-4. 13 At first, appellant denied any knowledge about the explosives.
Then, he alternatively contended that his act of guarding the explosives for and in behalf of Col.
Matillano does not constitute illegal possession thereof because there was no intent on his part to
possess the same, since he was merely employed as an errand boy of Col. Matillano. His pretension
of impersonal or indifferent material possession does not and cannot inspire credence.

Animus possidendi is a state of mind which may be determined on a case to case basis, taking into
consideration the prior and coetaneous acts of the accused and the surrounding circumstances.
What exists in the realm of thought is often disclosed in the range of action. It is not controverted that
appellant De Gracia is a former soldier, having served with the Philippine Constabulary prior to his
separation from the service for going on absence without leave
(AWOL). 14 We do not hesitate, therefore, to believe and conclude that he is familiar with and
knowledgeable about the dynamites, "molotov" bombs, and various kinds of ammunition which were
confiscated by the military from his possession. As a former soldier, it would be absurd for him not to
know anything about the dangerous uses and power of these weapons. A fortiori, he cannot feign
ignorance on the import of having in his possession such a large quantity of explosives and
ammunition. Furthermore, the place where the explosives were found is not a military camp or office,
nor one where such items can ordinarily but lawfully be stored, as in a gun store, an arsenal or
armory. Even an ordinarily prudent man would be put on guard and be suspicious if he finds articles
of this nature in a place intended to carry out the business of selling cars and which has nothing to
do at all, directly or indirectly, with the trade of firearms and ammunition.

On the basis of the foregoing disquisition, it is apparent, and we so hold, that appellant De Gracia
actually intended to possess the articles confiscated from his person.

II. The next question that may be asked is whether or not there was a valid search and seizure in
this case. While the matter has not been squarely put in issue, we deem it our bounden duty, in light
of advertence thereto by the parties, to delve into the legality of the warrantless search conducted by
the raiding team, considering the gravity of the offense for which herein appellant stands to be
convicted and the penalty sought to be imposed.

It is admitted that the military operatives who raided the Eurocar Sales Office were not armed with a
search warrant at that time. 15 The raid was actually precipitated by intelligence reports that said
office was being used as headquarters by the RAM. 16 Prior to the raid, there was a surveillance
conducted on the premises wherein the surveillance team was fired at by a group of men coming
from the Eurocar building. When the military operatives raided the place, the occupants thereof
refused to open the door despite requests for them to do so, thereby compelling the former to break
into the office. 17 The Eurocar Sales Office is obviously not a gun store and it is definitely not an
armory or arsenal which are the usual depositories for explosives and ammunition. It is primarily and
solely engaged in the sale of automobiles. The presence of an unusual quantity of high-powered
firearms and explosives could not be justifiably or even colorably explained. In addition, there was
general chaos and disorder at that time because of simultaneous and intense firing within the vicinity
of the office and in the nearby Camp Aguinaldo which was under attack by rebel forces. 18 The courts
in the surrounding areas were obviously closed and, for that matter, the building and houses therein
were deserted.

Under the foregoing circumstances, it is our considered opinion that the instant case falls under one
of the exceptions to the prohibition against a warrantless search. In the first place, the military
operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that
a crime was being committed. There was consequently more than sufficient probable cause to
warrant their action. Furthermore, under the situation then prevailing, the raiding team had no
opportunity to apply for and secure a search warrant from the courts. The trial judge himself
manifested that on December 5, 1989 when the raid was conducted, his court was closed. 19 Under
such urgency and exigency of the moment, a search warrant could lawfully be dispensed with.

The view that we here take is in consonance with our doctrinal ruling which was amply explained in
People vs. Malmstedt 20 and bears reiteration:

While it is true that the NARCOM officers were not armed with a search warrant
when the search was made over the personal effects of accused, however, under the
circumstances of the case, there was sufficient probable cause for said officers to
believe that accused was then and there committing a crime.

Probable cause has been defined as such facts and circumstances which would lead
a reasonable, discreet and prudent man to believe that an offense has been
committed, and that the objects sought in connection with the offense are in the
place sought to be searched. The required probable cause that will justify a
warrantless search and seizure is not determined by any fixed formula but is
resolved according to the facts of each case.

Warrantless search of the personal effects of an accused has been declared by this
Court as valid, because of existence of probable cause, where the smell of marijuana
emanated from a plastic bag owned by the accused, or where the accused was
acting suspiciously, and attempted to flee.

Aside from the persistent reports received by the NARCOM that vehicles coming
from Sagada were transporting marijuana and other prohibited drugs, their
Commanding Officer also received information that a Caucasian coming from
Sagada on that particular day had prohibited drugs in his possession. Said
information was received by the Commanding Officer of NARCOM the very same
morning that accused came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension of
herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying
with him prohibited drugs, there was no time to obtain a search warrant. In
the Tangliben case, the police authorities conducted a surveillance at the Victory
Liner Terminal located at Bgy. San Nicolas, San Fernando, Pampanga, against
persons engaged in the traffic of dangerous drugs, based on information supplied by
some informers. Accused Tangliben who was acting suspiciously and pointed out by
an informer was apprehended and searched by the police authorities. It was held that
when faced with on-the-spot information, the police officers had to act quickly and
there was no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a routine
check of the bus (where accused was riding) and the passengers therein, and no
extensive search was initially made. It was only when one of the officers noticed a
bulge on the waist of accused, during the course of the inspection, that accused was
required to present his passport. The failure of accused to present his identification
papers, when ordered to do so, only managed to arouse the suspicion of the officer
that accused was trying to hide his identity. For is it not a regular norm for an
innocent man, who has nothing to hide from the authorities, to readily present his
identification papers when required to do so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had
prohibited drugs in his possession, plus the suspicious failure of the accused to
produce his passport, taken together as a whole, led the NARCOM officers to
reasonably believe that the accused was trying to hide something illegal from the
authorities. From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the accused. In other
words, the acts of the NARCOM officers in requiring the accused to open his pouch
bag and in opening one of the wrapped objects found inside said bag (which was
discovered to contain hashish) as well as the two (2) teddy bears with hashish
stuffed inside them, were prompted by accused's own attempt to hide his identity by
refusing to present his passport, and by the information received by the NARCOM
that a Caucasian coming from Sagada had prohibited drugs in his possession. To
deprive the NARCOM agents of the ability and facility to act accordingly, including, to
 search even without warrant, in the light of such circumstances, would be to sanction
impotence and ineffectiveness in law enforcement, to the detriment of society.

In addition, we find the principle enunciated in Umil, et al., vs. Ramos,

et al., 21 applicable, by analogy, to the present case:

The arrest of persons involved in the rebellion whether as its fighting armed
elements, or for committing non-violent acts but in furtherance of the rebellion, is
more an act of capturing them in the course of an armed conflict, to quell the
rebellion, than for the purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of the existence
of probable cause before the issuance of a judicial warrant of arrest and the granting
of bail if the offense is bailable. Obviously the absence of a judicial warrant is no
legal impediment to arresting or capturing persons committing overt acts of violence
against government forces, or any other milder acts but really in pursuance of the
rebellious movement. The arrest or capture is thus impelled by the exigencies of the
situation that involves the very survival of society and its government and duly
constituted authorities. If killing and other acts of violence against the rebels find
justification in the exigencies of armed hostilities which (are) of the essence of
waging a rebellion or insurrection, most assuredly so in case of invasion, merely
seizing their persons and detaining them while any of these contingencies continues
cannot be less justified.

III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989 up
to and until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not
appellant's possession of the firearms, explosives and ammunition seized and recovered from him
was for the purpose and in furtherance of rebellion.

The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion
pursuant to paragraph 2 of Article 135 of the Revised Penal Code which states that "any person
merely participating or executing the command of others in a rebellion shall suffer the penalty
of prision mayor in its minimum period." The court below held that appellant De Gracia, who had
been servicing the personal needs of Col. Matillano (whose active armed opposition against the
Government, particularly at the Camelot Hotel, was well known), is guilty of the act of guarding the
explosives and "molotov" bombs for and in behalf of the latter. We accept this finding of the lower
court.

The above provision of the law was, however, erroneously and improperly used by the court below
as a basis in determining the degree of liability of appellant and the penalty to be imposed on him. It
must be made clear that appellant is charged with the qualified offense of illegal possession of
firearms in furtherance of rebellion under Presidential Decree No. 1866 which, in law, is distinct from
the crime of rebellion punished under Articles 134 and 135 of the Revised Penal Code. These are
two separate statutes penalizing different offenses with discrete penalties. The Revised Penal Code
treats rebellion as a crime apart from murder, homicide, arson, or other offenses, such as illegal
possession of firearms, that might conceivably be committed in the course of a rebellion. Presidential
Decree No. 1866 defines and punishes, as a specific offense, the crime of illegal possession of
firearms committed in the course or as part of a rebellion. 22

As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree No.
1866, the Court has explained that said provision of the law will not be invalidated by the mere fact
that the same act is penalized under two different statutes with different penalties, even if considered
highly advantageous to the prosecution and onerous to the accused. 23 It follows that, subject to the
presence of the requisite elements in each case, unlawful possession of an unlicensed firearm in
furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1 of
Presidential Decree No. 1866, and also a violation of Articles 134 and 135 of the Revised Penal
Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an offense
punished by a special law while the second is a felony punished by the Revised Penal Code, 24 with
variant elements.

It was a legal malapropism for the lower court to interject the aforestated provision of the Revised
Penal Code in this prosecution for a crime under a special law. Consequently, there is no basis for
its recommendation for executive clemency in favor of appellant De Gracia after he shall have
served a jail term of five years with good behavior. In any event, this is a matter within the exclusive
prerogative of the President whose decision thereon should be insulated against any tenuous
importunity.

Withal, we are duly convinced that the firearms, explosives and ammunition confiscated from
appellant De Gracia were illegally possessed by him in furtherance of the rebellion then admittedly
existing at that time. In the words of the court a quo:

2. the nature and quantity of the items — 5 bundles of C-4 dynamites, 6 cartons of
M-16 ammo and 100 bottles of molotov bombs indicate that the reports received by
the military that the Eurocar Sales Building was being used by the rebels was not
without basis. Those items are clearly not for one's personal defense. They are for
offensive operations. De Gracia admitted that per instruction of Col. Matillano he
went down to Eurocar Sales Building from Antipolo to stay guard there.

His manifestation of innocence of those items and what he has been guarding in that
office is not credible for: (a) he was a former military personnel; (b) at the birthday
party of Col. Matillano on November 30, 1989 many soldiers and ex-soldiers were
present which self-evidently discloses that De Gracia, in the company of his boss,
was still very much at home and constantly in touch with soldiers and the armed
rebellion of November 30, 1989 to December 8 or 9, 1989 was a military coup d' etat;
(c) it appears that he is the only person tasked with caretaking (sic) there in the
Matillano office, which shows that he is a highly trusted right-hand man of Col.
Matillano; and (d) as heretofore discussed, De Gracia was earlier seen with some
men who fired upon a car of the AFP intelligence agents. 25

Presidential Decree No. 1866 imposes the death penalty where the illegal possession of firearms
and ammunition is committed in furtherance of rebellion. At the time the offense charged in this case
was committed under the governance of that law, the imposition of the death penalty was proscribed
by the Constitution. Consequently, appellant De Gracia could only be sentenced to serve the penalty
of reclusion perpetua which was correctly meted out by the trial court, albeit with an erroneous
recommendation in connection therewith.

WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but its
recommendation therein for executive clemency and the supposed basis thereof are hereby
DELETED, with costs against accused-appellant.

SO ORDERED.
 EN BANC

G.R. No. 157870 November 3, 2008

SOCIAL JUSTICE SOCIETY (SJS), petitioner

vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY
(PDEA), respondents.

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

G.R. No. 158633 November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner

vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents.

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

G.R. No. 161658 November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner

vs.
COMMISSION ON ELECTIONS, respondents.

DECISION

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise
known as the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing
of candidates for public office, students of secondary and tertiary schools, officers and employees of
public and private offices, and persons charged before the prosecutor's office with certain offenses,
among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government
forensic laboratories or by any of the drug testing laboratories accredited and monitored by the
DOH to safeguard the quality of the test results. x x x The drug testing shall employ, among
others, two (2) testing methods, the screening test which will determine the positive result as well
as the type of drug used and the confirmatory test which will confirm a positive screening test. x x
x The following shall be subjected to undergo drug testing:

xxxx

(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall,
pursuant to the related rules and regulations as contained in the school's student handbook and
with notice to the parents, undergo a random drug testing x x x;
 (d) Officers and employees of public and private offices. - Officers and employees of public and
private offices, whether domestic or overseas, shall be subjected to undergo a random drug test
as contained in the company's work rules and regulations, x x x for purposes of reducing the risk
in the workplace. Any officer or employee found positive for use of dangerous drugs shall be dealt
with administratively which shall be a ground for suspension or termination, subject to the
provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;

xxxx

(f) All persons charged before the prosecutor's office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory
drug test;

(g) All candidates for public office whether appointed or elected both in the national or local
government shall undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs
use shall be subject to the provisions of Section 15 of this Act.

G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486,
prescribing the rules and regulations on the mandatory drug testing of candidates for public office in
connection with the May 10, 2004 synchronized national and local elections. The pertinent portions of the
said resolution read as follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing. - x x x

xxxx

(g) All candidates for public office x x x both in the national or local government shall undergo a
mandatory drug test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility,
integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the
quality of candidates they are electing and they will be assured that only those who can serve
with utmost responsibility, integrity, loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the
Constitution, Batas Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election
laws, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on
the conduct of mandatory drug testing to candidates for public office[:]

SECTION 1. Coverage. - All candidates for public office, both national and local, in the May
10, 2004 Synchronized National and Local Elections shall undergo mandatory drug test in
government forensic laboratories or any drug testing laboratories monitored and accredited by the
Department of Health.
 SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices, the
Comelec Offices and employees concerned shall submit to the Law Department two (2) separate
lists of candidates. The first list shall consist of those candidates who complied with the
mandatory drug test while the second list shall consist of those candidates who failed to comply x
x x.

SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign
period, the [COMELEC] shall prepare two separate lists of candidates. The first list shall consist
of those candidates who complied with the mandatory drug test while the second list shall consist
of those candidates who failed to comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No person
elected to any public office shall enter upon the duties of his office until he has undergone
mandatory drug test and filed with the offices enumerated under Section 2 hereof the drug test
certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May
10, 2004 elections,1 filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to
nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being
unconstitutional in that they impose a qualification for candidates for senators in addition to those already
provided for in the 1987 Constitution; and (2) to enjoin the COMELEC from implementing Resolution No.
6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines,
and, on the day of the election, is at least thirty - five years of age, able to read and write, a
registered voter, and a resident of the Philippines for not less than two years immediately
preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be
a candidate for, elected to, and be a member of the Senate. He says that both the Congress and
COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other
candidates, to undergo a mandatory drug test, create an additional qualification that all candidates for
senator must first be certified as drug free. He adds that there is no provision in the Constitution
authorizing the Congress or COMELEC to expand the qualification requirements of candidates for
senator.

G.R. No. 157870 (Social Justice Society v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political
party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency
(PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are
constitutionally infirm. For one, the provisions constitute undue delegation of legislative power when they
give unbridled discretion to schools and employers to determine the manner of drug testing. For another,
the provisions trench in the equal protection clause inasmuch as they can be used to harass a student or
an employee deemed undesirable. And for a third, a person's constitutional right against unreasonable
searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous

Drugs Board and Philippine Drug Enforcement Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and
Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional
for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and
the right against self - incrimination, and for being contrary to the due process and equal protection
guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the standing of
petitioners SJS and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to
allege any incident amounting to a violation of the constitutional rights mentioned in their separate
petitions.2

It is basic that the power of judicial review can only be exercised in connection with a bona
fide controversy which involves the statute sought to be reviewed.3 But even with the presence of an
actual case or controversy, the Court may refuse to exercise judicial review unless the constitutional
question is brought before it by a party having the requisite standing to challenge it. 4 To have standing,
one must establish that he or she has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the challenged action; and the
injury is likely to be redressed by a favorable action.5

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional
plaintiffs, like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as
when the matter is of transcendental importance, of overarching significance to society, or of paramount
public interest.6 There is no doubt that Pimentel, as senator of the Philippines and candidate for the May
10, 2004 elections, possesses the requisite standing since he has substantial interests in the subject
matter of the petition, among other preliminary considerations. Regarding SJS and Laserna, this Court is
wont to relax the rule on locus standi owing primarily to the transcendental importance and the paramount
public interest involved in the enforcement of Sec. 36 of RA 9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for
candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for
senator in addition to those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these
paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the
equal protection clause? Or do they constitute undue delegation of legislative power?

Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally
impose an additional qualification on candidates for senator. He points out that, subject to the provisions
on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3,
Art. VI of the Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5)
residency. Beyond these stated qualification requirements, candidates for senator need not possess any
other qualification to run for senator and be voted upon and elected as member of the Senate. The
Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard,
evade, or weaken the force of a constitutional mandate,7 or alter or enlarge the Constitution.
Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby
declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all
laws must conform; no act shall be valid if it conflicts with the Constitution. 8 In the discharge of their
defined functions, the three departments of government have no choice but to yield obedience to the
commands of the Constitution. Whatever limits it imposes must be observed.9

Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as
1927, in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in
the following wise:

Someone has said that the powers of the legislative department of the Government, like the
boundaries of the ocean, are unlimited. In constitutional governments, however, as well as
governments acting under delegated authority, the powers of each of the departments x x x are
limited and confined within the four walls of the constitution or the charter, and each department
can only exercise such powers as are necessarily implied from the given powers. The
Constitution is the shore of legislative authority against which the waves of legislative enactment
may dash, but over which it cannot leap.10

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional
limitations which circumscribe both the exercise of the power itself and the allowable subjects of
legislation.11 The substantive constitutional limitations are chiefly found in the Bill of Rights 12 and other
provisions, such as Sec. 3, Art. VI of the Constitution prescribing the qualifications of candidates for
senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or
promulgating rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates
for senator in addition to what the Constitution prescribes. If Congress cannot require a candidate for
senator to meet such additional qualification, the COMELEC, to be sure, is also without such power. The
right of a citizen in the democratic process of election should not be defeated by unwarranted impositions
of requirement not otherwise specified in the Constitution.13

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively
enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched,
said Sec. 36(g) unmistakably requires a candidate for senator to be certified illegal - drug clean, obviously
as a pre - condition to the validity of a certificate of candidacy for senator or, with like effect, a
condition sine qua non to be voted upon and, if proper, be proclaimed as senator - elect. The COMELEC
resolution completes the chain with the proviso that "[n]o person elected to any public office shall enter
upon the duties of his office until he has undergone mandatory drug test." Viewed, therefore, in its proper
context, Sec. 36(g) of RA 9165 and the implementing COMELEC Resolution add another qualification
layer to what the 1987 Constitution, at the minimum, requires for membership in the Senate. Whether or
not the drug - free bar set up under the challenged provision is to be hurdled before or after election is
really of no moment, as getting elected would be of little value if one cannot assume office for non -
compliance with the drug - testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not
expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work
to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test
requirement is optional. But the particular section of the law, without exception, made drug - testing on
those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the adverse
consequences for not adhering to the statutory command. And since the provision deals with candidates
for public office, it stands to reason that the adverse consequence adverted to can only refer to and
revolve around the election and the assumption of public office of the candidates. Any other construal
would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without meaning and
effect whatsoever.
While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer
enforceable, for by its terms, it was intended to cover only the May 10, 2004 synchronized elections and
the candidates running in that electoral event. Nonetheless, to obviate repetition, the Court deems it
appropriate to review and rule, as it hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is
rooted on its having infringed the constitutional provision defining the qualification or eligibility
requirements for one aspiring to run for and serve as senator.

SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level
students and public and private employees, while mandatory, is a random and suspicionless
arrangement. The objective is to stamp out illegal drug and safeguard in the process "the well being of
[the] citizenry, particularly the youth, from the harmful effects of dangerous drugs." This statutory purpose,
per the policy - declaration portion of the law, can be achieved via the pursuit by the state of "an intensive
and unrelenting campaign against the trafficking and use of dangerous drugs x x x through an integrated
system of planning, implementation and enforcement of anti - drug abuse policies, programs and
projects."14 The primary legislative intent is not criminal prosecution, as those found positive for illegal
drug use as a result of this random testing are not necessarily treated as criminals. They may even be
exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and
55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and

Rehabilitation. - A drug dependent or any person who violates Section 15 of this Act may, by
himself/herself or through his/her parent, [close relatives] x x x apply to the Board x x x for
treatment and rehabilitation of the drug dependency. Upon such application, the Board shall bring
forth the matter to the Court which shall order that the applicant be examined for drug
dependency. If the examination x x x results in the certification that the applicant is a drug
dependent, he/she shall be ordered by the Court to undergo treatment and rehabilitation in a
Center designated by the Board x x x.

xxxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug
dependent under the voluntary submission program, who is finally discharged from confinement,
shall be exempt from the criminal liability under Section 15 of this Act subject to the following
conditions:

xxxx

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and
addictive effects of drugs. Maturing nervous systems of the young are more critically impaired by
intoxicants and are more inclined to drug dependency. Their recovery is also at a depressingly low rate.15

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by
the guarantee against unreasonable search and seizure16 under Sec. 2, Art. III17 of the Constitution. But
while the right to privacy has long come into its own, this case appears to be the first time that the validity
of a state - decreed search or intrusion through the medium of mandatory random drug testing among
students and employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these
proceedings is veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug
testing among school children, we turn to the teachings of Vernonia School District 47J v. Acton
(Vernonia) and Board of Education of Independent School District No. 92 of Pottawatomie County, et al.
v. Earls, et al. (Board of Education),18 both fairly pertinent US Supreme Court - decided cases involving
the constitutionality of governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their
respective institutions following the discovery of frequent drug use by school athletes. After consultation
with the parents, they required random urinalysis drug testing for the school's athletes. James Acton, a
high school student, was denied participation in the football program after he refused to undertake the
urinalysis drug testing. Acton forthwith sued, claiming that the school's drug testing policy violated, inter
alia, the Fourth Amendment19 of the US Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the
following: (1) schools stand in loco parentis over their students; (2) school children, while not shedding
their constitutional rights at the school gate, have less privacy rights; (3) athletes have less privacy rights
than non - athletes since the former observe communal undress before and after sports events; (4) by
joining the sports activity, the athletes voluntarily subjected themselves to a higher degree of school
supervision and regulation; (5) requiring urine samples does not invade a student's privacy since a
student need not undress for this kind of drug testing; and (6) there is need for the drug testing because
of the dangerous effects of illegal drugs on the young. The US Supreme Court held that the policy
constituted reasonable search under the Fourth20 and 14th Amendments and declared the random drug -
testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test
for high school students desiring to join extra - curricular activities. Lindsay Earls, a member of the show
choir, marching band, and academic team declined to undergo a drug test and averred that the drug -
testing policy made to apply to non - athletes violated the Fourth and 14th Amendments. As Earls argued,
unlike athletes who routinely undergo physical examinations and undress before their peers in locker
rooms, non - athletes are entitled to more privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non -
athletes on the basis of the school's custodial responsibility and authority. In so ruling, said court made no
distinction between a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of
the parents with a similar interest and duty of safeguarding the health of the students. And in holding that
the school could implement its random drug - testing policy, the Court hinted that such a test was a kind
of search in which even a reasonable parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are:
(1) schools and their administrators stand in loco parentis with respect to their students; (2) minor
students have contextually fewer rights than an adult, and are subject to the custody and supervision of
their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the
health and well - being of their students and may adopt such measures as may reasonably be necessary
to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission
that are fair, just, and non-discriminatory.

Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of
RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional.
Indeed, it is within the prerogative of educational institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not
absolute; it is subject to fair, reasonable, and equitable requirements.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the
well - being of the people,21 particularly the youth and school children who usually end up as victims.
Accordingly, and until a more effective method is conceptualized and put in motion, a random drug testing
of students in secondary and tertiary schools is not only acceptable but may even be necessary if the
safety and interest of the student population, doubtless a legitimate concern of the government, are to be
promoted and protected. To borrow from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is
as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs"; the
necessity for the State to act is magnified by the fact that the effects of a drug - infested school are visited
not just upon the users, but upon the entire student body and faculty. 22 Needless to stress, the random
testing scheme provided under the law argues against the idea that the testing aims to incriminate
unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test
prescribed by Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable,
albeit not exactly for the same reason. The Court notes in this regard that petitioner SJS, other than
saying that "subjecting almost everybody to drug testing, without probable cause, is unreasonable, an
unwarranted intrusion of the individual right to privacy,"23 has failed to show how the mandatory, random,
and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates the right to privacy and
constitutes unlawful and/or unconsented search under Art. III, Secs. 1 and 2 of the
Constitution.24 Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and does not
merit serious consideration. Consider what he wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the
constitutionality of mandatory drug tests in the school and the workplaces. The US courts have
been consistent in their rulings that the mandatory drug tests violate a citizen's constitutional right
to privacy and right against unreasonable search and seizure. They are quoted extensively
hereinbelow.25

The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to be
free from unwarranted exploitation of one's person or from intrusion into one's private activities in such a
way as to cause humiliation to a person's ordinary sensibilities. 27 And while there has been general
agreement as to the basic function of the guarantee against unwarranted search, "translation of the
abstract prohibition against ‘unreasonable searches and seizures' into workable broad guidelines for the
decision of particular cases is a difficult task," to borrow from C. Camara v. Municipal Court.28 Authorities
are agreed though that the right to privacy yields to certain paramount rights of the public and defers to
the state's exercise of police power.29

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held,
"reasonableness" is the touchstone of the validity of a government search or intrusion.30 And whether a
search at issue hews to the reasonableness standard is judged by the balancing of the government -
mandated intrusion on the individual's privacy interest against the promotion of some compelling state
interest.31 In the criminal context, reasonableness requires showing of probable cause to be personally
determined by a judge. Given that the drug - testing policy for employees--and students for that matter--
under RA 9165 is in the nature of administrative search needing what was referred to in Vernonia as
"swift and informal disciplinary procedures," the probable - cause standard is not required or even
practicable. Be that as it may, the review should focus on the reasonableness of the challenged
administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which
the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes.
In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of
the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an
office is to a large extent circumscribed by the company's work policies, the collective bargaining
agreement, if any, entered into by management and the bargaining unit, and the inherent right of the
employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated
office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the intrusion authorized by the challenged law.
Reduced to a question form, is the scope of the search or intrusion clearly set forth, or, as formulated
in Ople v. Torres, is the enabling law authorizing a search "narrowly drawn" or "narrowly focused"? 32

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules
and regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation
that would unduly embarrass the employees or place them under a humiliating experience. While every
officer and employee in a private establishment is under the law deemed forewarned that he or she may
be a possible subject of a drug test, nobody is really singled out in advance for drug testing. The goal is to
discourage drug use by not telling in advance anyone when and who is to be tested. And as may be
observed, Sec. 36(d) of RA 9165 itself prescribes what, in Ople, is a narrowing ingredient by providing
that the employees concerned shall be subjected to "random drug test as contained in the company's
work rules and regulations x x x for purposes of reducing the risk in the work place."

For another, the random drug testing shall be undertaken under conditions calculated to protect as much
as possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the
procedure shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless
to ensure as much as possible the trustworthiness of the results. But the more important consideration
lies in the fact that the test shall be conducted by trained professionals in access - controlled laboratories
monitored by the Department of Health (DOH) to safeguard against results tampering and to ensure an
accurate chain of custody.33 In addition, the IRR issued by the DOH provides that access to the drug
results shall be on the "need to know" basis;34 that the "drug test result and the records shall be [kept]
confidential subject to the usual accepted practices to protect the confidentiality of the test
results."35 Notably, RA 9165 does not oblige the employer concerned to report to the prosecuting
agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs
Act received as a result of the operation of the drug testing. All told, therefore, the intrusion into the
employees' privacy, under RA 9165, is accompanied by proper safeguards, particularly against
embarrassing leakages of test results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect
the well - being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The
law intends to achieve this through the medium, among others, of promoting and resolutely pursuing a
national drug abuse policy in the workplace via a mandatory random drug test. 36 To the Court, the need
for drug testing to at least minimize illegal drug use is substantial enough to override the individual's
privacy interest under the premises. The Court can consider that the illegal drug menace cuts across
gender, age group, and social - economic lines. And it may not be amiss to state that the sale,
manufacture, or trafficking of illegal drugs, with their ready market, would be an investor's dream were it
not for the illegal and immoral components of any of such activities. The drug problem has hardly abated
since the martial law public execution of a notorious drug trafficker. The state can no longer assume a laid
back stance with respect to this modern - day scourge. Drug enforcement agencies perceive a mandatory
random drug test to be an effective way of preventing and deterring drug use among employees in private
offices, the threat of detection by random testing being higher than other modes. The Court holds that the
chosen method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the
employees, the compelling state concern likely to be met by the search, and the well - defined limits set
forth in the law to properly guide authorities in the conduct of the random testing, we hold that the
challenged drug test requirement is, under the limited context of the case, reasonable and, ergo,
constitutional.

Like their counterparts in the private sector, government officials and employees also labor under
reasonable supervision and restrictions imposed by the Civil Service law and other laws on public
officers, all enacted to promote a high standard of ethics in the public service. 37 And if RA 9165 passes
the norm of reasonableness for private employees, the more reason that it should pass the test for civil
servants, who, by constitutional command, are required to be accountable at all times to the people and
to serve them with utmost responsibility and efficiency.38

Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation
of power hardly commends itself for concurrence. Contrary to its position, the provision in question is not
so extensively drawn as to give unbridled options to schools and employers to determine the manner of
drug testing. Sec. 36 expressly provides how drug testing for students of secondary and tertiary schools
and officers/employees of public/private offices should be conducted. It enumerates the persons who
shall undergo drug testing. In the case of students, the testing shall be in accordance with the school
rules as contained in the student handbook and with notice to parents. On the part of officers/employees,
the testing shall take into account the company's work rules. In either case, the random procedure shall
be observed, meaning that the persons to be subjected to drug test shall be picked by chance or in an
unplanned way. And in all cases, safeguards against misusing and compromising the confidentiality of the
test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH,
Department of the Interior and Local Government, Department of Education, and Department of Labor
and Employment, among other agencies, the IRR necessary to enforce the law. In net effect then, the
participation of schools and offices in the drug testing scheme shall always be subject to the IRR of RA
9165. It is, therefore, incorrect to say that schools and employers have unchecked discretion to determine
how often, under what conditions, and where the drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape. 39 In the
face of the increasing complexity of the task of the government and the increasing inability of the
legislature to cope directly with the many problems demanding its attention, resort to delegation of power,
or entrusting to administrative agencies the power of subordinate legislation, has become imperative, as
here.

Laserna Petition (Constitutionality of Sec. 36[c], [d],

[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for
mandatory drug testing for persons accused of crimes. In the case of students, the constitutional viability
of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver
by the students of their right to privacy when they seek entry to the school, and from their voluntarily
submitting their persons to the parental authority of school authorities. In the case of private and public
employees, the constitutional soundness of the mandatory, random, and suspicionless drug testing
proceeds from the reasonableness of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's office
with criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative
concepts in the mandatory drug testing are "randomness" and "suspicionless." In the case of persons
charged with a crime before the prosecutor's office, a mandatory drug testing can never be random or
suspicionless. The ideas of randomness and being suspicionless are antithetical to their being made
defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion.
When persons suspected of committing a crime are charged, they are singled out and are impleaded
against their will. The persons thus charged, by the bare fact of being haled before the prosecutor's office
and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to
the procedure, let alone waive their right to privacy.40 To impose mandatory drug testing on the accused
is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated
objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed
under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to
incriminate themselves.
WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec.
36(g) of RA 9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY
GRANT the petition in G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165
CONSTITUTIONAL, but declaring its Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are,
accordingly, permanently enjoined from implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.

EN BANC

G.R. No. 181881 October 18, 2011

BRICCIO "Ricky" A. POLLO, Petitioner,

vs.
CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN
BUENSALIDA, DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D.
UNITE AND THE CIVIL SERVICE COMMISSION, Respondents.

DECISION

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was
charged administratively and eventually dismissed from the service. The employee’s personal files
stored in the computer were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside
the Decision1 dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of
Appeals (CA). The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner
Briccio "Ricky" A. Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC)
which found him guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the
service, and violation of Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also
the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan
Muna Hindi Mamaya Na" program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent

CSC Chairperson Karina Constantino-David which was marked "Confidential" and sent through a
courier service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was
received by the Integrated Records Management Office (IRMO) at the CSC Central Office. Following
office practice in which documents marked "Confidential" are left unopened and instead sent to the
addressee, the aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just
alright for an employee of your agency to be a lawyer of an accused gov’t employee having a
pending case in the csc. I honestly think this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is
the chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have
pending cases in the Csc. The justice in our govt system will not be served if this will continue.
Please investigate this anomaly because our perception of your clean and good office is being
tainted.

Concerned Govt employee3

Chairperson David immediately formed a team of four personnel with background in information
technology (IT), and issued a memo directing them to conduct an investigation and specifically "to
back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal
divisions."4 After some briefing, the team proceeded at once to the CSC-ROIV office at Panay
Avenue, Quezon City. Upon their arrival thereat around 5:30 p.m., the team informed the officials of
the CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo) and Director III Engelbert
Unite (Director Unite) of Chairperson David’s directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division
(LSD) was witnessed by several employees, together with Directors Castillo and Unite who closely
monitored said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the
head of LSD, who were both out of the office at the time, informing them of the ongoing copying of
computer files in their divisions upon orders of the CSC Chair. The text messages received by
petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per
instruction of the Chairman. If you can make it here now it would be better."

"All PCs Of PALD and LSD are being backed up per memo of the chair."

"CO IT people arrived just now for this purpose. We were not also informed about this.

"We can’t do anything about … it … it’s a directive from chair."

"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo
via mms"5

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he
will just get a lawyer. Another text message received by petitioner from PALD staff also reported the
presence of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."6 At
around 10:00 p.m. of the same day, the investigating team finished their task. The next day, all the
computers in the PALD were sealed and secured for the purpose of preserving all the files stored
therein. Several diskettes containing the back-up files sourced from the hard disk of PALD and LSD
computers were turned over to Chairperson David. The contents of the diskettes were examined by
the CSC’s Office for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes
containing files copied from the computer assigned to and being used by the petitioner, numbering
about 40 to 42 documents, were draft pleadings or letters7 in connection with administrative cases in
the CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-Cause
Order8 dated January 11, 2007, requiring the petitioner, who had gone on extended leave, to submit
his explanation or counter-affidavit within five days from notice.

Evaluating the subject documents obtained from petitioner’s personal files, Chairperson David made
the following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected
with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the
CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft
pleadings are for and on behalves of parties, who are facing charges as respondents in
administrative cases. This gives rise to the inference that the one who prepared them was
knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the
interest of the CSC as the central personnel agency of the government tasked to discipline
misfeasance and malfeasance in the government service. The number of pleadings so prepared
further demonstrates that such person is not merely engaged in an isolated practice but pursues it
with seeming regularity. It would also be the height of naivete or credulity, and certainly against
common human experience, to believe that the person concerned had engaged in this customary
practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to
insinuate the collection of fees. That these draft pleadings were obtained from the computer
assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in
their drafting or preparation since the computer of origin was within his direct control and
disposition.9

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-
complaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering"
for people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition"
when they unlawfully copied and printed personal files in his computer, and subsequently asking him
to submit his comment which violated his right against self-incrimination. He asserted that he had
protested the unlawful taking of his computer done while he was on leave, citing the letter dated
January 8, 2007 in which he informed Director Castillo that the files in his computer were his
personal files and those of his sister, relatives, friends and some associates and that he is not
authorizing their sealing, copying, duplicating and printing as these would violate his constitutional
right to privacy and protection against self-incrimination and warrantless search and seizure. He
pointed out that though government property, the temporary use and ownership of the computer
issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all
attributes of ownership, including its use for personal purposes. As to the anonymous letter,
petitioner argued that it is not actionable as it failed to comply with the requirements of a formal
complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of
the illegal search, the files/documents copied from his computer without his consent is thus
inadmissible as evidence, being "fruits of a poisonous tree."10

On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case against the
petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best
Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for
Public Officials and Employees). Petitioner was directed to submit his answer under oath within five
days from notice and indicate whether he elects a formal investigation. Since the charges fall under
Section 19 of the URACC, petitioner was likewise placed under 90 days preventive suspension
effective immediately upon receipt of the resolution. Petitioner received a copy of Resolution No.
070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the
formal charge as without basis having proceeded from an illegal search which is beyond the
authority of the CSC Chairman, such power pertaining solely to the court. Petitioner reiterated that
he never aided any people with pending cases at the CSC and alleged that those files found in his
computer were prepared not by him but by certain persons whom he permitted, at one time or
another, to make use of his computer out of close association or friendship. Attached to the motion
were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to be kept at petitioner’s
CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosa’s client who attested that petitioner
had nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees to Atty.
Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of the
prejudicial question raised in the criminal complaint he filed before the Ombudsman against Director
Buensalida, whom petitioner believes had instigated this administrative case. He also prayed for the
lifting of the preventive suspension imposed on him. In its Resolution No. 07051912 dated March 19,
2007, the CSC denied the omnibus motion. The CSC resolved to treat the said motion as petitioner’s
answer.

On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court,
docketed as CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and
Resolution No. 070382 dated February 26, 2007 as having been issued with grave abuse of
discretion amounting to excess or total absence of jurisdiction. Prior to this, however, petitioner
lodged an administrative/criminal complaint against respondents Directors Racquel D.G. Buensalida
(Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of
the Ombudsman, and a separate complaint for disbarment against Director Buensalida.14

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal
investigation of the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for
the issuance of TRO and preliminary injunction.15 Since he failed to attend the pre-hearing
conference scheduled on April 30, 2007, the CSC reset the same to May 17, 2007 with warning that
the failure of petitioner and/or his counsel to appear in the said pre-hearing conference shall entitle
the prosecution to proceed with the formal investigation ex-parte.16 Petitioner moved to defer or to
reset the pre-hearing conference, claiming that the investigation proceedings should be held in
abeyance pending the resolution of his petition by the CA. The CSC denied his request and again
scheduled the pre-hearing conference on May 18, 2007 with similar warning on the consequences of
petitioner and/or his counsel’s non-appearance.17 This prompted petitioner to file another motion in
the CA, to cite the respondents, including the hearing officer, in indirect contempt.18

On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion to set aside
the denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty.
Bernard G. Jimenez. The hearing officer was directed to proceed with the investigation proper with
dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution,
petitioner was deemed to have waived his right to the formal investigation which then proceeded ex
parte.

On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:

WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a.
Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of
the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE
SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of
retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service
examinations.21

On the paramount issue of the legality of the search conducted on petitioner’s computer, the CSC
noted the dearth of jurisprudence relevant to the factual milieu of this case where the government as
employer invades the private files of an employee stored in the computer assigned to him for his
official use, in the course of initial investigation of possible misconduct committed by said employee
and without the latter’s consent or participation. The CSC thus turned to relevant rulings of the
United States Supreme Court, and cited the leading case of O’Connor v. Ortega22 as authority for the
view that government agencies, in their capacity as employers, rather than law enforcers, could
validly conduct search and seizure in the governmental workplace without meeting the "probable
cause" or warrant requirement for search and seizure. Another ruling cited by the CSC is the more
recent case of United States v. Mark L. Simons23 which declared that the federal agency’s computer
use policy foreclosed any inference of reasonable expectation of privacy on the part of its
employees. Though the Court therein recognized that such policy did not, at the same time, erode
the respondent’s legitimate expectation of privacy in the office in which the computer was installed,
still, the warrantless search of the employee’s office was upheld as valid because a government
employer is entitled to conduct a warrantless search pursuant to an investigation of work-related
misconduct provided the search is reasonable in its inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no
reasonable expectation of privacy with regard to the computer he was using in the regional office in
view of the CSC computer use policy which unequivocally declared that a CSC employee cannot
assert any privacy right to a computer assigned to him. Even assuming that there was no such
administrative policy, the CSC was of the view that the search of petitioner’s computer successfully
passed the test of reasonableness for warrantless searches in the workplace as enunciated in the
aforecited authorities. The CSC stressed that it pursued the search in its capacity as government
employer and that it was undertaken in connection with an investigation involving work-related
misconduct, which exempts it from the warrant requirement under the Constitution. With the matter
of admissibility of the evidence having been resolved, the CSC then ruled that the totality of
evidence adequately supports the charges of grave misconduct, dishonesty, conduct prejudicial to
the best interest of the service and violation of R.A. No. 6713 against the petitioner. These grave
infractions justified petitioner’s dismissal from the service with all its accessory penalties.

In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing
him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a
subsequent motion, he likewise prayed for the inclusion of Resolution No. 07180025 which denied his
motion for reconsideration.

By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no
grave abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner
was not charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-
finding investigation was conducted and the results thereof yielded a prima facie case against him;
(2) it could not be said that in ordering the back-up of files in petitioner’s computer and later
confiscating the same, Chairperson David had encroached on the authority of a judge in view of the
CSC computer policy declaring the computers as government property and that employee-users
thereof have no reasonable expectation of privacy in anything they create, store, send, or receive on
the computer system; and (3) there is nothing contemptuous in CSC’s act of proceeding with the
formal investigation as there was no restraining order or injunction issued by the CA.
His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing
that –

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED

SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE
ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS
ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS
EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC
RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES
PER CSC RESOLUTION NO. 94-0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE

ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED
THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE
SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE
MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY
AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL
COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL
RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO
PROCEDURAL AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF

DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND
THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M.
IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE
ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL
HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE
GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE
PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM.
10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT
DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS
OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE
CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW
ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS
FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND
INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC
RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON
THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26

Squarely raised by the petitioner is the legality of the search conducted on his office computer and
the copying of his personal files without his knowledge and consent, alleged as a transgression on
his constitutional right to privacy.
The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected
by the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987
Constitution,27 which provides:

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 after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

The constitutional guarantee is not a prohibition of all searches and seizures but only of
"unreasonable" searches and seizures.28 But to fully understand this concept and application for the
purpose of resolving the issue at hand, it is essential that we examine the doctrine in the light of
pronouncements in another jurisdiction. As the Court declared in People v. Marti29 :

Our present constitutional provision on the guarantee against unreasonable search and seizure had
its origin in the 1935 Charter which, worded as follows:

"The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized." (Sec. 1[3], Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution.
As such, the Court may turn to the pronouncements of the United States Federal Supreme Court
and State Appellate Courts which are considered doctrinal in this jurisdiction.30

In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in
electronically recording a conversation made by petitioner in an enclosed public telephone booth
violated his right to privacy and constituted a "search and seizure". Because the petitioner had a
reasonable expectation of privacy in using the enclosed booth to make a personal telephone call, the
protection of the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice
Harlan, it was further noted that the existence of privacy right under prior decisions involved a two-
fold requirement: first, that a person has exhibited an actual (subjective) expectation of privacy; and
second, that the expectation be one that society is prepared to recognize as reasonable (objective).32

In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the
workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with
regard to an office at union headquarters that he shared with other union officials, even as the latter
or their guests could enter the office. The Court thus "recognized that employees may have a
reasonable expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987
case of O’Connor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state
hospital, claimed a violation of his Fourth Amendment rights when hospital officials investigating
charges of mismanagement of the psychiatric residency program, sexual harassment of female
hospital employees and other irregularities involving his private patients under the state medical aid
program, searched his office and seized personal items from his desk and filing cabinets. In that
case, the Court categorically declared that "[i]ndividuals do not lose Fourth Amendment rights merely
because they work for the government instead of a private employer."35 A plurality of four Justices
concurred that the correct analysis has two steps: first, because "some government offices may be
so open to fellow employees or the public that no expectation of privacy is reasonable", a court must
consider "[t]he operational realities of the workplace" in order to determine whether an employee’s
Fourth Amendment rights are implicated; and next, where an employee has a legitimate privacy
expectation, an employer’s intrusion on that expectation "for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct, should be judged by the standard
of reasonableness under all the circumstances."36

On the matter of government employees’ reasonable expectations of privacy in their workplace,

O’Connor teaches:

x x x Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar
expectations of employees in the private sector, may be reduced by virtue of actual office practices
and procedures, or by legitimate regulation. x x x The employee’s expectation of privacy must be
assessed in the context of the employment relation. An office is seldom a private enclave free from
entry by supervisors, other employees, and business and personal invitees. Instead, in many cases
offices are continually entered by fellow employees and other visitors during the workday for
conferences, consultations, and other work-related visits. Simply put, it is the nature of government
offices that others – such as fellow employees, supervisors, consensual visitors, and the general
public – may have frequent access to an individual’s office. We agree with JUSTICE SCALIA that
"[c]onstitutional protection against unreasonable searches by the government does not disappear
merely because the government has the right to make reasonable intrusions in its capacity as
employer," x x x but some government offices may be so open to fellow employees or the
public that no expectation of privacy is reasonable. x x x Given the great variety of work
environments in the public sector, the question of whether an employee has a reasonable
expectation of privacy must be addressed on a case-by-case basis.37 (Citations omitted;
emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr.
Ortega’s Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed
"an expectation of privacy that society is prepared to consider as reasonable." Given the undisputed
evidence that respondent Dr. Ortega did not share his desk or file cabinets with any other
employees, kept personal correspondence and other private items in his own office while those
work-related files (on physicians in residency training) were stored outside his office, and there being
no evidence that the hospital had established any reasonable regulation or policy discouraging
employees from storing personal papers and effects in their desks or file cabinets (although the
absence of such a policy does not create any expectation of privacy where it would not otherwise
exist), the Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his
desk and file cabinets.38

Proceeding to the next inquiry as to whether the search conducted by hospital officials was
reasonable, the O’Connor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of
Appeals simply concluded without discussion that the "search…was not a reasonable search under
the fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by
[public employers] is only to begin the inquiry into the standards governing such searches…[W]hat is
reasonable depends on the context within which a search takes place. x x x Thus, we must
determine the appropriate standard of reasonableness applicable to the search. A determination of
the standard of reasonableness applicable to a particular class of searches requires "balanc[ing] the
nature and quality of the intrusion on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion." x x x In the case of
searches conducted by a public employer, we must balance the invasion of the employees’
legitimate expectations of privacy against the government’s need for supervision, control,
and the efficient operation of the workplace.

xxxx

In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an
employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the
routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant
procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with
such procedures, is simply unreasonable. In contrast to other circumstances in which we have
required warrants, supervisors in offices such as at the Hospital are hardly in the business of
investigating the violation of criminal laws. Rather, work-related searches are merely incident to the
primary business of the agency. Under these circumstances, the imposition of a warrant requirement
would conflict with the "common-sense realization that government offices could not function if every
employment decision became a constitutional matter." x x x

xxxx

The governmental interest justifying work-related intrusions by public employers is the efficient and
proper operation of the workplace. Government agencies provide myriad services to the public, and
the work of these agencies would suffer if employers were required to have probable cause before
they entered an employee’s desk for the purpose of finding a file or piece of office correspondence.
Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory
context, much meaning when the purpose of a search is to retrieve a file for work-related reasons.
Similarly, the concept of probable cause has little meaning for a routine inventory conducted by
public employers for the purpose of securing state property. x x x To ensure the efficient and proper
operation of the agency, therefore, public employers must be given wide latitude to enter employee
offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-related

employee misconduct. Even when employers conduct an investigation, they have an interest
substantially different from "the normal need for law enforcement." x x x Public employers have an
interest in ensuring that their agencies operate in an effective and efficient manner, and the work of
these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other
work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted
with tremendous responsibility, and the consequences of their misconduct or incompetence to both
the agency and the public interest can be severe. In contrast to law enforcement officials, therefore,
public employers are not enforcers of the criminal law; instead, public employers have a direct and
overriding interest in ensuring that the work of the agency is conducted in a proper and efficient
manner. In our view, therefore, a probable cause requirement for searches of the type at issue
here would impose intolerable burdens on public employers. The delay in correcting the
employee misconduct caused by the need for probable cause rather than reasonable
suspicion will be translated into tangible and often irreparable damage to the agency’s work,
and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the "special needs, beyond the normal need for law enforcement
make the…probable-cause requirement impracticable," x x x for legitimate, work-related
noninvestigatory intrusions as well as investigations of work-related misconduct. A standard
of reasonableness will neither unduly burden the efforts of government employers to ensure the
efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of
public employees. We hold, therefore, that public employer intrusions on the constitutionally
protected privacy interests of government employees for noninvestigatory, work-related
purposes, as well as for investigations of work-related misconduct, should be judged by
the standard of reasonableness under all the circumstances. Under this reasonableness
standard, both the inception and the scope of the intrusion must be reasonable:

"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider
‘whether the…action was justified at its inception,’ x x x ; second, one must determine whether the
search as actually conducted ‘was reasonably related in scope to the circumstances which justified
the interference in the first place,’" x x x

Ordinarily, a search of an employee’s office by a supervisor will be "justified at its inception"

when there are reasonable grounds for suspecting that the search will turn up evidence that
the employee is guilty of work-related misconduct, or that the search is necessary for a
noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will be
permissible in its scope when "the measures adopted are reasonably related to the
objectives of the search and not excessively intrusive in light of …the nature of the
[misconduct]." x x x39 (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the
character of the search and neither was there any finding made as to the scope of the search that
was undertaken, the case was remanded to said court for the determination of the justification for the
search and seizure, and evaluation of the reasonableness of both the inception of the search and its
scope.

In O’Connor the Court recognized that "special needs" authorize warrantless searches involving
public employees for work-related reasons. The Court thus laid down a balancing test under which
government interests are weighed against the employee’s reasonable expectation of privacy. This
reasonableness test implicates neither probable cause nor the warrant requirement, which are
related to law enforcement.40

O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the
workplace. One of these cases involved a government employer’s search of an office computer,
United States v. Mark L. Simons41 where the defendant Simons, an employee of a division of the
Central Intelligence Agency (CIA), was convicted of receiving and possessing materials containing
child pornography. Simons was provided with an office which he did not share with anyone, and a
computer with Internet access. The agency had instituted a policy on computer use stating that
employees were to use the Internet for official government business only and that accessing
unlawful material was specifically prohibited. The policy also stated that users shall understand that
the agency will periodically audit, inspect, and/or monitor the user’s Internet access as deemed
appropriate. CIA agents instructed its contractor for the management of the agency’s computer
network, upon initial discovery of prohibited internet activity originating from Simons’ computer, to
conduct a remote monitoring and examination of Simons’ computer. After confirming that Simons
had indeed downloaded pictures that were pornographic in nature, all the files on the hard drive of
Simon’s computer were copied from a remote work station. Days later, the contractor’s
representative finally entered Simon’s office, removed the original hard drive on Simon’s computer,
replaced it with a copy, and gave the original to the agency security officer. Thereafter, the agency
secured warrants and searched Simons’ office in the evening when Simons was not around. The
search team copied the contents of Simons’ computer; computer diskettes found in Simons’ desk
drawer; computer files stored on the zip drive or on zip drive diskettes; videotapes; and various
documents, including personal correspondence. At his trial, Simons moved to suppress these
evidence, arguing that the searches of his office and computer violated his Fourth Amendment
rights. After a hearing, the district court denied the motion and Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons’
computer and office did not violate his Fourth Amendment rights and the first search warrant was
valid. It held that the search remains valid under the O’Connor exception to the warrant requirement
because evidence of the crime was discovered in the course of an otherwise proper administrative
inspection. Simons’ violation of the agency’s Internet policy happened also to be a violation of
criminal law; this does not mean that said employer lost the capacity and interests of an employer.
The warrantless entry into Simons’ office was reasonable under the Fourth Amendment standard
announced in O’Connor because at the inception of the search, the employer had "reasonable
grounds for suspecting" that the hard drive would yield evidence of misconduct, as the employer was
already aware that Simons had misused his Internet access to download over a thousand
pornographic images. The retrieval of the hard drive was reasonably related to the objective of the
search, and the search was not excessively intrusive. Thus, while Simons had a reasonable
expectation of privacy in his office, he did not have such legitimate expectation of privacy with regard
to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that
he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in
order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation
of privacy is one that society is prepared to accept as objectively reasonable. x x x

xxxx

x x x We conclude that the remote searches of Simons’ computer did not violate his Fourth
Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of
privacy in the files downloaded from the Internet. Additionally, we conclude that Simons’ Fourth
Amendment rights were not violated by FBIS’ retrieval of Simons’ hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of
his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would
"audit, inspect, and/or monitor" employees’ use of the Internet, including all file transfers, all
websites visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed
employees on notice that they could not reasonably expect that their Internet activity would be
private. Therefore, regardless of whether Simons subjectively believed that the files he transferred
from the Internet were private, such a belief was not objectively reasonable after FBIS notified him
that it would be overseeing his Internet use. x x x Accordingly, FBIS’ actions in remotely searching
and seizing the computer files Simons downloaded from the Internet did not violate the Fourth
Amendment.

xxxx

The burden is on Simons to prove that he had a legitimate expectation of privacy in his office.
x x x Here, Simons has shown that he had an office that he did not share. As noted above, the
operational realities of Simons’ workplace may have diminished his legitimate privacy expectations.
However, there is no evidence in the record of any workplace practices, procedures, or regulations
that had such an effect. We therefore conclude that, on this record, Simons possessed a
legitimate expectation of privacy in his office.

xxxx
In the final analysis, this case involves an employee’s supervisor entering the employee’s
government office and retrieving a piece of government equipment in which the employee had
absolutely no expectation of privacy – equipment that the employer knew contained evidence of
crimes committed by the employee in the employee’s office. This situation may be contrasted with
one in which the criminal acts of a government employee were unrelated to his employment. Here,
there was a conjunction of the conduct that violated the employer’s policy and the conduct that
violated the criminal law. We consider that FBIS’ intrusion into Simons’ office to retrieve the hard
drive is one in which a reasonable employer might engage. x x x42 (Citations omitted; emphasis
supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the
constitutionality of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for
public office, students of secondary and tertiary schools, officers and employees of public and
private offices, and persons charged before the prosecutor’s office with certain offenses, have also
recognized the fact that there may be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon
which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of
the privacy expectation of the employees and the reasonableness of drug testing requirement. The
employees’ privacy interest in an office is to a large extent circumscribed by the company’s work
policies, the collective bargaining agreement, if any, entered into by management and the bargaining
unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace.
Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of
impingement upon such privacy has been upheld. (Emphasis supplied.)

Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we now
address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his
office and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the
contents of the hard drive on petitioner’s computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee’s
relationship to the item seized; (2) whether the item was in the immediate control of the employee
when it was seized; and (3) whether the employee took actions to maintain his privacy in the item."
These factors are relevant to both the subjective and objective prongs of the reasonableness inquiry,
and we consider the two questions together.44 Thus, where the employee used a password on his
computer, did not share his office with co-workers and kept the same locked, he had a legitimate
expectation of privacy and any search of that space and items located therein must comply with the
Fourth Amendment.45

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective)
expectation of privacy either in his office or government-issued computer which contained his
personal files. Petitioner did not allege that he had a separate enclosed office which he did not share
with anyone, or that his office was always locked and not open to other employees or visitors.
Neither did he allege that he used passwords or adopted any means to prevent other employees
from accessing his computer files. On the contrary, he submits that being in the public assistance
office of the CSC-ROIV, he normally would have visitors in his office like friends, associates and
even unknown people, whom he even allowed to use his computer which to him seemed a trivial
request. He described his office as "full of people, his friends, unknown people" and that in the past
22 years he had been discharging his functions at the PALD, he is "personally assisting incoming
clients, receiving documents, drafting cases on appeals, in charge of accomplishment report,
Mamamayan Muna Program, Public Sector Unionism, Correction of name, accreditation of service,
and hardly had anytime for himself alone, that in fact he stays in the office as a paying
customer."46 Under this scenario, it can hardly be deduced that petitioner had such expectation of
privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned
factual circumstances, that petitioner had at least a subjective expectation of privacy in his computer
as he claims, such is negated by the presence of policy regulating the use of office computers, as in
Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil Service Commission and may be
used only for legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the

performance of their respective jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have
an expectation of privacy in anything they create, store, send, or receive on the computer
system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign
Users to handle the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they
create, store, send, or receive on the computer through the Internet or any other computer
network. Users understand that the CSC may use human or automated means to monitor
the use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property

or for the exclusive use of a User to whom a memorandum of receipt (MR) has been
issued. It can be shared or operated by other users. However, he is accountable therefor and
must insure its care and maintenance.

xxxx

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their
passwords for access to the computer system. Individual passwords shall not be printed,
stored online, or given to others. Users shall be responsible for all transactions made using
their passwords. No User may access the computer system with another User’s password or
account.
 13. Passwords do not imply privacy. Use of passwords to gain access to the computer
system or to encode particular files or messages does not imply that Users have an
expectation of privacy in the material they create or receive on the computer system. The
Civil Service Commission has global passwords that permit access to all materials stored on
its networked computer system regardless of whether those materials have been encoded
with a particular User’s password. Only members of the Commission shall authorize the
application of the said global passwords.

x x x x47 (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no
expectation of privacy in anything they create, store, send or receive on the office computers, and
that the CSC may monitor the use of the computer resources using both automated or human
means. This implies that on-the-spot inspections may be done to ensure that the computer
resources were used only for such legitimate business purposes.

One of the factors stated in O’Connor which are relevant in determining whether an employee’s
expectation of privacy in the workplace is reasonable is the existence of a workplace privacy
policy.48 In one case, the US Court of Appeals Eighth Circuit held that a state university employee
has not shown that he had a reasonable expectation of privacy in his computer files where the
university’s computer policy, the computer user is informed not to expect privacy if the university has
a legitimate reason to conduct a search. The user is specifically told that computer files, including e-
mail, can be searched when the university is responding to a discovery request in the course of
litigation. Petitioner employee thus cannot claim a violation of Fourth Amendment rights when
university officials conducted a warrantless search of his computer for work-related materials.49

As to the second point of inquiry on the reasonableness of the search conducted on petitioner’s
computer, we answer in the affirmative.

The search of petitioner’s computer files was conducted in connection with investigation of work-
related misconduct prompted by an anonymous letter-complaint addressed to Chairperson David
regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na
division is supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David
stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from
unknown sources adverting to certain anomalies in Civil Service Commission Regional Office IV
(CSCRO IV) such as, staff working in another government agency, "selling" cases and aiding parties
with pending cases, all done during office hours and involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads and details sufficient
to warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and
divisions involved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its
effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up
the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;

x x x x50
A search by a government employer of an employee’s office is justified at inception when there are
reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-
related misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it
was held that where a government agency’s computer use policy prohibited electronic messages
with pornographic content and in addition expressly provided that employees do not have any
personal privacy rights regarding their use of the agency information systems and technology, the
government employee had no legitimate expectation of privacy as to the use and contents of his
office computer, and therefore evidence found during warrantless search of the computer was
admissible in prosecution for child pornography. In that case, the defendant employee’s computer
hard drive was first remotely examined by a computer information technician after his supervisor
received complaints that he was inaccessible and had copied and distributed non-work-related e-
mail messages throughout the office. When the supervisor confirmed that defendant had used his
computer to access the prohibited websites, in contravention of the express policy of the agency, his
computer tower and floppy disks were taken and examined. A formal administrative investigation
ensued and later search warrants were secured by the police department. The initial remote search
of the hard drive of petitioner’s computer, as well as the subsequent warrantless searches was held
as valid under the O’Connor ruling that a public employer can investigate work-related misconduct
so long as any search is justified at inception and is reasonably related in scope to the
circumstances that justified it in the first place.52

Under the facts obtaining, the search conducted on petitioner’s computer was justified at its
inception and scope. We quote with approval the CSC’s discussion on the reasonableness of its
actions, consistent as it were with the guidelines established by O’Connor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the
mind of the Commission that the search of Pollo’s computer has successfully passed the test of
reasonableness for warrantless searches in the workplace as enunciated in the above-discussed
American authorities. It bears emphasis that the Commission pursued the search in its capacity
as a government employer and that it was undertaken in connection with an investigation
involving a work-related misconduct, one of the circumstances exempted from the warrant
requirement. At the inception of the search, a complaint was received recounting that a certain
division chief in the CSCRO No. IV was "lawyering" for parties having pending cases with the said
regional office or in the Commission. The nature of the imputation was serious, as it was
grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the
practice of "lawyering" for parties with pending cases before the Commission would be a highly
repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast
clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in
the process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of
administrative justice. It is settled that a court or an administrative tribunal must not only be actually
impartial but must be seen to be so, otherwise the general public would not have any trust and
confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast, if only to
arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the
complaint was received, a search was forthwith conducted involving the computer resources in the
concerned regional office. That it was the computers that were subjected to the search was
justified since these furnished the easiest means for an employee to encode and store
documents. Indeed, the computers would be a likely starting point in ferreting out
incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they
could easily be destroyed at a click of a button, necessitated drastic and immediate
action. Pointedly, to impose the need to comply with the probable cause requirement would
invariably defeat the purpose of the wok-related investigation.
Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open
and transparent manner. Officials and some employees of the regional office, who happened to be in
the vicinity, were on hand to observe the process until its completion. In addition, the respondent
himself was duly notified, through text messaging, of the search and the concomitant retrieval of files
from his computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to
Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the
managerial prerogative of the Commission as an employer aimed at ensuring its operational
effectiveness and efficiency by going after the work-related misfeasance of its employees.
Consequently, the evidence derived from the questioned search are deemed admissible.53

Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other
argument invoking the privacy of communication and correspondence under Section 3(1), Article III
of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate
intrusions into the privacy of employees in the government workplace under the aforecited
authorities. We likewise find no merit in his contention that O’Connor and Simons are not relevant
because the present case does not involve a criminal offense like child pornography. As already
mentioned, the search of petitioner’s computer was justified there being reasonable ground for
suspecting that the files stored therein would yield incriminating evidence relevant to the
investigation being conducted by CSC as government employer of such misconduct subject of the
anonymous complaint. This situation clearly falls under the exception to the warrantless requirement
in administrative searches defined in O’Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel
Morales, Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales)
who was investigated on the basis of an anonymous letter alleging that he was consuming his
working hours filing and attending to personal cases, using office supplies, equipment and utilities.
The OCA conducted a spot investigation aided by NBI agents. The team was able to access Atty.
Morales’ personal computer and print two documents stored in its hard drive, which turned out to be
two pleadings, one filed in the CA and another in the RTC of Manila, both in the name of another
lawyer. Atty. Morales’ computer was seized and taken in custody of the OCA but was later ordered
released on his motion, but with order to the MISO to first retrieve the files stored therein. The OCA
disagreed with the report of the Investigating Judge that there was no evidence to support the
charge against Atty. Morales as no one from the OCC personnel who were interviewed would give a
categorical and positive statement affirming the charges against Atty. Morales, along with other court
personnel also charged in the same case. The OCA recommended that Atty. Morales should be
found guilty of gross misconduct. The Court En Banc held that while Atty. Morales may have fallen
short of the exacting standards required of every court employee, the Court cannot use the evidence
obtained from his personal computer against him for it violated his constitutional right against
unreasonable searches and seizures. The Court found no evidence to support the claim of OCA that
they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the latter
immediately filed an administrative case against the persons who conducted the spot investigation,
questioning the validity of the investigation and specifically invoking his constitutional right against
unreasonable search and seizure. And as there is no other evidence, apart from the pleadings,
retrieved from the unduly confiscated personal computer of Atty. Morales, to hold him
administratively liable, the Court had no choice but to dismiss the charges against him for
insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which
involved a personal computer of a court employee, the computer from which the personal files of
herein petitioner were retrieved is a government-issued computer, hence government property the
use of which the CSC has absolute right to regulate and monitor. Such relationship of the petitioner
with the item seized (office computer) and other relevant factors and circumstances under American
Fourth Amendment jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use
Policy, failed to establish that petitioner had a reasonable expectation of privacy in the office
computer assigned to him.

Having determined that the personal files copied from the office computer of petitioner are
admissible in the administrative case against him, we now proceed to the issue of whether the CSC
was correct in finding the petitioner guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded
not only respect but even finality if such findings are supported by substantial evidence. Substantial
evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to
support a conclusion, even if other equally reasonable minds might conceivably opine otherwise.55

The CSC based its findings on evidence consisting of a substantial number of drafts of legal
pleadings and documents stored in his office computer, as well as the sworn affidavits and
testimonies of the witnesses it presented during the formal investigation. According to the CSC,
these documents were confirmed to be similar or exactly the same content-wise with those on the
case records of some cases pending either with CSCRO No. IV, CSC-NCR or the Commission
Proper. There were also substantially similar copies of those pleadings filed with the CA and duly
furnished the Commission. Further, the CSC found the explanation given by petitioner, to the effect
that those files retrieved from his computer hard drive actually belonged to his lawyer friends
Estrellado and Solosa whom he allowed the use of his computer for drafting their pleadings in the
cases they handle, as implausible and doubtful under the circumstances. We hold that the CSC’s
factual finding regarding the authorship of the subject pleadings and misuse of the office computer is
well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of pleadings responding to
the orders, decisions or resolutions of these offices or directly in opposition to them such as a
petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the
author thereof knowingly and willingly participated in the promotion or advancement of the interests
of parties contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved
documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an
inference that the preparation or drafting of the legal pleadings was pursued with less than a
laudable motivation. Whoever was responsible for these documents was simply doing the same for
the money – a "legal mercenary" selling or purveying his expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the
presumption that he was the author thereof. This is because he had a control of the said computer.
More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written
copy of one of the pleadings found in the case records lying on the table of the respondent. This was
the Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said
circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the
Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the documents
were the personal files of some of his friends, including one Attorney Ponciano Solosa, who
incidentally served as his counsel of record during the formal investigation of this case. In fact, Atty.
Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the
respondent was directly rebutted by the prosecution witness, Reyes, who testified that during her
entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent.
Reyes more particularly stated that she worked in close proximity with Pollo and would have known
if Atty. Solosa, whom she personally knows, was using the computer in question. Further, Atty.
Solosa himself was never presented during the formal investigation to confirm his sworn statement
such that the same constitutes self-serving evidence unworthy of weight and credence. The same is
true with the other supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact
that he was unlawfully authorizing private persons to use the computer assigned to him for official
purpose, not only once but several times gauging by the number of pleadings, for ends not in
conformity with the interests of the Commission. He was, in effect, acting as a principal by
indispensable cooperation…Or at the very least, he should be responsible for serious misconduct for
repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for
purposes other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line
appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private
joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not
indicative of anything more sinister. The same is too preposterous to be believed. Why would such a
statement appear in a legal pleading stored in the computer assigned to the respondent, unless he
had something to do with it?56

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous
complaint since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II – Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due
course unless it is in writing and subscribed and sworn to by the complainant. However, in cases
initiated by the proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the
allegation therein or supported by documentary or direct evidence, in which case the person
complained of may be required to comment.

xxxx

We need not belabor this point raised by petitioner. The administrative complaint is deemed to have
been initiated by the CSC itself when Chairperson David, after a spot inspection and search of the
files stored in the hard drive of computers in the two divisions adverted to in the anonymous letter --
as part of the disciplining authority’s own fact-finding investigation and information-gathering -- found
a prima facie case against the petitioner who was then directed to file his comment. As this Court
held in Civil Service Commission v. Court of Appeals57 --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II
of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a
civil service officer or employee by the appropriate disciplining authority, even without being
subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the
complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)

As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant
consideration. The alleged infirmity due to the said memorandum order having been issued solely by
the CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner
Buenaflor is partly anchored, was already explained by Chairperson David in her Reply to the
Addendum to Commissioner Buenaflor’s previous memo expressing his dissent to the actions and
disposition of the Commission in this case. According to Chairperson David, said memorandum
order was in fact exhaustively discussed, provision by provision in the January 23, 2002 Commission
Meeting, attended by her and former Commissioners Erestain, Jr. and Valmores. Hence, the
Commission En Banc at the time saw no need to issue a Resolution for the purpose and further
because the CUP being for internal use of the Commission, the practice had been to issue a
memorandum order.58 Moreover, being an administrative rule that is merely internal in nature, or
which regulates only the personnel of the CSC and not the public, the CUP need not be published
prior to its effectivity.59

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC’s ruling
that petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the
service, and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on
petitioner of the ultimate penalty of dismissal with all its accessory penalties, pursuant to existing
rules and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007
and Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224
are AFFIRMED.

With costs against the petitioner.

SO ORDERED.

WRIT OF AMPARO

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.

DECISION

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 Amparo Petition, to Admit Supporting Affidavits, and to Grant Interim and
Final Amparo Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ
of Amparo under Sec. 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 Amparo Rule and further resolved, viz:

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

On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners
(herein respondents), the dispositive portion of which reads, viz:

ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.

The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF STAFF are
hereby REQUIRED:

1. To furnish to the petitioners and to this Court within five days from notice of this
decision all official and unofficial reports of the investigation undertaken in connection
with their case, except those already on file herein;
 2. To confirm in writing the present places of official assignment of M/Sgt Hilario aka
Rollie Castillo and Donald Caigas within five days from notice of this decision.

3. To cause to be produced to this Court all medical reports, records and charts,
reports of any treatment given or recommended and medicines prescribed, if any, to
the petitioners, to include a list of medical and (sic) personnel (military and civilian)
who attended to them from February 14, 2006 until August 12, 2007 within five days
from notice of this decision.

The compliance with this decision shall be made under the signature and oath of respondent
AFP Chief of Staff or his duly authorized deputy, the 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 their barangay in San Idelfonso, Bulacan. Respondents were not able to attend as they
were not informed of the gathering, but Raymond saw some of the soldiers when he passed by
the barangay hall.11

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

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

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

The van drove off, then came to a stop. A person was brought inside the van and made to sit beside
Raymond. Both of them were beaten up. On the road, he recognized the voice of the person beside
him as his brother 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 that bartolina, including his brother Reynaldo and himself.23

For about three and a half months, the respondents were detained in Fort Magsaysay. They were
kept in a small house with two rooms and a kitchen. One room was made into the bartolina. The
house was near the firing range, helipad and mango trees. At dawn, soldiers marched by their
house. They were also sometimes detained in what he only knew as the "DTU."24
At the DTU, a male doctor came to examine respondents. He checked their body and eyes, took
their urine samples and marked them. When asked how they were feeling, they replied that they had
a hard time urinating, their stomachs were aching, and they felt other pains in their body. The next
day, two ladies in white arrived. They also examined respondents and gave them medicines,
including orasol, amoxicillin and mefenamic acid. They brought with them the results of respondents'
urine test and advised them to drink plenty of water and take their medicine. The two ladies returned
a few more times. Thereafter, medicines were sent through the "master" of the DTU, "Master" Del
Rosario alias Carinyoso at Puti. Respondents were kept in the DTU for about two weeks. While
there, he met a soldier named Efren who said that Gen. Palparan ordered him to monitor and take
care of them.25

One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and several
other armed men wearing fatigue suits, went to a detachment in Pinaud, San Ildefonso, Bulacan.
Respondents were detained for one or two weeks in a big two-storey house. Hilario and Efren
stayed with them. While there, Raymond was beaten up by 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 Amparo Rule and to submit report of such compliance... Likewise, in a
Memorandum Directive also dated October 31, 2007, I have issued a policy directive
addressed to the Chief of Staff, AFP that the AFP should adopt the following rules of action
in the event the Writ of Amparo is issued by a competent court against any members of the
AFP:

(1) to verify the identity of the aggrieved party;

 (2) to recover and preserve evidence related to the death or disappearance of the
person identified in the petition which may aid in the prosecution of the person or
persons responsible;

(3) to identify witnesses and obtain statements from them concerning the death or
disappearance;

(4) to determine the cause, manner, location and time of death or disappearance as
well as any pattern or practice that may have brought about the death or
disappearance;

(5) to identify and apprehend the person or persons involved in the death or
disappearance; and

(6) to bring the suspected offenders before a competent court.49

Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the Return of the
Writ, attesting that he received the above directive of therein respondent Secretary of National
Defense and that acting on this directive, he did the following:

3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have
caused to be issued directive to the units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the recent reappearance of the petitioners.

3.2. I have caused the immediate investigation and submission of the result thereof to Higher
headquarters and/or direct the immediate conduct of the investigation on the matter by the
concerned unit/s, dispatching Radio Message on November 05, 2007, addressed to the
Commanding General, Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO 24 IB
PA). A Copy of the Radio Message is attached as ANNEX "3" of this Affidavit.

3.3. We undertake to provide result of the investigations conducted or to be conducted by the

concerned unit relative to the circumstances of the alleged disappearance of the persons in
whose favor the Writ of Amparo has been sought for as soon as the same has been
furnished Higher headquarters.

3.4. A parallel investigation has been directed to the same units relative to another Petition
for the Writ of Amparo (G.R. No. 179994) filed at the instance of relatives of a certain
Cadapan and 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.86 Other countries like Colombia, Chile,
Germany and Spain, however, have chosen to limit the protection of the writ of Amparo only to some
constitutional guarantees or fundamental rights.87

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

While constitutional rights can be protected under the Grave Abuse Clause through remedies of
injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under
Rule 102,90 these remedies may not be adequate to address the pestering problem of extralegal
killings and enforced disappearances. However, with the swiftness required to resolve a petition for a
writ of Amparo through summary proceedings and the availability of appropriate interim and
permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil law traditions
- borne out of the Latin American and Philippine experience of human rights abuses - offers a better
remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides
rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to
make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will require full and
exhaustive proceedings.91

The writ of Amparo serves both preventive and curative roles in addressing the problem of extralegal
killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in
the commission of these offenses; it is curative in that it facilitates the subsequent punishment of
perpetrators as it will inevitably yield leads to subsequent investigation and action. In the long run,
the goal of both the preventive and curative roles is to deter the further commission of extralegal
killings and enforced disappearances.

In the case at bar, respondents initially filed an action for "Prohibition, Injunction, and Temporary
Restraining Order"92 to stop petitioners and/or their officers and agents from depriving the
respondents of their right to liberty and other basic rights on August 23, 2007,93 prior to the
promulgation of the Amparo Rule. They also sought ancillary remedies including Protective Custody
Orders, Appointment of Commissioner, Inspection and Access Orders and other legal and equitable
remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the
Rules of Court. When the Amparo Rule came into effect on October 24, 2007, they moved to have
their petition treated as an Amparo petition as it would be more effective and suitable to the
circumstances of the Manalo brothers' enforced disappearance. The Court granted their motion.

With this backdrop, we now come to the arguments of the petitioner. Petitioners' first argument in
disputing the Decision of the Court of Appeals states, viz:

The Court of Appeals seriously and grievously erred in believing and giving full faith and
credit to the incredible uncorroborated, contradicted, and obviously scripted, rehearsed and
self-serving affidavit/testimony of herein respondent Raymond Manalo.94

In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners' cause
of action, to determine whether the evidence presented is metal-strong to satisfy the degree of proof
required.

Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz:

Section 1. Petition. - The petition for a writ of Amparo is a remedy available to any person
whose right to life, liberty and security is violated or threatened with 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 by substantial evidence.

xxx xxx xxx

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

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

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

We affirm the factual findings of the appellate court, largely based on respondent Raymond 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 of Amparo." They submit that the Court
ought to give an expansive recognition of the right to security of person in view of the State Policy
under Article II of the 1987 Constitution which enunciates that, "The State values the dignity of every
human person and guarantees full respect for human rights." Finally, to justify a liberal interpretation
of the right to security of person, respondents cite the teaching in Moncupa v. 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, a cause of action. Fear caused by the same stimulus can range from
being baseless to well-founded as people react differently. The degree of fear can vary from one
person to another with the variation of the prolificacy of their imagination, strength of character or
past experience with the stimulus. Thus, in the Amparo context, it is more correct to say that the
"right to security" is actually the "freedom from threat." Viewed in this light, the "threatened with
violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to
security mentioned in the earlier part of the provision.127

Second, the right to security of person is a guarantee of bodily and psychological integrity or
security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, 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,144 involving an assassination attempt on the chairman of an opposition alliance.

Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not
only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the
State to afford protection of the right to liberty.145 The ECHR interpreted the "right to security of
person" under Article 5(1) of the European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.146 In this case, the 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 7th Infantry Division.

The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He
merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians
whom he met in the investigation for the first time. He was present at the investigation when his
subordinate Lingad was taking the sworn statements, but he did not propound a single question to
ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test
the alibis given by the six implicated persons nor for the family or neighbors of the respondents.

In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive
dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the
AFP should adopt rules of action in the event the writ of Amparo is issued by a competent court
against any members of the AFP, which should essentially include verification of the identity of the
aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and
securing statements from them; determination of the cause, manner, location and time of death or
disappearance; identification and apprehension of the person or persons involved in the death or
disappearance; and bringing of the suspected offenders before a competent court.150 Petitioner AFP
Chief of Staff also submitted his own affidavit attesting that he received the above directive of
respondent Secretary of National Defense and that acting on this directive, he immediately caused
to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of
the alleged disappearance and the recent reappearance of the respondents, and undertook to
provide results of the investigations to respondents.151 To this day, however, almost a year after the
policy directive was issued by petitioner Secretary of National Defense on October 31, 2007,
respondents have not been furnished the results of the investigation which they now seek through
the instant petition for a writ of Amparo.

Under these circumstances, there is substantial evidence to warrant the conclusion that there is a
violation of respondents' right to security as a guarantee of protection by the government.
In sum, we conclude that respondents' right to security as "freedom from threat" is violated by the
apparent threat to their life, liberty and security of person. Their right to security as a guarantee of
protection by the government is likewise violated by the ineffective investigation and protection on
the part of the military.

Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question.

First, that petitioners furnish respondents all official and unofficial reports of the
investigation undertaken in connection with their case, except those already in file with the court.

Second, that petitioners confirm in writing the present places of official assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas.

Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records
and charts, and reports of any treatment given or recommended and medicines prescribed, if
any, to the Manalo brothers, to include a list of medical personnel (military and civilian) who
attended to them from February 14, 2006 until August 12, 2007.

With respect to the first and second reliefs, petitioners argue that the production order sought by
respondents partakes of the characteristics of a search warrant. Thus, they claim that the requisites
for the issuance of a search warrant must be complied with prior to the grant of the production order,
namely: (1) the application must be under oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and the things to be seized; (3) there exists probable
cause with one specific offense; and (4) the probable cause must be personally determined by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce.152 In the case at bar, however, petitioners point out that other than the bare, self-serving
and vague allegations made by respondent Raymond Manalo in his unverified declaration and
affidavit, the documents respondents seek to be produced are only mentioned generally by name,
with no other supporting details. They also argue that the relevancy of the documents to be
produced must be apparent, but this is not true in the present case as the involvement of petitioners
in the abduction has not been shown.

Petitioners' arguments do not hold water. The production order under the Amparo Rule should not
be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the demand of the people such
as respondents.

Instead, the Amparo production order may be likened to the production of documents or things under
Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz:

Section 1. Motion for production or inspection order.

Upon motion of any party showing good cause therefor, the court in which an action
is pending may (a) order any party to produce and permit the inspection and copying
or photographing, by or on behalf of the moving party, of any designated documents,
papers, books of accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any matter involved in the
action and which are in his possession, custody or control...

In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under authority of
Rule 27, issued a subpoena duces tecum for the production and inspection of among others, the
books and papers of Material Distributors (Phil.) Inc. The company questioned the issuance of the
subpoena on the ground that it violated the search and seizure clause. The Court struck down the
argument and held that the subpoena pertained to a civil procedure that "cannot be identified or
confused with unreasonable searches prohibited by the Constitution..."

Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to provide results of the
investigations conducted or to be conducted by the concerned unit relative to the circumstances of
the alleged disappearance of the persons in whose favor the Writ of Amparo has been sought for as
soon as the same has been furnished Higher headquarters."

With respect to the second and third reliefs, petitioners assert that the disclosure of the present
places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, as well as the
submission of a list of medical personnel, is irrelevant, improper, immaterial, and unnecessary in the
resolution of the petition for a writ of Amparo. 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.

EN BANC

G.R. No. 182161 December 3, 2009

Reverend Father ROBERT P. REYES, Petitioner,

vs.
RAUL M. GONZALEZ, in his capacity as the secretary of the COURT OF APPEALS, secretary
DEPARTMENT OF JUSTICE, AND COMMISSIONER MARCELINO C. LIBANAN, IN HIS
CAPACITY AS THE COMMISSIONER OF THE BUREAU OF IMMIGRATION, Respondents.

DECISION
LEONARDO-DE CASTRO, J.:

For resolution is the petition for review under Rule 45 of the Rules of Court, assailing the February 4,
2008 Decision1 of the Court of Appeals (CA) in CA-G.R. No. 00011 which dismissed the petition for
the issuance of the writ of amparo under A.M. No. 07-9-12-SC, as amended. It also assails the CA’s
Resolution dated March 25, 2008, denying petitioner’s motion for reconsideration of the aforesaid
February 4, 2008 Decision.

The undisputed facts as found by the CA are as follows:

Petitioner was among those arrested in the Manila Peninsula Hotel siege on November 30, 2007. In
the morning of November 30, 2007, petitioner together with fifty (50) others, were brought to Camp
Crame to await inquest proceedings. In the evening of the same day, the Department of Justice
(DOJ) Panel of Prosecutors, composed of Emmanuel Y. Velasco, Phillip L. Dela Cruz and Aristotle
M. Reyes, conducted inquest proceedings to ascertain whether or not there was probable cause to
hold petitioner and the others for trial on charges of Rebellion and/or Inciting to Rebellion.

On December 1, 2007, upon the request of the Department of Interior and Local Government
(DILG), respondent DOJ Secretary Raul Gonzales issued Hold Departure Order (HDO) No. 45
ordering respondent Commissioner of Immigration to include in the Hold Departure List of the
Bureau of Immigration and Deportation (BID) the name of petitioner and 49 others relative to the
aforementioned case in the interest of national security and public safety.

On December 2, 2007, after finding probable cause against petitioner and 36 others for the crime of
Rebellion under Article 134 of the Revised Penal Code, the DOJ Panel of Prosecutors filed an
Information docketed as I.S. No. 2007-1045 before the Regional Trial Court, Branch 150 of Makati
City.

On December 7, 2007, petitioner filed a Motion for Judicial Determination of Probable Cause and
Release of the Accused Fr. Reyes Upon Recognizance asserting that the DOJ panel failed to
produce any evidence indicating his specific participation in the crime charged; and that under the
Constitution, the determination of probable cause must be made personally by a judge.

On December 13, 2007, the RTC issued an Order dismissing the charge for Rebellion against
petitioner and 17 others for lack of probable cause. The trial court ratiocinated that the evidence
submitted by the DOJ Panel of Investigating Prosecutors failed to show that petitioner and the other
accused-civilians conspired and confederated with the accused-soldiers in taking arms against the
government; that petitioner and other accused-civilians were arrested because they ignored the call
of the police despite the deadline given to them to come out from the 2nd Floor of the Hotel and
submit themselves to the police authorities; that mere presence at the scene of the crime and
expressing one’s sentiments on electoral and political reforms did not make them conspirators
absent concrete evidence that the accused-civilians knew beforehand the intent of the accused-
soldiers to commit rebellion; and that the cooperation which the law penalizes must be one that is
knowingly and intentionally rendered.

On December 18, 2007, petitioner’s counsel Atty. Francisco L. Chavez wrote the DOJ Secretary
requesting the lifting of HDO No. 45 in view of the dismissal of Criminal Case No. 07-3126.

On even date, Secretary Gonzales replied to petitioner’s letter stating that the DOJ could not act on
petitioner’s request until Atty. Chavez’s right to represent petitioner is settled in view of the fact that a
certain Atty. J. V. Bautista representing himself as counsel of petitioner had also written a letter to
the DOJ.
On January 3, 2008, petitioner filed the instant petition claiming that despite the dismissal of the
rebellion case against petitioner, HDO No. 45 still subsists; that on December 19, 2007, petitioner
was held by BID officials at the NAIA as his name is included in the Hold Departure List; that had it
not been for the timely intervention of petitioner’s counsel, petitioner would not have been able to
take his scheduled flight to Hong Kong; that on December 26, 2007, petitioner was able to fly back to
the Philippines from Hong Kong but every time petitioner would present himself at the NAIA for his
flights abroad, he stands to be detained and interrogated by BID officers because of the continued
inclusion of his name in the Hold Departure List; and that the Secretary of Justice has not acted on
his request for the lifting of HDO No. 45. Petitioner further maintained that immediate recourse to the
Supreme Court for the availment of the writ is exigent as the continued restraint on petitioner’s right
to travel is illegal.

On January 24, 2008, respondents represented by the Office of the Solicitor General (OSG) filed the
Return of the Writ raising the following affirmative defenses: 1) that the Secretary of Justice is
authorized to issue Hold Departure Orders under the DOJ Circulars No. 17, Series of 19982 and No.
18 Series of 20073 pursuant to his mandate under the Administrative Code of 1987 as ahead of the
principal law agency of the government; 2) that HDO No. 45 dated December 1, 2007 was issued by
the Sec. Gonzales in the course of the preliminary investigation of the case against herein petitioner
upon the request of the DILG; 3) that the lifting of HDO No. 45 is premature in view of public
respondent’s pending Motion for Reconsideration dated January 3, 2008 filed by the respondents of
the Order dated December 13, 2007 of the RTC dismissing Criminal Case No. 07-3126 for Rebellion
for lack of probable cause; 4) that petitioner failed to exhaust administrative remedies by filing a
motion to lift HDO No. 45 before the DOJ; and 5) that the constitutionality of Circulars No. 17 and 18
can not be attacked collaterally in an amparo proceeding.

During the hearing on January 25, 2008 at 10:00 a.m. at the Paras Hall of the Court of Appeals,
counsels for both parties appeared. Petitioner’s counsel Atty. Francisco Chavez manifested that
petitioner is currently in Hong Kong; that every time petitioner would leave and return to the country,
the immigration officers at the NAIA detain and interrogate him for several minutes because of the
existing HDO; that the power of the DOJ Secretary to issue HDO has no legal basis; and that
petitioner did not file a motion to lift the HDO before the RTC nor the DOJ because to do so would
be tantamount to recognizing the power of the DOJ Secretary to issue HDO.

For respondents’ part, the Office of the Solicitor-General (OSG) maintained that the Secretary of the
DOJ’s power to issue HDO springs from its mandate under the Administrative Code to investigate
and prosecute offenders as the principal law agency of the government; that in its ten-year
existence, the constitutionality of DOJ Circular No. 17 has not been challenged except now; and that
on January 3, 2008, the DOJ Panel of Investigating Prosecutors had filed a Motion for
Reconsideration of the Order of Dismissal of the trial court.

On February 1, 2008, petitioner filed a Manifestation attaching thereto a copy of the Order dated
January 31, 2008 of the trial court denying respondent DOJ’s Motion for Reconsideration for utter
lack of merit. The trial court also observed that the said Motion should be dismissed outright for
being filed out of time. 4

The petition for a writ of amparo is anchored on the ground that respondents violated petitioner’s
constitutional right to travel. Petitioner argues that the DOJ Secretary has no power to issue a Hold
Departure Order (HDO) and the subject HDO No. 45 has no legal basis since Criminal Case No. 07-
3126 has already been dismissed.

On February 4, 2008, the CA rendered the assailed Decision dismissing the petition and denying the
privilege of the writ of amparo.
Petitioner’s Motion for Reconsideration5 thereon was also denied in the assailed Resolution6 dated
March 25, 2008.

Hence, the present petition which is based on the following grounds:

I.

THE DOJ SECRETARY’S ARROGATION OF POWER AND USURPATION OF AUTHORITY TO

ISSUE A HOLD DEPARTURE ORDER CANNOT BE JUSTIFIED THROUGH A RATIONALE THAT
IT HAS SUPPOSEDLY BEEN "REGULARLY EXERCISED IN THE PAST" OR HAS "NEVER BEEN
QUESTIONED (IN THE PAST).

II.

THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO INDEPENDENT OF THAT OF THE
REGIONAL TRIAL COURTS, HENCE, PETITIONER CANNOT MERELY RELY ON THE RESIDUAL
POWER OF THE RTC MAKATI IN CRIMINAL CASE NO. 07-3126 TO ASSAIL SUCH CLAIMED
POWER.

III.

THE UTMOST EXIGENCY OF THE PETITION IS EXEMPLIFIED BY THE CONTINUING ACTUAL

RESTRAINT ON PETITIONER’S RIGHT TO TRAVEL THROUGH THE MAINTENANCE OF HIS
NAME IN THE HDO LIST AND DOES NOT SIMPLY HINGE ON THE QUESTION OF WHETHER
OR NOT PETITIONER WAS ABLE TO TRAVEL DESPITE SUCH A RESTRAINT.

IV.

DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO STATUTORY BASIS FOR THE DOJ
SECRETARY’S CLAIMED POWER TO ISSUE AN HDO FOR IT IS NOT A STATUTE. THE
CIRCULAR ITSELF APPEARS NOT TO BE BASED ON ANY STATUTE, HENCE, IT DOES NOT
HAVE THE FORCE OF LAW AND NEED NOT BE ATTACKED IN A DIRECT PROCEEDING. 7

Petitioner maintains that the writ of amparo does not only exclusively apply to situations of
extrajudicial killings and enforced disappearances but encompasses the whole gamut of liberties
protected by the Constitution. Petitioner argues that "[liberty] includes the right to exist and the right
to be free from arbitrary personal restraint or servitude and includes the right of the citizens to be
free to use his faculties in all lawful ways." Part of the right to liberty guaranteed by the Constitution
is the right of a person to travel.

In their Comment,8 both respondents Secretary Gonzalez and Commissioner Libanan argue that: 1)
HDO No. 45 was validly issued by the Secretary of Justice in accordance with Department of Justice
Circular No. 17, Series of 1998,9 and Circular No. 18, Series of 2007,10 which were issued pursuant
to said Secretary’s mandate under the Administrative Code of 1987, as head of the principal law
agency of the government, to investigate the commission of crimes, prosecute offenders, and
provide immigration regulatory services; and; 2) the issue of the constitutionality of the DOJ
Secretary’s authority to issue hold departure orders under DOJ Circulars Nos. 17 and 18 is not
within the ambit of a writ of amparo.
The case hinges on the issue as to whether or not petitioner’s right to liberty has been violated or
threatened with violation by the issuance of the subject HDO, which would entitle him to the privilege
of the writ of amparo.

The petition must fail.

Section 1 of the Rule on the Writ of Amparo provides:

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

The writ shall cover extralegal killings and enforced disappearances or threats thereof.

The Court, in Secretary of National Defense et al. v. Manalo et al.,11 made a categorical
pronouncement that the Amparo Rule in its present form is confined to these two instances of
"extralegal killings" and "enforced disappearances," or to threats thereof, thus:

x x x 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." 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."12

In Tapuz v. Del Rosario,13 the Court laid down the basic principle regarding the rule on the writ of
amparo as follows:

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 writ 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."14

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. (Emphasis supplied)

Here, petitioner invokes this extraordinary remedy of the writ of amparo for the protection of his right
to travel. He insists that he is entitled to the protection covered by the Rule on the Writ of Amparo
because the HDO is a continuing actual restraint on his right to travel. The Court is thus called upon
to rule whether or not the right to travel is covered by the Rule on the Writ of Amparo.

The rights that fall within the protective mantle of the Writ of Amparo under Section 1 of the Rules
thereon are the following: (1) right to life; (2) right to liberty; and (3) right to security.

In Secretary of National Defense et al. v. Manalo et al.,15 the Court explained the concept of right to
life in this wise:

While the right to life under Article III, Section 1 guarantees essentially the right to be alive- 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." 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."16

The right to liberty, on the other hand, was defined in the City of Manila, et al. v. Hon. Laguio, Jr.,17 in
this manner:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to
exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right
of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare." x x x
Secretary of National Defense et al. v. Manalo et al.18 thoroughly expounded on the import of the
right to security, thus:

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. It is
the "right to security of person" as the word "security" itself means "freedom from fear." Article 3 of
the UDHR provides, viz:

Everyone has the right to life, liberty and security of person.

xxx

The Philippines is a signatory to both the UDHR and the ICCPR.

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

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. 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.

xxx

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. 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. x x x (emphasis supplied) 19

The right to travel refers to the right to move from one place to another.20 As we have stated in
Marcos v. Sandiganbayan,21 "xxx a person’s right to travel is subject to the usual constraints
imposed by the very necessity of safeguarding the system of justice. In such cases, whether the
accused should be permitted to leave the jurisdiction for humanitarian reasons is a matter of the
court’s sound discretion." 22

Here, the restriction on petitioner’s right to travel as a consequence of the pendency of the criminal
case filed against him was not unlawful. Petitioner has also failed to establish that his right to travel
was impaired in the manner and to the extent that it amounted to a serious violation of his right to
life, liberty and security, for which there exists no readily available legal recourse or remedy.

In Canlas et al. v. Napico Homeowners Association I – XIII, Inc. et al.,23 this Court ruled that:

This new remedy of writ of amparo which is made available by this Court is intended for the
protection of the highest possible rights of any person, which is his or her right to life, liberty and
security. The Court will not spare any time or effort on its part in order to give priority to petitions of
this nature. However, the Court will also not waste its precious time and effort on matters not
covered by the writ.

We find the direct recourse to this Court inappropriate, considering the provision of Section 22 of the
Rule on the Writ of Amparo which reads:

Section 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no
separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in
the criminal case. 1avvphi1

The procedure under this Rule shall govern the disposition of the reliefs available under the writ of
amparo.

Pursuant to the aforementioned Section 22, petitioner should have filed with the RTC-Makati a
motion to lift HDO No. 45 in Criminal Case No. 07-3126. Petitioner, however, did not file in the RTC-
Makati a motion to lift the DOJ’s HDO, as his co-accused did in the same criminal case. Petitioner
argues that it was not the RTC-Makati but the DOJ that issued the said HDO, and that it is his
intention not to limit his remedy to the lifting of the HDO but also to question before this Court the
constitutionality of the power of the DOJ Secretary to issue an HDO.24 We quote with approval the
CA’s ruling on this matter:

The said provision [Section 22] is an affirmation by the Supreme Court of its pronouncement in
Crespo v. Mogul25 that once a complaint or information is filed in court, any disposition of the case
such as its dismissal or its continuation rests on the sound discretion of the court. Despite the denial
of respondent’s MR of the dismissal of the case against petitioner, the trial court has not lost control
over Criminal Case No. 07-3126 which is still pending before it. By virtue of its residual power, the
court a quo retains the authority to entertain incidents in the instant case to the exclusion of even this
Court. The relief petitioner seeks which is the lifting of the HDO was and is available by motion in the
criminal case. (Sec. 22, Rule on the Writ of amparo, supra).26

Even in civil cases pending before the trial courts, the Court has no authority to separately and
directly intervene through the writ of amparo, as elucidated in Tapuz v. Del Rosario,27 thus:
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 personal concern 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.

Additionally, petitioner is seeking the extraordinary writ of amparo due to his apprehension that the
DOJ may deny his motion to lift the HDO.28 Petitioner’s apprehension is at best merely speculative.
Thus, he has failed to show any clear threat to his right to liberty actionable through a petition for
a writ of amparo. The absence of an actual controversy also renders it unnecessary for us on this
occasion to pass upon the constitutionality of DOJ Circular No. 17, Series of 1998 (Prescribing Rules
and Regulations Governing the Issuance of Hold Departure Orders); and Circular No. 18, Series of
2007 (Prescribing Rules and Regulations Governing the Issuance and Implementation of Watchlist
Orders and for Other Purposes).

WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA dated February 4, 2008
in CA-G.R. No. 00011 is hereby AFFIRMED.

SO ORDERED.

EN BANC

G.R. No. 191805 November 15, 2011

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN
FAVOR OF NORIEL H. RODRIGUEZ, NORIEL H. RODRIGUEZ, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME VERSOZA, LT.
GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO,
P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT.
COL. MINA, CALOG, GEORGE PALACPAC under the name "HARRY," ANTONIO CRUZ,
ALDWIN "BONG" PASICOLAN and VINCENT CALLAGAN, Respondents.

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

G.R. No. 193160

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN
FAVOR OF NORIEL H. RODRIGUEZ, POLICE DIR. GEN. JESUS A. VERSOZA, P/SSUPT. JUDE
W. SANTOS, BGEN. REMEGIO M. DE VERA, 1st LT. RYAN S. MATUTINA, LT. COL.
LAURENCE E. MINA, ANTONIO C. CRUZ, ALDWIN C. PASICOLAN and VICENTE A.
CALLAGAN, Petitioners,
vs.
NORIEL H. RODRIGUEZ, Respondent.
 DECISION

SERENO, J.:

Before this Court are two consolidated cases, namely, (1) Petition for Partial Review on Certiorari
dated 20 April 2010 (G.R. No. 191805), and (2) Petition for Review on Certiorari dated 19 August
2010 (G.R. No. 193160).1 Both Petitions assail the 12 April 2010 Decision of the Court of Appeals,
the dispositive portion of which reads:

WHEREFORE, the petition for writ of amparo and writ of habeas data is GRANTED.

Respondents Gen. Victor S. Ibrado, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Z. Ochoa, PCSupt.
Ameto G. Tolentino, PSSupt. Jude W. Santos, Col. Remigio M. De Vera, Lt. Col. Laurence E. Mina
and 1Lt. Ryan S. Matutina, or their replacements in their official posts if they have already vacated
the same, are ORDERED to furnish this Court within five (5) days from notice of this decision, official
or unofficial reports pertaining to petitioner – covering but not limited to intelligence reports,
operation reports and provost marshal reports prior to, during and subsequent to September 6, 2009
– made by the 5th Infantry Division, Philippine Army, its branches and subsidiaries, including the
17th Infantry Battalion, Philippine Army.

The above-named respondents are also DIRECTED to refrain from using the said reports in any
transaction or operation of the military. Necessarily, the afore-named respondents are ORDERED to
expunge from the records of the military all documents having any reference to petitioner.

Likewise, the afore-named respondents, as well as respondents Police Director General Jesus Ame
Versoza, Antonio Cruz, Aldwin Pasicolan and Vicente Callagan are DIRECTED to ensure that no
further violation of petitioner’s rights to life, liberty and security is committed against the latter or any
member of his family.

The petition is DISMISSED with respect to President Gloria Macapagal-Arroyo on account of her
presidential immunity from suit. Similarly, the petition is DISMISSED with respect to respondents
Calog and George Palacpac or Harry for lack of merit.

Petitioner’s prayer for issuance of a temporary protection order and inspection order is DENIED.

Noriel Rodriguez (Rodriguez) is petitioner in G.R. No. 191805 and respondent in G.R. No. 193160.
He is a member of Alyansa Dagiti Mannalon Iti Cagayan (Kagimungan), a peasant organization
affiliated with Kilusang Magbubukid ng Pilipinas (KMP).

On the other hand, Gloria Macapagal-Arroyo (former President Arroyo), Police Director General
(PDG.) Jesus A. Verzosa, Police Senior Superintendent (P/SSupt.) Jude W. Santos, Brigadier
General (Brig. Gen.) Remegio M. De Vera, First Lieutenant (1st Lt.) Ryan S. Matutina, Lieutenant
Colonel (Lt. Col.) Laurence E. Mina, Antonio C. Cruz (Cruz), Aldwin C. Pasicolan (Pasicolan) and
Vicente A. Callagan (Callagan) are respondents in G.R. No. 191805 and petitioners in G.R. No.
193160. At the time the events relevant to the present Petitions occurred, former President Arroyo
was the President of the Philippines. PDG. Verzosa, P/SSupt. Santos, Brig. Gen. De Vera, 1st Lt.
Matutina and Lt. Col. Mina were officers of the Philippine National Police (PNP). Cruz, Pasicolan and
Callagan were Special Investigators of the Commission on Human Rights (CHR) in Region II.

Antecedent Facts
Rodriguez claims that the military tagged KMP as an enemy of the State under the Oplan Bantay
Laya, making its members targets of extrajudicial killings and enforced disappearances.2

On 6 September 2009, at 5:00 p.m., Rodriguez had just reached Barangay Tapel, Cagayan onboard
a tricycle driven by Hermie Antonio Carlos (Carlos), when four men forcibly took him and forced him
into a car. Inside the vehicle were several men in civilian clothes, one of whom was holding a .45
caliber pistol. Subsequently, three more persons arrived, and one of them carried a gun at his side.
Two men boarded the car, while the others rode on the tricycle.3

The men tied the hands of Rodriguez, ordered him to lie on his stomach, sat on his back and started
punching him. The car travelled towards the direction of Sta. Teresita-Mission and moved around the
area until about 2:00 a.m. During the drive, the men forced Rodriguez to confess to being a member
of the New People’s Army (NPA), but he remained silent. The car then entered a place that
appeared to be a military camp. There were soldiers all over the area, and there was a banner with
the word "Bravo" written on it. Rodriguez later on learned that the camp belonged to the 17th Infantry
Battalion of the Philippine Army.4

Rodriguez was brought to a canteen, where six men confronted him, ordering him to confess to his
membership in the NPA. Due to his exhaustion, he unintentionally fell asleep. As a result, the men
hit him on the head to wake him up. After the interrogation, two of the men guarded him, but did not
allow him to sleep.5

In the morning of 7 September 2009, the men tied the hands of Rodriguez, blindfolded him and
made him board a vehicle. While they were in transit, the soldiers repeatedly hit him in the head and
threatened to kill him. When the car stopped after about ten minutes, the soldiers brought him to a
room, removed his blindfold, and forced him to confess to being a member of the NPA. During the
interrogation, the soldiers repeatedly hit him on the head. Thereafter, he was detained inside the
room for the entire day. The soldiers tied his stomach to a papag, and gave him rice and viand.
Fearing that the food might be poisoned, he refused to eat anything. He slept on the papag while
being tied to it at the waist.6

On 8 September 2009, the men forced Rodriguez into a vehicle, which brought them to Bugey and
Mission. While passing houses along the way, the men asked him if his contacts lived in those
houses. When he failed to answer, a soldier pointed a gun to his head and threatened to kill him and
his family. Because he remained silent, the soldiers beat him and tied him up. The vehicle returned
to the military camp at past 1:00 p.m., where he was again subjected to tactical interrogation about
the location of an NPA camp and his alleged NPA comrades. He suffered incessant mauling every
time he failed to answer.7

At dawn on 9 September 2009, soldiers armed with rifles took Rodriguez and made him their guide
on their way to an NPA camp in Birao. Accompanying them was a man named Harry, who,
according to the soldiers, was an NPA member who had surrendered to the military. Harry pointed to
Rodriguez and called him a member of the NPA. He also heard Harry tell the soldiers that the latter
knew the area well and was acquainted with a man named Elvis. The soldiers loaded Rodriguez into
a military truck and drove to Tabbak, Bugey. While he was walking with the soldiers, he noticed a
soldier with the name tag "Matutina," who appeared to be an official because the other soldiers
addressed him as "sir."8

Upon reaching Birao on foot, the soldiers looked for and was able to locate a certain Elvis and told
him that Rodriguez had identified his whereabouts location. The soldiers forced Rodriguez to
convince Elvis to disclose the location of the NPA camp. They brought the two to the mountains,
where both were threatened with death. When the soldiers punched Elvis, Rodriguez told them that
he would reveal the location of the NPA camp if they let Elvis go home. They finally released Elvis
around 3:00 p.m. that day. The soldiers and Rodriguez spent the next three nights in the mountains.9

On 12 September 2009, the soldiers again hit Rodriguez and forced him to identify the location of
the NPA camp. He was blindfolded and warned to get ready because they would beat him up again
in the military camp. Upon arrival therein, they brought him to the same room where he had first
been detained, and two soldiers mauled him again. They repeatedly punched and kicked him. In the
afternoon, they let him rest and gave him an Alaxan tablet. Thereafter, he fell asleep due to over-
fatigue and extreme body pain. The soldiers, however, hit him again. After giving him a pen and a
piece of paper, they ordered him to write down his request for rice from the people. When he
refused, the soldiers maltreated him once more.10

On 13 September 2009, the soldiers forced Rodriguez to sign documents declaring that he had
surrendered in an encounter in Cumao, and

that the soldiers did not shoot him because he became a military asset in May. When he refused to
sign the document, he received another beating. Thus, he was compelled to sign, but did so using a
different signature to show that he was merely coerced.11

The soldiers showed Rodriguez photographs of different persons and asked him if he knew the men
appearing therein. When he told them that he did not recognize the individuals on the photos, the
soldiers instructed him to write down the name of his school and organization, but he declined. The
soldiers then wrote something on the paper, making it appear that he was the one who had written it,
and forced him to sign the document. The soldiers took photographs of him while he was signing.
Afterwards, the soldiers forced him down, held his hands, and sat on his feet. He did not only receive
another beating, but was also electrocuted. The torture lasted for about an hour.12

At 11:00 p.m. on 15 September 2009, the soldiers brought Rodriguez to a military operation in the
mountains, where he saw Matutina again. They all spent the night there.13

In the morning of 16 September 2009, the soldiers and Rodriguez started their descent. When they
stopped, the soldiers took his photograph and asked him to name the location of the NPA camp.
Thereafter, they all returned to the military camp. The soldiers asked him to take a bath and wear a
white polo shirt handed to him. He was then brought to the Enrile Medical Center, where Dr. Juliet
Ramil (Dr. Ramil) examined him.14 When the doctor asked him why he had bruises and contusions,
he lied and told her that he sustained them when he slipped, as he noticed a soldier observing him.
Dr. Ramil’s medical certificate indicated that he suffered from four hematomas in the epigastric area,
chest and sternum.15

Back at the camp, the soldiers let Rodriguez eat with several military officials and took pictures of
him while he was eating with them. They also asked him to point to a map in front of him and again
took his photograph. Later, they told him that he would finally see his mother. 16

Rodriguez was brought to another military camp, where he was ordered to sign a piece of paper
stating that he was a surrenderee and was never beaten up. Scared and desperate to end his
ordeal, he signed the paper and was warned not to report anything to the media.17

Around 6:00 a.m. on 17 September 2009, the soldiers instructed petitioner to take a bath. They gave
him a pair of jeans and perfume. While he was having breakfast, the two soldiers guarding him
repeatedly reminded him not to disclose to the media his experience in the camp and to say instead
that he had surrendered to the military.18
At 9:00 a.m. on the same day, the mother and the brother of Rodriguez arrived surrounded by
several men. His mother, Wilma Rodriguez (Wilma), talked to Lt. Col. Mina. Rodriguez heard one of
the soldiers tell Wilma that he had surrendered to the military and had long been its asset. His
brother, Rodel Rodriguez (Rodel), informed him that the men accompanying them were from the
CHR, namely, Pasicolan, Cruz and Callagan. Upon seeing Rodriguez, Cruz instructed him to lift up
his shirt, and one of the CHR employees took photographs of his bruises.19

A soldier tried to convince Wilma to let Rodriguez stay in the camp for another two weeks to
supposedly prevent the NPA from taking revenge on him. Respondent Calog also approached
Rodriguez and Rodel and asked them to become military assets. Rodel refused and insisted that
they take Rodriguez home to Manila. Again, the soldiers reminded them to refrain from facing the
media. The soldiers also told them that the latter will be taken to the Tuguegarao Airport and
guarded until they reached home.20

Rodriguez and his family missed their flight. Subsequently, the soldiers accompanied them to the
CHR office, where Rodriguez was made to sign an affidavit stating that he was neither abducted nor
tortured. Afraid and desperate to return home, he was forced to sign the document. Cruz advised
him not to file a case against his abductors because they had already freed him. The CHR personnel
then led him and his family to the CHR Toyota Tamaraw FX service vehicle. He noticed that a
vehicle with soldiers on board followed them.21

The Tamaraw FX pulled over and respondent 1st Lt. Matutina boarded the vehicle. Upon reaching a
mall in Isabela, Rodriguez, his family, Callagan, 1st Lt. Matutina and two other soldiers transferred to
an orange Toyota Revo with plate number WTG 579. Upon reaching the boundary of Nueva Ecija
and Nueva Viscaya, 1st Lt. Matutina alighted and called Rodriguez to a diner. A certain Alan
approached Rodriguez and handed him a cellphone with a SIM card. The latter and his family then
left and resumed their journey back home.22

Rodriguez reached his house in Sta. Ana, Manila at 3:00 a.m. on 18 September 2010. Callagan and
two soldiers went inside the house, and took photographs and a video footage thereof. The soldiers
explained that the photos and videos would serve as evidence of the fact that Rodriguez and his
family were able to arrive home safely. Despite Rodriguez’s efforts to confront the soldiers about
their acts, they still continued and only left thirty minutes later.23

On 19 September 2009, Dr. Reginaldo Pamugas, a physician trained by the International Committee
on Torture and Rehabilitation, examined Rodriguez and issued a Medical Certificate stating that the
latter had been a victim of torture.24

Around 7:00 a.m. on 3 November 2010, Rodriguez and his girlfriend, Aileen Hazel Robles, noticed
that several suspicious-looking men followed them at the Metro Rail Transit (MRT), in the streets
and on a jeepney.25

On 7 December 2009, Rodriguez filed before this Court a Petition for the Writ of Amparo and Petition
for the Writ of Habeas Data with Prayers for Protection Orders, Inspection of Place, and Production
of Documents and Personal Properties dated 2 December 2009.26 The petition was filed against
former President Arroyo, Gen. Ibrado, PDG. Versoza, Lt. Gen. Bangit, Major General (Maj. Gen.)
Nestor Z. Ochoa, P/CSupt. Tolentino, P/SSupt. Santos, Col. De Vera, 1st Lt. Matutina, Calog,
George Palacpac (Palacpac), Cruz, Pasicolan and Callagan. The petition prayed for the following
reliefs:

a. The issuance of the writ of amparo ordering respondents to desist from violating
Rodriguez’s right to life, liberty and security.
 b. The issuance of an order to enjoin respondents from doing harm to or approaching
Rodriguez, his family and his witnesses.

c. Allowing the inspection of the detention areas of the Headquarters of Bravo Co., 5th
Infantry Division, Maguing, Gonzaga, Cagayan and another place near where Rodriguez was
brought.

d. Ordering respondents to produce documents submitted to them regarding any report on

Rodriguez, including operation reports and provost marshall reports of the 5th Infantry
Division, the Special Operations Group of the Armed Forces of the Philippines (AFP), prior
to, on and subsequent to 6 September 2009. 1âwphi1

e. Ordering records pertinent or in any way connected to Rodriguez, which are in the custody
of respondents, to be expunged, disabused, and forever barred from being used.27

On 15 December 2009, we granted the respective writs after finding that the petition sufficiently
alleged that Rodriguez had been abducted, tortured and later released by members of the 17th
Infantry Battalion of the Philippine Army.28 We likewise ordered respondents therein to file a verified
return on the writs on or before 22 December 2009 and to comment on the petition on or before 4
January 2010.29 Finally, we directed the Court of Appeals to hear the petition on 4 January 2010 and
decide on the case within 10 days after its submission for decision.30

During the initial hearing on 4 January 2010, the Court of Appeals required the parties to submit
affidavits and other pieces of evidence at the next scheduled hearing on 27 January 2010.31

On 8 January 2010, respondents therein, through the Office of the Solicitor General (OSG), filed
their Return of the Writ, which was likewise considered as their comment on the petition.32 In their
Return, respondents therein alleged that Rodriguez had surrendered to the military on 28 May 2009
after he had been put under surveillance and identified as "Ka Pepito" by former rebels.33 According
to his military handlers, Corporal (Cpl.) Rodel

B. Cabaccan and Cpl. Julius P. Navarro, Rodriguez was a former member of the NPA operating in
Cagayan Valley.34 Wanting to bolt from the NPA, he told Cpl. Cabaccan and Cpl. Navarro that he
would help the military in exchange for his protection.35

Upon his voluntary surrender on 28 May 2009, Rodriguez was made to sign an Oath of Loyalty and
an Agent’s Agreement/Contract, showing his willingness to return to society and become a military
asset.36 Since then, he acted as a double agent, returning to the NPA to gather
information.37 However, he feared that his NPA comrades were beginning to suspect him of being an
infiltrator.38 Thus, with his knowledge and consent, the soldiers planned to stage a sham abduction to
erase any suspicion about him being a double agent.39 Hence, the abduction subject of the instant
petition was conducted.40

Meanwhile, Cruz, Pasicolan and Callagan filed a Consolidated Return of the Writ dated 15 January
2010,41 alleging that they had exercised extraordinary diligence in locating Rodriguez, facilitating his
safe turnover to his family and securing their journey back home to Manila. More specifically, they
alleged that, on 16 September 2009, after Wilma sought their assistance in ascertaining the
whereabouts of her son, Cruz made phone calls to the military and law enforcement agencies to
determine his location.42 Cruz was able to speak with Lt. Col. Mina, who confirmed that Rodriguez
was in their custody.43 This information was transmitted to CHR Regional Director Atty. Jimmy P.
Baliga. He, in turn, ordered Cruz, Pasicolan and Callagan to accompany Wilma to the 17th Infantry
Division.44
When the CHR officers, along with Wilma and Rodel, arrived at the 17th Infantry Battalion at Masin,
Alcala, Cagayan, Brigade Commander Col. de Vera and Battalion Commander Lt. Col. Mina alleged
that Rodriguez had become one of their assets, as evidenced by the Summary on the Surrender of
Noriel Rodriguez and the latter’s Contract as Agent.45 The CHR officers observed his casual and
cordial demeanor with the soldiers.46 In any case, Cruz asked him to raise his shirt to see if he had
been subjected to any maltreatment. Cruz and Pasicolan did not see any traces of torture.
Thereafter, Rodriguez was released to his family, and they were made to sign a certification to this
effect. During the signing of the document, herein CHR officers did not witness any threat,
intimidation or force employed against Rodriguez or his family. 47

During their journey back to the home of Rodriguez, the CHR officers observed that he was very
much at ease with his military escorts, especially with 1st Lt. Matutina.48 Neither was there any force
or intimidation when the soldiers took pictures of his house, as the taking of photographs was
performed with Wilma’s consent.49

During the hearing on 27 January 2010, the parties agreed to file additional affidavits and position
papers and to have the case considered submitted for decision after the filing of these pleadings.50

On 12 April 2010, the Court of Appeals rendered its assailed Decision.51 Subsequently, on 28 April
2010, respondents therein filed their Motion for Reconsideration.52 Before the Court of Appeals could
resolve this Motion for Reconsideration, Rodriguez filed the instant Petition for Partial Review on
Certiorari (G.R. No. 191805), raising the following assignment of errors:

a. The Court of Appeals erred in not granting the Interim Relief for temporary protection
order.

b. The Court of Appeals erred in saying: "(H)owever, given the nature of the writ of amparo,
which has the effect of enjoining the commission by respondents of violation to petitioner’s
right to life, liberty and security, the safety of petitioner is ensured with the issuance of the
writ, even in the absence of an order preventing respondent from approaching petitioner."

c. The Court of Appeals erred in not finding that respondent Gloria Macapagal Arroyo had
command responsibility.53

On the other hand, respondents therein, in their Comment dated 30 July 2010, averred:

a. The Court of Appeals properly dropped then President Gloria Macapagal Arroyo as a
party-respondent, as she may not be sued in any case during her tenure of office or actual
incumbency.

b. Petitioner had not presented any adequate and competent evidence, much less
substantial evidence, to establish his claim that public respondents had violated, were
violating or threatening to violate his rights to life, liberty and security, as well as his right to
privacy. Hence, he was not entitled to the privilege of the writs of amparo and habeas data or
to the corresponding interim reliefs (i.e. inspection order, production order and temporary
protection order) provided under the rule on the writ of amparo and the rule on the writ of
habeas data.54

On 19 August 2010, PDG. Verzosa, P/SSupt. Santos, BGen. De Vera, 1st Lt. Matutina, Lt. Col.
Mina, Cruz, Pasicolan and Callagan filed a Petition for Review on Certiorari, seeking the reversal of
the 12 April 2010 Decision of the Court of Appeals.55 They alleged that Rodriguez –
Has not presented any adequate and competent evidence, must less substantial evidence, to
establish his claim that petitioners have violated, are violating or threatening with violation his rights
to life, liberty and security, as well as his right to privacy; hence, he is not entitled to the privilege of
the writs of amparo and habeas data and their corresponding interim reliefs (i.e., inspection order,
production order and temporary protection order) provided under the Rule on the Writ of Amparo and
the Rule on the Writ of Habeas Data.56

In ascertaining whether the Court of Appeals committed reversible error in issuing its assailed
Decision and Resolution, the following issues must be resolved:

I. Whether the interim reliefs prayed for by Rodriguez may be granted after the writs of
amparo and habeas data have already been issued in his favor.

II. Whether former President Arroyo should be dropped as a respondent on the basis of the
presidential immunity from suit.

III. Whether the doctrine of command responsibility can be used in amparo and habeas data
cases.

IV. Whether the rights to life, liberty and property of Rodriguez were violated or threatened by
respondents in G.R. No. 191805.

At the outset, it must be emphasized that the writs of amparo and habeas data were promulgated to
ensure the protection of the people’s rights to life, liberty and security.57 The rules on these writs
were issued in light of the alarming prevalence of extrajudicial killings and enforced
disappearances.58 The Rule on the Writ of Amparo took effect on 24 October 2007,59 and the Rule
on the Writ of Habeas Data on 2 February 2008.60

The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief, as
it partakes of a summary proceeding that requires only substantial evidence to make the appropriate
interim and permanent reliefs available to the petitioner.61 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.62 Rather, it serves both preventive and curative roles in addressing the
problem of extrajudicial killings and enforced disappearances.63 It is preventive in that it breaks the
expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the
subsequent punishment of perpetrators by inevitably leading to subsequent investigation and
action.64

Meanwhile, the writ of habeas data provides a judicial remedy to protect a person’s right to control
information regarding oneself, particularly in instances where such information is being collected
through unlawful means in order to achieve unlawful ends.65 As an independent and summary
remedy to protect the right to privacy – especially the right to informational privacy66 – the
proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or
administrative culpability. If the allegations in the petition are proven through substantial evidence,
then the Court may (a) grant access to the database or information; (b) enjoin the act complained of;
or (c) in case the database or information contains erroneous data or information, order its deletion,
destruction or rectification.67

First issue: Grant of interim reliefs

In the petition in G.R. No. 191805, Rodriguez prays for the issuance of a temporary protection order.
It must be underscored that this interim relief is only available before final judgment. Section 14 of
the Rule on the Writ of Amparo clearly provides:

Interim Reliefs. – Upon filing of the petition or at anytime before final judgment, the court, justice or
judge may grant any of the following reliefs:

Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio, may order
that the petitioner or the aggrieved party and any member of the immediate family be protected in a
government agency or by an accredited person or private institution capable of keeping and securing
their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of
this Rule, the protection may be extended to the officers involved.

The Supreme Court shall accredit the persons and private institutions that shall extend temporary
protection to the petitioner or the aggrieved party and any member of the immediate family, in
accordance with guidelines which it shall issue.

The accredited persons and private institutions shall comply with the rules and conditions that may
be imposed by the court, justice or judge.

(a) Inspection Order. – The court, justice or judge, upon verified motion and after due hearing, may
order any person in possession or control of a designated land or other property, to permit entry for
the purpose of inspecting, measuring, surveying, or photographing the property or any relevant
object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits
or testimonies of witnesses having personal knowledge of the enforced disappearance or
whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the
information, the court, justice or judge may conduct a hearing in chambers to determine the merit of
the opposition.

The movant must show that the inspection order is necessary to establish the right of the aggrieved
party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized to make the inspection and the
date, time, place and manner of making the inspection and may prescribe other conditions to protect
the constitutional rights of all parties. The order shall expire five (5) days after the date of its
issuance, unless extended for justifiable reasons.

(b) Production Order. – The court, justice, or judge, upon verified motion and after due hearing, may
order any person in possession, custody or control of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form,
which constitute or contain evidence relevant to the petition or the return, to produce and permit their
inspection, copying or photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or of the privileged nature of the
information, in which case the court, justice or judge may conduct a hearing in chambers to
determine the merit of the opposition.
The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all
the parties.

(c) Witness Protection Order. – The court, justice or judge, upon motion or motu proprio, may refer
the witnesses to the Department of Justice for admission to the Witness Protection, Security and
Benefit Program, pursuant to Republic Act No. 6981.

The court, justice or judge may also refer the witnesses to other government agencies, or to
accredited persons or private institutions capable of keeping and securing their safety. (Emphasis
supplied)

We held in Yano v. Sanchez68 that "[t]hese provisional reliefs are intended to assist the court before
it arrives at a judicious determination of the amparo petition." Being interim reliefs, they can only be
granted before a final adjudication of the case is made. In any case, it must be underscored that the
privilege of the writ of amparo, once granted, necessarily entails the protection of the aggrieved
party. Thus, since we grant petitioner the privilege of the writ of amparo, there is no need to issue a
temporary protection order independently of the former. The order restricting respondents from going
near Rodriguez is subsumed under the privilege of the writ.

Second issue: Presidential immunity from suit

It bears stressing that since there is no determination of administrative, civil or criminal liability in
amparo and habeas data proceedings, courts can only go as far as ascertaining responsibility or
accountability for the enforced disappearance or extrajudicial killing. As we held in Razon v. Tagitis:69

It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it
determines responsibility, or at least accountability, for the enforced disappearance for purposes of
imposing the appropriate remedies to address the disappearance. Responsibility refers to the extent
the actors have been established by substantial evidence to have participated in whatever way, by
action or omission, in an enforced disappearance, as a measure of the remedies this Court shall
craft, among them, the directive to file the appropriate criminal and civil cases against the
responsible parties in the proper courts. Accountability, on the other hand, refers to the measure of
remedies that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of responsibility defined
above; or who are imputed with knowledge relating to the enforced disappearance and who carry the
burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced disappearance. In all these cases, the issuance of the
Writ of Amparo is justified by our primary goal of addressing the disappearance, so that the life of the
victim is preserved and his liberty and security are restored.70 (Emphasis supplied.)

Thus, in the case at bar, the Court of Appeals, in its Decision71 found respondents in G.R. No.
191805 – with the exception of Calog, Palacpac or Harry – to be accountable for the violations of
Rodriguez’s right to life, liberty and security committed by the 17th Infantry Battalion, 5th Infantry
Division of the Philippine Army. 72 The Court of Appeals dismissed the petition with respect to former
President Arroyo on account of her presidential immunity from suit. Rodriguez contends, though, that
she should remain a respondent in this case to enable the courts to determine whether she is
responsible or accountable therefor. In this regard, it must be clarified that the Court of Appeals’
rationale for dropping her from the list of respondents no longer stands since her presidential
immunity is limited only to her incumbency.

In Estrada v. Desierto,73 we clarified the doctrine that a non-sitting President does not enjoy immunity
from suit, even for acts committed during the latter’s tenure. We emphasize our ruling therein that
courts should look with disfavor upon the presidential privilege of immunity, especially when it
impedes the search for truth or impairs the vindication of a right, to wit:

We reject [Estrada’s] argument that he cannot be prosecuted for the reason that he must first be
convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted
by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on
February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment
Court is Functus Officio." Since the Impeachment Court is now functus officio, it is untenable for
petitioner to demand that he should first be impeached and then convicted before he can be
prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a
submission has nothing to commend itself for it will place him in a better situation than a non-sitting
President who has not been subjected to impeachment proceedings and yet can be the object of a
criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that
when impeachment proceedings have become moot due to the resignation of the President, the
proper criminal and civil cases may already be filed against him, viz:

"x x x xxx xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President,
for example, and the President resigns before judgment of conviction has been rendered by the
impeachment court or by the body, how does it affect the impeachment proceeding? Will it be
necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the criminal
and civil aspects of it may continue in the ordinary courts."

This is in accord with our ruling in In Re: Saturnino Bermudez that "incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure"
but not beyond. xxx

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery
and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any other trespasser.

Indeed, a critical reading of current literature on executive immunity will reveal a judicial
disinclination to expand the privilege especially when it impedes the search for truth or impairs the
vindication of a right. In the 1974 case of US v. Nixon, US President Richard Nixon, a sitting
President, was subpoenaed to produce certain recordings and documents relating to his
conversations with aids and advisers. Seven advisers of President Nixon's associates were facing
charges of conspiracy to obstruct justice and other offenses which were committed in a burglary of
the Democratic National Headquarters in Washington's Watergate Hotel during the 1972 presidential
campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon moved
to quash the subpoena on the ground, among others, that the President was not subject to judicial
process and that he should first be impeached and removed from office before he could be made
amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded
that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal
trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental
demands of due process of law in the fair administration of criminal justice." In the 1982 case of
Nixon v. Fitzgerald, the US Supreme Court further held that the immunity of the President from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones where it held that the US President's immunity from suits
for money damages arising out of their official acts is inapplicable to unofficial conduct.74 (Emphasis
supplied)

Further, in our Resolution in Estrada v. Desierto,75 we reiterated that the presidential immunity from
suit exists only in concurrence with the president’s incumbency:

Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His
arguments are merely recycled and we need not prolong the longevity of the debate on the subject.
In our Decision, we exhaustively traced the origin of executive immunity in our jurisdiction and its
bends and turns up to the present time. We held that given the intent of the 1987 Constitution to
breathe life to the policy that a public office is a public trust, the petitioner, as a non-sitting President,
cannot claim executive immunity for his alleged criminal acts committed while a sitting President.
Petitioner's rehashed arguments including their thinly disguised new spins are based on the rejected
contention that he is still President, albeit, a President on leave. His stance that his immunity covers
his entire term of office or until June 30, 2004 disregards the reality that he has relinquished the
presidency and there is now a new de jure President.

Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from suit
during his term of office. He buttresses his position with the deliberations of the Constitutional
Commission, viz:

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner Nolledo that the Committee did very well in
striking out this second sentence, at the very least, of the original provision on immunity from suit
under the 1973 Constitution. But would the Committee members not agree to a restoration of at least
the first sentence that the president shall be immune from suit during his tenure, considering that if
we do not provide him that kind of an immunity, he might be spending all his time facing litigations,
as the President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas:

The reason for the omission is that we consider it understood in present jurisprudence that during his
tenure he is immune from suit.

Mr. Suarez:

So there is no need to express it here.

Fr. Bernas:

There is no need. It was that way before. The only innovation made by the 1973 Constitution was to
make that explicit and to add other things.
Mr. Suarez:

On the understanding, I will not press for any more query, madam President.

I thank the Commissioner for the clarification."

Petitioner, however, fails to distinguish between term and tenure. The term means the time during
which the officer may claim to hold the office as of right, and fixes the interval after which the several
incumbents shall succeed one another. The tenure represents the term during which the incumbent
actually holds office. The tenure may be shorter than the term for reasons within or beyond the
power of the incumbent. From the deliberations, the intent of the framers is clear that the immunity of
the president from suit is concurrent only with his tenure and not his term.76 (Emphasis supplied)

Applying the foregoing rationale to the case at bar, it is clear that former President Arroyo cannot
use the presidential immunity from suit to shield herself from judicial scrutiny that would assess
whether, within the context of amparo proceedings, she was responsible or accountable for the
abduction of Rodriguez.

Third issue: Command responsibility in amparo proceedings

To attribute responsibility or accountability to former President Arroyo, Rodriguez contends that the
doctrine of command responsibility may be applied. As we explained in Rubrico v.
Arroyo,77 command responsibility pertains to the "responsibility of commanders for crimes committed
by subordinate members of the armed forces or other persons subject to their control in international
wars or domestic conflict."78 Although originally used for ascertaining criminal complicity, the
command responsibility doctrine has also found application in civil cases for human rights
abuses.79 In the United States, for example, command responsibility was used in Ford v.
Garcia and Romagoza v. Garcia – civil actions filed under the Alien Tort Claims Act and the Torture
Victim Protection Act.80 This development in the use of command responsibility in civil proceedings
shows that the application of this doctrine has been liberally extended even to cases not criminal in
nature. Thus, it is our view that command responsibility may likewise find application in proceedings
seeking the privilege of the writ of amparo. As we held in Rubrico:

It may plausibly be contended that command responsibility, as legal basis to hold military/police
commanders liable for extra-legal killings, enforced disappearances, or threats, may be made
applicable to this jurisdiction on the theory that the command responsibility doctrine now constitutes
a principle of international law or customary international law in accordance with the incorporation
clause of the Constitution.

xxx xxx xxx

If command responsibility were to be invoked and applied to these proceedings, it should, at most,
be only to determine the author who, at the first instance, is accountable for, and has the duty to
address, the disappearance and harassments complained of, so as to enable the Court to devise
remedial measures that may be appropriate under the premises to protect rights covered by the writ
of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal
liability on respondents preparatory to criminal prosecution, or as a prelude to administrative
disciplinary proceedings under existing administrative issuances, if there be any.81 (Emphasis
supplied.)

Precisely in the case at bar, the doctrine of command responsibility may be used to determine
whether respondents are accountable for and have the duty to address the abduction of Rodriguez
in order to enable the courts to devise remedial measures to protect his rights. Clearly, nothing
precludes this Court from applying the doctrine of command responsibility in amparo proceedings to
ascertain responsibility and accountability in extrajudicial killings and enforced disappearances. In
this regard, the Separate Opinion of Justice Conchita Carpio-Morales in Rubrico is worth noting,
thus:

That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or
administrative liability should not abate the applicability of the doctrine of command responsibility.
Taking Secretary of National Defense v. Manalo and Razon v. Tagitis in proper context, they do not
preclude the application of the doctrine of command responsibility to Amparo cases.

Manalo was actually emphatic on the importance of the right to security of person and its
contemporary signification as a guarantee of protection of one’s rights by the government. It further
stated that 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.

Tagitis, on the other hand, cannot be more categorical on the application, at least in principle, of the
doctrine of command responsibility:

Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were
remiss in their duties when the government completely failed to exercise the extraordinary diligence
that the Amparo Rule requires. We hold these organizations accountable through their incumbent
Chiefs who, under this Decision, shall carry the personal responsibility of seeing to it that
extraordinary diligence, in the manner the Amparo Rule requires, is applied in addressing the
enforced disappearance of Tagitis.

Neither does Republic Act No. 9851 emasculate the applicability of the command responsibility
doctrine to Amparo cases. The short title of the law is the "Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against Humanity." Obviously, it
should, as it did, only treat of superior responsibility as a ground for criminal responsibility for the
crimes covered.http://www.lawphil.net/judjuris/juri2010/feb2010/gr_183871_2010.html -
fnt20cm Such limited treatment, however, is merely in keeping with the statute’s purpose and not
intended to rule out the application of the doctrine of command responsibility to other appropriate
cases.

Indeed, one can imagine the innumerable dangers of insulating high-ranking military and police
officers from the coverage of reliefs available under the Rule on the Writ of Amparo. The explicit
adoption of the doctrine of command responsibility in the present case will only bring Manalo and
Tagitis to their logical conclusion.

In fine, I submit that the Court should take this opportunity to state what the law ought to be if it truly
wants to make the Writ of Amparo an effective remedy for victims of extralegal killings and enforced
disappearances or threats thereof. While there is a genuine dearth of evidence to hold respondents
Gen. Hermogenes Esperon and P/Dir. Gen. Avelino Razon accountable under the command
responsibility doctrine, the ponencia’s hesitant application of the doctrine itself is replete with
implications abhorrent to the rationale behind the Rule on the Writ of Amparo.82 (Emphasis supplied.)

This Separate Opinion was reiterated in the recently decided case of Boac v. Cadapan,83 likewise
penned by Justice Carpio-Morales, wherein this Court ruled:
Rubrico categorically denies the application of command responsibility in amparo cases to determine
criminal liability. The Court maintains its adherence to this pronouncement as far as amparo cases
are concerned.

Rubrico, however, recognizes a preliminary yet limited application of command responsibility in

amparo cases to instances of determining the responsible or accountable individuals or entities that
are duty-bound to abate any transgression on the life, liberty or security of the aggrieved party.

If command responsibility were to be invoked and applied to these proceedings, it should, at most,
be only to determine the author who, at the first instance, is accountable for, and has the duty to
address, the disappearance and harassments complained of, so as to enable the Court to devise
remedial measures that may be appropriate under the premises to protect rights covered by the writ
of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal
liability on respondents preparatory to criminal prosecution, or as a prelude to administrative
disciplinary proceedings under existing administrative issuances, if there be any.

In other words, command responsibility may be loosely applied in amparo cases in order to identify
those accountable individuals that have the power to effectively implement whatever processes an
amparo court would issue. In such application, the amparo court does not impute criminal
responsibility but merely pinpoint the superiors it considers to be in the best position to protect the
rights of the aggrieved party.

Such identification of the responsible and accountable superiors may well be a preliminary
determination of criminal liability which, of course, is still subject to further investigation by the
appropriate government agency. (Emphasis supplied.)

As earlier pointed out, amparo proceedings determine (a) responsibility, or the extent the actors
have been established by substantial evidence to have participated in whatever way, by action or
omission, in an enforced disappearance, and (b) accountability, or the measure of remedies that
should be addressed to those (i) who exhibited involvement in the enforced disappearance without
bringing the level of their complicity to the level of responsibility defined above; or (ii) who are
imputed with knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or (iii) those who carry, but have failed to discharge, the burden of extraordinary diligence
in the investigation of the enforced disappearance. Thus, although there is no determination of
criminal, civil or administrative liabilities, the doctrine of command responsibility may nevertheless be
applied to ascertain responsibility and accountability within these foregoing definitions.

a. Command responsibility of the President

Having established the applicability of the doctrine of command responsibility in amparo

proceedings, it must now be resolved whether the president, as commander-in-chief of the military,
can be held responsible or accountable for extrajudicial killings and enforced disappearances. We
rule in the affirmative.

To hold someone liable under the doctrine of command responsibility, the following elements must
obtain:

a. the existence of a superior-subordinate relationship between the accused as superior and

the perpetrator of the crime as his subordinate;

b. the superior knew or had reason to know that the crime was about to be or had been
committed; and
 c. the superior failed to take the necessary and reasonable measures to prevent the criminal
acts or punish the perpetrators thereof.84

The president, being the commander-in-chief of all armed forces,85 necessarily possesses control
over the military that qualifies him as a superior within the purview of the command responsibility
doctrine. 86

On the issue of knowledge, it must be pointed out that although international tribunals apply a strict
standard of knowledge, i.e., actual knowledge, such may nonetheless be established through
circumstantial evidence.87 In the Philippines, a more liberal view is adopted and superiors may be
charged with constructive knowledge. This view is buttressed by the enactment of Executive Order
No. 226, otherwise known as the Institutionalization of the Doctrine of ‘Command Responsibility’ in
all Government Offices, particularly at all Levels of Command in the Philippine National Police and
other Law Enforcement Agencies (E.O. 226).88 Under E.O. 226, a government official may be held
liable for neglect of duty under the doctrine of command responsibility if he has knowledge that a
crime or offense shall be committed, is being committed, or has been committed by his
subordinates, or by others within his area of responsibility and, despite such knowledge, he did not
take preventive or corrective action either before, during, or immediately after its
commission.89 Knowledge of the commission of irregularities, crimes or offenses is presumed when
(a) the acts are widespread within the government official’s area of jurisdiction; (b) the acts have
been repeatedly or regularly committed within his area of responsibility; or (c) members of his
immediate staff or office personnel are involved.90

Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the
commander-in-chief of the armed forces, the president has the power to effectively command,
control and discipline the military.91

b. Responsibility or accountability of former President Arroyo

The next question that must be tackled is whether Rodriguez has proven through substantial
evidence that former President Arroyo is responsible or accountable for his abduction. We rule in the
negative.

Rodriguez anchors his argument on a general allegation that on the basis of the "Melo Commission"
and the "Alston Report," respondents in G.R. No. 191805 already had knowledge of and information
on, and should have known that a climate of enforced disappearances had been perpetrated on
members of the NPA.92 Without even attaching, or at the very least, quoting these reports, Rodriguez
contends that the Melo Report points to rogue military men as the perpetrators. While the Alston
Report states that there is a policy allowing enforced disappearances and pins the blame on the
President, we do not automatically impute responsibility to former President Arroyo for each and
every count of forcible disappearance.93 Aside from Rodriguez’s general averments, there is no
piece of evidence that could establish her responsibility or accountability for his abduction. Neither
was there even a clear attempt to show that she should have known about the violation of his right to
life, liberty or security, or that she had failed to investigate, punish or prevent it.

Fourth issue: Responsibility or accountability of respondents in G.R. No. 191805

The doctrine of totality of evidence in amparo cases was first laid down in this Court’s ruling in
Razon,94 to wit:

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their
totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible
if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the
most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be
admitted if it satisfies this basic minimum test.95 (Emphasis supplied.)

In the case at bar, we find no reason to depart from the factual findings of the Court of Appeals, the
same being supported by substantial evidence. A careful examination of the records of this case
reveals that the totality of the evidence adduced by Rodriguez indubitably prove the responsibility
and accountability of some respondents in G.R. No. 191805 for violating his right to life, liberty and
security.

a. The totality of evidence proved by substantial evidence the responsibility or accountability of

respondents for the violation of or threat to Rodriguez’s right to life, liberty and security.

After a careful examination of the records of these cases, we are convinced that the Court of
Appeals correctly found sufficient evidence proving that the soldiers of the 17th Infantry Battalion,
5th Infantry Division of the military abducted Rodriguez on 6 September 2009, and detained and
tortured him until 17 September 2009.

Rodriguez’s Sinumpaang Salaysay dated 4 December 2009 was a meticulous and straightforward
account of his horrific ordeal with the military, detailing the manner in which he was captured and
maltreated on account of his suspected membership in the NPA.96 His narration of his suffering
included an exhaustive description of his physical surroundings, personal circumstances and
perceived observations. He likewise positively identified respondents 1st Lt. Matutina and Lt. Col.
Mina to be present during his abduction, detention and torture,97 and respondents Cruz, Pasicolan
and Callagan as the CHR representatives who appeared during his release.98

More particularly, the fact of Rodriguez’s abduction was corroborated by Carlos in his Sinumpaang
Salaysay dated 16 September 2009,99 wherein he recounted in detail the circumstances surrounding
the victim’s capture.

As regards the allegation of torture, the respective Certifications of Dr. Ramil and Dr. Pamugas
validate the physical maltreatment Rodriguez suffered in the hands of the soldiers of the 17th
Infantry Battalion, 5th Infantry Division. According to the Certification dated 12 October 2009
executed by Dr. Ramil,100 she examined Rodriguez in the Alfonso Ponce Enrile Memorial District
Hospital on 16 September 2009 and arrived at the following findings:

FACE

- 10cm healed scar face right side

- 2cm healed scar right eyebrow (lateral area)

- 2cm healed scar right eye brow (median area)

- 4cm x 2cm hematoma anterior chest at the sternal area right side

- 3cm x 2cm hematoma sternal area left side

- 6cm x 1cm hematoma from epigastric area to ant. chest left side
 - 6cm x 1cm hematoma from epigastric area to ant. chest right side

- Multiple healed rashes (brownish discoloration) both forearm

- Multiple healed rashes (brownish discoloration)

- both leg arm

- hip area/lumbar area101

Dr. Pamugas performed a separate medical examination of Rodriguez on 19 September 2009, the
results of which confirmed that the injuries suffered by the latter were inflicted through torture. Dr.
Pamugas thus issued a Medical Report dated 23 September 2009,102 explicitly stating that Rodriguez
had been tortured during his detention by the military, to wit:

X. Interpretation of Findings

The above physical and psychological findings sustained by the subject are related to the torture and
ill-treatment done to him. The multiple circular brown to dark brown spots found on both legs and
arms were due to the insect bites that he sustained when he was forced to join twice in the military
operations. The abrasions could also be due to the conditions related during military operations. The
multiple pin-point blood spots found on his left ear is a result of an unknown object placed inside his
left ear. The areas of tenderness he felt during the physical examination were due to the
overwhelming punching and kicking on his body. The occasional difficulty of sleeping is a symptom
experience (sic) by the subject as a result of the psychological trauma he encountered during his
detention.

XI. Conclusions and Recommendations

The physical injuries and psychological trauma suffered by the subject are secondary to the torture
and ill-treatment done to him while in detention for about 11 days. The physical injuries sustained by
the subject, of which the age is compatible with the alleged date of infliction (sic).103 (Emphasis
supplied.)

In assessing the weight of the Certifications, the Court of Appeals correctly relied on the medical
finding that the injuries suffered by Rodriguez matched his account of the maltreatment inflicted on
him by the soldiers of the 17th Infantry Battalion, 5th Infantry Division of the Philippine Army. Further,
the kind of injuries he sustained showed that he could not have sustained them from merely falling,
thus making respondents’ claim highly implausible.

Despite these medical findings that overwhelmingly supported and lent credibility to the allegations
of Rodriguez in his Sinumpaang Salaysay, respondents in G.R. No. 191805 still stubbornly clung to
their argument that he was neither abducted nor detained. Rather, they claimed that he was a
double agent, whose relationship with the military was at all times congenial. This contention cannot
be sustained, as it is far removed from ordinary human experience.

If it were true that Rodriguez maintained amicable relations with the military, then he should have
unhesitatingly assured his family on 17 September 2009 that he was among friends. Instead, he
vigorously pleaded with them to get him out of the military facility. In fact, in the Sinumpaang
Salaysay dated 4 December 2009104 Wilma executed, she made the following averments:
 18. Na nang Makita ko ang aking anak ay nakaramdam ako sa kanya ng awa dahil sa
mukha syang pagod at malaki ang kanyang ipinayat.

19. Na niyakap ko sya at sa aming pagkakayakap ay binulungan nya ako na wag ko syang
iiwan sa lugar na iyon;

xxx xxx xxx

23. Na sinabihan ako ng mga sundalo na kung pwede daw ay maiwan muna ng dalawang
linggo sa kampo ako at si Noriel para daw matrain pa si Noriel sa loob ng kampo;

24. Na hindi ako pumayag na maiwan ang aking anak;

xxx xxx xxx

33. Na sa kasalukuhan, hanggang ngayon ay nag-aalala pa ako sa paa (sic) sa kaligtasan

ng aming buong pamilya, lalo na kay Noriel; xxx105

Also, Rodel made the following supporting averments in his Sinumpaang Salaysay dated 3
December 2009:106

24. Na nang makita ko si Noriel, hindi sya makalakad ng diretso, hinang-hina sya, malaki
ang ipinayat at nanlalalim ang mga mata;

25. Na nang makita ko ang aking kapatid ay nakaramdam ako ng awa dahil nakilala ko
syang masigla at masayahin;

26. Na ilang minuto lang ay binulugan nya ako ng "Kuya, ilabas mo ako dito, papatayin nila
ako."

27. Na sinabihan kami ni Lt. Col. Mina na baka pwedeng maiwan pa ng dalwang linggo ang
aking kapatid sa kanila para raw ma-train sya.

28. Na hindi kami pumayag ng aking nanay; xxx107

Moreover, the Court of Appeals likewise aptly pointed out the illogical, if not outrightly contradictory,
contention of respondents in G.R. No. 191805 that while Rodriguez had complained of his
exhaustion from his activities as a member of the CPP-NPA, he nevertheless willingly volunteered to
return to his life in the NPA to become a double-agent for the military. The lower court ruled in this
manner:

In the Return of the Writ, respondent AFP members alleged that petitioner confided to his military
handler, Cpl. Navarro, that petitioner could no longer stand the hardships he experienced in the
wilderness, and that he wanted to become an ordinary citizen again because of the empty promises
of the CPP-NPA. However, in the same Return, respondents state that petitioner agreed to become
a double agent for the military and wanted to re-enter the CPP-NPA, so that he could get information
regarding the movement directly from the source. If petitioner was tired of life in the wilderness and
desired to become an ordinary citizen again, it defies logic that he would agree to become an
undercover agent and work alongside soldiers in the mountains – or the wilderness he dreads – to
locate the hideout of his alleged NPA comrades.108 (Emphasis supplied.)
Furthermore, the appellate court also properly ruled that aside from the abduction, detention and
torture of Rodriguez, respondents, specifically 1st Lt. Matutina, had violated and threatened the
former’s right to security when they made a visual recording of his house, as well as the photos of
his relatives, to wit:

In the videos taken by the soldiers – one of whom was respondent Matutina – in the house of
petitioner on September 18, 2009, the soldiers even went as far as taking videos of the photos of
petitioner’s relatives hung on the wall of the house, as well as videos of the innermost part of the
house. This Court notes that 1Lt. Matutina, by taking the said videos, did not merely intend to make
proofs of the safe arrival of petitioner and his family in their home. 1Lt. Matutina also desired to instill
fear in the minds of petitioner and his family by showing them that the sanctity of their home, from
then on, will not be free from the watchful eyes of the military, permanently captured through the
medium of a seemingly innocuous cellhpone video camera. The Court cannot – and will not –
condone such act, as it intrudes into the very core of petitioner’s right to security guaranteed by the
fundamental law.109 (Emphasis supplied.)

Taken in their totality, the pieces of evidence adduced by Rodriguez, as well as the contradictory
defenses presented by respondents in G.R. No. 191805, give credence to his claim that he had
been abducted, detained and tortured by soldiers belonging to the 17th Infantry Battalion, 5th
Infantry Division of the military.

It must be pointed out, however, that as to respondents Cruz, Pasicolan and Callagan, there was no
substantial evidence to show that they violated, or threatened with violation, Rodriguez’s right to life,
liberty and security. Despite the dearth of evidence to show the CHR officers’ responsibility or
accountability, this Court nonetheless emphasizes its criticism as regards their capacity to recognize
torture or any similar form of abuse. The CHR, being constitutionally mandated to protect human
rights and investigate violations thereof,110 should ensure that its officers are well-equipped to
respond effectively to and address human rights violations. The actuations of respondents
unmistakably showed their insufficient competence in facilitating and ensuring the safe release of
Rodriguez after his ordeal.

b. The failure to conduct a fair and effect investigation amounted to a violation of or threat to
Rodriguez’s rights to life, liberty and security.

The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life,
liberty and security may be caused by either an act or an omission of a public official.111 Moreover, in
the context of amparo proceedings, responsibility may refer to the participation of the respondents,
by action or omission, in enforced disappearance.112 Accountability, on the other hand, may attach to
respondents who are imputed with knowledge relating to the enforced disappearance and who carry
the burden of disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance.113

In this regard, we emphasize our ruling in Secretary of National Defense v. Manalo114 that the right to
security of a person includes the positive obligation of the government to ensure the observance of
the duty to investigate, viz:

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. 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, 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.

xxx xxx xxx

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. 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. 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.115 (Emphasis supplied)

In the instant case, this Court rules that respondents in G.R. No. 191805 are responsible or
accountable for the violation of Rodriguez’s right to life, liberty and security on account of their abject
failure to conduct a fair and effective official investigation of his ordeal in the hands of the military.
Respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt.
Col. Mina only conducted a perfunctory investigation, exerting no efforts to take Ramirez’s account
of the events into consideration. Rather, these respondents solely relied on the reports and narration
of the military. The ruling of the appellate court must be emphasized:

In this case, respondents Ibrado, Verzosa, Bangit, Tolentino, Santos, De Vera, and Mina are
accountable, for while they were charged with the investigation of the subject incident, the
investigation they conducted and/or relied on is superficial and one-sided. The records disclose that
the military, in investigating the incident complained of, depended on the Comprehensive Report of
Noriel Rodriguez @Pepito prepared by 1Lt. Johnny Calub for the Commanding Officer of the 501st
Infantry Brigade, 5th Infantry Division, Philippine Army. Such report, however, is merely based on
the narration of the military. No efforts were undertaken to solicit petitioner’s version of the subject
incident and no witnesses were questioned regarding the alleged abduction of petitioner.

Respondent PDG Verzosa, as Chief of the PNP, is accountable because Section 24 of Republic Act
No. 6975, otherwise known as the "PNP Law," specifies the PNP as the governmental office with the
mandate "to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to
justice and assist in their prosecution." In this case, PDG Verzosa failed to order the police to
conduct the necessary investigation to unmask the mystery surrounding petitioner’s abduction and
disappearance. Instead, PDG Verzosa disclaims accountability by merely stating that petitioner has
no cause of action against him. Palpable, however, is the lack of any effort on the part of PDG
Verzosa to effectively and aggressively investigate the violations of petitioner’s right to life, liberty
and security by members of the 17th Infantry Battalion, 17th Infantry Division, Philippine
Army.116 (Emphasis supplied.)

Clearly, the absence of a fair and effective official investigation into the claims of Rodriguez violated
his right to security, for which respondents in G.R. No. 191805 must be held responsible or
accountable.

Nevertheless, it must be clarified that Rodriguez was unable to establish any responsibility or
accountability on the part of respondents P/CSupt. Tolentino, P/SSupt. Santos, Calog and Palacpac.
Respondent P/CSupt. Tolentino had already retired when the abduction and torture of Rodriguez
was perpetrated, while P/SSupt. Santos had already been reassigned and transferred to the
National Capital Regional Police Office six months before the subject incident occurred. Meanwhile,
no sufficient allegations were maintained against respondents Calog and Palacpac.

From all the foregoing, we rule that Rodriguez was successful in proving through substantial
evidence that respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Brig.
Gen. De Vera, 1st Lt. Matutina, and Lt. Col. Mina were responsible and accountable for the violation
of Rodriguez’s rights to life, liberty and security on the basis of (a) his abduction, detention and
torture from 6 September to 17 September 2009, and (b) the lack of any fair and effective official
investigation as to his allegations. Thus, the privilege of the writs of amparo and habeas data must
be granted in his favor. As a result, there is no longer any need to issue a temporary protection
order, as the privilege of these writs already has the effect of enjoining respondents in G.R. No.
191805 from violating his rights to life, liberty and security.

It is also clear from the above discussion that despite (a) maintaining former President Arroyo in the
list of respondents in G.R. No. 191805, and (b) allowing the application of the command
responsibility doctrine to amparo and habeas data proceedings, Rodriguez failed to prove through
substantial evidence that former President Arroyo was responsible or accountable for the violation of
his rights to life, liberty and property. He likewise failed to prove through substantial evidence the
accountability or responsibility of respondents Maj. Gen. Ochoa, Cruz, Pasicolan and Callagan.

WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R. No. 191805 and DENY
the Petition for Review in G.R. No. 193160. The Decision of the Court of Appeals is hereby
AFFIRMED WITH MODIFICATION.

The case is dismissed with respect to respondents former President Gloria Macapagal-Arroyo,
P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio
Cruz, Aldwin Pasicolan and Vicent Callagan for lack of merit.

This Court directs the Office of the Ombudsman (Ombudsman) and the Department of Justice (DOJ)
to take the appropriate action with respect to any possible liability or liabilities, within their respective
legal competence, that may have been incurred by respondents Gen. Victor Ibrado, PDG. Jesus
Verzosa, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera, 1st Lt. Ryan
Matutina, and Lt. Col. Laurence Mina. The Ombudsman and the DOJ are ordered to submit to this
Court the results of their action within a period of six months from receipt of this Decision.
In the event that herein respondents no longer occupy their respective posts, the directives
mandated in this Decision and in the Court of Appeals are enforceable against the incumbent
officials holding the relevant positions. Failure to comply with the foregoing shall constitute contempt
of court.

SO ORDERED.