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VINUYA VS EXECUTIVE SECRETARY

The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted by
plaintiffs in these actions, exchanged full compensation of plaintiffs for a future peace. History
has vindicated the wisdom of that bargain. And while full compensation for plaintiffs'
hardships, in the purely economic sense, has been denied these former prisoners and
countless other survivors of the war, the immeasurable bounty of life for themselves and their
posterity in a free society and in a more peaceful world services the debt.[1]
There is a broad range of vitally important areas that must be regularly decided by the
Executive Department without either challenge or interference by the Judiciary. One such area
involves the delicate arena of foreign relations. It would be strange indeed if the courts and
the executive spoke with different voices in the realm of foreign policy. Precisely because of
the nature of the questions presented, and the lapse of more than 60 years since the conduct
complained of, we make no attempt to lay down general guidelines covering other situations
not involved here, and confine the opinion only to the very questions necessary to reach a
decision on this matter.

Petitioners argue that the general waiver of claims made by the Philippine government in the
Treaty of Peace with Japan is void.They claim that the comfort women system established
by Japan, and the brutal rape and enslavement of petitioners constituted a crime against
humanity,[3] sexual slavery,[4] and torture.[5] They allege that the prohibition against these
international crimes is jus cogens norms from which no derogation is possible; as such, in
waiving the claims of Filipina comfort women and failing to espouse their complaints
against Japan, the Philippine government is in breach of its legal obligation not to afford
impunity for crimes against humanity. Finally, petitioners assert that the Philippine
governments acceptance of the apologies made by Japan as well as funds from the Asian
Womens Fund (AWF) were contrary to international law.
Respondents Arguments
Respondents maintain that all claims of the Philippines and its nationals relative to the
war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations
Agreement of 1956.[6]
Article 14 of the Treaty of Peace[7] provides:

Factual Antecedents

Article 14. Claims and Property

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application
for the issuance of a writ of preliminary mandatory injunction against the Office of the
Executive Secretary, the Secretary of the Department of Foreign Affairs (DFA), the Secretary
of the Department of Justice (DOJ), and the Office of the Solicitor General (OSG).

a) It is recognized that Japan should pay reparations to the Allied Powers for the damage and
suffering caused by it during the war. Nevertheless it is also recognized that the resources
of Japan are not presently sufficient, if it is to maintain a viable economy, to make complete
reparation for all such damage and suffering and at the present time meet its other
obligations.

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit


organization registered with the Securities and Exchange Commission, established
for the purpose of providing aid to the victims of rape by Japanese military forces in
the Philippines during the Second World War.
Petitioners narrate that during the Second World War, the Japanese army attacked villages
and systematically raped the women as part of the destruction of the village. Their
communities were bombed, houses were looted and burned, and civilians were publicly
tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women and held
them in houses or cells, where they were repeatedly raped, beaten, and abused by Japanese
soldiers. As a result of the actions of their Japanese tormentors, the petitioners have spent
their lives in misery, having endured physical injuries, pain and disability, and mental and
emotional suffering.[2]
Petitioners claim that since 1998, they have approached the Executive Department through
the DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials
and military officers who ordered the establishment of the comfort women stations in
the Philippines. However, officials of the Executive Department declined to assist the
petitioners, and took the position that the individual claims of the comfort women for
compensation had already been fully satisfied by Japans compliance with the Peace Treaty
between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that respondents
committed grave abuse of discretion amounting to lack or excess of discretion in refusing to
espouse their claims for the crimes against humanity and war crimes committed against
them; and (b) compel the respondents to espouse their claims for official apology and other
forms of reparations against Japan before the International Court of Justice (ICJ) and other
international tribunals.
Petitioners arguments

b)
Except as otherwise provided in the present Treaty, the Allied Powers waive all
reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals
arising out of any actions taken by Japan and its nationals in the course of the prosecution of
the war, and claims of the Allied Powers for direct military costs of occupation.
In addition, respondents argue that the apologies made by Japan[8] have been satisfactory,
and that Japan had addressed the individual claims of the women through the atonement
money paid by the Asian Womens Fund.
Historical Background
The comfort women system was the tragic legacy of the Rape of Nanking. In December
1937, Japanese military forces captured the city of Nanking in China and began a barbaric
campaign of terror known as the Rape of Nanking, which included the rapes and murders of
an estimated 20,000 to 80,000 Chinese women, including young girls, pregnant mothers, and
elderly women.[9]
In reaction to international outcry over the incident, the Japanese government sought ways to
end international condemnation[10] by establishing the comfort women system. Under this
system, the military could simultaneously appease soldiers' sexual appetites and contain
soldiers' activities within a regulated environment.[11] Comfort stations would also prevent the
spread of venereal disease among soldiers and discourage soldiers from raping inhabitants of
occupied territories.[12]
Daily life as a comfort woman was unmitigated misery.[13] The military forced victims into
barracks-style stations divided into tiny cubicles where they were forced to live, sleep, and
have sex with as many 30 soldiers per day.[14] The 30 minutes allotted for sexual relations
with each soldier were 30-minute increments of unimaginable horror for the women.
[15]
Disease was rampant.[16]Military doctors regularly examined the women, but these checks
were carried out to prevent the spread of venereal diseases; little notice was taken of the

frequent cigarette burns, bruises, bayonet stabs and even broken bones inflicted on the
women by soldiers. Fewer than 30% of the women survived the war.[17] Their agony
continued in having to suffer with the residual physical, psychological, and emotional scars
from their former lives. Some returned home and were ostracized by their families. Some
committed suicide. Others, out of shame, never returned home.[18]
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to accept legal
responsibility and pay compensatory damages for the comfort women system were through
a series of lawsuits, discussion at the United Nations (UN), resolutions by various nations, and
the Womens International Criminal Tribunal. The Japanese government, in turn, responded
through a series of public apologies and the creation of the AWF. [19]
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in Japan by
former comfort women against the Japanese government. The Tokyo District Court however
dismissed their case.[20] Other suits followed,[21] but the Japanese government has, thus far,
successfully caused the dismissal of every case.[22]
Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the
comfort women system brought their claims before the United States (US). On September 18,
2000, 15 comfort women filed a class action lawsuit in the US District Court for the District of
Columbia[23] "seeking money damages for [allegedly] having been subjected to sexual slavery
and torture before and during World War II," in violation of "both positive and customary
international law." The case was filed pursuant to the Alien Tort Claims Act (ATCA),[24] which
allowed the plaintiffs to sue the Japanese government in a US federal district court.[25] On
October 4, 2001, the district court dismissed the lawsuit due to lack of jurisdiction over Japan,
stating that [t]here is no question that this court is not the appropriate forum in which
plaintiffs may seek to reopen x x x discussions nearly half a century later x x x [E]ven if Japan
did not enjoy sovereign immunity, plaintiffs' claims are non-justiciable and must be dismissed.
The District of Columbia Court of Appeals affirmed the lower court's dismissal of the case.
[26]
On appeal, the US Supreme Court granted the womens petition for writ of certiorari,
vacated the judgment of the District of Columbia Court of Appeals, and remanded the case.
[27]
On remand, the Court of Appeals affirmed its prior decision, noting that much as we may
feel for the plight of the appellants, the courts of the US simply are not authorized to hear
their case.[28] The women again brought their case to the US Supreme Court which denied
their petition for writ of certiorari on February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan
(KCWS), submitted a petition to the UN Human Rights Commission (UNHRC), asking for
assistance in investigating crimes committed by Japan against Korean women and seeking
reparations for former comfort women.[29] The UNHRC placed the issue on its agenda and
appointed Radhika Coomaraswamy as the issue's special investigator. In 1996,
Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing Korean women to
act as sex slaves for the imperial army, and made the following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial Army
during the Second World War was a violation of its obligations under international law and
accept legal responsibility for that violation;

(b) Pay compensation to individual victims of Japanese military sexual slavery according to
principles outlined by the Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on the right to restitution, compensation and
rehabilitation for victims of grave violations of human rights and fundamental freedoms. A
special administrative tribunal for this purpose should be set up with a limited time-frame
since many of the victims are of a very advanced age;
(c) Make a full disclosure of documents and materials in its possession with regard to comfort
stations and other related activities of the Japanese Imperial Army during the Second World
War;
(d) Make a public apology in writing to individual women who have come forward and can be
substantiated as women victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational curricula to reflect historical
realities;
(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and
institutionalization of comfort stations during the Second World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities, also presented a report to the Sub-Committee
on June 22, 1998 entitled Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery
and Slavery-like Practices During Armed Conflict. The report included an appendix entitled An
Analysis of the Legal Liability of the Government of Japan for 'Comfort Women Stations'
established during the Second World War,[30]which contained the following findings:
68. The present report concludes that the Japanese Government remains liable for grave
violations of human rights and humanitarian law, violations that amount in their totality to
crimes against humanity. The Japanese Governments arguments to the contrary, including
arguments that seek to attack the underlying humanitarian law prohibition of enslavement
and rape, remain as unpersuasive today as they were when they were first raised before
the Nuremberg war crimes tribunal more than 50 years ago. In addition, the Japanese
Governments argument that Japan has already settled all claims from the Second World War
through peace treaties and reparations agreements following the war remains equally
unpersuasive. This is due, in large part, to the failure until very recently of the Japanese
Government to admit the extent of the Japanese militarys direct involvement in the
establishment and maintenance of these rape centres. The Japanese Governments silence on
this point during the period in which peace and reparations agreements between Japan and
other Asian Governments were being negotiated following the end of the war must, as a
matter of law and justice, preclude Japanfrom relying today on these peace treaties to
extinguish liability in these cases.
69. The failure to settle these claims more than half a century after the cessation of hostilities
is a testament to the degree to which the lives of women continue to be undervalued. Sadly,
this failure to address crimes of a sexual nature committed on a massive scale during the
Second World War has added to the level of impunity with which similar crimes are
committed today. The Government of Japan has taken some steps to apologize and atone for
the rape and enslavement of over 200,000 women and girls who were brutalized in comfort
stations during the Second World War. However, anything less than full and unqualified
acceptance by the Government of Japan of legal liability and the consequences that flow from
such liability is wholly inadequate. It must now fall to the Government of Japan to take the
necessary final steps to provide adequate redress.

The UN, since then, has not taken any official action directing Japan to provide the
reparations sought.
Women's International War Crimes

The Foreign Affairs Committee of the United Kingdoms Parliament also produced a report in
November, 2008 entitled, "Global Security: Japan and Korea" which concluded
that Japan should acknowledge the pain caused by the issue of comfort women in order to
ensure cooperation between Japan and Korea.

Tribunal

Statements of Remorse made by representatives of the Japanese government

The Women's International War Crimes Tribunal (WIWCT) was a people's tribunal established
by a number of Asian women and human rights organizations, supported by an international
coalition of non-governmental organizations.[31] First proposed in 1998, the WIWCT convened
in Tokyo in 2000 in order to adjudicate Japan's military sexual violence, in particular the
enslavement of comfort women, to bring those responsible for it to justice, and to end the
ongoing cycle of impunity for wartime sexual violence against women.
After examining the evidence for more than a year, the tribunal issued its verdict
on December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty of
crimes against humanity for the rape and sexual slavery of women.[32] It bears stressing,
however, that although the tribunal included prosecutors, witnesses, and judges, its judgment
was not legally binding since the tribunal itself was organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California, along with six cosponsor representatives, introduced House Resolution 121 which called for Japanese action in
light of the ongoing struggle for closure by former comfort women. The Resolution was
formally passed on July 30, 2007,[33] and made four distinct demands:
[I]t is the sense of the House of Representatives that the Government of Japan (1) should
formally acknowledge, apologize, and accept historical responsibility in a clear and
unequivocal manner for its Imperial Armed Forces' coercion of young women into sexual
slavery, known to the world as comfort women, during its colonial and wartime occupation of
Asia and the Pacific Islands from the 1930s through the duration of World War II; (2) would
help to resolve recurring questions about the sincerity and status of prior statements if the
Prime Minister of Japan were to make such an apology as a public statement in his official
capacity; (3) should clearly and publicly refute any claims that the sexual enslavement and
trafficking of the comfort women for the Japanese Imperial Army never occurred; and (4)
should educate current and future generations about this horrible crime while following the
recommendations of the international community with respect to the comfort women. [34]
In December 2007, the European Parliament, the governing body of the European Union,
drafted a resolution similar to House Resolution 121.[35] Entitled, Justice for Comfort Women,
the resolution demanded: (1) a formal acknowledgment of responsibility by the Japanese
government; (2) a removal of the legal obstacles preventing compensation; and (3)
unabridged education of the past. The resolution also stressed the urgency with
which Japan should act on these issues, stating: the right of individuals to claim reparations
against the government should be expressly recognized in national law, and cases for
reparations for the survivors of sexual slavery, as a crime under international law, should be
prioritized, taking into account the age of the survivors.
The Canadian and Dutch parliaments have each followed suit in drafting resolutions
against Japan. Canada's resolution demands the Japanese government to issue a formal
apology, to admit that its Imperial Military coerced or forced hundreds of thousands of women
into sexual slavery, and to restore references in Japanese textbooks to its war crimes.[36] The
Dutch parliament's resolution calls for the Japanese government to uphold the 1993
declaration of remorse made by Chief Cabinet Secretary Yohei Kono.

Various officials of the Government of Japan have issued the following public statements
concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study on the issue of wartime "comfort
women" since December 1991. I wish to announce the findings as a result of that study.
As a result of the study which indicates that comfort stations were operated in extensive
areas for long periods, it is apparent that there existed a great number of comfort women.
Comfort stations were operated in response to the request of the military authorities of the
day. The then Japanese military was, directly or indirectly, involved in the establishment and
management of the comfort stations and the transfer of comfort women. The recruitment of
the comfort women was conducted mainly by private recruiters who acted in response to the
request of the military. The Government study has revealed that in many cases they were
recruited against their own will, through coaxing coercion, etc., and that, at times,
administrative/military personnel directly took part in the recruitments. They lived in misery at
comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were transferred to the war areas, excluding
those from Japan, those from the Korean Peninsulaaccounted for a large part.
The Korean Peninsula was under Japanese rule in those days, and their recruitment, transfer,
control, etc., were conducted generally against their will, through coaxing, coercion, etc.
Undeniably, this was an act, with the involvement of the military authorities of the day, that
severely injured the honor and dignity of many women. The Government of Japan would like
to take this opportunity once again to extend its sincere apologies and remorse to all those,
irrespective of place of origin, who suffered immeasurable pain and incurable physical and
psychological wounds as comfort women.
It is incumbent upon us, the Government of Japan, to continue to consider seriously, while
listening to the views of learned circles, how best we can express this sentiment.
We shall face squarely the historical facts as described above instead of evading them, and
take them to heart as lessons of history. We hereby reiterated our firm determination never to
repeat the same mistake by forever engraving such issues in our memories through the study
and teaching of history.
As actions have been brought to court in Japan and interests have been shown in this issue
outside Japan, the Government of Japan shall continue to pay full attention to this matter,
including private researched related thereto.
b)

Prime Minister Tomiichi Murayamas Statement in 1994

On the issue of wartime comfort women, which seriously stained the honor and dignity of
many women, I would like to take this opportunity once again to express my profound and
sincere remorse and apologies

c) Letters from the Prime Minister of Japan to Individual Comfort Women


The issue of comfort women, with the involvement of the Japanese military authorities at that
time, was a grave affront to the honor and dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse to all
the women who endured immeasurable and painful experiences and suffered incurable
physical and psychological wounds as comfort women.
I believe that our country, painfully aware of its moral responsibilities, with feelings of apology
and remorse, should face up squarely to its past history and accurately convey it to future
generations.

Prime Minister Abe's remarks at the Joint Press Availability after the summit meeting at Camp
David between Prime Minister Abe and President Bush, April 27, 2007).

The Asian Women's Fund


Established by the Japanese government in 1995, the AWF represented the government's
concrete attempt to address its moral responsibility by offering monetary compensation to
victims of the comfort women system.[37] The purpose of the AWF was to show atonement of
the Japanese people through expressions of apology and remorse to the former wartime
comfort women, to restore their honor, and to demonstrate Japans strong respect for women.
[38]

d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005


Solemnly reflecting upon the many instances of colonial rule and acts of aggression that
occurred in modern world history, and recognizing that Japancarried out such acts in the past
and inflicted suffering on the people of other countries, especially in Asia, the Members of this
House hereby express deep remorse. (Resolution of the House of Representatives adopted on
June 9, 1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions last year, and recently as well, and to the
press. I have been consistent. I will stand by the Kono Statement. This is our consistent
position. Further, we have been apologizing sincerely to those who suffered immeasurable
pain and incurable psychological wounds as comfort women. Former Prime Ministers,
including Prime Ministers Koizumi and Hashimoto, have issued letters to the comfort women. I
would like to be clear that I carry the same feeling. This has not changed even
slightly. (Excerpt from Remarks by Prime Minister Abe at an Interview by NHK, March 11,
2007).
I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated in
the statement by the Chief Cabinet Secretary Kono. (Excerpt from Remarks by Prime Minister
Abe at the Budget Committee, the House of Councilors, the Diet of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort women who suffered hardships, and I have
expressed my apologies for the extremely agonizing circumstances into which they were
placed. (Excerpt from Telephone Conference by Prime Minister Abe to President George W.
Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to those people who were taken as
wartime comfort women. As a human being, I would like to express my sympathies, and also
as prime minister of Japan I need to apologize to them. My administration has been saying all
along that we continue to stand by the Kono Statement. We feel responsible for having forced
these women to go through that hardship and pain as comfort women under the
circumstances at the time. (Excerpt from an interview article "A Conversation with Shinzo
Abe" by the Washington Post, April 22, 2007).
x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to all
those who suffered extreme hardships as comfort women; and I expressed my apologies for
the fact that they were forced to endure such extreme and harsh conditions. Human rights
are violated in many parts of the world during the 20th Century; therefore we must work to
make the 21st Century a wonderful century in which no human rights are violated. And the
Government of Japan and I wish to make significant contributions to that end. (Excerpt from

The AWF announced three programs for former comfort women who applied for assistance:
(1) an atonement fund paying 2 million (approximately $20,000) to each woman; (2) medical
and welfare support programs, paying 2.5-3 million ($25,000-$30,000) for each woman; and
(3) a letter of apology from the Japanese Prime Minister to each woman. Funding for the
program came from the Japanese government and private donations from the Japanese
people. As of March 2006, the AWF provided 700 million (approximately $7 million) for these
programs in South Korea, Taiwan, and the Philippines; 380 million (approximately $3.8
million) in Indonesia; and 242 million (approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for former comfort women. Over
the next five years, these were implemented by the Department of Social Welfare and
Development.
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive Department
committed grave abuse of discretion in not espousing petitioners claims for official apology
and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department has the exclusive
prerogative to determine whether to espouse petitioners claims against Japan.
Baker v. Carr[39] remains the starting point for analysis under the political question doctrine.
There the US Supreme Court explained that:
x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
In Taada v. Cuenco,[40] we held that political questions refer "to those questions which, under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative or executive branch of

the government. It is concerned with issues dependent upon the wisdom, not legality of a
particular measure."
Certain types of cases often have been found to present political questions.[41] One such
category involves questions of foreign relations. It is well-established that "[t]he conduct of
the foreign relations of our government is committed by the Constitution to the executive and
legislative--'the political'--departments of the government, and the propriety of what may be
done in the exercise of this political power is not subject to judicial inquiry or decision." [42] The
US Supreme Court has further cautioned that decisions relating to foreign policy
are delicate, complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they advance or
imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor
responsibility.[43]
To be sure, not all cases implicating foreign relations present political questions, and courts
certainly possess the authority to construe or invalidate treaties and executive agreements.
[44]
However, the question whether the Philippine government should espouse claims of its
nationals against a foreign government is a foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the courts but to the political branches. In
this case, the Executive Department has already decided that it is to the best interest of the
country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace
of 1951. The wisdom of such decision is not for the courts to question. Neither could
petitioners herein assail the said determination by the Executive Department via the instant
petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme Court held that
[t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations.
It is quite apparent that if, in the maintenance of our international relations, embarrassment -perhaps serious embarrassment -- is to be avoided and success for our aims achieved,
congressional legislation which is to be made effective through negotiation and inquiry within
the international field must often accord to the President a degree of discretion and freedom
from statutory restriction which would not be admissible where domestic affairs alone
involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions
which prevail in foreign countries, and especially is this true in time of war. He has his
confidential sources of information. He has his agents in the form of diplomatic, consular and
other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v.
Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching principle was,
perhaps, best articulated in (now Chief) Justice Punos dissent in Secretary of Justice v.
Lantion:[48]
x x x The conduct of foreign relations is full of complexities and consequences, sometimes
with life and death significance to the nation especially in times of war. It can only be
entrusted to that department of government which can act on the basis of the best available
information and can decide with decisiveness. x x x It is also the President who possesses the
most comprehensive and the most confidential information about foreign countries for our
diplomatic and consular officials regularly brief him on meaningful events all over the world.
He has also unlimited access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the President is traditionally accorded a
wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his
actions are adjudged under less stringent standards, lest their judicial repudiation lead to

breach of an international obligation, rupture of state relations, forfeiture of confidence,


national embarrassment and a plethora of other problems with equally undesirable
consequences.
The Executive Department has determined that taking up petitioners cause would be inimical
to our countrys foreign policy interests, and could disrupt our relations with Japan, thereby
creating serious implications for stability in this region. For us to overturn the Executive
Departments determination would mean an assessment of the foreign policy judgments by a
coordinate political branch to which authority to make that judgment has been
constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine government was without
authority to negotiate the Treaty of Peace with Japan. And it is equally true that, since time
immemorial, when negotiating peace accords and settling international claims:
x x x [g]overnments have dealt with x x x private claims as their own, treating them as
national assets, and as counters, `chips', in international bargaining. Settlement agreements
have lumped, or linked, claims deriving from private debts with others that were
intergovernmental in origin, and concessions in regard to one category of claims might be set
off against concessions in the other, or against larger political considerations unrelated to
debts.[49]
Indeed, except as an agreement might otherwise provide, international settlements generally
wipe out the underlying private claims, thereby terminating any recourse under domestic
law. In Ware v. Hylton,[50] a case brought by a British subject to recover a debt confiscated by
the Commonwealth of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is
concluded, neither the matter in dispute, nor the conduct of either party, during the war, can
ever be revived, or brought into contest again. All violences, injuries, or damages sustained
by the government, or people of either, during the war, are buried in oblivion; and all those
things are implied by the very treaty of peace; and therefore not necessary to be expressed.
Hence it follows, that the restitution of, or compensation for, British property confiscated, or
extinguished, during the war, by any of the United States, could only be provided for by the
treaty of peace; and if there had been no provision, respecting these subjects, in the
treaty,they could not be agitated after the treaty, by the British government, much less by
her subjects in courts of justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty is certainly
nothing new. For instance, in Dames & Moore v. Regan,[51] the US Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by nationals of one country
against the government of another country are sources of friction between the two
sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942).
To resolve these difficulties, nations have often entered into agreements settling the claims of
their respective nationals. As one treatise writer puts it, international agreements settling
claims by nationals of one state against the government of another are established
international practice reflecting traditional international theory. L. Henkin, Foreign Affairs and
the Constitution 262 (1972). Consistent with that principle, the United States has repeatedly
exercised its sovereign authority to settle the claims of its nationals against foreign countries.
x x x Under such agreements, the President has agreed to renounce or extinguish claims of
United States nationals against foreign governments in return for lump-sum payments or the
establishment of arbitration procedures. To be sure, many of these settlements
were encouraged by the United States claimants themselves, since a claimant's only hope of

obtaining any payment at all might lie in having his Government negotiate a diplomatic
settlement on his behalf. But it is also undisputed that the United States has sometimes
disposed of the claims of its citizens without their consent, or even without consultation with
them, usually without exclusive regard for their interests, as distinguished from those of the
nation as a whole. Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign
Relations Law of the United States 213 (1965) (President may waive or settle a claim against
a foreign state x x x [even] without the consent of the [injured] national). It is clear that the
practice of settling claims continues today.
Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the suffering caused by Japanese aggression
during the war, not for the payment of adequate reparations, but for security purposes. The
treaty sought to prevent the spread of communism in Japan, which occupied a strategic
position in the Far East. Thus, the Peace Treaty compromised individual claims in the
collective interest of the free world.
This was also the finding in a similar case involving American victims of Japanese slave labor
during the war.[52] In a consolidated case in the Northern District of California,[53] the court
dismissed the lawsuits filed, relying on the 1951 peace treaty with Japan,[54]because of the
following policy considerations:
The official record of treaty negotiations establishes that a fundamental goal of the
agreement was to settle the reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes clear, it was well understood
that leaving open the possibility of future claims would be an unacceptable
impediment to a lasting peace:
Reparation is usually the most controversial aspect of peacemaking. The present peace is no
exception.
On the one hand, there are claims both vast and just. Japan's aggression caused tremendous
cost, losses and suffering.
On the other hand, to meet these claims, there stands a Japan presently reduced to four
home islands which are unable to produce the food its people need to live, or the raw
materials they need to work. x x x
The policy of the United States that Japanese liability for reparations should be sharply limited
was informed by the experience of six years of United States-led occupation of Japan. During
the occupation the Supreme Commander of the Allied Powers (SCAP) for the region, General
Douglas MacArthur, confiscated Japanese assets in conjunction with the task of managing the
economic affairs of the vanquished nation and with a view to reparations payments. It soon
became clear that Japan's financial condition would render any aggressive
reparations plan an exercise in futility. Meanwhile, the importance of a stable,
democratic Japan as a bulwark to communism in the region increased. At the end
of 1948, MacArthur expressed the view that [t]he use of reparations as a weapon to retard
the reconstruction of a viable economy in Japan should be combated with all possible means
and recommended that the reparations issue be settled finally and without delay.
That this policy was embodied in the treaty is clear not only from the negotiations history but
also from the Senate Foreign Relations Committee report recommending approval of the
treaty by the Senate. The committee noted, for example:
Obviously insistence upon the payment of reparations in any proportion commensurate with
the claims of the injured countries and their nationals would wreck Japan's economy,
dissipate any credit that it may possess at present, destroy the initiative of its people, and

create misery and chaos in which the seeds of discontent and communism would flourish. In
short, [it] would be contrary to the basic purposes and policy of x x x the United States x x x.
We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general
principle and particularly here, where such an extraordinary length of time has lapsed
between the treatys conclusion and our consideration the Executive must be given ample
discretion to assess the foreign policy considerations of espousing a claim against Japan, from
the standpoint of both the interests of the petitioners and those of the Republic, and decide
on that basis if apologies are sufficient, and whether further steps are appropriate or
necessary.
The Philippines is not under any international obligation to espouse petitioners
claims.
In the international sphere, traditionally, the only means available for individuals to bring a
claim within the international legal system has been when the individual is able to persuade a
government to bring a claim on the individuals behalf.[55] Even then, it is not the individuals
rights that are being asserted, but rather, the states own rights. Nowhere is this position more
clearly reflected than in the dictum of the Permanent Court of International Justice (PCIJ) in the
1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own right to
ensure, in the person of its subjects, respect for the rules of international law. The question,
therefore, whether the present dispute originates in an injury to a private interest, which in
point of fact is the case in many international disputes, is irrelevant from this standpoint. Once
a State has taken up a case on behalf of one of its subjects before an international tribunal, in
the eyes of the latter the State is sole claimant.[56]
Since the exercise of diplomatic protection is the right of the State, reliance on the right is
within the absolute discretion of states, and the decision whether to exercise the discretion
may invariably be influenced by political considerations other than the legal merits of the
particular claim.[57] As clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits prescribed by international law, a State
may exercise diplomatic protection by whatever means and to whatever extent it
thinks fit, for it is its own right that the State is asserting. Should the natural or
legal person on whose behalf it is acting consider that their rights are not
adequately protected, they have no remedy in international law. All they can do is
resort to national law, if means are available, with a view to furthering their cause or obtaining
redress. The municipal legislator may lay upon the State an obligation to protect its citizens
abroad, and may also confer upon the national a right to demand the performance of that
obligation, and clothe the right with corresponding sanctions. However, all these questions
remain within the province of municipal law and do not affect the position internationally.
[58]
(Emphasis supplied)
The State, therefore, is the sole judge to decide whether its protection will be granted, to what
extent it is granted, and when will it cease. It retains, in this respect, a discretionary power the
exercise of which may be determined by considerations of a political or other nature,
unrelated to the particular case.
The International Law Commissions (ILCs) Draft Articles on Diplomatic Protection fully support
this traditional view. They (i) state that "the right of diplomatic protection belongs to or vests
in the State,[59] (ii) affirm its discretionary nature by clarifying that diplomatic protection is a

"sovereign prerogative" of the State;[60] and (iii) stress that the state "has the right to exercise
diplomatic protection
on behalf of a national. It is under no duty or obligation to do so."[61]
It has been argued, as petitioners argue now, that the State has a duty to protect its nationals
and act on his/her behalf when rights are injured.[62] However, at present, there is no sufficient
evidence to establish a general international obligation for States to exercise diplomatic
protection of their own nationals abroad.[63] Though, perhaps desirable, neither state practice
nor opinio jurishas evolved in such a direction. If it is a duty internationally, it is only a moral
and not a legal duty, and there is no means of enforcing its fulfillment.[64]
We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international law. [65] However,
petitioners take quite a theoretical leap in claiming that these proscriptions automatically
imply that that the Philippines is under a non-derogable obligation to prosecute international
crimes, particularly since petitioners do not demand the imputation of individual criminal
liability, but seek to recover monetary reparations from the state of Japan. Absent the consent
of states, an applicable treaty regime, or a directive by the Security Council, there is no nonderogable duty to institute proceedings against Japan. Indeed, precisely because of states
reluctance to directly prosecute claims against another state, recent developments
support the modern trend to empower individuals to directly participate in suits
against perpetrators of international crimes.[66] Nonetheless, notwithstanding an array of
General Assembly resolutions calling for the prosecution of crimes against humanity and the
strong policy arguments warranting such a rule, the practice of states does not yet support
the present existence of an obligation to prosecute international crimes.[67] Of course a
customary duty of prosecution is ideal, but we cannot find enough evidence to reasonably
assert its existence. To the extent that any state practice in this area is widespread, it is in the
practice of granting amnesties, immunity, selective prosecution, or de facto impunity to
those who commit crimes against humanity.[68]
Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty
to prosecute perpetrators of international crimes is an erga omnes obligation or has attained
the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has been used as a
legal term describing obligations owed by States towards the community of states as a
whole. The concept was recognized by the ICJ in Barcelona Traction:
x x x an essential distinction should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis--vis another State in the field of
diplomatic protection. By their very nature, the former are the concern of all States. In view of
the importance of the rights involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary international law, from the outlawing of
acts of aggression, and of genocide, as also from the principles and rules concerning the basic
rights of the human person, including protection from slavery and racial discrimination. Some
of the corresponding rights of protection have entered into the body of general international
law others are conferred by international instruments of a universal or quasi-universal
character.
The Latin phrase, erga omnes, has since become one of the rallying cries of those sharing a
belief in the emergence of a value-based international public order. However, as is so often

the case, the reality is neither so clear nor so bright. Whatever the relevance of
obligations erga omnes as a legal concept, its full potential remains to be realized in practice.
[69]

The term is closely connected with the international law concept of jus cogens. In
international law, the term jus cogens (literally, compelling law) refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus
cogens norms are considered peremptory in the sense that they are mandatory, do not admit
derogation, and can be modified only by general international norms of equivalent authority.
[70]

Early strains of the jus cogens doctrine have existed since the 1700s,[71] but peremptory
norms began to attract greater scholarly attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden Treaties in International Law. [72] The recognition
of jus cogens gained even more force in the 1950s and 1960s with the ILCs preparation of
the Vienna Convention on the Law of Treaties (VCLT).[73] Though there was a consensus that
certain international norms had attained the status of jus cogens,[74] the ILC was unable to
reach a consensus on the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that there is not as yet any generally accepted criterion by which to identify a
general rule of international law as having the character of jus cogens.[75] In a commentary
accompanying the draft convention, the ILC indicated that the prudent course seems to be to
x x x leave the full content of this rule to be worked out in State practice and in the
jurisprudence of international tribunals.[76] Thus, while the existence of jus cogens in
international law is undisputed, no consensus exists on its substance,[77] beyond a tiny core of
principles and rules.[78]
Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to
comprehend the unimaginable horror they underwent at the hands of the Japanese
soldiers. We are also deeply concerned that, in apparent contravention of fundamental
principles of law, the petitioners appear to be without a remedy to challenge those that have
offended them before appropriate fora.Needless to say, our government should take the lead
in protecting its citizens against violation of their fundamental human rights.Regrettably, it is
not within our power to order the Executive Department to take up the petitioners
cause. Ours is only the power tourge and exhort the Executive Department to take up
petitioners cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.
BANAT VS COMELEC
The Case
Petitioner in G.R. No. 179271 Barangay Association for National Advancement and
Transparency (BANAT) in a petition for certiorari and mandamus,[1] assails the
Resolution[2] promulgated on 3 August 2007 by the Commission on Elections
(COMELEC) in NBC No. 07-041 (PL). The COMELECs resolution in NBC No. 07-041 (PL)
approved the recommendation of Atty. Alioden D. Dalaig, Head of the National Board
of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being
moot. BANAT filed before the COMELEC En Banc, acting as NBC, a Petition to
Proclaim the Full Number of Party-List Representatives Provided by the Constitution.
The following are intervenors in G.R. No. 179271: Arts Business and Science
Professionals (ABS), Aangat Tayo (AT), and Coalition of Associations of Senior
Citizens in the Philippines, Inc. (Senior Citizens).

Petitioners in G.R. No. 179295 Bayan Muna, Abono, and Advocacy for Teacher
Empowerment Through Action, Cooperation and Harmony Towards Educational
Reforms (A Teacher) in a petition for certiorari with mandamus and prohibition,
[3]
assails NBC Resolution No. 07-60[4] promulgated on 9 July 2007. NBC No. 07-60
made a partial proclamation of parties, organizations and coalitions that obtained at
least two percent of the total votes cast under the Party-List System. The COMELEC
announced that, upon completion of the canvass of the party-list results, it would
determine the total number of seats of each winning party, organization, or coalition
in accordance with Veterans Federation Party v. COMELEC[5] (Veterans).
Estrella DL Santos, in her capacity as President and First Nominee of the Veterans
Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295.
The Facts
The 14 May 2007 elections included the elections for the party-list
representatives. The COMELEC counted 15,950,900 votes cast for 93 parties under
the Party-List System.[6]
On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List
Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL)
before the NBC. BANAT filed its petition because [t]he Chairman and the Members of
the [COMELEC] have recently been quoted in the national papers that the
[COMELEC] is duty bound to and shall implement theVeterans ruling, that is, would
apply the Panganiban formula in allocating party-list seats.[7] There were no
intervenors in BANATs petition before the NBC. BANAT filed a memorandum on 19
July 2007.
On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No.
07-60. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the
party-list elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna,
Citizens Battle Against Corruption (CIBAC), Gabrielas Women Party (Gabriela),
Association of Philippine Electric Cooperatives (APEC), A Teacher, Akbayan! Citizens
Action Party (AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco
Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns (ARC), and
Abono. We quote NBC Resolution No. 07-60 in its entirety below:
WHEREAS, the Commission on Elections sitting en banc as National Board of
Canvassers, thru its Sub-Committee for Party-List, as of 03 July 2007, had officially
canvassed, in open and public proceedings, a total of fifteen million two hundred
eighty three thousand six hundred fifty-nine (15,283,659) votes under the
Party-List System of Representation, in connection with the National and Local
Elections conducted last 14 May 2007;
WHEREAS, the study conducted by the Legal and Tabulation Groups of the National
Board of Canvassers reveals that the projected/maximum total party-list votes
cannot go any higher than sixteen million seven hundred twenty three
thousand one hundred twenty-one (16,723,121) votes given the following
statistical data:

each party, organization, or coalition shall be entitled to not more than three (3)
seats.
WHEREAS, for the 2007 Elections, based on the above projected total of party-list
votes, the presumptive two percent (2%) threshold can be pegged at three
hundred thirty four thousand four hundred sixty-two (334,462) votes;
WHEREAS, the Supreme Court, in Citizens Battle Against Corruption (CIBAC) versus
COMELEC, reiterated its ruling in Veterans Federation Party versus
COMELEC adopting a formula for the additional seats of each party, organization or
coalition receving more than the required two percent (2%) votes, stating that the
same shall be determined only after all party-list ballots have been completely
canvassed;
WHEREAS, the parties, organizations, and coalitions that have thus far garnered at
least three hundred thirty four thousand four hundred sixty-two
(334,462) votes are as follows:
WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan
(BATAS), against which an URGENT PETITION FOR CANCELLATION/REMOVAL OF
REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With Prayer for the
Issuance of Restraining Order) has been filed before the Commission, docketed as
SPC No. 07-250, all the parties, organizations and coalitions included in the
aforementioned list are therefore entitled to at least one seat under the party-list
system of representation in the meantime.
NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the
Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166,
7941, and other election laws, the Commission on Elections, sitting en banc as the
National Board of Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to
certain conditions set forth below, the following parties, organizations and coalitions
participating under the Party-List System:
This is without prejudice to the proclamation of other parties, organizations, or
coalitions which may later on be established to have obtained at least two percent
(2%) of the total actual votes cast under the Party-List System.
The total number of seats of each winning party, organization or coalition shall be
determined pursuant to Veterans Federation Party versus COMELEC formula upon
completion of the canvass of the party-list results.
The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan
(BATAS) is hereby deferred until final resolution of SPC No. 07-250, in order not to
render the proceedings therein moot and academic.

Projected/Maximum Party-List Votes for May 2007 Elections

Finally, all proclamation of the nominees of concerned parties, organizations and


coalitions with pending disputes shall likewise be held in abeyance until final
resolution of their respective cases.

WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in
part:

Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof
to the Speaker of the House of Representatives of the Philippines.

The parties, organizations, and coalitions receiving at least two percent (2%) of the
total votes cast for the party-list system shall be entitled to one seat each: provided,
that those garnering more than two percent (2%) of the votes shall be entitled to
additional seats in proportion to their total number of votes: provided, finally, that

SO ORDERED.[8] (Emphasis in the original)


Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated
NBC Resolution No. 07-72, which declared the additional seats allocated to the

appropriate parties. We quote from the COMELECs interpretation of


the Veterans formula as found in NBC Resolution No. 07-72:

other elections laws, the Commission on Elections en banc sitting as the National
Board of Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the
following parties, organizations or coalitions as entitled to additional seats, to wit:

WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the


National Board of Canvassers proclaimed thirteen (13) qualified parties,
organization[s] and coalitions based on the presumptive two percent (2%) threshold
of 334,462 votes from the projected maximum total number of party-list votes of
16,723,121, and were thus given one (1) guaranteed party-list seat each;
WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the
National Board of Canvassers, the projected maximum total party-list votes, as of
July 11, 2007, based on the votes actually canvassed, votes canvassed but not
included in Report No. 29, votes received but uncanvassed, and maximum votes
expected for Pantar, Lanao del Norte, is 16,261,369; and that the projected
maximum total votes for the thirteen (13) qualified parties, organizations and
coalition[s] are as follows:

This is without prejudice to the proclamation of other parties, organizations or


coalitions which may later on be established to have obtained at least two per cent
(2%) of the total votes cast under the party-list system to entitle them to one (1)
guaranteed seat, or to the appropriate percentage of votes to entitle them to one (1)
additional seat.
Finally, all proclamation of the nominees of concerned parties, organizations and
coalitions with pending disputes shall likewise be held in abeyance until final
resolution of their respective cases.
Let the National Board of Canvassers Secretariat implement this Resolution,
furnishing a copy hereof to the Speaker of the House of Representatives of the
Philippines.
SO ORDERED.[9]

WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained
the highest number of votes among the thirteen (13) qualified parties, organizations
and coalitions, making it the first party in accordance with Veterans Federation Party
versus COMELEC, reiterated inCitizens Battle Against Corruption (CIBAC) versus
COMELEC;
WHEREAS, qualified parties, organizations and coalitions participating under the
party-list system of representation that have obtained one guaranteed (1) seat may
be entitled to an additional seat or seats based on the formula prescribed by the
Supreme Court in Veterans;
WHEREAS, in determining the additional seats for the first party, the correct formula
as expressed in Veterans, is:
Number of votes of first party Proportion of votes of first
- - - - - - - - - - - - - - - - - - - - - = party relative to total votes for
Total votes for party-list system party-list system
wherein the proportion of votes received by the first party (without rounding off) shall entitle it to additional
seats:

Acting on BANATs petition, the NBC promulgated NBC Resolution No. 07-88 on 3
August 2007, which reads as follows:
This pertains to the Petition to Proclaim the Full Number of Party-List Representatives
Provided by the Constitution filed by the Barangay Association for National
Advancement and Transparency (BANAT).
Acting on the foregoing Petition of the Barangay Association for National
Advancement and Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head,
National Board of Canvassers Legal Group submitted his comments/observations
and recommendation thereon [NBC 07-041 (PL)], which reads:
COMMENTS / OBSERVATIONS:

WHEREAS, applying the above formula, Buhay obtained the following percentage:

Petitioner Barangay Association for National Advancement and Transparency


(BANAT), in its Petition to Proclaim the Full Number of Party-List Representatives
Provided by the Constitution prayed for the following reliefs, to wit:

1,178,747
- - - - - - - - = 0.07248 or 7.2%
16,261,369

1. That the full number -- twenty percent (20%) -- of Party-List representatives as


mandated by Section 5, Article VI of the Constitution shall be proclaimed.

which entitles it to two (2) additional seats.


WHEREAS, in determining the additional seats for the other qualified parties,
organizations and coalitions, the correct formula as expressed inVeterans and
reiterated in CIBAC is, as follows:
No. of votes of
concerned party No. of additional
Additional seats for = ------------------- x seats allocated to
a concerned party No. of votes of first party
first party
WHEREAS, applying the above formula, the results are as follows:
NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus
Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and

2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes,


should be harmonized with Section 5, Article VI of the Constitution and with Section
12 of the same RA 7941 in that it should be applicable only to the first party-list
representative seats to be allotted on the basis of their initial/first ranking.
3. The 3-seat limit prescribed by RA 7941 shall be applied; and
4. Initially, all party-list groups shall be given the number of seats corresponding to
every 2% of the votes they received and the additional seats shall be allocated in
accordance with Section 12 of RA 7941, that is, in proportion to the percentage of
votes obtained by each party-list group in relation to the total nationwide votes cast
in the party-list election, after deducting the corresponding votes of those which
were allotted seats under the 2% threshold rule. In fine, the formula/procedure
prescribed in the ALLOCATION OF PARTY-LIST SEATS, ANNEX A of COMELEC
RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of

determining how many seats shall be proclaimed, which party-list groups are
entitled to representative seats and how many of their nominees shall seat [sic].
5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No.
7941 and that the procedure in allocating seats for party-list representative
prescribed by Section 12 of RA 7941 shall be followed.
RECOMMENDATION:
The petition of BANAT is now moot and academic.
The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re In
the Matter of the Canvass of Votes and Partial Proclamation of the Parties,
Organizations and Coalitions Participating Under the Party-List System During the
May 14, 2007 National and Local Elections resolved among others that the total
number of seats of each winning party, organization or coalition shall be determined
pursuant to the Veterans Federation Party versus COMELEC formula upon
completion of the canvass of the party-list results.
WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as
it hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D.
Dalaig, Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot
and academic.
Let the Supervisory Committee implement this resolution.
SO ORDERED.[10]
BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC
Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC
Resolution No. 07-88.
On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as
NBC, to reconsider its decision to use theVeterans formula as stated in its NBC
Resolution No. 07-60 because the Veterans formula is violative of the Constitution
and of Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC
denied reconsideration during the proceedings of the NBC. [11]
Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the
COMELEC proclaimed three other party-list organizations as qualified parties entitled
to one guaranteed seat under the Party-List System: Agricultural Sector Alliance of
the Philippines, Inc. (AGAP),[12] Anak Mindanao (AMIN),[13] and An Waray.[14] Per the
certification[15] by COMELEC, the following party-list organizations have been
proclaimed as of 19 May 2008:
The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan
(BATAS), against which an Urgent Petition for Cancellation/Removal of Registration
and Disqualification of Party-list Nominee (with Prayer for the Issuance of Restraining
Order) has been filed before the COMELEC, was deferred pending final resolution of
SPC No. 07-250.
Issues
BANAT brought the following issues before this Court:
1. Is the twenty percent allocation for party-list representatives provided in Section
5(2), Article VI of the Constitution mandatory or is it merely a ceiling?

2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional?


3. Is the two percent threshold and qualifier votes prescribed by the same Section
11(b) of RA 7941 constitutional?
4. How shall the party-list representatives be allocated?[16]
Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in
their petition:
I. Respondent Commission on Elections, acting as National Board of Canvassers,
committed grave abuse of discretion amounting to lack or excess of jurisdiction
when it promulgated NBC Resolution No. 07-60 to implement the First-Party Rule in
the allocation of seats to qualified party-list organizations as said rule:
A. Violates the constitutional principle of proportional representation.
B. Violates the provisions of RA 7941 particularly:
1. The 2-4-6 Formula used by the First Party Rule in allocating additional seats for
the First Party violates the principle of proportional representationunder RA 7941.
2. The use of two formulas in the allocation of additional seats, one for the First Party
and another for the qualifying parties, violates Section 11(b) of RA 7941.
3. The proportional relationships under the First Party Rule are different from those
required under RA 7941;
C. Violates the Four Inviolable Parameters of the Philippine party-list system as
provided for under the same case of Veterans Federation Party, et al. v. COMELEC.
II. Presuming that the Commission on Elections did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction when it implemented the FirstParty Rule in the allocation of seats to qualified party-list organizations, the same
being merely in consonance with the ruling inVeterans Federations Party, et al.
v. COMELEC, the instant Petition is a justiciable case as the issues involved herein
are constitutional in nature, involving the correct interpretation and implementation
of RA 7941, and are of transcendental importance to our nation.[17]
Considering the allegations in the petitions and the comments of the parties in these
cases, we defined the following issues in our advisory for the oral arguments set on
22 April 2008:
1. Is the twenty percent allocation for party-list representatives in Section 5(2),
Article VI of the Constitution mandatory or merely a ceiling?
2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?
3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for
one seat constitutional?
4. How shall the party-list representative seats be allocated?
5. Does the Constitution prohibit the major political parties from participating in the
party-list elections? If not, can the major political parties be barred from
participating in the party-list elections?[18]

The Ruling of the Court


The petitions have partial merit. We maintain that a Philippine-style party-list
election has at least four inviolable parameters as clearly stated in Veterans. For
easy reference, these are:
First, the twenty percent allocation the combined number of all party-list
congressmen shall not exceed twenty percent of the total membership of the House
of Representatives, including those elected under the party list;
Second, the two percent threshold only those parties garnering a minimum of two
percent of the total valid votes cast for the party-list system are qualified to have a
seat in the House of Representatives;
Third, the three-seat limit each qualified party, regardless of the number of votes it
actually obtained, is entitled to a maximum of three seats; that is, one qualifying
and two additional seats;
Fourth, proportional representation the additional seats which a qualified party is
entitled to shall be computed in proportion to their total number of votes. [19]
However, because the formula in Veterans has flaws in its mathematical
interpretation of the term proportional representation, this Court is compelled to
revisit the formula for the allocation of additional seats to party-list organizations.

x .20 =

55

.80
After prescribing the ratio of the number of party-list representatives to the total
number of representatives, the Constitution left the manner of allocating the
seats available to party-list representatives to the wisdom of the
legislature.
Allocation of Seats for Party-List Representatives:
The Statutory Limits Presented by the Two Percent Threshold
and the Three-Seat Cap
All parties agree on the formula to determine the maximum number of seats
reserved under the Party-List System, as well as on the formula to determine the
guaranteed seats to party-list candidates garnering at least two-percent of the total
party-list votes. However, there are numerous interpretations of the provisions of
R.A. No. 7941 on the allocation of additional seats under the Party-List
System. Veterans produced the First Party Rule,[20] and Justice Vicente V. Mendozas
dissent in Veterans presented Germanys Niemeyer formula[21] as an alternative.

Section 11. Number of Party-List Representatives. x x x

Section 5, Article VI of the Constitution provides:


Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members,
unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a partylist system of registered national, regional, and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total number of representatives
including those under the party-list. For three consecutive terms after the ratification of this Constitution, onehalf of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election
from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as
may be provided by law, except the religious sector.
The first paragraph of Section 11 of R.A. No. 7941 reads:
Section 11. Number of Party-List Representatives. The party-list representatives shall constitute twenty per
centum (20%) of the total number of the members of the House of Representatives including those under the
party-list.
xxx
Section 5(1), Article VI of the Constitution states that the House of Representatives shall be composed of not
more than two hundred and fifty members, unless otherwise fixed by law. The House of Representatives shall be
composed of district representatives and party-list representatives. The Constitution allows the legislature to
modify the number of the members of the House of Representatives.
Section 5(2), Article VI of the Constitution, on the other hand, states the ratio of party-list representatives to the
total number of representatives. We compute the number of seats available to party-list representatives from the
number of legislative districts. On this point, we do not deviate from the first formula in Veterans, thus:

.80

220

The Constitution left to Congress the determination of the manner of allocating the
seats for party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a)
and (b) of Section 11 and Section 12 of which provide:

Number of Party-List Representatives:


The Formula Mandated by the Constitution

Number of seats available to legislative


districts

This formula allows for the corresponding increase in the number of seats available for party-list representatives
whenever a legislative district is created by law. Since the 14th Congress of the Philippines has 220 district
representatives, there are 55 seats available to party-list representatives.

x .20 =

Number of seats available to


party-list representatives

In determining the allocation of seats for the second vote,[22] the following procedure
shall be observed:
(a) The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.
(b) The parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list system shall be entitled to one seat
each: Provided, That those garnering more than two percent (2%) of the
votes shall be entitled to additional seats in proportion to their total
number of votes: Provided, finally, That each party, organization, or coalition shall
be entitled to not more than three (3) seats.
Section 12. Procedure in Allocating Seats for Party-List Representatives. The
COMELEC shall tally all the votes for the parties, organizations, or coalitions on a
nationwide basis, rank them according to the number of votes received and allocate
party-list representatives proportionately according to the percentage of votes
obtained by each party, organization, or coalition as against the total nationwide
votes cast for the party-list system. (Emphasis supplied)
In G.R. No. 179271, BANAT presents two interpretations through three formulas to
allocate party-list representative seats.

The first interpretation allegedly harmonizes the provisions of Section 11(b) on the
2% requirement with Section 12 of R.A. No. 7941. BANAT described this procedure as
follows:
(a) The party-list representatives shall constitute twenty percent (20%) of the total
Members of the House of Representatives including those from the party-list groups
as prescribed by Section 5, Article VI of the Constitution, Section 11 (1 st par.) of RA
7941 and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220
District Representatives in the 14th Congress, there shall be 55 Party-List
Representatives. All seats shall have to be proclaimed.
(b) All party-list groups shall initially be allotted one (1) seat for every two per
centum (2%) of the total party-list votes they obtained; provided, that no party-list
groups shall have more than three (3) seats (Section 11, RA 7941).
(c) The remaining seats shall, after deducting the seats obtained by the party-list
groups under the immediately preceding paragraph and after deducting from their
total the votes corresponding to those seats, the remaining seats shall be allotted
proportionately to all the party-list groups which have not secured the maximum
three (3) seats under the 2% threshold rule, in accordance with Section 12 of RA
7941.[23]
Forty-four (44) party-list seats will be awarded under BANATs first interpretation.
The second interpretation presented by BANAT assumes that the 2% vote
requirement is declared unconstitutional, and apportions the seats for party-list
representatives by following Section 12 of R.A. No. 7941. BANAT states that the
COMELEC:
(a) shall tally all the votes for the parties, organizations, or coalitions on a
nationwide basis;
(b) rank them according to the number of votes received; and,
(c) allocate party-list representatives proportionately according to the percentage of
votes obtained by each party, organization or coalition as against the total
nationwide votes cast for the party-list system.[24]
BANAT used two formulas to obtain the same results: one is based on the
proportional percentage of the votes received by each party as against the total
nationwide party-list votes, and the other is by making the votes of a party-list with
a median percentage of votes as the divisor in computing the allocation of seats.
[25]
Thirty-four (34) party-list seats will be awarded under BANATs second
interpretation.
In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELECs
original 2-4-6 formula and the Veteransformula for systematically preventing all the
party-list seats from being filled up. They claim that both formulas do not factor in
the total number of seats alloted for the entire Party-List System. Bayan Muna,
Abono, and A Teacher reject the three-seat cap, but accept the 2% threshold. After
determining the qualified parties, a second percentage is generated by dividing the
votes of a qualified party by the total votes of all qualified parties only. The number
of seats allocated to a qualified party is computed by multiplying the total party-list
seats available with the second percentage. There will be a first round of seat
allocation, limited to using the whole integers as the equivalent of the number of
seats allocated to the concerned party-list. After all the qualified parties are given
their seats, a second round of seat allocation is conducted. The fractions, or
remainders, from the whole integers are ranked from highest to lowest and the

remaining seats on the basis of this ranking are allocated until all the seats are filled
up.[26]
We examine what R.A. No. 7941 prescribes to allocate seats for party-list
representatives.
Section 11(a) of R.A. No. 7941 prescribes the ranking of the participating parties
from the highest to the lowest based on the number of votes they garnered during
the elections.
The first clause of Section 11(b) of R.A. No. 7941 states that parties, organizations,
and coalitions receiving at least two percent (2%) of the total votes cast for the
party-list system shall be entitled to one seat each. This clause guarantees a seat to
the two-percenters. In Table 2 below, we use the first 20 party-list candidates for
illustration purposes. The percentage of votes garnered by each party is arrived at
by dividing the number of votes garnered by each party by 15,950,900, the total
number of votes cast for all party-list candidates.
Table 2. The first 20 party-list candidates and their respective percentage of votes
garnered over the total votes for the party-list.[28]
From Table 2 above, we see that only 17 party-list candidates received at least 2%
from the total number of votes cast for party-list candidates. The 17 qualified partylist candidates, or the two-percenters, are the party-list candidates that are entitled
to one seat each, or the guaranteed seat. In this first round of seat allocation, we
distributed 17 guaranteed seats.
The second clause of Section 11(b) of R.A. No. 7941 provides that those garnering
more than two percent (2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes. This is where petitioners and
intervenors problem with the formula in Veterans lies. Veterans interprets the clause
in proportion to their total number of votes to be in proportion to the votes of
the first party. This interpretation is contrary to the express language of R.A. No.
7941.
We rule that, in computing the allocation of additional seats, the continued
operation of the two percent threshold for the distribution of the additional seats as
found in the second clause of Section 11(b) of R.A. No. 7941
is unconstitutional. This Court finds that the two percent threshold makes it
mathematically impossible to achieve the maximum number of available party list
seats when the number of available party list seats exceeds 50. The continued
operation of the two percent threshold in the distribution of the additional seats
frustrates the attainment of the permissive ceiling that 20% of the members of the
House of Representatives shall consist of party-list representatives.
To illustrate: There are 55 available party-list seats. Suppose there are 50 million
votes cast for the 100 participants in the party list elections. A party that has two
percent of the votes cast, or one million votes, gets a guaranteed seat. Let us
further assume that the first 50 parties all get one million votes. Only 50 parties get
a seat despite the availability of 55 seats. Because of the operation of the two
percent threshold, this situation will repeat itself even if we increase the available
party-list seats to 60 seats and even if we increase the votes cast to 100
million. Thus, even if the maximum number of parties get two percent of the votes
for every party, it is always impossible for the number of occupied party-list seats to
exceed 50 seats as long as the two percent threshold is present.
We therefore strike down the two percent threshold only in relation to the
distribution of the additional seats as found in the second clause of Section 11(b) of

R.A. No. 7941. The two percent threshold presents an unwarranted obstacle to the
full implementation of Section 5(2), Article VI of the Constitution and prevents the
attainment of the broadest possible representation of party, sectoral or group
interests in the House of Representatives.[30]
In determining the allocation of seats for party-list representatives under Section 11
of R.A. No. 7941, the following procedure shall be observed:
1.
The parties, organizations, and coalitions shall be ranked from the
highest to the lowest based on the number of votes they garnered during the
elections.
2.
The parties, organizations, and coalitions receiving at least two percent
(2%) of the total votes cast for the party-list system shall be entitled to one
guaranteed seat each.
3.
Those garnering sufficient number of votes, according to the ranking in
paragraph 1, shall be entitled to additional seats in proportion to their total number
of votes until all the additional seats are allocated.
4.
Each party, organization, or coalition shall be entitled to not more than
three (3) seats.
In computing the additional seats, the guaranteed seats shall no longer be included
because they have already been allocated, at one seat each, to every twopercenter. Thus, the remaining available seats for allocation as additional
seats are the maximum seats reserved under the Party List System less the
guaranteed seats. Fractional seats are disregarded in the absence of a provision in
R.A. No. 7941 allowing for a rounding off of fractional seats.
In declaring the two percent threshold unconstitutional, we do not limit our
allocation of additional seats in Table 3 below to the two-percenters. The percentage
of votes garnered by each party-list candidate is arrived at by dividing the number
of votes garnered by each party by 15,950,900, the total number of votes cast for
party-list candidates. There are two steps in the second round of seat allocation.
First, the percentage is multiplied by the remaining available seats, 38, which is the
difference between the 55 maximum seats reserved under the Party-List System and
the 17 guaranteed seats of the two-percenters. The whole integer of the product of
the percentage and of the remaining available seats corresponds to a partys share in
the remaining available seats. Second, we assign one party-list seat to each of the
parties next in rank until all available seats are completely distributed. We
distributed all of the remaining 38 seats in the second round of seat
allocation. Finally, we apply the three-seat cap to determine the number of seats
each qualified party-list candidate is entitled. Thus:

The Constitutional Commission adopted a multi-party system that allowed all


political parties to participate in the party-list elections. The deliberations of
the Constitutional Commission clearly bear this out, thus:
MR. MONSOD. Madam President, I just want to say that we suggested or proposed
the party list system because we wanted to open up the political system to a
pluralistic society through a multiparty system. x x x We are for opening up the
system, and we would like very much for the sectors to be there. That is
why one of the ways to do that is to put a ceiling on the number of
representatives from any single party that can sit within the 50 allocated
under the party list system. x x x.
xxx
MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to
political parties. My question is this: Are we going to classify for example Christian
Democrats and Social Democrats as political parties? Can they run under the party
list concept or must they be under the district legislation side of it only?
MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner
mentioned can field candidates for the Senate as well as for the House of
Representatives. Likewise, they can also field sectoral candidates for the 20
percent or 30 percent, whichever is adopted, of the seats that we are
allocating under the party list system.
MR. MONSOD. In other words, the Christian Democrats can field district candidates
and can also participate in the party list system?
MR. VILLACORTA. Why not? When they come to the party list system, they
will be fielding only sectoral candidates.
MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list
system?
MR. VILLACORTA. Yes, why not? For as long as they field candidates who come
from the different marginalized sectors that we shall designate in this
Constitution.
MR. MONSOD. Suppose Senator Taada wants to run under BAYAN group and says
that he represents the farmers, would he qualify?
MR. VILLACORTA. No, Senator Taada would not qualify.
MR. MONSOD. But UNIDO can field candidates under the party list system and say
Juan dela Cruz is a farmer. Who would pass on whether he is a farmer or not?

Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55
party-list representatives from the 36 winning party-list organizations. All 55
available party-list seats are filled. The additional seats allocated to the parties with
sufficient number of votes for one whole seat, in no case to exceed a total of three
seats for each party, are shown in column (D).
Participation of Major Political Parties in Party-List Elections

MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political
parties, particularly minority political parties, are not prohibited to
participate in the party list election if they can prove that they are also
organized along sectoral lines.
MR. MONSOD. What the Commissioner is saying is that all political parties can
participate because it is precisely the contention of political parties that they
represent the broad base of citizens and that all sectors are represented in
them. Would the Commissioner agree?

MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang
political party, it will dominate the party list at mawawalang saysay din yung
sector. Lalamunin mismo ng political parties ang party list system. Gusto ko lamang
bigyan ng diin ang reserve. Hindi ito reserve seat sa marginalized sectors. Kung
titingnan natin itong 198 seats, reserved din ito sa political parties.
MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question
to Commissioner Villacorta and probably also to Commissioner Tadeo is that under
this system, would UNIDO be banned from running under the party list system?
MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that
condition alone, UNIDO may be allowed to register for the party list
system.
MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?
MR. TADEO. The same.
MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.
MR. OPLE. x x x In my opinion, this will also create the stimulus for political parties
and mass organizations to seek common ground. For example, we have the PDPLaban and the UNIDO. I see no reason why they should not be able to make common
goals with mass organizations so that the very leadership of these parties can be
transformed through the participation of mass organizations. And if this is true of the
administration parties, this will be true of others like the Partido ng Bayan which is
now being formed. There is no question that they will be attractive to many mass
organizations. In the opposition parties to which we belong, there will be a stimulus
for us to contact mass organizations so that with their participation, the policies of
such parties can be radically transformed because this amendment will create
conditions that will challenge both the mass organizations and the political parties to
come together. And the party list system is certainly available, although it is open to
all the parties. It is understood that the parties will enter in the roll of the COMELEC
the names of representatives of mass organizations affiliated with them. So that we
may, in time, develop this excellent system that they have in Europe where labor
organizations and cooperatives, for example, distribute themselves either in the
Social Democratic Party and the Christian Democratic Party in Germany, and their
very presence there has a transforming effect upon the philosophies and the
leadership of those parties.
It is also a fact well known to all that in the United States, the AFL-CIO always vote
with the Democratic Party. But the businessmen, most of them, always vote with the
Republican Party, meaning that there is no reason at all why political parties and
mass organizations should not combine, reenforce, influence and interact with each
other so that the very objectives that we set in this Constitution for sectoral
representation are achieved in a wider, more lasting, and more institutionalized way.
Therefore, I support this [Monsod-Villacorta] amendment. It installs sectoral
representation as a constitutional gift, but at the same time, it challenges the sector
to rise to the majesty of being elected representatives later on through a party list
system; and even beyond that, to become actual political parties capable of
contesting political power in the wider constitutional arena for major political parties.
R.A. No. 7941 provided the details for the concepts put forward by the
Constitutional Commission. Section 3 of R.A. No. 7941 reads:
Definition of Terms. (a) The party-list system is a mechanism of proportional
representation in the election of representatives to the House of Representatives

from national, regional and sectoral parties or organizations or coalitions thereof


registered with the Commission on Elections (COMELEC). Component parties or
organizations of a coalition may participate independently provided the coalition of
which they form part does not participate in the party-list system.
(b) A party means either a political party or a sectoral party or a coalition of parties.
(c) A political party refers to an organized group of citizens advocating an ideology
or platform, principles and policies for the general conduct of government and
which, as the most immediate means of securing their adoption, regularly nominates
and supports certain of its leaders and members as candidates for public office.
It is a national party when its constituency is spread over the geographical territory
of at least a majority of the regions. It is a regional party when its constituency is
spread over the geographical territory of at least a majority of the cities and
provinces comprising the region.
(d) A sectoral party refers to an organized group of citizens belonging to any of the
sectors enumerated in Section 5 hereof whose principal advocacy pertains to the
special interests and concerns of their sector,
(e) A sectoral organization refers to a group of citizens or a coalition of groups of
citizens who share similar physical attributes or characteristics, employment,
interests or concerns.
(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral
parties or organizations for political and/or election purposes.
Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party
from dominating the party-list elections.
Neither the Constitution nor R.A. No. 7941 prohibits major political parties from
participating in the party-list system. On the contrary, the framers of the
Constitution clearly intended the major political parties to participate in party-list
elections through their sectoral wings. In fact, the members of the Constitutional
Commission voted down, 19-22, any permanent sectoral seats, and in the
alternative the reservation of the party-list system to the sectoral groups. [33] In
defining a party that participates in party-list elections as either a political party or a
sectoral party, R.A. No. 7941 also clearly intended that major political parties will
participate in the party-list elections. Excluding the major political parties in partylist elections is manifestly against the Constitution, the intent of the Constitutional
Commission, and R.A. No. 7941. This Court cannot engage in socio-political
engineering and judicially legislate the exclusion of major political parties from the
party-list elections in patent violation of the Constitution and the law.
Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission
state that major political parties are allowed to establish, or form coalitions with,
sectoral organizations for electoral or political purposes. There should not be a
problem if, for example, the Liberal Party participates in the party-list election
through the Kabataang Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The
other major political parties can thus organize, or affiliate with, their chosen sector
or sectors. To further illustrate, the Nacionalista Party can establish a fisherfolk wing
to participate in the party-list election, and this fisherfolk wing can field its fisherfolk
nominees. Kabalikat ng Malayang Pilipino (KAMPI) can do the same for the urban
poor.
The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:

Qualifications of Party-List Nominees. No person shall be nominated as party-list


representative unless he is a natural born citizen of the Philippines, a registered
voter, a resident of the Philippines for a period of not less than one (1) year
immediately preceding the day of the elections, able to read and write, bona
fide member of the party or organization which he seeks to represent for at least
ninety (90) days preceding the day of the election, and is at least twenty-five (25)
years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but
not more than thirty (30) years of age on the day of the election.Any youth sectoral
representative who attains the age of thirty (30) during his term shall be allowed to
continue until the expiration of his term.
Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organizations
nominee wallow in poverty, destitution and infirmity [34] as there is no financial status
required in the law. It is enough that the nominee of the sectoral
party/organization/coalition belongs to the marginalized and underrepresented
sectors,[35] that is, if the nominee represents the fisherfolk, he or she must be a
fisherfolk, or if the nominee represents the senior citizens, he or she must be a
senior citizen.
Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20%
allocation of party-list representatives found in the Constitution. The Constitution, in
paragraph 1, Section 5 of Article VI, left the determination of the number of the
members of the House of Representatives to Congress: The House of
Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, x x x. The 20% allocation of party-list
representatives is merely a ceiling; party-list representatives cannot be more than
20% of the members of the House of Representatives. However, we cannot allow the
continued existence of a provision in the law which will systematically prevent the
constitutionally allocated 20% party-list representatives from being filled. The threeseat cap, as a limitation to the number of seats that a qualified party-list
organization may occupy, remains a valid statutory device that prevents any party
from dominating the party-list elections. Seats for party-list representatives shall
thus be allocated in accordance with the procedure used in Table 3 above.
However, by a vote of 8-7, the Court decided to continue the ruling
in Veterans disallowing major political parties from participating in the party-list
elections, directly or indirectly. Those who voted to continue disallowing major
political parties from the party-list elections joined Chief Justice Reynato S. Puno in
his separate opinion. On the formula to allocate party-list seats, the Court is
unanimous in concurring with this ponencia.
WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution
of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the
Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional the two
percent threshold in the distribution of additional party-list seats. The allocation of
additional seats under the Party-List System shall be in accordance with the
procedure used in Table 3 of this Decision. Major political parties are disallowed from
participating in party-list elections. This Decision is immediately executory. No
pronouncement as to costs.
SO ORDERED.
SECRETARY OF NATIONAL DEFENSE VS. MANALO

While victims of enforced disappearances are separated from the rest of the world
behind secret walls, they are not separated from the constitutional protection of
their basic rights. The constitution is an overarching sky that covers all in its
protection. The case at bar involves the rights to life, liberty and security in the first
petition for a writ of amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules of Court in
relation to Section 19[1] of the Rule on the Writ ofAmparo, seeking to reverse and set
aside on both questions of fact and law, the Decision promulgated by the Court of
Appeals in C.A. G.R. AMPARO No. 00001, entitled Raymond Manalo and Reynaldo
Manalo, petitioners, versus The Secretary of National Defense, the Chief of Staff,
Armed Forces of the Philippines, respondents.
This case was originally a Petition for Prohibition, Injunction, and Temporary
Restraining Order (TRO)[2] filed before this Court by herein respondents (therein
petitioners) on August 23, 2007 to stop herein petitioners (therein respondents)
and/or their officers and agents from depriving them of their right to liberty and
other basic rights. Therein petitioners also sought ancillary remedies, Protective
Custody Orders, Appointment of Commissioner, Inspection and Access Orders, and
all other legal and equitable reliefs under Article VIII, Section 5(5) [3] of the 1987
Constitution and Rule 135, Section 6 of the Rules of Court. In our Resolution dated
August 24, 2007, we (1) ordered the Secretary of the Department of National
Defense and the Chief of Staff of the AFP, their agents, representatives, or persons
acting in their stead, including but not limited to the Citizens Armed Forces
Geographical Unit (CAFGU) to submit their Comment; and (2) enjoined them from
causing the arrest of therein petitioners, or otherwise restricting, curtailing,
abridging, or depriving them of their right to life, liberty, and other basic rights as
guaranteed under Article III, Section 1[4] of the 1987 Constitution.[5]
While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took
effect on October 24, 2007. Forthwith, therein petitioners filed a Manifestation and
Omnibus Motion to Treat Existing Petition as Amparo Petition, to Admit Supporting
Affidavits, and to Grant Interim and Final Amparo Reliefs. They prayed that: (1) the
petition be considered a Petition for the Writ of Amparounder Sec. 26[6] of
the Amparo Rule; (2) the Court issue the writ commanding therein respondents to
make a verified return within the period provided by law and containing the specific
matter required by law; (3) they be granted the interim reliefs allowed by
theAmparo Rule and all other reliefs prayed for in the petition but not covered by
the Amparo Rule; (4) the Court, after hearing, render judgment as required in Sec.
18[7] of the Amparo Rule; and (5) all other just and equitable reliefs.[8]
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a
petition under the Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file
with the CA (Court of Appeals) a verified written return within five (5) working days
from service of the writ. We REMAND the petition to the CA and designate the
Division of Associate Justice Lucas P. Bersamin to conduct the summary hearing on
the petition on November 8, 2007 at 2:00 p.m. and decide the petition in accordance
with the Rule on the Writ of Amparo.[9]
On December 26, 2007, the Court of Appeals rendered a decision in favor of therein
petitioners (herein respondents), the dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF
STAFF are hereby REQUIRED:
1.
To furnish to the petitioners and to this Court within five days from notice of
this decision all official and unofficial reports of the investigation undertaken in
connection with their case, except those already on file herein;
2.
To confirm in writing the present places of official assignment of M/Sgt
Hilario aka Rollie Castillo and Donald Caigas within five days from notice of this
decision.

3.
To cause to be produced to this Court all medical reports, records and charts,
reports of any treatment given or recommended and medicines prescribed, if any, to
the petitioners, to include a list of medical and (sic) personnel (military and civilian)
who attended to them from February 14, 2006 until August 12, 2007 within five days
from notice of this decision.
The compliance with this decision shall be made under the signature and oath of
respondent AFP Chief of Staff or his duly authorized deputy, the latters authority to
be express and made apparent on the face of the sworn compliance with this
directive.
SO ORDERED.[10]
Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by
herein respondents:
Respondent Raymond Manalo recounted that about one or two weeks before
February 14, 2006, several uniformed and armed soldiers and members of the
CAFGU summoned to a meeting all the residents of their barangay in San Idelfonso,
Bulacan.Respondents were not able to attend as they were not informed of the
gathering, but Raymond saw some of the soldiers when he passed by
the barangay hall.[11]
On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga,
San Ildefonso, Bulacan. At past noon, several armed soldiers wearing white shirts,
fatigue pants and army boots, entered their house and roused him. They asked him
if he was Bestre, but his mother, Ester Manalo, replied that he was Raymond, not
Bestre. The armed soldier slapped him on both cheeks and nudged him in the
stomach. He was then handcuffed, brought to the rear of his house, and forced to
the ground face down. He was kicked on the hip, ordered to stand and face up to the
light, then forcibly brought near the road. He told his mother to follow him, but three
soldiers stopped her and told her to stay.[12]
Among the men who came to take him, Raymond recognized brothers Michael de la
Cruz, Madning de la Cruz, Puti de la Cruz, andPula de la Cruz, who all acted as
lookout. They were all members of the CAFGU and residing in Manuzon, San
Ildefonso, Bulacan.He also recognized brothers Randy Mendoza and Rudy Mendoza,
also members of the CAFGU. While he was being forcibly taken, he also saw outside
of his house two barangay councilors, Pablo Cunanan and Bernardo Lingasa, with
some soldiers and armed men.[13]
The men forced Raymond into a white L300 van. Once inside, he was
blindfolded. Before being blindfolded, he saw the faces of the soldiers who took
him. Later, in his 18 months of captivity, he learned their names. The one who drove
the van was Rizal Hilario alias Rollie Castillo, whom he estimated was about 40 years
of age or older. The leader of the team who entered his house and abducted him
was Ganata. He was tall, thin, curly-haired and a bit old. Another one of his
abductors was George who was tall, thin, white-skinned and about 30 years old. [14]
The van drove off, then came to a stop. A person was brought inside the van and
made to sit beside Raymond. Both of them were beaten up. On the road, he
recognized the voice of the person beside him as his brother Reynaldos. The van
stopped several times until they finally arrived at a house. Raymond and Reynaldo
were each brought to a different room. With the doors of their rooms left open,
Raymond saw several soldiers continuously hitting his brother Reynaldo on the head
and other parts of his body with the butt of their guns for about 15 minutes. After
which, Reynaldo was brought to his (Raymonds) room and it was his (Raymonds)
turn to be beaten up in the other room. The soldiers asked him if he was a member
of the New Peoples Army. Each time he said he was not, he was hit with the butt of
their guns. He was questioned where his comrades were, how many soldiers he had
killed, and how many NPA members he had helped. Each time he answered none,
they hit him.[15]
In the next days, Raymonds interrogators appeared to be high officials as the
soldiers who beat him up would salute them, call them sir, and treat them with
respect. He was in blindfolds when interrogated by the high officials, but he saw

their faces when they arrived and before the blindfold was put on. He noticed that
the uniform of the high officials was different from those of the other soldiers.One of
those officials was tall and thin, wore white pants, tie, and leather shoes, instead of
combat boots. He spoke in Tagalog and knew much about his parents and family,
and a habeas corpus case filed in connection with the respondents abduction.
[16]
While these officials interrogated him, Raymond was not manhandled. But once
they had left, the soldier guards beat him up. When the guards got drunk, they also
manhandled respondents. During this time, Raymond was fed only at night, usually
with left-over and rotten food.[17]
On the third week of respondents detention, two men arrived while Raymond was
sleeping and beat him up. They doused him with urine and hot water, hit his
stomach with a piece of wood, slapped his forehead twice with a .45 pistol, punched
him on the mouth, and burnt some parts of his body with a burning wood. When he
could no longer endure the torture and could hardly breathe, they stopped. They
then subjected Reynaldo to the same ordeal in another room. Before their torturers
left, they warned Raymond that they would come back the next day and kill him. [18]
The following night, Raymond attempted to escape. He waited for the guards to get
drunk, then made noise with the chains put on him to see if they were still
awake. When none of them came to check on him, he managed to free his hand
from the chains and jumped through the window. He passed through a helipad and
firing range and stopped near a fishpond where he used stones to break his
chains. After walking through a forested area, he came near a river and an Iglesia ni
Kristo church. He talked to some women who were doing the laundry, asked where
he was and the road to Gapan. He was told that he was in Fort Magsaysay.[19] He
reached the highway, but some soldiers spotted him, forcing him to run away. The
soldiers chased him and caught up with him. They brought him to another place
near the entrance of what he saw was Fort Magsaysay. He was boxed repeatedly,
kicked, and hit with chains until his back bled. They poured gasoline on him. Then a
so-called Mam or Madam suddenly called, saying that she wanted to see Raymond
before he was killed. The soldiers ceased the torture and he was returned
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 people[22] had been detained in
that bartolina, including his brother Reynaldo and himself.[23]
For about three and a half months, the respondents were detained
in Fort Magsaysay. They were kept in a small house with two rooms and a
kitchen. One room was made into the bartolina. The house was near the firing
range, helipad and mango trees. At dawn, soldiers marched by their house. They
were also sometimes detained in what he only knew as the DTU. [24]
At the DTU, a male doctor came to examine respondents. He checked their body and
eyes, took their urine samples and marked them. When asked how they were
feeling, they replied that they had a hard time urinating, their stomachs were
aching, and they felt other pains in their body. The next day, two ladies in white
arrived. They also examined respondents and gave them medicines, including
orasol, amoxicillin and mefenamic acid. They brought with them the results of
respondents urine test and advised them to drink plenty of water and take their
medicine. The two ladies returned a few more times. Thereafter, medicines were
sent through the master of the DTU, Master Del Rosario alias Carinyoso at
Puti. Respondents were kept in the DTU for about two weeks. While there, he met a
soldier named Efren who said that Gen. Palparan ordered him to monitor and take
care of them.[25]

One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren
and several other armed men wearing fatigue suits, went to a detachment in Pinaud,
San Ildefonso, Bulacan. Respondents were detained for one or two weeks in a big
two-storey house. Hilario and Efren stayed with them. While there, Raymond was
beaten up by Hilarios men.[26]
From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan
on board the Revo. They were detained in a big unfinished house inside the
compound of Kapitan for about three months. When they arrived in Sapang, Gen.
Palparan talked to them. They were brought out of the house to a basketball court in
the center of the compound and made to sit. Gen. Palparan was already waiting,
seated. He was about two arms length away from respondents. He began by asking
if respondents felt well already, to which Raymond replied in the affirmative. He
asked Raymond if he knew him. Raymond lied that he did not. He then asked
Raymond if he would be scared if he were made to face Gen. Palparan. Raymond
responded that he would not be because he did not believe that Gen. Palparan was
an evil man.[27]
Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, Ngayon na kaharap mo na ako, di ka ba natatakot sa
akin?
Sumagot akong, Siyempre po, natatakot din
Sabi ni Gen. Palparan: Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay,
bastat sundin nyo ang lahat ng sasabihin ko sabihin mo sa magulang mo huwag
pumunta sa mga rali, sa hearing, sa Karapatan at sa Human Right dahil niloloko lang
kayo. Sabihin sa magulang at lahat sa bahay na huwag paloko doon. Tulungan kami
na kausapin si Bestre na sumuko na sa gobyerno. [28]
Respondents agreed to do as Gen. Palparan told them as they felt they could not do
otherwise. At about 3:00 in the morning, Hilario, Efren and the formers men - the
same group that abducted them - brought them to their parents house. Raymond
was shown to his parents while Reynaldo stayed in the Revo because he still could
not walk. In the presence of Hilario and other soldiers, Raymond relayed to his
parents what Gen. Palparan told him. As they were afraid, Raymonds parents
acceded. Hilario threatened Raymonds parents that if they continued to join human
rights rallies, they would never see their children again. The respondents were then
brought back to Sapang.[29]
When respondents arrived back in Sapang, Gen. Palparan was about to leave. He
was talking with the four masters who were there: Arman, Ganata, Hilario and
Cabalse.[30] When Gen. Palparan saw Raymond, he called for him. He was in a big
white vehicle.Raymond stood outside the vehicle as Gen. Palparan told him to gain
back his strength and be healthy and to take the medicine he left for him and
Reynaldo. He said the medicine was expensive at Php35.00 each, and would make
them strong. He also said that they should prove that they are on the side of the
military and warned that they would not be given another chance. [31] During his
testimony, Raymond identified Gen. Palparan by his picture.[32]
One of the soldiers named Arman made Raymond take the medicine left by Gen.
Palparan. The medicine, named Alive, was green and yellow. Raymond and Reynaldo
were each given a box of this medicine and instructed to take one capsule a
day. Arman checked if they were getting their dose of the medicine. The Alive made
them sleep each time they took it, and they felt heavy upon waking up. [33]
After a few days, Hilario arrived again. He took Reynaldo and left Raymond at
Sapang. Arman instructed Raymond that while in Sapang, he should introduce
himself as Oscar, a military trainee from Sariaya, Quezon, assigned in
Bulacan. While there, he saw again Ganata, one of the men who abducted him from
his house, and got acquainted with other military men and civilians.[34]
After about three months in Sapang, Raymond was brought to Camp Tecson under
the 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, Raymonds chains were removed and he was ordered to clean outside
the barracks. It was then he learned that he was in a detachment of the
Rangers. There were many soldiers, hundreds of them were training. He was also
ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn
Cadapan from Laguna. She told him that she was a student of the University of
the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had
been subjected to severe torture and raped. She was crying and longing to go home
and be with her parents. During the day, her chains were removed and she was
made to do the laundry.[36]
After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival,
two other captives, Karen Empeo and Manuel Merino, arrived. Karen and Manuel
were put in the room with Allan whose name they later came to know as Donald
Caigas, called master or commander by his men in the 24 th Infantry
Battalion. Raymond and Reynaldo were put in the adjoining room. At times,
Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the
daytime, their chains were removed, but were put back on at night. They were
threatened that if they escaped, their families would all be killed. [37]
On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees
that they should be thankful they were still alive and should continue along their
renewed life. Before the hearing of November 6 or 8, 2006, respondents were
brought to their parents to instruct them not to attend the hearing. However, their
parents had already left for Manila. Respondents were brought back
toCamp 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
Raymonds eyes.[41]
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to
Zambales, in a safehouse near the sea. Caigas and some of his men stayed with
them. A retired army soldier was in charge of the house. Like in Limay, the five
detainees were made to do errands and chores. They stayed in Zambales from May
8 or 9, 2007 until June 2007.[42]
In June 2007, Caigas brought the five back to the camp in Limay. Raymond,
Reynaldo, and Manuel were tasked to bring food to detainees brought to the
camp. Raymond narrated what he witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si
Donald na inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni Donald na kung
mayroon man kaming makita o marinig, walang nangyari. Kinaumagahan, nakita
naming ang bangkay ng isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa
kanyang katawan at itoy sinunog. Masansang ang amoy.

Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong
sundalo mula sa 6 x 6 na trak at dinala sa loob ng kampo. May naiwang mga bakas
ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang
bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa
labas ng kubo, piniringan, ikinadena at labis na binugbog. Nakita kong nakatakas
ang isa sa kanila at binaril siya ng sundalo ngunit hindi siya tinamaan. Iyong gabi
nakita kong pinatay nila iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at
ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang
mga bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng
bakod. Kinaumagahan nakita kong mayroong sinilaban, at napakamasangsang ang
amoy.
May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi
nila sa akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na sila
nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil
kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang suot pangitaas, 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 Raymonds affidavit
insofar as they related to matters they witnessed together. Reynaldo added that
when they were taken from their house on February 14, 2006, he saw the faces of
his abductors before he was blindfolded with his shirt. He also named the soldiers he

got acquainted with in the 18 months he was detained. When Raymond attempted
to escape from Fort Magsaysay, Reynaldo was severely beaten up and told that they
were indeed members of the NPA because Raymond escaped. With a .45 caliber
pistol, Reynaldo was hit on the back and punched in the face until he could no
longer bear the pain.
At one point during their detention, when Raymond and Reynaldo were in Sapang,
Reynaldo was separated from Raymond and brought to Pinaud by Rizal Hilario. He
was kept in the house of Kapitan, a friend of Hilario, in a mountainous area. He was
instructed to use the name Rodel and to represent himself as a military trainee from
Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo in his trips. One
time, he was brought to a market in San Jose, del Monte, Bulacan and made to wait
in the vehicle while Hilario was buying. He was also brought to Tondo, Manila where
Hilario delivered boxes of Alive in different houses. In these trips, Hilario drove a
black and red vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed to
remove the blindfold once outside the province. In one of their trips, they passed
by Fort Magsaysay and Camp Tecson where Reynaldo saw the sign board, Welcome
to Camp Tecson.[46]
Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and
Reynaldo Manalo. Dr. Molino specialized in forensic medicine and was connected
with the Medical Action Group, an organization handling cases of human rights
violations, particularly cases where torture was involved. He was requested by an
NGO to conduct medical examinations on the respondents after their escape. He
first asked them about their ordeal, then proceeded with the physical
examination. His findings showed that the scars borne by respondents were
consistent with their account of physical injuries inflicted upon them. The
examination was conducted on August 15, 2007, two days after respondents escape,
and the results thereof were reduced into writing. Dr. Molino took photographs of the
scars. He testified that he followed the Istanbul Protocol in conducting the
examination.[47]
Petitioners dispute respondents account of their alleged abduction and torture. In
compliance with the October 25, 2007 Resolution of the Court, they filed a Return of
the Writ of Amparo admitting the abduction but denying any involvement
therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested,
forcibly abducted, detained, held incommunicado, disappeared or under the custody
by the military. This is a settled issue laid to rest in the habeas corpus case filed in
their behalf by petitioners parents before the Court of Appeals in C.A.-G.R. SP No.
94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the 24 th Infantry
Battalion; Maj. Gen. Jovito Palparan, as Commander of the 7 th Infantry Division in
Luzon; Lt. Gen. Hermogenes Esperon, in his capacity as the Commanding General of
the Philippine Army, and members of the Citizens Armed Forces Geographical Unit
(CAFGU), namely: Michael dela Cruz, Puti dela Cruz, Madning dela Cruz, Pula dela
Cruz, Randy Mendoza and Rudy Mendoza. The respondents therein submitted a
return of the writ On July 4, 2006, the Court of Appeals dropped as party
respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding General of the
Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S. Palparan, then
Commanding General, 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 Empeo pending before the Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to
establish the surrounding circumstances of the disappearances of the petitioners
and to bring those responsible, including any military personnel if shown to have
participated or had complicity in the commission of the complained acts, to the bar
of justice, when warranted by the findings and the competent evidence that may be
gathered in the process.[50]

Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado,
INF (GSC) PA, earlier filed in G.R. No. 179994, another amparo case in this Court,
involving Cadapan, Empeo and Merino, which averred among others, viz:
10) Upon reading the allegations in the Petition implicating the 24 th Infantry Batallion
detachment as detention area, I immediately went to the 24 th IB detachment in
Limay, Bataan and found no untoward incidents in the area nor any detainees by the
name of Sherlyn Cadapan, Karen Empeo and Manuel Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in the 24 th IB in
Limay, Bataan;
12) After going to the 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 Empeo and Manuel Merino were detained. As per the
inquiry, however, no such beachhouse was used as a detention place found to have
been used by armed men to detain Cadapan, Empeo and Merino. [51]
It was explained in the Return of the Writ that for lack of sufficient time, the
affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo,
and other persons implicated by therein petitioners could not be secured in time for
the submission of the Return and would be subsequently submitted.[52]
Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben
U. Jimenez, Provost Marshall, 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
investigated[61] as according to Jimenez, the directive to him was only to investigate
the six persons.[62]
Jimenez was beside Lingad when the latter took the statements. [63] The six persons
were not known to Jimenez as it was in fact his first time to meet them. [64] During the
entire time that he was beside Lingad, a subordinate of his in the Office of the
Provost Marshall, Jimenez did not propound a single question to the six persons. [65]
Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo
Mendoza and Rudy Mendoza had to come back the next day to sign their statements
as the printing of their statements was interrupted by a power failure. Jimenez
testified that the two signed on May 30, 2006, but the jurats of their statements
indicated that they were signed on May 29, 2006.[66] When the Sworn Statements

were turned over to Jimenez, he personally wrote his investigation report. He began
writing it in the afternoon of May 30, 2006 and finished it on June 1, 2006.[67] He then
gave his report to the Office of the Chief of Personnel. [68]
As petitioners largely rely on Jimenezs Investigation Report dated June 1, 2006 for
their evidence, the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who
were forcibly taken from their respective homes in Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on 14 February 2006 by unidentified armed men and thereafter
were forcibly disappeared. After the said incident, relatives of the victims filed a case
for Abduction in the civil court against the herein suspects: Michael dela Cruz,
Madning dela Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza and Rudy
Mendoza as alleged members of the Citizen Armed Forces Geographical Unit
(CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in
(Exhibit B) states that he was at Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso,
Bulacan doing the concrete building of a church located nearby his residence,
together with some neighbor thereat. He claims that on 15 February 2006, he was
being informed by Brgy. Kagawad Pablo Umayan about the abduction of the brothers
Raymond and Reynaldo Manalo. As to the allegation that he was one of the
suspects, he claims that they only implicated him because he was a CAFGU and that
they claimed that those who abducted the Manalo brothers are members of the
Military and CAFGU. Subject vehemently denied any participation or involvement on
the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in
(Exhibit C) states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a CAA member based at Biak na Bato Detachment, San
Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo being his neighbors
are active members/sympathizers of the CPP/NPA and he also knows their elder
Rolando Manalo @ KA BESTRE of being an NPA Leader operating in their
province. That at the time of the alleged abduction of the two (2) brothers and for
accusing him to be one of the suspects, he claims that on February 14, 2006, he was
one of those working at the concrete chapel being constructed nearby his
residence. He claims further that he just came only to know about the incident on
other day (15 Feb 06) when he was being informed by Kagawad Pablo Kunanan. That
subject CAA vehemently denied any participation about the incident and claimed
that they only implicated him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit
O) states that he is a resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and
a member of CAFGU based at Biak na Bato Detachment. That being a neighbor, he
was very much aware about the background of the two (2) brothers Raymond and
Reynaldo as active supporters of the CPP NPA in their Brgy. and he also knew their
elder brother KUMANDER BESTRE TN: Rolando Manalo. Being one of the accused, he
claims that 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 CAFGUs,
they ought to be vigilant in protecting their village from any intervention by the
leftist group, hence inside their village, they were fully aware of the activities of
Raymond and Reynaldo Manalo in so far as their connection with the CPP/NPA is
concerned.
V.
CONCLUSION
6. Premises considered surrounding this case shows that the alleged charges of
abduction committed by the above named respondents has not been established in
this investigation. Hence, it lacks merit to indict them for any administrative

punishment and/or criminal liability. It is therefore concluded that they are innocent
of the charge.
VI.
RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy
Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L. Mendoza be
exonerated from the case.
8. Upon approval, this case can be dropped and closed.[69]
In this appeal under Rule 45, petitioners question the appellate courts assessment of
the foregoing evidence and assail the December 26, 2007 Decision on the following
grounds, viz:
I.THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND
GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE, UNCORROBORATED,
CONTRADICTED, AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO.
II.THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING
RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH TO THE MANALO
BROTHER(S) AND TO THE COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL
REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR CASE,
EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN WRITING THE
PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE
CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE COURT
OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND REPORTS OF ANY
TREATMENT GIVEN OR RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO
THE MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY
AND CIVILIAN) WHO ATTENDED TO THEM FROM FEBRUARY 14, 2006 UNTIL AUGUST
12, 2007.[70]
The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring proposition in the
recommendations that resulted from a two-day National Consultative Summit on
Extrajudicial Killings and Enforced Disappearances sponsored by the Court on July
16-17, 2007. TheSummit was envisioned to provide a broad and fact-based
perspective on the issue of extrajudicial killings and enforced disappearances,
[71]
hence representatives from all sides of the political and social spectrum, as well
as all the stakeholders in the justice system[72] participated in mapping out ways to
resolve the crisis.
On October 24, 2007, the Court promulgated the Amparo Rule in light of the
prevalence of extralegal killing and enforced disappearances.[73] It was an exercise
for the first time of the Courts expanded power to promulgate rules to protect our
peoples constitutional rights, which made its maiden appearance in the 1987
Constitution in response to the Filipino experience of the martial law regime. [74] As
the Amparo Rule was intended to address the intractable problem of extralegal
killings and enforced disappearances, its coverage, in its present form, is confined to
these two instances or to threats thereof. Extralegal killings are killings committed
without due process of law, i.e., without legal safeguards or judicial proceedings.
[75]
On the other hand, enforced disappearances are attended by the following
characteristics: an arrest, detention or abduction of a person by a government
official or organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal to acknowledge the deprivation of
liberty which places such persons outside the protection of law.[76]
The writ of amparo originated in Mexico. Amparo literally means protection in
Spanish.[77] In 1837, de Tocquevilles Democracy in America became available
in Mexico and stirred great interest. Its description of the practice of judicial review
in the U.S. appealed to many Mexican jurists.[78] One of them, Manuel Crescencio

Rejn, drafted a constitutional provision for his native state, Yucatan,[79]which granted
judges the power to protect all persons in the enjoyment of their constitutional and
legal rights. This idea was incorporated into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in the exercise and
preservation of those rights granted to him by this Constitution and by laws enacted
pursuant hereto, against attacks by the Legislative and Executive powers of the
federal or state governments, limiting themselves to granting protection in the
specific case in litigation, making no general declaration concerning the statute or
regulation that motivated the violation.[80]
Since then, the protection has been an important part of Mexican constitutionalism.
[81]
If, after hearing, the judge determines that a constitutional right of the petitioner
is being violated, he orders the official, or the officials superiors, to cease the
violation and to take the necessary measures to restore the petitioner to the full
enjoyment of the right in question. Amparo thus combines the principles of judicial
review derived from the U.S. with the limitations on judicial power characteristic of
the civil law tradition which prevails in Mexico. It enables courts to enforce the
constitution by protecting individual rights in particular cases, but prevents them
from using this power to make law for the entire nation. [82]
The writ of amparo then spread throughout the Western Hemisphere, gradually
evolving into various forms, in response to the particular needs of each country. [83] It
became, in the words of a justice of the Mexican Federal Supreme Court, one piece
ofMexicos self-attributed task of conveying to the worlds legal heritage that
institution which, as a shield of human dignity, her own painful history conceived.
[84]
What began as a protection against acts or omissions of public authorities in
violation of constitutional rights later evolved for several purposes: (1) amparo
libertad for the protection of personal freedom, equivalent to the habeas corpus writ;
(2) amparo contra leyes for the judicial review of the constitutionality of statutes;
(3) amparo casacion for the judicial review of the constitutionality and legality of a
judicial decision; (4) amparo administrativo for the judicial review of administrative
actions; and (5) amparo agrario for the protection of peasants rights derived from
the agrarian reform process.[85]
In Latin American countries, except Cuba, the writ of amparo has been
constitutionally adopted to protect against human rights abuses especially
committed in countries under military juntas. In general, these countries adopted an
all-encompassing writ to protect the whole gamut of constitutional rights, including
socio-economic rights.[86] Other countries like Colombia, Chile, Germanyand 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 amparoprotections 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 AmparoRule, 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 onOctober 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 metalstrong 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 Manalos affidavit and testimony, viz:
the abduction was perpetrated by armed men who were sufficiently identified by the
petitioners (herein respondents) to be military personnel and CAFGU
auxiliaries. Raymond recalled that the six armed men who barged into his house
through the rear door were military men based on their attire of fatigue pants and
army boots, and the CAFGU auxiliaries, namely: Michael de la Cruz, Madning de la
Cruz, Puti de la Cruz and Pula de la Cruz, all members of the CAFGU and residents of
Muzon, San Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza,
also CAFGU members, served as lookouts during the abduction. Raymond was sure
that three of the six military men were Ganata, who headed the abducting team,
Hilario, who drove the van, and George. Subsequent incidents of their long captivity,
as narrated by the petitioners, validated their assertion of the participation of the
elements of the 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. Palparans participation in the abduction was also established. At the very least,
he was aware of the petitioners captivity at the hands of men in uniform assigned to
his command. In fact, he or any other officer tendered no controversion to the firm
claim of Raymond that he (Gen. Palparan) met them in person in a safehouse in
Bulacan and told them what he wanted them and their parents to do or not to be
doing. Gen. Palparans direct and personal role in the abduction might not have been
shown but his knowledge of the dire situation of the petitioners during their long
captivity at the hands of military personnel under his command bespoke of his
indubitable command policy that unavoidably encouraged and not merely tolerated
the abduction of civilians without due process of law and without probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth Division
(Justices Buzon, chairman; Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr.,
member/ponente.) found no clear and convincing evidence to establish that M/Sgt.
Rizal Hilario had anything to do with the abduction or the detention. Hilarios
involvement could not, indeed, be then established after Evangeline Francisco, who
allegedly saw Hilario drive the van in which the petitioners were boarded and ferried

following the abduction, did not testify. (See the decision of the habeas proceedings
at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L-300 van in
which the petitioners were brought away from their houses onFebruary 14,
2006. Raymond also attested that Hilario participated in subsequent incidents
during the captivity of the petitioners, one of which was when Hilario fetched them
from Fort Magsaysay on board a Revo and conveyed them to a detachment in
Pinaud, San Ildefonso, Bulacan where they were detained for at least a week in a
house of strong materials (Exhibit D, rollo, p. 205) and then Hilario (along with Efren)
brought them to Sapang, San Miguel, Bulacan on board the Revo, to an unfinished
house inside the compound of Kapitan where they were kept for more or less three
months. (Exhibit D, rollo, p. 205) It was there where the petitioners came face to
face with Gen. Palparan. Hilario and Efren also brought the petitioners one early
morning to the house of the petitioners parents, where only Raymond was presented
to the parents to relay the message from Gen. Palparan not to join anymore
rallies. On that occasion, Hilario warned the parents that they would not again see
their sons should they join any rallies to denounce human rights violations. (Exhibit
D, rollo, pp. 205-206) Hilario was also among four Master Sergeants (the others
being Arman, Ganata and Cabalse) with whom Gen. Palparan conversed on the
occasion when Gen. Palparan required Raymond to take the medicines for his health.
(Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw that
Hilario had a direct hand in their torture.
It is clear, therefore, that the participation of Hilario in the abduction and forced
disappearance of the petitioners was established. The participation of other military
personnel like Arman, Ganata, Cabalse and Caigas, among others, was similarly
established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them personally involved in the
abduction. We also do, for, indeed, the evidence of their participation is
overwhelming.[101]
We reject the claim of petitioners that respondent Raymond Manalos statements
were not corroborated by other independent and credible pieces of evidence.
[102]
Raymonds affidavit and testimony were corroborated by the affidavit of
respondent Reynaldo Manalo. The testimony and medical reports prepared by
forensic specialist Dr. Molino, and the pictures of the scars left by the physical
injuries inflicted on respondents,[103] also corroborate respondents accounts of the
torture they endured while in detention.Respondent Raymond Manalos familiarity
with the facilities in Fort Magsaysay such as the DTU, as shown in his testimony and
confirmed by Lt. Col. Jimenez to be the Division Training Unit, [104] firms up
respondents story that they were detained for some time in said military facility.
In Ortiz v. Guatemala,[105] a case decided by the Inter-American Commission on
Human Rights, the Commission considered similar evidence, among others, in
finding that complainant Sister Diana Ortiz was abducted and tortured by agents of
the Guatemalan government. In this case, Sister Ortiz was kidnapped and tortured in
early November 1989. The Commissions findings of fact were mostly based on the
consistent and credible statements, written and oral, made by Sister Ortiz regarding
her ordeal.[106]These statements were supported by her recognition of portions of the
route they took when she was being driven out of the military installation where she
was detained.[107] She was also examined by a medical doctor whose findings
showed that the 111 circular second degree burns on her back and abrasions on her
cheek coincided with her account of cigarette burning and torture she suffered while
in detention.[108]
With the secret nature of an enforced disappearance and the torture perpetrated on
the victim during detention, it logically holds that much of the information and
evidence of the ordeal will come from the victims themselves, and the veracity of
their account will depend on their credibility and candidness in their written and/or
oral statements. Their statements can be corroborated by other evidence such as

physical evidence left by the torture they suffered or landmarks they can identify in
the places where they were detained. Where powerful military officers are
implicated, the hesitation of witnesses to surface and testify against them comes as
no surprise.
We now come to the right of the respondents to the privilege of the writ
of amparo. There is no quarrel that the enforced disappearance of both respondents
Raymond and Reynaldo Manalo has now passed as they have escaped from captivity
and surfaced. But while respondents admit that they are no longer in detention and
are physically free, they assert that they are not free in every sense of the
word[109] as their movements continue to be restricted for fear that people they have
named in their Judicial Affidavits and testified against (in the case of Raymond) are
still at large and have not been held accountable in any way. These people are
directly connected to the Armed Forces of the Philippines and are, thus, in a position
to threaten respondents rights to life, liberty and security.[110] (emphasis
supplied) Respondents claim that they are under threat of being once again
abducted, kept captive or even killed, which constitute a direct violation of
their right to security of person.[111]
Elaborating on the right to security, in general, respondents point out that this
right is often associated with liberty; it is also seen as an expansion of rights based
on the prohibition against torture and cruel and unusual punishment. Conceding that
there is no right to security expressly mentioned in Article III of the 1987
Constitution, they submit that their rights to be kept free from torture and
from incommunicado detention and solitary detention places[112] fall under the
general coverage of the right to security of person under the writ of Amparo. They
submit that the Court ought to give an expansive recognition of the right to security
of person in view of the State Policy under Article II of the 1987 Constitution which
enunciates that, The State values the dignity of every human person and guarantees
full respect for human rights. Finally, to justify a liberal interpretation of the right to
security of person, respondents cite the teaching in Moncupa v. Enrile[113] that the
right to liberty may be made more meaningful only if there is no undue restraint by
the State on the exercise of that liberty [114] such as a requirement to report under
unreasonable restrictions that amounted to a deprivation of liberty [115] or being put
under monitoring and surveillance.[116]
In sum, respondents assert that their cause of action consists in the threat to their
right to life and liberty, and a violation of their right to security.
Let us put this right to security under the lens to determine if it has indeed
been violated as respondents assert. The right to security or the right to
security of person finds a textual hook in Article III, Section 2 of the 1987
Constitution which provides,viz:
Sec. 2. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge
At the core of this guarantee is the immunity of ones person, including the
extensions of his/her person houses, papers, and effects against government
intrusion. Section 2 not only limits the states power over a persons home and
possessions, but more importantly, protects the privacy and sanctity of the person
himself.[117] The purpose of this provision was enunciated by the Court in People v.
CFI of Rizal, Branch IX, Quezon City, viz: [118]
The purpose of the constitutional guarantee against unreasonable searches and
seizures is to prevent violations of private security in person and property and
unlawful invasion of the security of the home by officers of the law acting under
legislative or judicial sanction and to give remedy against such usurpation when
attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]).
The right to privacy is an essential condition to the dignity and happiness and
to the peace and security of every individual, whether it be of home or of
persons and correspondence. (Taada and Carreon, Political Law of the

Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great


fundamental right against unreasonable searches and seizures must be deemed
absolute as nothing is closer to a mans soul than the serenity of his privacy
and the assurance of his personal security. Any interference allowable can only
be for the best causes and reasons.[119] (emphases supplied)
While the right to life under Article III, Section 1[120] guarantees essentially the right
to be alive[121] - upon which the enjoyment of all other rights is preconditioned - the
right to security of person is a guarantee of the secure quality of this life, viz: The
life to which each person has a right is not a life lived in fear that his person and
property may be unreasonably violated by a powerful ruler. Rather, it is a life lived
with the assurance that the government he established and consented to, will
protect the security of his person and property. The ideal of security in life and
property pervades the whole history of man. It touches every aspect of mans
existence.[122] In a broad sense, the right to security of person emanates in a persons
legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his
reputation. It includes the right to exist, and the right to enjoyment of life while
existing, and it is invaded not only by a deprivation of life but also of those things
which are necessary to the enjoyment of life according to the nature, temperament,
and lawful desires of the individual.[123]
A closer look at the right to security of person would yield various permutations of
the exercise of this right.
First, the right to security of person is freedom from fear. In its whereas
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that a
world in which human beings shall enjoy freedom of speech and belief and freedom
from fearand want has been proclaimed as the highest aspiration of the common
people. (emphasis supplied) Some scholars postulate thatfreedom 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 wellfounded as people react differently. The degree of fear can vary from one person to
another with the variation of the prolificacy of their imagination, strength of
character or past experience with the stimulus. Thus, in the amparo context, it is
more correct to say that the right to security is actually the freedom from
threat. Viewed in this light, the threatened with violation Clause in the latter part of
Section 1 of the Amparo Rule is a form of violation of the right to security mentioned
in the earlier part of the provision.[127]
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987 Constitution
guarantees that, as a general rule, ones body cannot be searched or invaded
without a search warrant.[128] Physical injuries inflicted in the context of extralegal
killings and enforced disappearances constitute more than a search or invasion of
the body. It may constitute dismemberment, physical disabilities, and painful
physical intrusion. As the degree of physical injury increases, the danger to life itself

escalates. Notably, in criminal law, physical injuries constitute a crime against


persons because they are an affront to the bodily integrity or security of a person.
[129]

Physical torture, force, and violence are a severe invasion of bodily integrity. When
employed to vitiate the free will such as to force the victim to admit, reveal or
fabricate incriminating information, it constitutes an invasion of both bodily and
psychological integrity as the dignity of the human person includes the exercise of
free will. Article III, Section 12 of the 1987 Constitution more specifically proscribes
bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other means which
vitiate the free will shall be used against him (any person under investigation for the
commission of an offense). Secret detention places, solitary, incommunicado or
other similar forms of detention are prohibited.
Parenthetically, under this provision, threat and intimidation that vitiate the free will
- although not involving invasion of bodily integrity - nevertheless constitute a
violation of the right to security in the sense of freedom from threat as aforediscussed.
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 ones
rights by the government. In the context of the writ of amparo, this right is built
into the guarantees of the right to life and liberty under Article III, Section 1 of
the 1987 Constitution and the right to security of person (as freedom from
threat and guarantee of bodily and psychological integrity) under Article III, Section

2. The right to security of person in this third sense is a corollary of the policy that
the State guarantees full respect for human rights under Article II, Section 11 of the
1987 Constitution.[133] As the government is the chief guarantor of order and
security, the Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection to these
rights especially when they are under threat. Protection includes conducting
effective investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar of justice. The InterAmerican Court of Human Rights stressed the importance of investigation in
the Velasquez Rodriguez Case,[134] viz:
(The duty to investigate) must be undertaken in a serious manner and not as
a mere formality preordained to be ineffective. An investigation must have an
objective and be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the victim or
his family or upon their offer of proof, without an effective search for the truth by
the government.[135]
This third sense of the right to security of person as a guarantee of government
protection has been interpreted by the United Nations Human Rights
Committee[136] in not a few cases involving Article 9[137] of the ICCPR. While the right
to security of person appears in conjunction with the right to liberty under Article 9,
the Committee has ruled that the right to security of person can exist
independently of the right to liberty. In other words, there need not necessarily
be a deprivation of liberty for the right to security of person to be
invoked. In Delgado Paez v. Colombia,[138] a case involving death threats to a
religion teacher at a secondary school in Leticia, Colombia, whose social views
differed from those of the Apostolic Prefect of Leticia, the Committee held, viz:
The first sentence of article 9 does not stand as a separate paragraph. Its location as
a part of paragraph one could lead to the view that the right to security arises only
in the context of arrest and detention. The travaux prparatoires indicate that the
discussions of the first sentence did indeed focus on matters dealt with in the other
provisions of article 9. The Universal Declaration of Human Rights, in article
3, refers to the right to life, the right to liberty and the right to security of
the person. These elements have been dealt with in separate clauses in
the Covenant. Although in the Covenant the only reference to the right of
security of person is to be found in article 9, there is no evidence that it
was intended to narrow the concept of the right to security only to
situations of formal deprivation of liberty. At the same time, States parties
have undertaken to guarantee the rights enshrined in the Covenant. It
cannot be the case that, as a matter of law, States can ignore known
threats to the life of persons under their jurisdiction, just because that he
or she is not arrested or otherwise detained. States parties are under an
obligation to take reasonable and appropriate measures to protect
them. An interpretation of article 9 which would allow a State party to
ignore threats to the personal security of non-detained persons within its
jurisdiction would render totally ineffective the guarantees of the
Covenant.[139] (emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,[140] which involved a political
activist and prisoner of conscience who continued to be intimidated, harassed, and
restricted in his movements following his release from detention. In a catena of
cases, the ruling of the Committee was of a similar import: Bahamonde v.
Equatorial Guinea,[141] involving discrimination, intimidation and persecution of
opponents of the ruling party in that state; Tshishimbi v. Zaire,[142] involving the
abduction of the complainants husband who was a supporter of democratic reform
in Zaire; Dias v. Angola,[143] involving the murder of the complainants partner and
the harassment he (complainant) suffered because of his investigation of the

murder; and Chongwe v. Zambia,[144] involving an assassination attempt on the


chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the right to
security not only as prohibiting the State from arbitrarily depriving liberty, but
imposing a positive duty on the State to afford protection of the right to liberty.
[145]
The ECHR interpreted the right to security of person under Article 5(1) of the
European Convention of Human Rights in the leading case on disappearance of
persons, Kurt v. Turkey.[146] In this case, the claimants son had been arrested by
state authorities and had not been seen since. The familys requests for information
and investigation regarding his whereabouts proved futile. The claimant suggested
that this was a violation of her sons right to security of person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping with
the very purpose of Article 5, namely to protect the individual from arbitrariness...
Having assumed control over that individual it is incumbent on the authorities to
account for his or her whereabouts. For this reason, Article 5 must be seen as
requiring the authorities to take effective measures to safeguard against
the risk of disappearance and to conduct a prompt effective investigation
into an arguable claim that a person has been taken into custody and has
not been seen since.[147] (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case at bar,
we now determine whether there is a continuing violation of respondents right to
security.
First, the violation of the right to security as freedom from threat to
respondents life, liberty and security.
While respondents were detained, they were threatened that if they escaped, their
families, including them, would be killed. In Raymonds narration, he was tortured
and poured with gasoline after he was caught the first time he attempted to escape
from FortMagsaysay. A call from a certain Mam, who wanted to see him before he
was killed, spared him.
This time, respondents have finally escaped. The condition of the threat to be killed
has come to pass. It should be stressed that they are now free from captivity not
because they were released by virtue of a lawful order or voluntarily freed by their
abductors. It ought to be recalled that towards the end of their ordeal, sometime in
June 2007 when respondents were detained in a camp in Limay,Bataan, respondents
captors even told them that they were still deciding whether they should be
executed. Respondent Raymond Manalo attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na
araw pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung papatayin kami o hindi.[148]
The possibility of respondents being executed stared them in the eye while they
were in detention. With their escape, this continuing threat to their life is apparent,
moreso now that they have surfaced and implicated specific officers in the military
not only in their own abduction and torture, but also in those of other persons known
to have disappeared such as Sherlyn Cadapan, Karen Empeo, and Manuel Merino,
among others.
Understandably, since their escape, respondents have been under concealment and
protection by private citizens because of the threat to their life, liberty and
security. The threat vitiates their free will as they are forced to limit their movements
or activities.[149]Precisely because respondents are being shielded from the
perpetrators of their abduction, they cannot be expected to show evidence of overt
acts of threat such as face-to-face intimidation or written threats to their life, liberty
and security. Nonetheless, the circumstances of respondents abduction, detention,
torture and escape reasonably support a conclusion that there is an apparent threat
that they will again be abducted, tortured, and this time, even executed. These

constitute threats to their liberty, security, and life, actionable through a petition for
a writ of amparo.
Next, the violation of the right to security as protection by the
government. Apart from the failure of military elements to provide protection to
respondents by themselves perpetrating the abduction, detention, and torture, they
also miserably failed in conducting an effective investigation of respondents
abduction as revealed by the testimony and investigation report of petitioners own
witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7 th Infantry Division.
The one-day investigation conducted by Jimenez was very limited, superficial, and
one-sided. He merely relied on the Sworn Statements of the six implicated members
of the CAFGU and civilians whom he met in the investigation for the first time. He
was present at the investigation when his subordinate Lingad was taking the sworn
statements, but he did not propound a single question to ascertain the veracity of
their statements or their credibility. He did not call for other witnesses to test the
alibis given by the six implicated persons nor for the family or neighbors of the
respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a
Memorandum Directive dated October 31, 2007, he issued a policy directive
addressed to the AFP Chief of Staff, that the AFP should adopt rules of action in the
event the writ of amparo is issued by a competent court against any members of the
AFP, which should essentially include verification of the identity of the aggrieved
party; recovery and preservation of relevant evidence; identification of witnesses
and securing statements from them; determination of the cause, manner, location
and time of death or disappearance; identification and apprehension of the person
or persons involved in the death or disappearance; and bringing of the suspected
offenders before a competent court.[150] Petitioner AFP Chief of Staff also submitted
his own affidavit attesting that he received the above directive of respondent
Secretary of National Defense and that acting on this directive, he immediately
caused to be issued a directive to the units of the AFP for the purpose of establishing
the circumstances of the alleged disappearance and the recent reappearance of the
respondents, and undertook to provide results of the investigations to respondents.
[151]
To this day, however, almost a year after the policy directive was issued by
petitioner Secretary of National Defense on October 31, 2007, respondents have not
been furnished the results of the investigation which they now seek through the
instant petition for a writ of amparo.
Under these circumstances, there is substantial evidence to warrant the conclusion
that there is a violation of respondents right to security as a guarantee of protection
by the government.
In sum, we conclude that respondents right to security as freedom from threat is
violated by the apparent threat to their life, liberty and security of person. Their right
to security as a guarantee of protection by the government is likewise violated by
the ineffective investigation and protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals, which petitioners
question.
First, that petitioners furnish respondents all official and unofficial reports of
the investigation undertaken in connection with their case, except those already
in file with the court.
Second, that petitioners confirm in writing the present places of official
assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.
Third, that petitioners cause to be produced to the Court of Appeals all medical
reports, records and charts, and reports of any treatment given or
recommended and medicines prescribed, if any, to the Manalo brothers, to
include a list of medical personnel (military and civilian) who attended to
them from February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs, petitioners argue that the production
order sought by respondents partakes of the characteristics of a search
warrant. Thus, they claim that the requisites for the issuance of a search warrant

must be complied with prior to the grant of the production order, namely: (1) the
application must be under oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and the things to be seized; (3) there
exists probable cause with one specific offense; and (4) the probable cause must be
personally determined by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce.[152] In the case at bar, however,
petitioners point out that other than the bare, self-serving and vague allegations
made by respondent Raymond Manalo in his unverified declaration and affidavit, the
documents respondents seek to be produced are only mentioned generally by name,
with no other supporting details. They also argue that the relevancy of the
documents to be produced must be apparent, but this is not true in the present case
as the involvement of petitioners in the abduction has not been shown.
Petitioners arguments do not hold water. The production order under
the Amparo Rule should not be confused with a search warrant for law enforcement
under Article III, Section 2 of the 1987 Constitution. This Constitutional provision is a
protection of the people from the unreasonable intrusion of the government, not a
protection of the government from the demand of the people such as respondents.
Instead, the amparo production order may be likened to the production of
documents or things under Section 1, Rule 27 of the Rules of Civil Procedure which
provides in relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause therefor, the court in which an
action is pending may (a) order any party to produce and permit the inspection and
copying or photographing, by or on behalf of the moving party, of any designated
documents, papers, books of accounts, letters, photographs, objects or tangible
things, not privileged, which constitute or contain evidence material to any matter
involved in the action and which are in his possession, custody or control
In Material Distributors (Phil.) Inc. v. Judge Natividad, [153] the respondent
judge, under authority of Rule 27, issued asubpoena 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 ofAmparo 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.
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND
GENEROSO OCAMPO, petitioners, vs.COMMISSION ON HUMAN RIGHTS,
ROQUE FERMO, AND OTHERS AS JOHN DOES, respondents.
The extent of the authority and power of the Commission on Human Rights ("CHR")
is again placed into focus in this petition for prohibition, with prayer for a restraining
order and preliminary injunction. The petitioners ask us to prohibit public respondent
CHR from further hearing and investigating CHR Case No. 90-1580, entitled "Fermo,
et al. vs. Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos
Quimpo (one of the petitioners) in his capacity as an Executive Officer of the Quezon
City Integrated Hawkers Management Council under the Office of the City Mayor,
was sent to, and received by, the private respondents (being the officers and
members of the North EDSA Vendors Association, Incorporated). In said notice, the
respondents were given a grace-period of three (3) days (up to 12 July 1990) within
which to vacate the questioned premises of North EDSA.1 Prior to their receipt of the
demolition notice, the private respondents were informed by petitioner Quimpo that
their stalls should be removed to give way to the "People's Park". 2 On 12 July 1990,
the group, led by their President Roque Fermo, filed a letter-complaint (Pinagsamang Sinumpaang Salaysay) with the CHR against the petitioners, asking the late
CHR Chairman Mary Concepcion Bautista for a letter to be addressed to then Mayor
Brigido Simon, Jr., of Quezon City to stop the demolition of the private respondents'
stalls, sari-sari stores, and carinderia along North EDSA. The complaint was docketed
as CHR Case No. 90-1580. 3 On 23 July 1990, the CHR issued an Order, directing the
petitioners "to desist from demolishing the stalls and shanties at North EDSA
pending resolution of the vendors/squatters' complaint before the Commission" and
ordering said petitioners to appear before the CHR. 4
On the basis of the sworn statements submitted by the private respondents on 31
July 1990, as well as CHR's own ocular inspection, and convinced that on 28 July
1990 the petitioners carried out the demolition of private respondents' stalls, sarisari stores and carinderia, 5 the CHR, in its resolution of 1 August 1990, ordered the
disbursement of financial assistance of not more than P200,000.00 in favor of the
private respondents to purchase light housing materials and food under the
Commission's supervision and again directed the petitioners to "desist from further
demolition, with the warning that violation of said order would lead to a citation for
contempt and arrest." 6
A motion to dismiss, 7 dated 10 September 1990, questioned CHR's jurisdiction. The
motion also averred, among other things, that:
1. this case came about due to the alleged violation by the (petitioners) of the InterAgency Memorandum of Agreement whereby Metro-Manila Mayors agreed on a
moratorium in the demolition of the dwellings of poor dwellers in Metro-Manila;
xxx xxx xxx
3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to
therein refers to moratorium in the demolition of the structures of poor dwellers;
4. that the complainants in this case (were) not poor dwellers but independent
business entrepreneurs even this Honorable Office admitted in its resolution of 1
August 1990 that the complainants are indeed, vendors;
5. that the complainants (were) occupying government land, particularly the
sidewalk of EDSA corner North Avenue, Quezon City; . . . and
6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and
authority whether or not a certain business establishment (should) be allowed to
operate within the jurisdiction of Quezon City, to revoke or cancel a permit, if
already issued, upon grounds clearly specified by law and ordinance. 8
During the 12 September 1990 hearing, the petitioners moved for postponement,
arguing that the motion to dismiss set for 21 September 1990 had yet to be

resolved. The petitioners likewise manifested that they would bring the case to the
courts.
On 18 September 1990 a supplemental motion to dismiss was filed by the
petitioners, stating that the Commission's authority should be understood as being
confined only to the investigation of violations of civil and political rights, and that
"the rights allegedly violated in this case (were) not civil and political rights, (but)
their privilege to engage in business." 9
On 21 September 1990, the motion to dismiss was heard and submitted for
resolution, along with the contempt charge that had meantime been filed by the
private respondents, albeit vigorously objected to by petitioners (on the ground that
the motion to dismiss was still then unresolved). 10
In an Order, 11 dated 25 September 1990, the CHR cited the petitioners in contempt
for carrying out the demolition of the stalls, sari-sari stores and carinderia despite
the "order to desist", and it imposed a fine of P500.00 on each of them.
On 1 March 1991, 12 the CHR issued an Order, denying petitioners' motion to dismiss
and supplemental motion to dismiss, in this wise:
Clearly, the Commission on Human Rights under its constitutional mandate had
jurisdiction over the complaint filed by the squatters-vendors who complained of the
gross violations of their human and constitutional rights. The motion to dismiss
should be and is hereby DENIED for lack of merit. 13
The CHR opined that "it was not the intention of the (Constitutional) Commission to
create only a paper tiger limited only to investigating civil and political rights, but it
(should) be (considered) a quasi-judicial body with the power to provide appropriate
legal measures for the protection of human rights of all persons within the
Philippines . . . ." It added:
The right to earn a living is a right essential to one's right to development, to life and
to dignity. All these brazenly and violently ignored and trampled upon by
respondents with little regard at the same time for the basic rights of women and
children, and their health, safety and welfare. Their actions have psychologically
scarred and traumatized the children, who were witness and exposed to such a
violent demonstration of Man's inhumanity to man.
In an Order, 14 dated 25 April 1991, petitioners' motion for reconsideration was
denied.
Hence, this recourse.
The petition was initially dismissed in our resolution 15 of 25 June 1991; it was
subsequently reinstated, however, in our resolution 16 of 18 June 1991, in which we
also issued a temporary restraining order, directing the CHR to "CEASE and DESIST
from further hearing CHR No. 90-1580." 17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business rights" of the private
respondents whose stalls were demolished by the petitioners at the instance and
authority given by the Mayor of Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by
the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General was excused from
filing his comment for public respondent CHR. The latter thus filed its own
comment, 18 through Hon. Samuel Soriano, one of its Commissioners. The Court also
resolved to dispense with the comment of private respondent Roque Fermo, who had
since failed to comply with the resolution, dated 18 July 1991, requiring such
comment.
The petition has merit.
The Commission on Human Rights was created by the 1987
Constitution. 19 It was formally constituted by then President Corazon
Aquino via Executive Order No. 163, 20 issued on 5 May 1987, in the exercise of her

legislative power at the time. It succeeded, but so superseded as well, the


Presidential Committee on Human Rights. 21
The powers and functions 22 of the Commission are defined by the 1987 Constitution,
thus: to
(1) Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the underprivileged whose human
rights have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention facilities;
(5) Establish a continuing program of research, education, and information to
enhance respect for the primacy of human rights;
(6) Recommend to the Congress effective measures to promote human rights and to
provide for compensation to victims of violations of human rights, or their families;
(7) Monitor the Philippine Government's compliance with international treaty
obligations on human rights;
(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to determine
the truth in any investigation conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;
(10) Appoint its officers and employees in accordance with law; and
(11) Perform such other duties and functions as may be provided by law.
In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR
theorizes that the intention of the members of the Constitutional Commission is to
make CHR a quasi-judicial body. 23 This view, however, has not heretofore been
shared by this Court. In Cario v. Commission on Human Rights, 24 the Court, through
then Associate Justice, now Chief Justice Andres Narvasa, has observed that it is
"only the first of the enumerated powers and functions that bears any resemblance
to adjudication or adjudgment," but that resemblance can in no way be synonymous
to the adjudicatory power itself. The Court explained:
. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law
to be another court or quasi-judicial agency in this country, or duplicate much less
take over the functions of the latter.
The most that may be conceded to the Commission in the way of adjudicative power
is that it may investigate, i.e., receive evidence and make findings of fact as regards
claimed human rights violations involving civil and political rights. But fact finding is
not adjudication, and cannot be likened to the judicial function of a court of justice,
or even a quasi-judicial agency or official. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function, properly
speaking. To be considered such, the faculty of receiving evidence and making
factual conclusions in a controversy must be accompanied by the authority of
applying the law to those factual conclusions to the end that the controversy may be
decided or determined authoritatively, finally and definitively, subject to such
appeals or modes of review as may be provided by law. This function, to repeat, the
Commission does not have.
After thus laying down at the outset the above rule, we now proceed to the other
kernel of this controversy and, its is, to determine the extent of CHR's investigative
power.
It can hardly be disputed that the phrase "human rights" is so generic a term that
any attempt to define it, albeit not a few have tried, could at best be described as
inconclusive. Let us observe. In a symposium on human rights in the Philippines,
sponsored by the University of the Philippines in 1977, one of the questions that has
been propounded is "(w)hat do you understand by "human rights?" The participants,

representing different sectors of the society, have given the following varied
answers:
Human rights are the basic rights which inhere in man by virtue of his humanity.
They are the same in all parts of the world, whether the Philippines or England,
Kenya or the Soviet Union, the United States or Japan, Kenya or Indonesia . . . .
Human rights include civil rights, such as the right to life, liberty, and property;
freedom of speech, of the press, of religion, academic freedom, and the rights of the
accused to due process of law; political rights, such as the right to elect public
officials, to be elected to public office, and to form political associations and engage
in politics; and social rights, such as the right to an education, employment, and
social services. 25
Human rights are the entitlement that inhere in the individual person from the sheer
fact of his humanity. . . . Because they are inherent, human rights are not granted by
the State but can only be recognized and protected by it. 26
(Human rights include all) the civil, political, economic, social, and cultural rights
defined in the Universal Declaration of Human Rights. 27
Human rights are rights that pertain to man simply because he is human. They are
part of his natural birth, right, innate and inalienable. 28
The Universal Declaration of Human Rights, as well as, or more specifically, the
International Covenant on Economic, Social and Cultural Rights and International
Covenant on Civil and Political Rights, suggests that the scope of human rights can
be understood to include those that relate to an individual's social, economic,
cultural, political and civil relations. It thus seems to closely identify the term to the
universally accepted traits and attributes of an individual, along with what is
generally considered to be his inherent and inalienable rights, encompassing almost
all aspects of life.
Have these broad concepts been equally contemplated by the framers of our 1986
Constitutional Commission in adopting the specific provisions on human rights and
in creating an independent commission to safeguard these rights? It may of value to
look back at the country's experience under the martial law regime which may have,
in fact, impelled the inclusions of those provisions in our fundamental law. Many
voices have been heard. Among those voices, aptly represented perhaps of the
sentiments expressed by others, comes from Mr. Justice J.B.L. Reyes, a respected
jurist and an advocate of civil liberties, who, in his paper, entitled "Present State of
Human Rights in the Philippines," 29 observes:
But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights
most of the human rights expressed in the International Covenant, these rights
became unavailable upon the proclamation of Martial Law on 21 September 1972.
Arbitrary action then became the rule. Individuals by the thousands became subject
to arrest upon suspicion, and were detained and held for indefinite periods,
sometimes for years, without charges, until ordered released by the Commander-inChief or this representative. The right to petition for the redress of grievances
became useless, since group actions were forbidden. So were strikes. Press and
other mass media were subjected to censorship and short term licensing. Martial law
brought with it the suspension of the writ of habeas corpus, and judges lost
independence and security of tenure, except members of the Supreme Court. They
were required to submit letters of resignation and were dismissed upon the
acceptance thereof. Torture to extort confessions were practiced as declared by
international bodies like Amnesty International and the International Commission of
Jurists.
Converging our attention to the records of the Constitutional Commission, we can
see the following discussions during its 26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the
importance of human rights and also because civil and political rights have been
determined by many international covenants and human rights legislations in the
Philippines, as well as the Constitution, specifically the Bill of Rights and subsequent
legislation. Otherwise, if we cover such a wide territory in area, we might diffuse its

impact and the precise nature of its task, hence, its effectivity would also be
curtailed.
So, it is important to delienate the parameters of its tasks so that the commission
can be most effective.
MR. BENGZON. That is precisely my difficulty because civil and political rights are
very broad. The Article on the Bill of Rights covers civil and political rights. Every
single right of an individual involves his civil right or his political right. So, where do
we draw the line?
MR. GARCIA. Actually, these civil and political rights have been made clear in the
language of human rights advocates, as well as in the Universal Declaration of
Human Rights which addresses a number of articles on the right to life, the right
against torture, the right to fair and public hearing, and so on. These are very
specific rights that are considered enshrined in many international documents and
legal instruments as constituting civil and political rights, and these are precisely
what we want to defend here.
MR. BENGZON. So, would the commissioner say civil and political rights as defined in
the Universal Declaration of Human Rights?
MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and
Political Rights distinguished this right against torture.
MR. BENGZON. So as to distinguish this from the other rights that we have?
MR. GARCIA. Yes, because the other rights will encompass social and economic
rights, and there are other violations of rights of citizens which can be addressed to
the proper courts and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the commission to define its functions, and,
therefore, in doing that the commission will be authorized to take under its wings
cases which perhaps heretofore or at this moment are under the jurisdiction of the
ordinary investigative and prosecutorial agencies of the government. Am I correct?
MR. GARCIA. No. We have already mentioned earlier that we would like to define the
specific parameters which cover civil and political rights as covered by the
international standards governing the behavior of governments regarding the
particular political and civil rights of citizens, especially of political detainees or
prisoners. This particular aspect we have experienced during martial law which we
would now like to safeguard.
MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are
really trying to say is, perhaps, at the proper time we could specify all those rights
stated in the Universal Declaration of Human Rights and defined as human rights.
Those are the rights that we envision here?
MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our
Constitution. They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill
of Rights covered by human rights?
MR. GARCIA. No, only those that pertain to civil and political rights.
xxx xxx xxx
MR. RAMA. In connection with the discussion on the scope of human rights, I would
like to state that in the past regime, everytime we invoke the violation of human
rights, the Marcos regime came out with the defense that, as a matter of fact, they
had defended the rights of people to decent living, food, decent housing and a life
consistent with human dignity.
So, I think we should really limit the definition of human rights to political rights. Is
that the sense of the committee, so as not to confuse the issue?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and respond also to repeated points raised by
the previous speaker.
There are actually six areas where this Commission on Human Rights could act
effectively: 1) protection of rights of political detainees; 2) treatment of prisoners

and the prevention of tortures; 3) fair and public trials; 4) cases of disappearances;
5) salvagings and hamletting; and 6) other crimes committed against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona is recognized.
MR. GUINGONA. Thank You Madam President.
I would like to start by saying that I agree with Commissioner Garcia that we
should, in order to make the proposed Commission more effective, delimit as much
as possible, without prejudice to future expansion. The coverage of the concept and
jurisdictional area of the term "human rights". I was actually disturbed this morning
when the reference was made without qualification to the rights embodied in the
universal Declaration of Human Rights, although later on, this was qualified to refer
to civil and political rights contained therein.
If I remember correctly, Madam President, Commissioner Garcia, after mentioning
the Universal Declaration of Human Rights of 1948, mentioned or linked the concept
of human right with other human rights specified in other convention which I do not
remember. Am I correct?
MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of
1985?
MR. GUINGONA. I do not know, but the commissioner mentioned another.
MR. GARCIA. Madam President, the other one is the International Convention on Civil
and Political Rights of which we are signatory.
MR. GUINGONA. I see. The only problem is that, although I have a copy of the
Universal Declaration of Human Rights here, I do not have a copy of the other
covenant mentioned. It is quite possible that there are rights specified in that other
convention which may not be specified here. I was wondering whether it would be
wise to link our concept of human rights to general terms like "convention," rather
than specify the rights contained in the convention.
As far as the Universal Declaration of Human Rights is concerned, the Committee,
before the period of amendments, could specify to us which of these articles in the
Declaration will fall within the concept of civil and political rights, not for the purpose
of including these in the proposed constitutional article, but to give the sense of the
Commission as to what human rights would be included, without prejudice to
expansion later on, if the need arises. For example, there was no definite reply to
the question of Commissioner Regalado as to whether the right to marry would be
considered a civil or a social right. It is not a civil right?
MR. GARCIA. Madam President, I have to repeat the various specific civil and political
rights that we felt must be envisioned initially by this provision freedom from
political detention and arrest prevention of torture, right to fair and public trials, as
well as crimes involving disappearance, salvagings, hamlettings and collective
violations. So, it is limited to politically related crimes precisely to protect the civil
and political rights of a specific group of individuals, and therefore, we are not
opening it up to all of the definite areas.
MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer
linking his concept or the concept of the Committee on Human Rights with the socalled civil or political rights as contained in the Universal Declaration of Human
Rights.
MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I
was referring to an international instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we will refer to each and every specific
article therein, but only to those that pertain to the civil and politically related, as we
understand it in this Commission on Human Rights.
MR. GUINGONA. Madam President, I am not even clear as to the distinction between
civil and social rights.
MR. GARCIA. There are two international covenants: the International Covenant and
Civil and Political Rights and the International Covenant on Economic, Social and

Cultural Rights. The second covenant contains all the different rights-the rights of
labor to organize, the right to education, housing, shelter, et cetera.
MR. GUINGONA. So we are just limiting at the moment the sense of the committee to
those that the Gentlemen has specified.
MR. GARCIA. Yes, to civil and political rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the standpoint of the victims of human rights, I
cannot stress more on how much we need a Commission on Human Rights. . . .
. . . human rights victims are usually penniless. They cannot pay and very few
lawyers will accept clients who do not pay. And so, they are the ones more abused
and oppressed. Another reason is, the cases involved are very delicate torture,
salvaging, picking up without any warrant of arrest, massacre and the persons
who are allegedly guilty are people in power like politicians, men in the military and
big shots. Therefore, this Human Rights Commission must be independent.
I would like very much to emphasize how much we need this commission, especially
for the little Filipino, the little individual who needs this kind of help and cannot get
it. And I think we should concentrate only on civil and political violations because if
we open this to land, housing and health, we will have no place to go again and we
will not receive any response. . . . 30 (emphasis supplied)
The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is
a provision empowering the Commission on Human Rights to "investigate, on its
own or on complaint by any party, all forms of human rights violations involving civil
and political rights" (Sec. 1).
The term "civil rights," 31 has been defined as referring
(t)o those (rights) that belong to every citizen of the state or country, or, in wider
sense, to all its inhabitants, and are not connected with the organization or
administration of the government. They include the rights of property, marriage,
equal protection of the laws, freedom of contract, etc. Or, as otherwise defined civil
rights are rights appertaining to a person by virtue of his citizenship in a state or
community. Such term may also refer, in its general sense, to rights capable of being
enforced or redressed in a civil action.
Also quite often mentioned are the guarantees against involuntary servitude,
religious persecution, unreasonable searches and seizures, and imprisonment for
debt. 32
Political rights, 33 on the other hand, are said to refer to the right to participate,
directly or indirectly, in the establishment or administration of government, the right
of suffrage, the right to hold public office, the right of petition and, in general, the
rights appurtenant to citizenship vis-a-vis the management of government. 34
Recalling the deliberations of the Constitutional Commission, aforequoted, it is
readily apparent that the delegates envisioned a Commission on Human Rights that
would focus its attention to the more severe cases of human rights violations.
Delegate Garcia, for instance, mentioned such areas as the "(1) protection of rights
of political detainees, (2) treatment of prisoners and the prevention of tortures, (3)
fair and public trials, (4) cases of disappearances, (5) salvagings and hamletting,
and (6) other crimes committed against the religious." While the enumeration has
not likely been meant to have any preclusive effect, more than just expressing a
statement of priority, it is, nonetheless, significant for the tone it has set. In any
event, the delegates did not apparently take comfort in peremptorily making a
conclusive delineation of the CHR's scope of investigatorial jurisdiction. They have
thus seen it fit to resolve, instead, that "Congress may provide for other cases of
violations of human rights that should fall within the authority of the Commission,
taking into account its recommendation." 35
In the particular case at hand, there is no cavil that what are sought to be
demolished are the stalls, sari-saristores and carinderia, as well as temporary
shanties, erected by private respondents on a land which is planned to be developed
into a "People's Park". More than that, the land adjoins the North EDSA of Quezon

City which, this Court can take judicial notice of, is a busy national highway. The
consequent danger to life and limb is not thus to be likewise simply ignored. It is
indeed paradoxical that a right which is claimed to have been violated is one that
cannot, in the first place, even be invoked, if it is, in fact, extant. Be that as it may,
looking at the standards hereinabove discoursed vis-a-vis the circumstances
obtaining in this instance, we are not prepared to conclude that the order for the
demolition of the stalls, sari-sari stores and carinderia of the private respondents can
fall within the compartment of "human rights violations involving civil and political
rights" intended by the Constitution.
On its contempt powers, the CHR is constitutionally authorized to "adopt its
operational guidelines and rules of procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court." Accordingly, the CHR acted within its
authority in providing in its revised rules, its power "to cite or hold any person in
direct or indirect contempt, and to impose the appropriate penalties in accordance
with the procedure and sanctions provided for in the Rules of Court." That power to
cite for contempt, however, should be understood to apply only to violations of its
adopted operational guidelines and rules of procedure essential to carry out its
investigatorial powers. To exemplify, the power to cite for contempt could be
exercised against persons who refuse to cooperate with the said body, or who
unduly withhold relevant information, or who decline to honor summons, and the
like, in pursuing its investigative work. The "order to desist" (a semantic interplay for
a restraining order) in the instance before us, however, is not investigatorial in
character but prescinds from an adjudicative power that it does not possess.
In Export Processing Zone Authority vs. Commission on Human Rights, 36 the Court,
speaking through Madame Justice Carolina Grio-Aquino, explained:
The constitutional provision directing the CHR to "provide for preventive measures
and legal aid services to the underprivileged whose human rights have been
violated or need protection" may not be construed to confer jurisdiction on the
Commission to issue a restraining order or writ of injunction for, it that were the
intention, the Constitution would have expressly said so. "Jurisdiction is conferred
only by the Constitution or by law". It is never derived by implication.
Evidently, the "preventive measures and legal aid services" mentioned in the
Constitution refer to extrajudicial and judicial remedies (including a writ of
preliminary injunction) which the CHR may seek from proper courts on behalf of the
victims of human rights violations. Not being a court of justice, the CHR itself has no
jurisdiction to issue the writ, for a writ of preliminary injunction may only be issued
"by the judge of any court in which the action is pending [within his district], or by a
Justice of the Court of Appeals, or of the Supreme Court. . . . A writ of preliminary
injunction is an ancillary remedy. It is available only in a pending principal action, for
the preservation or protection of the rights and interests of a party thereto, and for
no other purpose." (footnotes omitted).
The Commission does have legal standing to indorse, for appropriate action, its
findings and recommendations to any appropriate agency of government. 37
The challenge on the CHR's disbursement of the amount of P200,000.00 by way of
financial aid to the vendors affected by the demolition is not an appropriate issue in
the instant petition. Not only is there lack of locus standion the part of the
petitioners to question the disbursement but, more importantly, the matter lies with
the appropriate administrative agencies concerned to initially consider.
The public respondent explains that this petition for prohibition filed by the
petitioners has become moot and academic since the case before it (CHR Case No.
90-1580) has already been fully heard, and that the matter is merely awaiting final
resolution. It is true that prohibition is a preventive remedy to restrain the doing of
an act about to be done, and not intended to provide a remedy for an act already
accomplished. 38 Here, however, said Commission admittedly has yet to promulgate
its resolution in CHR Case No. 90-1580. The instant petition has been intended,
among other things, to also prevent CHR from precisely doing that. 39

WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on
Human Rights is hereby prohibited from further proceeding with CHR Case No. 901580 and from implementing the P500.00 fine for contempt. The temporary
restraining order heretofore issued by this Court is made permanent. No costs.

SO ORDERED.