South-West Africa Cases, second phase - dissenting opinion of Tanaka

Mejoff vs. Director of Prisons

During the South-West Africa Campaign of World War I, South Africa captured the
German colony. After World War I, the League of Nations created a Mandate System
(Guardianship System), wherein a State (Mandatory) is assigned to provisionally
guide another State (Mandate), with the end goal that the latter state may carry out its
own system of governance in the future. Under this system, the Union of South Africa
was responsible for the administration of South-West Africa (present-day Namibia).
South West Africa remained a League of Nations mandate until World War II.
However, South Africa, implemented systems of discrimination against its mandate.
(i.e. Apartheid Policy)

Boris Mejoff is an alien of Russian descent who was brought to the Philippines from
Shanghai as a secret operative by the Japanese forces during the Japanese regime
in the Philippines. Upon liberation, he was arrested by the US Army as a Japanese
spy, then released to the Commonwealth government for disposition.

In 1960, Ethiopia and Liberia filed a separate cases in the International Court of
Justice, where they alleged that South Africa had not fulfilled its mandatory duties. In
such case, the court held that they were not the proper parties to bring the case. A
U.N. Resolution also terminated the Mandate of South Africa. Despite U.N. opinions,
South Africa refused to cooperate and continued to exercise its mandate.
* Apartheid policy

discrimination based on color, race, or tribe

imposes ceilings disallowing natives from employment in managerial or

higher positions

discriminates in use of public facilities

Dissenting Opinion of Judge Tanaka.
Apartheid policy is a violation of principle of equality before the law. It violates the
norms of non-discrimination. While absolute equality is not required, mere relative
equality must be upheld. The distinctions in play must be reasonable and existing.
Thus, the Apartheid policy is illegal, because its restrictions race or color are
unjustifiable and unreasonable.
International Law is abounding with collective statements outlawing discrimination,
such as the UN Charter, UDHR, Declaration on Elimination of All Forms of
Discrimination, etc. Thus, the norm of discrimination or non-separation on the basis of
race has become a rule under customary international law.
Particularly, while the Universal Declaration of Human rights is not binding in itself, it
is nevertheless evidence of the interpretation and application of human rights clauses
in the UN Charter. South Africa, as a member of the UN, must comply therewith.

The Board of Commissioners of Immigration on April 5, 1948, declared that Mejoff

had entered the Philippines illegally in 1944, without inspection and admission by the
immigration officials at a designation port of entry and, therefore, it ordered that he be
deported on the first available transportation to Russia. He was transferred to Cebu
Provincial Jail (together with 3 others) to await the arrival of some Russian vessels.
Two Russian boats arrived at the Cebu Port, but refused to take Mejoff, alleging lack
of authority to do so. After repeated failures to ship the deportee Mejoff, authorities
transferred him to Bilibid prison, as the Commission of Immigration believes it is for
the best interests of the country to keep him under detention while arrangements for
his departure are being made.
Over two years having elapsed since the decision aforesaid was promulgated, the
Government has not found way and means of removing the petitioner out of the
country, and none are in sight, although it should be said in justice to the deportation
authorities, it was through no fault of theirs that no ship or country would take the
petitioner.
According to the Director of Prisons:

Mejoffs detention temporary

"Temporary detention is a necessary step in the process of exclusion or

expulsion of undesirable aliens and that pending arrangements for his
deportation, the Government has the right to hold the undesirable alien
under confinement for a reasonable length of ritime."

"The meaning of 'reasonable time' depends upon the circumstances,

specially the difficulties of obtaining a passport, the availability of
transportation, the diplomatic arrangements with the governments
concerned and the efforts displayed to send the deportee away;" but the
Court warned that "under established precedents, too long a detention may
justify the issuance of a writ of habeas corpus."
The present case is a petition for habeas corpus. At such time (two years after the
earlier case), the Government has not found way and means of removing the
petitioner out of the country, and none are in sight, although it should be said in
justice to the deportation authorities that it was through no fault of theirs that no ship
or country would take the petitioner.
Issue: Whether or not Mejoff should be released from prison awaiting his deportation.
Held: YES, Mejoff should be released from custody, but be placed under the
surveillance of the immigration authorities or their agents in such form and manner as
may be deemed adequate to insure that he keep peace and be available when the
Government is ready to deport him.

As stated in the Constitution, the Philippines "adopts the generally accepted

principles of international law as part of the law of Nation." Also, In the Universal
Declaration of Human Rights, wherein Philippines is a signatory, it is proclaimed that
life and liberty and all other fundamental rights shall be applied to all human beings.
U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to
release from custody an alien who has been detained an unreasonably long period of
time by the Department of Justice after it has become apparent that although a
warrant for his deportation has been issued, the warrant can not be effectuated;" that
"the theory on which the court is given the power to act is that the warrant of
deportation, not having been able to be executed, is functus officio and the alien is
being held without any authority of law."
It was said or insinuated at the hearing of the petition that the he was engaged in
subversive activities, and that he might join or aid the disloyal elements if allowed to
be at large. However, Japan is no longer at war with the United States or the
Philippines nor identified with the countries allied against these nations, so the
possibility of the petitioner's entertaining or committing hostile acts prejudicial to the
interest and security of this country seems remote.
petitioner's unduly prolonged detention would be unwarranted by law and the
Constitution, if the only purpose of the detention be to eliminate a danger that is by no
means actual, present, or uncontrollable
Imprisonment to protect society from predicted but unconsummated offenses is so
unprecedented in this country and so fraught with danger of excesses and injustice

No charges, filing is remote in possibility

Marcos vs. Manglapus (first case)

FACTS:
Former President Ferdinand E. Marcos was deposed from the presidency via the
non-violent people power revolution and was forced into exile. Marcos, in his
deathbed, has signified his wish to return to the Philippines to die. But President
Corazon Aquino, considering the dire consequences to the nation of his return at a
time when the stability of government is threatened from various directions and the
economy is just beginning to rise and move forward, has stood firmly on the decision
to bar the return of Marcos and his family.
Marcos filed for a petition of mandamus and prohibition to order the respondents to
issue them their travel documents and prevent the implementation of President
Aquinos decision to bar Marcos from returning in the Philippines. Petitioner questions
Aquinos power to bar his return in the country. He also questioned the claim of the

President that the decision was made in the interest of national security, public safety
and health. Petitioner also claimed that the President acted outside her jurisdiction.
According to the Marcoses, such act deprives them of their right to life, liberty,
property without due process and equal protection of the laws. They also said that it
deprives them of their right to travel which according to Section 6, Article 3 of the
Constitution, may only be impaired by a court order.
ISSUE:
Whether or not the Marcoses were deprived of their right to travel.
HELD:
NO.
It must be emphasized that the individual right involved is not the right to travel from
the Philippines to other countries or within the Philippines. These are what the right to
travel would normally connote.
Essentially, the right involved is the right to return to one's country, a totally
distinct right under international law, independent from although related to the
right to travel.
Thus, the Universal Declaration of Humans Rights and the International Covenant on
Civil and Political Rights treat the right to freedom of movement and abode within the
territory of a state, the right to leave a country, and the right to enter one's country as
separate and distinct rights. The Declaration speaks of the "right to freedom of
movement and residence within the borders of each state" [Art. 13(l)] separately from
the "right to leave any country, including his own, and to return to his country." [Art.
13(2).] On the other hand, the Covenant guarantees the "right to liberty of movement
and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any
country, including his own." [Art. 12(2)] which 3rights may be restricted by such laws
as "are necessary to protect national security, public order, public health or morals or
enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It
would therefore be inappropriate to construe the limitations to the right to return to
one's country in the same context as those pertaining to the liberty of abode and the
right to travel.
The right to return to one's country is NOT among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode and
the right to travel, but it is our well-considered view that the right to return may
be considered, as a generally accepted principle of international law and, under
our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.]
However, it is distinct and separate from the right to travel and enjoys a different
protection under the International Covenant of Civil and Political Rights, i.e., against
being "arbitrarily deprived" thereof [Art. 12 (4).]
The request or demand of the Marcoses to be allowed to return to the Philippines
cannot be considered in the light solely of the constitutional provisions guaranteeing
liberty of abode and the right to travel, subject to certain exceptions, or of case law

which clearly never contemplated situations even remotely similar to the present one.
It must be treated as a matter that is appropriately addressed to those residual
unstated powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader
discretion on the part of the President to determine whether it must be granted or
denied.

2.

3.
4.

The death of Mr. Marcos has not changed the factual scenario under the
Courts decision was rendered. The threats to the government, to which the
return of the Marcoses have been viewed to provide a catalytic effect, have
not been shown to have ceased.
The powers of the President are not limited to what are expressly
enumerated on the Executive Department and in under the Constitution.
Among the duties of the President under the Constitution is to protect and
promote the interest and welfare of the people. Her decision to bar the
return of the Marcoses, and subsequently, the remains of Mr. Marcos at that
time under present circumstances is in compliance with this bounden duty.

The President did not act arbitrarily or with grave abuse of discretion in determining
that the return of former President Marcos and his family at the present time and
under present circumstances poses a serious threat to national interest and welfare
and in prohibiting their return to the Philippines. The Court dismissed the Petition.

Marcos vs Manglapus (second case)

Facts:
A Motion for Reconsideration was filed by the petitioners on the following arguments:
1.

2.
3.

to bar former President Marcos and his family from returning to the
Philippines is to deny them not only the inherent right of citizens to return to
their country of birth but also the protection of the Constitution and all of the
rightd guaranteed to Filipinos under the Constitution;
the President has no power to bar a Filipino from his own country; if she has,
she has exercised it arbitrarily; and
there is no basis for barring the return of the family of former President
Marcos

Held:

International School Alliance Of Educators (ISAE) vs. Hon. Leonardo A.

Quisumbing
FACTS:
The petitioner, Private respondent International School, Inc. pursuant to PD 732, is a
domestic educational institution established primarily for dependents of foreign
diplomatic personnel and other temporary residents. The School hires both foreign
and local teachers classifying them into: (1) foreign-hires and (2) local-hires. The
School employs 4 tests to determine their classification as a foreign-hire or a local
hire.
The School grants foreign-hires certain benefits not accorded local-hires including:
housing, transportation, shipping costs, taxes, and home leave travel allowance. In
addition, foreign-hires are paid a salary rate 25% more than local-hires.

MOTION FOR RECONSIDERATION: DENIED

1.

Burden of proof is upon the Marcoses to prove that there are compelling
reasons to reconsider the decision of the Court. However, in this case, after
thorough consideration of the matters raised in the MR, the petitioners failed
to estabilshed any compelling reasons to warrant a reconsideration.

According to the respondents, the school has violated the principle long honored in
this jurisdiction, equal pay for equal work.

discrimination, the very antithesis of fairness and justice. The Philippines,

through its Constitution, has incorporated this principle as part of its national
laws.

The school justifies the difference on two "significant economic disadvantages"

foreign-hires have to endure, namely: (a) the "dislocation factor" and (b) limited
tenure.

The employees should be given equal pay for work of equal value. If an
employer accords employees the same position and rank, the presumption
is that these employees perform equal work. There is no evidence here that
foreign-hires perform 25% more efficiently or effectively than the local-hires.
Both groups have similar functions and responsibilities, which they perform
under similar working conditions.

Then Acting DOLE Secretary Quisumbing denied petitioner's motion for

reconsideration, upholding the point-of-hire classification for the distinction in salary.
He alleged that foreign-hires received the same benefits as local-hires.

In this case, we find the point-of-hire classification employed by respondent

School to justify the distinction in the salary rates of foreign-hires and local
hires to be an invalid classification. There is no reasonable distinction
between the services rendered by foreign-hires and local-hires.

ISSUE:
1.
2.

Whether or not such point-of-hire classification violates the equal

protection clause.
Whether or not such distinction between the salaries of foreign and
local-hires is discrimination under the International Law.

HELD:
1.

YES
The Constitution directs the State to promote "equality of employment
opportunities for all." Similarly, the Labor Code provides that the State shall
"ensure equal work opportunities regardless of sex, race or creed."
It is then an established principle of Constitutional law that the guarantee of
equal protection of the laws is not violated by legislation or private covenants
based on reasonable classification. A classification is reasonable if it is
based on substantial distinctions and applies to all members of the same
class.

2.

YES
International law, which springs from general principles of law, likewise
proscribes discrimination. General principles of law include principles of
equity. The Universal Declaration of Human Rights, the International
Covenant on Economic, Social, and Cultural Rights. The International
Convention on the Elimination of All Forms of Racial Discrimination in
Education, the Convention (No. 111) Concerning Discrimination in Respect
of Employment and Occupation- all embody the general principle against

Republic of the Philippines vs. Sandiganbayan

Facts:
Cory Aquino seized power in the bloodless People Power revolution of 1986. She
established the Freedom Constitution as an interim Constitution distancing itself from
the 1973 Constitution of Marcos. She proclaimed E.O. 1 - the formulation of the
Presidential Commission on Good Governance to investigate and recover the illgotten wealth of Marcos, his immediate relatives and his subordinates. Under the EO,
the term subordinates was defined as "those who wielded influence with Marcos and
through their influence produced ill-gotten gains over the course of his
administration.
The AFP Board investigated various reports of alleged unexplained wealth of Major
General Ramas, Chief of the AFP (until 1986). Witness testimony placed 4 attach
cases filled with money in a car destined for his alleged mistress, his clerk, Elizabeth
Dimaano. A search warrant was issued covering firearms and ammunition said to be
illegally in her possession.
During the search by the Philippine Constabulary (PC), they identified the guns, M16
rifles, military radios, handguns and ammunition and seized them along with Php
2.870M, USD 50000, jewelry and land titles. Charges of violation of RA 3019 were
filed against the pair when it was shown that Dimaano had no visible source of
income (to justify the cash found) and that she could not have acquired the military
equipment without the help of Ramas.
During the hearings, the RP failed to present evidence and Sandiganbayan noted
numerous delays in proceedings (4 years). Sandiganbayan dismissed the case and
ordered the return of the items seized illegally. The SB held that the items were
seized illegally and therefore inadmissible in evidence because they included items
not included in the search warrant.

RP Petitions for review on Certiorari against the Sandiganbayan. RP argues that the
exclusionary right of an illegal search only applies from the date of the ratification of
the 1987 Constitution.
Issues/Held:
1.

Whether or not the PCGG was acting within its jurisdiction?

NO, the PCGG could not prove that Major General Ramas was a
subordinate of Marcos under the definition of subordinate in E.O. no. 1.

June 8, 2001, 8 years after effectivity, CBEA filed a petition for prohibition against the
BSP and Executive Secretary to restrain respondents from further implementing Sec.
15(c) Art. 2 or RA 7653, claiming this to be unconstitutional:

"compensation and wage structure of employees whose positions fall under

salary grade 19 and below shall be in accordance with the rates prescribed
under Republic Act No. 6758."
CBEA claims that the challenged proviso makes an unconstitutional distinction
between rank and file (grade 19 and below) and officers (above 19) who are exempt
from the Salary Standardisation Law. They claim that the classification is arbitrary and
capricious and violates the equal protection clause.

2.

Whether or not the Sandiganbayan erred in dismissing the case?

NO, the RP could not produce evidence against MGen Ramas despite
multiple delays and opportunities to do so.

3.

Whether or not the Sandiganbayan erred in claiming the inadmissibility

of items and the illegal seizure?
NO, although technically petitioner was correct in stating that there was no
constitution during the raid (as per EO no. 3 dated March 3, 1986 wherein
Pres. Aquino declared that the EDSA revolution was done in defiance of the
1973 constitution) and the search was done during the interregnum wherein
the Bill of Rights was not operative during the period between the adoption
of the Freedom Constitution and the 1987 Constitution, the revolutionary
governments proclamation to uphold rights that were sacrificed during the
Marcos administration means that the GRP, in good faith, cannot ignore the
fundamental Human Right to privacy in ones home as a right against abuse
of the State.

Issues:
1. Whether or not the section violates the equal protection clause?
NO - it does not violate the equal protection clause. The exemption for
officers is intended to address the BSPs lack of competitiveness in attracting
competent officers and executives. It was never meant to discriminate
agains the rank-and-file. It is a valid distinction.

The revolutionary government being installed as the de jure government, assumed

responsibility for the states good faith compliance with the Covenant and the UDHR
to which the Philippines is a signatory (International Covenant on Civil and Political
Rights and Universal Declaration of Human Rights). Both provide for the inviolability
of the right of the individual against unreasonable search and seizure.

In the 8 years since the enactment of the statute, laws have exempted
employees of other GFIs of the same rank-and-file rank from the application
of the SSL, it is thus only equitable that it be struck down now as invalid. A
statute valid when enacted may become invalid by a change in the
conditions to which it is applied. GFIs are a distinct class of governmental
entities and should be dealt with equally by the law.

Both were operable during the interregnum, hence are binding on the government
and PCGG.

2.

Whether or not the section is currently valid?

NO - current subsequent laws that exempted all rank and file employees of
other government financial institutions from application of the SSL leeches
all validity from the challenged proviso.

Sandiganbayan affirmed in dismissing the case

Additional information - The right against illegal search and seizure is a fundamental
right that caused even the American Revolution against the UK

Central Bank Employees Association, Inc. v.

Pilipinas and Executive Secretary

Bangko Sentral ng

Facts:
RA 7653 (New Central Bank Act) abolished the old Central Bank of the Philippines
and created the Bangko Sentral ng Pilipinas on July 3, 1993.

Important - equal protection under international lens - a discussion:

Equal protection in the US - US uses a two-tier approach:
1. Demand to strict scrutiny as to the means; and
2. Demand to strict scrutiny as to the ends
Means had to be shown necessary to achieve statutory ends, not merely reasonably
related ones.

Equal protection in Europe - Application of Art. 14 of the European Convention on

Human Rights:
"Discrimination on the basis of race, sex and religion is regarded as grounds that
require strict scrutiny." A further indication that certain forms of discrimination are
regarded as particularly suspect under the Covenant can be gleaned from Article 4,
which, while allowing states to derogate from certain Covenant articles in times of
national emergency, prohibits derogation by measures that discriminate solely on the
grounds of race, colour, language, religion or social origin.
Equal protection under international law - Article 1 of the Universal Declaration of
Human Rights proclaims that all human beings are born free and equal in dignity and
rights. Nondiscrimination, together with equality before the law and equal protection of
the law without any discrimination, constitutes basic principles in the protection of
human rights.
General international provisions pertinent to equality:
1. International Covenant on Civil and Political Rights
2. International Covenant on Economic, Social and Cultural Rights
3. International Convention on the Elimination of all Forms of Racial Discrimination
4. Convention on the Elimination of all Forms of Discrimination against Woman
5. Convention on the Rights of the Child

There is a positive obligation on States to take steps to eradicate discrimination.

Discrimination as used in the ICCPR should be understood to imply any distinction,
exclusion, restriction or preference which is based on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status, and which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise by all persons, on an equal footing,
of all rights and freedom.
The deference stops where the classification violates a fundamental right, or
prejudices persons accorded special protection by the Constitution. When these
violations arise, this Court must discharge its primary role as the vanguard of
constitutional guaranties, and require a stricter and more exacting adherence to
constitutional limitations. Rational basis should not suffice.

Secretary Of National Defense vs. Manalo

Facts:
Brothers Raymond and Reynaldo Manalo were abducted by military men belonging to
the Citizens Armed Forces Geographical Unit (CAFGU) on the suspicion that they

were members and supporters of the New Peoples Army. After 18 months of
kidnapping, torture and detention, the brothers escaped on 13 August 2007.
Ten days after their escape, the Brothers Manalo filed a Petition for Prohibition,
Injunction, and Temporary Restraining Order with the Supreme Court to stop the
petitioners, officers and their agents from depriving them of their right to liberty and
other basic rights. When the Amparo rule came into effect in 24 October 2007, the
Manalo brothers moved to have their petition treated as an Amparo Petition as it
would be more effective and suitable to the circumstances of their enforced
disappearance. Their motion was granted by the Court of Appeals.
The Secretary of National Defense and the Chief of Staff of the AFP appealed to the
SC seeking to reverse and set aside the decision promulgated by the CA.
Issue:
Whether or not there is substantial evidence to show that there is a continuing
violation of the Manalos right to life, liberty and security.
Held:
YES.
The Writ of Amparo is the most potent remedy available to any person whose right to
life, liberty, and security has been violated or is threatened with violation by an
unlawful act or omission by public officials or employees and by private individuals or
entities. It provided rapid judicial relief as it is a summary proceeding that only
requires substantial evidence.

The right to life under Article III, Section 1 of the 1987 Constitution
guarantees essentially the right to be alive, upon which the enjoyment of all
other rights is dependent. The right to life, therefore, means the right to
security of a person means freedom from fear.This is an individual
international human right set forth by the Universal Declaration of Human
Rights (UDHR).
The right to security of person is a guarantee of protection of ones rights by
the government. In the amparo context, the right to security envisions
freedom from threat, bodily and psychological harm.
The right to security of person is a guarantee of protection of one's rights by
the government. In the context of the writ of amparo, this right is built into the
guarantees of the right to life and liberty

In ruling in favor of the Brothers Manalo, the Court held that since their escape, the
Manalos have been under concealment and protection by private citizens. 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.

2.

3.

Whether or not E.O. No. 1 illegally amended the Constitution when it made
the Philippine Truth Commission and vested it with the power duplicating
and even exceeding those of the Ombudsman and the DOJ.
Whether or not EO No. 1 violates the Equal Protection Clause as it
selectively targets for investigation and prosecution only the officials
and personnel of the previous administration, excluding all other
administrations.

Biraogo vs. The Philippine Truth Commission of 2010

Facts:
At the beginning of his administration, President Benigno Aquino III signed Executive
Order 1 which established the Philippine Truth Commission of 2010. This was created
to investigate reports on graft and corruption committed by third-level public officers
and employees, their co-principals, accomplices and accessories during the
administration of Gloria Macapagal Arroyo, and thereafter to submit its finding and
recommendations to the President, Congress and the Ombudsman.

Held:
1.

The Executive is given much leeway in ensuring that our laws are faithfully
executed. As stated above, the powers of the President are not limited to
those specific powers under the Constitution. One of the recognized powers
of the President granted pursuant to this constitutionally-mandated duty is
the power to create ad hoc committees.

A month after the issuance of EO No. 1, two cases were filed before the SC assailing
the validity and constitutionality of the Executive Order.
The present case is a case is a special civil action for prohibition instituted by
petitioner Louis Biraogo in his capacity as a citizen and taxpayer. Biraogo assails the
validity of EO No. 1 for being violative of the legislative power of Congress as it
usurps the constitutional authority of the legislature to create a public office and to
appropriate funds therefor. Biraogo argues that EO No. 1 is unconstitutional because
there is no provision in the Constitution or any specific law that authorizes the
President to create a truth commission.

On the charge that Executive Order No. 1 transgresses the power of

Congress to appropriate funds for the operation of a public office, suffice it to
say that there will be no appropriation but only an allotment or allocations of
existing funds already appropriated. Accordingly, there is no usurpation on
the part of the Executive of the power of Congress to appropriate funds.
2.

The Office of the Solicitor General countered, saying that the Presidents power to
control necessarily includes the power to create offices. According to the OSG, the
Executive, just like the other two branches of government, possesses the inherent
authority to create fact-finding committees to assist in the performance of its
constitutionally mandated functions and in the exercise of its administrative functions.

Issues:
1. Whether or not EO No. 1 is violative of the Doctrine of Separation of Powers
as it supersedes the power of Congress to create a public office.
a. May the President legally create the Philippine Truth Commission?
b. Is there a valid delegation of power from Congress empowering the
President to create a public office?

No. The creation of the Philippine Truth Commission finds justification under
Article VII, Section 17 of the 1987 Constitution, imposing upon the President
the duty to ensure that the laws are faithfully executed.

No. Fact-finding is not adjudication and it cannot be likened to the judicial

function of a court of justice, or even a quasi-judicial agency or office. The
PTC will not supplant the Ombudsman or the DOJ or erode their respective
powers. If at all, the investigative function of the commission will complement
those of the two offices. As pointed out by the Solicitor General, the
recommendation to prosecute is but a consequence of the overall task of the
commission to conduct a fact-finding investigation.
The actual prosecution of suspected offenders, much less adjudication on
the merits of the charges against them, is certainly not a function given to
the commission. Furthermore, the function of determining probable cause for
the filing of the appropriate complaints before the courts remains to be with
the DOJ and the Ombudsman.

3.

Yes. E.O. No. 1 transgresses the Equal Protection Clause enshrined in

Article III, Section 1 of the 1987 Constitution.
In order to have a valid classification, the test of reasonableness must be
satisfied:

The classification rests on substantial distinctions

It is germane to the purpose of the law
It is not limited to existing conditions only
It applies equally to all members of the same class

Applying this test, EO No. 1 should be struck down as violative of the Equal
Protection Clause. The intent to single out the Arroyo administration is a
plain and patent violation of such clause. The Arroyo administration is just a
part of the class of previous administrations. Not to include past
administrations similarly situated constitutes arbitrariness which the equal
protection clause cannot sanction. Such discriminating differentiation clearly
reverberates to label the commission as a vehicle for vindictiveness and
selective retribution.
Though the OSG enumerates several differences between the Arroyo
administration and other past administrations, these distinctions are not
substantial enough to merit the restriction of the investigation to the
previous administration only.

Reyes v. CA
Facts:
Fr. Roberto Reyes and 50 others were brought to Camp Crame for inquest
proceedings to determine whether there was probable cause to hold them for charges
of rebellion or inciting to rebellion after they were arrested after the Manila Peninsula
Hotel Siege. DOJ Secretary Raul Gonzales issued Hold Departure Order 45 which

included Fr. Reyes in the Hold Departure List in the interest of national security and
public safety.
Fr. Reyes and 36 others were eventually charged with rebellion under RPC Art. 134
and the information was filed in the RTC of Makati. The case was eventually
dismissed against Fr. Reyes and 17 others for lack of probable cause after a judicial
determination of the same. Atty. Chavez and Atty. J.V. Bautista wrote to the DOJ
secretary asking for the lifting of HDO 45 against Fr. Reyes. Fr. Reyes eventually filed
a petition for writ of amparo, claiming that despite the dismissal of the case against
him, the HDO still subsists and he has been held by Bureau of Immigration officials
still detain and interrogate him in NAIA whenever he flies out of the country. He
claimed that the writ is needed as there is a continued restraint on his right to travel.
Issue:
Whether or not the writ of amparo covers the right to travel.
Held:
No. 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. In Secretary of National
Defense v. Manalo, the Court made a categorical pronouncement that the writ is
available only to two instances: extralegal killings and enforced disappearances. The
same case also defined the right to security as freedom from fear. This is found in the
whereas clauses of the Universal Declaration of Human Rights which envisions a
world in which human beings shall enjoy freedom of speech and belief and freedom
from fear. It is not only an aspirational principle but essentially an individual human
right.
Considering the wording 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. The
Court here distinguished between fear and threat. Fear is a state of mind while threat
is a stimulus, a cause of action. It is more appropriate to define the right to security as
the freedom from threat. The right to security is a guarantee of bodily and
psychological integrity or security. This is opposed to the right to travel, which has
been stated in Marcos v. Sandiganbayan as being subject to the usual constraints
imposed by the necessity of safeguarding the system of justice. It is then a matter of
sound discretion whether an accused may be permitted to leave for humanitarian
reasons. Fr. Reyes failed to establish that his right to travel was impaired in the
manner and to the extent that it amounted to a serious violation of his right to life,
liberty, and security for which there exists no readily available legal recourse or
remedy. The proper remedy should have been the filing of a motion to lift HDO with
the RTC of Makati, despite the dismissal of the case, following the Crespo v. Mogul
ruling.

signatory. However, there is still no Philippine law that provides for criminal liability
under command responsibility.

Rubrico v. GMA
Facts:
Lourdes Rubrico was allegedly brought and detained at an airbase without charges.
After a week of interrogation by hooded men, Lourdes was eventually released only
after having been made to sign a statement that she would be a military asset. She
was tailed on at least two occasions at different places by motorcycle riding men. She
then filed a case with the Ombudsman for kidnapping and arbitrary detention and an
administrative complaint for gross abuse of authority and grave misconduct against
Cuaresma, Alfaro, Sasntana and a certain Jonathan of the 301 st AISS, Fernando
Airbase and a Maj. Sy/Reyes living at 9 Amsterdam Ext., Merville Subdivision,
Paranaque City. Nothing eventful resulted from the investigations of the Dasmarias
and Cavite police stations.
The current petition was filed praying for a writ of amparo and for the Office of the
Ombudsman to immediately file an information for kidnapping against the
aforementioned respondents and President Gloria Macapagal-Arroyo, then AFP Chief
of Staff Director-General Esperon, Police Director-General Razon, Police
Superintendent Roquero, and Police Inspector Gomez. The CA dismissed the instant
petition with respect to Gen. Esperon, Gen. Razon, Supt. Roquero, and P/Sr. Insp.
Gomez, and the Office of the Ombudsman. They also earlier dropped PGMA from the
complaint stating that she had immunity from suit as President during her term of
office.
Issue:
Whether or not Esperon and Razon are properly included in the case based on the
theory of command responsibility
Held:
No. The command responsibility doctrine is defined as the responsibility of
commanders for crimes committed by subordinate members of the armed forces or
other persons subject to their control in international wars or domestic conflict. There
is a form of criminal complicity. The Hague conventions of 1907 adopted this doctrine,
foreshadowing the present-day precept of holding a superior accountable for the
atrocities committed by his subordinates should he be remiss in his duty of control
over them. It is an omission mode of individual criminal liability, whereby the superior
is made responsible for crimes committed by his subordinates for failing to prevent or
punish the perpetrators, as opposed to crimes he ordered. This has been codified in
the Rome Statute of the International Criminal Court, to which the Philippines is a

It may be argued that it is applicable to this jurisdiction because it is a principle of

international law or customary international law. However, the Court reiterates that it
would be inappropriate to imply that the doctrine of command responsibility may be
used in a case for writ of amparo. The Court does not rule in such proceedings on
any issue of criminal culpability, even if there was a crime or infraction of an
administrative rule committed incidentally. The writ of amparo was conceived to
provide expeditious and effective procedural relief against violations or threats of
violations of the basic rights to life, liberty, and security of persons. The corresponding
amparo suit is not an action to determine criminal guilt which requires proof beyond
reasonable doubt or administrative liability requiring substantial evidence, both of
which would require full and exhaustive proceedings. It merely determines
responsibility or at least accountability for the enforced disappearance for purpose of
imposing the appropriate remedies to address the disappearance.
The Court clarifies that the command responsibility doctrine may still be used in writ
of amparo but only to the limit of determining the author who is, at the first instance,
accountable for, and has the duty to address, the disappearance and harassments
complained of , so as to enable the Court to devise remedial measures that may be
appropriate under the premises to protect rights covered by the writ of amparo.
The petitioners have not adduced substantial evidence pointing to government
involvement in Lourdes disappearance. They have not shown that the actual
perpetrators of the abduction and harassments that followed formally or informally
formed part of either the military or police chain of command. The identities and links
to the AFP or the PNP of the alleged abductors (Cuaresma, Alfaro, Santana,
Jonathan, and Sy/Reyes) have yet to be established.

BOAC v. Cadapan
FACTS:

On June 26, 2006, Sherlyn Cadapan, Karen Empeno, and Manuepl Merino
were abducted in San Miguel, Hagonoy, Bulacan by armed men and were
herded onto a jeep
On July 17, 2006, petition for habeas corpus was filed in SC impleading then
Generals Romeo Tolentino and Jovito Palparan (Gen. Palparan), Lt. Col.
Rogelio Boac (Lt. Col. Boac), Arnel Enriquez and Lt. Francis Mirabelle
Samson (Lt. Mirabelle) as respondents.
A writ was issued returnable to the CA where trial ensued. Witnesses were
called by both sides and on March 29, 2007, the petition for habeas corpus
was dismissed by CA.
o Habeas Corpus not proper because it presupposes that
respondents have actual custody of the persons. (At this point, the
petitioners were not able to prove clearly and convincingly that
respondents had in their custody the 3 abductees).
MR was filed. Pending MRs resolution, a WRIT OF AMPARO dated October
24, 2007, with prayer for inspection and production oof documents was filed
in SCit impleaded the same respondents + Pres GMA, Esperon Jr. (AFP
CoS), Razon (PNP), Antolado and Caigas. Writ was issued returnable to the
CA. Amparo and MR on Habeas Corpus were consolidated.
This time, petitioners called in Raymond Manalo (from the Manalao v. DND
case Consti 2) and Adoracion Paulino as additional witnesses.
o Raymond Manalo, who himself was abducted but later escaped,
testified that he personally met the three abductees in Camp
Tecson. All of them were transferred to Camp Limay and later to a
safe house in Zambales.
The CA granted MR on the Habeas Corpus on September 17, 2008 and
ordered the immediate release of the three in the Amparo Case.
o WHEREFORE, in CA-G.R. SP NO. 95303 (Habeas Corpus case),
the Motion for Reconsideration is GRANTED. Accordingly, in both
CA-G.R. SP NO. 95303 (Habeas Corpus case) and in CA-G.R. SP
NO. 00002 (Amparo case), the respondents are thereby ordered to
immediately RELEASE, or cause the release, from detention the
persons of Sher[lyn] Cadapan, Karen Empeo and Manuel
Merino.
o With the additional testimony, the petitioners have been able to
convincingly prove the fact of their detention. Manalos testimony
was a firsthand accounthe saw them with his very own eyes as
they were detained and tortured together. It was clear, convincing,
and consistent.
o The CA however did not grant petition to inspect under the Amparo
case in light of the release order.

A motion to cite in contempt the officers was filed for failure to execute said
order.
o CA denied this. Although the order used the words ordered to
immediately release the same is not ipso facto deemed executory.
Three cases elevated in the SC:
o First case-Boac challenged decision of CA
o Second caseCadapan and Empeno (parents) challenged
decision on the non issuance of inspection order
o Third caseCadapan and Empeno (parents) challenged CAs
resolution denying motion to cite respondents in contempt for
failure to immediately release the three.

ISSUE: Whether the chief of the AFP, the commanding general of the Philippine
Army, as well as the heads of the concerned units had command responsibility over
the abduction and detention of Sherlyn, Karen and Merino; and

HELD: Strictly speaking, NO

RATIO:

Rubrico v. Macapagal (see previous case)

o
The evolution of the command responsibility doctrine finds its
context in the development of laws of war and armed combats.
According to Fr. Bernas, "command responsibility," in its simplest
terms, means the "responsibility of commanders for crimes
committed by subordinate members of the armed forces or other
persons subject to their control in international wars or domestic
conflict."
o In this sense, command responsibility is properly a form of criminal
complicity.

An Amparo proceeding is not criminal, civil or administrative. It is a remedy

designed to direct specified courses of action to government agencies to
safeguard the constitutional right to life, liberty, and security
o It determines responsibility or atleast accountability for enforced
disappearances
o Responsibility-- the extent the actors have been established by
substantial evidence to have participated in whatever way, by
action or omission, in an enforced disappearance, as a measure of
the remedies this Court shall craft, among them, the directive to file
the appropriate criminal and civil cases against the responsible
parties in the proper courts.

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Accountability--the measure of remedies that should be

addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the
level of responsibility defined above; or who are imputed with
knowledge relating to the enforced disappearance and who carry
the burden of disclosure; or those who carry, but have failed to
discharge, the burden of extraordinary diligence in the investigation
of the enforced disappearance
Rubrico categorically denies application of command responsibility in
Amparo cases to determine criminal liability.
o However, it recognizes a preliminary yet limited application of
command responsibility to instances of determining the responsible
or accountable individuals/entities that are duty-bound to abate any
transgression.
o At most, command responsibility should be invoked only to
determine the author who is accountable for, and has the duty to
address the disappearance/harassment complained of.
o

In other words, command responsibility may be loosely applied to Amparo

cases to identify those accountable individuals that have power to implement
whatever process an Amparo court would issue.
o It does not impute criminal responsibility but merely pinpoints
superiors it considers to be in the best position to protect the rights
of the aggrieved party.
The Court finds that the appellate court erred when it did not specifically
name the respondents that it found to be responsible for the abduction and
continued detention of Sherlyn, Karen and Merino. For, from the records, it
appears that the responsible and accountable individuals are Lt. Col.
Anotado, Lt. Mirabelle, Gen. Palparan, Lt. Col. Boac, Arnel Enriquez and
Donald Caigas. They should thus be made to comply with the September
17, 2008 Decision of the appellate court to IMMEDIATELY RELEASE
Sherlyn, Karen and Merino.

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