HABEAS CORPUS AND PREROGATIVE WRITS On May 12, 2000, we dismissed the petition for habeas corpus4 for
000, we dismissed the petition for habeas corpus4 for lack of merit,
A. HABEAS CORPUS
G.R. No. 139789 July 19, 2001
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO
ILUSORIO, ERLINDA K. ILUSORIO, petitioner,
vs.
ERLINDA K. ILUSORIO-BILDNER, SYLVIA K. ILUSORIO-YAP, JOHN DOES
and JANE DOES, respondents.
x---------------------------------------------------------x
G.R. No. 139808 July 19, 2001
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K.
ILUSORIO, petitioners,
vs.
HON. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents.
RESOLUTION
PARDO, J.:
Once again we see the sad tale of a prominent family shattered by conflicts on
expectancy in fabled fortune.
On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so lovingly
inseparable from her husband some years ago, filed a petition with the Court of
Appeals1 for habeas corpus to have custody of her husband in consortium.
On April 5, 1999, the Court of Appeals promulgated its decision dismissing the
petition for lack of unlawful restraint or detention of the subject, Potenciano
Ilusorio.
Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the Supreme Court an
appeal via certiorari pursuing her desire to have custody of her husband
Potenciano Ilusorio.2 This case was consolidated with another case3 filed by
Potenciano Ilusorio and his children, Erlinda I. Bildner and Sylvia K. Ilusorio
appealing from the order giving visitation rights to his wife, asserting that he never
refused to see her.
and granted the petition5 to nullify the Court of Appeals' ruling6 giving visitation
rights to Erlinda K. Ilusorio.7
What is now before the Court is Erlinda's motion to reconsider the decision. 8
On September 20, 2000, we set the case for preliminary conference on October
11, 2000, at 10:00 a. m., without requiring the mandatory presence of the parties.
In that conference, the Court laid down the issues to be resolved, to wit:
(a) To determine the propriety of a physical and medical examination of petitioner
Potenciano Ilusorio;
(b) Whether the same is relevant; and
(c) If relevant, how the Court will conduct the same.9
The parties extensively discussed the issues. The Court, in its resolution, enjoined
the parties and their lawyers to initiate steps towards an amicable settlement of the
case through mediation and other means.
On November 29, 2000, the Court noted the manifestation and compliance of the
parties with the resolution of October 11, 2000. 10
On January 31, 2001, the Court denied Erlinda Ilusorio's manifestation and motion
praying that Potenciano Ilusorio be produced before the Court and be medically
examined by a team of medical experts appointed by the Court. 11
On March 27, 2001, we denied with finality Erlinda's motion to reconsider the
Court's order of January 31 , 2001.12
The issues raised by Erlinda K. Ilusorio in her motion for reconsideration are mere
reiterations of her arguments that have been resolved in the decision.
Nevertheless, for emphasis, we shall discuss the issues thus:
First. Erlinda K. Ilusorio claimed that she was not compelling Potenciano to live
with her in consortium and that Potenciano's mental state was not an issue.
However, the very root cause of the entire petition is her desire to have her
husband's custody.13 Clearly, Erlinda cannot now deny that she wanted
Potenciano Ilusorio to live with her.
Second. One reason why Erlinda K. Ilusorio sought custody of her husband was
that respondents Lin and Sylvia were illegally restraining Potenciano Ilusorio to
fraudulently deprive her of property rights out of pure greed.14 She claimed that her
two children were using their sick and frail father to sign away Potenciano and
Erlinda's property to companies controlled by Lin and Sylvia. She also argued that
since Potenciano retired as director and officer of Baguio Country Club and
Philippine Oversees Telecommunications, she would logically assume his position
and control. Yet, Lin and Sylvia were the ones controlling the corporations. 15
The fact of illegal restraint has not been proved during the hearing at the Court of
Appeals on March 23, 1999.16Potenciano himself declared that he was not
prevented by his children from seeing anybody and that he had no objection to
seeing his wife and other children whom he loved.
Erlinda highlighted that her husband suffered from various ailments. Thus,
Potenciano Ilusorio did not have the mental capacity to decide for himself. Hence,
Erlinda argued that Potenciano be brought before the Supreme Court so that we
could determine his mental state.
We were not convinced that Potenciano Ilusorio was mentally incapacitated to
choose whether to see his wife or not. Again, this is a question of fact that has
been decided in the Court of Appeals.
As to whether the children were in fact taking control of the corporation, these are
matters that may be threshed out in a separate proceeding, irrelevant in habeas
corpus.
Third. Petitioner failed to sufficiently convince the Court why we should not rely on
the facts found by the Court of Appeals. Erlinda claimed that the facts mentioned in
the decision were erroneous and incomplete. We see no reason why the High
Court of the land need go to such length. The hornbook doctrine states that
findings of fact of the lower courts are conclusive on the Supreme Court.17 We
emphasize, it is not for the Court to weigh evidence all over again. 18 Although there
are exceptions to the rule,19 Erlinda failed to show that this is an exceptional
instance.
Fourth. Erlinda states that Article XII of the 1987 Constitution and Articles 68 and
69 of the Family Code support her position that as spouses, they (Potenciano and
Erlinda) are duty bound to live together and care for each other. We agree.
The law provides that the husband and the wife are obliged to live together,
observe mutual love, respect and fidelity. 20 The sanction therefor is the
"spontaneous, mutual affection between husband and wife and not any legal
mandate or court order" to enforce consortium.21
Obviously, there was absence of empathy between spouses Erlinda and
Potenciano, having separated from bed and board since 1972. We
defined empathy as a shared feeling between husband and wife experienced not
only by having spontaneous sexual intimacy but a deep sense of spiritual
communion. Marital union is a two-way process.
Marriage is definitely for two loving adults who view the relationship with "amor
gignit amorem" respect, sacrifice and a continuing commitment to togetherness,
conscious of its value as a sublime social institution.22
On June 28, 2001, Potenciano Ilusorio gave his soul to the Almighty, his Creator
and Supreme Judge. Let his soul rest in peace and his survivors continue the
much prolonged fracas ex aequo et bono.
IN VIEW WHEREOF, we DENY Erlinda's motion for reconsideration. At any rate,
the case has been rendered moot by the death of subject.
SO ORDERED.
G.R. No. 148468 January 28, 2003
ATTY. EDWARD SERAPIO, petitioner,
vs.
SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and
PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL LEANDRO
MENDOZA, respondents.
x---------------------------------------------------------x
G.R. No. 148769 January 28, 2003
EDWARD SERAPIO, petitioner,
vs.
HONORABLE SANDIGANBAYAN and PEOPLE OF THE
PHILIPPINES, respondents.
x---------------------------------------------------------x
G.R. No. 149116 January 28, 2003
EDWARD SERAPIO, petitioner,
vs.
HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE
PHILIPPINES, respondents.
CALLEJO, SR., J.:
Before the Court are two petitions for certiorari filed by petitioner Edward Serapio,
assailing the resolutions of the Third Division of the Sandiganbayan denying his
petition for bail, motion for a reinvestigation and motion to quash, and a petition for
habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein
petitioner is one of the accused together with former President Joseph E. Estrada,
Jose "Jinggoy" P. Estrada and several others.
The records show that petitioner was a member of the Board of Trustees and the
Legal Counsel of the Erap Muslim Youth Foundation, a non-stock, non-profit
foundation established in February 2000 ostensibly for the purpose of providing
educational opportunities for the poor and underprivileged but deserving Muslim
youth and students, and support to research and advance studies of young Muslim
educators and scientists.
Sometime in April 2000, petitioner, as trustee of the Foundation, received on its
behalf a donation in the amount of Two Hundred Million Pesos (P200 Million) from
Ilocos Sur Governor Luis "Chavit" Singson through the latter's assistant Mrs.
Yolanda Ricaforte. Petitioner received the donation and turned over the said
amount to the Foundation's treasurer who later deposited it in the Foundation's
account with the Equitable PCI Bank.
In the latter part of the year 2000, Gov. Singson publicly accused then President
Joseph E. Estrada and his cohorts of engaging in several illegal activities,
including its operation on the illegal numbers game known as jueteng. This
triggered the filing with the Office of the Ombudsman of several criminal
complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with
other persons. Among such complaints were: Volunteers Against Crime and
Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as
OMB Crim. Case No. 0-00-1754; Graft Free Philippines Foundation, Inc., versus
Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No.
0-00-1755; and Leonardo De Vera, Romeo T. Capulong and Dennis B. Funa,
versus Joseph Estrada, Yolanda Ricaforte, Edward Serapio, Raul De Guzman,
Danilo Reyes and Mila Reforma, docketed as OMB Crim. Case No. 0-00-1757.
Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The
other respondents likewise filed their respective counter-affidavits. The Office of
the Ombudsman conducted a preliminary investigation of the complaints and on
April 4, 2001, issued a joint resolution recommending, inter alia, that Joseph
Estrada, petitioner and several others be charged with the criminal offense of
plunder.
On April 4, 2001, the Ombudsman filed with the Sandiganbayan several
Informations against former President Estrada, who earlier had resigned from his
post as President of the Republic of the Philippines. One of these Informations,
docketed as Criminal Case No. 26558, charged Joseph Estrada with plunder. On
April 18, 2001, the Ombudsman filed an amended Information in said case
charging Estrada and several co-accused, including petitioner, with said crime. No
bail was recommended for the provisional release of all the accused, including
petitioner. The case was raffled to a special division which was subsequently
created by the Supreme Court. The amended Information reads:
"That during the period from June, 1998 to January, 2001, in the Philippines, and
within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada,
THEN A PUBLIC OFFICER BEING THEN THE PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with
his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY
AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES
AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS
OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR
INFLUENCE, did then and there wilfully, unlawfully and criminally amass,
accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten
wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY
SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17],
more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES
AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND
THE REPUBLIC OF THE PHILIPPINES through ANY OR A combination OR A
series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described
as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES
MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE
MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR
ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with
co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T.
Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES in consideration
OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing
DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit
public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS
(P130,000,000.00), more or less, representing a portion of the TWO HUNDRED
MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the
Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in
CONNIVANCE with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE
a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia
Rajas, AND OTHER JOHN DOES AND JANE DOES;
(c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND
BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE,
351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security
System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION
ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX
HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND
MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00],
RESPECTIVELY, OR A TOTAL OR MORE OR LESS ONE BILLION EIGHT
HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT
THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS
[P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND
JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN
THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED
THOUSAND PESOS [189,700,000.00] MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE
EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE VELARDE";
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES,
PERCENTAGES, KICKBACKS OR ANY FORM OF PECUNIARY BENEFITS, IN
CONNIVANCE WITH JOHN DOES AND JANE DOES, the amount of MORE OR
LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE
HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME
UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI
BANK.
CONTRARY TO LAW."1
On April 5, 2001, petitioner obtained a copy of the Ombudsman's Joint Resolution
finding probable cause against him for plunder. The next day, April 6, 2001, he
filed with the Office of the Ombudsman a Motion for Reconsideration and/or
Reinvestigation.2 Petitioner likewise filed on said date, this time with the
Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the
Issuance of Warrant of Arrest and Further Proceedings; (b) To Conduct a
Determination of Probable Cause; (c) For Leave to File Accused's Motion for
Reconsideration and/or Reinvestigation; and (d) To Direct the Ombudsman to
Conduct a Reinvestigation of the Charges against accused Edward Serapio. 3
On April 10, 2001, the Ombudsman issued an order denying petitioner's motion for
reconsideration and/or reinvestigation on the ground of lack of jurisdiction since the
amended Information charging petitioner with plunder had already been filed with
the Sandiganbayan.4
In a parallel development, the Sandiganbayan issued a Resolution on April 25,
2001 in Criminal Case No. 26558 finding probable cause to justify the issuance of
warrants of arrest for the accused, including petitioner. Accordingly, the
Sandiganbayan issued an Order on the same date for the arrest of
petitioner.5 When apprised of said order, petitioner voluntarily surrendered at 9:45
p.m. on the same day to Philippine National Police Chief Gen. Leandro Mendoza.
Petitioner has since been detained at Camp Crame for said charge.
The Sandiganbayan set the arraignment of the accused, including petitioner, in
Criminal Case No. 26558 on June 27, 2001. In the meantime, on April 27, 2001,
petitioner filed with the Sandiganbayan an Urgent Petition for Bail which was set
for hearing on May 4, 2001.6 For his part, petitioner's co-accused Jose "Jinggoy"
Estrada filed on April 20, 2001 a Very Urgent Omnibus Motion alleging that he was
entitled to bail as a matter of right.
During the hearing on May 4, 2001 on petitioner's Urgent Petition for Bail, the
prosecution moved for the resetting of the arraignment of the accused earlier than
the June 27, 2001 schedule. However, the Sandiganbayan denied the motion of
the prosecution and issued an order declaring that the petition for bail can and
should be heard beforepetitioner's arraignment on June 27, 2001 and
even before the other accused in Criminal Case No. 26558 filed their respective
petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception
of evidence on petitioner's petition for bail on May 21 to 25, 2001.
On May 17, 2001, four days before the hearing on petitioner's petition for bail, the
Ombudsman filed an urgent motion for early arraignment of Joseph Estrada,
Jinggoy Estrada and petitioner and a motion for joint bail hearings of Joseph
Estrada, Jinggoy Estrada and petitioner. The following day, petitioner filed a
manifestation questioning the propriety of including Joseph Estrada and Jinggoy
Estrada in the hearing on his (petitioner's) petition for bail.
The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings
on petitioner's petition for bail to June 18 to 28, 2001 to enable the court to resolve
the prosecution's pending motions as well as petitioner's motion that his petition for
bail be heard as early as possible, which motion the prosecution opposed.
On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioner's
April 6, 2001 Urgent Omnibus Motion. The court ruled that the issues posed by
petitioner had already been resolved in its April 25, 2001 Resolution finding
probable cause to hold petitioner and his co-accused for trial.7 Petitioner filed a
motion for reconsideration of the said May 31, 2001 Resolution.
On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance
of petitioner as well as all the other accused in Criminal Case No. 26558 during the
hearings on the petitions for bail under pain of waiver of cross-examination. The
Sandiganbayan, citing its inherent powers to proceed with the trial of the case in
the manner it determines best conducive to orderly proceedings and speedy
termination of the case, directed the other accused to participate in the said bail
hearing considering that under Section 8, Rule 114 of the Revised Rules of Court,
whatever evidence is adduced during the bail hearing shall be considered
automatically reproduced at the trial.8
However, instead of proceeding with the bail hearing set by it on June 18, 2001,
the Sandiganbayan issued an Order on June 15, 2001 canceling the said bail
hearing due to pending incidents yet to be resolved and reset anew the hearing to
June 26, 2001.9
On the eve of said hearing, the Sandiganbayan issued a resolution denying
petitioner's motion for reconsideration of its May 31, 2001 Resolution. The bail
hearing on June 26, 2001 did not again proceed because on said date petitioner
filed with the Sandiganbayan a motion to quash the amended Information on the
grounds that as against him, the amended Information does not allege a
combination or series of overt or criminal acts constitutive of plunder; as against
him, the amended Information does not allege a pattern of criminal acts indicative
of an overall unlawful scheme or conspiracy; the money alleged in paragraph (a) of
the amended Information to have been illegally received or collected does not
constitute "ill-gotten wealth" as defined in Section 1(d) of Republic Act No. 7080;
and the amended Information charges him of bribery and illegal gambling. 10 By
way of riposte, the prosecution objected to the holding of bail hearing until
petitioner agreed to withdraw his motion to quash. The prosecution contended that
petitioner's motion to quash the amended Information was antithetical to his
petition for bail.
The Sandiganbayan reset the arraignment of accused and the hearing on the
petition for bail of petitioner in Criminal Case No. 26558 for July 10, 2001 to enable
it to resolve the pending incidents and the motion to quash of petitioner. However,
even before the Sandiganbayan could resolve the pending motions of petitioner
and the prosecution, petitioner filed with this Court on June 29, 2001 a Petition
for Habeas Corpus and Certiorari, docketed as G.R. No. 148468, praying that the
Court declare void the questioned orders, resolutions and actions of the
Sandiganbayan on his claim that he was thereby effectively denied of his right to
due process. Petitioner likewise prayed for the issuance of a writ of habeas corpus;
that the People be declared to have waived their right to present evidence in
opposition to his petition for bail; and, premised on the failure of the People to
adduce strong evidence of petitioner's guilt of plunder, that he be granted
provisional liberty on bail after due proceedings.11
Meanwhile, on June 28, 2001, Jose "Jinggoy" Estrada filed with the
Sandiganbayan a motion praying that said court resolve his motion to fix his bail.
On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioner's
motion to quash the amended Information. Petitioner, through counsel, received on
said date a copy of said resolution.12 The motion to fix bail filed by Jose "Jinggoy"
Estrada was also resolved by the Sandiganbayan.
On July 10, 2001, just before his arraignment in Criminal Case No. 26558,
petitioner manifested to the Sandiganbayan that he was going to file a motion for
reconsideration of the July 9, 2001 Resolution denying his motion to quash and for
the deferment of his arraignment. The Sandiganbayan, however, declared that
there was no provision in the Rules of Court or in the Sandiganbayan's rules
granting the right to petitioner to file a motion for the reconsideration of an
interlocutory order issued by it and ordered petitioner to orally argue his motion for
reconsideration. When petitioner refused, the Sandiganbayan proceeded with his
arraignment. Petitioner refused to plead, impelling the court to enter a plea of not
guilty for him.
On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed
as G.R. No. 148769, alleging that the Sandiganbayan acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash,
notwithstanding the fact that material inculpatory allegations of the amended
Information against him do not constitute the crime of plunder; and that he is
charged, under the said amended Information, for more than one offense. Jose
"Jinggoy" Estrada likewise filed petition for certiorari with the Court docketed as
G.R. No. 148965 for the nullification of a resolution of the Sandiganbayan denying
his motion to fix bail.
On August 9, 2001, petitioner filed with the Court another Petition for
Certiorari, docketed as G.R. No. 149116, assailing the Sandiganbayan's
Resolution dated 31 May 2001 which denied his April 6, 2001 Urgent Omnibus
Motion and its June 25, 2001 Resolution denying his motion for reconsideration of
its May 31, 2001 Resolution.
Re: G.R. No. 148769
Petitioner avers that:
THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION
OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION, IN DENYING PETITIONER SERAPIO'S MOTION
TO QUASH NOTWITHSTANDING THAT —
I
THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST
PETITIONER SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER.
A The Amended Information, as against petitioner Serapio, does not allege a
combination or series of overt or criminal acts constitutive of plunder.
B The Amended Information, as against petitioner Serapio, does not allege a
pattern of criminal acts indicative of an overall unlawful scheme or conspiracy.
C The money described in paragraph (a) of the Amended Information and alleged
to have been illegally received or collected does not constitute 'ill-gotten wealth' as
defined in Section 1(d), Republic Act No. 7080, as amended.
II
THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE."13
Petitioner asserts that, on the face of the amended Information, he is charged with
plunder only in paragraph (a) which reads:
"(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES,
MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE
MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR
ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with
co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T.
Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration
OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;"14
Petitioner asserts that there is no allegation in paragraph (a) of the amended
Information of a "combination or series of overt or criminal acts" constituting
plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does the
amended Information allege "a pattern of criminal acts." He avers that his single
act of toleration or protection of illegal gambling impelled by a single criminal
resolution does not constitute the requisite "combination or series of acts" for
plunder. He further claims that the consideration consisting of gifts, percentages or
kickbacks in furtherance of said resolution turned over to and received by former
President Joseph E. Estrada "on several occasions" does not cure the defect in
the amended information. Petitioner insists that on the face of the amended
Information he is charged only with bribery or illegal gambling and not of plunder.
Petitioner argues that the P540 million which forms part of the P4,097,804,173.17
amassed by former President Joseph E. Estrada in confabulation with his co-
accused is not ill-gotten wealth as defined in Section 1(d) of R.A. 7080.
We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of
Criminal Procedure provides that:
"Sec. 6 Sufficiency of complaint or information. — A complaint or information is
sufficient if it states the name of the accused, the designation of the offense given
by the statute; the acts or omissions complained of as constituting the offense; the
name of the offended party; the approximate date of the commission of the
offense; and the place where the offense was committed.
When the offense was committed by more than one person, all of them shall be
included in the complaint or information."15
The acts or omissions complained or must be alleged in such form as is sufficient
to enable a person of common understanding to know what offense is intended to
be charged and enable the court to know the proper judgment. The Information
must allege clearly and accurately the elements of the crime charged. What facts
and circumstances are necessary to be included therein must be determined by
reference to the definition and elements of the specific crimes. The purpose of the
requirement of alleging all the elements of the crime in the Information is to inform
an accused of the nature of the accusation against him so as to enable him to
suitably prepare for his defense.16 Another purpose is to enable accused, if found
guilty, to plead his conviction in a subsequent prosecution for the same
offense.17 The use of derivatives or synonyms or allegations of basic facts
constituting the offense charged is sufficient.18
In this case, the amended Information specifically alleges that all the accused,
including petitioner, connived and conspired with former President Joseph E.
Estrada to commit plunder "through any or a combination or a series of overt or
criminal acts or similar schemes or means." And in paragraph (a) of the amended
Information, petitioner and his co-accused are charged with receiving or collecting,
directly or indirectly, on several instances money in the aggregate amount of
P545,000,000.00. In Jose "Jinggoy" Estrada vs. Sandiganbayan (Third Division),
et al.,19 we held that the word "series" is synonymous with the clause "on several
instances"; it refers to a repetition of the same predicate act in any of the items in
Section 1(d) of the law. We further held that the word "combination" contemplates
the commission of at least any two different predicate acts in any of the said items.
We ruled that "plainly, subparagraph (a) of the amended information charges
accused therein, including petitioner, with plunder committed by a series of the
same predicate act under Section 1(d)(2) of the law" and that:
"x x x Sub-paragraph (a) alleged the predicate act of receiving, on several
instances, money from illegal gambling, in consideration of toleration or protection
of illegal gambling, and expressly names petitioner as one of those who conspired
with former President Estrada in committing the offense. This predicate act
corresponds with the offense described in item [2] of the enumeration in Section
1(d) of R.A. No. 7080. x x x."20
It is not necessary to allege in the amended Information a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy because as
Section 3 of R.A. 7080 specifically provides, the same is evidentiary and the
general rule is that matters of evidence need not be alleged in the Information. 21
The Court also ruled in Jose "Jinggoy" Estrada vs. Sandiganbayan22 that the
aggregate amount of P4,097,804,173.17 inclusive of the P545 million alleged in
paragraph (a) of the amended information is ill-gotten wealth as contemplated in
Section 1, paragraph 1(d) of Republic Act 7080, as amended, and that all the
accused in paragraph (a) to (d) of the amended information conspired and
confederated with former President Estrada to enable the latter to amass,
accumulate or acquire ill-gotten wealth in the aggregate amount of
P4,097,804,173.17.
Under the amended Information, all the accused, including petitioner, are charged
of having conspired and confabulated together in committing plunder. When two or
more persons conspire to commit a crime, each is responsible for all the acts of
others. In contemplation of law, the act of the conspirator is the act of each of
them.23Conspirators are one man, they breathe one breath, they speak one voice,
they wield one arm and the law says that the acts, words and declarations of each,
while in the pursuit of the common design, are the acts, words and declarations of
all.24
Petitioner asserts that he is charged under the amended information of bribery and
illegal gambling and others. The Sandiganbayan, for its part, held that petitioner is
not charged with the predicate acts of bribery and illegal gambling but is charged
only with one crime that of plunder:
"THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE
THAN ONE OFFENSE
According to the accused Estradas and Edward Serapio the information charges
more than one offense, namely, bribery (Article 210 of the Revised Penal Code),
malversation of public funds or property (Article 217, Revised Penal Code) and
violations of Sec. 3(e) of Republic Act (RA No. 3019) and Section 7(d) of RA 6713.
This contention is patently unmeritorious. The acts alleged in the information are
not charged as separate offenses but as predicate acts of the crime of plunder.
It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof
does not make any express reference to any specific provision of laws, other than
R.A. No. 7080, as amended, which coincidentally may penalize as a separate
crime any of the overt or criminal acts enumerated therein. The said acts which
form part of the combination or series of act are described in their generic sense.
Thus, aside from 'malversation' of public funds, the law also uses the generic
terms 'misappropriation', 'conversion' or 'misuse' of said fund. The fact that the acts
involved may likewise be penalized under other laws is incidental. The said acts
are mentioned only as predicate acts of the crime of plunder and the allegations
relative thereto are not to be taken or to be understood as allegations charging
separate criminal offenses punished under the Revised Penal Code, the Anti-Graft
and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public
Officials and Employees."25
This Court agrees with the Sandiganbayan. It is clear on the face of the amended
Information that petitioner and his co-accused are charged only with one crime of
plunder and not with the predicate acts or crimes of plunder. It bears stressing that
the predicate acts merely constitute acts of plunder and are not crimes separate
and independent of the crime of plunder. Resultantly then, the petition is
dismissed.
Re: G.R. No. 149116
Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan
denying his April 4, 2001 Urgent Omnibus Motion contending that:
"GROUNDS FOR THE PETITION
THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION
OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN SUMMARILY DENYING PETITIONER
SERAPIO'S URGENT OMNIBUS MOTION AND MOTION FOR
RECONSIDERATION (RE: RESOLUTION DATED 31 MAY
2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY
DISREGARDED EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND
MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO THE RIGHTS
AND INTERESTS OF PETITIONER SERAPIO, AND THERE IS NO PROBABLE
CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER AS AGAINST
PETITIONER SERAPIO."26
Petitioner claims that the Sandiganbayan committed grave abuse of discretion in
denying his omnibus motion to hold in abeyance the issuance of a warrant for his
arrest as well as the proceedings in Criminal Case No. 26558; to conduct a
determination of probable cause; and to direct the Ombudsman to conduct a
reinvestigation of the charges him. Petitioner asseverates that the Ombudsman
had totally disregarded exculpatory evidence and committed grave abuse of
discretion in charging him with plunder. He further argues that there exists no
probable cause to support an indictment for plunder as against him.27
Petitioner points out that the joint resolution of the Ombudsman does not even
mention him in relation to the collection and receipt of jueteng money which started
in 199828 and that the Ombudsman inexplicably arrived at the conclusion that the
Erap Muslim Youth Foundation was a money laundering front organization put up
by Joseph Estrada, assisted by petitioner, even though the latter presented
evidence that said Foundation is a bona fide and legitimate private
foundation.29 More importantly, he claims, said joint resolution does not indicate
that he knew that the P200 million he received for the Foundation came
from jueteng.30
Petitioner insists that he cannot be charged with plunder since: (1) the P200 million
he received does not constitute "ill-gotten wealth" as defined in Section 1(d) of
R.A. No. 7080;31 (2) there is no evidence linking him to the collection and receipt
of jueteng money;32 (3) there was no showing that petitioner participated in a
pattern of criminal acts indicative of an overall unlawful scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, or that his act of receiving the
P200 million constitutes an overt criminal act of plunder.33
Petitioner argues further that his motion for reinvestigation is premised on the
absolute lack of evidence to support a finding of probable cause for plunder as
against him,34 and hence he should be spared from the inconvenience, burden and
expense of a public trial.35
Petitioner also avers that the discretion of government prosecutors is not beyond
judicial scrutiny. He asserts that while this Court does not ordinarily look into the
existence of probable cause to charge a person for an offense in a given case, it
may do so in exceptional circumstances, which are present in this case: (1) to
afford adequate protection to the constitutional rights of the accused; (2) for the
orderly administration of justice or to avoid oppression; (3) when the acts of the
officer are without or in excess of authority; and (4) where the charges are
manifestly false and motivated by the lust for vengeance.36 Petitioner claims that
he raised proper grounds for a reinvestigation by asserting that in issuing the
questioned joint resolution, the Ombudsman disregarded evidence exculpating
petitioner from the charge of plunder and committed errors of law or irregularities
which have been prejudicial to his interest.37 He also states that during the joint
preliminary investigations for the various charges against Joseph Estrada and his
associates, of which the plunder charge was only one of the eight charges against
Estrada et al., he was not furnished with copies of the other complaints nor given
the opportunity to refute the evidence presented in relation to the other seven
cases, even though the evidence presented therein were also used against him,
although he was only charged in the plunder case.38
The People maintain that the Sandiganbayan committed no grave abuse of
discretion in denying petitioner's omnibus motion. They assert that since the
Ombudsman found probable cause to charge petitioner with the crime of plunder,
the Sandiganbayan is bound to assume jurisdiction over the case and to proceed
to try the same. They further argue that "a finding of probable cause is merely
preliminary and prefatory of the eventual determination of guilt or innocence of the
accused," and that petitioner still has the chance to interpose his defenses in a full
blown trial where his guilt or innocence may finally be determined.39
The People also point out that the Sandiganbayan did not commit grave abuse of
discretion in denying petitioner's omnibus motion asking for, among others, a
reinvestigation by the Ombudsman, because his motion for reconsideration of the
Ombudsman's joint resolution did not raise the grounds of either newly discovered
evidence, or errors of law or irregularities, which under Republic Act No. 6770 are
the only grounds upon which a motion for reconsideration may be filed. 40
The People likewise insist that there exists probable cause to charge petitioner
with plunder as a co-conspirator of Joseph Estrada.41
This Court does not agree with petitioner.
Case law has it that the Court does not interfere with the Ombudsman's discretion
in the conduct of preliminary investigations. Thus, in Raro vs. Sandiganbayan42 ,
the Court ruled:
"x x x. In the performance of his task to determine probable cause, the
Ombudsman's discretion is paramount. Thus, in Camanag vs. Guerrero, this Court
said:
'x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in
the conduct of preliminary investigations, and leaves to the investigating
prosecutor sufficient latitude of discretion in the exercise of determination of what
constitutes sufficient evidence as will establish 'probable cause' for filing of
information against the supposed offender."
In Cruz, Jr. vs. People,43 the Court ruled thus:
"Furthermore, the Ombudsman's findings are essentially factual in nature.
Accordingly, in assailing said findings on the contention that the Ombudsman
committed a grave abuse of discretion in holding that petitioner is liable for estafa
through falsification of public documents, petitioner is clearly raising questions of
fact here. His arguments are anchored on the propriety or error in the
Ombudsman's appreciation of facts. Petitioner cannot be unaware that the
Supreme Court is not a trier of facts, more so in the consideration of the
extraordinary writ of certiorari where neither question of fact nor even of law are
entertained, but only questions of lack or excess of jurisdiction or grave abuse of
discretion. Insofar as the third issue is concerned, we find that no grave abuse of
discretion has been committed by respondents which would warrant the granting of
the writ of certiorari."
Petitioner is burdened to allege and establish that the Sandiganbayan and the
Ombudsman for that matter committed grave abuse of discretion in issuing their
resolution and joint resolution, respectively. Petitioner failed to discharge his
burden. Indeed, the Court finds no grave abuse of discretion on the part of the
Sandiganbayan and the Ombudsman in finding probable cause against petitioner
for plunder. Neither did the Sandiganbayan abuse its discretion in denying
petitioner's motion for reinvestigation of the charges against him in the amended
Information. In its Resolution of April 25, 2001, the Sandiganbayan affirmed the
finding of the Ombudsman that probable cause exists against petitioner and his co-
accused for the crime of plunder, thus:
"In the light of the foregoing and considering the allegations of the Amended
Information dated 18 April 2001 charging the accused with the offense of
PLUNDER and examining carefully the evidence submitted in support thereof
consisting of the affidavits and sworn statements and testimonies of prosecution
witnesses and several other pieces of documentary evidence, as well as the
respective counter-affidavits of accused former President Joseph Estrada dated
March 20, 2001, Jose "Jinggoy" Pimentel Estrada dated February 20, 2001,
Yolanda T. Ricaforte dated January 21, 2001 and Edward S. Serapio dated
February 21, 2001, the Court finds and so holds that probable cause for the
offense of PLUNDER exists to justify issuance of warrants of arrest of accused
former President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie
"Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a.
Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia
Rajas."44
Likewise, in its Resolution dated May 31, 2001 of petitioner's omnibus motion, the
Sandiganbayan noted that a preliminary investigation was fully conducted in
accordance with Rule II, Administrative Order No. 7 of the Office of the
Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No. 6770 (The
Ombudsman Act of 1989); and that all the basic complaints and evidence in
support thereof were served upon all the accused.45 It was in light of such findings
that the Sandiganbayan held that there was no basis for the allegation that
accused therein (including petitioner) were deprived of the right to seek a
reconsideration of the Ombudsman's Resolution dated April 4, 2001 finding
probable cause to charge them with plunder after the conduct of preliminary
investigation in connection therewith. In addition, the Sandiganbayan pointed out
that petitioner filed a motion for reconsideration of the Ombudsman's resolution,
but failed to show in his motion that there were newly discovered evidence, or that
the preliminary investigation was tainted by errors of law or irregularities, which are
the only grounds for which a reconsideration of the Ombudsman's resolution may
be granted.46
It bears stressing that the right to a preliminary investigation is not a constitutional
right, but is merely a right conferred by statute.47 The absence of a preliminary
investigation does not impair the validity of the Information or otherwise render the
same defective and neither does it affect the jurisdiction of the court over the case
or constitute a ground for quashing the Information.48 If the lack of a preliminary
investigation does not render the Information invalid nor affect the jurisdiction of
the court over the case, with more reason can it be said that the denial of a motion
for reinvestigation cannot invalidate the Information or oust the court of its
jurisdiction over the case. Neither can it be said that petitioner had been deprived
of due process. He was afforded the opportunity to refute the charges against him
during the preliminary investigation.
The purpose of a preliminary investigation is merely to determine whether a crime
has been committed and whether there is probable cause to believe that the
person accused of the crime is probably guilty thereof and should be held for
trial.49 As the Court held in Webb vs. De Leon, "[a] finding of probable cause needs
only to rest on evidence showing that more likely than not a crime has been
committed and was committed by the suspect. Probable cause need not be based
on clear and convincing evidence of guilt, neither on evidence establishing guilt
beyond reasonable doubt and definitely, not on evidence establishing absolute
certainty of guilt.''50
Absent any showing of arbitrariness on the part of the prosecutor or any other
officer authorized to conduct preliminary investigation, courts as a rule must defer
to said officer's finding and determination of probable cause, since the
determination of the existence of probable cause is the function of the
prosecutor.51 The Court agrees with the Sandiganbayan that petitioner failed to
establish that the preliminary investigation conducted by the Ombudsman was
tainted with irregularity or that its findings stated in the joint resolution dated April
4, 2001 are not supported by the facts, and that a reinvestigation was necessary.
Certiorari will not lie to invalidate the Sandiganbayan's resolution denying
petitioner's motion for reinvestigation since there is nothing to substantiate
petitioner's claim that it gravely abused its discretion in ruling that there was no
need to conduct a reinvestigation of the case.52
The ruling in Rolito Go vs. Court of Appeals53 that an accused shall not be deemed
to have waived his right to ask for a preliminary investigation after he had been
arraigned over his objection and despite his insistence on the conduct of said
investigation prior to trial on the merits does not apply in the instant case because
petitioner merely prayed for a reinvestigation on the ground of a newly-discovered
evidence. Irrefragably, a preliminary investigation had been conducted by the
Ombudsman prior to the filing of the amended Information, and that petitioner had
participated therein by filing his counter-affidavit. Furthermore, the Sandiganbayan
had already denied his motion for reinvestigation as well as his motion for
reconsideration thereon prior to his arraignment.54 In sum then, the petition is
dismissed.
Re: G.R. No. 148468
As synthesized by the Court from the petition and the pleadings of the parties, the
issues for resolution are: (1) Whether or not petitioner should first be arraigned
before hearings of his petition for bail may be conducted; (2) Whether petitioner
may file a motion to quash the amended Information during the pendency of his
petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and
those of the other accused in Criminal Case No. 26558 is mandatory; (4) Whether
the People waived their right to adduce evidence in opposition to the petition for
bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the
crime charged; and (5) Whether petitioner was deprived of his right to due process
in Criminal Case No. 26558 and should thus be released from detention via a writ
of habeas corpus.
On the first issue, petitioner contends that the Sandiganbayan committed a grave
abuse of its discretion amounting to excess or lack of jurisdiction when it deferred
the hearing of his petition for bail to July 10, 2001, arraigned him on said date and
entered a plea of not guilty for him when he refused to be arraigned. He insists that
the Rules on Criminal Procedure, as amended, does not require that he be
arraigned first prior to the conduct of bail hearings since the latter can stand alone
and must, of necessity, be heard immediately.55 Petitioner maintains that his
arraignment before the bail hearings are set is not necessary since he would not
plead guilty to the offense charged, as is evident in his earlier statements insisting
on his innocence during the Senate investigation of the juetengscandal and the
preliminary investigation before the Ombudsman.56 Neither would the prosecution
be prejudiced even if it would present all its evidence before his arraignment
because, under the Revised Penal Code, a voluntary confession of guilt is
mitigating only if made prior to the presentation of evidence for the
prosecution,57 and petitioner admitted that he cannot repudiate the evidence or
proceedings taken during the bail hearings because Rule 114, Section 8 of the
Revised Rules of Court expressly provides that evidence present during bail
hearings are automatically reproduced during the trial. 58 Petitioner likewise assures
the prosecution that he is willing to be arraigned prior to the posting of a bail bond
should he be granted bail.59
The People insist that arraignment is necessary before bail hearings may be
commenced, because it is only upon arraignment that the issues are joined. The
People stress that it is only when an accused pleads not guilty may he file a
petition for bail and if he pleads guilty to the charge, there would be no more need
for him to file said petition. Moreover, since it is during arraignment that the
accused is first informed of the precise charge against him, he must be arraigned
prior to the bail hearings to prevent him from later assailing the validity of the bail
hearings on the ground that he was not properly informed of the charge against
him, especially considering that, under Section 8, Rule 114 of the Revised Rules of
Court, evidence presented during such proceedings are considered automatically
reproduced at the trial.60 Likewise, the arraignment of accused prior to bail
hearings diminishes the possibility of an accused's flight from the jurisdiction of the
Sandiganbayan because trial in absentia may be had only if an accused escapes
after he has been arraigned.61 The People also contend that the conduct of bail
hearings prior to arraignment would extend to an accused the undeserved privilege
of being appraised of the prosecution's evidence before he pleads guilty for
purposes of penalty reduction.62
Although petitioner had already been arraigned on July 10, 2001 and a plea of not
guilty had been entered by the Sandiganbayan on his behalf, thereby rendering the
issue as to whether an arraignment is necessary before the conduct of bail
hearings in petitioner's case moot, the Court takes this opportunity to discuss the
controlling precepts thereon pursuant to its symbolic function of educating the
bench and bar.63
The contention of petitioner is well-taken. The arraignment of an accused is not a
prerequisite to the conduct of hearings on his petition for bail. A person is allowed
to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or
voluntary surrender.64 An accused need not wait for his arraignment before filing a
petition for bail.
In Lavides vs. Court of Appeals,65 this Court ruled on the issue of whether an
accused must first be arraigned before he may be granted bail. Lavides involved
an accused charged with violation of Section 5(b) Republic Act No. 7610 (The
Special Protection of Children Against Abuse, Exploitation and Discrimination Act),
an offense punishable by reclusion temporal in its medium period to reclusion
perpetua. The accused therein assailed, inter alia, the trial court's imposition of the
condition that he should first be arraigned before he is allowed to post bail. We
held therein that "in cases where it is authorized, bail should be granted before
arraignment, otherwise the accused may be precluded from filing a motion to
quash."66
However, the foregoing pronouncement should not be taken to mean that the
hearing on a petition for bail should at all times precede arraignment, because the
rule is that a person deprived of his liberty by virtue of his arrest or voluntary
surrender may apply for bail as soon as he is deprived of his liberty, even before a
complaint or information is filed against him.67 The Court's pronouncement
in Lavides should be understood in light of the fact that the accused in said case
filed a petition for bail as well as a motion to quash the informations filed against
him. Hence, we explained therein that to condition the grant of bail to an accused
on his arraignment would be to place him in a position where he has to choose
between (1) filing a motion to quash and thus delay his release on bail because
until his motion to quash can be resolved, his arraignment cannot be held, and (2)
foregoing the filing of a motion to quash so that he can be arraigned at once and
thereafter be released on bail. This would undermine his constitutional right not to
be put on trial except upon a valid complaint or Information sufficient to charge him
with a crime and his right to bail.68
It is therefore not necessary that an accused be first arraigned before the conduct
of hearings on his application for bail. For when bail is a matter of right, an
accused may apply for and be granted bail even prior to arraignment. The ruling
in Lavides also implies that an application for bail in a case involving an offense
punishable by reclusion perpetua to death may also be heard even before an
accused is arraigned. Further, if the court finds in such case that the accused is
entitled to bail because the evidence against him is not strong, he may be granted
provisional liberty even prior to arraignment; for in such a situation, bail would be
"authorized" under the circumstances. In fine, the Sandiganbayan committed a
grave abuse of its discretion amounting to excess of jurisdiction in ordering the
arraignment of petitioner before proceeding with the hearing of his petition for bail.
With respect to the second issue of whether petitioner may file a motion to quash
during the pendency of his petition for bail, petitioner maintains that a motion to
quash and a petition for bail are not inconsistent, and may proceed independently
of each other. While he agrees with the prosecution that a motion to quash may in
some instances result in the termination of the criminal proceedings and in the
release of the accused therein, thus rendering the petition for bail moot and
academic, he opines that such is not always the case; hence, an accused in
detention cannot be forced to speculate on the outcome of a motion to quash and
decide whether or not to file a petition for bail or to withdraw one that has been
filed.69 He also insists that the grant of a motion to quash does not automatically
result in the discharge of an accused from detention nor render moot an
application for bail under Rule 117, Section 5 of the Revised Rules of Court.70
The Court finds that no such inconsistency exists between an application of an
accused for bail and his filing of a motion to quash. Bail is the security given for the
release of a person in the custody of the law, furnished by him or a bondsman, to
guarantee his appearance before any court as required under the conditions set
forth under the Rules of Court.71 Its purpose is to obtain the provisional liberty of a
person charged with an offense until his conviction while at the same time securing
his appearance at the trial.72 As stated earlier, a person may apply for bail from the
moment that he is deprived of his liberty by virtue of his arrest or voluntary
surrender.73
On the other hand, a motion to quash an Information is the mode by which an
accused assails the validity of a criminal complaint or Information filed against him
for insufficiency on its face in point of law, or for defects which are apparent in the
face of the Information.74 An accused may file a motion to quash the Information,
as a general rule, before arraignment.75
These two reliefs have objectives which are not necessarily antithetical to each
other. Certainly, the right of an accused right to seek provisional liberty when
charged with an offense not punishable by death, reclusion perpetuaor life
imprisonment, or when charged with an offense punishable by such penalties but
after due hearing, evidence of his guilt is found not to be strong, does not preclude
his right to assail the validity of the Information charging him with such offense. It
must be conceded, however, that if a motion to quash a criminal complaint or
Information on the ground that the same does not charge any offense is granted
and the case is dismissed and the accused is ordered released, the petition for bail
of an accused may become moot and academic.
We now resolve the issue of whether or not it is mandatory that the hearings on
the petitions for bail of petitioner and accused Jose "Jinggoy" Estrada in Criminal
Case No. 26558 and the trial of the said case as against former President Joseph
E. Estrada be heard jointly.
Petitioner argues that the conduct of joint bail hearings would negate his right to
have his petition for bail resolved in a summary proceeding since said hearings
might be converted into a full blown trial on the merits by the prosecution.76
For their part, the People claim that joint bail hearings will save the court from
having to hear the same witnesses and the parties from presenting the same
evidence where it would allow separate bail hearings for the accused who are
charged as co-conspirators in the crime of plunder.77
In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558
to participate in the bail hearings, the Sandiganbayan explained that the directive
was made was in the interest of the speedy disposition of the case. It stated:
" x x x The obvious fact is, if the rest of the accused other than the accused
Serapio were to be excused from participating in the hearing on the motion for bail
of accused Serapio, under the pretext that the same does not concern them and
that they will participate in any hearing where evidence is presented by the
prosecution only if and when they will already have filed their petitions for bail, or
should they decide not to file any, that they will participate only during the trial
proper itself, then everybody will be faced with the daunting prospects of having to
go through the process of introducing the same witness and pieces of evidence
two times, three times or four times, as many times as there are petitions for bail
filed. Obviously, such procedure is not conducive to the speedy termination of a
case. Neither can such procedure be characterized as an orderly proceeding."78
There is no provision in the Revised Rules of Criminal Procedure or the Rules of
Procedure of the Sandiganbayan governing the hearings of two or more petitions
for bail filed by different accused or that a petition for bail of an accused be heard
simultaneously with the trial of the case against the other accused. The matter of
whether or not to conduct a joint hearing of two or more petitions for bail filed by
two different accused or to conduct a hearing of said petition jointly with the trial
against another accused is addressed to the sound discretion of the trial court.
Unless grave abuse of discretion amounting to excess or lack of jurisdiction is
shown, the Court will not interfere with the exercise by the Sandiganbayan of its
discretion.
It may be underscored that in the exercise of its discretion, the Sandiganbayan
must take into account not only the convenience of the State, including the
prosecution, but also that of the accused and the witnesses of both the prosecution
and the accused and the right of accused to a speedy trial. The Sandiganbayan
must also consider the complexities of the cases and of the factual and legal
issues involving petitioner and the other accused. After all, if this Court may echo
the observation of the United States Supreme Court, the State has a stake, with
every citizen, in his being afforded our historic individual protections, including
those surrounding criminal prosecutions. About them, this Court dares not become
careless or complacent when that fashion has become rampant over the earth.79
It must be borne in mind that in Ocampo vs. Bernabe,80 this Court held that in a
petition for bail hearing, the court is to conduct only a summary hearing, meaning
such brief and speedy method of receiving and considering the evidence of guilt as
is practicable and consistent with the purpose of the hearing which is merely to
determine the weight of evidence for purposes of bail. The court does not try the
merits or enter into any inquiry as to the weight that ought to be given to the
evidence against the accused, nor will it speculate on the outcome of the trial or on
what further evidence may be offered therein. It may confine itself to receiving
such evidence as has reference to substantial matters, avoiding unnecessary
thoroughness in the examination and cross-examination of witnesses, and
reducing to a reasonable minimum the amount of corroboration particularly on
details that are not essential to the purpose of the hearing.
A joint hearing of two separate petitions for bail by two accused will of course avoid
duplication of time and effort of both the prosecution and the courts and minimizes
the prejudice to the accused, especially so if both movants for bail are charged of
having conspired in the commission of the same crime and the prosecution
adduces essentially the same evident against them. However, in the cases at bar,
the joinder of the hearings of the petition for bail of petitioner with the trial of the
case against former President Joseph E. Estrada is an entirely different matter.
For, with the participation of the former president in the hearing of petitioner's
petition for bail, the proceeding assumes a completely different dimension. The
proceedings will no longer be summary. As against former President Joseph E.
Estrada, the proceedings will be a full-blown trial which is antithetical to the nature
of a bail hearing. Moreover, following our ruling in Jose Estrada vs.
Sandiganbayan, supra where we stated that Jose "Jinggoy" Estrada can only be
charged with conspiracy to commit the acts alleged in sub-paragraph (a) of the
amended Information since it is not clear from the latter if the accused in sub-
paragraphs (a) to (d) thereof conspired with each other to assist Joseph Estrada to
amass ill-gotten wealth, we hold that petitioner can only be charged with having
conspired with the other co-accused named in sub-paragraph (a) by "receiving or
collecting, directly or indirectly, on several instances, money x x x from illegal
gambling, x x x in consideration of toleration or protection of illegal
gambling.81Thus, with respect to petitioner, all that the prosecution needs to
adduce to prove that the evidence against him for the charge of plunder is strong
are those related to the alleged receipt or collection of money from illegal gambling
as described in sub-paragraph (a) of the amended Information. With the joinder of
the hearing of petitioner's petition for bail and the trial of the former President, the
latter will have the right to cross-examine intensively and extensively the witnesses
for the prosecution in opposition to the petition for bail of petitioner. If petitioner will
adduce evidence in support of his petition after the prosecution shall have
concluded its evidence, the former President may insist on cross-examining
petitioner and his witnesses. The joinder of the hearing of petitioner's bail petition
with the trial of former President Joseph E. Estrada will be prejudicial to petitioner
as it will unduly delay the determination of the issue of the right of petitioner to
obtain provisional liberty and seek relief from this Court if his petition is denied by
the respondent court. The indispensability of the speedy resolution of an
application for bail was succinctly explained by Cooley in his treatise Constitutional
Limitations, thus:
"For, if there were any mode short of confinement which would with reasonable
certainty insure the attendance of the accused to answer the accusation, it would
not be justifiable to inflict upon him that indignity, when the effect is to subject him
in a greater or lesser degree, to the punishment of a guilty person, while as yet it is
not determined that he has not committed any crime."82
While the Sandiganbayan, as the court trying Criminal Case No. 26558, is
empowered "to proceed with the trial of the case in the manner it determines best
conducive to orderly proceedings and speedy termination of the case,"83the Court
finds that it gravely abused its discretion in ordering that the petition for bail of
petitioner and the trial of former President Joseph E. Estrada be held jointly. It
bears stressing that the Sandiganbayan itself acknowledged in its May 4, 2001
Order the "pre-eminent position and superiority of the rights of [petitioner] to have
the matter of his provisional liberty resolved . . . without unnecessary delay,"84 only
to make a volte face and declare that after all the hearing of petition for bail of
petitioner and Jose "Jinggoy" Estrada and the trial as against former President
Joseph E. Estrada should be held simultaneously. In ordering that petitioner's
petition for bail to be heard jointly with the trial of the case against his co-accused
former President Joseph E. Estrada, the Sandiganbayan in effect allowed further
and unnecessary delay in the resolution thereof to the prejudice of petitioner. In
fine then, the Sandiganbayan committed a grave abuse of its discretion in ordering
a simultaneous hearing of petitioner's petition for bail with the trial of the case
against former President Joseph E. Estrada on its merits.
With respect to petitioner's allegations that the prosecution tried to delay the bail
hearings by filing dilatory motions, the People aver that it is petitioner and his co-
accused who caused the delay in the trial of Criminal Case No. 26558 by their
filing of numerous manifestations and pleadings with the Sandiganbayan.85 They
assert that they filed the motion for joint bail hearing and motion for earlier
arraignment around the original schedule for the bail hearings which was on May
21–25, 2001.86
They argue further that bail is not a matter of right in capital offenses.87 In support
thereof, they cite Article III, Sec 13 of the Constitution, which states that —
"All persons, except those charged with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall before conviction be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to
bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required."88
The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court
which provide:
"Sec. 7 Capital offense or an offense punishable by reclusion perpetua or life
imprisonment, not bailable. — No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life imprisonment, shall be admitted to
bail when evidence of guilt is strong, regardless of the stage of the criminal
prosecution.
Sec. 4 Bail, a matter of right, exception. — All persons in custody shall be admitted
to bail as a matter of right, with sufficient sureties, or released on recognizance as
prescribed by law or this Rule x x x (b) and before conviction by the Regional Trial
Court of an offense not punishable by death, reclusion perpetua or life
imprisonment."89
Irrefragably, a person charged with a capital offense is not absolutely denied the
opportunity to obtain provisional liberty on bail pending the judgment of his case.
However, as to such person, bail is not a matter of right but is discretionary upon
the court.90 Had the rule been otherwise, the Rules would not have provided for an
application for bail by a person charged with a capital offense under Rule 114,
Section 8 which states:
"Sec. 8 Burden of proof in bail application. — At the hearing of an application for
bail filed by a person who is in custody for the commission of an offense
punishable by death, reclusion perpetua, or life imprisonment, the prosecution has
the burden of showing that the evidence of guilt is strong. The evidence presented
during the bail hearing shall be considered automatically reproduced at the trial
but, upon motion of either party, the court may recall any witness for additional
examination unless the latter is dead, outside the Philippines, or otherwise unable
to testify."91
Under the foregoing provision, there must be a showing that the evidence of guilt
against a person charged with a capital offense is not strong for the court to grant
him bail. Thus, upon an application for bail by the person charged with a capital
offense, a hearing thereon must be conducted, where the prosecution must be
accorded an opportunity to discharge its burden of proving that the evidence of
guilt against an accused is strong.92 The prosecution shall be accorded the
opportunity to present all the evidence it may deem necessary for this
purpose.93When it is satisfactorily demonstrated that the evidence of guilt is strong,
it is the court's duty to deny the application for bail. However, when the evidence of
guilt is not strong, bail becomes a matter of right.94
In this case, petitioner is not entitled to bail as a matter of right at this stage of the
proceedings. Petitioner's claim that the prosecution had refused to present
evidence to prove his guilt for purposes of his bail application and that the
Sandiganbayan has refused to grant a hearing thereon is not borne by the records.
The prosecution did not waive, expressly or even impliedly, its right to adduce
evidence in opposition to the petition for bail of petitioner. It must be noted that the
Sandiganbayan had already scheduled the hearing dates for petitioner's
application for bail but the same were reset due to pending incidents raised in
several motions filed by the parties, which incidents had to be resolved by the
court prior to the bail hearings. The bail hearing was eventually scheduled by the
Sandiganbayan on July 10, 2001 but the hearing did not push through due to the
filing of this petition on June 29, 2001.
The delay in the conduct of hearings on petitioner's application for bail is therefore
not imputable solely to the Sandiganbayan or to the prosecution. Petitioner is also
partly to blame therefor, as is evident from the following list of motions filed by him
and by the prosecution:
Motions filed by petitioner:
• Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for
reconsideration/reinvestigation and to direct ombudsman to conduct
reinvestigation; (2) conduct a determination of probable cause as would suggest
the issuance of house arrest; (3) hold in abeyance the issuance of warrant of
arrest and other proceedings pending determination of probable cause;
• Motion for Early Resolution, dated May 24, 2001;
• Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of
Arrest for Immediate Grant of bail or For Release on Recognizance, dated April 25,
2001;
• Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated
May 11, 2001;
• Urgent Motion for Reconsideration, dated May 22, 2001, praying for
Resolution of May 18, 2001 be set aside and bail hearings be set at the earliest
possible time;
• Urgent Motion for Immediate Release on Bail or Recognizance, dated May
27, 2001;
• Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June
13, 2001, praying that he be allowed to file a Motion for Reinvestigation; and
• Motion to Quash, dated June 26, 2001.95
Motions filed by the prosecution:
• Motion for Earlier Arraignment, dated May 8, 2001;96
• Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose "Jinggoy"
Estrada and Edward Serapio, dated May 8, 2001;97
• Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to
Adjust Earlier Arraignment, dated May 25, 2001;98 and
• Omnibus Motion for Examination, Testimony and Transcription in Filipino,
dated June 19, 2001.99
The other accused in Criminal Case No. 26558 also contributed to the aforesaid
delay by their filing of the following motions:
• Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada,
assailing the constitutionality of R.A. No. 7080 and praying that the Amended
Information be quashed;
• Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy
Estrada, praying that he be (1)excluded from the Amended Information for lack of
probable cause; (2) released from custody; or in the alternative, (3) be allowed to
post bail;
• Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed
by Joseph and Jinggoy Estrada, praying that they be placed on house arrest
during the pendency of the case;
• Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and
Jinggoy Estrada;
• Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by
Joseph and Jinggoy Estrada;
• Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by
reinvestigation of the case by the Ombudsman or the outright dismissal of the
case;
• Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy
Estrada, requesting for five (5) days within which to respond to the Opposition to
Motion to Quash in view of the holidays and election-related distractions;
• Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001,
filed by Joseph Estrada;
• Omnibus Manifestation on voting and custodial arrangement, dated May 11,
2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house
arrest;
• Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph
and Jinggoy Estrada;
• Summation regarding house arrest, dated May 23, 2001, filed by Joseph
and Jinggoy Estrada;
• Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada;
• Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada,
praying that they be allowed to be confined in Tanay;
• Motion to charge as Accused Luis "Chavit" Singson, filed by Joseph
Estrada;
• Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy
Estrada, seeking reconsideration of denial of requests for house arrest, for
detention in Tanay or Camp Crame; motion for inhibition of Justice Badoy;
• Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan,
Metro Manila, dated June 28, 2001, filed by Jinggoy Estrada;
• Motion for Reconsideration, dated June 9, 2001, filed by Joseph and
Jinggoy Estrada, praying that the resolution compelling them to be present at
petitioner Serapio's hearing for bail be reconsidered;
• Motion to Quash, dated June 7, 2001, filed by Joseph Estrada;
• Still Another Manifestation, dated June 14, 2001, filed by Joseph and
Jinggoy Estrada stating that Bishop Teodoro Bacani favors their house arrest;
• Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada,
waiving their right to be present at the June 18 and 21, 2001 bail hearings and
reserving their right to trial with assessors;
• Omnibus Motion for Instructions: 30-Day House Arrest; Production,
Inspection and Copying of Documents; and Possible Trial with Assessors, dated
June 19, 2001, filed by Joseph and Jinggoy Estrada;
• Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001,
filed by Jinggoy Estrada;
• Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free
dates for parties, claiming that denial of bail is cruel and inhuman, reiterating
request for gag order of prosecution witnesses, availing of production, inspection
and copying of documents, requesting for status of alias case; and
• Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for
permission to attend some municipal affairs in San Juan, Metro Manila. 100
Furthermore, the Court has previously ruled that even in cases where the
prosecution refuses to adduce evidence in opposition to an application for bail by
an accused charged with a capital offense, the trial court is still under duty to
conduct a hearing on said application.101 The rationale for such requirement was
explained in Narciso vs. Sta. Romana-Cruz (supra), citing Basco vs. Rapatalo:102
"When the grant of bail is discretionary, the prosecution has the burden of showing
that the evidence of guilt against the accused is strong. However, the
determination of whether or not the evidence of guilt is strong, being a matter of
judicial discretion, remains with the judge. This discretion by the very nature of
things, may rightly be exercised only after the evidence is submitted to the court at
the hearing. Since the discretion is directed to the weight of the evidence and since
evidence cannot properly be weighed if not duly exhibited or produced before the
court, it is obvious that a proper exercise of judicial discretion requires that the
evidence of guilt be submitted to the court, the petitioner having the right of cross-
examination and to introduce his own evidence in rebuttal."103
Accordingly, petitioner cannot be released from detention until the Sandiganbayan
conducts a hearing of his application for bail and resolve the same in his favor.
Even then, there must first be a finding that the evidence against petitioner is not
strong before he may be granted bail.
Anent the issue of the propriety of the issuance of a writ of habeas corpus for
petitioner, he contends that he is entitled to the issuance of said writ because the
State, through the prosecution's refusal to present evidence and by the
Sandiganbayan's refusal to grant a bail hearing, has failed to discharge its burden
of proving that as against him, evidence of guilt for the capital offense of plunder is
strong. Petitioner contends that the prosecution launched "a seemingly endless
barrage of obstructive and dilatory moves" to prevent the conduct of bail hearings.
Specifically, the prosecution moved for petitioner's arraignment before the
commencement of bail hearings and insisted on joint bail hearings for petitioner,
Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner
who asked for a bail hearing; manifested that it would present its evidence as if it is
the presentation of the evidence in chief, meaning that the bail hearings would be
concluded only after the prosecution presented its entire case upon the accused;
and argued that petitioner's motion to quash and his petition for bail are
inconsistent, and therefore, petitioner should choose to pursue only one of these
two remedies.104 He further claims that the Sandiganbayan, through its questioned
orders and resolutions postponing the bail hearings effectively denied him of his
right to bail and to due process of law.105
Petitioner also maintains that the issuance by the Sandiganbayan of new orders
canceling the bail hearings which it had earlier set did not render moot and
academic the petition for issuance of a writ of habeas corpus, since said orders
have resulted in a continuing deprivation of petitioner's right to bail. 106 He argues
further that the fact that he was arrested and is detained pursuant to valid process
does not by itself negate the efficacy of the remedy of habeas corpus. In support of
his contention, petitioner cites Moncupa vs. Enrile,107 where the Court held
that habeas corpus extends to instances where the detention, while valid from its
inception, has later become arbitrary.108
However, the People insist that habeas corpus is not proper because petitioner
was arrested pursuant to the amended information which was earlier filed in
court,109 the warrant of arrest issuant pursuant thereto was valid, and petitioner
voluntarily surrendered to the authorities.110
As a general rule, the writ of habeas corpus will not issue where the person
alleged to be restrained of his liberty in custody of an officer under a process
issued by the court which jurisdiction to do so.111 In exceptional
circumstances, habeas corpus may be granted by the courts even when the
person concerned is detained pursuant to a valid arrest or his voluntary surrender,
for this writ of liberty is recognized as "the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action" due to "its ability to
cut through barriers of form and procedural mazes."112 Thus, in previous cases, we
issued the writ where the deprivation of liberty, while initially valid under the law,
had later become invalid,113 and even though the persons praying for its issuance
were not completely deprived of their liberty.114
The Court finds no basis for the issuance of a writ of habeas corpus in favor of
petitioner. The general rule that habeas corpus does not lie where the person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court which had jurisdiction to issue the same115 applies, because
petitioner is under detention pursuant to the order of arrest issued by the
Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the
amended information for plunder against petitioner and his co-accused. Petitioner
had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon
learning that a warrant for his arrest had been issued.
The ruling in Moncupa vs. Enrile116 that habeas corpus will lie where the
deprivation of liberty which was initially valid has become arbitrary in view of
subsequent developments finds no application in the present case because the
hearing on petitioner's application for bail has yet to commence. As stated earlier,
they delay in the hearing of petitioner's petition for bail cannot be pinned solely on
the Sandiganbayan or on the prosecution for that matter. Petitioner himself is
partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate
remedy for asserting one's right to bail.117 It cannot be availed of where accused is
entitled to bail not as a matter of right but on the discretion of the court and the
latter has not abused such discretion in refusing to grant bail, 118 or has not even
exercised said discretion. The proper recourse is to file an application for bail with
the court where the criminal case is pending and to allow hearings thereon to
proceed.
The issuance of a writ of habeas corpus would not only be unjustified but would G.R. No. 147799 May 10, 2001
also preempt the Sandiganbayan's resolution of the pending application for bail of
petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his RONALDO A. LUMBAO, petitioner,
application for bail. vs.
SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA,
IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO
follows: BERROYA, respondents.

1 In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The ----------------------------------------
resolutions of respondent Sandiganbayan subject of said petitions are AFFIRMED;
and G.R. No. 147810 May 10, 2001

2 In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,
respondent Sandiganbayan, Annex "L" of the petition, ordering a joint hearing of vs.
petitioner's petition for bail and the trial of Criminal Case No. 26558 as against THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE
former President Joseph E. Estrada is SET ASIDE; the arraignment of petitioner ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA,
on July 10, 2001 is also SET ASIDE. THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO
MENDOZA, respondents.
No costs.
RESOLUTION
SO ORDERED.
MELO, J.:

On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob

G.R. No. 147780 May 10, 2001 armed with explosives, firearms, bladed weapons, clubs, stones and other deadly
weapons" assaulting and attempting to break into Malacañang, issued
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, Proclamation No. 38 declaring that there was a state of rebellion in the National
petitioners, Capital Region. She likewise issued General Order No. 1 directing the Armed
vs. Forces of the Philippines and the Philippine National Police to suppress the
SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and rebellion in the National Capital Region. Warrantless arrests of several alleged
P/SR. SUPT. REYNALDO BERROYA, respondents. leaders and promoters of the "rebellion" were thereafter effected.

---------------------------------------- Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion,"
which allegedly gave a semblance of legality to the arrests, the following four
G.R. No. 147781 May 10, 2001
related petitions were filed before the Court –
MIRIAM DEFENSOR-SANTIAGO, petitioner,
(1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas
vs.
corpus (with an urgent application for the issuance of temporary restraining order
ANGELO REYES, Secretary of National Defense, ET AL., respondents.
and/or writ of preliminary injunction) filed by Panfilio M. Lacson, Michael Ray B.
---------------------------------------- Aquino, and Cezar O. Mancao; (2) G. R. No. 147781 for mandamus and/or review
of the factual basis for the suspension of the privilege of the writ of habeas corpus,
with prayer for the suspension of the privilege of the writ of habeas corpus, with
prayer for a temporary restraining order filed by Miriam Defensor-Santiago; (3) G.
R. No. 147799 for prohibition and injunction with prayer for a writ of preliminary
injunction and/or restraining order filed by Ronaldo A. Lumbao; and (4) G. R. No.
147810 for certiorari and prohibition filed by the political party Laban ng
Demokratikong Pilipino.
All the foregoing petitions assail the declaration of a state of rebellion by President
Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue
thereof, as having no basis both in fact and in law. Significantly, on May 6, 2001,
President Macapagal-Arroyo ordered the lifting of the declaration of a "state of
rebellion" in Metro Manila. Accordingly, the instant petitions have been rendered
moot and academic. As to petitioners' claim that the proclamation of a "state of
rebellion" is being used by the authorities to justify warrantless arrests, the
Secretary of Justice denies that it has issued a particular order to arrest specific
persons in connection with the "rebellion." He states that what is extant are general
instructions to law enforcement officers and military agencies to implement
Proclamation No. 38. Indeed, as stated in respondents' Joint Comments:
[I]t is already the declared intention of the Justice Department and police
authorities to obtain regular warrants of arrests from the courts for all acts
committed prior to and until May 1, 2001 which means that preliminary
investigations will henceforth be conducted.
(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p.
16; G.R. No. 147810, p. 24)
With this declaration, petitioners' apprehensions as to warrantless arrests should
be laid to rest.
In quelling or suppressing the rebellion, the authorities may only resort to
warrantless arrests of persons suspected of rebellion, as provided under Section 5,
Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless
arrest feared by petitioners is, thus, not based on the declaration of a "state of
rebellion."
Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition), 147781
(Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they are under
imminent danger of being arrested without warrant do not justify their resort to the
extraordinary remedies of mandamus and prohibition, since an individual subjected
to warrantless arrest is not without adequate remedies in the ordinary course of
law. Such an individual may ask for a preliminary investigation under Rule 112 of
the Rules of Court, where he may adduce evidence in his defense, or he may
submit himself to inquest proceedings to determine whether or not he should
remain under custody and correspondingly be charged in court. Further, a person
subject of a warrantless arrest must be delivered to the proper judicial authorities
within the periods provided in Article 125 of the Revised Penal Code, otherwise the
arresting officer could be held liable for delay in the delivery of detained persons.
Should the detention be without legal ground, the person arrested can charge the
arresting officer with arbitrary detention. All this is without prejudice to his filing an
action for damages against the arresting officer under Article 32 of the Civil Code.
Verily, petitioners have a surfeit of other remedies which they can avail themselves
of, thereby making the prayer for prohibition and mandamus improper at this time
(Section 2 and 3, Rule 65, Rules of Court).1âwphi1.nêt
Aside from the foregoing reasons, several considerations likewise inevitably call for
the dismissal of the petitions at bar.
G.R. No. 147780
In connection with their alleged impending warrantless arrest, petitioners Lacson,
Aquino, and mancao pray that the "appropriate court before whom the informations
against petitioners are filed be directed to desist from arraigning and proceeding
with the trial of the case, until the instant petition is finally resolved." This relief is
clearly premature considering that as of this date, no complaints or charges have
been filed against any of the petitioners for any crime. And in the event that the
same are later filed, this Court cannot enjoin criminal prosecution conducted in
accordance with the Rules of Court, for by that time any arrest would have been in
pursuant of a duly issued warrant.
As regards petitioners' prayer that the hold departure orders issued against them
be declared null and void ab initio, it is to be noted that petitioners are not directly
assailing the validity of the subject hold departure orders in their petition. They are
not even expressing intention to leave the country in the near future. The prayer to
set aside the same must be made in proper proceedings initiated for that purpose.
Anent petitioners' allegations ex abundante ad cautelam in support of their
application for the issuance of a writ of habeas corpus, it is manifest that the writ is
not called for since its purpose is to relieve petitioners from unlawful restraint
(Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains speculative
up to this very day.
G.R. No. 147781
The petition herein is denominated by petitioner Defensor-Santiago as one
for mandamus. It is basic in matters relating to petitions for mandamus that the
legal right of the petitioner to the performance of a particular act which is sought to
be compelled must be clear and complete. Mandamus will not issue unless the
right to relief is clear at the time of the award (Palileo v. Ruiz Castro, 85 Phil. 272).
Up to the present time, petitioner Defensor Santiago has not shown that she is in
imminent danger of being arrested without a warrant. In point of fact, the
authorities have categorically stated that petitioner will not be arrested without a
warrant.
G.R. No. 147799
Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP), for
his part, argues that the declaration of a "state of rebellion" is violative of the
doctrine of separation of powers, being an encroachment on the domain of the
judiciary which has the constitutional prerogative to "determine or interpret" what
took place on May 1, 2001, and that the declaration of a state of rebellion cannot
be an exception to the general rule on the allocation of the governmental powers.
We disagree. To be sure, Section 18, Article VII of the Constitution expressly
provides that "[t]he President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion…"
Thus, we held in Integrated Bar of the Philippines v. Hon. Zamora, (G.R. No.
141284, August 15, 2000):
x x x The factual necessity of calling out the armed forces is not easily quantifiable
and cannot be objectively established since matters considered for satisfying the
same is a combination of several factors which are not always accessible to the
courts. Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult to
verify, or wholly unavailable to the courts. In many instances, the evidence upon
which the President might decide that there is a need to call out the armed forces
may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly
confidential or affecting the security of the state. In the exercise of the power to
call, on-the-spot decisions may be imperatively necessary in emergency situations
to avert great loss of human lives and mass destruction of property. x x x
(at pp.22-23)
The Court, in a proper case, may look into the sufficiency of the factual basis of the
exercise of this power. However, this is no longer feasible at this time,
Proclamation No. 38 having been lifted.
G.R. No. 147810
Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The rule
requires that a party must show a personal stake in the outcome of the case or an
injury to himself that can be redressed by a favorable decision so as to warrant an
invocation of the court's jurisdiction and to justify the exercise of the court's
remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239 SCRA 386
[1994]). Here, petitioner has not demonstrated any injury to itself which would
justify resort to the Court. Petitioner is a juridical person not subject to arrest. Thus,
it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its
leaders, members, and supporters are being threatened with warrantless arrest
and detention for the crime of rebellion. Every action must be brought in the name
of the party whose legal right has been invaded or infringed, or whose legal right is
under imminent threat of invasion or infringement.
At best, the instant petition may be considered as an action for declaratory relief,
petitioner claiming that its right to freedom of expression and freedom of assembly
is affected by the declaration of a "state of rebellion" and that said proclamation is
invalid for being contrary to the Constitution.
However, to consider the petition as one for declaratory relief affords little comfort
to petitioner, this Court not having jurisdiction in the first instance over such a
petition. Section 5[1], Article VIII of the Constitution limits the original jurisdiction of
the Court to cases affecting ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.
WHEREFORE, premises considered, the petitions are hereby DISMISSED.
However, in G.R. No. 147780, 147781, and 147799, respondents, consistent and
congruent with their undertaking earlier adverted to, together with their agents,
representatives, and all persons acting for and in their behalf, are hereby enjoined
from arresting petitioners therein without the required judicial warrant for all acts
committed in relation to or in connection with the may 1, 2001 siege of VITUG, J.:
Malacañang.
I concur insofar as the resolution enjoins any continued warrantless arrests
SO ORDERED. for acts related to, or connected with, the May 1st incident but respectfully
dissent from the order of dismissal of the petitions for being said to be moot
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Gonzaga-Reyes, JJ., and academic. The petitions have raised important constitutional issues that,
concur. in my view, must likewise be fully addressed.

Vitug, separate opinion.

Kapunan, dissenting opinion.

Pardo, join the dissent of J. Kapunan.

Sandoval-Gutierrez, dissenting opinion. G.R. No. 147780 May 10, 2001

Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., on leave.
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O.
MANCAO, petitioners,
vs.
SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and
P/SR. SUPT. REYNALDO BERROYA, respondents.

----------------------------------------

G.R. No. 147781 May 10, 2001

G.R. No. 147780 May 10, 2001
MIRIAM DEFENSOR-SANTIAGO, petitioner,
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. vs.
MANCAO, petitioners, ANGELO REYES, Secretary of National Defense, ET AL., respondents.
vs.
----------------------------------------
SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and
P/SR. SUPT. REYNALDO BERROYA, respondents. G.R. No. 147799 May 10, 2001

---------------------------------------- RONALDO A. LUMBAO, petitioner,

vs.
G.R. No. 147781 May 10, 2001
SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA,
MIRIAM DEFENSOR-SANTIAGO, petitioner, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO
vs. BERROYA, respondents.
ANGELO REYES, Secretary of National Defense, ET AL., respondents.
----------------------------------------
SEPARATE OPINION
G.R. No. 147810 May 10, 2001
THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,
vs.
THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE
ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA,
THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO
MENDOZA, respondents.
DISSENTING OPINION
KAPUNAN, J.:
The right against unreasonable searches and seizure has been characterized as
belonging "in the catalog of indispensable freedoms."
Among deprivation of rights, none is so effective in cowing a population, crushing
the spirit of the individual and putting terror in every heart. Uncontrolled search and
seizure is one of the first and most effective weapons in the arsenal of every
arbitrary government. And one need only briefly to have dwelt and worked among
a people know that the human personality deteriorates and dignity and self-
reliance disappear where homes, persons and possessions are subject at any
hour to unheralded search and seizure by the police.1
Invoking the right against unreasonable searches and seizures, petitioners Panfilo
Lacson, Michael Ray Aquino and Cezar O. Mancao II now seek a temporary
restraining order and/or injunction from the Court against their impending
warrantless arrests upon order of the Secretary of Justice.2 Petitioner Laban ng
Demokratikong Pilipino (LDP), likewise, seeks to enjoin the arrests of its senatorial
candidates, namely, Senator Juan Ponce-Enrile, Senator Miriam Defensor-
Santiago, Senator Gregorio B. Honasan and General Panfilo Lacson. 3 Separate
petitioners were also filed by Senator Juan Ponce Enrile.4 Former Ambassador
Ernesto M. Maceda,5 Senator Miriam Defensor-Santiago,6Senator Gregorio B.
Honasan,7 and the Integrated Bar of the Philippines (IBP).8
Briefly, the order for the arrests of these political opposition leaders and police
officers stems from the following facts:
On April 25, 2001, former President Joseph Estrada was arrested upon the
warrant issued by the Sandiganbayan in connection with the criminal case for
plunder filed against him. Several hundreds of policemen were deployed to effect
his arrest. At the time, a number of Mr. Estrada's supporters, who were then
holding camp outside his residence in Greenhills Subdivision, sought to prevent his
arrest. A skirmish ensued between them and the police. The police had to employ
batons and water hoses to control the rock-throwing pro-Estrada rallyists and allow
the sheriffs to serve the warrant. Mr. Estrada and his son and co-accused, Mayor
Jinggoy Estrada, were then brought to Camp Crame where, with full media
coverage, their fingerprints were obtained and their mug shots taken.
Later that day, and on the succeeding days, a huge gathered at the EDSA Shrine
to show its support for the deposed President. Senators Enrile, Santiago,
Honasan, opposition senatorial candidates including petitioner Lacson, as well as
other political personalities, spoke before the crowd during these rallies.
In the meantime, on April 28, 2001, Mr. Estrada and his son were brought to the
Veterans memorial Medical Center for a medical check-up. It was announced that
from there, they would be transferred to Fort Sto. Domingo in Sta. Rosa, Laguna.
In the early morning of May 1, 2001, the crowd at EDSA decided to march to
Malacañang Palace. The Armed Forces of the Philippines (AFP) was called to
reinforce the Philippine National Police (PNP) to guard the premises of the
presidential residence. The marchers were able to penetrate the barricades put up
by the police at various points leading to Mendiola and were able to reach Gate 7
of Malacañan. As they were being dispersed with warning shots, tear gas and
water canons, the rallyists hurled stones at the police authorities. A melee erupted.
Scores of people, including some policemen, were hurt.
At noon of the same day, after the crowd in Mendiola had been dispersed,
President Gloria Macapagal-Arroyo issued Proclamation No. 38 declaring a "state
of rebellion" in Metro Manila:
Presidential Proclamation No. 38
DECLARING STATE OF REBELLION IN THE NATIONAL CAPITAL REGION
WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed
weapons, clubs, stones and other deadly weapons, in great part coming from the
mass gathering at the EDSA Shrine, and other armed groups, having been
agitated and incited and, acting upon the instigation and under the command and
direction of known and unknown leaders, have and continue to assault and attempt
to break into Malacañang with the avowed purpose of overthrowing the duly
constituted Government and forcibly seize power, and have and continue to rise
publicly, shown open hostility, and take up arms against the duly constituted
Government for the purpose of removing from the allegiance to the Government
certain bodies of the Armed Forces of the Philippines and the Philippine National
Police, and to deprive the President of the Republic of the Philippines, wholly and
partially, of her powers and prerogatives which constitute the continuing crime of
rebellion punishable under Article 134 of the Revised Penal Code;
WHEREAS, armed groups recruited by known and unknown leaders, conspirators,
and plotters have continue (sic) to rise publicly by the use of arms to overthrow the
duly constituted Government and seize political power;
WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary,
the President as the Commander-in-Chief of all armed forces of the Philippines,
may call out such armed forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers
vested in me by law hereby recognize and confirm the existence of an actual and
on-going rebellion compelling me to declare a state of rebellion;
In view of the foregoing, I am issuing General Order NO. 1 in accordance with
Section 18, Article VII of the Constitution calling upon the Armed Forces of the
Philippines and the Philippine National police to suppress and quell the rebellion.
City of Manila, May 1, 2001.
The President likewise issued General Order No. 1 which reads:
GENERAL ORDER NO. 1
DIRECTING THE ARMED FORCES OF THE PHILIPPIENS AND THE
PHILIPPINE NATIONAL POLICE TO SUPPRESS THE REBELLION IN THE
NATIONAL CAPITAL REGION
WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed
weapons, clubs, stones and other deadly weapons, in great part coming from the
mass gathering at the EDSA Shrine, and other armed groups, having been
agitated and incited and, acting upon the instigation and under the command and
direction of known and unknown leaders, have and continue to assault and attempt
to break into Malacañang with the avowed purpose of overthrowing the duly
constituted Government and forcibly seize political power, and have and continue
to rise publicly, show open hostility, and take up arms against the duly constituted
Government certain bodies of the Armed Forces of the Philippines and the
Philippine National Police, and to deprive the President of the Republic of the
Philippines, wholly and partially, of her powers and prerogatives which constitute
the continuing crime of rebellion punishable under Article 134 of the Revised Penal
Code;
WHEREAS, armed groups recruited by known and unknown leaders, conspirators,
and plotters have continue (sic) to rise publicly by the use of arms to overthrow the
duly constituted Government and seize political power;
WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary,
the President as the Commander-in-Chief of all armed forces of the Philippines,
may call out such armed forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers
vested in me under the Constitution as President of the Republic of the Philippines
and Commander-in-Chief of all armed forces of the Philippines and pursuant to
Proclamation No. 38, dated May 1, 2001, do hereby call upon the Armed Forces of
the Philippines and the Philippine national police to suppress and quell the
rebellion.
I hereby direct the Chief of Staff of the Armed Forces of the Philippines and the
Chief of the Philippine National Police and the officers and men of the Armed
Forces of the Philippines and the Philippine National Police to immediately carry
out the necessary and appropriate actions and measures to suppress and quell the
rebellion with due regard to constitutional rights.
City of Manila, May 1, 2001.
Pursuant to the proclamation, several key leaders of the opposition were ordered
arrested. Senator Enrile was arrested without warrant in his residence at around
4:00 in the afternoon. Likewise arrested without warrant the following day was
former Ambassador Ernesto Maceda. Senator Honasan and Gen. Lacson were
also ordered arrested but the authorities have so far failed to apprehend them.
Ambassador Maceda was temporarily released upon recognizance while Senator
Ponce Enrile was ordered released by the Court on cash bond.
The basic issue raised by the consolidated petitions is whether the arrest or
impending arrest without warrant, pursuant to a declaration of "state of rebellion"
by the President of the above-mentioned persons and unnamed other persons
similarly situated suspected of having committed rebellion is illegal, being
unquestionably a deprivation of liberty and violative of the Bill of Rights under the
Constitution.
The declaration of a "state of rebellion" is supposedly based on Section 18, Article
VII of the Constitution which reads:
The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours from
the proclamation of martial law or the suspension of the writ of habeas corpus, the
President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of
a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize
the conferment of jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
Section 18 grants the President, as Commander-in-Chief, the power to call out the
armed forces in cases of (1) lawless violence, (2) rebellion and (3) invasion.9 In the
latter two cases, i.e., rebellion or invasion, the President may, when public safety
requires, also (a) suspend the privilege of the writ of habeas corpus, or (b) place
the Philippines or any part thereof under martial law. However, in the exercise of
this calling out power as Commander-in-Chief of the armed forces, the Constitution
does not require the President to make a declaration of a "state of rebellion" (or,
for that matter, of lawless violence or invasion). The term "state of rebellion" has
no legal significance. It is vague and amorphous and does not give the President
more power than what the Constitution says, i. e, whenever it becomes necessary,
he may call out such armed forces to prevent or suppress lawless violence,
invasion or rebellion. As Justice Mendoza observed during the hearing of this
case, such a declaration is "legal surplusage." But whatever the term means, it
cannot diminish or violate constitutionally-protected rights, such as the right to due
process,10 the rights to free speech and peaceful assembly to petition the
government for redress of grievances,11and the right against unreasonable
searches and seizures,12 among others.
In Integrated Bar of the Philippines vs. Zamora, et al.,13 the Court held that:
x x x [T]he distinction (between the calling out power, on one hand, and the power
to suspend the privilege of the write of habeas corpus and to declare martial law,
on the other hand) places the calling out power in a different category from the
power to declare martial law and the power to suspend the privilege of the writ
of habeas corpus, otherwise, the framers of the Constitution would have simply
lumped together the three powers and provided for their revocation and review
without any qualification. Expressio unius est exclusio alterius.
xxx
The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest
discretion in using the "calling out" power because it is considered as the lesser
and more benign power compared to the power to suspend the privilege of the writ
of habeas corpus and the power to impose martial law, both of which involve the
curtailment and suppression of certain basic civil rights and individual freedoms,
and thus necessitating affirmation by Congress and, in appropriate cases, review
by this Court.
On the other hand, if the motive behind the declaration of a "state of rebellion" is to
arrest persons without warrant and detain them without bail and, thus, skirt the
Constitutional safeguards for the citizens' civil liberties, the so-called "state of
rebellion" partakes the nature of martial law without declaring on its face, yet, if it is
applied and administered by public authority with an evil eye so as to practically
make it unjust and oppressive, it is within the prohibition of the Constitution. 14 In an
ironic sense, a "state of rebellion" declared as a subterfuge to effect warrantless
arrest and detention for an unbailable offense places a heavier burden on the
people's civil liberties than the suspension of the privilege of the writ of habeas
corpus the declaration of martial law because in the latter case, built-in safeguards
are automatically set on motion: (1) The period for martial law or suspension is
limited to a period not exceeding sixty day; (2) The President is mandated to
submit a report to Congress within forty-eight hours from the proclamation or
suspension; (3) The proclamation or suspension is subject to review by Congress,
which may revoke such proclamation or suspension. If Congress is not in session,
it shall convene in 24 hours without need for call; and (4) The sufficiency of the
factual basis thereof or its extension is subject to review by the Supreme Court in
an appropriate proceeding.15
No right is more fundamental than the right to life and liberty. Without these rights,
all other individual rights may not exist. Thus, the very first section in our
Constitution's Bill of Rights, Article III, reads:
SECTION 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
And to assure the fullest protection of the right, more especially against
government impairment, Section 2 thereof provides:
SEC. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons
or things to be seized.
Indeed, there is nothing in Section 18 which authorizes the President or any
person acting under her direction to make unwarranted arrests. The existence of
"lawless violence, invasion or rebellion" only authorizes the President to call out
the "armed forces to prevent or suppress lawless violence, invasion or rebellion."
Not even the suspension of the privilege of the writ of habeas corpus or the
declaration of martial law authorizes the President to order the arrest of any
person. The only significant consequence of the suspension of the writ of habeas
corpus is to divest the courts of the power to issue the writ whereby the detention
of the person is put in issue. It does not by itself authorize the President to order
the arrest of a person. And even then, the Constitution in Section 18, Article VII
makes the following qualifications:
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
In the instant case, the President did not suspend the writ of habeas corpus. Nor
did she declare martial law. A declaration of a "state of rebellion," at most, only
gives notice to the nation that it exists, and that the armed forces may be called to
prevent or suppress it, as in fact she did. Such declaration does not justify any
deviation from the Constitutional proscription against unreasonable searches and
seizures.
As a general rule, an arrest may be made only upon a warrant issued by a court. In
very circumscribed instances, however, the Rules of Court allow warrantless
arrests. Section 5, Rule 113 provides:
SEC. 5. Arrest without warrant; when lawful. – A police officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to
be arrested has committed it; and
xxx
In cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.
It must be noted that the above are exceptions to the constitutional norm enshrined
in the Bill of Rights that a person may only be arrested on the strength of a warrant
of arrest issued by a "judge" after determining "personally" the existence of
"probable cause" after examination under oath or affirmation of the complainant
and the witnesses he may produce. Its requirements should, therefore, be
scrupulously met:
The right of a person to be secure against any unreasonable seizure of his body
and any deprivation of his liberty is a most basic and fundamental one. The statute
or rule which allows exceptions to the requirement of warrants of arrests is strictly
construed. Any exception must clearly fall within the situations when securing a
warrant would be absurd or is manifestly unnecessary as provided by the Rule. We
cannot liberally construe the rule on arrests without warrant or extend its
application beyond the cases specifically provided by law. To do so would infringe
upon personal liberty and set back a basic right so often violated and so deserving
of full protection.16
A warrantless arrest may be justified only if the police officer had facts and
circumstances before him which, had they been before a judge, would constitute
adequate basis for a finding of probable cause of the commission of an offense
and that the person arrested is probably guilty of committing the offense. That is
why the Rules of Criminal Procedure require that when arrested, the person
"arrested has committed, is actually committing, or is attempting to commit an
offense" in the presence of the arresting officer. Or if it be a case of an offense
which had "just been committed," that the police officer making the arrest "has
personal knowledge of facts or circumstances that the person to be arrested has
committed it."
Petitioners were arrested or sought to be arrested without warrant for acts of
rebellion ostensibly under Section 5 of Rule 113. Respondents' theory is based
on Umil vs. Ramos,17 where this Court held:
The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes,
and crimes or offenses committed in furtherance thereof or in connection therewith
constitute direct assault against the State and are in the nature of continuing
crimes.18
Following this theory, it is argued that under Section 5(a), a person who "has
committed, is actually committing, or is attempting to commit" rebellion and may be
arrested without a warrant at any time so long as the rebellion persists.
Reliance on Umil is misplaced. The warrantless arrests therein, although effected
a day or days after the commission of the violent acts of petitioners therein, were
upheld by the Court because at the time of their respective arrests, they were
members of organizations such as the Communist Party of the Philippines, the
New Peoples Army and the National United Front Commission, then outlawed
groups under the Anti-Subversion Act. Their mere membership in said illegal
organizations amounted to committing the offense of subversion19 which justified
their arrests without warrants.
In contrast, it has not been alleged that the persons to be arrested for their alleged
participation in the "rebellion" on May 1, 2001 are members of an outlawed
organization intending to overthrow the government. Therefore, to justify a
warrantless arrest under Section 5(a), there must be a showing that the persons
arrested or to be arrested has committed, is actually committing or is attempting to
commit the offense of rebellion.20 In other words, there must be an overt act
constitutive of rebellion taking place in the presence of the arresting officer.
In United States vs. Samonte,21 the term" in his [the arresting officer's] presence"
was defined thus:
An offense is said to be committed in the presence or within the view of an
arresting officer or private citizen when such officer or person sees the offense,
even though at a distance, or hears the disturbance created thereby and proceeds
at once to the scene thereof; or the offense is continuing, or has not been
consummated, at the time the arrest is made.22
This requirement was not complied with particularly in the arrest of Senator Enrile.
In the Court's Resolution of May 5, 2001 in the petition for habeas corpus filed by
Senator Enrile, the Court noted that the sworn statements of the policemen who
purportedly arrested him were hearsay.23 Senator Enrile was arrested two (2) days
after he delivered allegedly seditious speeches. Consequently, his arrest without
warrant cannot be justified under Section 5(b) which states that an arrest without a
warrant is lawful when made after an offense has just been committed and the
arresting officer or private person has probable cause to believe based on
personal knowledge of facts and circumstances that the person arrested has
committed the offense.
At this point, it must be stressed that apart from being inapplicable to the cases at
bar, Umil is not without any strong dissents. It merely re-affirmed Garcia-Padilla vs.
Enrile,24 a case decided during the Marcos martial law regime.25 It cannot apply
when the country is supposed to be under the regime of freedom and democracy.
The separate opinions of the following Justices in the motion for reconsideration of
said case26 are apropos:
FERNAN C.J., concurring and dissenting:
Secondly, warrantless arrests may not be allowed if the arresting officers are not
sure what particular provision of law had been violated by the person arrested.
True it is that law enforcement agents and even prosecutors are not all adept at
the law. However, erroneous perception, not to mention ineptitude among their
ranks, especially if it would result in the violation of any right of a person, may not
be tolerated. That the arrested person has the "right to insist during the pre-trial or
trial on the merits" (Resolution, p. 18) that he was exercising a right which the
arresting officer considered as contrary to law, is beside the point. No person
should be subjected to the ordeal of a trial just because the law enforcers wrongly
perceived his action.27(Underscoring supplied)
GUTIERREZ, JR., J., concurring and dissenting opinion
Insofar as G.R. NO. 81567 is concerned, I joint the other dissenting Justices in
their observations regarding "continuing offenses." To base warrantless arrests on
the doctrine of continuing offense is to give a license for the illegal detention of
persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses
where the line between overt acts and simple advocacy or adherence to a belief is
extremely thin. If a court has convicted an accused of rebellion and he is found
roaming around, he may be arrested. But until a person is proved guilty, I fail to
see how anybody can jump to a personal conclusion that the suspect is indeed a
rebel and must be picked up on sight whenever seen. The grant of authority in the
majority opinion is too broad. If warrantless searches are to be validated, it should
be Congress and not this Court which should draw strict and narrow standards.
Otherwise, the non-rebels who are critical, noisy, or obnoxious will be
indiscriminately lumped up with those actually taking up arms against the
Government.
The belief of law enforcement authorities, no matter how well-grounded on past
events, that the petitioner would probably shoot other policemen whom he may
meet does not validate warrantless arrests. I cannot understand why the
authorities preferred to bide their time, await the petitioner's surfacing from
underground, and ounce on him with no legal authority instead of securing
warrants of arrest for his apprehension.28(Underscoring supplied)
CRUZ, J., concurring and dissenting:
I submit that the affirmation by this Court of the Garcia-Padilla decision to justify
the illegal arrests made in the cases before us is a step back to that shameful past
when individual rights were wantonly and systematically violated by the Marcos
dictatorship. It seem some of us have short memories of that repressive regime,
but I for one am not one to forget so soon. As the ultimate defender of the
Constitution, this Court should not gloss over the abuses of those who, out of
mistaken zeal, would violate individual liberty in the dubious name of national
security. Whatever their ideology and even if it be hostile to ours, the petitioners
are entitled to the protection of the Bill of Rights, no more and no less than any
other person in this country. That is what democracy is all about.29 (Underscoring
supplied)
FELICIANO, J., concurring and dissenting:
12. My final submission, is that, the doctrine of "continuing crimes," which has its
own legitimate function to serve in our criminal law jurisprudence, cannot be
invoked for weakening and dissolving the constitutional guarantee against
warrantless arrest. Where no overt acts comprising all or some of the elements of
the offense charged are shown to have been committed by the person arrested
without warrant, the "continuing crime" doctrine should not be used to dress up the
pretense that a crime, begun or committed elsewhere, continued to be committed
by the person arrested in the presence of the arresting officer. The capacity for
mischief of such a utilization of the "continuing crimes" doctrine, is infinitely
increased where the crime charged does not consist of unambiguous criminal acts
with a definite beginning and end in time and space (such as the killing or
wounding of a person or kidnapping and illegal detention or arson) but rather or
such problematic offenses as membership in or affiliation with or becoming a
member of, a subversive association or organization. For in such cases, the overt
constitutive acts may be morally neutral in themselves, and the unlawfulness of the
acts a function of the aims or objectives of the organization involved. Note, for
instance, the following acts which constitute prima facie evidence of "membership
in any subversive association:"
a) Allowing himself to be listed as a member in any book or any of the lists,
records, correspondence, or any other document of the organization;
b) Subjecting himself to the discipline of such or association or organization in any
form whatsoever;
c) Giving financial contribution to such association or organization in dues,
assessments, loans or in any other forms;
xxx
f) Conferring with officers or other members of such association or organization in
furtherance of any plan or enterprise thereof;
xxx
g) Preparing documents, pamphlets, leaflets, books, or any other type of
publication to promote the objectives and purposes of such association or
organization;
xxx
k) Participating in any way in the activities, planning action, objectives, or purposes
of such association or organization.
It may well be, as the majority implies, that the constitutional rule against
warrantless arrests and seizures makes the law enforcement work of police
agencies more difficult to carry out. It is not our Court's function, however, and the
Bill of Rights was not designed, to make life easy for police forces but rather to
protect the liberties of private individuals. Our police forces must simply learn to
live with the requirements of the Bill of Rights, to enforce the law by modalities
which themselves comply with the fundamental law. Otherwise they are very likely
to destroy, whether through sheer ineptness or excess of zeal, the very freedoms
which make our policy worth protecting and saving.30 (Underscoring supplied)
It is observed that a sufficient period has lapsed between the fateful day of May 1,
2001 up to the present. If respondents have ample evidence against petitioners,
then they should forthwith file the necessary criminal complaints in order that the
regular procedure can be followed and the warrants of arrest issued by the courts
in the normal course. When practicable, resort to the warrant process is always to
be preferred because "it interposes an orderly procedure involving 'judicial
impartiality' whereby a neutral and detached magistrate can make informed and
deliberate determinations on the issue of probable cause."31
The neutrality, detachment and independence that judges are supposed to
possess is precisely the reason the framers of the 1987 Constitution have reposed
upon them alone the power to issue warrants of arrest. To vest the same to a
branch of government, which is also charged with prosecutorial powers, would
make such branch the accused's adversary and accuser, his judge and jury. 32
A declaration of a state of rebellion does not relieve the State of its burden of
proving probable cause. The declaration does not constitute a substitute for proof.
It does not in any way bind the courts, which must still judge for itself the existence
of probable cause. Under Section 18, Article VII, the determination of the existence
of a state of rebellion for purposes of proclaiming martial law or the suspension of
the privilege of the writ of habeas corpusrests for which the President is granted
ample, though not absolute, discretion. Under Section 2, Article III, the
determination of probable cause is a purely legal question of which courts are the
final arbiters.
Justice Secretary Hernando Perez is reported to have announced that the lifting of
the "state of rebellion" on May 7, 2001 does not stop the police from making
warrantless arrests.33 If this is so, the pernicious effects of the declaration on the
people's civil liberties have not abated despite the lifting thereof. No one exactly
knows who are in the list or who prepared the list of those to be arrested for
alleged complicity in the "continuing" crime of "rebellion" defined as such by
executive fiat. The list of the perceived leaders, financiers and supporters of the
"rebellion" to be arrested and incarcerated could expand depending on the
appreciation of the police. The coverage and duration of effectivity of the orders of
arrest are thus so open-ended and limitless as to place in constant and continuing
peril the people's Bill of Rights. It is of no small significance that four of he
petitioners are opposition candidates for the Senate. Their campaign activities
have been to a large extent immobilized. If the arrests and orders of arrest against
them are illegal, then their Constitutional right to seek public office, as well as the
right of he people to choose their officials, is violated.
In view of the transcendental importance and urgency of the issues raised in these
cases affecting as they do the basic liberties of the citizens enshrined in our
Constitution, it behooves us to rule thereon now, instead of relegating the cases to
trial courts which unavoidably may come up with conflicting dispositions, the same
to reach this Court inevitably for final ruling. As we aptly pronounced in Salonga vs.
Cruz Paño:34
The Court also has the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. It has the symbolic function of educating
bench and bar on the extent of protection given by constitutional guarantees.
Petitioners look up in urgent supplication to the Court, considered the last bulwark
of democracy, for relief. If we do not act promptly, justly and fearlessly, to whom
will they turn to?
WHEREFORE, I vote as follows:
(1) Give DUE COURSE to and GRANT the petitions; 14 See Yick Wo vs. Hopkins, 118 U.S. 356.

(2) Declare as NULL and VOID the orders of arrest issued against petitioners; 15 Id., at Article VII, Section 18.

(3) Issue a WRIT OF INJUNCTION enjoining respondents, their agents and all 16 People vs. Burgos, 144 SCRA 1, 14 (1986).
other persons acting for and in their behalf from effecting warrantless arrests
17 187 SCRA 311 (1990).
against petitioners and all other persons similarly situated on the basis of
Proclamation No. 38 and General Order No. 1 of the President. 18 Id., at 318.
SO ORDERED. 19 187 SCRA 311, 318, 321, 323-24. (1990).

20 Under Article 134 of the Revised Penal Code, these acts would involve rising
publicly and taking up arms against the Government: (1) to remove from the
Footnote allegiance of the Government or its laws, the entire, or a portion of Philippine
territory, or any body of land, naval or other armed forces, or (2) to deprive the
1 Dissention Opinion, J. Jackson, in Brinegar vs. United States, 338 U.S. 2084 Chief Executive or the Legislature, wholly or partially, of any of their powers or
(1949). prerogatives.

2 G.R. No. 147780, for Prohibition, Injunction, Mandamus and Habeas Corpus. 21 16 Phil 516 (1910).

3 G.R. No. 147810, for Certiorari and Prohibition. 22 Id., at 519.

4 G.R. No. 147785, for Habeas Corpus. 23 G.R. No. 147785.

5 G.R. No. 147787, for Habeas Corpus. 24 121 SCRA 472 (1983).

6 G.R. No. 147781, for Mandamus. 25See Note 396 in Bernas, The 1987 Constitution of the Republic of the
Philippines: A Commentary, p. 180.
7 G.R. No. 147818, for Injunction.
26 Umil vs. Ramos, 202 SCRA 251 (1991).
8 G.R. No. 147819, for Certiorari and Mandamus.
27 Id., at 274.
9Integrated Bar of the Philippines vs. Zamora, et al. G.R. No. 141284, August 15,
2000. 28 Id., at 279.

10 Constitution, Article III, Section 1. 29 Id., at 284.

11 Constitution, Article III, Section 4. 30 Id., at 293-295.

12 Constitution, Article III, Section 2. 31

LAFAVE, I SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT (1987), pp. 548-549. Citations omitted.
13 G.R. No. 141284, supra.
32 Presidential Anti-Dollar Salting Task Force vs. CA, 171 SCRA 348 (1989).
33Manila Bulletin issue of May 8, 2001 under the heading "Warrantless arrest P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO
continue" by Rey G. Panaligan: BERROYA, respondents.

Justice Secretary Hernando Perez said yesterday the lifting of the state of rebellion ----------------------------------------
in Metro Manila does not ban the police from making warrantless arrest of
suspected leaders of the failed May 1 Malacañang siege. G.R. No. 147810 May 10, 2001

In a press briefing, Perez said, "we can make warrantless arrest because that is THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner,
provided for in the Rules of Court," citing Rule 113. vs.
THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE
34 134 SCRA 438 (1985). ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA,
THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO
MENDOZA, respondents.

DISSENTING OPINION

SANDOVAL-GUTIERREZ, J.:

The exercise of certain powers by the President in an atmosphere of civil unrest

may sometimes raise constitutional issues. If such powers are used arbitrarily and
G.R. No. 147780 May 10, 2001 capriciously, they may degenerate into the worst form of despotism.
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. It is on this premise that I express my dissent.
MANCAO, petitioners,
vs. The chain of events which led to the present constitutional crisis are as follows:
SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and
P/SR. SUPT. REYNALDO BERROYA, respondents. On March 2, 2001, the Supreme Court rendered the landmark decision that would
bar further questions on the legitimacy of Gloria Macapagal-Arroyo's
---------------------------------------- presidency.1 In a unanimous decision, the Court declared that Joseph Ejercito
Estrada had effectively resigned his post and that Macapagal-Arroyo is the
G.R. No. 147781 May 10, 2001 legitimate President of the Philippines. Estrada was stripped of all his powers and
presidential immunity from suit.
MIRIAM DEFENSOR-SANTIAGO, petitioner,
vs. Knowing that a warrant of arrest may at any time be issued against Estrada, his
ANGELO REYES, Secretary of National Defense, ET AL., respondents. loyalists rushed to his residence in Polk Street, North Greenhills Subdivision, San
Juan, Metro Manila. They conducted vigil in the vicinity swearing that no one can
----------------------------------------
take away their "president."
G.R. No. 147799 May 10, 2001
Then the dreadful day for the Estrada loyalists came.
RONALDO A. LUMBAO, petitioner,
On April 25, 2001, the Third Division of the Sandiganbayan issued warrants of
vs.
arrest against Estrada, his son Jinggoy, Charlie "Atong" Ang, Edward Serapio,
SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA,
Yolanda Ricaforte, Alma Alfaro, Eleuterio Tan and Delia Rajas.2Emotions ran high
as an estimated 10,000 Estrada loyalists, ranging from tattooed teenagers of
Tondo to well-heeled Chinese, gathered in Estrada's neighborhood.3 Supporters
turned hysterical. Newspapers captured pictures of raging men and wailing
women.4 When policemen came, riots erupted. Police had to use their batons as
well as water hoses to control the rock-throwing Estrada loyalists.5
It took the authorities about four hours to implement the warrant of arrest. At about
3:30 o'clock in the afternoon of the same day, Philippine National Police (PNP)
Chief, Director General Leandro R. Mendoza, with the aid of PNP's Special Action
Force and reinforcements from the Philippine Army and Marines, implemented the
warrant of arrest against Estrada.6
Like a common criminal, Estrada was fingerprinted and had his mug shots taken at
the detention center of the former Presidential Anti-Organized Task Force at Camp
Crame. The shabby treatment, caught on live TV cameras nationwide, had
sparked off a wave of protest all over the country. Even international news
agencies like CNN and BBC were appalled over the manner of Estrada's arrest
calling it "overkill." In a taped message aired over radio and television, Estrada
defended himself and said, "I followed the rule of law to the letter. I asked our
people now to tell the powers to respect our constitution and the rule of law."
Being loyal to the end, the supporters of Estrada followed him to Camp Crame.
About 3,000 of them massed up in front of the camp. They were shouting "Edsa
Three! Edsa Three! They vowed not to leave the place until Estrada is released.
When asked how long they planned to stay, the protesters said, "Kahit isang
buwan, kahit isang taon.7
At about 6:00 o' clock in the afternoon, also of the same day, the PNP's anti-riot
squads dispersed them. Thus, they proceeded to the Edsa Shrine in Mandaluyong
City where they joined forces with hundreds more who came from North
Greenhills.8 Hordes of Estrada loyalists began gathering at the historic shrine.
On April 27, 2001, the crowd at Edsa begun to swell in great magnitude. Estrada
loyalists from various sectors, most of them obviously belonging to the "masses,"
brought with them placards and streamers denouncing the manner of arrest done
to the former president.9 In the afternoon, buses loaded with loyalists from the
nearby provinces arrived at the Edsa Shrine. One of their leaders said that the
Estrada supporters will stay at Edsa Shrine until the former president gets justice
from the present administration.10
An estimated 1,500 PNP personnel from the different parts of the metropolis were
deployed to secure the area.11On April 28, 2001, the PNP and the Armed Forces
declared a "nationwide red alert."12 Counter-intelligence agents checked on
possible defectors from the military top officials. Several senators were linked to an
alleged junta plot.
During the rally, several Puwersa Ng Masa candidates delivered speeches before
the crowd. Among those who showed up at the rally were Senators Miriam
Defensor-Santiago, Gregorio Honasan, Juan Ponce Enrile, Edgardo Angara,
Vicente Sotto and former PNP Director General Panfilo Lacson and former
Ambassador Ernesto Maceda.13
On April 30, 2001, the government started to prepare its forces. A 2,000-strong
military force backed up by helicopter gunships, Scorpion tanks and armored
combat vehicles stood ready to counter any attempt by Estrada loyalists to mount
a coup. And to show that it meant business, the task force parked two MG-520
attack helicopters armed to the teeth with rockets on the parade ground at Camp
Aguinaldo, Quezon City. Also deployed were two armored personnel carriers and
troops in camouflage uniforms.14 Over 2,500 soldiers from the army, navy, and air
force were formed into Task Force Libra to quell the indignant Estrada loyalists. 15
On May 1, 2001, at about 1:30 o'clock in the morning, the huge crowd at Edsa
started their march to Malacañang.16Along the way, they overran the barricades
set up by the members of the PNP Crowd Dispersal Control Management.17
Shortly past 5:00 o'clock in the morning of the same day, the marchers were at the
gates of Malacañang chanting, dancing, singing and waving flags. 18
At around 10:00 o'clock in the morning, the police, with the assistance of combat-
ready soldiers, conducted dispersal operations. Some members of the dispersal
team were unceasingly firing their high-powered firearms in the air, while the
police, armed with truncheons and shields, were slowly pushing the protesters
away from the gates of Malacañang. Television footages showed protesters
hurling stones and rocks on the advancing policemen, shouting invectives against
them and attacking them with clubs. They burned police cars, a motorcycle, three
pick-ups owned by a television station, construction equipment and a traffic police
outpost along Mendiola Street.19 They also attacked Red Cross vans, destroyed
traffic lights, and vandalized standing structures. Policemen were seen clubbing
protesters, hurling back stones, throwing teargas under the fierce midday sun, and
firing guns towards the sky. National Security Adviser Roilo Golez said the Street
had to be bleared of rioters at all costs because "this is like an arrow, a dagger
going all the way to (Malacañang) Gate 7."20
Before noontime of that same day, the Estrada loyalists were driven away.
The violent street clashes prompted President Macapagal-Arroyo to place Metro
Manila under a "state of rebellion."
Presidential Spokesperson Rigoberto Tiglao told reporters, "We are in a state of
rebellion. This is not an ordinary demonstration."21 After the declaration, there were
threats of arrests against those suspected of instigating the march to Malacañang.
At about 3:30 o'clock in the afternoon, Senator Juan Ponce Enrile was arrested in
his house in Dasmariñas Village, Makati City by a group led by Reynaldo Berroya,
Chief of the Philippine National Police Intelligence Group. 22Thereafter, Berroya and
his men proceeded to hunt re-electionist Senator Gregorio Honasan, former PNP
Chief Panfilo Lacson, former Ambassador Ernesto Maceda, Brig. Gen. Jake
Malajakan, Senior Superintendents Michael Ray Aquino and Cesar Mancao II,
Ronald Lumbao and Cesar Tanega of the People's Movement Against Poverty
(PMAP).23 Justice Secretary Hernando Perez said that he was "studying" the
possibility of placing Senator Miriam Defensor – Santiago "under the Witness
protection program."
Director Victor Batac,24 former Chief of the PNP Directorate for Police Community
Relations, and Senior Superintendent Diosdado Valeroso, of the Philippine Center
for Transnational Crime, surrendered to Berroya. Both denied having plotted the
siege.
On May 2, 2001, former Ambassador Ernesto Maceda was arrested.
The above scenario presents three crucial queries: First, is President Macapagal-
Arroyo's declaration of a "state of rebellion" constitutional? Second, was the
implementation of the warrantless arrests on the basis of the declaration of a "state
of rebellion" constitutional? And third, did the rallyists commit rebellion at the
vicinity of Malacañang Palace on May 1, 2001?
The first and second queries involve constitutional issues, hence, the basic
yardstick is the 1987 Constitution of the Philippines. The third query requires a
factual analysis of the events which culminated in the declaration of a state of
rebellion, hence, an examination of Article 134 of the Revised Penal Code is in
order.
On May 7, 2001, President Macapagal-Arroyo issued Proclamation No. 39,
"DECLARING THAT THE STATE OF REBELLION IN THE NATIONAL CAPITAL
REGION HAS CEASED TO EXIST", which in effect, has lifted the previous
Proclamation No. 38.
I beg to disagree with the majority opinion in ruling that the instant petitions have
been rendered moot and academic with the lifting by the President of the
declaration of a "state of rebellion".
I believe that such lifting should not render moot and academic the very serious
and unprecedented constitutional issues at hand, considering their grave
implications involving the basic human rights and civil liberties of our people. A
resolution of these issues becomes all the more necessary since, as reported in
the papers, there are saturation drives (sonas) being conducted by the police
wherein individuals in Metro Manila are picked up without warrants of arrest.
Moreover, the acts sought to be declared illegal and unconstitutional are capable
of being repeated by the respondents. In Salva v. Makalintat (G.R. No. 132603,
Sept. 18, 2000), this Court held that "courts will decide a question otherwise moot
and academic if it is 'capable of repetition, yet evading review' …"
I & II – President Macapagal-Arroyo's declaration of a "state of rebellion"
and the implementation of the warrantless arrests premised on the said
declaration are unconstitutional.
Nowhere in the Constitution can be found a provision which grants upon the
executive the power to declare a "state of rebellion," much more, to exercise on
the basis of such declaration the prerogatives which a president may validly do
under a state of martial law. President-Macapagal-Arroyo committed a
constitutional short cut. She disregarded the clear provisions of the Constitution
which provide:
"Sec. 18. The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours from
the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of
a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual bases of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize
the conferment of jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released."25
Obviously, the power of the President in cases when she assumed the existence
of rebellion is properly laid down by the Constitution. I see no reason or justification
for the President's deviation from the concise and plain provisions. To accept the
theory that the President could disregard the applicable statutes, particularly that
which concerns arrests, searches and seizures, on the mere declaration of a "state
of rebellion" is in effect to place the Philippines under martial law without a
declaration of the executive to that effect and without observing the proper
procedure. This should not be countenanced. In a society which adheres to the
rule of law, resort to extra-constitutional measures is unnecessary where the law
has provided everything for any emergency or contingency. For even if it may be
proven beneficial for a time, the precedent it sets is pernicious as the law may, in a
little while, be disregarded again on the same pretext but for evil purposes. Even
in time of emergency, government action may vary in breath and intensity
from more normal times, yet it need not be less constitutional.26
My fear is rooted in history. Our nation had seen the rise of a dictator into power.
As a matter of fact, the changes made by the 1986 Constitutional Commission on
the martial law text of the Constitution were to a large extent a reaction against the
direction which the Supreme Court took during the regime of President
Marcos.27 Now, if this Court would take a liberal view, and consider that the
declaration of a "state of rebellion" carries with it the prerogatives given to the
President during a "state of martial law," then, I say, the Court is traversing a very
dangerous path. It will open the way to those who, in the end, would turn our
democracy into a totalitarian rule. History must not be allowed to repeat itself. Any
act which gears towards possible dictatorship must be severed at its inception.
The implementation of warrantless arrests premised on the declaration of a "state
of rebellion" is unconstitutional and contrary to existing laws. The Constitution
provides that "the right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizure of whatever nature and for
any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons
or things to be seized."28 If a state of martial law "does not suspend the operation
of the Constitution, nor supplant the functioning of the civil courts or legislative
assemblies, nor authorize the conferment of jurisdiction on military courts and
agencies over civilians, where civil courts are able to function, nor automatically
suspend the privilege of the writ,"28(a) then it is with more reason, that a mere
declaration of a state of rebellion could not bring about the suspension of the
operation of the Constitution or of the writ of habeas corpus.
Neither can we find the implementation of the warrantless arrests justified under
the Revised Rules on Criminal Procedure. Pertinent is Section 5, Rule 113, thus:
"Sec. 5. Arrest without warrant, when lawful. – A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts and circumstances that the person
to be arrested has committed it; and
x x x."
Petitioners cannot be considered "to have committed, is actually committing, or is
attempting to commit an offense" at the time they were hunted by Berroya for the
implementation of the warrantless arrests. None of them participated in the riot
which took place in the vicinity of the Malacañang Palace. Some of them were on
their respective houses performing innocent acts such as watching television,
resting etc. The sure fact however is that they were not in the presence of Berroya.
Clearly, he did not see whether they had committed, were committing or were
attempting to commit the crime of rebellion. But of course, I cannot lose sight of the
legal implication of President Macapagal-Arroyo's declaration of a "state of
rebellion." Rebellion is a continuing offense and a suspected insurgent or rebel
may be arrested anytime as he is considered to be committing the crime.
Nevertheless, assuming ex gratia argumenti that the declaration of a state of
rebellion is constitutional, it is imperative that the said declaration be reconsidered.
In view of the changing times, the dissenting opinion of the noted jurist, Justice
Isagani Cruz, in Umil v. Ramos,29 quoted below must be given a second look.
"I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla vs. Enrile that
subversion is a continuing offense, to justify the arrest without warrant of any
person at any time as long as the authorities say he has been placed under
surveillance on suspicion of the offense. That is a dangerous doctrine. A person
may be arrested when he is doing the most innocent acts, as when he is only
washing his hands, or taking his supper, or even when he is sleeping, on the
ground that he is committing the 'continuing' offense of subversion. Libertarians
were appalled when that doctrine was imposed during the Marcos regime. I am
alarmed that even now this new Court is willing to sustain it. I strongly urge my
colleagues to discard it altogether as one of the disgraceful vestiges of the past
dictatorship and uphold the rule guaranteeing the right of the people against
unreasonable searches and seizures. We can do no less if we are really to reject
the past oppression and commit ourselves to the true freedom. Even if it be argued
that the military should be given every support in our fight against subversion, I
maintain that fight must be waged honorably, in accordance with the Bill of Rights.
I do not believe that in fighting the enemy we must adopt the ways of the enemy,
which are precisely what we are fighting against. I submit that our more important
motivation should be what are we fighting for."
I need not belabor that at the time some of the suspected instigators were
arrested, (the others are still at-large), a long interval of time already passed and
hence, it cannot be legally said that they had just committed an offense. Neither
can it be said that Berroya or any of his men had "personal knowledge of facts or
circumstances that the persons to be arrested have committed a crime." That
would be far from reality.
III – The acts of the rallyists at the vicinity of Malacañang Palace on May 1,
2001 do not constitute rebellion.
Article 134 of the Revised Penal Code reads:
"ART. 134. Rebellion or insurrection – How committed. – The crime of rebellion or
insurrection is committed by rising publicly and taking arms against the
Government for the purpose of removing from the allegiance to said Government
or its laws, the territory of the Republic of the Philippines or any part thereof, of any
body of land, naval or other armed forces, or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives." (As
amended by RA No. 6968, O.G. 52, p. 9864, 1990)
From the foregoing provisions, the elements o the crime of rebellion may be
deduced, thus: first, that there be (a) public uprising and (b) taking arms against
the government; second, that the purpose of the uprising or movement is
either (a) to remove from the allegiance to said government or its laws (1) the
territory of the Philippines or any part thereof; or (2) anybody of land, naval or other
armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially,
of any of their powers or prerogatives.30
Looking at the events on a magnified scale, I am convinced that the two elements
of the crime of rebellion are lacking.
First, there was no "taking of arms" against the government. To my mind, "taking
arms" connotes the multitude's deliberate and conscious resort to arms or
weapons for the purpose of aiding them in accomplishing any of the purposes of
rebellion. Admittedly, the Estrada loyalists pelted the policemen with rocks and
stones and attacked them with sticks and clubs, but such was merely a result of
the heightening tension between opposite camps during the period of dispersal.
The stones, rocks, sticks, clubs and other improvised weapons were not
deliberately resorted to by the Estrada loyalists to further any of the purposes of
rebellion. They availed of them, at the precise moment of dispersal (this explains
why their weapons were those which could be easily gathered on the street) and
only for the purpose of stopping the policemen from dispersing them. In this age of
modernity, one who intends to overthrow the government will not only settle for
stones, woods, rocks, sticks or clubs as means to disable the government. It will
be extremely pathetic and the result will only be in vain. Unlike a true rebellion
which is organized, what happened at the vicinity of Malacañang was merely a riot,
a mob violence, or a tumultuous uprising. At this juncture, it bears stressing that
the crime of rebellion is a vast movement of men and a complex net of intrigues
and plots.31 It must be distinguished from riot and offenses connected with mob
violence. In rebellion/insurrection, there is an organized and armed uprising
against authority.32
Second, the purpose of the Estrada loyalists was neither (a) to remove from the
allegiance to the government or its laws (1) the territory of the Philippines or any
part thereof; or (2) any part of land, naval or other armed forces; nor (b) to deprive
the Chief Executive or Congress, wholly or partially, of any of their powers or
prerogatives. I looked at the chronology of events, and one thing surfaced – the
Estrada loyalists mainly demanded that their beloved "president" should not be
incarcerated. The crowd at Edsa swelled in great magnitude on April 25, 2001, the
day Estrada was arrested. In fact, when they followed Erap at Camp Crame, they
were shouting "Edsa! Edsa! And they vowed not to leave until Estrada is
released."33
One must not be swayed by the theory of respondents that the purpose of those
people who gathered in Edsa and marched to Malacañang was to commit
rebellion. For sure, there were a thousand and one reasons why they proceeded to
Edsa. In determining their purpose, one must trace the roots, - what prompted
them to go to Edsa? They were the Estrada loyalists who wanted him to be freed.
If indeed there were minorities who advocated another cause, the same should not
be considered as the prevailing one in the determination of what crime was
committed. Facts should not be stretched just to build a case of rebellion. This runs
counter to the principle of due process.
As a final word, I subscribe to the principle that the rule of law implies the precept
that similar cases be treated similarly. Men can not regulate their actions by means
of rule if this precept is not followed. Edsa I, Edsa II and Edsa III are all public
uprisings. Statements urging people to overthrow the government were uttered in
all these occasions. Injuries were sustained, policemen were attacked, standing
structures were vandalized… in all these scenarios, one cannot be said to be
extremely away from the other. The only difference is that the first two succeeded,
while the last failed. This should not result to an unbridled or unlimited exercise of
power by the duly constituted authorities. It is during these trying times that fealty
to the Constitution is strongly demanded from all, especially the authorities
concerned.1âwphi1.nêt
WHEREFORE, I vote to give DUE COURSE to the petitions and GRANT the same
and to enjoin the respondents from arresting the petitioners in G.R. Nos. 147780,
147781, and 147799 without the corresponding warrants.
SO ORDERED.
G.R. No. 175864 June 8, 2007
ANISAH IMPAL SANGCA, petitioner,
vs.
THE CITY PROSECUTOR OF CEBU CITY and THE PRESIDING JUDGE,
Regional Trial Court, Branch 58, Cebu City, respondents.
DECISION
YNARES-SANTIAGO, J.:
On January 4, 2007, petitioner Anisah Impal Sangca filed the instant petition
praying for the issuance of a writ of habeas corpus and the release of Lovely Impal
Adam who was detained in the Cebu City Jail for alleged violation of Section 5,
Article 2 of Republic Act (R.A.) No. 9165, otherwise known as the Dangerous
Drugs Act of 2002.
The facts are as follows:
In the first week of July 2006, the Philippine Drug Enforcement Agency (PDEA),
Regional Office VII, received information that Adam was engaged in illegal drug
trafficking activities in Cebu City and neighboring cities and municipalities. After
evaluating the information, Police Chief Inspector Josefino Ligan, PDEA VII Asst.
Regional Director for Administration/Operation, together with FO1 Rayford A. Yap
and PO2 Dindo M. Tuliao, planned an entrapment operation.
The events leading to the arrest of Adam, as summarized in the Resolution of the
Department of Justice dated November 10, 2006, are as follows:
On July 7, 2006, at about 2:00 P.M., Yap and Tuliao were able to contact the
informant and inquired from him if he was really sincere with his words and the
latter replied affirmatively. Ligan immediately composed a team and planned for an
entrapment operation against respondent and her cohorts. A short briefing was
conducted where Yap was tasked to receive the shabu while Tuliao would be the
back up and at the same time the arresting officer. They prepared a Pre-Operation
Report and the same was coordinated with the Tactical Operation Center of Cebu
City Police Office. The pre-arranged signal in the operation was that Yap would
miscall them once the transaction is consummated. x x x
On or about 9:30 P.M. of the same day, the team, including Yap, Tuliao and the
informant, proceeded to Fuente Osmeña, Cebu City for the said purpose. Upon
arrival thereat, Yap and the informant proceeded to Pizza Hut while Tuliao stayed
behind near the parking area and so with the members of the team closely
watching them. When Yap and the informant entered Pizza Hut, respondent was
already there waiting for them. They immediately approached her and the
informant introduced Yap to respondent as his former customer. They had a short
conversation and Yap asked respondent if she has with her the item. Respondent
told him that it is in her car at the parking area. Respondent asked where the
money is. Yap told her no problem as long as she has the item, he will give her the
money. Respondent instructed Yap to go with her at the parking area so that she
could give it to him and there, she got inside her car. She took the shabu inside the
compartment of her Toyota Fortuner with plate number YCX 965 and handed to
him one (1) packed medium size of heat sealed transparent plastic sachet filled
with white crystalline substance believed to be shabu. Upon receiving the said
item, Yap pressed it to determine if it was really shabu or not and when he noticed
that it was shabu, he immediately miscalled the members of the team informing
them that the transaction was consummated and subsequently held respondent.
He then introduced himself as PDEA 7 operative. Tuliao, who was just at the side
of the car, assisted Yap in apprehending the suspect. They also seized her cellular
phone and the Toyota Fortuner which she used in delivering and transporting
illegal drugs. Thereafter, they informed her that she is under arrest for violation of
Section 5, Article II, RA 9165 and likewise apprised her of the Miranda Doctrine in
the language she knew and understood but she opted to remain silent. After which,
they asked her name and she introduced herself as Lovely Adam y Impal, 29 years
old, married, businesswoman and a resident of Celiron, Iligan City. They brought
her along with the confiscated items to their office for proper disposition. Later on,
they found out that the item that Yap bought from respondent, marked "LA" dated
07-07-06 with Yap’s signature, weighing 50.27 grams which was submitted before
the PNP Crime Laboratory for chemical analysis, yielded positive results for the
presence of Methamphetamine Hydrochloride or Shabu, a dangerous drug.
Respondent denies the charge against her. She claims that she is a trader of
ready to wear clothing. As such, she frequently travels to different Asian countries
to buy goods for sale in Cebu and in Mindanao. She supplies various boutiques in
Cebu City, including Salad Dressing at SM, D. Blaz., Beauty Land and Lovely’s
Closet. She also operates a beauty parlor in Talamban.
Respondent claims that on July 7, 2006, at around 10:00 in the evening, she was
at Pizza Hut, Fuente Osmeña Boulevard, together with her four children and their
"yayas". A friend of hers, Ana, had called her earlier in the day saying that she
would pay off her loan to her (respondent) at Pizza Hut that evening. Ana arrived a
short time later. They were eating when Ana received a call over her cellphone.
From the gist of it, Ana was talking to a certain Rose. Respondent did not mind
them because the conversation was only between Ana and Rose. A short time
later, a woman, who was introduced to her by Ana as a certain Rose, arrived. Ana
and Rose then proceeded to talk with each other, and respondent did not mind
them. A while after, respondent saw Ana hand over a parcel to Rose, and the
latter, on the other hand, hand a green bag to Ana. Rose then left. As respondent
was about to leave, Ana requested that she be allowed to hitch a ride and
respondent agreed. When they were outside, respondent noticed a vehicle
blocking her car, making it impossible for her to back out into the road, without
hitting the car. She then beeped her car. Instead of moving their car, one of the
men went down and thereafter, entered her vehicle and demanded for the bag that
was allegedly given to Ana by Rose. Respondent told them to ask Ana since they
claimed that it was given to Ana. However, the men pointed their guns at
respondent, including her children, claiming that they were elements of PDEA and
they were placing her under arrest for illegal drug trafficking. They then grabbed
respondent’s green bag and from then on, she was never able to recover the
contents thereof, including the bag itself. Thereafter, respondent was brought to
the PDEA office where a certain Ryan Rubi was also booked for alleged drug
trafficking. During her conversation with Ryan Rubi, she found out that he was
arrested a few hours earlier likewise by the PDEA, and during his alleged arrest,
he was required to produce a drug trafficker in exchange for his release. Having
been unable to produce any, he was charged. The name of Rose cropped up, and
he said that during his arrest, the police officers informed him that they were after
Rose. His wife was out to raise money for his release, or to produce a drug
trafficker so that he can be released. It was further ascertained by Ryan Rubi that
this Rose was actually arrested by the police officers but was conditionally
released on condition that she would produce someone who would take her place.
Thereafter, he claimed that he overheard them refer to a certain Ana, who said that
she would also produce respondent to take her place. The circumstances of
respondent’s arrest and that of the said Ryan Rubi are closely intertwined. In the
police blotter, the vehicle pertaining to respondent, which is the Toyota Fortuner
was ascribed to Ryan Rubi, while the latter’s vehicle was ascribed to her. x x x 1
The inquest prosecutor recommended the dismissal of the case but was
disapproved by the City Prosecutor. Consequently, an information charging Adam
with violation of Section 5, Article 2 of R.A. No. 9165 was filed and docketed as
Criminal Case No. CBU-77562 before the Regional Trial Court of Cebu City,
Branch 58.
On petition for review before the Department of Justice, Secretary Raul M.
Gonzalez found no probable cause to hold Adam liable for the offense charged, to
wit:
A very thorough and careful scrutiny of the records, particularly the affidavit of
arrest, reveals that no payment was ever made by the police officers for the
supposed object of the buy-bust operations. The police officers have not even
alleged in their affidavits that payment was made to respondent in exchange for
the shabu. No buy-bust money was ever presented. The certificate of inventory
does not show any buy-bust money. These stick out like a sore thumb in the case
at bar.
Suffice it to say that one of the essential elements to be established in the
prosecution of the drug "buy-bust" cases, that is, "the delivery of the thing sold and
the payment therefore" is wanting. It was aptly said in the case of People v. Alilin,
206 SCRA 773, that: "To sustain a conviction for selling prohibited drugs, the same
must be clearly and unmistakably established."2
The Justice Secretary directed the City Prosecutor of Cebu City to withdraw the
information.3 PDEA filed a motion for reconsideration but was denied by the
Justice Secretary on December 8, 2006.4
In his Comment, Judge Gabriel T. Ingles, Presiding Judge of the Regional Trial
Court of Cebu City, Branch 58, stated that at the hearing of the motion to withdraw
information on January 5, 2007, it was found that:
In the affidavit of FO1 Rayford A. Yap and PO2 Dindo M. Tuliao, there is indeed no
mention of their preparation of a buy bust money before, during or after their
briefing prior to the alleged buy bust operation, nor is there any mention of the
price or consideration of the sale. What is merely stated is that they had enough
money.
xxxx
Further convincing this court that there was no buy bust money prepared are the
following:
a) In the "Pre-Operation Report" dated July 7, 2006, bearing Control Number 07-
07-2006-03, there is no mention of the buy-bust money in the operational
requirements;
b) In the "Excerpt From the Records of the PDEA 7 Blotter/Logbook bearing the
same date and entry number 02422;
c) In another "Excerpt From the Records of the PDEA 7 Blotter/Logbook bearing
the same date and entry number 02422 there is a mention in "Facts of the Case"
the recovery of "3 bundles of boodle money with two (2) pieces of genuine five
hundred peso bills wrapped with newspaper and packed with packaging tape."
However, while the name of the suspect is indicated in this excerpt is Lovely Adam
y Impal and the evidence enumerated are as follows:
1) one (1) medium size of heat sealed transparent plastic sachet filled with
crystalline substance believed to be shabu;
2) one (1) unit Nokia cellphone;
3) one (1) unit Toyota Fortuner with plate number XCX 956 registered under the
name of Lovely Adam;"
the narration of the facts of the case in said excerpt also included the following
statement: "Likewise, the apprehending officers seized one (1) unit cellular phone
(Sony Erickson) and the Mitsubishi Lancer with plate number GHC color black
registered under the name of Roberto Rubi, which was used by the
aforementioned suspects in transporting illegal drugs."
This Roberto Rubi could not have been arrested together with accused herein
because there is no mention of such fact in the Affidavit of Officers Yap and Tuliao.
In fact, the head of the arresting team of herein accused Josefino D. Liga[n] filed a
Motion to Withdraw Said Excerpt because there was an inadvertent interchange of
facts in another case obviously against Mr. Rubi.
The problem, however, is that from the Excerpts presented, it is not clear to this
court to which case the mention of boodle money applies. This court cannot merely
assume or conclude that the boodle money has reference to the case of herein
accused because as stated, nowhere in the separate affidavits of office[r]s Tuliao
and Yap can one find any mention of such. It is not even mentioned in the other
"Excerpt" also dated July 10, 2006 also submitted by the PDEA.5
Finding that Adam could not be held liable for the crime charged, Judge Ingles
issued an Order on January 26, 2007 granting the Motion to Withdraw Information
and ordering the release of the accused, unless otherwise held for another valid
ground. The dispositive portion of the Order reads:
Accordingly, the "Motion to Withdraw Information" is hereby GRANTED and the
accused is ordered immediately released unless another valid ground exists for
her continued detention.
The prosecution and/or PDEA are/is ordered to turn over to this court within three
(3) days from receipt hereof the dangerous drug described in the information which
shall in turn be confiscated in favor of the state for proper disposition unless the
prosecution intends to refile or file another case against the accused which it
deems appropriate as double jeopardy has not attached.
SO ORDERED.6
A writ of habeas corpus extends to all cases of illegal confinement or detention in
which any person is deprived of his liberty, or in which the rightful custody of any
person is withheld from the person entitled to it. Its essential object and purpose is
to inquire into all manner of involuntary restraint and to relieve a person from it if
such restraint is illegal. The singular function of a petition for habeas corpus is to
protect and secure the basic freedom of physical liberty. 7
In the instant case, records show that Adam has been released upon order of the
trial judge on January 26, 2007. Therefore, the petition has become moot.8
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
G.R. No. 160739 July 17, 2013
ANITA MANGILA, Petitioner,
vs.
JUDGE HERIBERTO M. PANGILINAN, ASST. CITY PROSECUTOR II LUCIA
JUDY SOLINAP, and NATIONAL BUREAU OF INVESTIGATION (DIRECTOR
REYNALDO WYCOCO), Respondents.
DECISION
BERSAMIN, J.:
Restraint that is lawful and pursuant to a court process cannot be inquired into
through habeas corpus.
Antecedents
On June 16, 2003, seven criminal complaints charging petitioner Anita Mangila
and four others with syndicated estafa in violation of Article 315 of the Revised
Penal Code, in relation to Presidential Decree No. 1689, and with violations of
Section 7(b) of Republic Act No. 8042 (Migrant Workers and Overseas Filipino Act
of 1995) were filed in the Municipal Trial Court in Cities in Puerto Princesa City
(MTCC), docketed as Criminal Cases No. 16916 to No. 16922. The complaints
arose from the recruiting and promising of employment by Mangila and the others
to the private complainants as overseas contract workers in Toronto, Canada, and
from the collection of visa processing fees, membership fees and on-line
application the private complainants without lawful authority from the Philippine
Overseas Employment Administration (POEA).1
On the following day, June 17, 2003, Judge Heriberto M. Pangilinan, Presiding
Judge of the MTCC, conducted a preliminary investigation on the complaints. After
examining Miguel Aaron Palayon, one of the complainants, Judge Pangilinan
issued a warrant for the arrest of Mangila and her cohorts without bail.2 On the
next day, the entire records of the cases, including the warrant of arrest, were
transmitted to the City Prosecutor of Puerto Princesa City for further proceedings
and appropriate action in accordance with the prevailing rules.3
As a consequence, Mangila was arrested on June 18, 2003 and detained at the
headquarters on Taft Avenue, Manila of the National Bureau of Investigation
(NBI).4
Claiming that Judge Pangilinan did not have the authority to conduct the
preliminary investigation; that the preliminary investigation he conducted was not
yet completed when he issued the warrant of arrest; and that the issuance of the
warrant of arrest was without sufficient justification or without a prior finding of
probable cause, Mangila filed in the Court of Appeals (CA)a petition for habeas
corpus to obtain her release from detention. Her petition averred that the remedy
of habeas corpus was available to her because she could no longer file a motion to
quash or a motion to recall the warrant of arrest considering that Judge Pangilinan
had already forwarded the entire records of the case to the City Prosecutor who
had no authority to lift or recall the warrant.5
In its resolution promulgated on October 14, 2003,6 the CA denied the petition for
habeas corpus for its lack of merit, explaining:
As a general rule, a writ of habeas corpus will not be granted where relief may be
had or could have been procured by resort to another general remedy. As pointed
out in Luna vs. Plaza, if petitioner is detained by virtue of a warrant of arrest, which
is allegedly invalid, the remedy available to her is not a petition for habeas corpus
but a petition to quash the warrant of arrest or a petition for a reinvestigation of the
case by the Municipal Judge or by the Provincial Fiscal.
Section 5, Rule 112 of the Revised Rules of Criminal Procedure provides that the
Municipal Judge who conducted the preliminary investigation shall transmit his
resolution, together with the record of the case, including the warrant of arrest, to
the Provincial Prosecutor, who shall review the same and order the release of an
accused who is detained if no probable cause is found against him. Thus, the
proper remedy available to petitioner is for her to file with the Provincial Prosecutor
a motion to be released from detention on the grounds alleged in the instant
petition.
WHEREFORE, the petition for habeas corpus is DENIED for lack of merit.
SO ORDERED.7
Mangila moved for the reconsideration of the denial of her petition for habeas
corpus,8 but the CA denied the motion on November 19, 2003.9
Hence, this appeal via petition for review on certiorari.
Issue
Did the CA err in ruling that habeas corpus was not the proper remedy to obtain
the release of Mangila from detention?
Ruling of the Court
The petition for review lacks merit.
The high prerogative writ of habeas corpus has been devised as a speedy and
effective remedy to relieve persons from unlawful restraint. In Caballes v. Court of
Appeals,10 the Court discoursed on the nature of the special proceeding of habeas
corpus in the following manner:
A petition for the issuance of a writ of habeas corpus is a special proceeding
governed by Rule 102 of the Rules of Court, as amended. In Ex Parte Billings, it
was held that habeas corpus is that of a civil proceeding in character. It seeks the
enforcement of civil rights. Resorting to the writ is not to inquire into the criminal
act of which the complaint is made, but into the right of liberty, notwithstanding the
act and the immediate purpose to be served is relief from illegal restraint. The rule
applies even when instituted to arrest a criminal prosecution and secure freedom.
When a prisoner petitions for a writ of habeas corpus, he thereby commences a
suit and prosecutes a case in that court.
Habeas corpus is not in the nature of a writ of error; nor intended as substitute for
the trial court’s function. It cannot take the place of appeal, certiorari or writ of
error. The writ cannot be used to investigate and consider questions of error that
might be raised relating to procedure or on the merits. The inquiry in a habeas
corpus proceeding is addressed to the question of whether the proceedings and
the assailed order are, for any reason, null and void. The writ is not ordinarily
granted where the law provides for other remedies in the regular course, and in the
absence of exceptional circumstances. Moreover, habeas corpus should not be
granted in advance of trial. The orderly course of trial must be pursued and the
usual remedies exhausted before resorting to the writ where exceptional
circumstances are extant. In another case, it was held that habeas corpus cannot
be issued as a writ of error or as a means of reviewing errors of law and
irregularities not involving the questions of jurisdiction occurring during the course
of the trial, subject to the caveat that constitutional safeguards of human life and
liberty must be preserved, and not destroyed. It has also been held that where
restraint is under legal process, mere errors and irregularities, which do not render
the proceedings void, are not grounds for relief by habeas corpus because in such
cases, the restraint is not illegal.
Habeas corpus is a summary remedy. It is analogous to a proceeding in rem when
instituted for the sole purpose of having the person of restraint presented before
the judge in order that the cause of his detention may be inquired into and his
statements final. The writ of habeas corpus does not act upon the prisoner who
seeks relief, but upon the person who holds him in what is alleged to be the
unlawful authority. Hence, the only parties before the court are the petitioner
(prisoner) and the person holding the petitioner in custody, and the only question
to be resolved is whether the custodian has authority to deprive the petitioner of
his liberty. The writ may be denied if the petitioner fails to show facts that he is
entitled thereto ex merito justicias.
A writ of habeas corpus, which is regarded as a "palladium of liberty," is a
prerogative writ which does not issue as a matter of right but in the sound
discretion of the court or judge. It is, however, a writ of right on proper formalities
being made by proof. Resort to the writ is not to inquire into the criminal act of
which a complaint is made but unto the right of liberty, notwithstanding the act, and
the immediate purpose to be served is relief from illegal restraint. The primary, if
not the only object of the writ of habeas corpus ad subjuciendum, is to determine
the legality of the restraint under which a person is held.11 (Bold underscoring
supplied for emphasis)
The object of the writ of habeas corpus is to inquire into the legality of the
detention, and, if the detention is found to be illegal, to require the release of the
detainee. Equally well-settled however, is that the writ will not issue where the
person in whose behalf the writ is sought is out on bail, or is in the custody of an
officer under process issued by a court or judge with jurisdiction or by virtue of a
judgment or order of a court of record.12
There is no question that when the criminal complaints were lodged against
Mangila and her cohorts on June 16, 2003,Judge Pangilinan, as the Presiding
Judge of the MTCC, was empowered to conduct preliminary investigations
involving "all crimes cognizable by the proper court in their respective territorial
jurisdictions." His authority was expressly provided in Section 2, Rule 112 of the
Revised Rules of Criminal Procedure, to wit:
Section 2.Officers authorized to conduct preliminary investigations.
– The following may conduct preliminary investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes
cognizable by the proper court in their respective territorial jurisdictions. (2a)
Under Section 6(b) of Rule 112of the Revised Rules of Criminal Procedure, the
investigating judge could issue a warrant of arrest during the preliminary
investigation even without awaiting its conclusion should he find after an
examination in writing and under oath of the complainant and the witnesses in the
form of searching questions and answers that a probable cause existed, and that
there was a necessity of placing the respondent under immediate custody in order
not to frustrate the ends of justice.1âwphi1 In the context of this rule, Judge
Pangilinan issued the warrant of arrest against Mangila and her cohorts.
Consequently, the CA properly denied Mangila’s petition for habeas corpus
because she had been arrested and detained by virtue of the warrant issued for
her arrest by Judge Pangilinan, a judicial officer undeniably possessing the legal
authority to do so.
It is relevant to point out at this juncture that the authority of the MTC and MTCC
judges to conduct preliminary investigations was removed only effective on
October 3, 2005 pursuant to A.M. No. 05-8-26-SC.
With Mangila’s arrest and ensuing detention being by virtue of the order lawfully
issued by Judge Pangilinan, the writ of habeas corpus was not an appropriate
remedy to relieve her from the restraint on her liberty. This is because the restraint,
being lawful and pursuant to a court process, could not be inquired into through
habeas corpus. To quote the dictum enunciated by Justice Malcolm in Quintos v.
Director of Prisons:13
The writ of habeas corpus secures to a prisoner the right to have the cause of his
detention examined and determined by a court of justice, and to have ascertained
if he is held under lawful authority. The function of habeas corpus, where the party
who has appealed to its aid is in custody under process, does not extend beyond
an inquiry into the jurisdiction of the court by which it was issued and the validity of
the process upon its face. It is not a writ of error. xxx (Bold underscoring supplied
for emphasis)
Accordingly, Section 4, Rule 102 of the Rules of Court explicitly states:
Section 4.When writ not allowed or discharge authorized. — If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of
any informality or defect in the process, judgment, or order. Nor shall anything in
this rule be held to authorize the discharge of a person charged with or convicted
of an offense in the Philippines, or of a person suffering imprisonment under lawful
judgment. (Bold underscoring supplied for emphasis)
Still, Mangila harps on the procedural flaws supposedly committed by Judge
Pangilinan in her attempt to convince the Court on her entitlement to the issuance
of the writ of habeas corpus. She insists that the illegality and invalidity of the
warrant of arrest because of its having been issued without an exhaustive
examination of the complainants and the witnesses in writing and under oath;
without a prior finding of probable cause; and without consideration of the
necessity for its issuance in order not to frustrate the ends of justice were enough
reasons for granting the writ of habeas corpus.14
Mangila fails to persuade.
To begin with, Judge Pangilinan issued the order of arrest after examining
Palayon, one of the complainants against Mangila and her cohorts. If he, as the
investigating judge, considered Palayon’s evidence sufficient for finding probable
cause against her and her cohorts, which finding the Court justifiably presumes
from his act of referring the case and its records to the Office of the City
Prosecutor on the day immediately following the preliminary investigation he
conducted, her petition for habeas corpus could not be the proper remedy by
which she could assail the adequacy of the adverse finding. Even granting that
there was a failure to adhere to the law or rule, such failure would not be the
equivalent of a violation of her constitutional rights.15
Secondly, it was not procedurally correct for her to impugn the issuance of the
warrant of arrest by hinting that the investigating judge did not at all consider the
necessity of determining the existence of probable cause for its issuance due to
time constraints and in order not to frustrate the ends of justice, for that
consideration was presumed.
And, lastly, it was clear that under Section 5,16 Rule 112 of the Revised Rules of
Criminal Procedure, the resolution of the investigating judge was not final but was
still subject to the review by the public prosecutor who had the power to order the
release of the detainee if no probable cause should beultimately found against her.
In the context of the rule, Mangila had no need to seek the issuance of the writ of
habeas corpus to secure her release from detention. Her proper recourse was to
bring the supposed irregularities attending the conduct of the preliminary
investigation and the issuance of the warrant for her arrest to the attention of the
City Prosecutor, who had been meanwhile given the most direct access to the
entire records of the case, including the warrant of arrest, following Judge
Pangilinan’s transmittal of them to the City Prosecutor for appropriate action. 17 We
agree with the CA, therefore, that the writ of habeas corpus could not be used as a
substitute for another available remedy.18
WHEREFORE, the Court AFFIRMS the resolutions promulgated on October 14,
2003 and November 19, 2003 in C.A.-G.R. SP No. 79745; and ORDERS the
petitioner to pay the costs of suit.
SO ORDERED.
G.R. No. 210636 July 28, 2014
MA. HAZELINA A. TUJANMILITANTE IN BEHALF OF THE MINOR CRISELDA
M. CADA, Petitioner,
vs.
RAQUEL M. CADA-DEAPERA, Respondent.
DECISION
VELASCO, JR., J.:
Nature of the Case
Before Us is a petition for review on certiorari under Rule 45 of the Rules of Court
with prayer for injunctive relief seeking the reversal of the Court of Appeals (CA)
Decision1 dated May 17, 2013 as well as its Resolution dated December 27, 2013
in CA-G.R. SP No. 123759. In the main, petitioner questions the jurisdiction of the
Regional Trial Court, Branch 130 in Caloocan City (RTC-Caloocan) to hear and
decide a special civil action for habeas corpus in relation to the custody of a minor
residing in Quezon City.
The Facts
On March 24, 2011, respondent Raquel M. Cada-Deapera filed before the R TC-
Caloocan a verified petition for writ of habeas corpus, docketed as Special Civil
Action Case No. C-4344. In the said petition, respondent demanded the immediate
issuance of the special writ, directing petitioner Ma. Hazelina Tujan-Militante to
produce before the court respondent's biological daughter, minor Criselda M. Cada
(Criselda), and to return to her the custody over the child. Additionally, respondent
indicated that petitioner has three (3) known addresses where she can be served
with summons and other court processes, to wit: (1) 24 Bangkal St., Amparo
Village, Novaliches, Caloocan City; (2) 118B K9Street, Kamias, Quezon City; and
(3) her office at the Ombudsman-Office of the Special Prosecutor, 5th Floor,
Sandiganbayan, Centennial Building, Commonwealth Avenue cor. Batasan Road,
Quezon City.2
The next day, on March 25, 2011, the RTC-Caloocan issued a writ of habeas
corpus, ordering petitioner to bring the child to court on March 28, 2011. Despite
diligent efforts and several attempts, however, the Sheriff was unsuccessful in
personally serving petitioner copies of the habeas corpus petition and of the writ.
Instead, on March 29, 2011, the Sheriff left copies of the court processes at
petitioner’s Caloocan residence, as witnessed by respondent’s counsel and
barangay officials.3 Nevertheless, petitioner failed to appear at the scheduled
hearings before the RTC-Caloocan.
Meanwhile, on March 31, 2011, petitioner filed a Petition for Guardianship over the
person of Criselda before the RTC, Branch 89 in Quezon City (RTC-Quezon City).
Respondent filed a Motion to Dismiss the petition for guardianship on the ground of
litis pendentia, among others. Thereafter, or on June 3, 2011, respondent filed a
criminal case for kidnapping before the Office of the City Prosecutor – Quezon City
against petitioner and her counsel.
On July 12, 2011, the RTC-Quezon City granted respondent’s motion and
dismissed the guardianship case due to the pendency of the habeas corpuspetition
before RTC-Caloocan.4
The falloof the Order reads:
WHEREFORE, in view of the foregoing,the subject motion is hereby
GRANTED.Accordingly, the case is hereby DISMISSED.
SO ORDERED.5
Then, on August 4, 2011, Raquel moved for the ex parte issuance of an alias writ
of habeas corpus before the RTC-Caloocan, which was granted by the trial court
on August 8, 2011. On even date, the court directed the Sheriff to serve the alias
writ upon petitioner at the Office of the Assistant City Prosecutor of Quezon City on
August 10, 2011.6 In compliance, the Sheriff served petitioner the August 8, 2011
Order as well as the Alias Writ during the preliminary investigation of the
kidnapping case.7
Following this development, petitioner, by way of special appearance, moved for
the quashal of the writ and prayed before the RTC Caloocan for the dismissal of
the habeas corpus petition,8 claiming, among others, that she was not personally
served with summons. Thus, as argued by petitioner, jurisdiction over her and
Criselda’sperson was not acquired by the RTCCaloocan.
Ruling of the Trial Court
On January 20, 2012, the RTC-Caloocan issued an Order denying petitioner’s
omnibus motion, citing Saulo v. Brig. Gen. Cruz,9 where the Court held that a writ
of habeas corpus, being an extraordinary process requiring immediate proceeding
and action, plays a role somewhat comparable to a summons in ordinary civil
actions, in that, by service of said writ, the Court acquires jurisdiction over the
person of the respondent, as petitioner herein.10
Moreover, personal service, the RTC said, does not necessarily require that
service be made exclusively at petitioner’s given address, for service may be made
elsewhere or wherever she may be found for as long as she was handed a copy of
the court process in person by anyone authorized by law. Since the sheriff was
able to personally serve petitioner a copy of the writ, albeit in Quezon City, the
RTC-Caloocan validly acquired jurisdiction over her person.11 The dispositive
portion of the Order reads:
WHEREFORE, premises considered, the Very Urgent Motion (Motion to Quash
Alias Writ; Motion to Dismiss)filed by respondent Ma. Hazelina Tujan-Militante
dated August 11, 2011 is hereby DENIED for lack of merit.
In the meantime, respondent Ma. Hazelina Tujan-Militante is hereby directed to
appear and bring Criselda Martinez Cada before this Court on February 10, 2012
at 8:30 o’clock in the morning.
SO ORDERED.12
Aggrieved, petitioner, via certiorari to the CA, assailed the issued Order.
Ruling of the Court of Appeals
Over a year later, the CA, in the challenged Decision dated May 17,
2013,13 dismissed the petition for certiorari in the following wise:
WHEREFORE, the instant petition is hereby DISMISSED for lack of merit. The
Regional Trial Court, Branch 130 of Caloocan City is DIRECTED to proceed with
due dispatch in Spec. Proc. Case No. C-4344 for Habeas Corpus, giving utmost
consideration tothe best interest of the now nearly 14-year old child.
SO ORDERED.14
In so ruling, the CA held that jurisdiction was properly laid when respondent filed
the habeas corpus petition before the designated Family Court in Caloocan
City.15 It also relied on the certification issued by the punong barangay of Brgy.
179, Caloocan City, stating that petitioner is a bona fide resident thereof, as well as
the medical certificate issued by Criselda’s doctor on April 1, 2011, indicating that
her address is "Amparo Village, KC."16 Anent the RTC-Caloocan’s jurisdiction, the
appellate court ruled that service of summons is not required under Section 20 of
A.M. No. 03-04-04-SC, otherwise known as the Rules on Custody of Minors and
Habeas Corpus in Relation to Custody of Minors. According tothe CA, the rules on
summons contemplated in ordinary civil actions have no place in petitions for the
issuance of a writ of habeas corpus, it being a special proceeding. 17
Petitioner sought reconsideration ofthe above Decision but the same was denied
by the CA in its December 27, 2013 Resolution.1âwphi1
Hence, this Petition.
The Issues
At the core of this controversy isthe issue of whether or not the RTC Caloocan has
jurisdiction over the habeascorpus petition filed by respondent and, assuming
arguendo it does, whether or not it validly acquired jurisdiction over petitioner and
the person of Criselda. Likewise pivotal is the enforce ability of the writ issued by
RTC-Caloocan in Quezon City where petitioner was served a copy thereof.
The Court’s Ruling
The petition lacks merit. The RTC-Caloocan correctly took cognizance of the
habeas corpus petition. Subsequently, it acquired jurisdiction over petitioner when
the latter was served with a copy of the writ in Quezon City.
The RTC-Caloocan has jurisdiction over the habeas corpus proceeding
Arguing that the RTC-Caloocan lacked jurisdiction over the case, petitioner relies
on Section 3 of A.M. No. 03-04-04-SC and maintains that the habeas corpus
petition should have been filed before the family court that has jurisdiction over her
place of residence or that of the minor or wherever the minor may be found. 18 As to
respondent, she asserts, among others, that the applicable rule is not Section 3
but Section 20 of A.M. No. 03-04-04-SC.19
We find for respondent.
In the case at bar, what respondent filed was a petition for the issuance of a writ of
habeas corpus under Section 20 of A.M. No. 03-04-04-SC and Rule 102 of the
Rules of Court.20 As provided:
Section 20. Petition for writ of habeas corpus.- A verified petition for a writ of
habeas corpus involving custody of minors shall be filed with the Family Court. The
writ shall beenforceable within its judicial region to which the Family Court belongs.
However, the petition may be filed with the regular court in the absence of the
presiding judge of the Family Court, provided, however, that the regular court shall
refer the case tothe Family Court as soon as its presiding judge returns to duty.
The petition may also be filed with the appropriate regular courts in places where
there are no Family Courts.
The writ issued by the Family Court or the regular court shall be enforceable in the
judicial region where they belong.
The petition may likewise be filed with the Supreme Court, Court of Appeals, or
with any of its members and, if so granted,the writ shall be enforceable anywhere
in the Philippines. The writ may be made returnable to a Family Court or to any
regular court within the region where the petitioner resides or where the minor may
be found for hearing and decision on the merits.
Upon return of the writ, the court shall decide the issue on custody of minors. The
appellate court, or the member thereof, issuing the writ shall be furnished a copy of
the decision. (emphasis added)
Considering that the writ is made enforceable within a judicial region, petitions for
the issuance of the writ of habeas corpus, whether they be filed under Rule 102 of
the Rules of Court orpursuant to Section 20 of A.M. No. 03-04-04-SC, may
therefore be filed withany of the proper RTCs within the judicial region where
enforcement thereof is sought.21
On this point, Section 13 of Batas Pambansa Blg. 129 (BP 129), otherwise known
as the Judiciary Reorganization Act of 1980, finds relevance. Said provision, which
contains the enumeration of judicial regions in the country, states:
Section 13. Creation of Regional Trial Courts. – There are hereby created thirteen
Regional Trial Courts, one for each of the following judicial regions:
xxxx
The National Capital Judicial Region, consisting of the cities of Manila, Quezon,
Pasay, Caloocan and Mandaluyong, and the municipalities of Navotas, Malabon,
San Juan, Makati, Pasig, Pateros, Taguig, Marikina, Parañaque, Las Piñas,
Muntinlupa, and Valenzuela. (emphasis ours)
In view of the afore-quoted provision,it is indubitable that the filing of a petition for
the issuance of a writ of habeas corpus before a family court in any of the cities
enumerated is proper as long as the writ is sought to be enforced within the
National Capital Judicial Region, as here.
In the case at bar, respondent filed the petition before the family court of Caloocan
City. Since Caloocan City and Quezon City both belong to the same judicial region,
the writ issued by the RTC-Caloocan can still be implemented in Quezon City.
Whether petitioner resides in the former or the latter is immaterial in view of the
above rule.
Anent petitioner’s insistence on the application of Section 3 of A.M. No. 03-04-04-
SC, a plain reading of said provision reveals that the provision invoked only applies
to petitions for custody of minors, and not to habeas corpus petitions. Thus:
Section 3. Where to file petition.- The petition for custody of minors shall be filed
with the Family Court of the province or city where the petitioner resides or where
the minormay be found. (emphasis added)
Lastly, as regards petitioner’s assertion that the summons was improperly served,
suffice it to state thatservice of summons, to begin with, is not required in a habeas
corpus petition, be it under Rule 102 of the Rules of Court or A.M. No. 03-04-04-
SC. As held in Saulo v. Cruz, a writ of habeas corpus plays a role somewhat
comparable to a summons, in ordinary civil actions, in that, by service of said writ,
the court acquires jurisdiction over the person of the respondent. 22
In view of the foregoing, We need not belabor the other issues raised.
WHEREFORE, the instant petition is DENIED. The Court of Appeals Decision
dated May 1 7, 2013 and its Resolution dated December 27, 2013 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 197597, April 08, 2015
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF DATUKAN
MALANG SALIBO, DATUKAN MALANG SALIBO, Petitioner, v. WARDEN,
QUEZON CITY JAIL ANNEX, BJMP BUILDING, CAMP BAGONG DIWA,
TAGUIG CITY AND ALL OTHER PERSONS ACTING ON HIS BEHALF AND/OR
HAVING CUSTODY OF DATUKAN MALANG SALIBO, Respondents.
DECISION
LEONEN, J.:
Habeas corpus is the proper remedy for a person deprived of liberty due to
mistaken identity. In such cases, the person is not under any lawful process and is
continuously being illegally detained.
This is a Petition for Review1 on Certiorari of the Court of Appeals
Decision2 reversing the Decision3 of the Regional Trial Court, Branch 153, Pasig
City (Taguig Hall of Justice) granting Datukan Malang Salibo's Petition for Habeas
Corpus.

From November 7, 2009 to December 19, 2009, Datukan Malang Salibo (Salibo)
and other Filipinos were allegedly in Saudi Arabia for the Hajj Pilgrimage.4 "While
in Saudi Arabia, . . . Salibo visited and prayed in the cities of Medina, Mecca, Arpa,
Mina and Jeddah."5 He returned to the Philippines on December 20, 2009.6
On August 3, 2010, Salibo learned that police officers of Datu Hofer Police Station
in Maguindanao suspected him to be Butukan S. Malang.7
Butukan S. Malang was one of the 197 accused of 57 counts of murder for
allegedly participating in the November 23, 2009 Maguindanao Massacre. He had
a pending warrant of arrest issued by the trial court in People of the Philippines v.
Datu Andal Ampatuan, Jr., et al.8
Salibo presented himself before the police officers of Datu Hofer Police Station to
clear his name. There, he explained that he was not Butukan S. Malang and that
he could not have participated in the November 23, 2009 Maguindanao Massacre
because he was in Saudi Arabia at that time.9
To support his allegations, Salibo presented to the police "pertinent portions of his
passport, boarding passes and other documents"10 tending to prove that a certain
Datukan Malang Salibo was in Saudi Arabia from November 7 to December 19,
2009.11
The police officers initially assured Salibo that they would not arrest him because
he was not Butukan S. Malang.12
Afterwards, however, the police officers apprehended Salibo and tore off page two
of his passport that evidenced his departure for Saudi Arabia on November 7,
2009. They then detained Salibo at the Datu Hofer Police Station for about three
(3) days.13
The police officers transferred Salibo to the Criminal Investigation and Detection
Group in Cotabato City, where he was detained for another 10 days. While in
Cotabato City, the Criminal Investigation and Detention Group allegedly made him
sign and affix his thumbprint on documents.14
On August 20, 2010, Salibo was finally transferred to the Quezon City Jail Annex,
Bureau of Jail Management and Penology Building, Camp Bagong Diwa, Taguig
City, where he is currently detained.15
On September 17, 2010, Salibo filed before the Court of Appeals the Urgent
Petition for Habeas Corpus16questioning the legality of his detention and
deprivation of his liberty.17 He maintained that he is not the accused Butukan S.
Malang.18
In the Resolution19 dated September 21, 2010, the Court of Appeals issued a Writ
of Habeas Corpus, making the Writ returnable to the Second Vice Executive Judge
of the Regional Trial Court, Pasig City (Taguig Hall of Justice). 20 The Court of
Appeals ordered the Warden of the Quezon City Jail Annex to file a Return of the
Writ one day before the scheduled hearing and produce the person of Salibo at the
10:00 a.m. hearing set on September 27, 2010.21
Proceedings before the trial court
On September 27, 2010, the jail guards of the Quezon City Jail Annex brought
Salibo before the trial court. The Warden, however, failed to file a Return one day
before the hearing. He also appeared without counsel during the hearing. 22
Thus, the trial court canceled the hearing and reset it to September 29, 2010 at
2:00 p.m.23
On September 28, 2010, the Warden filed the Return of the Writ. However, during
the September 29, 2010 hearing on the Return, the Warden appeared with Atty.
Romeo L. Villante, Jr., Legal Officer/Administering Officer of the Bureau of Jail
Management and Penology.24
Salibo questioned the appearance of Atty. Romeo L. Villante, Jr. on behalf of the
Warden and argued that only the Office of the Solicitor General has the authority to
appear on behalf of a respondent in a habeas corpus proceeding.25
The September 29, 2010 hearing, therefore, was canceled. The trial court reset the
hearing on the Return to October 1, 2010 at 9:00 a.m.26
The Return was finally heard on October 1, 2010. Assistant Solicitors Noel Salo
and Isar Pepito appeared on behalf of the Warden of the Quezon City Jail Annex
and argued that Salibo's Petition for Habeas Corpus should be dismissed. Since
Salibo was charged under a valid Information and Warrant of Arrest, a petition for
habeas corpus was "no longer availing."27
Salibo countered that the Information, Amended Information, Warrant of Arrest,
and Alias Warrant of Arrest referred to by the Warden all point to Butukan S.
Malang, not Datukan Malang Salibo, as accused. Reiterating that he was not
Butukan S. Malang and that he was in Saudi Arabia on the day of the
Maguindanao Massacre, Salibo pleaded the trial court to order his release from
detention.28
charged" 29
The trial court found that Salibo was not "judicially under any resolution,
information, or amended information. The Resolution, Information, and Amended
Information presented in court did not charge Datukan Malang Salibo as an
accused. He was also not validly arrested as there was no Warrant of Arrest or
Alias Warrant of Arrest against Datukan Malang Salibo. Salibo, the trial court ruled,
was not restrained of his liberty under process issued by a court. 30
The trial court was likewise convinced that Salibo was not the Butukan S. Malang
charged with murder in connection with the Maguindanao Massacre. The National
Bureau of Investigation Clearance dated August 27, 2009 showed that Salibo has
not been charged of any crime as of the date of the certificate.31 A Philippine
passport bearing Salibo's picture showed the name "Datukan Malang Salibo."32
Moreover, the trial court said that Salibo "established that [he] was out of the
country"33 from November 7, 2009 to December 19, 2009. This fact was supported
by a Certification34 from Saudi Arabian Airlines confirming Salibo's departure from
and arrival in Manila on board its flights.35 A Flight Manifest issued by the Bureau
of Immigration and Saudi Arabian Airlines Ticket No. 0652113 also showed this
fact.36
Thus, in the Decision dated October 29, 2010, the trial court granted Salibo's
Petition for Habeas Corpus and ordered his immediate release from detention.
Proceedings before the Court of Appeals
On appeal37 by the Warden, however, the Court of Appeals reversed and set aside
the trial court's Decision.38 Through its Decision dated April 19, 2011, the Court of
Appeals dismissed Salibo's Petition for Habeas Corpus.
Contrary to the trial court's finding, the Court of Appeals found that Salibo's arrest
and subsequent detention were made under a valid Information and Warrant of
Arrest.39 Even assuming that Salibo was not the Butukan S. Malang named in the
Alias Warrant of Arrest, the Court of Appeals said that "[t]he orderly course of trial
must be pursued and the usual remedies exhausted before the writ [of habeas
corpus] may be invoked[.]"40 According to the Court of Appeals, Salibo's proper
remedy was a Motion to Quash Information and/or Warrant of Arrest.41
Salibo filed a Motion for Reconsideration,42 which the Court of Appeals denied in
the Resolution43 dated July 6, 2011.
Proceedings before this court
On July 28, 2011,44 petitioner Salibo filed before this court the Petition for Review
(With Urgent Application for a Writ of Preliminary
Mandatory Injunction). Respondent Warden filed a Comment,45 after which
petitioner Salibo filed a Reply.46
Petitioner Salibo maintains that he is not the Butukan S. Malang charged with 57
counts of murder before the Regional Trial Court, Branch 221, Quezon City. Thus,
contrary to the Court of Appeals' finding, he, Datukan Malang Salibo, was not duly
charged in court. He is being illegally deprived of his liberty and, therefore, his
proper remedy is a Petition for Habeas Corpus.47
Petitioner Salibo adds that respondent Warden erred in appealing the Decision of
the Regional Trial Court, Branch 153, Pasig City before the Court of Appeals.
Although the Court of Appeals delegated to the trial court the authority to hear
respondent Warden on the Return, the trial court's Decision should be deemed a
Decision of the Court of Appeals. Therefore, respondent Warden should have
directly filed his appeal before this court.48
As for respondent Warden, he maintains that petitioner Salibo was duly charged in
court. Even assuming that he is not the Butukan S. Malang named in the Alias
Warrant of Arrest, petitioner Salibo should have pursued the ordinary remedy of a
Motion to Quash Information, not a Petition for Habeas Corpus.49
The issues for our resolution are:
First, whether the Decision of the Regional Trial Court, Branch 153, Pasig City on
petitioner Salibo's Petition for Habeas Corpus was appealable to the Court of
Appeals; and Second, whether petitioner Salibo's proper remedy is to file a Petition
for Habeas Corpus.
We grant the Petition.cralawlawlibrary
I being detained or deprived of his or her liberty.65 However, once the superior court
Contrary to petitioner Salibo's claim, respondent Warden correctly appealed before
the Court of Appeals.
Petition for Habeas Corpus "not by virtue of its original jurisdiction but merely
delegation[.]"62 Consequently, "this Court should have the final say regarding the
issues raised in the petition, and only [this court's decision] . . . should be regarded
as operative."63
This court rejected Sciulo's argument and stated that his "logic is more apparent
than real."64 It ruled that when a superior court issues a writ of habeas corpus, the
superior court only resolves whether the respondent should be ordered to show
cause why the petitioner or the person in whose behalf the petition was filed was
makes the writ returnable to a lower court as allowed by the Rules of Court, the
lower court designated "does not thereby become merely a recommendatory body,
whose findings and conclusion[s] are devoid of effect[.]"66 The decision on the
petition for habeas corpus is a decision of the lower court, not of the superior court.

An application for a writ of habeas corpus may be made through a petition filed
In Medina v. Gen. Yan,67 Fortunato Medina (Medina) filed before this court a
before this court or any of its members,50 the Court of Appeals or any of its
Petition for Habeas Corpus. This court issued a Writ of Habeas Corpus, making it
members in instances authorized by law,51 or the Regional Trial Court or any of its
returnable to the Court of First Instance of Rizal, Quezon City. After trial on the
presiding judges.52 The court or judge grants the writ and requires the officer or
merits, the Court of First Instance granted Medina's Petition for Habeas Corpus
person having custody of the person allegedly restrained of liberty to file a return of
and ordered that Medina be released from detention.68
the writ.53A hearing on the return of the writ is then conducted.54
The Office of the Solicitor General filed a Notice of Appeal before the Court of
The return of the writ may be heard by a court apart from that which issued the
Appeals.69
writ.55 Should the court issuing the writ designate a lower court to which the writ is
made returnable, the lower court shall proceed to decide the petition of habeas
Atty. Amelito Mutuc, counsel for Medina, filed before the Court of Appeals a
corpus. By virtue of the designation, the lower court "acquire[s] the power and
"Motion for Certification of Appeal to the Supreme Court." The Court of Appeals,
authority to determine the merits of the [petition for habeas corpus.]"56 Therefore,
however, denied the Motion.70
the decision on the petition is a decision appealable to the court that has appellate
jurisdiction over decisions of the lower court.57
This court ruled that the Court of Appeals correctly denied the "Motion for
Certification of Appeal to the Supreme Court," citing Saulo as legal basis.71 The
In Saulo v. Brig. Gen. Cruz, etc,58 "a petition for habeas corpus was filed before
Court of First Instance of Rizal, in deciding Medina's Petition for Habeas Corpus,
this Court . . . [o]n behalf of. . . Alfredo B. Saulo [(Saulo)]."59 This court issued a
"acquired the power and authority to determine the merits of the
Writ of Habeas Corpus and ordered respondent Commanding General of the
case[.]"72Consequently, the decision of the Court of First Instance of Rizal on
Philippine Constabulary to file a Return of the Writ. This court made the Writ
Medina's Petition for Habeas Corpus was appealable to the Court of Appeals. 73
returnable to the Court of First Instance of Manila.60
In this case, petitioner Salibo filed his Petition for Habeas Corpus before the Court
After hearing the Commanding General on the Return, the Court of First Instance
of Appeals. The Court of Appeals issued a Writ of Habeas Corpus, making it
denied Saulo's Petition for Habeas Corpus.61
returnable to the Regional Trial Court, Branch 153, Pasig City. The trial court then
heard respondent Warden on his Return and decided the Petition on the merits.
Saulo appealed before this court, arguing that the Court of First Instance heard the
Applying Saulo and Medina, we rule that the trial court "acquired the power and
authority to determine the merits"74 of petitioner Salibo's Petition. The decision on
the Petition for Habeas Corpus, therefore, was the decision of the trial court, not of
the Court of Appeals. Since the Court of Appeals is the court with appellate
jurisdiction over decisions of trial courts,75 respondent Warden correctly filed the
appeal before the Court of Appeals.cralawlawlibrary
II
Called the "great writ of liberty[,]"76 the writ of habeas corpus "was devised and
exists as a speedy and effectual remedy to relieve persons from unlawful restraint,
and as the best and only sufficient defense of personal freedom."77 The remedy of
habeas corpus is extraordinary78 and summary79 in nature, consistent with the
law's "zealous regard for personal liberty."80
Under Rule 102, Section 1 of the Rules of Court, the writ of habeas corpus "shall
extend to all cases of illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any person is withheld
from the person entitled thereto."81 The primary purpose of the writ "is to inquire
into all manner of involuntary restraint as distinguished from voluntary, and to
relieve a person therefrom if such restraint is illegal."82 "Any restraint which will
preclude freedom of action is sufficient."83
The nature of the restraint of liberty need not be related to any offense so as to
entitle a person to the efficient remedy of habeas corpus. It may be availed of as a
post-conviction remedy84 or when there is an alleged violation of the liberty of
abode.85 In other words, habeas corpus effectively substantiates the implied
autonomy of citizens constitutionally protected in the right to liberty in Article III,
Section 1 of the Constitution.86 Habeas corpus being a remedy for a constitutional
right, courts must apply a conscientious and deliberate level of scrutiny so that the
substantive right to liberty will not be further curtailed in the labyrinth of other
processes.87
In Gumabon, et al. v. Director of the Bureau of Prisons,88 Mario Gumabon
(Gumabon), Bias Bagolbagol (Bagolbagol), Gaudencio Agapito (Agapito), Epifanio
Padua (Padua), and Paterno Palmares (Palmares) were convicted of the complex
crime of rebellion with murder. They commenced serving their respective
sentences of reclusion perpetua.89
While Gumabon, Bagolbagol, Agapito, Padua, and Palmares were serving their
sentences, this court promulgated People v. Hernandez90 in 1956, ruling that the
complex crime of rebellion with murder does not exist. 91
Based on the Hernandez ruling, Gumabon, Bagolbagol, Agapito, Padua, and
Palmares filed a Petition for Habeas Corpus. They prayed for their release from
incarceration and argued that the Hernandez doctrine must retroactively apply to
them.92
This court ruled that Gumabon, Bagolbagol, Agapito, Padua, and Palmares
properly availed of a petition for habeas corpus.93 Citing Harris v. Nelson,94 this
court said:chanroblesvirtuallawlibrary
[T]he writ of habeas corpus is the fundamental instrument for safeguarding
individual freedom against arbitrary and lawless state action. . . . The scope and
flexibility of the writ — its capacity to reach all manner of illegal detention — its
ability to cut through barriers of form and procedural mazes — have always been
emphasized and jealously guarded by courts and lawmakers. The very nature of
the writ demands that it be administered with the initiative and flexibility essential to
insure that miscarriages of justice within its reach are surfaced and
corrected.95cralawlawlibrary
In Rubi v. Provincial Board of Mindoro,96 the Provincial Board of Mindoro issued
Resolution No. 25, Series of 1917. The Resolution ordered the Mangyans removed
from their native habitat and compelled them to permanently settle in an 800-
hectare reservation in Tigbao. Under the Resolution, Mangyans who refused to
establish themselves in the Tigbao reservation were imprisoned. 97
An application for habeas corpus was filed before this court on behalf of Rubi and
all the other Mangyans being held in the reservation.98 Since the application
questioned the legality of deprivation of liberty of Rubi and the other Mangyans,
this court issued a Writ of Habeas Corpus and ordered the Provincial Board of
Mindoro to make a Return of the Writ.99
A Writ of Habeas Corpus was likewise issued in Villavicencio v. Lukban.100 "[T]o
exterminate vice,"101Mayor Justo Lukban of Manila ordered the brothels in Manila
closed. The female sex workers previously employed by these brothels were
rounded up and placed in ships bound for Davao. The women were expelled from
Manila and deported to Davao without their consent.102

On application by relatives and friends of some of the deported women, this court
issued a Writ of Habeas Corpus and ordered Mayor Justo Lukban, among others,
to make a Return of the Writ. Mayor Justo Lukban, however, failed to make a
Return, arguing that he did not have custody of the women.103
This court cited Mayor Justo Lukban in contempt of court for failure to make a
Return of the Writ.104 As to the legality of his acts, this court ruled that Mayor Justo
Lukban illegally deprived the women he had deported to Davao of their liberty,
specifically, of their privilege of domicile.105 It said that the women, "despite their
being in a sense lepers of society[,] are nevertheless not chattels but Philippine
citizens protected by the same constitutional guaranties as are other
citizens[.]"106 The women had the right "to change their domicile from Manila to
another locality."107
The writ of habeas corpus is different from the final decision on the petition for the
issuance of the writ. It is the writ that commands the production of the body of the
person allegedly restrained of his or her liberty. On the other hand, it is in the final
decision where a court determines the legality of the restraint.
Between the issuance of the writ and the final decision on the petition for its
issuance, it is the issuance of the writ that is essential. The issuance of the writ
sets in motion the speedy judicial inquiry on the legality of any deprivation of
liberty. Courts shall liberally issue writs of habeas corpus even if the petition for its
issuance "on [its] face [is] devoid of merit[.]"108 Although the privilege of the writ of
habeas corpus may be suspended in cases of invasion, rebellion, or when the
public safety requires it,109 the writ itself may not be suspended.110
III
It is true that a writ of habeas corpus may no longer be issued if the person
allegedly deprived of liberty is restrained under a lawful process or order of the
court.111 The restraint then has become legal,112 and the remedy of habeas corpus
is rendered moot and academic.113 Rule 102, Section 4 of the Rules of Court
provides:chanroblesvirtuallawlibrary
SEC. 4. When writ not allowed or discharge authorized.—If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of
any informality or defect in the process, judgment, or order. Nor shall anything in
this rule be held to authorize the discharge of a person charged with or convicted
of an offense in the Philippines, or of a person suffering imprisonment under lawful
judgment.
In Ilagan v. Hon. Ponce Enrile,114 elements of the Philippine Constabulary-
Integrated National Police arrested Atty. Laurente C. Ilagan (Atty. Ilagan) by virtue
of a Mission Order allegedly issued by then Minister of National Defense, Juan
Ponce Enrile (Minister Enrile). On the day of Atty. Ilagan's arrest,115from the
Integrated Bar of the Philippines Davao Chapter visited Atty. Ilagan in Camp
Catitipan, where he was detained.115
Among Atty. Ilagan's visitors was Atty. Antonio Arellano (Atty. Arellano). Atty.
Arellano, however, no longer left Camp Catitipan as the military detained and
arrested him based on an unsigned Mission Order.116
Three (3) days after the arrest of Attys. Ilagan and Arellano, the military informed
the Integrated Bar of the Philippines Davao Chapter of the impending arrest of
Atty. Marcos Risonar (Atty. Risonar). To verify his arrest papers, Atty. Risonar
went to Camp Catitipan. Like Atty. Arellano, the military did not allow Atty. Risonar
to leave. He was arrested based on a Mission Order signed by General
Echavarria, Regional Unified Commander.117
The Integrated Bar of the Philippines, the Free Legal Assistance Group, and the
Movement of Attorneys for Brotherhood, Integrity and Nationalism filed before this
court a Petition for Habeas Corpus in behalf of Attys. Ilagan, Arellano, and
Risonar.118
This court issued a Writ of Habeas Corpus and required Minister Enrile, Armed
Forces of the Philippines Acting Chief of Staff Lieutenant General Fidel V. Ramos
(General Ramos), and Philippine Constabulary-Integrated National Police Regional
Commander Brigadier General Dionisio Tan-Gatue (General Tan-Gatue) to make
a Return of the Writ.119 This court set the hearing on the Return on May 23,
1985.120
In their Return, Minister Enrile, General Ramos, and General Tan-Gatue
contended that the privilege of the Writ of Habeas Corpus was suspended as to
Attys. Ilagan, Arellano, and Risonar by virtue of Proclamation No. 2045-A.121 The
lawyers, according to respondents, allegedly "played active roles in organizing
mass actions of the Communist Party of the Philippines and the National
Democratic Front."122
After hearing respondents on their Return, this court ordered the temporary
release of Attys. Ilagan, Arellano, and Risonar on the recognizance of their
counsels, retired Chief Justice Roberto Concepcion and retired Associate Justice
Jose B.L. Reyes.123
Instead of releasing Attys. Ilagan, Arellano, and Risonar, however, Minister Enrile,
General Ramos, and General Tan-Gatue filed a Motion for
Reconsideration.124 They filed an Urgent Manifestation/Motion stating that
Informations for rebellion were filed against Attys. Ilagan, Arellano, and Risonar.
They prayed that this court dismiss the Petition for Habeas Corpus for being moot
and academic.125
The Integrated Bar of the Philippines, the Free Legal Assistance Group, and the
Movement of Attorneys for Brotherhood, Integrity and Nationalism opposed the
motion. According to them, no preliminary investigation was conducted before the
filing of the Information. Attys. Ilagan, Arellano, and Risonar were deprived of their
right to due process. Consequently, the Information was void.126
This court dismissed the Petition for Habeas Corpus, ruling that it became moot
and academic with the filing of the Information against Attys. Ilagan, Arellano, and
Risonar in court:127ChanRoblesVirtualawlibrary
As contended by respondents, the petition herein has been rendered moot and
academic by virtue of the filing of an Information against them for Rebellion, a
capital offense, before the Regional Trial Court of Davao City and the issuance of
a Warrant of Arrest against them. The function of the special proceeding of habeas
corpus is to inquire into the legality of one's detention. Now that the detained
attorneys' incarceration is by virtue of a judicial order in relation to criminal cases
subsequently filed against them before the Regional Trial Court of Davao City, the
remedy of habeas corpus no longer lies. The Writ had served its
purpose.128 (Citations omitted)
This court likewise dismissed the Petitions for habeas corpus in Umil v.
Ramos.129 Roberto Umil, Rolando Dural, Renato Villanueva, Amelia Roque,
Wilfredo Buenaobra, Atty. Domingo Anonuevo, Ramon Casiple, Vicky A. Ocaya,
Deogracias Espiritu, and Narciso B. Nazareno were all arrested without a warrant
for their alleged membership in the Communist Party of the Philippines/New
People's Army.130
During the pendency of the habeas corpus proceedings, however, Informations
against them were filed before this court. The filing of the Informations, according
to this court, rendered the Petitions for habeas corpus moot and academic,
thus:131ChanRoblesVirtualawlibrary
It is to be noted that, in all the petitions here considered, criminal charges have
been filed in the proper courts against the petitioners. The rule is, that if a person
alleged to be restrained of his liberty is in the custody of an officer under process
issued by a court or judge, and that the court or judge had jurisdiction to issue the
process or make the order, or if such person is charged before any court, the writ
of habeas corpus will not be allowed.132 (Emphasis in the original)
In such cases, instead of availing themselves of the extraordinary remedy of a
petition for habeas corpus, persons restrained under a lawful process or order of
the court must pursue the orderly course of trial and exhaust the usual
remedies.133 This ordinary remedy is to file a motion to quash the information or
the warrant of arrest.134
At any time before a plea is entered,135 the accused may file a motion to quash
complaint or information based on any of the grounds enumerated in Rule 117,
Section 3 of the Rules of Court:chanroblesvirtuallawlibrary
SEC. 3. Grounds.—The accused may move to quash the complaint or information
on any of the following grounds:chanroblesvirtuallawlibrary
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the
accused;.
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for
various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or
justification; and
(i) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated
without his express consent.
In filing a motion to quash, the accused "assails the validity of a criminal complaint
or information filed against him [or her] for insufficiency on its face in point of law,
or for defects which are apparent in the face of the information."136 If the accused
avails himself or herself of a motion to quash, the accused "hypothetical[ly] admits
the facts alleged in the information."137 "Evidence aliunde or matters extrinsic from
the information are not to be considered."138ChanRoblesVirtualawlibrary
"If the motion to quash is based on an alleged defect of the complaint or
information which can be cured by amendment, the court shall order [the]
amendment [of the complaint or information]."139 If the motion to quash is based on
the ground that the facts alleged in the complaint or information do not constitute
an offense, the trial court shall give the prosecution "an opportunity to correct the
defect by amendment."140 If after amendment, the complaint or information still
suffers from the same defect, the trial court shall quash the complaint or
information.141
IV
However, Ilagan142 and Umil do not apply to this case. Petitioner Salibo was not
arrested by virtue of any warrant charging him of an offense. He was not restrained
under a lawful process or an order of a court. He was illegally deprived of his
liberty, and, therefore, correctly availed himself of a Petition for Habeas Corpus.
The Information and Alias Warrant of Arrest issued by the Regional Trial Court,
Branch 221, Quezon City in People of the Philippines v. Datu Andal Ampatuan, Jr.,
et al. charged and accused Butukan S. Malang, not Datukan Malang Salibo, of 57
counts of murder in connection with the Maguindanao Massacre.
Furthermore, petitioner Salibo was not validly arrested without a warrant. Rule 113,
Section 5 of the Rules of Court enumerates the instances when a warrantless
arrest may be made:chanroblesvirtuallawlibrary
SEC. 5. Arrest without warrant; when lawful.—A peace officer or a private person
may, without a warrant, arrest a person:chanroblesvirtuallawlibrary
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on- personal knowledge of facts or circumstances that the
person to be arrested has committed it;
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred
from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with section 7 of Rule 112.
It is undisputed that petitioner Salibo presented himself before the Datu Hofer
Police Station to clear his name and to prove that he is not the accused Butukan S.
Malang. When petitioner Salibo was in the presence of the police officers of Datu
Hofer Police Station, he was neither committing nor attempting to commit an
offense. The police officers had no personal knowledge of any offense that he
might have committed. Petitioner Salibo was also not an escapee prisoner.
The police officers, therefore, had no probable cause to arrest petitioner Salibo
without a warrant. They deprived him of his right to liberty without due process of
law, for which a petition for habeas corpus may be issued.
The arrest of petitioner Salibo is similar to the arrest of Atty. Risonar in the
"disturbing"143 case of Ilagan.144 Like petitioner Salibo, Atty. Risonar went to Camp
Catitipan to verify and contest any arrest papers against him. Then and there, Atty.
Risonar was arrested without a warrant. In his dissenting opinion
in Ilagan,145 Justice Claudio Teehankee stated that the lack of preliminary
investigation deprived Atty. Risonar, together with Attys. Ilagan and Arellano, of his
right to due process of law — a ground for the grant of a petition for habeas
corpus:146
The majority decision holds that the filing of the information without preliminary
investigation falls within the exceptions of Rule 112, sec. 7 and Rule 113, sec. 5 of
the 1985 Rules on Criminal Procedure. Again, this is erroneous premise. The fiscal
misinvoked and misapplied the cited rules. The petitioners are not persons
"lawfully arrested without a warrant." The fiscal could not rely on the stale and
inoperative PDA of January 25, 1985. Otherwise, the rules would be rendered
nugatory, if all that was needed was to get a PDA and then serve it at one's whim
and caprice when the very issuance of the PDA is premised on its imperative
urgency and necessity as declared by the President himself. The majority decision
then relies on Rule 113, Sec. 5 which authorizes arrests without warrant by a
citizen or by a police officer who witnessed the arrestee in flagrante delicto, viz. in
the act of committing the offense. Quite obviously, the arrest was not a citizen's
arrest nor were they caught in flagrante delicto violating the law. In fact, this Court
in promulgating the 1985 Rules on Criminal Procedure have tightened and made
the rules more strict. Thus, the Rule now requires that an offense "has in
fact just been committed." This connotes immediacy in point of time and excludes
cases under the old rule where an offense "has in fact been committed" no matter
how long ago. Similarly, the arrestor must have "personal knowledge of
factsindicating that the [arrestee] has committed it" (instead of just "reasonable
ground to believe that the [arrestee] has committed it" under the old rule). Clearly,
then, an information could not just be filed against the petitioners without due
process and preliminary investigation.147 (Emphasis in the original, citation omitted)
Petitioner Salibo's proper remedy is not a Motion to Quash Information and/or
Warrant of Arrest. None of the grounds for filing a Motion to Quash Information
apply to him. Even if petitioner Salibo filed a Motion to Quash, the defect he
alleged could not have been cured by mere amendment of the Information and/or
Warrant of Arrest. Changing the name of the accused appearing in the Information
and/or Warrant of Arrest from "Butukan S. Malang" to "Datukan Malang Salibo" will
not cure the lack of preliminary investigation in this case.
A motion for reinvestigation will' not cure the defect of lack of preliminary
investigation. The Information and Alias Warrant of Arrest were issued on the
premise that Butukan S. Malang and Datukan Malang Salibo are the same person.
There is evidence, however, that the person detained by virtue of these processes
is not Butukan S. Malang but another person named Datukan Malang Salibo.
Petitioner Salibo presented in evidence his Philippine passport, 148 his identification
card from the Office on Muslim Affairs,149 his Tax Identification Number
card,150 and clearance from the National Bureau of Investigation151 all bearing his
picture and indicating the name "Datukan Malang Salibo." None of these
government-issued documents showed that petitioner Salibo used the alias
"Butukan S. Malang."
Moreover, there is evidence that petitioner Salibo was not in the country on
November 23, 2009 when the Maguindanao Massacre occurred.
A Certification152 from the Bureau of Immigration states that petitioner Salibo
departed for Saudi Arabia on November 7, 2009 and arrived in the Philippines only
on December 20, 2009. A Certification153 from Saudi Arabian Airlines attests that
petitioner Salibo departed for Saudi Arabia on board Saudi Arabian Airlines Flight
SV869 on November 7, 2009 and that he arrived in the Philippines on board Saudi
Arabian Airlines SV870 on December 20, 2009.cralawlawlibrary
V
People of the Philippines v. Datu Andal Ampatuan, Jr., et al. is probably the most
complex case pending in our courts. The case involves 57 victims 154 and 197
accused, two (2) of which have become state witnesses.155 As of November 23,
2014, 111 of the accused have been arraigned, and 70 have filed petitions for bail
of which 42 have already been resolved.156 To require petitioner Salibo to undergo
trial would be to further illegally deprive him of his liberty. Urgency dictates that we
resolve his Petition in his favor given the strong evidence that he is not Butukan S.
Malang.
In ordering petitioner Salibo's release, we are prejudging neither his guilt nor his
innocence. However, between a citizen who has shown that he was illegally
deprived of his liberty without due process of law and the government that has all
the "manpower and the resources at [its] command"157 to properly indict a citizen
but failed to do so, we will rule in favor of the citizen.
Should the government choose to prosecute petitioner Salibo, it must pursue the
proper remedies against him as provided in our Rules. Until then, we rule that
petitioner Salibo is illegally deprived of his liberty. His Petition for Habeas Corpus
must be granted.cralawred
WHEREFORE, the Petition for Review on Certiorari is GRANTED. The Court of
Appeals Decision dated April 19, 2011 is REVERSED and SET ASIDE.
Respondent Warden, Quezon City Jail Annex, Bureau of Jail Management and
Penology Building, Camp Bagong Diwa, Taguig, is ORDERED to
immediately RELEASE petitioner Datukan Maiang Salibo from detention.
The Letter of the Court of Appeals elevating the records of the case to this court is
hereby NOTED.
SO ORDERED.
G.R. No. 231671
ALEXANDER A. PADILLA, RENE A.V. SAGUISAG, CHRISTIAN S. MONSOD,
LORETTA ANN P. ROSALES, RENE B. GOROSPE, and SENATOR LEILA M.
DE LIMA, Petitioners
vs.
CONGRESS OF THE PHILIPPINES, consisting of the SENATE OF THE
PHILIPPINES, as represented by Senate President Aquilino "Koko" Pimentel
III, and the HOUSE OF REPRESENTATIVES, as represented by House
Speaker Pantaleon D. Alvarez, Respondents
x-----------------------x
G.R. No. 231694
FORMER SEN. WIGBERTO E. TANADA, BISHOP EMERITUS DEOGRACIAS S.
INIGUEZ, BISHOP BRODERICK PABILLO, BISHOP ANTONIO R. TOBIAS, MO.
ADELAIDA YGRUBAY, SHAMAH BULANGIS and CASSANDRA D.
DELURIA, Petitioners,
vs.
CONGRESS OF THE PHILIPPINES, CONSISTING OF THE SENATE AND THE
HOUSE OF REPRESENTATIVES, AQUILINO "KOKO" PIMENTEL III,
President, Senate of the Philippines, and PANTALEON D. ALVAREZ,
Speaker, House of the Representatives, Respondents
DECISION
LEONARDO-DE CASTRO, J.:
These consolidated petitions under consideration essentially assail the failure
and/or refusal of respondent Congress of the Philippines (the Congress),
composed of the Senate and the House of Representatives, to convene in joint
session and therein deliberate on Proclamation No. 216 issued on May 23, 201 7
by President Rodrigo Roa Duterte (President Duterte). Through Proclamation No.
216, President Duterte declared a state of martial law and suspended the privilege
of the writ of habeas corpus in the whole of Mindanao for a period not e:xceeding
sixty (60) days effective from the date of the proclamation's issuance.
In the Petition for Mandamus of Alex.antler A. Padilla (Padilla), Rene A.V.
Saguisag (Saguisag), Christian S. Monsod (Monsod), Loretta Ann P. Rosales
(Rosales), Rene B. Gorospe (Gorospe), and Senator Leila M. De Lima (Senator
De Lima), filed on June 6, 2017 and docketed as G.R. No. 231671 (the Padilla
Petition), petitioners seek a ruling from the Court directing the Congress to
convene in joint session to deliberate on Presidential Proclamation No. 216, and to
vote thereon.1
In the Petition for Certiorari and Mandamus of former Senator Wigberto E. Tanada
(Tanada), Bishop Emeritus Deogracias Iniguez (Bishop Iniguez), Bishop Broderick
Pabillo (Bishop Pabillo ), Bishop Antonio Tobias (Bishop Tobias), Mo. Adelaida
Ygrubay (Mo. Y grubay), Shamah Bulangis (Bulangis), and Cassandra D. Deluria
(Deluria), filed on June 7, 2017 and docketed as G.R. No. 231694 (the Tañada
Petition), petitioners entreat the Court to: (a) declare the refusal of the Congress to
convene in joint session for the purpose of considering Proclamation No. 216 to be
in grave abuse of discretion amounting to a lack or excess of jurisdiction; and (b)
issue a writ of mandamus directing the Congress to convene in joint session for
the aforementioned purpose.2
Respondent Congress, represented by the Office of the Solicitor General (OSG),
filed its Consolidated Comment on June 27, 2017. Respondents Senate of the
Philippines and Senate President Aquilino "Koko" Pimentel III (Senate President
Pimentel), through the Office of the Senate Legal Counsel, separately filed
their Consolidated Comment (Ex Abudanti Cautela) on June 29, 2017.
ANTECEDENT FACTS
On May 23, 2017, President Duterte issued Proclamation No. 216, declaring a
state of martial law and suspending the privilege of the writ of habeas corpus in the
Mindanao group of islands on the grounds of rebellion and necessity of public
safety pursuant to Article VII, Section 18 of the 1987 Constitution.
Within forty-eight (48) hours after the proclamation, or on May 25, 2017, and while
the Congress was in session, President Duterte transmitted his "Report relative to
Proclamation No. 216 dated 23 May 2017" (Report) to the Senate, through Senate
President Pimentel, and the House of Representatives, through House Speaker
Pantaleon D. Alvarez (House Speaker Alvarez).
According to President Duterte's Proclamation No. 216 and his Report to the
Congress, the declaration of a state of martial law and the suspension of the
privilege of the writ of habeas corpus in the whole of Mindanao ensued from the
series of armed attacks, violent acts, and atrocities directed against civilians and
government authorities, institutions, and establishments perpetrated by the Abu
Sayyaf and Maute terrorist groups, in complicity with other local and foreign armed
affiliates, who have pledged allegiance to the Islamic State of Iraq and Syria (ISIS),
to sow lawless violence, terror, and political disorder over the said region for the
ultimate purpose of establishing a DAESH wilayah or Islamic Province in
Mindanao.
Representatives from the Executive Department, the military, and other security
officials of the government were thereafter invited, on separate occasions, by the
Senate and the House of Representatives for a conference briefing regarding the
circumstances, details, and updates surrounding the President's proclamation and
report.
On May 29, 2017, the briefing before the Senate was conducted, which lasted for
about four (4) hours, by Secretary of National Defense Delfin N. Lorenza
(Secretary Lorenzana), National Security Adviser and Director General of the
National Security Council Hermogenes C. Esperon, Jr. (Secretary Esperon), and
Chief of Staff of the Armed Forces of the Philippines (AFP) General Eduardo M.
Afio (General Año). The following day, May 30, 2017, the Senate deliberated on
these proposed resolutions: (a) Proposed Senate (P.S.) Resolution No.
388,3 which expressed support for President Duterte's Proclamation No. 216; and
(b) P.S. Resolution No. 390,4 which called for the convening in joint session of the
Senate and the House of Representatives to deliberate on President Duterte's
Proclamation No. 216.
P.S. Resolution No. 388 was approved, after receiving seventeen (17) affirmative
votes as against five (5) negative votes, and was adopted as Senate Resolution
No. 495 entitled "Resolution Expressing the Sense of the Senate Not to Revoke, at
this Time, Proclamation No. 216, Series of 2017, Entitled 'Declaring a State of
Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the
Whole of Mindanao.’"6
P.S. Resolution No. 390, on the other hand, garnered only nine (9) votes from the
senators who were in favor of it as opposed to twelve (12) votes from the senators
who were against its approval and adoption.7
On May 31, 201 7, the House of Representatives, having previously constituted
itself as a Committee of the Whole House,8 was briefed by Executive Secretary
Salvador C. Medialdea (Executive Secretary Medialdea), Secretary Lorenzana,
and other security officials for about six (6) hours. After the closed-door briefing,
the House of Representatives resumed its regular meeting and deliberated on
House Resolution No. 1050 entitled "Resolution Expressing the Full Support of the
House of Representatives to President Rodrigo Duterte as it Finds No Reason to
Revoke Proclamation No. 216, Entitled 'Declaring a State of Martial Law and
Suspending the Privilege of the Writ of Habeas Corpus in the Whole of
Mindanao.'"9 The House of Representatives proceeded to divide its members on
the matter of approving said resolution through viva voce voting. The result shows
that the members who were in favor of passing the subject resolution secured the
majority vote.10
The House of Representatives also purportedly discussed the proposal calling for
a joint session of the Congress to deliberate and vote on President Duterte's
Proclamation No. 216. After the debates, however, the proposal was rejected. 11
These series of events led to the filing of the present consolidated petitions.
THE PARTIES' ARGUMENTS
The Padilla Petition
Petitioners in G.R. No. 231671 raise the question of "[w]hether Congress is
required to convene in joint session, deliberate, and vote jointly under Article VII,
[Section] 18 of the Constitution" and submit the following arguments in support of
their petition:
[I] THE PETITION SATISFIES THE REQUISITES FOR THE EXERCISE OF THE
HONORABLE COURT'S POWER OF JUDICIAL REVIEW.
[i] THERE IS AN ACTUAL CASE OR CONTROVERSY.
[ii] PETITIONERS, AS PART OF THE PUBLIC AND AS TAXPAYERS, POSSESS
LEGAL STANDING TO FILE THIS PETITION.
[iii] PETITIONER [DE LIMA], AS MEMBER OF CONGRESS, HAS LEGAL
STANDING TO FILE THIS PETITION.
[iv] THE CASE AND THE ISSUE INVOLVED ARE RIPE FOR JUDICIAL
DETERMINATION.
[II] THE PLAIN TEXT OF THE CONSTITUTION, SUPPORTED BY THE
EXPRESS INTENT OF THE FRAMERS, AND CONFIRMED BY THE SUPREME
COURT, REQUIRES THAT CONGRESS CONVENE IN JOINT SESSION TO
DELIBERATE AND VOTE AS A SINGLE DELIBERATIVE BODY.
[i] THE PLAIN TEXT OF THE CONSTITUTION REQUIRES THAT CONGRESS
CONVENE IN JOINT SESSION.
[ii] THE EXPRESS INTENT OF THE FRAMERS IS FOR CONGRESS TO
CONVENE IN JOINT SESSION TO DELIBERATE AND VOTE AS A SINGLE
DELIBERATIVE BODY.
[iii] THE SUPREME COURT CONFIRMED IN FORTUN v. GMA THAT
CONGRESS HAS THE "AUTOMATIC DUTY" TO CONVENE IN JOINT SESSION.
[iv] LEGISLATIVE PRECEDENT ALSO RECOGNIZES CONGRESS' DUTY TO
CONVENE IN JOINT SESSION.
[III] THE REQUIREMENT TO ACT AS A SINGLE DELIBERATIVE BODY UNDER
ARTICLE VII, [SECTION] 18 OF THE CONSTITUTION IS A MANDATORY,
MINISTERIAL CONSTITUTIONAL DUTY OF CONGRESS, WHICH CAN BE
COMPELLED BY MANDAMUS.12
Petitioners claim that there is an actual case or controversy in this instance and
that their case is ripe for adjudication. According to petitioners, the resolutions
separately passed by the Senate and the House of Representatives, which
express support as well as the intent not to revoke President Duterte's
Proclamation No. 216, injure their rights "to a proper [and] mandatory legislative
review of the declaration of martial law" and that the continuing failure of the
Congress to convene in joint session similarly causes a continuing injury to their
rights.13
Petitioners also allege that, as citizens and taxpayers, they all have locus standi in
their "assertion of a public right" which they have been deprived of when the
Congress refused and/or failed to convene in joint session to deliberate on
President Duterte's Proclamation No. 216. Senator De Lima adds that she,
together with the other senators who voted in favor of the resolution to convene the
Congress jointly, were even effectively denied the opportunity to perform their
constitutionally-mandated duty, under Article VII, Section 18 of the Constitution, to
deliberate on the said proclamation of the President in a joint session of the
Congress.14
On the propriety of resorting to the remedy of mandamus, petitioners posit that
''the duty of Congress to convene in joint session upon the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus does not require
the exercise of discretion." Such mandate upon the Congress is allegedly a purely
ministerial act which can be compelled through a writ of mandamus.15
As for the substantive issue, it is the primary contention of petitioners that a plain
reading of Article VII, Section 18 of the Constitution shows that the Congress is
required to convene in joint session to review Proclamation No. 216 and vote as a
single deliberative body. The performance of the constitutional obligation is
allegedly mandatory, not discretionary.16
According to petitioners, the discretionary nature of the phrase "may revoke such
proclamation or suspension" under Article VII, Section 18 of the Constitution
allegedly pertain to the power of the Congress to revoke but not to its obligation to
jointly convene and vote - which, they stress, is mandatory. To require the
Congress to convene only when it exercises the power to revoke is purportedly
absurd since the Congress, without convening in joint session, cannot know
beforehand whether a majority vote in fact exists to effect a revocation. 17
Petitioners claim that in Fortun v. Macapagal-Arroyo,18 this Court described the
"duty" of the Congress to convene in joint session as "automatic." The convening
of the Congress in joint session when former President Gloria Macapagal-Arroyo
(President Macapagal-Arroyo) declared martial law and suspended the privilege of
the writ of habeas corpus in Maguindanao was also a legislative precedent where
the Congress clearly recognized its duty to convene in joint session.19
The mandate upon the Congress to convene jointly is allegedly intended by the
1986 Constitutional Commission (ConCom) to serve as a protection against
potential abuses in the exercise of the President's power to declare martial law and
suspend the privilege of the writ of habeas corpus. It is "a mechanism purposely
designed by the Constitution to compel Congress to review the propriety of the
President's action x x x [and] meant to contain martial law powers within a
democratic framework for the preservation of democracy, prevention of abuses,
and protection of the people."20
The Tañada Petition
The petitioners in G.R. No. 231694 chiefly opine that:
I. A PLAIN READING OF THE 1987 CONSTITUTION LEADS TO THE
INDUBITABLE CONCLUSION THAT A JOINT SESSION OF CONGRESS TO
REVIEW A DECLARATION OF MARTIAL LAW BY THE PRESIDENT IS
MANDATORY.
II. FAIL URE TO CONVENE A JOINT SESSION DEPRIVES LAWMAKERS OF A
DELIBERATIVE AND INTERROGATORY PROCESS TO REVIEW MARTIAL
LAW.
III. FAIL URE TO CONVENE A JOINT SESSION DEPRIVES THE PUBLIC OF
TRANSPARENT PROCEEDINGS WITHIN WHICH TO BE INFORMED OF THE
FACTUAL BASES OF MARTIAL LAW AND THE INTENDED PARAMETERS OF
ITS IMPLEMENTATION.
IV. THE FRAMERS OF THE CONSTITUTION INTENDED THAT A JOINT
SESSION OF CONGRESS BE CONVENED IMMEDIATELY AFTER THE
DECLARATION OF MARTIAL LAW.21
Similar to the contentions in the Padilla Petition, petitioners maintain that they have
sufficiently shown all the essential requisites in order for this Court to exercise its
power of judicial review, in that: (1) an actual case or controversy exists; (2) they
possess the standing to file this case; (3) the constitutionality of a governmental
act has been raised at the earliest possible opportunity; and (4) the constitutionality
of the said act is the very lis mota of the petition.
According to petitioners, there is an actual case or controversy because the failure
and/or refusal of the Congress to convene jointly deprived legislators of a venue
within which to raise a motion for revocation (or even extension) of President
Duterte's Proclamation No. 216 and the public of an opportunity to be properly
informed as to the bases and particulars thereof.22
Petitioners likewise claim to have legal standing to sue as citizens and taxpayers.
Nonetheless, they submit that the present case calls for the Court's liberality in the
appreciation of their locus standi given the fact that their petition presents "a
question of first impression - one of paramount importance to the future of our
democracy - as well as the extraordinary nature of Martial Law itself."23
Petitioners contend that the convening of the Congress in joint session, whenever
the President declares martial law or suspends the privilege of the writ of habeas
corpus, is a public right and duty mandated by the Constitution. The writ
of mandamus is, thus, the "proper recourse for citizens who seek to enforce a
public right and to compel the performance of a public duty, especially when the
public right involved is mandated by the Constitution."24
For this group of petitioners, the Members of the Congress gravely abused their
discretion for their refusal to convene in joint session, underscoring that "[w]hile a
writ of mandamus will not generally lie from one branch of the government to a
coordinate branch, or to compel the performance of a discretionary act, this admits
of certain exceptions, such as in instances of gross abuse of discretion, manifest
injustice, or palpable excess of authority, when there is no other plain, speedy and
adequate remedy."25
As to the merits, petitioners assert that the convening of the Congress in joint
session after the declaration of martial law is mandatory under Article VII, Section
18 of the Constitution, whether or not the Congress is in session or there is intent
to revoke. It is their theory that a joint session should be a deliberative process in
which, after debate and discussion, legislators can come to an informed decision
as to the factual and legal bases for the declaration of martial law. Moreover,
"legislators who wish to revoke the martial law proclamation should have the right
to put that vote on historical record in joint session - and, in like manner, the public
should have the right to know the position of their legislators with respect to this
matter of the highest national interest."26
Petitioners add that a public, transparent, and deliberative process is purportedly
necessary to allay the people's fears against "executive overreach." This concern
allegedly cannot be addressed by briefings in executive sessions given by
representatives of the Executive Branch to both Houses of the Congress. 27
Petitioners further postulate that, based on the deliberations of the Members of the
ConCom, the phrase "voting jointly" under Article VII, Section 18 was intended to
mean that a joint session is a procedural requirement, necessary for the Congress
to decide whether to revoke, affirm, or even extend the declaration of martial law.28
Consolidation of Respondents' Comments
Respondents assert firmly that there is no mandatory duty on their part to "vote
jointly," except in cases of revocation or extension of the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus.29 In the
absence of such duty, the non-convening of the Congress in joint session does not
pose any actual case or controversy that may be the subject of judicial
review.30 Additionally, respondents argue that the petitions raise a political
question over which the Court has no jurisdiction.
Petitioners' avowal that they are citizens and taxpayers is allegedly inadequate to
clothe them with locus standi. Generalized interests, albeit accompanied by the
assertion of a public right, do not establish locus standi. Petitioners must show that
they have a direct and personal interest in the Congress' failure to convene in joint
session, which they failed to present herein. A taxpayer's suit is likewise proper
only when there is an exercise of the spending or taxing power of the Congress.
However, in these cases, the funds used in the implementation of martial law in
Mindanao are taken from those funds already appropriated by the Congress.
Senator De Lima's averment of her locus standi as an incumbent member of the
legislature similarly lacks merit. Insofar as the powers of the Congress are not
impaired, there is no prejudice to each Member thereof; and even
assuming arguendo that the authority of the Congress is indeed compromised,
Senator De Lima still does not have standing to file the present petition
for mandamus because it is not shown that she has been allowed to participate in
the Senate sessions during her incarceration. She cannot, therefore, claim that she
has suffered any direct injury from the non-convening of the Congress in joint
session.31
Respondents further contend that the constitutional right to information, as
enshrined under Article III, Section 7 of the Constitution, is not absolute. Matters
affecting national security are considered as a valid exception to the right to
information of the public. For this reason, the petitioners' and the public's right to
participate in the deliberations of the Congress regarding the factual basis of a
martial law declaration may be restricted in the interest of national security and
public safety.32
Respondents allege that petitioners failed to present an appropriate case
for mandamus to lie. Mandamus will only issue when the act to be compelled is a
clear legal duty or a ministerial duty imposed by law upon the defendant or
respondent to perform the act required that the law specifically enjoins as a duty
resulting from office, trust, or station.33
According to respondents, it is erroneous to assert that it is their ministerial duty to
convene in joint session whenever martial law is proclaimed or the privilege of the
writ of habeas corpus is suspended in the absence of a clear and specific
constitutional or legal provision. In fact, Article VII, Section 18 does not use the
words ''joint session" at all, much less impose the convening of such joint session
upon the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus. What the Constitution requires is joint voting when the action of
the Congress is to revoke or extend the proclamation or suspension.34
Indeed, prior concurrence of the Congress is not constitutionally required for the
effectivity of the proclamation or suspension. Quoting from the deliberations of the
framers of the Constitution pertaining to Article VII, Section 18, the Congress
points out that it was the intention of the said framers to grant the President the
power to declare martial law or suspend the privilege of the writ of habeas
corpus for a period not exceeding sixty (60) days without the concurrence of the
Congress. There is absolutely nothing under the Constitution that mandates the
Congress to convene in joint session when their intention is merely to discuss,
debate, and/or review the factual and legal basis for the proclamation. That is why
the phrase "voting jointly" is limited only in case the Congress intends to revoke
the proclamation.35 In a situation where the Congress is not in session, the
Constitution simply provides that the Congress must convene in accordance with
its rules but does not state that it must convene in joint session. Respondents
further refer to the proper procedure for the holding of joint sessions.
Respondents brush aside as mere obiter dictum the Court's pronouncement in
the Fortun case that it is the duty of the Congress to convene upon the declaration
of martial law. That whether or not the Congress should convene in joint session in
instances where it is not revoking the proclamation was not an issue in that case.
Moreover, the factual circumstances in the Fortun case are entirely different from
the present cases. The Congress then issued a concurrent resolution calling for
the convening of a joint session as the intention - at least as far as the Senate was
concerned - was to revoke the proclamation of martial law and the suspension of
the privilege of the writ of habeas corpus in Maguindanao. The Fortun case then
cannot be considered a legislative precedent of an "automatic convening of a joint
session by the Congress upon the President's proclamation of martial law."36
Respondents argue that the remedy of certiorari is likewise unavailing. To justify
judicial intervention, the abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform a duty
enjoined by law or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion or
hostility.37 The Congress has the duty to convene and vote jointly only in two (2)
instances, as respondents have already explained. The Congress had even issued
their respective resolutions expressing their support to, as well as their intent not to
revoke, President Duterte's Proclamation No. 216. There then can be no evasion
of a positive duty or a virtual refusal to perform a duty on the part of the Congress
if there is no duty to begin with.38
Respondents respectfully remind the Court to uphold the "constitutional
demarcation of the three fundamental powers of government."39 The Court may
not intervene in the internal affairs of the Legislature and it is not within the
province of the courts to direct the Congress how to do its work. Respondents
stress that this Court cannot direct the Congress to convene in joint session
without violating the basic principle of the separation of powers. 40
Subsequent Events
On July 14, 2017, petitioners in G.R. No. 231671, the Padilla Petition, filed a
Manifestation, calling the attention of the Court to the imminent expiration of the
sixty (60)-day period of validity of Proclamation No. 216 on July 22, 2017. Despite
the lapse of said sixty (60)-day period, petitioners exhort the Court to still resolve
the instant cases for the guidance of the Congress, State actors, and all Filipinos.
On July 22, 2017, the Congress convened in joint session and, with two hundred
sixty-one (261) votes in favor versus eighteen (18) votes against, overwhelmingly
approved the extension of the proclamation of martial law and the suspension of
the privilege of the writ of habeas corpus in Mindanao until December 31, 2017.
STATEMENT OF THE ISSUES
After a meticulous consideration of the parties' submissions, we synthesize them
into the following fundamental issues:
I. Whether or not the Court has jurisdiction over the subject matter of these
consolidated petitions;
II. Whether or not the petitions satisfy the requisites for the Court's exercise of its
power of judicial review;
III. Whether or not the Congress has the mandatory duty to convene jointly upon
the President's proclamation of martial law or the suspension of the privilege of the
writ of habeas corpus under Article VII, Section 18 of the 1987 Constitution; and
IV. Whether or not a writ of mandamus or certiorari may be issued in the present
cases.
THE COURT'S RULING
The Court's jurisdiction over these
consolidated petitions
The principle of separation of powers
The separation of powers doctrine is the backbone of our tripartite system of
government. It is implicit in the manner that our Constitution lays out in separate
and distinct Articles the powers and prerogatives of each co-equal branch of
government. In Belgica v. Ochoa,41 this Court had the opportunity to restate:
The principle of separation of powers refers to the constitutional demarcation of the
three fundamental powers of government. In the celebrated words of Justice
Laurel in Angara v. Electoral Commission, it means that the "Constitution has
blocked out with deft strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the government." To the legislative
branch of government, through Congress, belongs the power to make laws; to the
executive branch of government, through the President, belongs the power to
enforce laws; and to the judicial branch of government, through the Court, belongs
the power to interpret laws. Because the three great powers have been, by
constitutional design, ordained in this respect, "[ e ]ach department of the
government has exclusive cognizance of matters within its jurisdiction, and is
supreme within its own sphere." Thus, "the legislature has no authority to execute
or construe the law, the executive has no authority to make or construe the law,
and the judiciary has no power to make or execute the law." The principle of
separation of powers and its concepts of autonomy and independence stem from
the notion that the powers of government must be divided to avoid concentration of
these powers in any one branch; the division, it is hoped, would avoid any single
branch from lording its power over the other branches or the citizenry. To achieve
this purpose, the divided power must be wielded by co-equal branches of
government that are equally capable of independent action in exercising their
respective mandates. Lack of independence would result in the inability of one
branch of government to check the arbitrary or self-interest assertions of another
or others. (Emphases supplied, citations omitted.)
Contrary to respondents' protestations, the Court's exercise of jurisdiction over
these petitions cannot be deemed as an unwarranted intrusion into the exclusive
domain of the Legislature. Bearing in mind that the principal substantive issue
presented in the cases at bar is the proper interpretation of Article VII, Section 18
of the 1987 Constitution, particularly regarding the duty of the Congress to vote
jointly when the President declares martial law and/or suspends the privilege of the
writ of habeas corpus, there can be no doubt that the Court may take jurisdiction
over the petitions. It is the prerogative of the Judiciary to declare "what the law
is."42 It is worth repeating here that:
[W]hen the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to
them.43 (Emphases supplied.)
Political question doctrine
Corollary to respondents' invocation of the principle of separation of powers, they
argue that these petitions involve a political question in which the Court may not
interfere. It is true that the Court continues to recognize questions of policy as a
bar to its exercise of the power of judicial review.44 However, in a long line of
cases,45 we have given a limited application to the political question doctrine.
In The Diocese of Bacolod v. Commission on Elections,46 we emphasized that the
Court's judicial power as conferred by the Constitution has been expanded to
include "the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and 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."
Further, in past cases, the Court has exercised its power of judicial review noting
that the requirement of interpreting the constitutional provision involved
the legality and not the wisdom of a manner by which a constitutional duty or
power was exercised.47
In Association of Medical Clinics for Overseas Workers, Inc. (AMCOW)
v. GCC Approved Medical Centers Association, Inc.,48 we explained the rationale
behind the Court's expanded certiorari jurisdiction. Citing former Chief Justice and
Constitutional Commissioner Roberto R. Concepcion in his sponsorship speech for
Article VIII, Section 1 of the Constitution, we reiterated that the courts cannot
hereafter evade the duty to settle matters, by claiming that such matters constitute
a political question.
Existence of the requisites for judicial review
Petitioners' legal standing
Petitioners in G.R. No. 231671 allege that they are suing in the following
capacities: (1) Padilla as a member of the legal profession representing victims of
human rights violations, and a taxpayer; (2) Saguisag as a human rights lawyer,
former member of the Philippine Senate, and a taxpayer; (3) Monsod as a framer
of the Philippine Constitution and member of the 1986 Con Com, and a taxpayer;
(4) Rosales as a victim of human rights violations committed under martial law
declared by then President Ferdinand E. Marcos, and a taxpayer; (5) Gorospe as a
lawyer and a taxpayer; and (6) Senator De Lima as an incumbent Member of the
Philippine Senate, a human rights advocate, a former Secretary of Justice,
Chairperson of the Commission on Human Rights, and a taxpayer.
On the other hand, in G.R. No. 231694, while petitioner Tañada sues in his
capacity as a Filipino citizen and former legislator, his co-petitioners (Bishop
Iniguez, Bishop Pabillo, Bishop Tobias, Mo. Ygrubay, Bulangis, and Deluria) all
sue in their capacity as Filipino citizens.
Respondents insist that none of the petitioners have legal standing, whether as a
citizen, taxpayer, or legislator, to file the present cases.1avvphi1
The Court has consistently held that locus standi is a personal and substantial
interest in a case such that the party has sustained or will sustain direct injury as a
result of the challenged governmental act. The question is whether the challenging
party alleges such personal stake in the outcome of the controversy so as to
assure the existence of concrete adverseness that would sharpen the presentation
of issues and illuminate the court in ruling on the constitutional question posed. 49
Petitioners satisfy these standards.
The Court has recognized that every citizen has the right, if not the duty, to
interfere and see that a public offense be properly pursued and punished, and that
a public grievance be remedied.50 When a citizen exercises this "public right" and
challenges a supposedly illegal or unconstitutional executive or legislative action,
he represents the public at large, thus, clothing him with the requisite locus
standi. He may not sustain an injury as direct and adverse as compared to others
but it is enough that he sufficiently demonstrates in his petition that he is entitled to
protection or relief from the Court in the vindication of a public right.51
Verily, legal standing is grounded on the petitioner's personal interest in the
controversy. A citizen who files a petition before the court asserting a public right
satisfies the requirement of personal interest simply because the petitioner is a
member of the general public upon which the right is vested. 52 A citizen's personal
interest in a case challenging an allegedly unconstitutional act lies in his interest
and duty to uphold and ensure the proper execution of the law.53
The present petitions have been filed by individuals asserting that the Senate and
the House of Representatives have breached an allegedly constitutional duty to
convene in joint session to deliberate on Presidential Proclamation No. 216. The
citizen-petitioners' challenge of a purportedly unconstitutional act in violation of a
public right, done in behalf of the general public, gives them legal standing.
On the other hand, Senator De Lima questions the Congress' failure to convene in
joint session to deliberate on Proclamation No. 216, which, according to the
petitioners, is the legislature's constitutional duty.
We have ruled that legislators have legal standing to ensure that the constitutional
prerogatives, powers, and privileges of the Members of the Congress remain
inviolate.54 Thus, they are allowed to question the validity of any official action - or
in these cases, inaction - which, to their mind, infringes on their prerogatives as
legislators.55
Actual case or controversy
It is long established that the power of judicial review is limited to actual cases or
controversies. There is an actual case or controversy where there is a conflict of
legal rights, an assertion of opposite legal claims, where the contradiction of the
rights can be interpreted and enforced on the basis of existing law and
jurisprudence.56
There are two conflicting claims presented before the Court: on the one hand, the
petitioners' assertion that the Congress has the mandatory duty to convene in
joint session to deliberate on Proclamation No. 216; and, on the other, the
respondents' view that so convening in joint session is discretionary on the part of
the Congress.
Petitioners seek relief through a writ of mandamus and/or certiorari. Mandamus is
a remedy granted by law when any tribunal, corporation, board, officer, or person
unlawfully neglects the performance of an act which the law specifically enjoins as
a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use or enjoyment of a right or office to which such other is
entitled.57 Certiorari, as a special civil action, is available only if: (1) it is directed
against a tribunal, board, or officer exercising judicial or quasi-judicial functions; (2)
the tribunal, board, or officer acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no
appeal nor any plain, speedy, and adequate remedy in the ordinary course of
law.58 With respect to the Court, however, certiorari is broader in scope and reach,
and it may be issued to correct errors of jurisdiction committed not only by a
tribunal, corporation, board, or officer exercising judicial, quasi-judicial, or
ministerial functions, but also to set right, undo, and restrain any act of grave
abuse of discretion amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not exercise judicial,
quasi-judicial or ministerial functions.59
As the present petitions allege an omission on the part of the Congress that
constitutes neglect of their constitutional duties, the petitions make a prima
facie case for mandamus, and an actual case or controversy ripe for adjudication
exists. When an act or omission of a branch of government is seriously alleged to
have infringed the Constitution, it becomes not only the right but, in fact, the duty of
the judiciary to settle the dispute.60
Respondents aver that the Congress cannot be compelled to do something that is
discretionary on their part nor could they be guilty of grave abuse of discretion in
the absence of any mandatory obligation to jointly convene on their part to affirm
the President's proclamation of martial law. Thus, petitioners are not entitled to the
reliefs prayed for in their petitions for mandamus and/or certiorari; consequently,
no actual case or controversy exists.
There is no merit to respondents' position.
For the Court to exercise its power of judicial review and give due course to the
petitions, it is sufficient that the petitioners set forth their material allegations to
make out a prima facie case for mandamus or certiorari.61 Whether the petitioners
are actually and ultimately entitled to the reliefs prayed for is exactly what is to be
determined by the Court after careful consideration of the parties' pleadings and
submissions.
Liberality in cases of transcendental importance
In any case, it is an accepted doctrine that the Court may brush aside procedural
technicalities and, nonetheless, exercise its power of judicial review in cases of
transcendental importance.
There are marked differences between the Chief Executive's military powers,
including the power to declare martial law, as provided under the present
Constitution, in comparison to that granted in the 1935 Constitution. Under the
1935 Constitution,62 such powers were seemingly limitless, unrestrained, and
purely subject to the President's wisdom and discretion.
At present, the Commander-in-Chief still possesses the power to suspend the
privilege of the writ of habeas corpus and to proclaim martial law. However, these
executive powers are now subject to the review of both the legislative and judicial
branches. This check-and-balance mechanism was installed in the 1987
Constitution precisely to prevent potential abuses of these executive prerogatives.
Inasmuch as the present petitions raise issues concerning the Congress' role in
our government's system of checks and balances, these are matters of paramount
public interest or issues of transcendental importance deserving the attention of
the Court in view of their seriousness, novelty, and weight as precedents.63
Mootness
The Court acknowledges that the main relief prayed for in the present
petitions (i.e., that the Congress be directed to convene in joint session and therein
deliberate whether to affirm or revoke Proclamation No. 216) may arguably have
been rendered moot by: (a) the lapse of the original sixty (60) days that the
President's martial law declaration and suspension of the privilege of the writ
of habeas corpus were effective under Proclamation No. 216; (b) the subsequent
extension by the Congress of the proclamation of martial law and the suspension
of the privilege of the writ of habeas corpus over the whole of Mindanao after
convening in joint session on July 22, 2017; and (c) the Court's own decision
in Lagman v. Medialdea,64 wherein we ruled on the sufficiency of the factual bases
for Proclamation No. 216 under the original period stated therein.
In David v. Macapagal-Arroyo, the jurisprudential rules regarding mootness were
succinctly summarized, thus:
A moot and academic case is one that ceases to present a justiciable controversy
by virtue of supervening events, so that a declaration thereon would be of no
practical use or value. Generally, courts decline jurisdiction over such case or
dismiss it on ground of mootness.
xxxx
The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot
and academic, if: first, there is a grave violation of the Constitution; second, the
exceptional character of the situation and the paramount public interest is
involved; third, when constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and fourth, the case is
capable of repetition yet evading review.65 (Emphasis supplied, citations omitted.)
It cannot be gainsaid that there are compelling and weighty reasons for the Court
to proceed with the resolution of these consolidated petitions on the merits. As
explained in the preceding discussion, these cases involve a constitutional issue of
transcendental significance and novelty. A definitive ruling from this Court is
imperative not only to guide the Bench, the Bar, and the public but, more
importantly, to clarify the parameters of congressional conduct required by the
1987 Constitution, in the event of a repetition of the factual precedents that gave
rise to these cases.
The duty of the Congress to vote jointly
under Article VII, Section 18
We now come to the crux of the present petitions - the issue of whether or not
under Article VII, Section 18 of the 1987 Constitution, it is mandatory for the
Congress to automatically convene in joint session in the event that the President
proclaims a state of martial law and/or suspends the privilege of the writ of habeas
corpus in the Philippines or any part thereof.
The Court answers in the negative. The Congress is not constitutionally mandated
to convene in joint session except to vote jointly to revoke the President's
declaration or suspension.
By the language of Article VII, Section 18
of the 1987 Constitution, the Congress is
only required to vote jointly to revoke the
President's proclamation of martial law
and/or suspension of the privilege of the writ
of habeas corpus.
Article VII, Section 18 of the 1987 Constitution fully reads:
Sec. 18. The President shall be the Commander-in-Chief of allarmed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours from
the proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of
a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize
the conferment of jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released. (Emphasis supplied.)
Outside explicit constitutional limitations, the Commander-in-Chief clause in Article
VII, Section 18 of the 1987 Constitution vests on the President, as Commander-in-
Chief, absolute authority over the persons and actions of the members of the
armed forces,66 in recognition that the President, as Chief Executive, has the
general responsibility to promote public peace, and as Commander-in-Chief, the
more specific duty to prevent and suppress rebellion and lawless
violence.67 However, to safeguard against possible abuse by the President of the
exercise of his power to proclaim martial law and/or suspend the privilege of the
writ of habeas corpus, the 1987 Constitution, through the same provision,
institutionalized checks and balances on the President's power through the two
other co-equal and independent branches of government, i.e., the Congress and
the Judiciary. In particular, Article VII, Section 18 of the 1987 Constitution requires
the President to submit a report to the Congress after his proclamation of martial
law and/or suspension of the privilege of the writ of habeas corpus and grants the
Congress the power to revoke, as well as extend, the proclamation and/or
suspension; and vests upon the Judiciary the power to review the sufficiency of the
factual basis for such proclamation and/or suspension.
There are four provisions in Article VII, Section 18 of the 1987 Constitution
specifically pertaining to the role of the Congress when the President proclaims
martial law and/or suspends the privilege of the writ of habeas corpus, viz.:
a. Within forty-eight (48) hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall submit
a report in person or in writing to the Congress;
b. The Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President;
c. Upon the initiative of the_ President, the Congress may, in the same manner.
extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist; and
d. The Congress, if not in session, shall within twenty-four hours (24) following
such proclamation or suspension, convene in accordance with its rules without
need of call.
There is no question herein that the first provision was complied with, as within
forty-eight (48) hours from the issuance on May 23, 2017 by President Duterte of
Proclamation No. 216, declaring a state of martial law and suspending the privilege
of the writ of habeas corpus in Mindanao, copies of President Duterte's Report
relative to Proclamation No. 216 was transmitted to and received by the Senate
and the House of Representatives on May 25, 2017.
The Court will not touch upon the third and fourth provisions as these concern
factual circumstances which are not availing in the instant petitions. The petitions
at bar involve the initial proclamation of martial law and suspension of the privilege
of the writ of habeas corpus, and not their extension; and the 17th Congress was
still in session68 when President Duterte issued Proclamation No. 216 on May 23,
2017.
It is the second provision that is under judicial scrutiny herein: "The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall not
be set aside by the President."
A cardinal rule in statutory construction is that when the law is clear and free from
any doubt or ambiguity, there is no room for construction or interpretation. There is
only room for application. According to the plain-meaning rule or verba legis, when
the statute is clear, plain, and free from ambiguity, it must be given its literal
meaning and applied without attempted interpretation. It is expressed in the
maxims index animi sermo or "speech is the index of intention[,]" and verba legis
non est recedendum or "from the words of a statute there should be no
departure."69
In Funa v. Chairman Villar,70 the Court also applied the verba legis rule in
constitutional construction, thus:
The rule is that if a statute or constitutional provision is clear, plain and free from
ambiguity, it must he given its literal meaning and applied without attempted
interpretation. This is known as the plain meaning rule enunciated by the
maxim verba legis non est recedendum, or from the words of a statute there
should be no departure.
The primary source whence to ascertain constitutional intent or purpose is the
language of the provision itself. If possible, the words in the Constitution must be
given their ordinary meaning, save where technical terms are employed. J.M.
Tuason & Co., Inc. v. Land Tenure Administration illustrates the verbal legis rule in
this wise:
We look to the language of the document itself in our search for its meaning. We
do not of course stop there, but that is where we begin. It is to he assumed that the
words in which constitutional provisions arc couched express the objective sought
to be attained. They are to be given their ordinary meaning except where technical
terms are employed in which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer's document, it being essential for the
rule of law to obtain that it should ever be present in the people's consciousness,
its language as much as possible should be understood in the sense they have in
common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it. based on the
postulate that the framers and the people mean what they say. Thus there are
cases where the need for construction is reduced to a minimum. (Emphases
supplied.)
The provision in question is clear, plain, and unambiguous. In its literal and
ordinary meaning, the provision grants the Congress the power to revoke the
President's proclamation of martial law or the suspension of the privilege of the writ
of habeas corpus and prescribes how the Congress may exercise such
power, i.e., by a vote of at least a majority of all its Members, voting jointly, in a
regular or special session. The use of the word "may" in the provision - such that
"[t]he Congress x x x may revoke such proclamation or suspension x x x" - is to be
construed as permissive and operating to confer discretion on the Congress on
whether or not to revoke,71 but in order to revoke, the same provision sets the
requirement that at least a majority of the Members of the Congress, voting jointly,
favor revocation.
It is worthy to stress that the provision does not actually refer to a "joint session."
While it may be conceded, subject to the discussions below, that the phrase
"voting jointly" shall already be understood to mean that the joint voting will be
done "in joint session," notwithstanding the absence of clear language in the
Constitution,72 still, the requirement that "[t]he Congress, voting jointly, by a vote
of at least a majority of all its Members in regular or special session, x x x"
explicitly applies only to the situation when the Congress revokes the President's
proclamation of martial law and/or suspension of the privilege of the writ of habeas
corpus. Simply put, the provision only requires Congress to vote jointly on the
revocation of the President's proclamation and/or suspension.
Hence, the plain language of the subject constitutional provision does not support
the petitioners' argument that it is obligatory for the Congress to convene in joint
session following the President's proclamation of martial law and/or suspension of
the privilege of the writ of habeas corpus, under all circumstances.
The deliberations of the 1986 ConCom reveal the framers' specific intentions to (a)
remove the requirement of prior concurrence of the Congress for the effectivity of
the President's proclamation of martial law and/or suspension of the privilege of
the writ of habeas corpus; and (b) grant to the Congress the discretionary power to
revoke the President's proclamation and/or suspension by a vote of at least a
majority of its Members, voting jointly.
The Court recognized in Civil Liberties Union v. The Executive Secretary73 that:
A foolproof yardstick in constitutional construction is the intention underlying the
provision under consideration. Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be accomplished by its
adoption, and the evils, if any, sought to be prevented or remedied. A. doubtful
provision will be examined in the light of the history of the times, and the condition
and circumstances under which the Constitution was framed. The object is to
ascertain the reason which induced· the framers of the Constitution to enact the
particular provision and the purpose sought to be accomplished thereby, in order
to construe the whole as to make the words consonant to that reason and
calculated to effect that purpose.
However, in the same Decision, the Court issued the following caveat:
While it is permissible in this jurisdiction to consult the debates and proceedings of
the constitutional convention in order to arrive at the reason and purpose of the
resulting Constitution, resort thereto may be had only when other guides fail as
said proceedings are powerless to vary the terms of the Constitution when the
meaning is clear. Debates in the constitutional convention "are of value as showing
the views of the individual members, and as indicating the reasons for their votes,
but they give US no light as to the views. of the large majority who did not talk,
much less of the mass of our fellow citizens whose votes at the polls gave that
instrument the force of fundamental law. We think it safer to construe the
constitution from what appears upon its face.'' The proper interpretation therefore
depends more on how it was understood by the people adopting it than in the
framer's understanding thereof.74 (Emphasis supplied.)
As the Court established in its preceding discussion, the clear meaning of the
relevant provision in Article VU, Section 18 of the 1987 Constitution is that the
Congress is only required to vote jointly on the revocation of the President's
proclamation of martial law and/or suspension of the privilege of the writ of habeas
co1pus. Based on the Civil Liberties Union case, there is already no need to look
beyond the plain language of the provision and decipher the intent of the framers
of the 1987 Constitution. Nonetheless, the deliberations on Article VII, Section 18
of the 1986 ConCom does not reveal a manifest intent of the framers to make it
mandatory for the Congress to convene in joint session following the President's
proclamation and/or suspension, so it could deliberate as a single body, regardless
of whether its Members will concur in or revoke the President's proclamation
and/or suspension.
What is evident in the deliberations of the 1986 ConCom were the framers'
intentions to (a) remove the requirement of prior concurrence by the Congress for
the effectivity of the President's proclamation of martial law and/or suspension of
the privilege of the writ of habeas corpus; and (b) grant to the Congress the
discretionary power to revoke the President's proclamation and/or suspension by a
vote of at least a majority of its Members, voting jointly.
As the Commander-in-Chief clause was initially drafted, the President's
suspension of the privilege of the writ of habeas corpus required the prior
concurrence of at least a majority of all the members of the Congress to be
effective. The first line read, "The President shall be the commander-in-chief of all
the armed forces of the Philippines and, whenever it becomes necessary, he may
call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion[;]" and the next line, "In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, and, with the
concurrence of at least a majority of all the members of the Congress, suspend the
privilege of the writ of habeas corpus."75
The Commissioners, however, extensively debated on whether or not there should
be prior concurrence by the Congress, and the exchanges below present the
considerations for both sides:
MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis that
in the first imposition of martial law there is no need for concurrence of the majority
of the Members of Congress because the provision says "in case of actual
invasion and rebellion." If there is actual invasion and rebellion, as Commissioner
Crispino de Castro said, there is need for immediate response because there is an
attack. Second, the fact of securing a concurrence may be impractical because the
roads might be blocked or barricaded. They say that in case of rebellion, one
cannot even take his car and go to the Congress, which is possible because the
roads are blocked or barricaded. And maybe if the revolutionaries are smart they
would have an individual team for each and every Member of the Congress so he
would not be able to respond to a call for a session. So the requirement of an initial
concurrence of the majority of all the Members of the Congress in case of an
invasion or rebellion might be impractical as I can see it.
Second, Section l5states that the Congress may revoke the declaration or lift the
suspension.
And third, the matter of declaring martial law is already a justiciable question and
no longer a political one in that it is subject to judicial review at any point in time.
So on that basis, I agree that there is no need for concurrence as aprerequisite to
declare martial law or to suspend the privilege of the writ of habeas corpus. x x x
xxxx
MR. SUAREZ. x x x
The Commissioner is suggesting that in connection with Section 15, we delete the
phrase "and, with the concurrence of at least a majority of all the Members of the
Congress..."
MR. PADILLA. That is correct especially for the initial suspension of the privilege of
the writ of habeas corpus or also the declaration of martial law.
MR. SUAREZ. So in both instances, the Commissioner is suggesting that .this
would be an exclusive prerogative of the President?
MR. PADILLA. At least initially, for a period of 60 days. But even that period of 60
days may be shortened by the Congress or the Senate because the next sentence
says that the Congress or the Senate may even revoke the proclamation.
xxxx
MR. MONSOD. x x x
We are back to Section 15, page 7, lines 1 and 2. I just want to reiterate my
previous proposal to amend by deletion the phrase "and, with the concurrence of
at least a majority of all the members of Congress."
xxxx
MR. SUAREZ. x x x
The Commissioner is proposing a very substantial amendment because this
means that he is vesting exclusively unto the President the right to determine the
factors which may lead to the declaration of martial law and the suspension of the
writ of habeas corpus. I suppose he has strong and compelling reasons in seeking
to delete this particular phrase. May we be informed of his good and substantial
reasons?
MR. MONSOD. This situation arises in cases of invasion or rebellion. And in
previous interpellatioi1s regarding this phrase, even during the discussions on the
Bill of Rights, as I understand it, the interpretation is a situation of actual invasion
or rebellion. In these situations, the President has to act quickly. Secondly, this
declaration has a time fuse. It is only good for a maximum of 60 days. At the end of
60 days, it automatically terminates. Thirdly, the right of the judiciary to inquire into
the sufficiency of the factual basis of the proclamation always exists, even during
those first 60 days.
MR. SUAREZ. Given cur traumatic experience during the past administration, if we
give exclusive right to the President to determine these factors, especially the
existence of an invasion or rebellion and the second factor of determining whether
the public safety requires it or not, may I call the attention of the Gentleman to
what happened to us during the past ac ministration. Proclamation No. 1081 was
issued by Ferdinand E. Marcos in his capacity as President of the Philippines by
virtue of the powers vested upon him purportedly under Article VII, Section 10(2) of
the Constitution, wherein he made this predicate under the "Whereas" provision.
Whereas, the rebellion and armed action undertaken by these lawless elements of
the Communists and other armed aggrupations organized to overthrow the
Republic of the Philippines by armed violence and force, have assumed the
magnitude of an actual state of war against our people and the Republic of the
Philippines.
And may I also call the attention of the Gentleman to General Order No. 3, also
promulgated by Ferdinand E. Marcos, in his capacity as Commander-in-Chief of all
the Armed Forces of the Philippines and pursuant to Proclamation No. 1081 dated
September 21, 1972 wherein he said, among other things:
Whereas, martial law having been declared because of wanton destruction of lives
and properties, widespread lawlessness and anarchy and chaos and disorder now
prevailing throughout the country, which condition has been brought about by
groups of men who are actively engaged in a criminal conspiracy to seize political
and state power in the Philippines in order to take over the government by force
and violence, the extent of which has now assumed the proportion of an actual war
against our people and the legitimate government...
And he gave all reasons in order to suspend the privilege of the writ of habeas
corpus and declare martial law in our country without justifiable reason. Would the
Gentleman still insist on the deletion of the phrase "and, with the concurrence of at
least a majority of all the members of the Congress"?
MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos he is
undoubtedly an aberration in our history and national consciousness. But given the
possibility that there would be another Marcos, our Constitution now has sufficient
safeguards. As I said, it is not really true, as the Gentleman has mentioned, that
there is an exclusive right to determine the factual bases because the paragraph
beginning on line 9 precisely tells us that the Supreme Court may review, in an
appropriate proceeding filed by any citizen, the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof and must promulgate its decision on the same within 30 days
from its filing.
I believe that there are enough safeguards. The Constitution is supposed to
balance the interests of the country. And here we are trying to balance the public
interest in case of invasion or rebellion as against the rights of citizens. And I am
saying that there are enough safeguards, unlike in 1972 when Mr. Marcos was
able to do all those things mentioned.
MR. SUAREZ. Will that prevent a future President from doing what Mr. Marcos had
done?
MR. MONSOD. There is nothing absolute in this world, and there may be another
Marcos. What we are looking for are safeguards that are reasonable and, I believe,
adequate at this point. On the other hand, in case of invasion or rebellion, even
during the first 60 days when the intention here is to protect the country in that
situation, it would be unreasonable to ask that there should be a concurrence on
the part of the Congress, which situation is automatically terminated at the end of
such 60 days.
xxxx
MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide for a
legislative check on this awesome power of the Chief Executive acting as
Commander-in-Chief?
MR. MONSOD. I would be less comfortable if we have a presidency that cannot
act under those conditions.
MR. SUAREZ. But he can act with the concurrence of the proper or appropriate
authority.
MR. MONSOD. Yes. But when those situations arise, it is very unlikely that the
concurrence of Congress would be available; and, secondly, the President will be
able to act quickly in order to deal with the circumstances.
MR. SUAREZ. So, we would be subordinating actual circumstances to expediency.
MR. MONSOD. I do not believe it is expediency when one is trying to protect the
country in the event of an invasion or a rebellion.
MR. SUAREZ. No. But in both instances, we would be seeking to protect not only
the country but the rights of simple citizens. We have to balance these interests
without sacrificing the security of the State.
MR. MONSOD. I agree with the Gentleman that is why in the Article on the Bill of
Rights, which was approved on Third Reading, the safeguards and the protection
of the citizens have been strengthened. And on line 21 of this paragraph, I
endorsed the proposed amendment of Commissioner Padilla. We are saying that
those who are arrested should be judicially charged within five days; otherwise,
they shall be released. So, there are enough safeguards.
MR. SUAREZ. These are safeguards after the declaration of martial law and after
the suspension of the writ of habeas corpus.
MR. MONSOD. That is true.76 (Emphases supplied.)
Ultimately, twenty-eight (28) Commissioners voted to remove the requirement for
prior concurrence by the Congress for the effectivity of the President's
proclamation of martial law and/or suspension of the privilege of the writ of habeas
corpus, against only twelve (12) Commissioners who voted to retain it.
As the result of the foregoing, the 1987 Constitution does not provide at all for the
manner of determination and expression of concurrence (whether prior or
subsequent) by the Congress in the President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus. In the instant cases, both
Houses of the Congress separately passed resolutions, in accordance with their
respective rules of procedure, expressing their support for President Duterte's
Proclamation No. 216.
In contrast, being one of the constitutional safeguards against possible abuse by
the President of his power to proclaim martial law and/or suspend the privilege of
the writ of habeas corpus, the 1987 Constitution explicitly provides for how the
Congress may exercise its discretionary power to revoke the President's
proclamation and/or suspension, that is, "voting jointly, by a vote of at least a
majority of all its Members in regular or special session."
The ConCom deliberations on this particular provision substantially revolved
around whether the two Houses will have to vote jointly or separately to revoke the
President's proclamation of martial law and/or suspension of the privilege of the
writ of habeas corpus; but as the Court reiterates, it is undisputedly for the express
purpose of revoking the President's proclamation and/or suspension.
Based on the ConCom deliberations, pertinent portions of which are reproduced
hereunder, the underlying reason for the requirement that the two Houses of the
Congress will vote jointly is to avoid the possibility of a deadlock and to facilitate
the process of revocation of the President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus:
MR. MONSOD. Madam President, I want to ask the Committee a clarifying
question on line 4 of page 7 as to whether the meaning here is that the majority of
all the Members of each House vote separately. Is that the intent of this phrase?
xxxx
FR. BERNAS. We would like a little discussion on that because yesterday we
already removed the necessity for concurrence of Congress for the initial
imposition of martial law. If we require the Senate and the House of
Representatives to vote separately for purposes of revoking the imposition of
martial law, that will make it very difficult for Congress to revoke the imposition of
martial law and the suspension of the privilege of the writ of habeas corpus. That is
just thinking aloud. To balance the fact that the President acts unilaterally, then the
Congress voting as one body and not separately can revoke the declaration of
martial law or the suspension of the privilege of the writ of habeas corpus.
MR. MONSOD. In other words, voting jointly.
FR. BERNAS. Jointly, yes.
xxxx
MR. RODRIGO. May I comment on the statement made by Commissioner
Bernas? I was a Member of the Senate for 12 years. Whenever a bicameral
Congress votes, it is always separately.
For example, bills coming. from the Lower House are voted upon by the Members
of the House. Then they go up to the Senate and voted upon separately. Even on
constitutional amendments, where Congress meets in joint session, the two
Houses vote separately.
Otherwise, the Senate will be useless; it will be sort of absorbed by the House
considering that the Members of the Senate are completely outnumbered by the
Members of the House. So, I believe that whenever Congress acts, it must be the
two Houses voting separately.
If the two Houses vote "jointly," it would mean mixing the 24 Senators with 250
Congressmen. This would result in the Senate being absorbed and controlled by
the House. This violates the purpose of having a Senate.
FR. BERNAS. I quite realize that that is the practice and, precisely, in proposing
this, I am consciously proposing this as an exception to this practice because of
the tremendous effect on the nation when the privilege of the writ of habeas
corpus is suspended and then martial law is imposed. Since we have allowed the
President to impose martial law and suspend the privilege of the writ of habeas
corpus unilaterally, we should make it a little more easy for Congress to
reverse such actions for the sake of protecting the rights of the people.
MR. RODRIGO. Maybe the way it can be done is to vest this function in just one of
the Chambers - to the House alone or to the Senate alone. But to say, "by
Congress," both House and Senate "voting" jointly is practically a vote by the
House.
FR. BERNAS. I would be willing to say just the vote of the House.
MR. RODRIGO. That is less insulting to the Senate. However, there are other
safeguards. For example, if, after 60 days the Congress does not act, the
effectiveness of the declaration of martial law or the suspension of the privilege of
the writ ceases. Furthermore, there is recourse to the Supreme Court.
FR. BERNAS. I quite realize that there is this recourse to the Supreme Court and
there is a time limit, but at the same time because of the extraordinary character of
this event when martial law is imposed, I would like to make it easier for the
representatives of the people to review this very significant action taken by the
President.
MR. RODRIGO. Between the Senate being absorbed and controlled by the House
numerically and the House voting alone, the lesser of two evils is the latter.
xxxx
MR. GUINGONA. x x x
In connection with the inquiry of Commissioner Monsod, and considering the
statements made by Commissioner Rodrigo, I would like to say, in reply to
Commissioner Bernas, that perhaps because of necessity, we might really have to
break tradition. Perhaps it would be better to give this function of revoking the
proclamation of martial law or the suspension of the writ or extending the same to
the House of Representatives, instead of to the Congress. I feel that even the
Senators would welcome this because they would feel frustrated by the imbalance
in the number between the Senators and the Members of the House of
Representatives.
Anyway, Madam President, we have precedents or similar cases. For example,
under Section 24 of the committee report on the Legislative, appropriation,
revenue or tariff bills, and bills authorizing increase of public debt are supposed to
originate exclusively in the House of Representatives. Besides, we have always
been saying that it is the Members of the House of Representatives who are
mostly in touch with the people since they represent the various districts of our
country.
xxxx
MR. MONSOD. I would prefer to have the vote of both Houses because this is a
very serious question that must be fully discussed. By limiting it alone to the House
of Representatives, then we lose the benefit of the advice and opinion of the
Members of the Senate. I would prefer that they would be in joint session, but I
would agree with Father Bernas that they should not be voting separately as part
of the option. I think they should be voting jointly, so that, in effect, the Senators
will have only one vote. But at least we have the benefit of their advice.
xxxx
MR. RODRIGO. I was the one who proposed that the two Houses vote separately
because if they vote jointly, the Senators are absolutely outnumbered. It is insulting
to the intelligence of the Senators to join a session where they know they are
absolutely outnumbered. Remember that the Senators are elected at large by the
whole country. The Senate is a separate Chamber. The Senators have a longer
term than the Members of the House; they have a six-year term. They are a
continuing Senate. Out of 24, twelve are elected every year. So, if they will
participate at all, the Senate must vote separately. That is the practice everywhere
where there are two chambers. But as I said, between having a joint session of the
Senate and the House voting jointly where it is practically the House that will
decide alone, the lesser of two evils is just to let the House decide alone instead of
insulting the Senators by making them participate in a charade.
MR. REGALADO. May the Committee seek this clarification from Commissioner
Rodrigo? This vC1ting is supposed to revoke the proclamation of martial
Jaw. If the two Houses vote separately and a majority is obtained in the House of
Representatives for the revocation of the proclamation of martial law but that same
majority cannot be obtained in the Senate voting separately, what would be the
situation?
MR. RODRIGO. Then the proclamation of martial law or the suspension continues
for almost two months. After two months, it stops. Besides, there is recourse to the
Supreme Court.
MR. REGALADO. Therefore, that arrangement would be very difficult for the
legislative since they are voting separately and, for lack of majority in one of the
Houses they are precluded from revoking that proclamation. They will just,
therefore, have to wait until the lapse of 60 days.
MR. RODRIGO. It might be difficult, yes. But remember, we speak of the Members
of Congress who are elected by the people. Let us not forget that the President is
also elected by the people. Are we forgetting that the President is elected by the
people? We seem to distrust all future Presidents just because one President
destroyed our faith by his declaration of martial law. I think we are overreacting.
Let us not judge all Presidents who would henceforth be elected by the Filipino
people on the basis of the abuses made by that one President. Of course, we must
be on guard; but let us not overreact.
Let me make my position clear. I am against the proposal to make the House and
the Senate vote jointly. That is an insult to the Senate.
xxxx
MR. RODRIGO. Will the Gentleman yield to a question?
MR. MONSOD. Yes, Madam President.
MR. RODRIGO. So, in effect, if there is a joint session composed of 250
Members of the House plus 24 Members of the Senate, the total would be 274.
The majority would be one-half plus one.
MR. MONSOD. So, 148 votes.
MR. RODRIGO. And the poor Senators would be absolutely absorbed and
outnumbered by the 250 Members of the House. Is that it?
MR. MONSOD. Yes, that is one of the implications of the suggestion and the
amendment is being made nonetheless because there is a higher objective or
value which is to prevent a deadlock that would enable the President to continue
the full 60 days in case one House revokes and the other House does not.
The proposal also allows the Senators to participate fully in the discussions and
whether we like it or not, the Senators have very large persuasive powers because
of their prestige and their national vote.
MR. RODRIGO. So, the Senators will have the "quality votes" but Members of the
House will have the "quantity votes." Is that it?
MR. MONSOD. The Gentleman is making an assumption that they will vote
against each other. I believe that they will discuss, probably in joint session and
vote on it; then the consensus will be clear.
xxxx
MR. NOLLEDO. Madam President, the purpose of the amendment is really to set
forth a limitation because we have to avoid a stalemate. For example, the Lower
House decides that the declaration of martial law should be revoked, and that later
on, the Senate sitting separately decides that it should not be revoked. It becomes
inevitable that martial law shall continue even if there should be no factual basis for
it.
MR. OPLE. Madam President, if this amendment is adopted, we will be held
responsible for a glaring inconsistency in the Constitution to a degree that it
distorts the bicameral system that we have agreed to adopt. I reiterate: If there are
deadlocks, it is the responsibility of the presidential leadership, together with the
leaders of both Houses, to overcome them.77 (Emphases supplied.)
When the matter was put to a vote, twenty-four (24) Commissioners voted for the
two Houses of the Congress "voting jointly" in the revocation of the President's
proclamation of martial law and/or suspension of the privilege of the writ of habeas
corpus, and thirteen (13) Commissioners opted for the two Houses "voting
separately."
Yet, there was another attempt to amend the provision by requiring just the House
of Representatives, not the entire Congress, to vote on the revocation of the
President's proclamation of martial law and/or suspension of the privilege of the
writ of habeas corpus:
MR. RODRIGO. Madam President, may I propose an amendment?
xxxx
MR. RODRIGO. On Section 15, page 7, line 4, I propose to change the word
"Congress" to HOUSE OF REPRESENTATIVES so that the sentence will read:
"The HOUSE OF REPRESENTATIVES, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation or
suspension or extend the same if the invasion or rebellion shall persist and public
safety requires it."
FR. BERNAS. Madam President, the proposed amendment is really a motion for
reconsideration. We have already decided that both Houses will vote jointly.
Therefore, the proposed amendment, in effect, asks for a reconsideration of that
vote in order to give it to the House of Representatives.
MR. RODRIGO. Madam President, the opposite of voting jointly is voting
separately. If my amendment were to vote separately, then, yes, it is a motion for
reconsideration. But this is another formula.
xxxx
MR. DE CASTRO. What is the rationale of the amendment?
MR. RODRIGO. It is intended to avoid that very extraordinary and awkward
provision which would make the 24 Senators meet jointly with 250 Members of the
House and make them vote jointly. What I mean is, the 24 Senators, like a drop in
the bucket, are absorbed numerically by the 250 Members of the House.
xxxx
MR. SARMIENTO. Madam President, we need the wisdom of the Senators. What
is at stake is the future of our country - human rights and civil liberties. If we
separate the Senators, then we deprive the Congressmen of the knowledge and
experience of these 24 men. I think we should forget the classification of
"Senators" or "Congressmen." We should all work together to restore democracy
in our country. So we need the wisdom of 24 Senators.
MR. RODRIGO. Madam President, may I just answer. This advice of the 24
Senators can be sought because they are in the same building. Anyway, the
provision, with the amendment of Commissioner Monsod, does not call for a joint
session. It only says: "the Congress, by a vote of at least a majority of all its
Members in regular or special session" - it does not say "joint session." So, I
believe that if the Members of the House need the counsel of the Senators, they
can always call on them, they can invite them.78 (Emphasis supplied.)
The proposed amendment was not adopted, however, as only five (5)
Commissioners voted in its favor and twenty-five (25) Commissioners voted
against it. Thus, the power to revoke the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas corpus still lies with both
Houses of the Congress, voting jointly, by a vote of at least a majority of all its
Members.
Significantly, the Commissioners only settled the manner of voting by the
Congress, i.e., "voting jointly, by a vote of at least a majority of all its Members," in
order to revoke the President's proclamation of martial law and/or suspension of
the privilege of the writ of habeas corpus, but they did not directly take up and
specify in Article VII, Section 18 of the 1987 Constitution that the voting shall be
done during a joint session of both Houses of the Congress. In fact, Commissioner
Francisco A. Rodrigo expressly observed that the provision does not call for a joint
session. That the Congress will vote on the revocation of the President's
proclamation and/or suspension in a joint session can only be inferred from the
arguments of the Commissioners who pushed for the "voting jointly" amendment
that the Members of the House of Representatives will benefit from the advice,
opinion, and/or wisdom of the Senators, which will be presumably shared during a
joint session of both Houses. Such inference is far from a clear mandate for the
Congress to automatically convene in joint session, under all
circumstances, when the President proclaims martial law and/or suspends the
privilege of the writ of habeas corpus, even when Congress does not intend to
revoke the President's proclamation and/or suspension.
There was no obligation on the part of the Congress herein to convene in joint
session as the provision on revocation under Article VII, Section 18 of the 1987
Constitution did not even come into operation in light of the resolutions, separately
adopted by the two Houses of the Congress in accordance with their respective
rules of procedure, expressing support for President Duterte's Proclamation No.
216.
The provision in Article VII, Section 18 of the 1987 Constitution requiring the
Congress to vote jointly in a joint session is specifically for the purpose of
revocation of the President's proclamation of martial law and/or suspension of the
privilege of the writ of habeas corpus. In the petitions at bar, the Senate and House
of Representatives already separately adopted resolutions expressing support for
President Duterte's Proclamation No. 216. Given the express support of both
Houses of the Congress for Proclamation No. 216, and their already evident lack
of intent to revoke the same, the provision in Article VII, Section 18 of the 1987
Constitution on revocation did not even come into operation and, therefore, there is
no obligation on the part of the Congress to convene in joint session.
Practice and logic dictate that a collegial body will first hold a meeting among its
own members to get a sense of the opinions of its individual members and, if
possible and necessary, reach an official stance, before convening with another
collegial body. This is exactly what the two Houses of the Congress did in these
cases.
The two Houses of the Congress, the Senate and the House of Representatives,
immediately took separate actions on President Duterte's proclamation of martial
law and suspension of the privilege of the writ of habeas corpus in Mindanao
through Proclamation No. 216, in accordance with their respective rules of
procedure. The Consolidated Comment (Ex Abudanti Cautela), filed by the Senate
and Senate President Pimentel, recounted in detail the steps undertaken by both
Houses of the Congress as regards Proclamation No. 216, to wit:
2. On the date of the President's declaration of martial law and the suspension of
the privilege of the writ of habeas corpus, Congress was in session (from May 2, to
June 2, 2017), in its First Regular Session of the 17th Congress, as evidenced by
its Legislative Calendar, otherwise known as Calendar of Session as contained in
Concurrent Resolution No. 3 of both the Senate and the House of
Representatives.x x x
3. During the plenary session of the Senate on the following day, 24 May 2017,
privilege speeches and discussions had already been made about the declaration
of martial law and the suspension of the privilege of the writ of habeas corpus. This
prompted Senator Franklin M. Drilon to move to invite the Secretary of National
Defense, the National Security Adviser and the Chief of Staff of the Armed Forces
of the Philippines to brief the senators in closed session on what transpired in
Mindanao. Submitted to a vote and there being no objection, the Senate approved
the motion. x x x
4. On 25 May 2017, the President furnished the Senate and the House of
Representatives, through Senate President Aquilino "Koko" Pimentel III and
Speaker Pantaleon D. Alvarez, respectively, with copies of his report (hereinafter,
the "Report") detailing the factual and legal basis for his declaration of martial law
and the suspension of the privilege of the writ of habeas corpus in Mindanao.
5. On or about 25 May 2017, invitation letters were issued and sent by the Senate
Secretary, Atty. Lutgardo B. Barbo to the following officials requesting them to
attend a briefing for the Senators on 29 May 2017 at 3:00 p.m. at the Senators'
Lounge at the Senate in a closed door session to describe what transpired in
Mindanao which was the basis of the declaration of martial law in Mindanao: (a)
Secretary Delfin N. Lorenzana, Secretary of National Defense (hereinafter,
"Secretary Lorenzana"); (b) Secretary Hermogenes C. Esperon, Jr., National
Security Adviser and Director General of the National Security Council (hereinafter,
"Secretary Esperon"); and (c) General Eduardo M. Año, Chief of Staff of the Armed
Forces of the Philippines (hereinafter, "Gen. Año"). The said letters stated that the
Senators requested that the President's Report be explained and that more details
be given about the same. Xxx
6. On 29 May 2017, about 3:30 p.m., a closed door briefing was conducted by
Secretary Lorenzana, Secretary Esperon and other security officials for the
Senators to brief them about the circumstances surrounding the declaration of
martial law and to inform them about details about the President's Report. The
briefing lasted for about four (4) hours. After the briefing, the Senators had a
caucus to determine what could be publicly revealed.
7. On the same day, 29 May 2017, the House of Representatives resolved to
constitute itself as a Committee of the Whole on 31 May 2017 to consider the
President's Report.
8. On 30 May 2017, two (2) resolutions were introduced in the Senate about the
proclamation of martial law. The first one was P.S. Resolution No. 388 (hereinafter,
"P.S.R. No. 388") introduced by Senators Sotto, Pimentel, Recto, Angara, Binay,
Ejercito, Gatchalian, Gordon, Honasan, Lacson, Legarda, Pacquiao, Villanueva,
Villar and Zubiri which was entitled, "Expressing the Sense of the Senate,
Supporting the Proclamation No. 216 dated May 23, 2017, entitled "Declaring a
State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in
the Whole of Mindanao" and Finding no Cause to revoke the Same." The second
one was P.S. Resolution No. 390 (hereinafter, "P.S.R. No. 390") introduced by
Senators Pangilinan, Drilon, Hontiveros, Trillanes, Aquino and De Lima which was
entitled, "Resolution to Convene Congress in Joint Session and Deliberate on
Proclamation No. 216 dated 23 May 2017 entitled, "Declaring a State of Martial
Law and Suspending the Privilege of the Writ of Habeas Corpus in the Whole of
Mindanao." x x x
9. Discussions were made on the two (2) proposed resolutions during the plenary
deliberations of the Senate on 30 May 2017. The first resolution to be discussed
was P.S.R. No. 388. During the deliberations, amendments were introduced to it
and after the amendments and the debates, P.S.R. No. 388 was voted upon and it
was adopted by a vote of seventeen (17) affirmative votes and five (5) negative
votes. The amended, substituted and approved version of P.S.R. No. 388, which
was then renamed Resolution No. 49, states as follows:
RESOLUTION NO. 49
RESOLUTION EXPRESSING THE SENSE OF THE SENATE NOT TO REVOKE,
AT THIS TIME, PROCLAMATION NO. 216, SERIES OF 2017, ENTITLED,
"DECLARING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE
OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO."
WHEREAS, the 1987 Philippine Constitution, Article VII, Section 18, provides that:
"... in case of invasion or rebellion, when the public safety requires it, he
(President) may, for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part thereof under martial
law...";
WHEREAS, President Rodrigo Roa Duterte issued Proclamation No. 216, series of
2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of
the Writ of Habeas Corpus in the Whole of Mindanao," on May 23, 2017 (the
"Proclamation");
WHEREAS, pursuant to his duty under the Constitution, on May 25, 2017, and
within forth-eight hours after the issua.11ce of the Proclamation, President Duterte
submitted to the Senate his report on the factual and legal basis of the
Proclamation;
WHEREAS, on May 29, 2017, the Senators were briefed by the Department of
National Defense (DND), the Armed Forces of the Philippines (AFP), and by the
National Security Council (NSC) on the factual circumstances surrounding the
Proclamation as well as the updates on the situation in Mindanao;
WHEREAS, on the basis of the information received by the Senators, the Senate
is convinced that President Duterte declared martial law and suspended the
privilege of the writ of habeas corpus in the whole of Mindanao because actual
rebellion exists and that the public safety requires it;
WHEREAS, the Senate, at this time, agrees that there is no compelling reason to
revoke Proclamation No. 216, series of 2017;
WHEREAS, the Proclamation does not suspend the operation of the Constitution,
which among others, guarantees respect for human rights and guards against any
abuse or violation thereof: Now, therefore, be it
Resolved, as it is hereby resolved, To express the sense of the Senate, that there
is no compelling reason to revoke Proclamation No. 216, series of 2017 at this
time.
Adopted. x x x"
xxxx
10. Immediately thereafter, P.S.R. No. 390 was also deliberated upon. After a
prolonged discussion, a vote was taken on it and nine (9) senators were in favor
and twelve (12) were against. As such, P.S.R. No. 390 calling for a joint session of
Congress was not adopted. x x x
11. In the meantime, on 31 May 2017, the House of Representatives acting as a
Committee of the Whole was briefed for about six (6) hours by officials of the
government led by Executive Secretary Salvador C. Medialdea (hereinafter,
"Executive Secretary Medialdea"), Secretary Lorenzana and other security officials
on the factual circumstances surrounding the President's declaration of martial law
and on the statements contained in the President's Report. During the evening of
the same day, a majority of the House of Representatives passed Resolution No.
1050 entitled, "'Resolution Expressing the Full Support of the House of
Representatives to President Rodrigo Roa Duterte As It Finds No Reason to
Revoke Proclamation No. 216 Entitled, 'Declaring A State of Martial Law and
Suspending the Privilege of the Writ of Habeas Corpus in the Whole of Mindanao."'
In the same deliberations, it was likewise proposed that the House of
Representatives call for a joint session of Congress to deliberate and vote on the
President's declaration of martial law and the suspension of the privilege of the writ
of habeas corpus. However, after debates, the proposal was not carried. x x x.79
It cannot be disputed then that the Senate and House of Representatives placed
President Duterte's Proclamation No. 216 under serious review and consideration,
pursuant to their power to revoke such a proclamation vested by the Constitution
on the Congress. Each House timely took action by accepting and assessing the
President's Report, inviting over and interpellating executive officials, and
deliberating amongst their fellow Senators or Representatives, before finally voting
in favor of expressing support for President Duterte's Proclamation No. 216 and
against calling for a joint session with the other House. The prompt actions
separately taken by the two Houses of the Congress on President Duterte's
Proclamation No. 216 belied all the purported difficulties and delays such
procedures would cause as raised in the Concurring and Dissenting Opinion of
Associate Justice Marvic M.V.F. Leonen (Justice Leonen). As earlier pointed out,
there is no constitutional provision governing concurrence by the Congress in the
President's proclamation of martial law and/or suspension of the privilege of the
writ of habeas corpus, and absent a specific mandate for the Congress to hold a
joint session in the event of concurrence, then whether or not to hold a joint
session under such circumstances is completely within the discretion of the
Congress.
The Senate and Senate President Pimentel explained in their Consolidated
Comment (Ex Abudanti Cautela), that, by practice, the two Houses of the
Congress must adopt a concurrent resolution to hold a joint session, and only
thereafter can the Houses adopt the rules to be observed for that particular joint
session:
It must be stated that the Senate and the House of Representatives have their own
respective Rules, i.e., the Rules of the Senate and the Rules of the House of
Representatives. There is no general body of Rules applicable to a joint session of
Congress. Based on parliamentary practice and procedure, the Senate and House
of Representatives only adopt Rules for a joint session on an ad hoc basis but only
after both Houses have already agreed to convene in a joint session through a
Concurrent Resolution. The Rules for a Joint Session for a particular purpose
become functus officio after the purpose of the joint session has been achieved.
Examples of these Rules for a Joint Session are (1) the Rules of the Joint Public
Session of Congress on Canvassing the Votes Cast for Presidential and Vice-
Presidential Candidates in the May 9, 2016 Election adopted on 24 May 2016; and
(2) the Rules of the Joint Session of Congress on Proclamation No. 1959
(Proclaiming a State of Martial Law and Suspending the Privilege of the Writ of
Habeas Corpus in the Province of Maguindanao, Except for Certain Areas)
adopted on 09 December 2009. The only time that the Senate and the House of
Representatives do not adopt Rules for a joint session is when they convene on
the fourth Monday of July for its regular session to receive or listen to the State of
the Nation Address of the President and even then, they adopt a Concurrent
Resolution to do so.
The usual procedure for having a joint session is for both Houses to first adopt a
Concurrent Resolution to hold a joint session. This is achieved by either of two (2)
ways: (1) both the Senate and the House of Representatives simultaneously
adopting the Concurrent Resolution - an example would be when the two (2)
Houses inform the President that they are ready to receive his State of the Nation
Address or (2) For one (1) House to pass its own resolution and to send it to the
other House for the latter's concurrence. Once the joint session of both Houses is
actually convened, it is only then that the Senate and the House of
Representatives jointly adopt the Rules for the joint session. x x x80 (Emphases
supplied.)
With neither Senate nor the House of Representatives adopting a concurrent
resolution, no joint session by the two Houses of the Congress can be had in the
present cases.
The Court is bound to respect the rules of the Congress, a co-equal and
independent branch of government. Article VI, Section 16(3) of the 1987
Constitution states that "[e]ach House shall determine the rules of its proceedings."
The provision has been traditionally construed as a grant of full discretionary
authority to the Houses of Congress in the formulation, adoption, and promulgation
of its rules; and as such, the exercise of this power is generally exempt from
judicial supervision and interference.81 Moreover, unless there is a clear showing
by strong and convincing reasons that they conflict with the Constitution, "all
legislative acts are clothed with an armor of constitutionality particularly resilient
where such acts follow a long-settled and well-established practice by the
Legislature."82Nothing in this Decision should be presumed to give precedence to
the rules of the Houses of the Congress over the provisions of the Constitution.
This Court simply holds that since the Constitution does not regulate the manner
by which the Congress may express its concurrence to a Presidential proclamation
of martial law and/or suspension of the privilege of the writ of habeas corpus, the
Houses of the Congress have the discretion to adopt rules of procedure as they
may deem appropriate for that purpose.
The Court highlights the particular circumstance herein that both Houses of
Congress already separately expressed support for President Duterte's
Proclamation No. 216, so revocation was not even a possibility and the
provision on revocation under Article VII, Section 18 of the 1987 Constitution
requiring the Congress to vote jointly in a joint session never came into operation.
It will be a completely different scenario if either of the Senate or the House of
Representatives, or if both Houses of the Congress, resolve/s to revoke the
President's proclamation of martial law and/or suspension of the privilege of
the writ of habeas corpus, in which case, Article VII, Section 18 of the 1987
Constitution shall apply and the Congress must convene in joint session to vote
jointly on the revocation of the proclamation and/or suspension. Given the
foregoing parameters in applying Article VII, Section 18 of the 1987 Constitution,
Justice Leonen's concern, expressed in his Concurring and Dissenting Opinion,
that a deadlock may result in the future, is completely groundless.
The legislative precedent referred to by petitioners actually supports the position of
the Court in the instant cases. On December 4, 2009, then President Macapagal-
Arroyo issued Proclamation No. 1959, entitled "Proclaiming a State of Martial law
and Suspending the Privilege of the Writ of Habeas Corpus in the Province of
Maguindanao, except for Certain Areas." The Senate, on December 14, 2009,
adopted Resolution No. 217, entitled "Resolution Expressing the Sense of the
Senate that the Proclamation of Martial Law in the Province of Maguindanao is
Contrary to the Provisions of the 1987 Constitution." Consequently, the Senate
and the House of Representatives adopted Concurrent Resolutions, i.e., Senate
Concurrent Resolution No. 14 and House Concurrent Resolution No. 33, calling
both Houses of the Congress to convene in joint session on December 9, 2009 at
4:00 p.m. at the Session Hall of the House of Representatives to deliberate on
Proclamation No. 1959. It appears then that the two Houses of the Congress in
2009 also initially took separate actions on President Macapagal-Arroyo's
Proclamation No. 1959, with the Senate eventually adopting Resolution No. 217,
expressing outright its sense that the proclamation of ma11ial law was
unconstitutional and necessarily implying that such proclamation should be
revoked. With one of the Houses favoring revocation, and in observation of the
established practice of the Congress, the two Houses adopted concurrent
resolutions to convene in joint session to vote on the revocation of Proclamation
No. 1959.
For the same reason, the Fortun case cannot be deemed a judicial precedent for
the present cases. The factual background of the Fortun case is not on all fours
with these cases. Once more, the Court points out that in the Fortun case, the
Senate expressed through Resolution No. 217 its objection to President
Macapagal-Arroyo's Proclamation No. 1959 for being unconstitutional, and both
the Senate and the House of Representatives adopted concurrent resolutions to
convene in joint session for the purpose of revoking said proclamation; while in the
cases at bar, the Senate and the House of Representatives adopted Senate
Resolution No. 49 and House Resolution No. 1050, respectively, which expressed
support for President Duterte's Proclamation No. 216, and both Houses of the
Congress voted against calling for a joint session. In addition, the fundamental
issue in the Fortun case was whether there was factual basis for Proclamation No.
1959 and not whether it was mandatory for the Congress to convene in joint
session; and even before the Congress could vote on the revocation of
Proclamation No. 1959 and the Court could resolve the Fortun case, President
Macapagal-Arroyo already issued Proclamation No. 1963 on December 12, 2009,
entitled "Proclaiming the Termination of the State of Martial Law and the
Restoration of the Privilege of the Writ of Habeas Corpus in the Province of
Maguindanao." Furthermore, the word "automatic" in the Fortun case referred to
the duty or power of the Congress to review the proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus, rather than the joint
session of Congress.83
Petitioners invoke the following provision also in Article VII, Section 18 of the 1987
Constitution: "The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension convene in accordance with its rules
without call." Petitioners reason that if the Congress is not in session, it is
constitutionally mandated to convene within twenty-four (24) hours from the
President's proclamation of martial law and/or suspension of the privilege of the
writ of habeas corpus, then it is with all the more reason required to convene
immediately if in session.
The Court is not persuaded.
First, the provision specially addresses the situation when the President proclaims
martial law and/or suspends the privilege of the writ of habeas corpus while the
Congress is in recess. To ensure that the Congress will be able to act swiftly on
the proclamation and/or suspension, the 1987 Constitution provides that it should
convene within twenty-four (24) hours without need for call. It is a whole different
situation when the Congress is still in session as it can readily take up the
proclamation and/or suspension in the course of its regular sessions, as what
happened in these cases. Second, the provision only requires that the Congress
convene without call, but it does not explicitly state that the Congress shall already
convene in joint session. In fact, the provision actually states that the Congress
"convene in accordance with its rules," which can only mean the respective rules
of each House as there are no standing rules for joint sessions. And third, it cannot
be said herein that the Congress failed to convene immediately to act on
Proclamation No. 216. Both Houses of the Congress promptly took action on
Proclamation No. 216, with the Senate already issuing invitations to executive
officials even prior to receiving President Duterte's Report, except that the two
Houses of the Congress acted separately. By initially undertaking separate actions
on President Duterte's Proclamation No. 216 and making their respective
determination of whether to support or revoke said Proclamation, the Senate and
the House of Representatives were only acting in accordance with their own rules
of procedure and were not in any way remiss in their constitutional duty to guard
against a baseless or unjustified proclamation of martial law and/or suspension of
the privilege of the writ of habeas corpus by the President.
There is likewise no basis for petitioners' assertion that without a joint session, the
public cannot hold the Senators and Representatives accountable for their
respective positions on President Duterte's Proclamation No. 216. Senate records
completely chronicled the deliberations and the voting by the Senators on Senate
Resolution No. 49 (formerly P.S. Resolution No. 388) and P.S. Resolution No. 390.
While it is true that the House of Representatives voted on House Resolution No.
1050 viva voce, this is only in accordance with its rules. Per the Rules of the
House of Representatives:
RULE XV
Voting
Sec. 115. Manner of Voting. -The Speaker shall rise and state the motion or
question that is being put to a vote in clear, precise and simple language. The
Speaker shall say "as many as are in favor, (as the question may
be) say 'aye'". After the affirmative vote is counted, the Speaker shall say "as many
as are opposed, (as the question may be) say 'nay"'.
If the Speaker doubts the result of the voting or a motion to divide the House is
Carried, the House shall divide. The Speaker shall ask those in favor to rise, to be
followed by those against. If still in doubt of the outcome or a count by tellers is
demanded, the Speaker shall name one (1) Member from each side of the
question to count the Members in the affirmative and those in the negative. After
the count is reported, the Speaker shall announce the result.
An abstention shall not be counted as a vote. Unless otherwise provided by the
Constitution or by these rules, a majority of those voting, there being a quorum,
shall decide the issue.
Sec. 116. Nominal Voting. - Upon motion of a Member, duly approved by one-fifth
(1/5) of the Members present, there being a quorum, nominal voting on any
question may be called. In case of nominal voting, the Secretary General shall call,
in alphabetical order, the nan1es of the Members who shall state their vote as their
names are called.
Sec. 117. Second Call on Nominal Voting. - A second call on nominal voting shall
be made to allow Members who did not vote during the first call to
vote.1avvphi1 Members who fail to vote during the second call shall no longer be
allowed to vote.
Since no one moved for nominal voting on House Resolution No. 1050, then the
votes of the individual Representatives cannot be determined. It does not render
though the proceedings unconstitutional or invalid.
The Congress did not violate the right of the
public to information when it did not
convene in joint session.
The Court is not swayed by petitioners' argument that by not convening in joint
session, the Congress violated the public's right to information because as records
show, the Congress still conducted deliberations on President Duterte's
Proclamation No. 216, albeit separately; and the public's right to information on
matters of national security is not absolute. When such matters are being taken up
in the Congress, whether in separate or joint sessions, the Congress has
discretion in the manner the proceedings will be conducted.
Petitioners contend that the Constitution requires a public deliberation process on
the proclamation of martial law: one that is conducted via a joint session and by a
single body. They insist that the Congress must be transparent, such that there is
an "open and robust debate," where the evaluation of the proclamation's factual
bases and subsequent implementation shall be openly discussed and where each
member's position on the issue is heard and made known to the public.
The petitioners' insistence on the conduct of a "joint session" contemplates a
mandatory joint Congressional session where public viewing is allowed.
However, based on their internal rules, each House has the discretion over the
manner by which Congressional proceedings are to be conducted. Verily, sessions
are generally open to the public,84 but each House may decide to hold an
executive session due to the confidential nature of the subject matter to be
discussed and deliberated upon.
Rule XI of the Rules of the House of Representatives provides:
Section 82. Sessions Open to the Public. - Sessions shall be open to the public.
However, when the security of the State or the dignity of the House or any of its
Members are affected by any motion or petition being considered, the House may
hold executive sessions.
Guests and visitors in the galleries are prohibited from using their cameras and
video recorders. Cellular phones and other similar electronic devices shall be put
in silent mode.
Section 83. Executive Sessions. - When the House decides to hold an executive
session, the Speaker shall direct the galleries and hallways to be cleared and the
doors closed. Only the Secretary General, the Sergeant-at- Arms and other
persons specifically authorized by the House shall be admitted to the executive
session. They shall preserve the confidentiality of everything read or discussed in
the session. (Emphasis supplied.)
Rule XLVII of the Rules of the Senate similarly sets forth the following:
SEC. 126. The executive sessions of the Senate shall be held always behind
closed doors. In such sessions, only the Secretary, the Sergeant-at-Arms, and/or
such other persons as may be authorized by the Senate may be admitted to the
session hall.
SEC. 127. Executive sessions shall be held whenever a Senator so requests it and
his petition has been duly seconded, or when the security of the State or public
interest so requires. Thereupon, the President shall order that the public be
excluded from the gallery and the doors of the session hall be closed.
The Senator who presented the motion shall then explain the reasons which he
had for submitting the same.
The minutes of the executive sessions shall be recorded m a separate book.
(Emphasis supplied)
From afore-quoted rules, it is clear that matters affecting the security of the state
are considered confidential and must be discussed and deliberated upon in an
executive session, excluding the public therefrom.
That these matters are considered confidential is in accordance with settled
jurisprudence that, in the exercise of their right to information, the government may
withhold certain types of information from the public such as state secrets
regarding military, diplomatic, and other national security matters.85 The Court has
also ruled that the Congress' deliberative process, including information discussed
and deliberated upon in an executive session,86may be kept out of the public's
reach.
The Congress not only recognizes the sensitivity of these matters but also
endeavors to preserve their confidentiality. In fact, Rule XL VII, Section 12887 of
the Rules of the Senate expressly establishes a secrecy ban prohibiting all its
members, including Senate officials and employees, from divulging any of the
confidential matters taken up by the Senate. A Senator found to have violated this
ban faces the possibility of expulsion from his office.88This is consistent with the
Ethical Standards Act89 that prohibits public officials and employees from using or
divulging "confidential or classified information officially known to them by reason
of their office and not made available to the public." 90
Certainly, the factual basis of the declaration of martial law involves intelligence
information, military tactics, and other sensitive matters that have an undeniable
effect on national security. Thus, to demand Congress to hold a public session
during which the legislators shall openly discuss these matters, all the while under
public scrutiny, is to effectively compel them to make sensitive information
available to everyone, without exception, and to breach the recognized policy of
preserving these matters' confidentiality, at the risk of being sanctioned, penalized,
or expelled from Congress altogether.
That these are the separate Rules of the two Houses of the Congress does not
take away from their persuasiveness and applicability in the event of a joint
session.1âwphi1 Since both Houses separately recognize the policy of preserving
the confidentiality of national security matters, then in all likelihood, they will
consistently observe the same in a joint session. The nature of these matters as
confidential is not affected by the composition of the body that will deliberate upon
it - whether it be the two Houses of the Congress separately or in joint session.
Also, the petitioners' theory that a regular session must be preferred over a mere
briefing for purposes of ensuring that the executive and military officials are placed
under oath does not have merit. The Senate Rules of Procedure Governing
Inquiries In Aid of Legislation91 require that all witnesses at executive sessions or
public hearings who testify as to matters of fact shall give such testimony under
oath or affirmation. The proper implementation of this rule is within the Senate's
competence, which is beyond the Court's reach.
Propriety of the issuance of a writ of
mandamus or certiorari
For mandamus to lie, there must be compliance with Rule 65, Section 3, Rules of
Court, to wit:
SECTION 3. Petition for mandamus. - When any tribunal, corporation, board,
officer or person unlawfully neglects the perfom1ance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and praying that judgment be
rendered commanding the respondent, immediately or at some other time to be
specified by the court, to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent,
Jurisprudence has laid down the following requirements for a petition
for mandamus to prosper:
[T]hus, a petition for mandamus will prosper if it is shown that the subject thereof is
a ministerial act or duty, and not purely discretionary on the part of the board,
officer or person, and that the petitioner has a well-defined, clear and certain right
to warrant the grant thereof.
The difference between a ministerial and discretionary act has long been
established. A purely ministerial act or duty is one which an officer or tribunal
performs in a given state of facts, in a prescribed manner, in obedience to the
mandate of a legal authority, without regard to or the exercise of his own judgment
upon the propriety or impropriety of the act done. If the law imposes a duty upon a
public officer and gives him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial. The duty is ministerial
only when the discharge of the same requires neither the exercise of official
discretion or judgment.92 (Emphases added.)
It is essential to the issuance of a writ of mandamus that petitioner should have a
clear legal right to the thing demanded and it must be the imperative duty of the
respondent to perform the act required. Mandamus never issues in doubtful cases.
While it may not be necessary that the ministerial duty be absolutely expressed, it
must however, be clear. The writ neither confers powers nor imposes duties. It is
simply a command to exercise a power already possessed and to perform a duty
already imposed.93
Although there are jurisprudential examples of the Court issuing a writ
of mandamus to compel the fulfillment of legislative duty,94 we must distinguish the
present controversy with those previous cases. In this particular instance, the
Court has no authority to compel the Senate and the House of Representatives to
convene in joint session absent a clear ministerial duty on its part to do so under
the Constitution and in complete disregard of the separate actions already
undertaken by both Houses on Proclamation No. 216, including their respective
decisions to no longer hold a joint session, considering their respective resolutions
not to revoke said Proclamation.
In the same vein, there is no cause for the Court to grant a writ of certiorari.
As earlier discussed, under the Court's expanded jurisdiction, a petition
for certiorari is a proper remedy to question the act of any branch or instrumentality
of the government on the ground of grave abuse of discretion amounting to lack or
excess of jurisdiction by any branch or instrumentality of the government, even if
the latter does not exercise judicial, quasi-judicial or ministerial functions.95 Grave
abuse of discretion implies such capricious and whimsical exercise of judgment as
to be equivalent to lack or excess of jurisdiction; in other words, power is exercised
in an arbitrary or despotic manner by reason of passion, prejudice, or personal
hostility; and such exercise is so patent or so gross as to amount to an evasion of
a positive duty or to a virtual refusal either to perform the duty enjoined or to act at
all in contemplation of law.96 It bears to mention that to pray in one petition for the
issuance of both a writ of mandamus and a writ of certiorari for the very same act -
which, in the Tañada Petition, the non-convening by the two Houses of the
Congress in joint session - is contradictory, as the former involves a mandatory
duty which the government branch or instrumentality must perform without
discretion, while the latter recognizes discretion on the part of the government
branch or instrumentality but which was exercised arbitrarily or despotically.
Nevertheless, if the Court is to adjudge the petition for certiorari alone, it still finds
the same to be without merit. To reiterate, the two Houses of the Congress
decided to no longer hold a joint session only after deliberations among their
Members and putting the same to vote, in accordance with their respective rules of
procedure. Premises considered, the Congress did not gravely abuse its discretion
when it did not jointly convene upon the President's issuance of Proclamation No.
216 prior to expressing its concurrence thereto.
WHEREFORE, the petitions are DISMISSED for lack of merit.
SO ORDERED.
B. PREROGATIVE WRITS
G.R. No. 182484 June 17, 2008
DANIEL MASANGKAY TAPUZ, AURORA TAPUZ-MADRIAGA, LIBERTY M.
ASUNCION, LADYLYN BAMOS MADRIAGA, EVERLY TAPUZ MADRIAGA,
EXCEL TAPUZ, IVAN TAPUZ AND MARIAN TIMBAS, petitioners,
vs.
HONORABLE JUDGE ELMO DEL ROSARIO, in his capacity as Presiding
Judge of RTC Br. 5 Kalibo, SHERIFF NELSON DELA CRUZ, in his capacity as
Sheriff of the RTC, THE PHILIPPINE NATIONAL POLICE stationed in Boracay
Island, represented by the PNP STATION COMMANDER, THE HONORABLE
COURT OF APPEALS IN CEBU 18th DIVISION, SPOUSES GREGORIO
SANSON & MA. LOURDES T. SANSON,respondents.
RESOLUTION
BRION, J.:
Before us for the determination of sufficiency of form and substance (pursuant to
Sections 1 and 4 of Rule 65 of the Revised Rules of Court; Sections 1 and 5 of
the Rule on the Writ of Amparo;1 and Sections 1 and 6 of the Rule on the Writ of
Habeas Data2) is the petition for certiorari and for the issuance of the writs of
amparo and habeas data filed by the above-named petitioners against the
Honorable Judge Elmo del Rosario [in his capacity as presiding judge of RTC Br.
5, Kalibo], Sheriff Nelson de la Cruz [in his capacity as Sheriff of the RTC], the
Philippine National Police stationed in Boracay Island, represented by the PNP
Station Commander, the Honorable Court of Appeals in Cebu, 18th Division, and
the spouses Gregorio Sanson and Ma. Lourdes T. Sanson, respondents.
The petition and its annexes disclose the following material antecedents:
The private respondents spouses Gregorio Sanson and Ma. Lourdes T. Sanson
(the "private respondents"), filed with the Fifth Municipal Circuit Trial Court of
Buruanga-Malay, Aklan (the "MCTC") a complaint3 dated 24 April 2006 for forcible
entry and damages with a prayer for the issuance of a writ of preliminary
mandatory injunction against the petitioners Daniel Masangkay Tapuz, Aurora
Tapuz-Madriaga, Liberty M. Asuncion, Ladylyn Bamos Madriaga, Everly Tapuz
Madriaga, Excel Tapuz, Ivan Tapuz and Marian Timbas (the "petitioners") and
other John Does numbering about 120. The private respondents alleged in their
complaint that: (1) they are the registered owners under TCT No. 35813 of a
1.0093-hectare parcel of land located at Sitio Pinaungon, Balabag, Boracay,
Malay, Aklan (the "disputed land"); (2) they were the disputed land's prior
possessors when the petitioners - armed with bolos and carrying suspected
firearms and together with unidentified persons numbering 120 - entered the
disputed land by force and intimidation, without the private respondents'
permission and against the objections of the private respondents' security men,
and built thereon a nipa and bamboo structure.
In their Answer4 dated 14 May 2006, the petitioners denied the material allegations
of the complaint. They essentially claimed that: (1) they are the actual and prior
possessors of the disputed land; (2) on the contrary, the private respondents are
the intruders; and (3) the private respondents' certificate of title to the disputed
property is spurious. They asked for the dismissal of the complaint and interposed
a counterclaim for damages.
The MCTC, after due proceedings, rendered on 2 January 2007 a decision5 in the
private respondents' favor. It found prior possession - the key issue in forcible
entry cases - in the private respondents' favor, thus:
"The key that could unravel the answer to this question lies in the Amended
Commissioner's Report and Sketch found on pages 245 to 248 of the records and
the evidence the parties have submitted. It is shown in the Amended
Commissioner's Report and Sketch that the land in question is enclosed by a
concrete and cyclone wire perimeter fence in pink and green highlighter as shown
in the Sketch Plan (p. 248). Said perimeter fence was constructed by the plaintiffs
14 years ago. The foregoing findings of the Commissioner in his report and sketch
collaborated the claim of the plaintiffs that after they acquired the land in question
on May 27, 1993 through a Deed of Sale (Annex 'A', Affidavit of Gregorio Sanson,
p. 276, rec.), they caused the construction of the perimeter fence sometime in
1993 (Affidavit of Gregorio Sanson, pp. 271-275, rec.).
From the foregoing established facts, it could be safely inferred that the plaintiffs
were in actual physical possession of the whole lot in question since 1993 when it
was interrupted by the defendants (sic) when on January 4, 2005 claiming to (sic)
the Heirs of Antonio Tapuz entered a portion of the land in question with view of
inhabiting the same and building structures therein prompting plaintiff Gregorio
Sanson to confront them before BSPU, Police Chief Inspector Jack L. Wanky and
Barangay Captain Glenn Sacapaño. As a result of their confrontation, the parties
signed an Agreement (Annex 'D', Complaint p. 20) wherein they agreed to vacate
the disputed portion of the land in question and agreed not to build any structures
thereon.
The foregoing is the prevailing situation of the parties after the incident of January
4, 2005 when the plaintiff posted security guards, however, sometime on or about
6:30 A.M. of April 19, 2006, the defendants some with bolos and one carrying a
sack suspected to contain firearms with other John Does numbering about 120
persons by force and intimidation forcibly entered the premises along the road and
built a nipa and bamboo structure (Annex 'E', Complaint, p. 11) inside the lot in
question which incident was promptly reported to the proper authorities as shown
by plaintiffs' Certification (Annex 'F', Complaint, p. 12) of the entry in the police
blotter and on same date April 19, 2006, the plaintiffs filed a complaint with the
Office of the Lupong Tagapamayapa of Barangay Balabag, Boracay Island, Malay,
Aklan but no settlement was reached as shown in their Certificate to File Action
(Annex 'G', Complaint, p. 13); hence the present action.
Defendants' (sic) contend in their answer that 'prior to January 4, 2005, they were
already occupants of the property, being indigenous settlers of the same, under
claim of ownership by open continuous, adverse possession to the exclusion of
other (sic)'. (Paragraph 4, Answer, p. 25).
The contention is untenable. As adverted earlier, the land in question is enclosed
by a perimeter fence constructed by the plaintiffs sometime in 1993 as noted by
the Commissioner in his Report and reflected in his Sketch, thus, it is safe to
conclude that the plaintiffs where (sic) in actual physical possession of the land in
question from 1993 up to April 19, 2006 when they were ousted therefrom by the
defendants by means of force. Applying by analogy the ruling of the Honorable
Supreme Court in the case of Molina, et al. vs. De Bacud, 19 SCRA 956, if the
land were in the possession of plaintiffs from 1993 to April 19, 2006, defendants'
claims to an older possession must be rejected as untenable because possession
as a fact cannot be recognized at the same time in two different personalities.
Defendants likewise contend that it was the plaintiffs who forcibly entered the land
in question on April 18, 2006 at about 3:00 o'clock in the afternoon as shown in
their Certification (Annex 'D', Defendants' Position Paper, p. 135, rec.).
The contention is untenable for being inconsistent with their allegations made to
the commissioner who constituted (sic) the land in question that they built
structures on the land in question only on April 19, 2006 (Par. D.4, Commissioner's
Amended Report, pp. 246 to 247), after there (sic) entry thereto on even date.
Likewise, said contention is contradicted by the categorical statements of
defendants' witnesses, Rowena Onag, Apolsida Umambong, Ariel Gac, Darwin
Alvarez and Edgardo Pinaranda, in their Joint Affidavit (pp. 143- '144, rec.) [sic]
categorically stated 'that on or about April 19, 2006, a group of armed men entered
the property of our said neighbors and built plastic roofed tents. These armed men
threatened to drive our said neighbors away from their homes but they refused to
leave and resisted the intruding armed men'.
From the foregoing, it could be safely inferred that no incident of forcible entry
happened on April 18, 2006 but it was only on April 19, 2006 when the defendants
overpowered by their numbers the security guards posted by the plaintiffs prior to
the controversy.
Likewise, defendants (sic) alleged burnt and other structures depicted in their
pictures attached as annexes to their position paper were not noted and reflected
in the amended report and sketch submitted by the Commissioner, hence, it could
be safely inferred that these structures are built and (sic) situated outside the
premises of the land in question, accordingly, they are irrelevant to the instant case
and cannot be considered as evidence of their actual possession of the land in
question prior to April 19, 20066."
The petitioners appealed the MCTC decision to the Regional Trial Court ("RTC,"
Branch 6 of Kalibo, Aklan) then presided over by Judge Niovady M. Marin ("Judge
Marin").
On appeal, Judge Marin granted the private respondents' motion for the issuance
of a writ of preliminary mandatory injunction through an Order dated 26 February
2007, with the issuance conditioned on the private respondents' posting of a bond.
The writ7 - authorizing the immediate implementation of the MCTC decision - was
actually issued by respondent Judge Elmo F. del Rosario (the "respondent Judge")
on 12 March 2007 after the private respondents had complied with the imposed
condition. The petitioners moved to reconsider the issuance of the writ; the private
respondents, on the other hand, filed a motion for demolition.
The respondent Judge subsequently denied the petitioners' Motion for
Reconsideration and to Defer Enforcement of Preliminary Mandatory Injunction in
an Order dated 17 May 20078.
Meanwhile, the petitioners opposed the motion for demolition.9 The respondent
Judge nevertheless issued via a Special Order10 a writ of demolition to be
implemented fifteen (15) days after the Sheriff's written notice to the petitioners to
voluntarily demolish their house/s to allow the private respondents to effectively
take actual possession of the land.
The petitioners thereafter filed on 2 August 2007 with the Court of Appeals, Cebu
City, a Petition for Review11(under Rule 42 of the 1997 Rules of Civil Procedure) of
the Permanent Mandatory Injunction and Order of Demolition of the RTC of
Kalibo, Br. 6 in Civil Case No. 7990.
Meanwhile, respondent Sheriff Nelson R. dela Cruz issued the Notice to Vacate
and for Demolition on 19 March 2008.12
It was against this factual backdrop that the petitioners filed the present petition
last 29 April 2008. The petition contains and prays for three remedies, namely: a
petition for certiorari under Rule 65 of the Revised Rules of Court; the issuance of
a writ of habeas data under the Rule on the Writ of Habeas Data; and finally, the
issuance of the writ of amparo under the Rule on the Writ of Amparo.
To support the petition and the remedies prayed for, the petitioners present factual
positions diametrically opposed to the MCTC's findings and legal reasons. Most
importantly, the petitioners maintain their claims of prior possession of the disputed
land and of intrusion into this land by the private respondents. The material factual
allegations of the petition - bases as well of the petition for the issuance of the writ
of amparo - read:
"29. On April 29, 2006 at about 9:20 a.m. armed men sporting 12 gauge shot
guns intruded into the property of the defendants [the land in dispute]. They
were not in uniform. They fired their shotguns at the defendants. Later the
following day at 2:00 a.m. two houses of the defendants were burned to ashes.
30. These armed men [without uniforms] removed the barbed wire fence put up by
defendants to protect their property from intruders. Two of the armed men trained
their shotguns at the defendants who resisted their intrusion. One of them who was
identified as SAMUEL LONGNO y GEGANSO, 19 years old, single, and a resident
of Binun-an, Batad, Iloilo, fired twice.
31. The armed men torched two houses of the defendants reducing them to
ashes. [...]
32. These acts of TERRORISM and (heinous crime) of ARSON were reported
by one of the HEIRS OF ANTONIO TAPUZ [...]. The terrorists trained their
shotguns and fired at minors namely IVAN GAJISAN and MICHAEL
MAGBANUA, who resisted their intrusion. Their act is a blatant violation of
the law penalizing Acts of Violence against women and children, which is
aggravated by the use of high-powered weapons.
[…]
34. That the threats to the life and security of the poor indigent and unlettered
petitioners continue because the private respondents Sansons have under their
employ armed men and they are influential with the police authorities owing to their
financial and political clout.
35. The actual prior occupancy, as well as the ownership of the lot in dispute by
defendants and the atrocities of the terrorists [introduced into the property in
dispute by the plaintiffs] are attested by witnesses who are persons not related to
the defendants are therefore disinterested witnesses in the case namely: Rowena
Onag, Apolsida Umambong, Ariel Gac, Darwin Alvarez and Edgardo Penarada.
Likewise, the affidavit of Nemia T. Carmen is submitted to prove that the plaintiffs
resorted to atrocious acts through hired men in their bid to unjustly evict the
defendants.13"
The petitioners posit as well that the MCTC has no jurisdiction over the complaint
for forcible entry that the private respondents filed below. Citing Section 33 of The
Judiciary Reorganization Act of 1980, as amended by Republic Act No.
7691,14 they maintain that the forcible entry case in fact involves issues of title to or
possession of real property or an interest therein, with the assessed value of the
property involved exceeding P20,000.00; thus, the case should be originally
cognizable by the RTC. Accordingly, the petitioners reason out that the RTC - to
where the MCTC decision was appealed - equally has no jurisdiction to rule on the
case on appeal and could not have validly issued the assailed orders.
OUR RULING
We find the petitions for certiorari and issuance of a writ of habeas data
fatally defective, both in substance and in form. The petition for the issuance
of the writ of amparo, on the other hand, is fatally defective with respect to
content and substance.
The Petition for Certiorari
We conclude, based on the outlined material antecedents that led to the petition,
that the petition for certiorari to nullify the assailed RTC orders has been filed out
of time. It is not lost on us that the petitioners have a pending petition with the
Court of Appeals (the "CA petition") for the review of the same RTC orders now
assailed in the present petition, although the petitioners never disclosed in the
body of the present petition the exact status of their pending CA petition. The CA
petition, however, was filed with the Court of Appeals on 2 August 2007, which
indicates to us that the assailed orders (or at the very least, the latest of the
interrelated assailed orders) were received on 1 August 2007 at the latest. The
present petition, on the other hand, was filed on April 29, 2008 or more than eight
months from the time the CA petition was filed. Thus, the present petition is
separated in point of time from the assumed receipt of the assailed RTC orders by
at least eight (8) months, i.e., beyond the reglementary period of sixty (60)
days15 from receipt of the assailed order or orders or from notice of the denial of a
seasonably filed motion for reconsideration.
We note in this regard that the petitioners' counsel stated in his attached
"Certificate of Compliance with Circular #1-88 of the Supreme Court"16 ("Certificate
of Compliance") that "in the meantime the RTC and the Sheriff issued a NOTICE
TO VACATE AND FOR DEMOLITION not served to counsel but to the petitioners
who sent photo copy of the same NOTICE to their counsel on April 18, 2008 by
LBC." To guard against any insidious argument that the present petition is timely
filed because of this Notice to Vacate, we feel it best to declare now that the
counting of the 60-day reglementary period under Rule 65 cannot start from the
April 18, 2008 date cited by the petitioners' counsel. The Notice to Vacate and for
Demolition is not an order that exists independently from the RTC orders assailed
in this petition and in the previously filed CA petition. It is merely a notice, made in
compliance with one of the assailed orders, and is thus an administrative
enforcement medium that has no life of its own separately from the assailed order
on which it is based. It cannot therefore be the appropriate subject of an
independent petition for certiorari under Rule 65 in the context of this case. The
April 18, 2008 date cannot likewise be the material date for Rule 65 purposes as
the above-mentioned Notice to Vacate is not even directly assailed in this petition,
as the petition's Prayer patently shows.17
Based on the same material antecedents, we find too that the petitioners have
been guilty of willful and deliberate misrepresentation before this Court and, at the
very least, of forum shopping.
By the petitioners' own admissions, they filed a petition with the Court of Appeals
(docketed as CA - G.R. SP No. 02859) for the review of the orders now also
assailed in this petition, but brought the present recourse to us, allegedly because
"the CA did not act on the petition up to this date and for the petitioner (sic) to seek
relief in the CA would be a waste of time and would render the case moot and
academic since the CA refused to resolve pending urgent motions and the Sheriff
is determined to enforce a writ of demolition despite the defect of LACK OF
JURISDICTION."18
Interestingly, the petitioners' counsel - while making this claim in the body of the
petition - at the same time represented in his Certificate of Compliance19 that:
"x x x
(e) the petitioners went up to the Court of Appeals to question the WRIT OF
PRELIMINARY INJUNCTION copy of the petition is attached (sic);
(f) the CA initially issued a resolution denying the PETITION because it held
that the ORDER TO VACATE AND FOR DEMOLITION OF THE HOMES OF
PETITIONERS is not capable of being the subject of a PETITION FOR
RELIEF, copy of the resolution of the CA is attached hereto; (underscoring
supplied)
(g) Petitioners filed a motion for reconsideration on August 7, 2007 but up to this
date the same had not been resolved copy of the MR is attached (sic).
x x x"
The difference between the above representations on what transpired at the
appellate court level is replete with significance regarding the petitioners'
intentions. We discern -- from the petitioners' act of misrepresenting in the body of
their petition that "the CA did not act on the petition up to this date" while stating
the real Court of Appeals action in the Certification of Compliance -- the intent to
hide the real state of the remedies the petitioners sought below in order to mislead
us into action on the RTC orders without frontally considering the action that the
Court of Appeals had already undertaken.
At the very least, the petitioners are obviously seeking to obtain from us, via the
present petition, the same relief that it could not wait for from the Court of Appeals
in CA-G.R. SP No. 02859. The petitioners' act of seeking against the same
parties the nullification of the same RTC orders before the appellate court and
before us at the same time, although made through different mediums that are
both improperly used, constitutes willful and deliberate forum shopping that can
sufficiently serve as basis for the summary dismissal of the petition under the
combined application of the fourth and penultimate paragraphs of Section 3, Rule
46; Section 5, Rule 7; Section 1, Rule 65; and Rule 56, all of the Revised Rules of
Court. That a wrong remedy may have been used with the Court of Appeals and
possibly with us will not save the petitioner from a forum-shopping violation where
there is identity of parties, involving the same assailed interlocutory orders, with
the recourses existing side by side at the same time.
To restate the prevailing rules, "forum shopping is the institution of two or more
actions or proceedings involving the same parties for the same cause of action,
either simultaneously or successively, on the supposition that one or the other
court would make a favorable disposition. Forum shopping may be resorted to by
any party against whom an adverse judgment or order has been issued in one
forum, in an attempt to seek a favorable opinion in another, other than by appeal or
a special civil action for certiorari. Forum shopping trifles with the courts, abuses
their processes, degrades the administration of justice and congest court dockets.
Willful and deliberate violation of the rule against it is a ground for summary
dismissal of the case; it may also constitute direct contempt."20
Additionally, the required verification and certification of non-forum shopping is
defective as one (1) of the seven (7) petitioners - Ivan Tapuz - did not sign, in
violation of Sections 4 and 5 of Rule 7; Section 3, Rule 46; Section 1, Rule 65; all
in relation with Rule 56 of the Revised Rules of Court. Of those who signed, only
five (5) exhibited their postal identification cards with the Notary Public.
In any event, we find the present petition for certiorari, on its face and on the basis
of the supporting attachments, to be devoid of merit. The MCTC correctly assumed
jurisdiction over the private respondents' complaint, which specifically alleged a
cause for forcible entry and not - as petitioners may have misread or
misappreciated - a case involving title to or possession of realty or an interest
therein. Under Section 33, par. 2 of The Judiciary Reorganization Act, as amended
by Republic Act (R.A.) No. 7691, exclusive jurisdiction over forcible entry and
unlawful detainer cases lies with the Metropolitan Trial Courts, Municipal Trial
Courts and Municipal Circuit Trial Courts. These first-level courts have had
jurisdiction over these cases - called accion interdictal - even before the R.A. 7691
amendment, based on the issue of pure physical possession (as opposed to
the right of possession). This jurisdiction is regardless of the assessed value of the
property involved; the law established no distinctions based on the assessed value
of the property forced into or unlawfully detained. Separately from accion
interdictalare accion publiciana for the recovery of the right of possession as a
plenary action, and accion reivindicacion for the recovery of
ownership.21 Apparently, these latter actions are the ones the petitioners refer to
when they cite Section 33, par. 3, in relation with Section 19, par. 2 of The
Judiciary Reorganization Act of 1980, as amended by Republic Act No. 7691, in
which jurisdiction may either be with the first-level courts or the regional trial
courts, depending on the assessed value of the realty subject of the litigation. As
the complaint at the MCTC was patently for forcible entry, that court committed no
jurisdictional error correctible by certiorari under the present petition.
In sum, the petition for certiorari should be dismissed for the cited formal
deficiencies, for violation of the non-forum shopping rule, for having been
filed out of time, and for substantive deficiencies.
The Writ of Amparo
To start off with the basics, the writ of amparo was originally conceived as a
response to the extraordinary rise in the number of killings and enforced
disappearances, and to the perceived lack of available and effective remedies to
address these extraordinary concerns. It is intended to address violations of or
threats to the rights to life, liberty or security, as an extraordinary and independent
remedy beyond those available under the prevailing Rules, or as a remedy
supplemental to these Rules. What it is not, is a writ to protect concerns that
are purely property or commercial. Neither is it a writ that we shall issue on
amorphous and uncertain grounds. Consequently, the Rule on the Writ of
Amparo - in line with the extraordinary character of the writ and the reasonable
certainty that its issuance demands - requires that every petition for the issuance
of the Pwrit must be supported by justifying allegations of fact, to wit:
"(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible for the
threat, act or omission, or, if the name is unknown or uncertain, the respondent
may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals,
as well as the manner and conduct of the investigation, together with any
report;
(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs."22
The writ shall issue if the Court is preliminarily satisfied with the prima facie
existence of the ultimate facts determinable from the supporting affidavits that
detail the circumstances of how and to what extent a threat to or violation of the
rights to life, liberty and security of the aggrieved party was or is being committed.
The issuance of the writ of amparo in the present case is anchored on the factual
allegations heretofore quoted,23that are essentially repeated in paragraph 54 of the
petition. These allegations are supported by the following documents:
"(a) Joint Affidavit dated 23 May 2006 of Rowena B. Onag, Apolsida Umambong,
Ariel Gac, Darwin Alvarez and Edgardo Pinaranda, supporting the factual positions
of the petitioners, id., petitioners' prior possession, private respondents' intrusion
and the illegal acts committed by the private respondents and their security guards
on 19 April 2006;
(b) Unsubscribed Affidavit of Nemia Carmen y Tapuz, alleging the illegal acts
(firing of guns, etc.) committed by a security guard against minors - descendants of
Antonio Tapuz;
(c) Unsubscribed Affidavit of Melanie Tapuz y Samindao, essentially corroborating
Nemia's affidavit;
(d) Certification dated 23 April 2006 issued by Police Officer Jackson Jauod
regarding the incident of petitioners' intrusion into the disputed land;
(e) Certification dated 27 April 2006 issued by Police Officer Allan R. Otis,
narrating the altercation between the Tapuz family and the security guards of the
private respondents, including the gun-poking and shooting incident involving one
of the security guards;
(f) Certification issued by Police Officer Christopher R. Mendoza, narrating that a
house owned by Josiel Tapuz, Jr., rented by a certain Jorge Buenavente,
was accidentally burned by a fire."
On the whole, what is clear from these statements - both sworn and unsworn - is
the overriding involvement of property issues as the petition traces its roots to
questions of physical possession of the property disputed by the private parties. If
at all, issues relating to the right to life or to liberty can hardly be discerned except
to the extent that the occurrence of past violence has been alleged. The right to
security, on the other hand, is alleged only to the extent of the threats and
harassments implied from the presence of "armed men bare to the waist" and the
alleged pointing and firing of weapons. Notably, none of the supporting
affidavits compellingly show that the threat to the rights to life, liberty and
security of the petitioners is imminent or is continuing.
A closer look at the statements shows that at least two of them - the statements of
Nemia Carreon y Tapuz and Melanie Tapuz are practically identical and unsworn.
The Certification by Police Officer Jackson Jauod, on the other hand, simply
narrates what had been reported by one Danny Tapuz y Masangkay, and even
mentions that the burning of two residential houses was "accidental."
As against these allegations are the cited MCTC factual findings in its decision in
the forcible entry case which rejected all the petitioners' factual claims. These
findings are significantly complete and detailed, as they were made under a full-
blown judicial process, i.e., after examination and evaluation of the contending
parties' positions, evidence and arguments and based on the report of a court-
appointed commissioner.
We preliminarily examine these conflicting factual positions under the backdrop of
a dispute (with incidents giving rise to allegations of violence or threat thereof) that
was brought to and ruled upon by the MCTC; subsequently brought to the
RTC on an appeal that is still pending; still much later brought to the appellate
court without conclusive results; and then brought to us on interlocutory incidents
involving a plea for the issuance of the writ of amparo that, if decided as the
petitioners advocate, may render the pending RTC appeal moot.
Under these legal and factual situations, we are far from satisfied with the prima
facie existence of the ultimate facts that would justify the issuance of a writ of
amparo. Rather than acts of terrorism that pose a continuing threat to
the persons of the petitioners, the violent incidents alleged appear to us to be
purely property-related and focused on the disputed land. Thus, if the petitioners
wish to seek redress and hold the alleged perpetrators criminally accountable, the
remedy may lie more in the realm of ordinary criminal prosecution rather than on
the use of the extraordinary remedy of the writ of amparo.
Nor do we believe it appropriate at this time to disturb the MCTC findings, as our
action may carry the unintended effect, not only of reversing the MCTC ruling
independently of the appeal to the RTC that is now in place, but also of nullifying
the ongoing appeal process. Such effect, though unintended, will obviously wreak
havoc on the orderly administration of justice, an overriding goal that the Rule on
the Writ of Amparo does not intend to weaken or negate.
Separately from these considerations, we cannot fail but consider too at this point
the indicators, clear and patent to us, that the petitioners' present recourse via the
remedy of the writ of amparo is a mere subterfuge to negate the assailed orders
that the petitioners sought and failed to nullify before the appellate court because
of the use of an improper remedial measure. We discern this from the petitioners'
misrepresentations pointed out above; from their obvious act of forum shopping;
and from the recourse itself to the extraordinary remedies of the writs of certiorari
and amparo based on grounds that are far from forthright and sufficiently
compelling. To be sure, when recourses in the ordinary course of law fail because
of deficient legal representation or the use of improper remedial measures, neither
the writ of certiorari nor that of amparo - extraordinary though they may be - will
suffice to serve as a curative substitute. The writ of amparo, particularly, should not
issue when applied for as a substitute for the appeal or certiorari process, or when
it will inordinately interfere with these processes - the situation obtaining in the
present case.
While we say all these, we note too that the Rule on the Writ of Amparo provides
for rules on the institution of separate actions,24 for the effect of earlier-filed
criminal actions,25 and for the consolidation of petitions for the issuance of a writ of
amparo with a subsequently filed criminal and civil action. 26 These rules were
adopted to promote an orderly procedure for dealing with petitions for the issuance
of the writ of amparo when the parties resort to other parallel recourses.
Where, as in this case, there is an ongoing civil process dealing directly with the
possessory dispute and the reported acts of violence and harassment, we see no
point in separately and directly intervening through a writ of amparo in the absence
of any clear prima facie showing that the right to life, liberty or security -
the personalconcern that the writ is intended to protect - is immediately in danger
or threatened, or that the danger or threat is continuing. We see no legal bar,
however, to an application for the issuance of the writ, in a proper case, by motion
in a pending case on appeal or on certiorari, applying by analogy the provisions on
the co-existence of the writ with a separately filed criminal case.
The Writ of Habeas Data
Section 6 of the Rule on the Writ of Habeas Data requires the following material
allegations of ultimate facts in a petition for the issuance of a writ of habeas data:
"(a) The personal circumstances of the petitioner and the respondent;
(b) The manner the right to privacy is violated or threatened and how it
affects the right to life, liberty or security of the aggrieved party;
(c) The actions and recourses taken by the petitioner to secure the data or
information;
(d) The location of the files, registers or databases, the government office,
and the person in charge, in possession or in control of the data or
information, if known;
(e) The reliefs prayed for, which may include the updating, rectification,
suppression or destruction of the database or information or files kept by the
respondent.
In case of threats, the relief may include a prayer for an order enjoining the act
complained of; and
(f) Such other relevant reliefs as are just and equitable."
Support for the habeas data aspect of the present petition only alleges that:
"1. [ … ] Similarly, a petition for a WRIT OF HABEAS DATA is prayed for so that
the PNP may release the report on the burning of the homes of the petitioners and
the acts of violence employed against them by the private respondents, furnishing
the Court and the petitioners with copy of the same;
[…]
66. Petitioners apply for a WRIT OF HABEAS DATA commanding the Philippine
National Police [PNP] to produce the police report pertaining to the burning of the
houses of the petitioners in the land in dispute and likewise the investigation report
if an investigation was conducted by the PNP."
These allegations obviously lack what the Rule on Writ of Habeas Data requires as
a minimum, thus rendering the petition fatally deficient. Specifically, we see no
concrete allegations of unjustified or unlawful violation of the right to privacy
related to the right to life, liberty or security. The petition likewise has not alleged,
much less demonstrated, any need for information under the control of police
authorities other than those it has already set forth as integral annexes. The
necessity or justification for the issuance of the writ, based on the insufficiency of
previous efforts made to secure information, has not also been shown. In sum, the
prayer for the issuance of a writ of habeas data is nothing more than the "fishing
expedition" that this Court - in the course of drafting the Rule on habeas data - had
in mind in defining what the purpose of a writ of habeas data is not. In these lights,
the outright denial of the petition for the issuance of the writ of habeas data is fully
in order.
WHEREFORE, premises considered, we hereby DISMISS the present
petition OUTRIGHT for deficiencies of form and substance patent from its body
and attachments.
SO ORDERED.
G.R. No. 193652 August 5, 2014
Infant JULIAN YUSA Y CARAM, represented by his mother, MA. CHRISTINA
YUSAY CARAM, Petitioner,
vs.
Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B. CABRERA, and
CELIA C. YANGCO,Respondents.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, as amended, and Section 191 of the Rule on the Writ of
Amparo2 seeking to set aside the August 17, 20103 and September 6,
20104Orders of the Regional Trial Court (RTC), Branch 106 of Quezon City, in Sp.
Proc. Case No. Q-10-67604. The RTC had dismissed petitioner’s petition for the
issuance ofa writ of amparo which petitioner filed in order for her to regain parental
authority and custody of Julian Yusay Caram (Baby Julian), her biological child,
from the respondent officers of the Department of Social Welfare and Development
(DSWD). The factual antecedents as gleaned from the records follow:
Petitioner Ma. Christina Yusay Caram(Christina) had an amorous relationship with
Marcelino Gicano Constantino III (Marcelino) and eventually became pregnant with
the latter’s child without the benefit of marriage. After getting pregnant, Christina
mislead Marcelino into believing that she had an abortion when in fact she
proceeded to complete the term of her pregnancy. During this time, she intended
to have the child adopted through Sun and Moon Home for Children (Sun and
Moon) in Parañaque City to avoid placing her family ina potentially embarrassing
situation for having a second illegitimate son.5
On July 26, 2009, Christina gavebirth to Baby Julian at Amang Rodriguez
Memorial MedicalCenter, Marikina City.6Sun and Moon shouldered all the hospital
and medical expenses. On August 13, 2009, Christina voluntarily surrendered
Baby Julian by way of a Deed of Voluntary Commitment7 to the DSWD.
On November 26, 2009, Marcelino suffered a heart attack and died8 without
knowing about the birth of his son. Thereafter, during the wake, Christina disclosed
to Marcelino’s family that she and the deceased had a son that she gave up for
adoption due to financial distress and initial embarrassment. Marcelino’s family
was taken aback by the revelation and sympathized with Christina. After the
emotional revelation, they vowed to help her recover and raise the baby. 9 On
November 27, 2009, the DSWD, through Secretary Esperanza I. Cabral issued a
certificate10declaring Baby Julian as "Legally Available for Adoption." A local
matching conference was held on January 27, 2010 and on February 5, 2010,
Baby Julian was "matched" with the spouses Vergel and Filomina Medina (Medina
Spouses) of the Kaisahang Bahay Foundation. Supervised trial custody then
commenced.11
On May 5, 2010, Christina who had changed her mind about the adoption, wrote a
letter to the DSWDasking for the suspension of Baby Julian’s adoption
proceedings. She alsosaid she wanted her family back together. 12
On May 28, 2010, the DSWD, through respondent Atty. Marijoy D. Segui, sent a
Memorandum13 to DSWD Assistant Secretary Vilma B. Cabrera informing her that
the certificate declaring Baby Julian legally available for adoption had attained
finality on November 13, 2009, or three months after Christina signed the Deed of
Voluntary Commitment which terminated her parental authority and effectively
made Baby Julian a ward of the State. The said Memorandum was noted by
respondent Atty. Sally D. Escutin, Director IV of the Legal Service, DSWD.
On July 12, 2010, Noel Gicano Constantino, Marcelino’s brother, sent a letter to
Atty. Escutin informing her that a DNA testing was scheduled on July 16, 2010 at
the DNA Analysis Laboratory at the University of the Philippines.14
On July 16, 2010, Assistant Secretary Cabrera sent a letter 15 to Noel Constantino
stating that it would not allow Baby Julian to undergo DNA testing. Assistant
Secretary Cabrera informed Noel Constantino that the procedures followed relative
to the certification on the availability of the child for adoption and the child’s
subsequent placement to prospective adoptive parents were proper, and that the
DSWD was no longer in the position to stop the adoption process. Assistant
Secretary Cabrera further stated that should Christina wish to reacquire her
parental authority over Baby Julian or halt the adoption process, she may bring the
matter to the regular courts as the reglementary period for her to regain her
parental rights had already lapsed under Section 7 of Republic Act (R.A.) No.
9523.16
On July 27, 2010, Christina filed a petition17
for the issuance of a writ of amparo
before the RTC of Quezon City seeking to obtain custody of Baby Julian from Atty.
Segui, Atty. Escutin, Assistant Secretary Cabrera and Acting Secretary Celia C.
Yangco, all of the DSWD.
In her petition, Christina accused respondents of "blackmailing" her into
surrendering custody of her childto the DSWD utilizing what she claims to be an
invalid certificate of availability for adoption which respondents allegedly used as
basis to misrepresent that all legal requisites for adoption of the minor child had
been complied with.
Christina argued that by making these misrepresentations, the respondents had
acted beyond the scope of their legal authority thereby causing the enforced
disappearance of the said child and depriving her of her custodial rights and
parental authority over him.
On the basis of the said petition,the RTC, Branch 106 of Quezon City, through its
Presiding Judge, the Honorable Angelene Mary W. Quimpo-Sale, issued a Writ of
Amparo18 on July 28, 2010 commanding the four respondents to produce the body
of Baby Julian at a hearing scheduled on August 4, 2010. Respondents were
alsorequired to file their verified written return to the writ pursuant to Section 9 19 of
the Amparo Rule, within five working days from the service of the writ.
The respondents complied with the writ and filed their Return20 on August 2, 2010
praying that the petition be denied for being the improper remedy to avail of in a
case relating toa biological parent’s custodial rights over her child.
On August 4, 2010, respondents appeared before the RTC but respondents did
not bring the child, stating that threats of kidnapping were made on the child and
his caregivers. To give respondents another chance, the RTC reset the hearing to
August 5, 2010.
At the August 5, 2010 hearing, the Office of the Solicitor General (OSG) entered its
appearance as representative of the State and prayed that its lawyers be given
time to file their memorandum or position paper in this case. In turn, the RTC
acknowledged the appearance of the OSG and allowed its representatives to
actively participate in the arguments raised during the said hearing. Relative to the
matter of the parties submitting additional pleadings, Judge Sale narrowed the
issues to be discussed by providing for the following guidelines, thus:
To abbreviate the proceedings, in view of all the manifestations and counter-
manifestations made by the counsels, the court enjoined the parties to file their
respective position papers on the following issues:
1. Whether or not this court has jurisdiction over the instant case;
2. Whether or not this petition isthe proper remedy based on the facts of the case
and prayer in the petition; and
3. Whether or not the prayer in the petition should be granted and custody of the
child be given to his biological mother.
The parties were given five (5) days from today to file their respective position
papers based on these three main issues. They may include other related issues
they deem essential for the resolution of this case. Set this case for further
hearing, if necessary, on August 18, 2010 at 9:00 a.m.21
In the same order, Judge Sale alsoacknowledged that the child subject of the case
was brought before the court and the petitioner was allowed to see him and take
photographs of him.
On August 17, 2010, the RTC dismissed the petition for issuance of a writ of
amparo without prejudice to the filing of the appropriate action in court. The RTC
held that Christina availed of the wrong remedy to regain custody of her child Baby
Julian.22 The RTC further stated that Christina should have filed a civil case for
custody of her child as laid down in the Family Code and the Rule on Custody of
Minors and Writ of Habeas Corpus in Relation to Custody of Minors. If there is
extreme urgency to secure custody of a minor who has been illegallydetained by
another, a petition for the issuance of a writ of habeas corpus may be availed of,
either as a principal or ancillary remedy, pursuant to the Rule on Custody of Minors
and Writ of Habeas Corpus inRelation to Custody of Minors.23
On August 20, 2010, Christina filed a motion for reconsideration24 arguing that
since the RTC assumed jurisdiction of the petition for the issuance of a writ of
amparo, the latter is duty-bound to dispose the case on the merits.25 The RTC,
however, deniedChristina’s motion for reconsideration on September 6, 2010
maintaining that the latter availed of the wrong remedy and that the Supreme Court
intended the writ of amparo to address the problem of extrajudicial killings and
enforced disappearances.26
On September 28, 2010, Christina directly elevated the case before this Court, via
a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, in relation to Section 19 of the Rule on the Writ of
Amparo. In her petition, Christina prayed that the Court (1) set aside the August
17, 2010 and September 6, 2010 Orders of the RTC, (2) declare R.A. No. 9523
unconstitutional for being contrary to A.M. No. 02-6-02-SC,27 which was
promulgated by the Supreme Court, and for violating the doctrine of separation of
powers, (3) declare the "enforced separation" between her and Baby Julian as
violative of her rights to life, liberty and security, and (4) grant her the privilege of
availing the benefits of a writ of amparo so she could be reunited with her son. 28
The only relevant issue presented before the Court worthy of attention is whether a
petition for a writ of amparo is the proper recourse for obtaining parental authority
and custody of a minor child. This Court will not belabor to discuss Christina’s
argumentsrelating to the supposedunconstitutionality or R.A. No. 9523 as
Congress has the plenary power to repeal, alter and modify existing laws29 and
A.M. No. 02-6-02-SC functions only as a means to enforce the provisions of all
adoption and adoption-related statutes before the courts.
Now, in her petition, Christina argues that the life, liberty and security of Baby
Julian is being violated or threatened by the respondent DSWD officers’
enforcement of an illegal Deed of Voluntary Commitment between her and Sun
and Moon. She claims thatshe had been "blackmailed" through the said Deed by
the DSWD officers and Sun and Moon’s representatives into surrendering her child
thereby causing the "forced separation" of the said infant from his mother.
Furthermore, she also reiterates that the respondent DSWD officers acted beyond
the scope of their authority when they deprived her of Baby Julian’s custody. 30
The Court rejects petitioner’s contentions and denies the petition.
Section 1 of the Rule on the Writ of Amparo provides as follows:
SECTION 1. Petition. – The petition for a writ of amparois a remedy available to
any person whose right to life, liberty and security is violated or threatened with
violation by an unlawful actor 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.
In the landmark case of Secretary of National Defense, et al. v. Manalo, et
al.,31 this Court held:
[T]he AmparoRule was intended to address the intractable problem of "extralegal
killings" and "enforced disappearances," its coverage, in its present form, is
confined to these two instances or to threats thereof. "Extralegal killings" are
"killings committed without due process of law, i.e., without legal safeguards or
judicial proceedings." On the other hand, "enforced disappearances" are "attended
by the following characteristics: an arrest, detention or abduction of a person by a
government official or organized groupsor 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.
This pronouncement on the coverage of the writ was further cemented in the latter
case of Lozada, Jr. v. Macapagal-Arroyo32 where this Court explicitly declared that
as it stands, the writ of amparo is confined only to cases of extrajudicial killings and
enforced disappearances, or to threats thereof. As to what constitutes "enforced
disappearance," the Court in Navia v. Pardico33 enumerated the
elementsconstituting "enforced disappearances" as the term is statutorily defined
in Section 3(g) of R.A. No. 985134 to wit:
(a) that there be an arrest, detention, abduction or any form of deprivation of
liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence of,
the State ora political organization;
(c) that it be followed by the State or political organization’s refusal to acknowledge
or give information on the fate or whereabouts of the person subject of the
amparopetition; and,
(d) that the intention for such refusal isto remove subject person from the
protection of the law for a prolonged period of time.1âwphi1
In this case, Christina alleged that the respondent DSWD officers caused her
"enforced separation" from Baby Julian and that their action amounted to an
"enforced disappearance" within the context of the Amparo rule. Contrary to her
position, however, the respondent DSWD officers never concealed Baby Julian's
whereabouts. In fact, Christina obtained a copy of the DSWD's May 28, 2010
Memorandum35 explicitly stating that Baby Julian was in the custody of the Medina
Spouses when she filed her petition before the RTC. Besides, she even admitted
in her petition for review on certiorari that the respondent DSWD officers presented
Baby Julian before the RTC during the hearing held in the afternoon of August 5,
2010.36 There is therefore, no "enforced disappearance" as used in the context of
the Amparo rule as the third and fourth elements are missing.
Christina's directly accusing the respondents of forcibly separating her from her
child and placing the latter up for adoption, supposedly without complying with the
necessary legal requisites to qualify the child for adoption, clearly indicates that
she is not searching for a lost child but asserting her parental authority over the
child and contesting custody over him.37 Since it is extant from the pleadings filed
that what is involved is the issue of child custody and the exercise of parental
rights over a child, who, for all intents and purposes, has been legally considered a
ward of the State, the Amparo rule cannot be properly applied.
To reiterate, the privilege of the writ of amparo is a remedy available to victims of
extra-judicial killings and enforced disappearances or threats of a similar nature,
regardless of whether the perpetrator of the unlawful act or omission is a public
official or employee or a private individual. It is envisioned basically to protect and
guarantee the right to life, liberty and security of persons, free from fears and
threats that vitiate the quality of life.
WHEREFORE, the petition is DENIED. The August 17, 2010 and September 6,
2010 Orders of the Regional Trial Court, Branch 106, Quezon City in Sp. Proc.
Case No. Q-10-67604 are AFFIRMED without prejudice to petitioner's right to avail
of proper legal remedies afforded to her by law and related rules.
No costs.
SO ORDERED.
G.R. No. 202666 September 29, 2014
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID
SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN
DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute, since participation in society is
an equally powerful desire. Thus each individual is continually engaged in a
personal adjustment process in which he balances the desire for privacy with the
desire for disclosure and communication of himself to others, in light of the
environmental conditions and social norms set by the society in which he lives.
- Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, in relation to Section 19 of A.M. No. 08-1-16-SC,1 otherwise known as the
"Rule on the Writ of Habeas Data." Petitioners herein assail the July 27, 2012
Decision2 of the Regional Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc.
No. 19251-CEB, which dismissed their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors,
were, during the period material, graduating high school students at St. Theresa's
College (STC), Cebu City. Sometime in January 2012, while changing into their
swimsuits for a beach party they were about to attend, Julia and Julienne, along
with several others, took digital pictures of themselves clad only in their
undergarments. These pictures were then uploaded by Angela Lindsay Tan
(Angela) on her Facebook3 profile.
Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at
STC’s high school department, learned from her students that some seniors at
STC posted pictures online, depicting themselves from the waist up, dressed only
in brassieres. Escudero then asked her students if they knew who the girls in the
photos are. In turn, they readily identified Julia, Julienne, and Chloe Lourdes
Taboada (Chloe), among others.
Using STC’s computers, Escudero’s students logged in to their respective personal
Facebook accounts and showed her photos of the identified students, which
include: (a) Julia and Julienne drinking hard liquor and smoking cigarettes inside a
bar; and (b) Julia and Julienne along the streets of Cebu wearing articles of
clothing that show virtually the entirety of their black brassieres. What is more,
Escudero’s students claimed that there were times when access to or the
availability of the identified students’ photos was not confined to the girls’
Facebook friends,4but were, in fact, viewable by any Facebook user.5
Upon discovery, Escudero reported the matter and, through one of her student’s
Facebook page, showed the photosto Kristine Rose Tigol (Tigol), STC’s Discipline-
in-Charge, for appropriate action. Thereafter, following an investigation, STC found
the identified students to have deported themselves in a manner proscribed by the
school’s Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholicbeverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains
sexually suggestive messages, language or symbols; and 6. Posing and uploading
pictures on the Internet that entail ample body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in
question, reported, as required, to the office of Sr. Celeste Ma. Purisima Pe (Sr.
Purisima), STC’s high school principal and ICM6 Directress. They claimed that
during the meeting, they were castigated and verbally abused by the STC officials
present in the conference, including Assistant Principal Mussolini S. Yap (Yap),
Roswinda Jumiller, and Tigol. What is more, Sr. Purisima informed their parents
the following day that, as part of their penalty, they are barred from joining the
commencement exercises scheduled on March 30, 2012.
A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M.
Tan (Tan), filed a Petition for Injunction and Damages before the RTC of Cebu City
against STC, et al., docketed as Civil Case No. CEB-38594.7In it, Tan prayed that
defendants therein be enjoined from implementing the sanction that precluded
Angela from joining the commencement exercises.
On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia,
joined the fray as an intervenor. On March 28, 2012, defendants inCivil Case No.
CEB-38594 filed their memorandum, containing printed copies of the photographs
in issue as annexes. That same day, the RTC issued a temporary restraining order
(TRO) allowing the students to attend the graduation ceremony, to which STC filed
a motion for reconsideration.
Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned
students from participating in the graduation rites, arguing that, on the date of the
commencement exercises, its adverted motion for reconsideration on the issuance
ofthe TRO remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of
Habeas Data, docketed as SP. Proc. No. 19251-CEB8 on the basis of the following
considerations:
1. The photos of their children in their undergarments (e.g., bra) were taken for
posterity before they changed into their swimsuits on the occasion of a birthday
beach party;
2. The privacy setting of their children’s Facebook accounts was set at "Friends
Only." They, thus, have a reasonable expectation of privacy which must be
respected.
3. Respondents, being involved in the field of education, knew or ought to have
known of laws that safeguard the right to privacy. Corollarily, respondents knew or
ought to have known that the girls, whose privacy has been invaded, are the
victims in this case, and not the offenders. Worse, after viewing the photos, the
minors were called "immoral" and were punished outright;
4. The photos accessed belong to the girls and, thus, cannot be used and
reproduced without their consent. Escudero, however, violated their rights by
saving digital copies of the photos and by subsequently showing them to STC’s
officials. Thus, the Facebook accounts of petitioners’ children were intruded upon;
5. The intrusion into the Facebook accounts, as well as the copying of information,
data, and digital images happened at STC’s Computer Laboratory; and
6. All the data and digital images that were extracted were boldly broadcasted by
respondents through their memorandum submitted to the RTC in connection with
Civil Case No. CEB-38594. To petitioners, the interplay of the foregoing constitutes
an invasion of their children’s privacy and, thus, prayed that: (a) a writ of habeas
databe issued; (b) respondents be ordered to surrender and deposit with the court
all soft and printed copies of the subjectdata before or at the preliminary hearing;
and (c) after trial, judgment be rendered declaring all information, data, and digital
images accessed, saved or stored, reproduced, spread and used, to have been
illegally obtained inviolation of the children’s right to privacy.
Finding the petition sufficient in form and substance, the RTC, through an Order
dated July 5, 2012, issued the writ of habeas data. Through the same Order,
herein respondents were directed to file their verified written return, together with
the supporting affidavits, within five (5) working days from service of the writ.
In time, respondents complied with the RTC’s directive and filed their verified
written return, laying down the following grounds for the denial of the petition, viz:
(a) petitioners are not the proper parties to file the petition; (b) petitioners are
engaging in forum shopping; (c) the instant case is not one where a writ of habeas
data may issue;and (d) there can be no violation of their right to privacy as there is
no reasonable expectation of privacy on Facebook.
Ruling of the Regional Trial Court
On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas
data. The dispositive portion of the Decision pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is hereby
DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxxx
SO ORDERED.9
To the trial court, petitioners failed to prove the existence of an actual or
threatened violation of the minors’ right to privacy, one of the preconditions for the
issuance of the writ of habeas data. Moreover, the court a quoheld that the photos,
having been uploaded on Facebook without restrictions as to who may view them,
lost their privacy in some way. Besides, the RTC noted, STC gathered the
photographs through legal means and for a legal purpose, that is, the
implementation of the school’s policies and rules on discipline.
Not satisfied with the outcome, petitioners now come before this Court pursuant to
Section 19 of the Rule on Habeas Data.10
The Issues
The main issue to be threshed out inthis case is whether or not a writ of habeas
datashould be issued given the factual milieu. Crucial in resolving the controversy,
however, is the pivotal point of whether or not there was indeed an actual or
threatened violation of the right to privacy in the life, liberty, or security of the
minors involved in this case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of the Writ of Habeas Data
The writ of habeas datais a remedy available to any person whose right to privacy
in life, liberty or security is violated or threatened by an unlawful act or omission of
a public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family,
home and correspondence of the aggrieved party.11 It is an independent and
summary remedy designed to protect the image, privacy, honor, information, and
freedom of information of an individual, and to provide a forum to enforce one’s
right to the truth and to informational privacy. It seeks to protect a person’s right to
control information regarding oneself, particularly in instances in which such
information is being collected through unlawful means in order to achieve unlawful
ends.12
In developing the writ of habeas data, the Court aimed to protect an individual’s
right to informational privacy, among others. A comparative law scholar has, in
fact, defined habeas dataas "a procedure designed to safeguard individual
freedom from abuse in the information age."13 The writ, however, will not issue on
the basis merely of an alleged unauthorized access to information about a
person.Availment of the writ requires the existence of a nexus between the right to
privacy on the one hand, and the right to life, liberty or security on the
other.14 Thus, the existence of a person’s right to informational privacy and a
showing, at least by substantial evidence, of an actual or threatened violation of
the right to privacy in life, liberty or security of the victim are indispensable before
the privilege of the writ may be extended.15
Without an actionable entitlement in the first place to the right to informational
privacy, a habeas datapetition will not prosper. Viewed from the perspective of the
case at bar,this requisite begs this question: given the nature of an online social
network (OSN)––(1) that it facilitates and promotes real-time interaction among
millions, if not billions, of users, sans the spatial barriers,16 bridging the gap
created by physical space; and (2) that any information uploaded in OSNs
leavesan indelible trace in the provider’s databases, which are outside the control
of the end-users––is there a right to informational privacy in OSN activities of its
users? Before addressing this point, We must first resolve the procedural issues in
this case.
a. The writ of habeas data is not only confined to cases of extralegal killings and
enforced disappearances
Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted
solely for the purpose of complementing the Writ of Amparoin cases of extralegal
killings and enforced disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of
habeas data. However, in cases of extralegal killings and enforced
disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved party, namely: the
spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved party within
the fourth civil degreeof consanguinity or affinity, in default of those mentioned in
the preceding paragraph. (emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only to
cases of extralegal killings or enforced disappearances, the above underscored
portion of Section 2, reflecting a variance of habeas data situations, would not
have been made.
Habeas data, to stress, was designed "to safeguard individual freedom from abuse
in the information age."17 As such, it is erroneous to limit its applicability to
extralegal killings and enforced disappearances only. In fact, the annotations to the
Rule preparedby the Committee on the Revision of the Rules of Court, after
explaining that the Writ of Habeas Data complements the Writ of Amparo, pointed
out that:
The writ of habeas data, however, can be availed of as an independent remedy to
enforce one’s right to privacy, more specifically the right to informational privacy.
The remedies against the violation of such right can include the updating,
rectification, suppression or destruction of the database or information or files in
possession or in control of respondents.18 (emphasis Ours) Clearly then, the
privilege of the Writ of Habeas Datamay also be availed of in cases outside of
extralegal killings and enforced disappearances.
b. Meaning of "engaged" in the gathering, collecting or storing of data or
information
Respondents’ contention that the habeas data writ may not issue against STC, it
not being an entity engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and correspondence of the
aggrieved party, while valid to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas data protection
shall be available only against abuses of a person or entity engaged in the
businessof gathering, storing, and collecting of data. As provided under Section 1
of the Rule:
Section 1. Habeas Data. – The writ of habeas datais a remedy available to any
person whose right to privacy in life, liberty or security is violated or threatened by
an unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and correspondence of the
aggrieved party. (emphasis Ours)
The provision, when taken in its proper context, as a whole, irresistibly conveys the
idea that habeas data is a protection against unlawful acts or omissions of public
officials and of private individuals or entities engaged in gathering, collecting, or
storing data about the aggrieved party and his or her correspondences, or about
his or her family. Such individual or entity need not be in the business of collecting
or storing data.
To "engage" in something is different from undertaking a business endeavour. To
"engage" means "to do or take part in something."19 It does not necessarily mean
that the activity must be done in pursuit of a business. What matters is that the
person or entity must be gathering, collecting or storing said data or information
about the aggrieved party or his or her family. Whether such undertaking carries
the element of regularity, as when one pursues a business, and is in the nature of
a personal endeavour, for any other reason or even for no reason at all, is
immaterial and such will not prevent the writ from getting to said person or entity.
To agree with respondents’ above argument, would mean unduly limiting the reach
of the writ to a very small group, i.e., private persons and entities whose business
is data gathering and storage, and in the process decreasing the effectiveness of
the writ asan instrument designed to protect a right which is easily violated in view
of rapid advancements in the information and communications technology––a right
which a great majority of the users of technology themselves are not capable of
protecting.
Having resolved the procedural aspect of the case, We now proceed to the core of
the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacyhas, through time, greatly evolved, with technological
advancements having an influential part therein. This evolution was briefly
recounted in former Chief Justice Reynato S. Puno’s speech, The Common Right
to Privacy,20 where he explained the three strands of the right to privacy, viz: (1)
locational or situational privacy;21(2) informational privacy; and (3) decisional
privacy.22 Of the three, what is relevant to the case at bar is the right to
informational privacy––usually defined as the right of individuals to control
information about themselves.23
With the availability of numerous avenues for information gathering and data
sharing nowadays, not to mention each system’s inherent vulnerability to attacks
and intrusions, there is more reason that every individual’s right to control said flow
of information should be protected and that each individual should have at least a
reasonable expectation of privacy in cyberspace. Several commentators regarding
privacy and social networking sites, however, all agree that given the millions of
OSN users, "[i]n this [Social Networking] environment, privacy is no longer
grounded in reasonable expectations, but rather in some theoretical protocol better
known as wishful thinking."24
It is due to this notion that the Court saw the pressing need to provide for judicial
remedies that would allow a summary hearing of the unlawful use of data or
information and to remedy possible violations of the right to privacy.25 In the same
vein, the South African High Court, in its Decision in the landmark case, H v.
W,26promulgated on January30, 2013, recognized that "[t]he law has to take into
account the changing realities not only technologically but also socially or else it
will lose credibility in the eyes of the people. x x x It is imperative that the courts
respond appropriately to changing times, acting cautiously and with wisdom."
Consistent with this, the Court, by developing what may be viewed as the
Philippine model of the writ of habeas data, in effect, recognized that, generally
speaking, having an expectation of informational privacy is not necessarily
incompatible with engaging in cyberspace activities, including those that occur in
OSNs.
The question now though is up to whatextent is the right to privacy protected in
OSNs? Bear in mind that informational privacy involves personal information. At
the same time, the very purpose of OSNs is socializing––sharing a myriad of
information,27 some of which would have otherwise remained personal.
b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability to interact and
to stay connected to other members of the same or different social media platform
through the sharing of statuses, photos, videos, among others, depending on the
services provided by the site. It is akin to having a room filled with millions of
personal bulletin boards or "walls," the contents of which are under the control of
each and every user. In his or her bulletin board, a user/owner can post anything–
–from text, to pictures, to music and videos––access to which would depend on
whether he or she allows one, some or all of the other users to see his or her
posts. Since gaining popularity, the OSN phenomenon has paved the way to the
creation of various social networking sites, includingthe one involved in the case at
bar, www.facebook.com (Facebook), which, according to its developers, people
use "to stay connected with friends and family, to discover what’s going on in the
world, and to share and express what matters to them."28
Facebook connections are established through the process of "friending" another
user. By sending a "friend request," the user invites another to connect their
accounts so that they can view any and all "Public" and "Friends Only" posts of the
other.Once the request is accepted, the link is established and both users are
permitted to view the other user’s "Public" or "Friends Only" posts, among others.
"Friending," therefore, allows the user to form or maintain one-to-one relationships
with other users, whereby the user gives his or her "Facebook friend" access to his
or her profile and shares certain information to the latter.29
To address concerns about privacy,30 but without defeating its purpose, Facebook
was armed with different privacy tools designed to regulate the accessibility of a
user’s profile31 as well as information uploaded by the user. In H v. W,32 the South
Gauteng High Court recognized this ability of the users to "customize their privacy
settings," but did so with this caveat: "Facebook states in its policies that, although
it makes every effort to protect a user’s information, these privacy settings are not
foolproof."33
For instance, a Facebook user canregulate the visibility and accessibility of digital
images(photos), posted on his or her personal bulletin or "wall," except for the
user’sprofile picture and ID, by selecting his or her desired privacy setting:
(a) Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the user’s Facebook friends and their friends can view
the photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or networks of
the Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users, designed to set up
barriers to broaden or limit the visibility of his or her specific profile content,
statuses, and photos, among others, from another user’s point of view. In other
words, Facebook extends its users an avenue to make the availability of their
Facebook activities reflect their choice as to "when and to what extent to disclose
facts about [themselves] – and to put others in the position of receiving such
confidences."34 Ideally, the selected setting will be based on one’s desire to
interact with others, coupled with the opposing need to withhold certain information
as well as to regulate the spreading of his or her personal information. Needless to
say, as the privacy setting becomes more limiting, fewer Facebook users can view
that user’s particular post.
STC did not violate petitioners’ daughters’ right to privacy
Without these privacy settings, respondents’ contention that there is no reasonable
expectation of privacy in Facebook would, in context, be correct. However, such is
not the case. It is through the availability of said privacy tools that many OSN users
are said to have a subjective expectation that only those to whomthey grant
access to their profile will view the information they post or upload thereto.35
This, however, does not mean thatany Facebook user automatically has a
protected expectation of privacy inall of his or her Facebook activities.
Before one can have an expectation of privacy in his or her OSN activity, it is first
necessary that said user, in this case the children of petitioners,manifest the
intention to keepcertain posts private, through the employment of measures to
prevent access thereto or to limit its visibility. 36 And this intention can materialize in
cyberspace through the utilization of the OSN’s privacy tools. In other words,
utilization of these privacy tools is the manifestation,in cyber world, of the user’s
invocation of his or her right to informational privacy. 37
Therefore, a Facebook user who opts to make use of a privacy tool to grant or
deny access to his or her post orprofile detail should not be denied the
informational privacy right which necessarily accompanies said
choice.38Otherwise, using these privacy tools would be a feckless exercise, such
that if, for instance, a user uploads a photo or any personal information to his or
her Facebook page and sets its privacy level at "Only Me" or a custom list so that
only the user or a chosen few can view it, said photo would still be deemed public
by the courts as if the user never chose to limit the photo’s visibility and
accessibility. Such position, if adopted, will not only strip these privacy tools of their
function but it would also disregard the very intention of the user to keep said
photo or information within the confines of his or her private space.
We must now determine the extent that the images in question were visible to
other Facebook users and whether the disclosure was confidential in nature. In
other words, did the minors limit the disclosure of the photos such that the images
were kept within their zones of privacy? This determination is necessary in
resolving the issue of whether the minors carved out a zone of privacy when the
photos were uploaded to Facebook so that the images will be protected against
unauthorized access and disclosure.
Petitioners, in support of their thesis about their children’s privacy right being
violated, insist that Escudero intruded upon their children’s Facebook accounts,
downloaded copies ofthe pictures and showed said photos to Tigol. To them, this
was a breach of the minors’ privacy since their Facebook accounts, allegedly, were
under "very private" or "Only Friends" setting safeguarded with a
password.39 Ultimately, they posit that their children’s disclosure was only limited
since their profiles were not open to public viewing. Therefore, according to them,
people who are not their Facebook friends, including respondents, are barred from
accessing said post without their knowledge and consent. Aspetitioner’s children
testified, it was Angelawho uploaded the subjectphotos which were only viewable
by the five of them,40 although who these five are do not appear on the records.
Escudero, on the other hand, stated in her affidavit41 that "my students showed me
some pictures of girls cladin brassieres. This student [sic] of mine informed me that
these are senior high school [students] of STC, who are their friends in [F]acebook.
x x x They then said [that] there are still many other photos posted on the
Facebook accounts of these girls. At the computer lab, these students then logged
into their Facebook account [sic], and accessed from there the various
photographs x x x. They even told me that there had been times when these
photos were ‘public’ i.e., not confined to their friends in Facebook."
In this regard, We cannot give muchweight to the minors’ testimonies for one key
reason: failure to question the students’ act of showing the photos to Tigol
disproves their allegation that the photos were viewable only by the five of them.
Without any evidence to corroborate their statement that the images were visible
only to the five of them, and without their challenging Escudero’s claim that the
other students were able to view the photos, their statements are, at best, self-
serving, thus deserving scant consideration.42
It is well to note that not one of petitioners disputed Escudero’s sworn account that
her students, who are the minors’ Facebook "friends," showed her the photos
using their own Facebook accounts. This only goes to show that no special means
to be able to viewthe allegedly private posts were ever resorted to by Escudero’s
students,43 and that it is reasonable to assume, therefore, that the photos were, in
reality, viewable either by (1) their Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is"Public," it can be
surmised that the photographs in question were viewable to everyone on
Facebook, absent any proof that petitioners’ children positively limited the
disclosure of the photograph. If suchwere the case, they cannot invoke the
protection attached to the right to informational privacy. The ensuing
pronouncement in US v. Gines-Perez44 is most instructive:
[A] person who places a photograph on the Internet precisely intends to forsake
and renounce all privacy rights to such imagery, particularly under circumstances
suchas here, where the Defendant did not employ protective measures or devices
that would have controlled access to the Web page or the photograph itself. 45
Also, United States v. Maxwell46 held that "[t]he more open the method of
transmission is, the less privacy one can reasonably expect. Messages sent to the
public at large inthe chat room or e-mail that is forwarded from correspondent to
correspondent loses any semblance of privacy."
That the photos are viewable by "friends only" does not necessarily bolster the
petitioners’ contention. In this regard, the cyber community is agreed that the
digital images under this setting still remain to be outside the confines of the zones
of privacy in view of the following:
(1) Facebook "allows the world to be more open and connected by giving its users
the tools to interact and share in any conceivable way;"47
(2) A good number of Facebook users "befriend" other users who are total
strangers;48
(3) The sheer number of "Friends" one user has, usually by the hundreds; and
(4) A user’s Facebook friend can "share"49 the former’s post, or "tag"50 others who
are not Facebook friends with the former, despite its being visible only tohis or her
own Facebook friends.
It is well to emphasize at this point that setting a post’s or profile detail’s privacy to
"Friends" is no assurance that it can no longer be viewed by another user who is
not Facebook friends with the source of the content. The user’s own Facebook
friend can share said content or tag his or her own Facebook friend thereto,
regardless of whether the user tagged by the latter is Facebook friends or not with
the former. Also, when the post is shared or when a person is tagged, the
respective Facebook friends of the person who shared the post or who was tagged
can view the post, the privacy setting of which was set at "Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not
Facebook friends. If C, A’s Facebook friend, tags B in A’s post, which is set at
"Friends," the initial audience of 100 (A’s own Facebook friends) is dramatically
increased to 300 (A’s 100 friends plus B’s 200 friends or the public, depending
upon B’s privacy setting). As a result, the audience who can view the post is
effectively expanded––and to a very large extent.
This, along with its other features and uses, is confirmation of Facebook’s proclivity
towards user interaction and socialization rather than seclusion or privacy, as it
encourages broadcasting of individual user posts. In fact, it has been said that
OSNs have facilitated their users’ self-tribute, thereby resulting into the
"democratization of fame."51Thus, it is suggested, that a profile, or even a post,
with visibility set at "Friends Only" cannot easily, more so automatically, be said to
be "very private," contrary to petitioners’ argument.
As applied, even assuming that the photos in issue are visible only to the
sanctioned students’ Facebook friends, respondent STC can hardly be taken to
task for the perceived privacy invasion since it was the minors’ Facebook friends
who showed the pictures to Tigol. Respondents were mere recipients of what were
posted. They did not resort to any unlawful means of gathering the information as it
was voluntarily given to them by persons who had legitimate access to the said
posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously
enough, however, neither the minors nor their parents imputed any violation of
privacy against the students who showed the images to Escudero.
Furthermore, petitioners failed to prove their contention that respondents
reproduced and broadcasted the photographs. In fact, what petitioners attributed to
respondents as an act of offensive disclosure was no more than the actuality that
respondents appended said photographs in their memorandum submitted to the
trial court in connection with Civil Case No. CEB-38594.52 These are not
tantamount to a violation of the minor’s informational privacy rights, contrary to
petitioners’ assertion.
In sum, there can be no quibbling that the images in question, or to be more
precise, the photos of minor students scantily clad, are personal in nature, likely to
affect, if indiscriminately circulated, the reputation of the minors enrolled in a
conservative institution. However, the records are bereft of any evidence, other
than bare assertions that they utilized Facebook’s privacy settings to make the
photos visible only to them or to a select few. Without proof that they placed the
photographs subject of this case within the ambit of their protected zone of privacy,
they cannot now insist that they have an expectation of privacy with respect to the
photographs in question.
Had it been proved that the access tothe pictures posted were limited to the
original uploader, through the "Me Only" privacy setting, or that the user’s contact
list has been screened to limit access to a select few, through the "Custom"
setting, the result may have been different, for in such instances, the intention to
limit access to the particular post, instead of being broadcasted to the public at
large or all the user’s friends en masse, becomes more manifest and palpable.
On Cyber Responsibility
It has been said that "the best filter is the one between your children’s ears." 53 This
means that self-regulation on the part of OSN users and internet consumers
ingeneral is the best means of avoiding privacy rights violations. 54 As a cyberspace
communitymember, one has to be proactive in protecting his or her own
privacy.55 It is in this regard that many OSN users, especially minors,
fail.Responsible social networking or observance of the "netiquettes"56 on the part
of teenagers has been the concern of many due to the widespreadnotion that
teenagers can sometimes go too far since they generally lack the people skills or
general wisdom to conduct themselves sensibly in a public forum. 57
Respondent STC is clearly aware of this and incorporating lessons on good cyber
citizenship in its curriculum to educate its students on proper online conduct may
be mosttimely. Too, it is not only STC but a number of schools and organizations
have already deemed it important to include digital literacy and good cyber
citizenshipin their respective programs and curricula in view of the risks that the
children are exposed to every time they participate in online
activities.58 Furthermore, considering the complexity of the cyber world and its
pervasiveness,as well as the dangers that these children are wittingly or
unwittingly exposed to in view of their unsupervised activities in cyberspace, the
participation of the parents in disciplining and educating their children about being
a good digital citizen is encouraged by these institutions and organizations. In fact,
it is believed that "to limit such risks, there’s no substitute for parental involvement
and supervision."59
As such, STC cannot be faulted for being steadfast in its duty of teaching its
students to beresponsible in their dealings and activities in cyberspace, particularly
in OSNs, whenit enforced the disciplinary actions specified in the Student
Handbook, absenta showing that, in the process, it violated the students’ rights.
OSN users should be aware of the risks that they expose themselves to whenever
they engage incyberspace activities.1âwphi1 Accordingly, they should be cautious
enough to control their privacy and to exercise sound discretion regarding how
much information about themselves they are willing to give up. Internet consumers
ought to be aware that, by entering or uploading any kind of data or information
online, they are automatically and inevitably making it permanently available
online, the perpetuation of which is outside the ambit of their control. Furthermore,
and more importantly, information, otherwise private, voluntarily surrendered by
them can be opened, read, or copied by third parties who may or may not be
allowed access to such.
It is, thus, incumbent upon internet users to exercise due diligence in their online
dealings and activities and must not be negligent in protecting their rights. Equity
serves the vigilant. Demanding relief from the courts, as here, requires that
claimants themselves take utmost care in safeguarding a right which they allege to
have been violated. These are indispensable. We cannot afford protection to
persons if they themselves did nothing to place the matter within the confines of
their private zone. OSN users must be mindful enough to learn the use of privacy
tools, to use them if they desire to keep the information private, and to keep track
of changes in the available privacy settings, such as those of Facebook, especially
because Facebook is notorious for changing these settings and the site's layout
often.
In finding that respondent STC and its officials did not violate the minors' privacy
rights, We find no cogent reason to disturb the findings and case disposition of the
court a quo.
In light of the foregoing, the Court need not belabor the other assigned errors.
WHEREFORE, premises considered, the petition is hereby DENIED. The Decision
dated July 27, 2012 of the Regional Trial Court, Branch 14 in Cebu City in SP.
Proc. No. 19251-CEB is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 182498 December 3, 2009
GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police
Chief Superintendent RAUL CASTAÑEDA, Chief, Criminal Investigation and
Detection Group (CIDG); Police Senior Superintendent LEONARDO A.
ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and
GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP, Petitioners,
vs.
MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA,
JR., Attorney-in-Fact, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari1 the decision dated March 7, 2008
of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.2 This CA decision
confirmed the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and
granted the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis
(respondent). The dispositive portion of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED. The Court
hereby FINDS that this is an "enforced disappearance" within the meaning of the
United Nations instruments, as used in the Amparo Rules. The privileges of the
writ of amparo are hereby extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal
Investigation and Detention Group (CIDG) who should order COL. JOSE
VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent
GEN. AVELINO I. RAZON, Chief, PNP, who should order his men, namely: (a)
respondent GEN. JOEL GOLTIAO, Regional Director of ARMM PNP, (b) COL.
AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c) respondent SR.
SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police Anti-Crime and
Emergency Response, to aid him as their superior- are hereby DIRECTED to
exert extraordinary diligence and efforts, not only to protect the life, liberty and
security of Engr. Morced Tagitis, but also to extend the privileges of the writ of
amparo to Engr. Morced Tagitis and his family, and to submit a monthly report of
their actions to this Court, as a way of PERIODIC REVIEW to enable this Court to
monitor the action of respondents.
This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER
YANO, Commanding General, Philippine Army, and as to respondent GEN.
RUBEN RAFAEL, Chief Anti-Terror Task Force Comet, Zamboanga City, both
being with the military, which is a separate and distinct organization from the police
and the CIDG, in terms of operations, chain of command and budget.
This Decision reflects the nature of the Writ of Amparo – a protective remedy
against violations or threats of violation against the rights to life, liberty and
security.3 It embodies, as a remedy, the court’s directive to police agencies to
undertake specified courses of action to address the disappearance of an
individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor
pinpoint criminal culpability for the disappearance; rather, it determines
responsibility, or at least accountability, for the enforced disappearance for
purposes of imposing the appropriate remedies to address the disappearance.
Responsibility refers to the extent the actors have been established by substantial
evidence to have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court shall craft,
among them, the directive to file the appropriate criminal and civil cases against
the responsible parties in the proper courts. Accountability, on the other hand,
refers to the measure of remedies that should be addressed to those who
exhibited involvement in the enforced disappearance without bringing the level of
their complicity to the level of responsibility defined above; or who are imputed with
knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance. In all
these cases, the issuance of the Writ of Amparo is justified by our primary goal of
addressing the disappearance, so that the life of the victim is preserved and his
liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that the
unique situations that call for the issuance of the writ, as well as the considerations
and measures necessary to address these situations, may not at all be the same
as the standard measures and procedures in ordinary court actions and
proceedings. In this sense, the Rule on the Writ of Amparo4 (Amparo Rule) issued
by this Court is unique. The Amparo Rule should be read, too, as a work in
progress, as its directions and finer points remain to evolve through time and
jurisprudence and through the substantive laws that Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the
Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship
Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong
(Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City. They immediately checked-
in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his
return trip the following day to Zamboanga. When Kunnong returned from this
errand, Tagitis was no longer around.5 The receptionist related that Tagitis went
out to buy food at around 12:30 in the afternoon and even left his room key with
the desk.6 Kunnong looked for Tagitis and even sent a text message to the latter’s
Manila-based secretary who did not know of Tagitis’ whereabouts and activities
either; she advised Kunnong to simply wait.7
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP
professor of Muslim studies and Tagitis’ fellow student counselor at the IDB,
reported Tagitis’ disappearance to the Jolo Police Station.8 On November 7, 2007,
Kunnong executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis’ disappearance.9
More than a month later (on December 28, 2007), the respondent filed a Petition
for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty.
Felipe P. Arcilla.10 The petition was directed against Lt. Gen. Alexander Yano,
Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine
National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation
and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-
Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-
PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet [collectively
referred to as petitioners]. After reciting Tagitis’ personal circumstances and the
facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house
to take his early lunch but while out on the street, a couple of burly men believed to
be police intelligence operatives, forcibly took him and boarded the latter on a
motor vehicle then sped away without the knowledge of his student, Arsimin
Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the
pension house, and was surprised to find out that subject Engr. Tagitis cannot [sic]
be contacted by phone and was not also around and his room was closed and
locked;
9. Kunnong requested for the key from the desk of the pension house who [sic]
assisted him to open the room of Engr. Tagitis, where they discovered that the
personal belongings of Engr. Tagitis, including cell phones, documents and other
personal belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts
in trying to locate the whereabouts of Engr. Tagitis and when he reported the
matter to the police authorities in Jolo, he was immediately given a ready answer
that Engr. Tagitis could have been abducted by the Abu Sayyaf group and other
groups known to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of the police
officers, Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by
phone and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines, who alerted the office of the Governor of ARMM
who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached some of her co-employees with
the Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought
help from some of their friends in the military who could help them find/locate the
whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce any positive results
except the information from persons in the military who do not want to be identified
that Engr. Tagitis is in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the
CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of
the police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [respondent’s] request and pleadings failed to produce any positive
results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by
the police that her husband, subject of the petition, was not missing but was with
another woman having good time somewhere, which is a clear indication of the
[petitioners’] refusal to help and provide police assistance in locating her missing
husband;
19. The continued failure and refusal of the [petitioners] to release and/or turn-over
subject Engr. Tagitis to his family or even to provide truthful information to [the
respondent] of the subject’s whereabouts, and/or allow [the respondent] to visit her
husband Engr. Morced Tagitis, caused so much sleepless nights and serious
anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to
the ARMM Police Headquarters again in Cotobato City and also to the different
Police Headquarters including [those] in Davao City, in Zamboanga City, in Jolo,
and in Camp Crame, Quezon City, and all these places have been visited by the
[respondent] in search for her husband, which entailed expenses for her trips to
these places thereby resorting her to borrowings and beggings [sic] for financial
help from friends and relatives only to try complying [sic] to the different
suggestions of these police officers, despite of which, her efforts produced no
positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper persons
that she should approach, but assured her not to worry because her husband is
[sic] in good hands;
22. The unexplained uncooperative behavior of the [petitioners] to the
[respondent’s] request for help and failure and refusal of the [petitioners] to extend
the needed help, support and assistance in locating the whereabouts of Engr.
Tagitis who had been declared missing since October 30, 2007 which is almost
two (2) months now, clearly indicates that the [petitioners] are actually in physical
possession and custody of [respondent’s] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but
to no avail, and under the circumstances, [the respondent] has no other plain,
speedy and adequate remedy to protect and get the release of subject Engr.
Morced Tagitis from the illegal clutches of the [petitioners], their intelligence
operatives and the like which are in total violation of the subject’s human and
constitutional rights, except the issuance of a WRIT OF AMPARO. [Emphasis
supplied]
On the same day the petition was filed, the CA immediately issued the Writ of
Amparo, set the case for hearing on January 7, 2008, and directed the petitioners
to file their verified return within seventy-two (72) hours from service of the writ.11
In their verified Return filed during the hearing of January 27, 2008, the petitioners
denied any involvement in or knowledge of Tagitis’ alleged abduction. They argued
that the allegations of the petition were incomplete and did not constitute a cause
of action against them; were baseless, or at best speculative; and were merely
based on hearsay evidence. 12
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated
that: he did not have any personal knowledge of, or any participation in, the
alleged disappearance; that he had been designated by President Gloria
Macapagal Arroyo as the head of a special body called TASK FORCE USIG, to
address concerns about extralegal killings and enforced disappearances; the Task
Force, inter alia, coordinated with the investigators and local police, held case
conferences, rendered legal advice in connection to these cases; and gave the
following summary:13
xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional Office ARMM
submitted a report on the alleged disappearance of one Engr. Morced Tagitis.
According to the said report, the victim checked-in at ASY Pension House on
October 30, 2007 at about 6:00 in the morning and then roamed around Jolo, Sulu
with an unidentified companion. It was only after a few days when the said victim
did not return that the matter was reported to Jolo MPS. Afterwards, elements of
Sulu PPO conducted a thorough investigation to trace and locate the whereabouts
of the said missing person, but to no avail. The said PPO is still conducting
investigation that will lead to the immediate findings of the whereabouts of the
person.
b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the
Director, CIDG. The said report stated among others that: subject person attended
an Education Development Seminar set on October 28, 2007 conducted at Ateneo
de Zamboanga, Zamboanga City together with a Prof. Matli. On October 30, 2007,
at around 5:00 o’clock in the morning, Engr. Tagitis reportedly arrived at Jolo Sulu
wharf aboard M/V Bounty Cruise, he was then billeted at ASY Pension House. At
about 6:15 o’clock in the morning of the same date, he instructed his student to
purchase a fast craft ticket bound for Zamboanga City and will depart from Jolo,
Sulu on October 31, 2007. That on or about 10:00 o’clock in the morning, Engr.
Tagitis left the premises of ASY Pension House as stated by the cashier of the
said pension house. Later in the afternoon, the student instructed to purchase the
ticket arrived at the pension house and waited for Engr. Tagitis, but the latter did
not return. On its part, the elements of 9RCIDU is now conducting a continuous
case build up and information gathering to locate the whereabouts of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of the search in all divisions of the
CIDG to find Engr. Tagitis who was allegedly abducted or illegally detained by
covert CIDG-PNP Intelligence Operatives since October 30, 2007, but after diligent
and thorough search, records show that no such person is being detained in CIDG
or any of its department or divisions.
5. On this particular case, the Philippine National Police exhausted all possible
efforts, steps and actions available under the circumstances and continuously
search and investigate [sic] the instant case. This immense mandate, however,
necessitates the indispensable role of the citizenry, as the PNP cannot stand alone
without the cooperation of the victims and witnesses to identify the perpetrators to
bring them before the bar of justice and secure their conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
affidavit, also attached to the Return of the Writ, attesting that upon receipt of the
Writ of Amparo, he caused the following: 14
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the
Honorable Special Fourth Division of the Court of Appeals, I immediately directed
the Investigation Division of this Group [CIDG] to conduct urgent investigation on
the alleged enforced disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education
Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at
around six o’clock in the morning he arrived at Jolo, Sulu. He was assisted by his
student identified as Arsimin Kunnong of the Islamic Development Bank who was
also one of the participants of the said seminar. He checked in at ASY pension
house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic]
unidentified companion. At around six o’clock in the morning of even date, Engr.
Tagitis instructed his student to purchase a fast craft ticket for Zamboanga City. In
the afternoon of the same date, Kunnong arrived at the pension house carrying the
ticket he purchased for Engr. Tagitis, but the latter was nowhere to be found
anymore. Kunnong immediately informed Prof. Abdulnasser Matli who reported the
incident to the police. The CIDG is not involved in the disappearance of Engr.
Morced Tagitis to make out a case of an enforced disappearance which
presupposes a direct or indirect involvement of the government.
That herein [petitioner] searched all divisions and departments for a person named
Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by
covert CIDG-PNP Intelligence Operatives since October 30, 2007 and after a
diligent and thorough research records show that no such person is being detained
in CIDG or any of its department or divisions.
That nevertheless, in order to determine the circumstances surrounding Engr.
Morced Tagitis [sic] alleged enforced disappearance, the undersigned had
undertaken immediate investigation and will pursue investigations up to its full
completion in order to aid in the prosecution of the person or persons responsible
therefore.
Likewise attached to the Return of the Writ was PNP-PACER15 Chief PS Supt.
Leonardo A. Espina’s affidavit which alleged that:16
xxxx
That, I and our men and women in PACER vehemently deny any participation in
the alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on
October 30, 2007. As a matter of fact, nowhere in the writ was mentioned that the
alleged abduction was perpetrated by elements of PACER nor was there any
indication that the alleged abduction or illegal detention of ENGR. TAGITIS was
undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence
operatives alleged to have abducted or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged
disappearance of ENGR. MORCED in my capacity as the chief PACER [sic]
considering that our office, the Police Anti-Crime and Emergency Response
(PACER), a special task force created for the purpose of neutralizing or eradicating
kidnap-for-ransom groups which until now continue to be one of the menace of our
society is a respondent in kidnapping or illegal detention case. Simply put, our task
is to go after kidnappers and charge them in court and to abduct or illegally detain
or kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I directed the
Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active
measures to investigate, locate/search the subject, identify and apprehend the
persons responsible, to recover and preserve evidence related to the
disappearance of ENGR. MORCED TAGITIS, which may aid in the prosecution of
the person or persons responsible, to identify witnesses and obtain statements
from them concerning the disappearance and to determine the cause, manner,
location and time of disappearance as well as any pattern or practice that may
have brought about the disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent JOSE
ARNALDO BRIONES JR., to submit a written report regarding the disappearance
of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent through fax
his written report.
That the investigation and measures being undertaken to locate/search the subject
in coordination with Police Regional Office, Autonomous Region of Muslim
Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP
and PNP units/agencies in the area are ongoing with the instruction not to leave
any stone unturned so to speak in the investigation until the perpetrators in the
instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT
OF AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen.
Goltiao), also submitted his affidavit detailing the actions that he had taken upon
receipt of the report on Tagitis’ disappearance, viz:17
xxxx
3) For the record:
1. I am the Regional Director of Police Regional Office ARMM now and during the
time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of
reported enforced disappearances and when they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office
reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on
November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee
of Islamic Development Bank, appeared before the Office of the Chief of Police,
Jolo Police Station, and reported the disappearance of Engr. Morced Tagitis,
scholarship coordinator of Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or taken
by any member of the Philippine National Police but rather he just disappeared
from ASY Pension House situated at Kakuyagan Village, Village, Patikul, Sulu, on
October 30, 2007, without any trace of forcible abduction or arrest;
7. The last known instance of communication with him was when Arsimin
Kunnong, a student scholar, was requested by him to purchase a vessel ticket at
the Office of Weezam Express, however, when the student returned back to ASY
Pension House, he no longer found Engr. Tagitis there and when he immediately
inquired at the information counter regarding his whereabouts [sic], the person in
charge in the counter informed him that Engr. Tagitis had left the premises on
October 30, 2007 around 1 o’clock p.m. and never returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial
Director of Sulu Police Provincial Office and other units through phone call and text
messages to conduct investigation [sic] to determine the whereabouts of the
aggrieved party and the person or persons responsible for the threat, act or
omission, to recover and preserve evidence related to the disappearance of Engr.
Tagitis, to identify witnesses and obtain statements from them concerning his
disappearance, to determine the cause and manner of his disappearance, to
identify and apprehend the person or persons involved in the disappearance so
that they shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and Detection
Management Division, I have caused the following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007
directing PD Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM
on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007
directing PD Sulu PPO to expedite compliance to my previous directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating
our series of directives for investigation and directing him to undertake exhaustive
coordination efforts with the owner of ASY Pension House and student scholars of
IDB in order to secure corroborative statements regarding the disappearance and
whereabouts of said personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing
him to maximize efforts to establish clues on the whereabouts of Engr. Tagitis by
seeking the cooperation of Prof. Abdulnasser Matli and Arsimin Kunnong and/or
whenever necessary, for them to voluntarily submit for polygraph examination with
the NBI so as to expunge all clouds of doubt that they may somehow have
knowledge or idea to his disappearance;
e) Memorandum dated December 27, 2007 addressed to the Regional Chief,
Criminal Investigation and Detection Group, Police Regional Office 9, Zamboanga
City, requesting assistance to investigate the cause and unknown disappearance
of Engr. Tagitis considering that it is within their area of operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated December
30, 2007 addressed to PD Sulu PPO requiring them to submit complete
investigation report regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to
conduct investigation [sic] on the matter to determine the whereabouts of Engr.
Tagitis and the circumstances related to his disappearance and submitted the
following:
a) Progress Report dated November 6, 2007 through Radio Message Cite No.
SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are
still monitoring the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo
Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as shown
in the following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing
him of the facts of the disappearance and the action being taken by our office;
b) Memorandum dated November 6, 2007 addressed to the Director, Directorate
for Investigation and Detection Management, NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be
determined but our office is continuously intensifying the conduct of information
gathering, monitoring and coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note of
favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao
– as the officer in command of the area of disappearance – to form TASK FORCE
TAGITIS.18
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt.
Ajirim) to head TASK FORCE TAGITIS.19 The CA subsequently set three hearings
to monitor whether TASK FORCE TAGITIS was exerting "extraordinary efforts" in
handling the disappearance of Tagitis.20 As planned, (1) the first hearing would be
to mobilize the CIDG, Zamboanga City; (2) the second hearing would be to
mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing would
be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of
Zamboanga City and other police operatives.21
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA
an intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo
Police Station, stating a possible motive for Tagitis’ disappearance. 22 The
intelligence report was apparently based on the sworn affidavit dated January 4,
2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies
at the University of the Philippines and an Honorary Student Counselor of the IDB
Scholarship Program in the Philippines, who told the Provincial Governor of Sulu
that:23
[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis
has reportedly taken and carried away… more or less Five Million Pesos
(P5,000,000.00) deposited and entrusted to his … [personal] bank accounts by the
Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was] intended for
the … IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to
be responsible, he personally went to the CIDG office in Zamboanga City to
conduct an ocular inspection/investigation, particularly of their detention cells. 24 PS
Supt. Ajirim stated that the CIDG, while helping TASK FORCE TAGITIS
investigate the disappearance of Tagitis, persistently denied any knowledge or
complicity in any abduction.25 He further testified that prior to the hearing, he had
already mobilized and given specific instructions to their supporting units to
perform their respective tasks; that they even talked to, but failed to get any lead
from the respondent in Jolo.26 In his submitted investigation report dated January
16, 2008, PS Supt. Ajirim concluded:27
9. Gleaned from the undersigned inspection and observation at the Headquarters
9 RCIDU and the documents at hand, it is my own initial conclusion that the
9RCIDU and other PNP units in the area had no participation neither [sic]
something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last
October 30, 2007. Since doubt has been raised regarding the emolument on the
Islamic Development Bank Scholar program of IDB that was reportedly deposited
in the personal account of Engr. Tagitis by the IDB central office in Jeddah,
Kingdom of Saudi Arabia. Secondly, it could might [sic] be done by resentment or
sour grape among students who are applying for the scholar [sic] and were denied
which was allegedly conducted/screened by the subject being the coordinator of
said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that
the motive behind the disappearance of the subject might be due to the funds he
maliciously spent for his personal interest and wanted to elude responsibilities from
the institution where he belong as well as to the Islamic student scholars should
the statement of Prof. Matli be true or there might be a professional jealousy
among them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents be
dropped and dismissed considering on [sic] the police and military actions in the
area particularly the CIDG are exerting their efforts and religiously doing their
tasked [sic] in the conduct of its intelligence monitoring and investigation for the
early resolution of this instant case. But rest assured, our office, in coordination
with other law-enforcement agencies in the area, are continuously and religiously
conducting our investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis
did not appear to be exerting extraordinary efforts in resolving Tagitis’
disappearance on the following grounds:28
(1) This Court FOUND that it was only as late as January 28, 2008, after the
hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested for
clear photographs when it should have been standard operating procedure in
kidnappings or disappearances that the first agenda was for the police to
secure clear pictures of the missing person, Engr. Morced Tagitis, for
dissemination to all parts of the country and to neighboring countries. It had been
three (3) months since GEN. JOEL GOLTIAO admitted having been informed on
November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged bad
elements of the CIDG. It had been more than one (1) month since the Writ of
Amparo had been issued on December 28, 2007. It had been three (3) weeks
when battle formation was ordered through Task Force Tagitis, on January 17,
2008. It was only on January 28, 2008 when the Task Force Tagitis requested for
clear and recent photographs of the missing person, Engr. Morced Tagitis, despite
the Task Force Tagitis’ claim that they already had an "all points bulletin", since
November 5, 2007, on the missing person, Engr. Morced Tagitis. How could the
police look for someone who disappeared if no clear photograph had been
disseminated?
(2) Furthermore, Task Force Tagitis’ COL. AHIROM AJIRIM informed this Court
that P/Supt KASIM was designated as Col. Ahirom Ajirim’s replacement in the
latter’s official designated post. Yet, P/Supt KASIM’s subpoena was returned to
this Court unserved. Since this Court was made to understand that it was P/Supt
KASIM who was the petitioner’s unofficial source of the military intelligence
information that Engr. Morced Tagitis was abducted by bad elements of the CIDG
(par. 15 of the Petition), the close contact between P/Supt KASIM and Col. Ahirom
Ajirim of TASK FORCE TAGITIS should have ensured the appearance of Col.
KASIM in response to this court’s subpoena and COL. KASIM could have
confirmed the military intelligence information that bad elements of the CIDG had
abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
husband. She said that a friend from Zamboanga holding a high position in the
military (whom she did not then identify) gave her information that allowed her to
"specify" her allegations, "particularly paragraph 15 of the petition."29 This friend
also told her that her husband "[was] in good hands." 30 The respondent also
testified that she sought the assistance of her former boss in Davao City, Land
Bank Bajada Branch Manager Rudy Salvador, who told her that "PNP CIDG is
holding [her husband], Engineer Morced Tagitis."31 The respondent recounted that
she went to Camp Katitipan in Davao City where she met Col. Julasirim Ahadin
Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were
then with her) a "highly confidential report" that contained the "alleged activities of
Engineer Tagitis" and informed her that her husband was abducted because "he is
under custodial investigation" for being a liaison for "J.I. or Jema’ah Islamiah."32
On January 17, 2008, the respondent on cross-examination testified that she is
Tagitis’ second wife, and they have been married for thirteen years; Tagitis was
divorced from his first wife.33 She last communicated with her husband on October
29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on his way
to Jolo, Sulu, from Zamboanga City.34
The respondent narrated that she learned of her husband’s disappearance on
October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her
that she had not heard from her father since the time they arranged to meet in
Manila on October 31, 2007.35 The respondent explained that it took her a few
days (or on November 5, 2007) to personally ask Kunnong to report her husband’s
disappearance to the Jolo Police Station, since she had the impression that her
husband could not communicate with her because his cellular phone’s battery did
not have enough power, and that he would call her when he had fully-charged his
cellular phone’s battery.36
The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr
(Col. Ancanan). She met him in Camp Karingal, Zamboanga through her
boss.37 She also testified that she was with three other people, namely, Mrs.
Marydel Martin Talbin and her two friends from Mati City, Davao Oriental, when
Col. Kasim read to them the contents of the "highly confidential report" at Camp
Katitipan, Davao City. The respondent further narrated that the report indicated
that her husband met with people belonging to a terrorist group and that he was
under custodial investigation. She then told Col. Kasim that her husband was a
diabetic taking maintenance medication, and asked that the Colonel relay to the
persons holding him the need to give him his medication.38
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative
reports,39 signed by the respondent, detailing her efforts to locate her husband
which led to her meetings with Col. Ancanan of the Philippine Army and Col.
Kasim of the PNP. In her narrative report concerning her meeting with Col.
Ancanan, the respondent recounted, viz:40
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel
Talbin. Our flight from Davao City is 9:00 o’clock in the morning; we arrived at
Zamboanga Airport at around 10:00 o’clock. We [were] fetched by the two staffs of
Col. Ancanan. We immediately proceed [sic] to West Mindanao Command
(WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He interviewed
me and got information about the personal background of Engr. Morced N. Tagitis.
After he gathered all information, he revealed to us the contents of text messages
they got from the cellular phone of the subject Engr. Tagitis. One of the very
important text messages of Engr. Tagitis sent to his daughter Zaynah Tagitis was
that she was not allowed to answer any telephone calls in his condominium unit.
While we were there he did not tell us any information of the whereabouts of Engr.
Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the
city. His two staffs accompanied us to the mall to purchase our plane ticket going
back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col.
Ancanan and I were discussing some points through phone calls. He assured me
that my husband is alive and he’s last looked [sic] in Talipapao, Jolo, Sulu. Yet I
did not believe his given statements of the whereabouts of my husband, because I
contacted some of my friends who have access to the groups of MILF, MNLF and
ASG. I called up Col. Ancanan several times begging to tell me the exact location
of my husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again because
the PNP, Jolo did not give me any information of the whereabouts of my husband.
Col. Ancanan told me that "Sana ngayon alam mo na kung saan ang kinalalagyan
ng asawa mo." When I was in Zamboanga, I was thinking of dropping by the office
of Col. Ancanan, but I was hesitant to pay him a visit for the reason that the Chief
of Police of Jolo told me not to contact any AFP officials and he promised me that
he can solve the case of my husband (Engr. Tagitis) within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my husband
Engr. Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as follows: 41
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch,
Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer
Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30, 2007. I
asked him a favor to contact his connections in the military in Jolo, Sulu where the
abduction of Engr. Tagitis took place. Mr. Salvador immediately called up Camp
Katitipan located in Davao City looking for high-ranking official who can help me
gather reliable information behind the abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador
introduced me to Col. Kasim and we had a short conversation. And he assured me
that he’ll do the best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me that I
am to go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential
information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three friends.
That was the time that Col. Kasim read to us the confidential report that Engr.
Tagitis was allegedly connected [with] different terrorist [groups], one of which he
mentioned in the report was OMAR PATIK and a certain SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
terrorists as a supplier. These are the two information that I can still remember. It
was written in a long bond paper with PNP Letterhead. It was not shown to us, yet
Col. Kasim was the one who read it for us.
He asked a favor to me that "Please don’t quote my Name! Because this is a raw
report." He assured me that my husband is alive and he is in the custody of the
military for custodial investigation. I told him to please take care of my husband
because he has aliments and he recently took insulin for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got from
Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs.
Talbin) to corroborate her testimony regarding her efforts to locate her husband, in
relation particularly with the information she received from Col. Kasim. Mrs. Talbin
testified that she was with the respondent when she went to Zamboanga to see
Col. Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.42
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told
them that there was a report and that he showed them a series of text messages
from Tagitis’ cellular phone, which showed that Tagitis and his daughter would
meet in Manila on October 30, 2007.43
She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and
Mini Leong, to Camp Katitipan to talk to Col. Kasim.44 The respondent asked Col.
Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that
Tagitis was in good hands, although he was not certain whether he was with the
PNP or with the Armed Forces of the Philippines (AFP). She further recounted that
based on the report Col. Kasim read in their presence, Tagitis was under custodial
investigation because he was being charged with terrorism; Tagitis in fact had
been under surveillance since January 2007 up to the time he was abducted when
he was seen talking to Omar Patik and a certain Santos of Bulacan, a "Balik Islam"
charged with terrorism. Col. Kasim also told them that he could not give a copy of
the report because it was a "raw report."45 She also related that the Col. Kasim did
not tell them exactly where Tagitis was being kept, although he mentioned
Talipapao, Sulu.Prof., lalabas din yan."50 Prof. Matli also emphasized that despite
what his January 4, 2008 affidavit indicated,51 he never told PS Supt. Pingay, or
made any accusation, that Tagitis took away money entrusted to him. 52 Prof. Matli
confirmed, however, that that he had received an e-mail report53 from Nuraya
Lackian of the Office of Muslim Affairs in Manila that the IDB was seeking
assistance of the office in locating the funds of IDB scholars deposited in Tagitis’
personal account.54
On cross-examination by the respondent’s counsel, Prof. Matli testified that his
January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him
to sign it.55 Prof Matli clarified that although he read the affidavit before signing it,
he "was not so much aware of… [its] contents."56
On February 11, 2008, the petitioners presented Col. Kasim to rebut material
portions of the respondent’s testimony, particularly the allegation that he had
stated that Tagitis was in the custody of either the military or the PNP.57 Col. Kasim
categorically denied the statements made by the respondent in her narrative
report, specifically: (1) that Tagitis was seen carrying boxes of medicines as
supplier for the injured terrorists; (2) that Tagitis was under the custody of the
military, since he merely said to the respondent that "your husband is in good
hands" and is "probably taken cared of by his armed abductors;" and (3) that
Tagitis was under custodial investigation by the military, the PNP or the CIDG
Zamboanga City.58 Col. Kasim emphasized that the "informal letter" he received
from his informant in Sulu did not indicate that Tagitis was in the custody of the
CIDG.59 He also stressed that the information he provided to the respondent was
merely a "raw report" sourced from "barangay intelligence" that still needed
confirmation and "follow-up" as to its veracity.60
On cross-examination, Col. Kasim testified that the information he gave the
respondent was given to him by his informant, who was a "civilian asset," through
a letter which he considered as "unofficial."61 Col. Kasim stressed that the letter
was only meant for his "consumption" and not for reading by others.62 He testified
further that he destroyed the letter right after he read it to the respondent and her
companions because "it was not important to him" and also because the
information it contained had no importance in relation with the abduction of
Tagitis.63 He explained that he did not keep the letter because it did not contain
any information regarding the whereabouts of Tagitis and the person(s)
responsible for his abduction.64
In the same hearing on February 11, 2008, the petitioners also presented Police
Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to
disprove the respondent’s allegation that Tagitis was in the custody of CIDG-
Zamboanga City.65 Col. Pante clarified that the CIDG was the "investigative arm"
of the PNP, and that the CIDG "investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those considered as heinous
crimes."66 Col. Pante further testified that the allegation that 9 RCIDU personnel
were involved in the disappearance of Tagitis was baseless, since they did not
conduct any operation in Jolo, Sulu before or after Tagitis’ reported
disappearance.67 Col. Pante added that the four (4) personnel assigned to the Sulu
CIDT had no capability to conduct any "operation," since they were only assigned
to investigate matters and to monitor the terrorism situation.68 He denied that his
office conducted any surveillance on Tagitis prior to the latter’s
disappearance.69 Col. Pante further testified that his investigation of Tagitis’
disappearance was unsuccessful; the investigation was "still facing a blank wall"
on the whereabouts of Tagitis.70
THE CA RULING
On March 7, 2008, the CA issued its decision71 confirming that the disappearance
of Tagitis was an "enforced disappearance" under the United Nations (UN)
Declaration on the Protection of All Persons from Enforced Disappearances. 72 The
CA ruled that when military intelligence pinpointed the investigative arm of the PNP
(CIDG) to be involved in the abduction, the missing-person case qualified as an
enforced disappearance. The conclusion that the CIDG was involved was based
on the respondent’s testimony, corroborated by her companion, Mrs. Talbin. The
CA noted that the information that the CIDG, as the police intelligence arm, was
involved in Tagitis’ abduction came from no less than the military – an independent
agency of government. The CA thus greatly relied on the "raw report" from Col.
Kasim’s asset, pointing to the CIDG’s involvement in Tagitis’ abduction. The CA
held that "raw reports" from an "asset" carried "great weight" in the intelligence
world. It also labeled as "suspect" Col. Kasim’s subsequent and belated retraction
of his statement that the military, the police, or the CIDG was involved in the
abduction of Tagitis.
The CA characterized as "too farfetched and unbelievable" and "a bedlam of
speculation" police theories painting the disappearance as "intentional" on the part
of Tagitis. He had no previous brushes with the law or any record of overstepping
the bounds of any trust regarding money entrusted to him; no student of the IDB
scholarship program ever came forward to complain that he or she did not get his
or her stipend. The CA also found no basis for the police theory that Tagitis was
"trying to escape from the clutches of his second wife," on the basis of the
respondent’s testimony that Tagitis was a Muslim who could have many wives
under the Muslim faith, and that there was "no issue" at all when the latter divorced
his first wife in order to marry the second. Finally, the CA also ruled out kidnapping
for ransom by the Abu Sayyaf or by the ARMM paramilitary as the cause for
Tagitis’ disappearance, since the respondent, the police and the military noted that
there was no acknowledgement of Tagitis’ abduction or demand for payment of
ransom – the usual modus operandi of these terrorist groups.
Based on these considerations, the CA thus extended the privilege of the writ to
Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP
Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col.
Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert
extraordinary diligence and efforts to protect the life, liberty and security of Tagitis,
with the obligation to provide monthly reports of their actions to the CA. At the
same time, the CA dismissed the petition against the then respondents from the
military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that
it was PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the
CA denied the motion in its Resolution of April 9, 2008. 73
THE PETITION
In this Rule 45 appeal questioning the CA’s March 7, 2008 decision, the petitioners
mainly dispute the sufficiency in form and substance of the Amparo petition filed
before the CA; the sufficiency of the legal remedies the respondent took before
petitioning for the writ; the finding that the rights to life, liberty and security of
Tagitis had been violated; the sufficiency of evidence supporting the conclusion
that Tagitis was abducted; the conclusion that the CIDG Zamboanga was
responsible for the abduction; and, generally, the ruling that the respondent
discharged the burden of proving the allegations of the petition by substantial
evidence.74
THE COURT’S RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the respondent’s Amparo
petition, the petitioners contend that the petition violated Section 5(c), (d), and (e)
of the Amparo Rule. Specifically, the petitioners allege that the respondent failed
to:
1) allege any act or omission the petitioners committed in violation of Tagitis’ rights
to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons responsible
for his disappearance, and the respondent’s source of information;
3) allege that the abduction was committed at the petitioners’ instructions or with
their consent;
4) implead the members of CIDG regional office in Zamboanga alleged to have
custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the performance of
their duties in the investigation of Tagitis’ disappearance; and
7) specify what legally available efforts she took to determine the fate or
whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified and shall allege,
among others (in terms of the portions the petitioners cite):75
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals,
as well as the manner and conduct of the investigation, together with any
report;
(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be complete in
every detail in stating the threatened or actual violation of a victim’s rights. As in
any other initiatory pleading, the pleader must of course state the ultimate facts
constituting the cause of action, omitting the evidentiary details. 76 In an Amparo
petition, however, this requirement must be read in light of the nature and purpose
of the proceeding, which addresses a situation of uncertainty; the petitioner may
not be able to describe with certainty how the victim exactly disappeared, or who
actually acted to kidnap, abduct or arrest him or her, or where the victim is
detained, because these information may purposely be hidden or covered up by
those who caused the disappearance. In this type of situation, to require the level
of specificity, detail and precision that the petitioners apparently want to read into
the Amparo Rule is to make this Rule a token gesture of judicial concern for
violations of the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while addressing the unique
Amparo situation, the test in reading the petition should be to determine whether it
contains the details available to the petitioner under the circumstances, while
presenting a cause of action showing a violation of the victim’s rights to life, liberty
and security through State or private party action. The petition should likewise be
read in its totality, rather than in terms of its isolated component parts, to determine
if the required elements – namely, of the disappearance, the State or private
action, and the actual or threatened violations of the rights to life, liberty or security
– are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after engaging in
normal activities, and thereafter was nowhere to be found despite efforts to locate
him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15
and 16, that according to reliable information, police operatives were the
perpetrators of the abduction. It also clearly alleged how Tagitis’ rights to life,
liberty and security were violated when he was "forcibly taken and boarded on a
motor vehicle by a couple of burly men believed to be police intelligence
operatives," and then taken "into custody by the respondents’ police intelligence
operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga
City, x x x held against his will in an earnest attempt of the police to involve and
connect [him] with different terrorist groups."77
These allegations, in our view, properly pleaded ultimate facts within the pleader’s
knowledge about Tagitis’ disappearance, the participation by agents of the State in
this disappearance, the failure of the State to release Tagitis or to provide sufficient
information about his whereabouts, as well as the actual violation of his right to
liberty. Thus, the petition cannot be faulted for any failure in its statement of a
cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of supporting
affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary
nature of the proceedings for the writ and to facilitate the resolution of the petition,
the Amparo Rule incorporated the requirement for supporting affidavits, with the
annotation that these can be used as the affiant’s direct testimony. 78 This
requirement, however, should not be read as an absolute one that necessarily
leads to the dismissal of the petition if not strictly followed. Where, as in this case,
the petitioner has substantially complied with the requirement by submitting a
verified petition sufficiently detailing the facts relied upon, the strict need for the
sworn statement that an affidavit represents is essentially fulfilled. We note that the
failure to attach the required affidavits was fully cured when the respondent and
her witness (Mrs. Talbin) personally testified in the CA hearings held on January 7
and 17 and February 18, 2008 to swear to and flesh out the allegations of the
petition. Thus, even on this point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an alleged
disappearance must have been made, specifying the manner and results of the
investigation. Effectively, this requirement seeks to establish at the earliest
opportunity the level of diligence the public authorities undertook in relation with
the reported disappearance.79
We reject the petitioners’ argument that the respondent’s petition did not comply
with the Section 5(d) requirements of the Amparo Rule, as the petition specifies in
its paragraph 11 that Kunnong and his companions immediately reported Tagitis’
disappearance to the police authorities in Jolo, Sulu as soon as they were
relatively certain that he indeed had disappeared. The police, however, gave them
the "ready answer" that Tagitis could have been abducted by the Abu Sayyaf
group or other anti-government groups. The respondent also alleged in paragraphs
17 and 18 of her petition that she filed a "complaint" with the PNP Police Station in
Cotobato and in Jolo, but she was told of "an intriguing tale" by the police that her
husband was having "a good time with another woman." The disappearance was
alleged to have been reported, too, to no less than the Governor of the ARMM,
followed by the respondent’s personal inquiries that yielded the factual bases for
her petition.80
These allegations, to our mind, sufficiently specify that reports have been made to
the police authorities, and that investigations should have followed. That the
petition did not state the manner and results of the investigation that the Amparo
Rule requires, but rather generally stated the inaction of the police, their failure to
perform their duty to investigate, or at the very least, their reported failed efforts,
should not be a reflection on the completeness of the petition. To require the
respondent to elaborately specify the names, personal circumstances, and
addresses of the investigating authority, as well the manner and conduct of the
investigation is an overly strict interpretation of Section 5(d), given the
respondent’s frustrations in securing an investigation with meaningful results.
Under these circumstances, we are more than satisfied that the allegations of the
petition on the investigations undertaken are sufficiently complete for purposes of
bringing the petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition – that otherwise
is not supported by sufficient allegations to constitute a proper cause of action – as
a means to "fish" for evidence.81 The petitioners contend that the respondent’s
petition did not specify what "legally available efforts were taken by the
respondent," and that there was an "undue haste" in the filing of the petition when,
instead of cooperating with authorities, the respondent immediately invoked the
Court’s intervention.
We do not see the respondent’s petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the
present case) allege "the actions and recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission." The following allegations of the respondent’s petition
duly outlined the actions she had taken and the frustrations she encountered, thus
compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house
to take his early lunch but while out on the street, a couple of burly men believed to
be police intelligence operatives, forcibly took him and boarded the latter on a
motor vehicle then sped away without the knowledge of his student, Arsimin
Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts
in trying to locate the whereabouts of Engr. Tagitis and when he reported the
matter to the police authorities in Jolo, he was immediately given a ready answer
that Engr. Tagitis could [have been] abducted by the Abu Sayyaf group and other
groups known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by phone
and other responsible officers and coordinators of the IDB Scholarship Programme
in the Philippines who alerted the office of the Governor of ARMM who was then
preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-employees
with the Land Bank in Digos branch, Digos City, Davao del Sur, who likewise
sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;
xxxx
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the
CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of
the police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM
in Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [the respondent’s] request and pleadings failed to produce any
positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different Police
Headquarters including the police headquarters in Davao City, in Zamboanga City,
in Jolo, and in Camp Crame, Quezon City, and all these places have been visited
by the [respondent] in search for her husband, which entailed expenses for her
trips to these places thereby resorting her to borrowings and beggings [sic] for
financial help from friends and relatives only to try complying to the different
suggestions of these police officers, despite of which, her efforts produced no
positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but
to no avail, and under the circumstances, [respondent] has no other plain, speedy
and adequate remedy to protect and get the release of subject Engr. Morced
Tagitis from the illegal clutches of [the petitioners], their intelligence operatives and
the like which are in total violation of the subject’s human and constitutional rights,
except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondent’s petition for the Writ
of Amparo is sufficient in form and substance and that the Court of Appeals had
every reason to proceed with its consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and application of the Rule
on the Writ of Amparo in an enforced disappearance situation. For a deeper
appreciation of the application of this Rule to an enforced disappearance situation,
a brief look at the historical context of the writ and enforced disappearances would
be very helpful.
The phenomenon of enforced disappearance arising from State action first
attracted notice in Adolf Hitler’s Nact und Nebel Erlass or Night and Fog Decree of
December 7, 1941.82 The Third Reich’s Night and Fog Program, a State policy,
was directed at persons in occupied territories "endangering German security";
they were transported secretly to Germany where they disappeared without a
trace. In order to maximize the desired intimidating effect, the policy prohibited
government officials from providing information about the fate of these targeted
persons.83
In the mid-1970s, the phenomenon of enforced disappearances resurfaced,
shocking and outraging the world when individuals, numbering anywhere from
6,000 to 24,000, were reported to have "disappeared" during the military regime in
Argentina. Enforced disappearances spread in Latin America, and the issue
became an international concern when the world noted its widespread and
systematic use by State security forces in that continent under Operation
Condor84 and during the Dirty War85 in the 1970s and 1980s. The escalation of the
practice saw political activists secretly arrested, tortured, and killed as part of
governments’ counter-insurgency campaigns. As this form of political brutality
became routine elsewhere in the continent, the Latin American media standardized
the term "disappearance" to describe the phenomenon. The victims of enforced
disappearances were called the "desaparecidos,"86 which literally means the
"disappeared ones."87 In general, there are three different kinds of "disappearance"
cases:
1) those of people arrested without witnesses or without positive identification of
the arresting agents and are never found again;
2) those of prisoners who are usually arrested without an appropriate warrant and
held in complete isolation for weeks or months while their families are unable to
discover their whereabouts and the military authorities deny having them in
custody until they eventually reappear in one detention center or another; and
3) those of victims of "salvaging" who have disappeared until their lifeless bodies
are later discovered.88
In the Philippines, enforced disappearances generally fall within the first two
categories,89 and 855 cases were recorded during the period of martial law from
1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and
127 were found dead. During former President Corazon C. Aquino’s term, 820
people were reported to have disappeared and of these, 612 cases were
documented. Of this number, 407 remain missing, 108 surfaced alive and 97 were
found dead. The number of enforced disappearances dropped during former
President Fidel V. Ramos’ term when only 87 cases were reported, while the
three-year term of former President Joseph E. Estrada yielded 58 reported cases.
KARAPATAN, a local non-governmental organization, reports that as of March 31,
2008, the records show that there were a total of 193 victims of enforced
disappearance under incumbent President Gloria M. Arroyo’s administration. The
Commission on Human Rights’ records show a total of 636 verified cases of
enforced disappearances from 1985 to 1993. Of this number, 406 remained
missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined
status.90 Currently, the United Nations Working Group on Enforced or Involuntary
Disappearance91 reports 619 outstanding cases of enforced or involuntary
disappearances covering the period December 1, 2007 to November 30, 2008.92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover extralegal killings
and enforced disappearances or threats thereof."93 We note that although the writ
specifically covers "enforced disappearances," this concept is neither defined nor
penalized in this jurisdiction. The records of the Supreme Court Committee on the
Revision of Rules (Committee) reveal that the drafters of the Amparo Rule initially
considered providing an elemental definition of the concept of enforced
disappearance:94
JUSTICE MARTINEZ: I believe that first and foremost we should come up or
formulate a specific definition [for] extrajudicial killings and enforced
disappearances. From that definition, then we can proceed to formulate the rules,
definite rules concerning the same.
CHIEF JUSTICE PUNO: … As things stand, there is no law penalizing extrajudicial
killings and enforced disappearances… so initially also we have to [come up with]
the nature of these extrajudicial killings and enforced disappearances [to be
covered by the Rule] because our concept of killings and disappearances will
define the jurisdiction of the courts. So we’ll have to agree among ourselves about
the nature of killings and disappearances for instance, in other jurisdictions, the
rules only cover state actors. That is an element incorporated in their concept of
extrajudicial killings and enforced disappearances. In other jurisdictions, the
concept includes acts and omissions not only of state actors but also of non state
actors. Well, more specifically in the case of the Philippines for instance, should
these rules include the killings, the disappearances which may be authored by let
us say, the NPAs or the leftist organizations and others. So, again we need to
define the nature of the extrajudicial killings and enforced disappearances that will
be covered by these rules. [Emphasis supplied] 95
In the end, the Committee took cognizance of several bills filed in the House of
Representatives96 and in the Senate97 on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual definition of these
terms in the Rule. The Committee instead focused on the nature and scope of the
concerns within its power to address and provided the appropriate remedy
therefor, mindful that an elemental definition may intrude into the ongoing
legislative efforts.98
As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts
undertaken to carry out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws.99 The simple reason is
that the Legislature has not spoken on the matter; the determination of what acts
are criminal and what the corresponding penalty these criminal acts should carry
are matters of substantive law that only the Legislature has the power to enact
under the country’s constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-judicial
killings and enforced disappearances, however, the Supreme Court is not
powerless to act under its own constitutional mandate to promulgate "rules
concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts,"100 since extrajudicial killings and enforced
disappearances, by their nature and purpose, constitute State or private party
violation of the constitutional rights of individuals to life, liberty and security.
Although the Court’s power is strictly procedural and as such does not diminish,
increase or modify substantive rights, the legal protection that the Court can
provide can be very meaningful through the procedures it sets in addressing
extrajudicial killings and enforced disappearances. The Court, through its
procedural rules, can set the procedural standards and thereby directly compel the
public authorities to act on actual or threatened violations of constitutional rights.
To state the obvious, judicial intervention can make a difference – even if only
procedurally – in a situation when the very same investigating public authorities
may have had a hand in the threatened or actual violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we do not
rule on any issue of criminal culpability for the extrajudicial killing or enforced
disappearance. This is an issue that requires criminal action before our criminal
courts based on our existing penal laws. Our intervention is in determining whether
an enforced disappearance has taken place and who is responsible or accountable
for this disappearance, and to define and impose the appropriate remedies to
address it. The burden for the public authorities to discharge in these situations,
under the Rule on the Writ of Amparo, is twofold. The first is to ensure that all
efforts at disclosure and investigation are undertaken under pain of indirect
contempt from this Court when governmental efforts are less than what the
individual situations require. The second is to address the disappearance, so that
the life of the victim is preserved and his or her liberty and security restored. In
these senses, our orders and directives relative to the writ are continuing efforts
that are not truly terminated until the extrajudicial killing or enforced disappearance
is fully addressed by the complete determination of the fate and the whereabouts
of the victim, by the production of the disappeared person and the restoration of
his or her liberty and security, and, in the proper case, by the commencement of
criminal action against the guilty parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary or enforced disappearance is
considered a flagrant violation of human rights.101 It does not only violate the right
to life, liberty and security of the desaparecido; it affects their families as well
through the denial of their right to information regarding the circumstances of the
disappeared family member. Thus, enforced disappearances have been said to be
"a double form of torture," with "doubly paralyzing impact for the victims," as they
"are kept ignorant of their own fates, while family members are deprived of
knowing the whereabouts of their detained loved ones" and suffer as well the
serious economic hardship and poverty that in most cases follow the
disappearance of the household breadwinner.102
The UN General Assembly first considered the issue of "Disappeared Persons" in
December 1978 under Resolution 33/173. The Resolution expressed the General
Assembly’s deep concern arising from "reports from various parts of the world
relating to enforced or involuntary disappearances," and requested the "UN
Commission on Human Rights to consider the issue of enforced disappearances
with a view to making appropriate recommendations."103
In 1992, in response to the reality that the insidious practice of enforced
disappearance had become a global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).104 This Declaration, for the first time, provided in its
third preambular clause a working description of enforced disappearance, as
follows:
Deeply concerned that in many countries, often in a persistent manner, enforced
disappearances occur, in the sense that persons are arrested, detained or
abducted against their will or otherwise deprived of their liberty by officials of
different branches or levels of Government, or by organized groups or private
individuals acting on behalf of, or with the support, direct or indirect, consent or
acquiescence of the Government, followed by a refusal to disclose the fate or
whereabouts of the persons concerned or a refusal to acknowledge the deprivation
of their liberty, which places such persons outside the protection of the law.
[Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly
adopted the International Convention for the Protection of All Persons from
Enforced Disappearance (Convention).105 The Convention was opened for
signature in Paris, France on February 6, 2007.106 Article 2 of the Convention
defined enforced disappearance as follows:
For the purposes of this Convention, "enforced disappearance" is considered to be
the arrest, detention, abduction or any other form of deprivation of liberty by agents
of the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to acknowledge the
deprivation of liberty or by concealment of the fate or whereabouts of the
disappeared person, which place such a person outside the protection of the law.
[Emphasis supplied]
The Convention is the first universal human rights instrument to assert that there is
a right not to be subject to enforced disappearance107 and that this right is non-
derogable.108 It provides that no one shall be subjected to enforced disappearance
under any circumstances, be it a state of war, internal political instability, or any
other public emergency. It obliges State Parties to codify enforced disappearance
as an offense punishable with appropriate penalties under their criminal law. 109 It
also recognizes the right of relatives of the disappeared persons and of the society
as a whole to know the truth on the fate and whereabouts of the disappeared and
on the progress and results of the investigation.110 Lastly, it classifies enforced
disappearance as a continuing offense, such that statutes of limitations shall not
apply until the fate and whereabouts of the victim are established. 111
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that the
country is not yet committed to enact any law penalizing enforced disappearance
as a crime. The absence of a specific penal law, however, is not a stumbling block
for action from this Court, as heretofore mentioned; underlying every enforced
disappearance is a violation of the constitutional rights to life, liberty and security
that the Supreme Court is mandated by the Constitution to protect through its rule-
making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is
guided, in acting on Amparo cases, by the reality that the Philippines is a member
of the UN, bound by its Charter and by the various conventions we signed and
ratified, particularly the conventions touching on humans rights. Under the UN
Charter, the Philippines pledged to "promote universal respect for, and observance
of, human rights and fundamental freedoms for all without distinctions as to race,
sex, language or religion."112 Although no universal agreement has been reached
on the precise extent of the "human rights and fundamental freedoms" guaranteed
to all by the Charter,113 it was the UN itself that issued the Declaration on enforced
disappearance, and this Declaration states:114
Any act of enforced disappearance is an offence to dignity. It is condemned as
a denial of the purposes of the Charter of the United Nations and as a grave and
flagrant violation of human rights and fundamental freedoms proclaimed in the
Universal Declaration of Human Rights and reaffirmed and developed in
international instruments in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter made
in a UN Declaration, the ban on enforced disappearance cannot but have its
effects on the country, given our own adherence to "generally accepted principles
of international law as part of the law of the land."115
In the recent case of Pharmaceutical and Health Care Association of the
Philippines v. Duque III,116 we held that:
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation. The transformation
method requires that an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration, international law is
deemed to have the force of domestic law. [Emphasis supplied]
We characterized "generally accepted principles of international law" as norms of
general or customary international law that are binding on all states. We held
further:117
[G]enerally accepted principles of international law, by virtue of the incorporation
clause of the Constitution, form part of the laws of the land even if they do not
derive from treaty obligations. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] two
elements: the established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter element is a
belief that the practice in question is rendered obligatory by the existence of a rule
of law requiring it. [Emphasis in the original]
The most widely accepted statement of sources of international law today is Article
38(1) of the Statute of the International Court of Justice, which provides that the
Court shall apply "international custom, as evidence of a general practice accepted
as law."118 The material sources of custom include State practice, State legislation,
international and national judicial decisions, recitals in treaties and other
international instruments, a pattern of treaties in the same form, the practice of
international organs, and resolutions relating to legal questions in the UN General
Assembly.119 Sometimes referred to as "evidence" of international law,120 these
sources identify the substance and content of the obligations of States and are
indicative of the "State practice" and "opinio juris" requirements of international
law.121 We note the following in these respects:
First, barely two years from the adoption of the Declaration, the Organization of
American States (OAS) General Assembly adopted the Inter-American Convention
on Enforced Disappearance of Persons in June 1994. 122 State parties undertook
under this Convention "not to practice, permit, or tolerate the forced disappearance
of persons, even in states of emergency or suspension of individual
guarantees."123 One of the key provisions includes the States’ obligation to enact
the crime of forced disappearance in their respective national criminal laws and to
establish jurisdiction over such cases when the crime was committed within their
jurisdiction, when the victim is a national of that State, and "when the alleged
criminal is within its territory and it does not proceed to extradite him," which can
be interpreted as establishing universal jurisdiction among the parties to the Inter-
American Convention.124 At present, Colombia, Guatemala, Paraguay, Peru and
Venezuela have enacted separate laws in accordance with the Inter-American
Convention and have defined activities involving enforced disappearance to be
criminal.1251avvphi1
Second, in Europe, the European Convention on Human Rights has no explicit
provision dealing with the protection against enforced disappearance. The
European Court of Human Rights (ECHR), however, has applied the Convention in
a way that provides ample protection for the underlying rights affected by enforced
disappearance through the Convention’s Article 2 on the right to life; Article 3 on
the prohibition of torture; Article 5 on the right to liberty and security; Article 6,
paragraph 1 on the right to a fair trial; and Article 13 on the right to an effective
remedy. A leading example demonstrating the protection afforded by the European
Convention is Kurt v. Turkey,126where the ECHR found a violation of the right to
liberty and security of the disappeared person when the applicant’s son
disappeared after being taken into custody by Turkish forces in the Kurdish village
of Agilli in November 1993. It further found the applicant (the disappeared person’s
mother) to be a victim of a violation of Article 3, as a result of the silence of the
authorities and the inadequate character of the investigations undertaken. The
ECHR also saw the lack of any meaningful investigation by the State as a violation
of Article 13.127
Third, in the United States, the status of the prohibition on enforced disappearance
as part of customary international law is recognized in the most recent edition of
Restatement of the Law: The Third,128 which provides that "[a] State violates
international law if, as a matter of State policy, it practices, encourages, or
condones… (3) the murder or causing the disappearance of individuals."129 We
significantly note that in a related matter that finds close identification with enforced
disappearance – the matter of torture – the United States Court of Appeals for the
Second Circuit Court held in Filartiga v. Pena-Irala130 that the prohibition on torture
had attained the status of customary international law. The court further elaborated
on the significance of UN declarations, as follows:
These U.N. declarations are significant because they specify with great precision
the obligations of member nations under the Charter. Since their adoption,
"(m)embers can no longer contend that they do not know what human rights they
promised in the Charter to promote." Moreover, a U.N. Declaration is, according to
one authoritative definition, "a formal and solemn instrument, suitable for rare
occasions when principles of great and lasting importance are being enunciated."
Accordingly, it has been observed that the Universal Declaration of Human Rights
"no longer fits into the dichotomy of ‘binding treaty’ against ‘non-binding
pronouncement,' but is rather an authoritative statement of the international
community." Thus, a Declaration creates an expectation of adherence, and
"insofar as the expectation is gradually justified by State practice, a declaration
may by custom become recognized as laying down rules binding upon the States."
Indeed, several commentators have concluded that the Universal Declaration has
become, in toto, a part of binding, customary international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the
International Convention on Civil and Political Rights (ICCPR), to which the
Philippines is both a signatory and a State Party, the UN Human Rights
Committee, under the Office of the High Commissioner for Human Rights, has
stated that the act of enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or punishment) and
9 (right to liberty and security of the person) of the ICCPR, and the act may also
amount to a crime against humanity.131
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the
International Criminal Court (ICC) also covers enforced disappearances insofar as
they are defined as crimes against humanity,132 i.e., crimes "committed as part of a
widespread or systematic attack against any civilian population, with knowledge of
the attack." While more than 100 countries have ratified the Rome Statute,133 the
Philippines is still merely a signatory and has not yet ratified it. We note that Article
7(1) of the Rome Statute has been incorporated in the statutes of other
international and hybrid tribunals, including Sierra Leone Special Court, the
Special Panels for Serious Crimes in Timor-Leste, and the Extraordinary
Chambers in the Courts of Cambodia.134 In addition, the implementing legislation
of State Parties to the Rome Statute of the ICC has given rise to a number of
national criminal provisions also covering enforced disappearance. 135
While the Philippines is not yet formally bound by the terms of the Convention on
enforced disappearance (or by the specific terms of the Rome Statute) and has not
formally declared enforced disappearance as a specific crime, the above recital
shows that enforced disappearance as a State practice has been repudiated by
the international community, so that the ban on it is now a generally accepted
principle of international law, which we should consider a part of the law of the
land, and which we should act upon to the extent already allowed under our laws
and the international conventions that bind us.
The following civil or political rights under the Universal Declaration of Human
Rights, the ICCPR and the International Convention on Economic, Social and
Cultural Rights (ICESR) may be infringed in the course of a disappearance: 136
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or degrading
treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by
any other competent authority provided for by the legal system of the State, and to
develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that the
right to an effective remedy under Article 2 of the ICCPR includes the obligation of
the State to investigate ICCPR violations promptly, thoroughly, and effectively,
viz:137
15. Article 2, paragraph 3, requires that in addition to effective protection of
Covenant rights, States Parties must ensure that individuals also have accessible
and effective remedies to vindicate those rights… The Committee attaches
importance to States Parties' establishing appropriate judicial and administrative
mechanisms for addressing claims of rights violations under domestic law…
Administrative mechanisms are particularly required to give effect to the general
obligation to investigate allegations of violations promptly, thoroughly and
effectivelythrough independent and impartial bodies. A failure by a State Party to
investigate allegations of violations could in and of itself give rise to a separate
breach of the Covenant. Cessation of an ongoing violation is an essential element
of the right to an effective remedy. [Emphasis supplied]
The UN Human Rights Committee further stated in the same General Comment
No. 31 that failure to investigate as well as failure to bring to justice the
perpetrators of ICCPR violations could in and of itself give rise to a separate
breach of the Covenant, thus:138
18. Where the investigations referred to in paragraph 15 reveal violations of certain
Covenant rights, States Parties must ensure that those responsible are brought to
justice. As with failure to investigate, failure to bring to justice perpetrators of such
violations could in and of itself give rise to a separate breach of the
Covenant. These obligations arise notably in respect of those violations recognized
as criminal under either domestic or international law, such as torture and similar
cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing
(article 6) and enforced disappearance (articles 7 and 9 and, frequently,
6). Indeed, the problem of impunity for these violations, a matter of sustained
concern by the Committee, may well be an important contributing element in the
recurrence of the violations. When committed as part of a widespread or
systematic attack on a civilian population, these violations of the Covenant are
crimes against humanity (see Rome Statute of the International Criminal Court,
article 7). [Emphasis supplied]
In Secretary of National Defense v. Manalo,139 this Court, in ruling that the right to
security of persons is a guarantee of the protection of one’s right by the
government, held that:
The right to security of person in this third sense is a corollary of the policy that the
State "guarantees full respect for human rights" under Article II, Section 11 of the
1987 Constitution. As the government is the chief guarantor of order and security,
the Constitutional guarantee of the rights to life, liberty and security of person is
rendered ineffective if government does not afford protection to these rights
especially when they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances (or
threats thereof) and/or their families, and bringing offenders to the bar of
justice. The Inter-American Court of Human Rights stressed the importance of
investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a
mere formality preordained to be ineffective. An investigation must have an
objective and be assumed by the State as its own legal duty, not as a step taken
by private interests that depends upon the initiative of the victim or his family or
upon their offer of proof, without an effective search for the truth by the
government. [Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,140 where the ECHR interpreted the "right
to security" not only as a prohibition on the State against arbitrary deprivation of
liberty, but also as the imposition of a positive duty to afford protection to the right
to liberty. The Court notably quoted the following ECHR ruling:
[A]ny 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. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo,
which the Court made effective on October 24, 2007. Although the Amparo Rule
still has gaps waiting to be filled through substantive law, as evidenced primarily by
the lack of a concrete definition of "enforced disappearance," the materials cited
above, among others, provide ample guidance and standards on how, through the
medium of the Amparo Rule, the Court can provide remedies and protect the
constitutional rights to life, liberty and security that underlie every enforced
disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has discharged the burden
of proving the allegations of the petition for the Writ of Amparo by the degree of
proof required by the Amparo Rule, we shall discuss briefly the unique evidentiary
difficulties presented by enforced disappearance cases; these difficulties form part
of the setting that the implementation of the Amparo Rule shall encounter.
These difficulties largely arise because the State itself – the party whose
involvement is alleged – investigates enforced disappearances. Past experiences
in other jurisdictions show that the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities of the direct
perpetrators.141 Experts note that abductors are well organized, armed and usually
members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons acting under
some form of governmental authority. In many countries the units that plan,
implement and execute the program are generally specialized, highly-secret
bodies within the armed or security forces. They are generally directed through a
separate, clandestine chain of command, but they have the necessary credentials
to avoid or prevent any interference by the "legal" police forces. These authorities
take their victims to secret detention centers where they subject them to
interrogation and torture without fear of judicial or other controls. 142
In addition, there are usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to testify on the disappearance
out of fear for their own lives.143 We have had occasion to note this difficulty in
Secretary of Defense v. Manalo144 when we acknowledged that "where powerful
military officers are implicated, the hesitation of witnesses to surface and testify
against them comes as no surprise."
Second, deliberate concealment of pertinent evidence of the disappearance is a
distinct possibility; the central piece of evidence in an enforced disappearance –
i.e., the corpus delicti or the victim’s body – is usually concealed to effectively
thwart the start of any investigation or the progress of one that may have
begun.145 The problem for the victim’s family is the State’s virtual monopoly of
access to pertinent evidence. The Inter-American Court of Human Rights (IACHR)
observed in the landmark case of Velasquez Rodriguez146 that inherent to the
practice of enforced disappearance is the deliberate use of the State’s power to
destroy the pertinent evidence. The IACHR described the concealment as a clear
attempt by the State to commit the perfect crime.147
Third is the element of denial; in many cases, the State authorities deliberately
deny that the enforced disappearance ever occurred.148 "Deniability" is central to
the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards
ensuring the victim’s human rights.149 Experience shows that government officials
typically respond to requests for information about desaparecidos by saying that
they are not aware of any disappearance, that the missing people may have fled
the country, or that their names have merely been invented.150
These considerations are alive in our minds, as these are the difficulties we
confront, in one form or another, in our consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of
an Amparo proceeding and the degree and burden of proof the parties to the case
carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary.
However, the court, justice or judge may call for a preliminary conference to
simplify the issues and determine the possibility of obtaining stipulations and
admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. – The parties
shall establish their claims by substantial evidence.
The respondent who is a private individual must prove that ordinary diligence as
required by applicable laws, rules and regulations was observed in the
performance of duty.
The respondent who is a public official or employee must prove that extraordinary
diligence as required by applicable laws, rules and regulations was observed in the
performance of duty.
The respondent public official or employee cannot invoke the presumption that
official duty has been regularly performed or evade responsibility or liability.
Section 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.
[Emphasis supplied]
These characteristics – namely, of being summary and the use of substantial
evidence as the required level of proof (in contrast to the usual preponderance of
evidence or proof beyond reasonable doubt in court proceedings) – reveal the
clear intent of the framers of the Amparo Rule to have the equivalent of an
administrative proceeding, albeit judicially conducted, in addressing Amparo
situations. The standard of diligence required – the duty of public officials and
employees to observe extraordinary diligence – point, too, to the extraordinary
measures expected in the protection of constitutional rights and in the consequent
handling and investigation of extra-judicial killings and enforced disappearance
cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly comply
with the substance and form requirements of a Writ of Amparo petition, as
discussed above, and prove the allegations by substantial evidence. Once a
rebuttable case has been proven, the respondents must then respond and prove
their defenses based on the standard of diligence required. The rebuttable case, of
course, must show that an enforced disappearance took place under
circumstances showing a violation of the victim’s constitutional rights to life, liberty
or security, and the failure on the part of the investigating authorities to
appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations151 provided the
Court its first opportunity to define the substantial evidence required to arrive at a
valid decision in administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.
[citations omitted] The statute provides that ‘the rules of evidence prevailing in
courts of law and equity shall not be controlling.’ The obvious purpose of this and
similar provisions is to free administrative boards from the compulsion of technical
rules so that the mere admission of matter which would be deemed incompetent in
judicial proceedings would not invalidate the administrative order. [citations
omitted] But this assurance of a desirable flexibility in administrative procedure
does not go so far as to justify orders without a basis in evidence having rational
probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo,152 which was the Court’s first petition for a Writ
of Amparo, we recognized that the full and exhaustive proceedings that the
substantial evidence standard regularly requires do not need to apply due to the
summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] 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.[Emphasis
supplied]
Not to be forgotten in considering the evidentiary aspects of Amparo petitions are
the unique difficulties presented by the nature of enforced disappearances,
heretofore discussed, which difficulties this Court must frontally meet if the Amparo
Rule is to be given a chance to achieve its objectives. These evidentiary difficulties
compel the Court to adopt standards appropriate and responsive to the
circumstances, without transgressing the due process requirements that underlie
every proceeding.
In the seminal case of Velasquez Rodriguez,153 the IACHR – faced with a lack of
direct evidence that the government of Honduras was involved in Velasquez
Rodriguez’ disappearance – adopted a relaxed and informal evidentiary standard,
and established the rule that presumes governmental responsibility for a
disappearance if it can be proven that the government carries out a general
practice of enforced disappearances and the specific case can be linked to that
practice.154 The IACHR took note of the realistic fact that enforced disappearances
could be proven only through circumstantial or indirect evidence or by logical
inference; otherwise, it was impossible to prove that an individual had been made
to disappear. It held:
130. The practice of international and domestic courts shows that direct evidence,
whether testimonial or documentary, is not the only type of evidence that may be
legitimately considered in reaching a decision. Circumstantial evidence, indicia,
and presumptions may be considered, so long as they lead to conclusions
consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in allegations
of disappearances, because this type of repression is characterized by an attempt
to suppress all information about the kidnapping or the whereabouts and fate of
the victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velásquez (Manfredo) was
carried out by agents who acted under cover of public authority, the IACHR relied
on circumstantial evidence including the hearsay testimony of Zenaida Velásquez,
the victim’s sister, who described Manfredo’s kidnapping on the basis of
conversations she had with witnesses who saw Manfredo kidnapped by men in
civilian clothes in broad daylight. She also told the Court that a former Honduran
military official had announced that Manfredo was kidnapped by a special military
squadron acting under orders of the Chief of the Armed Forces.155 The IACHR
likewise considered the hearsay testimony of a second witness who asserted that
he had been told by a Honduran military officer about the disappearance, and a
third witness who testified that he had spoken in prison to a man who identified
himself as Manfredo.156
Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have an
effective remedy, the standard of evidence must be responsive to the evidentiary
difficulties faced. On the one hand, we cannot be arbitrary in the admission and
appreciation of evidence, as arbitrariness entails violation of rights and cannot be
used as an effective counter-measure; we only compound the problem if a wrong
is addressed by the commission of another wrong. On the other hand, we cannot
be very strict in our evidentiary rules and cannot consider evidence the way we do
in the usual criminal and civil cases; precisely, the proceedings before us are
administrative in nature where, as a rule, technical rules of evidence are not strictly
observed. Thus, while we must follow the substantial evidence rule, we must
observe flexibility in considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test of
reason – i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration of evidence is
not at all novel in the Philippine legal system. In child abuse cases, Section 28 of
the Rule on Examination of a Child Witness157 is expressly recognized as an
exception to the hearsay rule. This Rule allows the admission of the hearsay
testimony of a child describing any act or attempted act of sexual abuse in any
criminal or non-criminal proceeding, subject to certain prerequisites and the right of
cross-examination by the adverse party. The admission of the statement is
determined by the court in light of specified subjective and objective considerations
that provide sufficient indicia of reliability of the child witness. 158 These requisites
for admission find their counterpart in the present case under the above-described
conditions for the exercise of flexibility in the consideration of evidence, including
hearsay evidence, in extrajudicial killings and enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced disappearance
within the meaning of this term under the UN Declaration we have cited?
The Convention defines enforced disappearance as "the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or by
persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of
liberty or by concealment of the fate or whereabouts of the disappeared person,
which place such a person outside the protection of the law."159Under this
definition, the elements that constitute enforced disappearance are essentially
fourfold:160
(a) arrest, detention, abduction or any form of deprivation of liberty;
(b) carried out by agents of the State or persons or groups of persons acting with
the authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of the
fate of the disappeared person; and
(d) placement of the disappeared person outside the protection of the law.
[Emphasis supplied]
We find no direct evidence indicating how the victim actually disappeared. The
direct evidence at hand only shows that Tagitis went out of the ASY Pension
House after depositing his room key with the hotel desk and was never seen nor
heard of again. The undisputed conclusion, however, from all concerned – the
petitioner, Tagitis’ colleagues and even the police authorities – is that Tagistis
disappeared under mysterious circumstances and was never seen again. The
respondent injected the causal element in her petition and testimony, as we shall
discuss below.
We likewise find no direct evidence showing that operatives of PNP CIDG
Zamboanga abducted or arrested Tagitis. If at all, only the respondent’s allegation
that Tagistis was under CIDG Zamboanga custody stands on record, but it is not
supported by any other evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of information as
her bases for her allegation that Tagistis had been placed under government
custody (in contrast with CIDG Zamboanga custody). The first was an unnamed
friend in Zamboanga (later identified as Col. Ancanan), who occupied a high
position in the military and who allegedly mentioned that Tagitis was in good
hands. Nothing came out of this claim, as both the respondent herself and her
witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any
information that Tagitis was in government custody. Col. Ancanan, for his part,
admitted the meeting with the respondent but denied giving her any information
about the disappearance.
The more specific and productive source of information was Col. Kasim, whom the
respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao
City. To quote the relevant portions of the respondent’s testimony:
Q: Were you able to speak to other military officials regarding the whereabouts of
your husband particularly those in charge of any records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim,
told me that my husband is being abducted [sic] because he is under custodial
investigation because he is allegedly "parang liason ng J.I.", sir.
Q: What is J.I.?
A: Jema’ah Islamiah, sir.
Q: Was there any information that was read to you during one of those visits of
yours in that Camp?
A: Col. Casim did not furnish me a copy of his report because he said those
reports are highly confidential, sir.
Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.161 [Emphasis supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao City?
A: Yes, ma’am.
Q: And a certain Col. Kasim told you that your husband was abducted and under
custodial investigation?
A: Yes, ma’am.
Q: And you mentioned that he showed you a report?
A: Yes, ma’am.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those [sic] were
highly confidential. That is a military report, ma’am.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, ma’am.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, ma’am.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental,
ma’am.162
xxxx
Q: When you were told that your husband is in good hands, what was your
reaction and what did you do?
A: May binasa kasi sya that my husband has a parang meeting with other people
na parang mga terorista na mga tao. Tapos at the end of the report is [sic] under
custodial investigation. So I told him "Colonel, my husband is sick. He is diabetic at
nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan
siya ng gamot, ma’am."163
xxxx
Q: You mentioned that you received information that Engineer Tagitis is being held
by the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that
information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na
yun na effort ko because I know that they would deny it, ma’am.164
On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her
testimony that her husband was abducted and held under custodial investigation
by the PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime November
24, 2007, who was with you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan during that
time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact location, if
he can furnish us the location of Engr. Tagitis. And he was reading this report. He
told us that Engr. Tagitis is in good hands. He is with the military, but he is not
certain whether he is with the AFP or PNP. He has this serious case. He was
charged of terrorism because he was under surveillance from January 2007 up to
the time that he was abducted. He told us that he was under custodial
investigation. As I’ve said earlier, he was seen under surveillance from January.
He was seen talking to Omar Patik, a certain Santos of Bulacan who is also a Balik
Islam and charged with terrorism. He was seen carrying boxes of medicines. Then
we asked him how long will he be in custodial investigation. He said until we can
get some information. But he also told us that he cannot give us that report
because it was a raw report. It was not official, sir.
Q: You said that he was reading a report, was that report in document form, in a
piece of paper or was it in the computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I don’t know if it was
computerized but I’m certain that it was typewritten. I’m not sure if it used
computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or he was reading
in a summary form?
A: Sometimes he was glancing to the report and talking to us, sir.165
xxxx
Q: Were you informed as to the place where he was being kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned this
Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as I’ve mentioned, we just waited because that raw information
that he was reading to us [sic] after the custodial investigation, Engineer Tagitis will
be released. [Emphasis supplied]166
Col. Kasim never denied that he met with the respondent and her friends, and that
he provided them information based on the input of an unnamed asset. He simply
claimed in his testimony that the "informal letter" he received from his informant in
Sulu did not indicate that Tagitis was in the custody of the CIDG. He also stressed
that the information he provided the respondent was merely a "raw report" from
"barangay intelligence" that still needed confirmation and "follow up" as to its
veracity.167
To be sure, the respondent’s and Mrs. Talbin’s testimonies were far from perfect,
as the petitioners pointed out. The respondent mistakenly characterized Col.
Kasim as a "military officer" who told her that "her husband is being abducted
because he is under custodial investigation because he is allegedly ‘parang liason
ng J.I.’" The petitioners also noted that "Mrs. Talbin’s testimony imputing certain
statements to Sr. Supt. Kasim that Engr. Tagitis is with the military, but he is not
certain whether it is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim
is a high ranking police officer who would certainly know that the PNP is not part of
the military."
Upon deeper consideration of these inconsistencies, however, what appears clear
to us is that the petitioners never really steadfastly disputed or presented evidence
to refute the credibility of the respondent and her witness, Mrs. Talbin. The
inconsistencies the petitioners point out relate, more than anything else, to details
that should not affect the credibility of the respondent and Mrs. Talbin; the
inconsistencies are not on material points.168 We note, for example, that these
witnesses are lay people in so far as military and police matters are concerned,
and confusion between the police and the military is not unusual. As a rule, minor
inconsistencies such as these indicate truthfulness rather than prevarication 169and
only tend to strengthen their probative value, in contrast to testimonies from
various witnesses dovetailing on every detail; the latter cannot but generate
suspicion that the material circumstances they testified to were integral parts of a
well thought of and prefabricated story.170
Based on these considerations and the unique evidentiary situation in enforced
disappearance cases, we hold it duly established that Col. Kasim informed the
respondent and her friends, based on the informant’s letter, that Tagitis, reputedly
a liaison for the JI and who had been under surveillance since January 2007, was
"in good hands" and under custodial investigation for complicity with the JI after he
was seen talking to one Omar Patik and a certain "Santos" of Bulacan, a "Balik
Islam" charged with terrorism. The respondent’s and Mrs. Talbin’s testimonies
cannot simply be defeated by Col. Kasim’s plain denial and his claim that he had
destroyed his informant’s letter, the critical piece of evidence that supports or
negates the parties’ conflicting claims. Col. Kasim’s admitted destruction of this
letter – effectively, a suppression of this evidence – raises the presumption that the
letter, if produced, would be proof of what the respondent claimed.171 For brevity,
we shall call the evidence of what Col. Kasim reported to the respondent to be the
"Kasim evidence."
Given this evidence, our next step is to decide whether we can accept this
evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis was
due to action with government participation, knowledge or consent and that he was
held for custodial investigation. We note in this regard that Col. Kasim was never
quoted to have said that the custodial investigation was by the CIDG Zamboanga.
The Kasim evidence only implies government intervention through the use of the
term "custodial investigation," and does not at all point to CIDG Zamboanga as
Tagitis’ custodian.
Strictly speaking, we are faced here with a classic case of hearsay evidence – i.e.,
evidence whose probative value is not based on the personal knowledge of the
witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on the
knowledge of some other person not on the witness stand (the informant).172
To say that this piece of evidence is incompetent and inadmissible evidence of
what it substantively states is to acknowledge – as the petitioners effectively
suggest – that in the absence of any direct evidence, we should simply dismiss the
petition. To our mind, an immediate dismissal for this reason is no different from a
statement that the Amparo Rule – despite its terms – is ineffective, as it cannot
allow for the special evidentiary difficulties that are unavoidably present in Amparo
situations, particularly in extrajudicial killings and enforced disappearances. The
Amparo Rule was not promulgated with this intent or with the intent to make it a
token gesture of concern for constitutional rights. It was promulgated to provide
effective and timely remedies, using and profiting from local and international
experiences in extrajudicial killings and enforced disappearances, as the situation
may require. Consequently, we have no choice but to meet the evidentiary
difficulties inherent in enforced disappearances with the flexibility that these
difficulties demand.1avvphi1
To give full meaning to our Constitution and the rights it protects, we hold that, as
in Velasquez, we should at least take a close look at the available evidence to
determine the correct import of every piece of evidence – even of those usually
considered inadmissible under the general rules of evidence – taking into account
the surrounding circumstances and the test of reason that we can use as basic
minimum admissibility requirement. In the present case, we should at least
determine whether the Kasim evidence before us is relevant and meaningful to the
disappearance of Tagistis and reasonably consistent with other evidence in the
case.
The evidence about Tagitis’ personal circumstances surrounded him with an air of
mystery. He was reputedly a consultant of the World Bank and a Senior Honorary
Counselor for the IDB who attended a seminar in Zamboanga and thereafter
proceded to Jolo for an overnight stay, indicated by his request to Kunnong for the
purchase of a return ticket to Zamboanga the day after he arrived in Jolo. Nothing
in the records indicates the purpose of his overnight sojourn in Jolo. A colleague in
the IDB, Prof. Matli, early on informed the Jolo police that Tagitis may have taken
funds given to him in trust for IDB scholars. Prof Matli later on stated that he never
accused Tagitis of taking away money held in trust, although he confirmed that the
IDB was seeking assistance in locating funds of IDB scholars deposited in Tagitis’
personal account. Other than these pieces of evidence, no other information exists
in the records relating to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal circumstances.
While the Amparo petition recited that he was taken away by "burly men believed
to be police intelligence operatives," no evidence whatsoever was introduced to
support this allegation. Thus, the available direct evidence is that Tagitis was last
seen at 12.30 p.m. of October 30, 2007 – the day he arrived in Jolo – and was
never seen again.
The Kasim evidence assumes critical materiality given the dearth of direct
evidence on the above aspects of the case, as it supplies the gaps that were never
looked into and clarified by police investigation. It is the evidence, too, that colors a
simple missing person report into an enforced disappearance case, as it injects the
element of participation by agents of the State and thus brings into question how
the State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the part of the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police
informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other
groups fighting the government. No evidence was ever offered on whether there
was active Jolo police investigation and how and why the Jolo police arrived at this
conclusion. The respondent’s own inquiry in Jolo yielded the answer that he was
not missing but was with another woman somewhere. Again, no evidence exists
that this explanation was arrived at based on an investigation. As already related
above, the inquiry with Col. Ancanan in Zamboanga yielded ambivalent results not
useful for evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that
yielded positive results. Col. Kasim’s story, however, confirmed only the fact of his
custodial investigation (and, impliedly, his arrest or abduction), without identifying
his abductor/s or the party holding him in custody. The more significant part of Col.
Kasim’s story is that the abduction came after Tagitis was seen talking with Omar
Patik and a certain Santos of Bulacan, a "Balik Islam" charged with terrorism. Mrs.
Talbin mentioned, too, that Tagitis was being held at Talipapao, Sulu. None of the
police agencies participating in the investigation ever pursued these leads.
Notably, Task Force Tagitis to which this information was relayed did not appear to
have lifted a finger to pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA made by the
petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives
he sent to the ARMM Regional Director and the Regional Chief of the CIDG on
Tagitis, and these reports merely reiterated the open-ended initial report of the
disappearance. The CIDG directed a search in all of its divisions with negative
results. These, to the PNP Chief, constituted the exhaustion "of all possible
efforts." PNP-CIDG Chief General Edgardo M. Doromal, for his part, also reported
negative results after searching "all divisions and departments [of the CIDG] for a
person named Engr. Morced N. Tagitis . . . and after a diligent and thorough
research, records show that no such person is being detained in the CIDG or any
of its department or divisions." PNP-PACER Chief PS Supt. Leonardo A. Espina
and PNP PRO ARMM Regional Director PC Superintendent Joel R. Goltiao did no
better in their affidavits-returns, as they essentially reported the results of their
directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested when the CA
constituted Task Force Tagitis, with specific directives on what to do. The negative
results reflected in the Returns on the writ were again replicated during the three
hearings the CA scheduled. Aside from the previously mentioned "retraction" that
Prof. Matli made to correct his accusation that Tagitis took money held in trust for
students, PS Supt. Ajirim reiterated in his testimony that the CIDG consistently
denied any knowledge or complicity in any abduction and said that there was no
basis to conclude that the CIDG or any police unit had anything to do with the
disappearance of Tagitis; he likewise considered it premature to conclude that
Tagitis simply ran away with the money in his custody. As already noted above,
the Task Force notably did not pursue any investigation about the personal
circumstances of Tagitis, his background in relation to the IDB and the background
and activities of this Bank itself, and the reported sighting of Tagistis with terrorists
and his alleged custody in Talipapao, Sulu. No attempt appears to have ever been
made to look into the alleged IDB funds that Tagitis held in trust, or to tap any of
the "assets" who are indispensable in investigations of this nature. These
omissions and negative results were aggravated by the CA findings that it was only
as late as January 28, 2008 or three months after the disappearance that the
police authorities requested for clear pictures of Tagitis. Col. Kasim could not
attend the trial because his subpoena was not served, despite the fact that he was
designated as Ajirim’s replacement in the latter’s last post. Thus, Col. Kasim was
not then questioned. No investigation – even an internal one – appeared to have
been made to inquire into the identity of Col. Kasim’s "asset" and what he indeed
wrote.
We glean from all these pieces of evidence and developments a consistency in the
government’s denial of any complicity in the disappearance of Tagitis, disrupted
only by the report made by Col. Kasim to the respondent at Camp Katitipan. Even
Col. Kasim, however, eventually denied that he ever made the disclosure that
Tagitis was under custodial investigation for complicity in terrorism. Another
distinctive trait that runs through these developments is the government’s
dismissive approach to the disappearance, starting from the initial response by the
Jolo police to Kunnong’s initial reports of the disappearance, to the responses
made to the respondent when she herself reported and inquired about her
husband’s disappearance, and even at Task Force Tagitis itself.
As the CA found through Task Force Tagitis, the investigation was at best
haphazard since the authorities were looking for a man whose picture they initially
did not even secure. The returns and reports made to the CA fared no better, as
the CIDG efforts themselves were confined to searching for custodial records of
Tagitis in their various departments and divisions. To point out the obvious, if the
abduction of Tagitis was a "black" operation because it was unrecorded or officially
unauthorized, no record of custody would ever appear in the CIDG records;
Tagitis, too, would not be detained in the usual police or CIDG detention places. In
sum, none of the reports on record contains any meaningful results or details on
the depth and extent of the investigation made. To be sure, reports of top police
officials indicating the personnel and units they directed to investigate can never
constitute exhaustive and meaningful investigation, or equal detailed investigative
reports of the activities undertaken to search for Tagitis. Indisputably, the police
authorities from the very beginning failed to come up to the extraordinary diligence
that the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasim’s disclosure, made in
an unguarded moment, unequivocally point to some government complicity in the
disappearance. The consistent but unfounded denials and the haphazard
investigations cannot but point to this conclusion. For why would the government
and its officials engage in their chorus of concealment if the intent had not been to
deny what they already knew of the disappearance? Would not an in-depth and
thorough investigation that at least credibly determined the fate of Tagitis be a
feather in the government’s cap under the circumstances of the disappearance?
From this perspective, the evidence and developments, particularly the Kasim
evidence, already establish a concrete case of enforced disappearance that the
Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and
quoted,173the evidence at hand and the developments in this case confirm the fact
of the enforced disappearance and government complicity, under a background of
consistent and unfounded government denials and haphazard handling. The
disappearance as well effectively placed Tagitis outside the protection of the law –
a situation that will subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without precedent in
international enforced disappearance rulings. While the facts are not exactly the
same, the facts of this case run very close to those of Timurtas v. Turkey, 174 a
case decided by ECHR. The European tribunal in that case acted on the basis of
the photocopy of a "post-operation report" in finding that Abdulvahap Timurtas
(Abdulvahap) was abducted and later detained by agents (gendarmes) of the
government of Turkey. The victim's father in this case brought a claim against
Turkey for numerous violations of the European Convention, including the right to
life (Article 2) and the rights to liberty and security of a person (Article 5). The
applicant contended that on August 14, 1993, gendarmes apprehended his son,
Abdulvahap for being a leader of the Kurdish Workers’ Party (PKK) in the Silopi
region. The petition was filed in southeast Turkey nearly six and one half years
after the apprehension. According to the father, gendarmes first detained
Abdulvahap and then transferred him to another detainment facility. Although there
was no eyewitness evidence of the apprehension or subsequent detainment, the
applicant presented evidence corroborating his version of events, including a
photocopy of a post-operation report signed by the commander of gendarme
operations in Silopi, Turkey. The report included a description of Abdulvahap's
arrest and the result of a subsequent interrogation during detention where he was
accused of being a leader of the PKK in the Silopi region. On this basis, Turkey
was held responsible for Abdulvahap’s enforced disappearance.
Following the lead of this Turkish experience - adjusted to the Philippine legal
setting and the Amparo remedy this Court has established, as applied to the
unique facts and developments of this case – we believe and so hold that the
government in general, through the PNP and the PNP-CIDG, and in particular, the
Chiefs of these organizations together with Col. Kasim, should be held fully
accountable for the enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic Act No.
6975, otherwise known as the "PNP Law,"175 specifies the PNP as the
governmental office with the mandate "to investigate and prevent crimes, effect the
arrest of criminal offenders, bring offenders to justice and assist in their
prosecution." The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG
Region 9) testified, is the "investigative arm" of the PNP and is mandated to
"investigate and prosecute all cases involving violations of the Revised Penal
Code, particularly those considered as heinous crimes."176 Under the PNP
organizational structure, the PNP-CIDG is tasked to investigate all major crimes
involving violations of the Revised Penal Code and operates against organized
crime groups, unless the President assigns the case exclusively to the National
Bureau of Investigation (NBI).177 No indication exists in this case showing that the
President ever directly intervened by assigning the investigation of Tagitis’
disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were the
ones who were remiss in their duties when the government completely failed to
exercise the extral'>To fully enforce the Amparo remedy, we refer this case back to
the CA for appropriate proceedings directed at the monitoring of the PNP and the
PNP-CIDG investigations and actions, and the validation of their results through
hearings the CA may deem appropriate to conduct. For purposes of these
investigations, the PNP/PNP-CIDG shall initially present to the CA a plan of action
for further investigation, periodically reporting the detailed results of its
investigation to the CA for its consideration and action. On behalf of this Court, the
CA shall pass upon: the need for the PNP and the PNP-CIDG to make disclosures
of matters known to them as indicated in this Decision and as further CA hearings
may indicate; the petitioners’ submissions; the sufficiency of their investigative
efforts; and submit to this Court a quarterly report containing its actions and
recommendations, copy furnished the petitioners and the respondent, with the first
report due at the end of the first quarter counted from the finality of this Decision.
The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigation. The CA shall submit its full report for the consideration of this Court
at the end of the 4th quarter counted from the finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners’ petition for review
on certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals
dated March 7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is an
enforced disappearance covered by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and responsibility,
declaring the government (through the PNP and the PNP-CIDG) and Colonel
Julasirim Ahadin Kasim accountable for the enforced disappearance of Engineer
Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief,
directly responsible for the disclosure of material facts known to the government
and to their offices regarding the disappearance of Engineer Morced N. Tagitis,
and for the conduct of proper investigations using extraordinary diligence, with the
obligation to show investigation results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding
him accountable with the obligation to disclose information known to him and to his
"assets" in relation with the enforced disappearance of Engineer Morced N.
Tagitis;
f. Referring this case back to the Court of Appeals for appropriate proceedings
directed at the monitoring of the PNP and PNP-CIDG investigations, actions and
the validation of their results; the PNP and the PNP-CIDG shall initially present to
the Court of Appeals a plan of action for further investigation, periodically reporting
their results to the Court of Appeals for consideration and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly report with its
recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs as
petitioners and the respondent, with the first report due at the end of the first
quarter counted from the finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigations; the Court of Appeals shall submit its full report for the consideration
of this Court at the end of the 4th quarter counted from the finality of this Decision;
These directives and those of the Court of Appeals’ made pursuant to this Decision
shall be given to, and shall be directly enforceable against, whoever may be the
incumbent Chiefs of the Philippine National Police and its Criminal Investigation
and Detection Group, under pain of contempt from this Court when the initiatives
and efforts at disclosure and investigation constitute less than the extraordinary
diligence that the Rule on the Writ of Amparo and the circumstances of this case
demand. Given the unique nature of Amparo cases and their varying attendant
circumstances, these directives – particularly, the referral back to and monitoring
by the CA – are specific to this case and are not standard remedies that can be
applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General Alexander Yano,
Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-
Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.
SO ORDERED.
G.R. No. 189155 September 7, 2010
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE
WRIT OF HABEAS DATA IN FAVOR OF MELISSA C. ROXAS, MELISSA C.
ROXAS, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GILBERT TEODORO, GEN. VICTOR S.
IBRADO, P/DIR. GEN. JESUS AME VERZOSA, LT. GEN. DELFIN N. BANGIT,
PC/SUPT. LEON NILO A. DELA CRUZ, MAJ. GEN. RALPH VILLANUEVA,
PS/SUPT. RUDY GAMIDO LACADIN, AND CERTAIN PERSONS WHO GO BY
THE NAME[S] DEX, RC AND ROSE, Respondents.
DECISION
PEREZ, J.:
At bench is a Petition For Review on Certiorari1 assailing the Decision2 dated 26
August 2009 of the Court of Appeals in CA-G.R. SP No. 00036-WRA — a petition
that was commenced jointly under the Rules on the Writ of Amparo (Amparo Rule)
and Habeas Data (Habeas Data Rule). In its decision, the Court of Appeals
extended to the petitioner, Melissa C. Roxas, the privilege of the writs of amparo
and habeas data but denied the latter’s prayers for an inspection order, production
order and return of specified personal belongings. The fallo of the decision reads:
WHEREFORE, the Petition is PARTIALLY MERITORIOUS. This Court hereby
grants Petitioner the privilege of the Writ of Amparo and Habeas Data.
Accordingly, Respondents are enjoined to refrain from distributing or causing the
distribution to the public of any records in whatever form, reports, documents or
similar papers relative to Petitioner’s Melissa C. Roxas, and/or Melissa Roxas;
alleged ties to the CPP-NPA or pertinently related to the complained incident.
Petitioner’s prayers for an inspection order, production order and for the return of
the specified personal belongings are denied for lack of merit. Although there is no
evidence that Respondents are responsible for the abduction, detention or torture
of the Petitioner, said Respondents pursuant to their legally mandated duties are,
nonetheless, ordered to continue/complete the investigation of this incident with
the end in view of prosecuting those who are responsible. Respondents are also
ordered to provide protection to the Petitioner and her family while in the
Philippines against any and all forms of harassment, intimidation and coercion as
may be relevant to the grant of these reliefs.3
We begin with the petitioner’s allegations.
Petitioner is an American citizen of Filipino descent.4 While in the United States,
petitioner enrolled in an exposure program to the Philippines with the group
Bagong Alyansang Makabayan-United States of America (BAYAN-USA) of which
she is a member.5 During the course of her immersion, petitioner toured various
provinces and towns of Central Luzon and, in April of 2009, she volunteered to join
members of BAYAN-Tarlac6 in conducting an initial health survey in La Paz,
Tarlac for a future medical mission.7
In pursuit of her volunteer work, petitioner brought her passport, wallet with Fifteen
Thousand Pesos (₱15,000.00) in cash, journal, digital camera with memory card,
laptop computer, external hard disk, IPOD,8 wristwatch, sphygmomanometer,
stethoscope and medicines.9
After doing survey work on 19 May 2009, petitioner and her companions, Juanito communist beliefs in favor of returning to "the fold."24 The torture, on the other
Carabeo (Carabeo) and John Edward Jandoc (Jandoc), decided to rest in the hand, consisted of taunting, choking, boxing and suffocating the petitioner.25
house of one Mr. Jesus Paolo (Mr. Paolo) in Sitio Bagong Sikat, Barangay
Kapanikian, La Paz, Tarlac.10 At around 1:30 in the afternoon, however, petitioner,
her companions and Mr. Paolo were startled by the loud sounds of someone
Throughout the entirety of her ordeal, petitioner was made to suffer in blindfolds
banging at the front door and a voice demanding that they open up.11
even in her sleep.26 Petitioner was only relieved of her blindfolds when she was
allowed to take a bath, during which she became acquainted with a woman named
"Rose" who bathed her.27 There were also a few times when she cheated her
Suddenly, fifteen (15) heavily armed men forcibly opened the door, barged inside blindfold and was able to peek at her surroundings.28
and ordered petitioner and her companions to lie on the ground face down.12 The
armed men were all in civilian clothes and, with the exception of their leader, were
also wearing bonnets to conceal their faces.13
Despite being deprived of sight, however, petitioner was still able to learn the
names of three of her interrogators who introduced themselves to her as "Dex,"
"James" and "RC."29 "RC" even told petitioner that those who tortured her came
Petitioner tried to protest the intrusion, but five (5) of the armed men ganged up on from the "Special Operations Group," and that she was abducted because her
her and tied her hands.14 At this juncture, petitioner saw the other armed men name is included in the "Order of Battle."30
herding Carabeo and Jandoc, already blindfolded and taped at their mouths, to a
nearby blue van. Petitioner started to shout her name.15 Against her vigorous
resistance, the armed men dragged petitioner towards the van—bruising her arms,
On 25 May 2009, petitioner was finally released and returned to her uncle’s house
legs and knees.16 Once inside the van, but before she can be blindfolded,
in Quezon City.31 Before being released, however, the abductors gave petitioner a
petitioner was able to see the face of one of the armed men sitting beside her.17
cellular phone with a SIM32 card, a slip of paper containing an e-mail address with
The van then sped away.
password,33 a plastic bag containing biscuits and books,34 the handcuffs used on
her, a blouse and a pair of shoes.35 Petitioner was also sternly warned not to
report the incident to the group Karapatan or something untoward will happen to
After about an hour of traveling, the van stopped.18 Petitioner, Carabeo and her and her family.36
Jandoc were ordered to alight.19 After she was informed that she is being
detained for being a member of the Communist Party of the Philippines-New
People’s Army (CPP-NPA), petitioner was separated from her companions and
Sometime after her release, petitioner continued to receive calls from RC via the
was escorted to a room that she believed was a jail cell from the sound of its metal
cellular phone given to her.37 Out of apprehension that she was being monitored
doors.20 From there, she could hear the sounds of gunfire, the noise of planes
and also fearing for the safety of her family, petitioner threw away the cellular
taking off and landing and some construction bustle.21 She inferred that she was
phone with a SIM card.
taken to the military camp of Fort Magsaysay in Laur, Nueva Ecija.22

Seeking sanctuary against the threat of future harm as well as the suppression of
What followed was five (5) straight days of interrogation coupled with torture.23
any existing government files or records linking her to the communist movement,
The thrust of the interrogations was to convince petitioner to abandon her
petitioner filed a Petition for the Writs of Amparo and Habeas Data before this
Court on 1 June 2009.38 Petitioner impleaded public officials occupying the
uppermost echelons of the military and police hierarchy as respondents, on the
belief that it was government agents who were behind her abduction and torture.
Petitioner likewise included in her suit "Rose," "Dex" and "RC."39
The Amparo and Habeas Data petition prays that: (1) respondents be enjoined
from harming or even approaching petitioner and her family; (2) an order be issued
allowing the inspection of detention areas in the 7th Infantry Division, Fort
Magsaysay, Laur, Nueva Ecija; (3) respondents be ordered to produce documents
relating to any report on the case of petitioner including, but not limited to,
intelligence report and operation reports of the 7th Infantry Division, the Special
Operations Group of the Armed Forces of the Philippines (AFP) and its
subsidiaries or branch/es prior to, during and subsequent to 19 May 2009; (4)
respondents be ordered to expunge from the records of the respondents any
document pertinent or connected to Melissa C. Roxas, Melissa Roxas or any name
which sounds the same; and (5) respondents be ordered to return to petitioner her
journal, digital camera with memory card, laptop computer, external hard disk,
IPOD, wristwatch, sphygmomanometer, stethoscope, medicines and her
₱15,000.00 cash.40
In a Resolution dated 9 June 2009, this Court issued the desired writs and referred
the case to the Court of Appeals for hearing, reception of evidence and appropriate
action.41 The Resolution also directed the respondents to file their verified written
return.42
On 18 June 2009, the Office of the Solicitor General (OSG), filed a Return of the
Writs43 on behalf of the public officials impleaded as respondents.
We now turn to the defenses interposed by the public respondents.
The public respondents label petitioner’s alleged abduction and torture as "stage
managed."44 In support of their accusation, the public respondents principally rely
on the statement of Mr. Paolo, as contained in the Special Report45 of the La Paz
Police Station. In the Special Report, Mr. Paolo disclosed that, prior to the
purported abduction, petitioner and her companions instructed him and his two
sons to avoid leaving the house.46 From this statement, the public respondents
drew the distinct possibility that, except for those already inside Mr. Paolo’s house,
nobody else has any way of knowing where petitioner and her companions were at
the time they were supposedly abducted.47 This can only mean, the public
respondents concluded, that if ever there was any "abduction" it must necessarily
have been planned by, or done with the consent of, the petitioner and her
companions themselves.48
Public respondents also cited the Medical Certificate49 of the petitioner, as
actually belying her claims that she was subjected to serious torture for five (5)
days. The public respondents noted that while the petitioner alleges that she was
choked and boxed by her abductors—inflictions that could have easily produced
remarkable bruises—her Medical Certificate only shows abrasions in her wrists
and knee caps.50
For the public respondents, the above anomalies put in question the very
authenticity of petitioner’s alleged abduction and torture, more so any military or
police involvement therein. Hence, public respondents conclude that the claims of
abduction and torture was no more than a charade fabricated by the petitioner to
put the government in bad light, and at the same time, bring great media mileage
to her and the group that she represents.51
Nevertheless, even assuming the abduction and torture to be genuine, the public
respondents insist on the dismissal of the Amparo and Habeas Data petition based
on the following grounds: (a) as against respondent President Gloria Macapagal-
Arroyo, in particular, because of her immunity from suit,52 and (b) as against all of
the public respondents, in general, in view of the absence of any specific allegation
in the petition that they had participated in, or at least authorized, the commission
of such atrocities.53
Finally, the public respondents posit that they had not been remiss in their duty to
ascertain the truth behind the allegations of the petitioner.54 In both the police and
military arms of the government machinery, inquiries were set-up in the following
manner:
Police Action
Police authorities first learned of the purported abduction around 4:30 o’clock in
the afternoon of 19 May 2009, when Barangay Captain Michael M. Manuel came
to the La Paz Municipal Police Station to report the presence of heavily armed men
somewhere in Barangay Kapanikian.55 Acting on the report, the police station
launched an initial investigation.56
The initial investigation revolved around the statement of Mr. Paolo, who informed
the investigators of an abduction incident involving three (3) persons—later
identified as petitioner Melissa Roxas, Juanito Carabeo and John Edward
Jandoc—who were all staying in his house.57 Mr. Paolo disclosed that the
abduction occurred around 1:30 o’clock in the afternoon, and was perpetrated by
about eight (8) heavily armed men who forced their way inside his house.58 Other
witnesses to the abduction also confirmed that the armed men used a dark blue
van with an unknown plate number and two (2) Honda XRM motorcycles with no
plate numbers.59
At 5:00 o’clock in the afternoon of 19 May 2009, the investigators sent a Flash
Message to the different police stations surrounding La Paz, Tarlac, in an effort to
track and locate the van and motorcycles of the suspects. Unfortunately, the effort
yielded negative results.60
On 20 May 2009, the results of the initial investigation were included in a Special
Report61 that was transmitted to the Tarlac Police Provincial Office, headed by
public respondent P/S Supt. Rudy Lacadin (Supt. Lacadin). Public respondent
Supt. Lacadin, in turn, informed the Regional Police Office of Region 3 about the
abduction.62 Follow-up investigations were, at the same time, pursued.63
On 26 May 2009, public respondent PC/Supt. Leon Nilo Dela Cruz, as Director of
the Regional Police Office for Region 3, caused the creation of Special
Investigation Task Group—CAROJAN (Task Group CAROJAN) to conduct an in-
depth investigation on the abduction of the petitioner, Carabeo and Jandoc.64
Task Group CAROJAN started its inquiry by making a series of background
examinations on the victims of the purported abduction, in order to reveal the
motive behind the abduction and, ultimately, the identity of the perpetrators.65
Task Group CAROJAN also maintained liaisons with Karapatan and the Alliance
for Advancement of People’s Rights—organizations trusted by petitioner—in the
hopes of obtaining the latter’s participation in the ongoing investigations.66
Unfortunately, the letters sent by the investigators requesting for the availability of
the petitioner for inquiries were left unheeded.67
The progress of the investigations conducted by Task Group CAROJAN had been
detailed in the reports68 that it submitted to public respondent General Jesus Ame
Verzosa, the Chief of the Philippine National Police. However, as of their latest
report dated 29 June 2009, Task Group CAROJAN is still unable to make a
definitive finding as to the true identity and affiliation of the abductors—a fact that
task group CAROJAN attributes to the refusal of the petitioner, or any of her fellow
victims, to cooperate in their investigative efforts.69
Military Action
Public respondent Gilbert Teodoro, the Secretary of National Defense, first came
to know about the alleged abduction and torture of the petitioner upon receipt of
the Resolution of this Court directing him and the other respondents to file their
return.70 Immediately thereafter, he issued a Memorandum Directive71 addressed
to the Chief of Staff of the AFP, ordering the latter, among others, to conduct an
inquiry to determine the validity of the accusation of military involvement in the
abduction.72
Acting pursuant to the Memorandum Directive, public respondent General Victor S.
Ibrado, the AFP Chief of Staff, sent an AFP Radio Message73 addressed to public
respondent Lieutenant General Delfin N. Bangit (Lt. Gen. Bangit), the
Commanding General of the Army, relaying the order to cause an investigation on
the abduction of the petitioner.74
For his part, and taking cue from the allegations in the amparo petition, public
respondent Lt. Gen. Bangit instructed public respondent Major General Ralph A.
Villanueva (Maj. Gen. Villanueva), the Commander of the 7th Infantry Division of
the Army based in Fort Magsaysay, to set in motion an investigation regarding the
possible involvement of any personnel assigned at the camp in the purported
abduction of the petitioner.75 In turn, public respondent Maj. Gen. Villanueva
tapped the Office of the Provost Marshal (OPV) of the 7th Infantry Division, to
conduct the investigation.76
On 23 June 2009, the OPV of the 7th Infantry Division released an Investigation
Report77 detailing the results of its inquiry. In substance, the report described
petitioner’s allegations as "opinionated" and thereby cleared the military from any
involvement in her alleged abduction and torture.78
The Decision of the Court of Appeals
In its Decision,79 the Court of Appeals gave due weight and consideration to the
petitioner’s version that she was indeed abducted and then subjected to torture for
five (5) straight days. The appellate court noted the sincerity and resolve by which
the petitioner affirmed the contents of her affidavits in open court, and was thereby
convinced that the latter was telling the truth.80
On the other hand, the Court of Appeals disregarded the argument of the public
respondents that the abduction of the petitioner was "stage managed," as it is
merely based on an unfounded speculation that only the latter and her companions
knew where they were staying at the time they were forcibly taken.81 The Court of
Appeals further stressed that the Medical Certificate of the petitioner can only
affirm the existence of a true abduction, as its findings are reflective of the very
injuries the latter claims to have sustained during her harrowing ordeal, particularly
when she was handcuffed and then dragged by her abductors onto their van.82
The Court of Appeals also recognized the existence of an ongoing threat against
the security of the petitioner, as manifested in the attempts of "RC" to contact and
monitor her, even after she was released.83 This threat, according to the Court of
Appeals, is all the more compounded by the failure of the police authorities to
identify the material perpetrators who are still at large.84 Thus, the appellate court
extended to the petitioner the privilege of the writ of amparo by directing the public
respondents to afford protection to the former, as well as continuing, under the
norm of extraordinary diligence, their existing investigations involving the
abduction.85
The Court of Appeals likewise observed a transgression of the right to
informational privacy of the petitioner, noting the existence of "records of
investigations" that concerns the petitioner as a suspected member of the CPP-
NPA.86 The appellate court derived the existence of such records from a
photograph and video file presented in a press conference by party-list
representatives Jovito Palparan (Palparan) and Pastor Alcover (Alcover), which
allegedly show the petitioner participating in rebel exercises. Representative
Alcover also revealed that the photograph and video came from a female CPP-
NPA member who wanted out of the organization. According to the Court of
Appeals, the proliferation of the photograph and video, as well as any form of
media, insinuating that petitioner is part of the CPP-NPA does not only constitute a
violation of the right to privacy of the petitioner but also puts further strain on her
already volatile security.87 To this end, the appellate court granted the privilege of
the writ of habeas data mandating the public respondents to refrain from
distributing to the public any records, in whatever form, relative to petitioner’s
alleged ties with the CPP-NPA or pertinently related to her abduction and
torture.88

The foregoing notwithstanding, however, the Court of Appeals was not convinced
that the military or any other person acting under the acquiescence of the
government, were responsible for the abduction and torture of the petitioner.89
The appellate court stressed that, judging by her own statements, the petitioner
merely "believed" that the military was behind her abduction.90 Thus, the Court of
Appeals absolved the public respondents from any complicity in the abduction and
torture of petitioner.91 The petition was likewise dismissed as against public
respondent President Gloria Macapagal-Arroyo, in view of her immunity from
suit.92
Accordingly, the petitioner’s prayers for the return of her personal belongings were
denied.93 Petitioner’s prayers for an inspection order and production order also
met the same fate.94
Hence, this appeal by the petitioner.
AMPARO
A.
Petitioner first contends that the Court of Appeals erred in absolving the public
respondents from any responsibility in her abduction and torture.95 Corollary to
this, petitioner also finds fault on the part of Court of Appeals in denying her prayer
for the return of her personal belongings.96
Petitioner insists that the manner by which her abduction and torture was carried
out, as well as the sounds of construction, gun-fire and airplanes that she heard
while in detention, as these were detailed in her two affidavits and affirmed by her
in open court, are already sufficient evidence to prove government involvement.97
Proceeding from such assumption, petitioner invokes the doctrine of command
responsibility to implicate the high-ranking civilian and military authorities she
impleaded as respondents in her amparo petition.98 Thus, petitioner seeks from
this Court a pronouncement holding the respondents as complicit in her abduction
and torture, as well as liable for the return of her belongings.99
Command Responsibility in Amparo Proceedings
It must be stated at the outset that the use by the petitioner of the doctrine of
command responsibility as the justification in impleading the public respondents in
her amparo petition, is legally inaccurate, if not incorrect. The doctrine of command
responsibility is a rule of substantive law that establishes liability and, by this
account, cannot be a proper legal basis to implead a party-respondent in an
amparo petition.100
The case of Rubrico v. Arroyo,101 which was the first to examine command
responsibility in the context of an amparo proceeding, observed that the doctrine is
used to pinpoint liability. Rubrico notes that:102
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."103
In this sense, command responsibility is properly a form of criminal complicity. The
Hague Conventions of 1907 adopted the doctrine of command responsibility,104
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. As then formulated, command responsibility 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 perpetrators105
(as opposed to crimes he ordered). (Emphasis in the orginal, underscoring
supplied)
Since the application of command responsibility presupposes an imputation of
individual liability, it is more aptly invoked in a full-blown criminal or administrative
case rather than in a summary amparo proceeding. The obvious reason lies in the
nature of the writ itself:
The writ of amparo is a protective remedy aimed at providing judicial relief
consisting of the appropriate remedial measures and directives that may be crafted
by the court, in order to address specific violations or threats of violation of the
constitutional rights to life, liberty or security.106 While the principal objective of its
proceedings is the initial determination of whether an enforced disappearance,
extralegal killing or threats thereof had transpired—the writ does not, by so doing,
fix liability for such disappearance, killing or threats, whether that may be criminal,
civil or administrative under the applicable substantive law.107 The rationale
underpinning this peculiar nature of an amparo writ has been, in turn, clearly set
forth in the landmark case of The Secretary of National Defense v. Manalo:108
x x x 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.109(Emphasis supplied)
It must be clarified, however, that the inapplicability of the doctrine of command
responsibility in an amparo proceeding does not, by any measure, preclude
impleading military or police commanders on the ground that the complained acts
in the petition were committed with their direct or indirect acquiescence. In which
case, commanders may be impleaded—not actually on the basis of command
responsibility—but rather on the ground of their responsibility, or at least
accountability. In Razon v. Tagitis,110 the distinct, but interrelated concepts of
responsibility and accountability were given special and unique significations in
relation to an amparo proceeding, to wit:
x x x Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or omission,
in an enforced disappearance, as a measure of the remedies this Court shall craft,
among them, the directive to file the appropriate criminal and civil cases against
the responsible parties in the proper courts. Accountability, on the other hand,
refers to the measure of remedies that should be addressed to those who
exhibited involvement in the enforced disappearance without bringing the level of
their complicity to the level of responsibility defined above; or who are imputed with
knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance.
Responsibility of Public Respondents
At any rate, it is clear from the records of the case that the intent of the petitioner in
impleading the public respondents is to ascribe some form of responsibility on their
part, based on her assumption that they, in one way or the other, had condoned
her abduction and torture.111
To establish such assumption, petitioner attempted to show that it was government
agents who were behind her ordeal. Thus, the petitioner calls attention to the
circumstances surrounding her abduction and torture—i.e., the forcible taking in
broad daylight; use of vehicles with no license plates; utilization of blindfolds;
conducting interrogations to elicit communist inclinations; and the infliction of
physical abuse—which, according to her, is consistent with the way enforced
disappearances are being practiced by the military or other state forces.112
Moreover, petitioner also claims that she was held inside the military camp Fort military or police personnel. Bluntly stated, the abductors were not proven to be
Magsaysay—a conclusion that she was able to infer from the travel time required part of either the military or the police chain of command.
to reach the place where she was actually detained, and also from the sounds of
construction, gun-fire and airplanes she heard while thereat.113
Second. The claim of the petitioner that she was taken to Fort Magsaysay was not
adequately established by her mere estimate of the time it took to reach the place
We are not impressed. The totality of the evidence presented by the petitioner where she was detained and by the sounds that she heard while thereat. Like the
does not inspire reasonable conclusion that her abductors were military or police Court of Appeals, We are not inclined to take the estimate and observations of the
personnel and that she was detained at Fort Magsaysay. petitioner as accurate on its face—not only because they were made mostly while
she was in blindfolds, but also in view of the fact that she was a mere sojourner in
the Philippines, whose familiarity with Fort Magsaysay and the travel time required
to reach it is in itself doubtful.116 With nothing else but obscure observations to
First. The similarity between the circumstances attending a particular case of
support it, petitioner’s claim that she was taken to Fort Magsaysay remains a mere
abduction with those surrounding previous instances of enforced disappearances
speculation.
does not, necessarily, carry sufficient weight to prove that the government
orchestrated such abduction. We opine that insofar as the present case is
concerned, the perceived similarity cannot stand as substantial evidence of the
involvement of the government. In sum, the petitioner was not able to establish to a concrete point that her
abductors were actually affiliated, whether formally or informally, with the military
or the police organizations. Neither does the evidence at hand prove that petitioner
was indeed taken to the military camp Fort Magsaysay to the exclusion of other
In amparo proceedings, the weight that may be accorded to parallel circumstances
places. These evidentiary gaps, in turn, make it virtually impossible to determine
as evidence of military involvement depends largely on the availability or non-
whether the abduction and torture of the petitioner was in fact committed with the
availability of other pieces of evidence that has the potential of directly proving the
acquiescence of the public respondents. On account of this insufficiency in
identity and affiliation of the perpetrators. Direct evidence of identity, when
evidence, a pronouncement of responsibility on the part of the public respondents,
obtainable, must be preferred over mere circumstantial evidence based on
therefore, cannot be made.
patterns and similarity, because the former indubitably offers greater certainty as to
the true identity and affiliation of the perpetrators. An amparo court cannot simply
leave to remote and hazy inference what it could otherwise clearly and directly
ascertain. Prayer for the Return of Personal Belongings

In the case at bench, petitioner was, in fact, able to include in her Offer of This brings Us to the prayer of the petitioner for the return of her personal
Exhibits,114 the cartographic sketches115 of several of her abductors whose belongings.
faces she managed to see. To the mind of this Court, these cartographic sketches
have the undeniable potential of giving the greatest certainty as to the true identity
and affiliation of petitioner’s abductors. Unfortunately for the petitioner, this
In its decision, the Court of Appeals denied the above prayer of the petitioner by
potential has not been realized in view of the fact that the faces described in such
reason of the failure of the latter to prove that the public respondents were involved
sketches remain unidentified, much less have been shown to be that of any
in her abduction and torture.117 We agree with the conclusion of the Court of
Appeals, but not entirely with the reason used to support it. To the mind of this
Court, the prayer of the petitioner for the return of her belongings is doomed to fail
regardless of whether there is sufficient evidence to hold public respondents
responsible for the abduction of the petitioner.
In the first place, an order directing the public respondents to return the personal
belongings of the petitioner is already equivalent to a conclusive pronouncement of
liability. The order itself is a substantial relief that can only be granted once the
liability of the public respondents has been fixed in a full and exhaustive
proceeding. As already discussed above, matters of liability are not determinable
in a mere summary amparo proceeding.118
But perhaps the more fundamental reason in denying the prayer of the petitioner,
lies with the fact that a person’s right to be restituted of his property is already
subsumed under the general rubric of property rights—which are no longer
protected by the writ of amparo.119 Section 1 of the Amparo Rule,120 which
defines the scope and extent of the writ, clearly excludes the protection of property
rights.
B.
The next error raised by the petitioner is the denial by the Court of Appeals of her
prayer for an inspection of the detention areas of Fort Magsaysay.121
Considering the dearth of evidence concretely pointing to any military involvement
in petitioner’s ordeal, this Court finds no error on the part of the Court of Appeals in
denying an inspection of the military camp at Fort Magsaysay. We agree with the
appellate court that a contrary stance would be equivalent to sanctioning a "fishing
expedition," which was never intended by the Amparo Rule in providing for the
interim relief of inspection order.122 Contrary to the explicit position123 espoused
by the petitioner, the Amparo Rule does not allow a "fishing expedition" for
evidence.
An inspection order is an interim relief designed to give support or strengthen the
claim of a petitioner in an amparo petition, in order to aid the court before making a
decision.124 A basic requirement before an amparo court may grant an inspection
order is that the place to be inspected is reasonably determinable from the
allegations of the party seeking the order. While the Amparo Rule does not require
that the place to be inspected be identified with clarity and precision, it is,
nevertheless, a minimum for the issuance of an inspection order that the
supporting allegations of a party be sufficient in itself, so as to make a prima facie
case. This, as was shown above, petitioner failed to do.
Since the very estimates and observations of the petitioner are not strong enough
to make out a prima facie case that she was detained in Fort Magsaysay, an
inspection of the military camp cannot be ordered. An inspection order cannot
issue on the basis of allegations that are, in themselves, unreliable and doubtful.
HABEAS DATA
As earlier intimated, the Court of Appeals granted to the petitioner the privilege of
the writ of habeas data, by enjoining the public respondents from "distributing or
causing the distribution to the public any records in whatever form, reports,
documents or similar papers" relative to the petitioner’s "alleged ties with the CPP-
NPA or pertinently related to her abduction and torture." Though not raised as an
issue in this appeal, this Court is constrained to pass upon and review this
particular ruling of the Court of Appeals in order to rectify, what appears to Us, an
error infecting the grant.
For the proper appreciation of the rationale used by the Court of Appeals in
granting the privilege of the writ of habeas data, We quote hereunder the relevant
portion125 of its decision:
Under these premises, Petitioner prayed that all the records, intelligence reports himself, particularly in the instances where such information is being collected
and reports on the investigations conducted on Melissa C. Roxas or Melissa through unlawful means in order to achieve unlawful ends.
Roxas be produced and eventually expunged from the records. Petitioner claimed
to be included in the Government’s Order of Battle under Oplan Bantay Laya which
listed political opponents against whom false criminal charges were filed based on
Needless to state, an indispensable requirement before the privilege of the writ
made up and perjured information.
may be extended is the showing, at least by substantial evidence, of an actual or
threatened violation of the right to privacy in life, liberty or security of the victim.127
This, in the case at bench, the petitioner failed to do.
Pending resolution of this petition and before Petitioner could testify before Us, Ex-
army general Jovito Palaparan, Bantay party-list, and Pastor Alcover of the
Alliance for Nationalism and Democracy party-list held a press conference where
The main problem behind the ruling of the Court of Appeals is that there is actually
they revealed that they received an information from a female NPA rebel who
no evidence on record that shows that any of the public respondents had violated
wanted out of the organization, that Petitioner was a communist rebel. Alcover
or threatened the right to privacy of the petitioner. The act ascribed by the Court of
claimed that said information reached them thru a letter with photo of Petitioner
Appeals to the public respondents that would have violated or threatened the right
holding firearms at an NPA training camp and a video CD of the training exercises.
to privacy of the petitioner, i.e., keeping records of investigations and other reports
about the petitioner’s ties with the CPP-NPA, was not adequately proven—
considering that the origin of such records were virtually unexplained and its
Clearly, and notwithstanding Petitioner’s denial that she was the person in said existence, clearly, only inferred by the appellate court from the video and
video, there were records of other investigations on Melissa C. Roxas or Melissa photograph released by Representatives Palparan and Alcover in their press
Roxas which violate her right to privacy. Without a doubt, reports of such nature conference. No evidence on record even shows that any of the public respondents
have reasonable connections, one way or another, to petitioner’s abduction where had access to such video or photograph.
she claimed she had been subjected to cruelties and dehumanizing acts which
nearly caused her life precisely due to allegation of her alleged membership in the
CPP-NPA. And if said report or similar reports are to be continuously made
In view of the above considerations, the directive by the Court of Appeals enjoining
available to the public, Petitioner’s security and privacy will certainly be in danger
the public respondents from "distributing or causing the distribution to the public
of being violated or transgressed by persons who have strong sentiments or
any records in whatever form, reports, documents or similar papers" relative to the
aversion against members of this group. The unregulated dissemination of said
petitioner’s "alleged ties with the CPP-NPA," appears to be devoid of any legal
unverified video CD or reports of Petitioner’s alleged ties with the CPP-NPA
basis. The public respondents cannot be ordered to refrain from distributing
indiscriminately made available for public consumption without evidence of its
something that, in the first place, it was not proven to have.
authenticity or veracity certainly violates Petitioner’s right to privacy which must be
protected by this Court. We, thus, deem it necessary to grant Petitioner the
privilege of the Writ of Habeas Data. (Emphasis supplied).
Verily, until such time that any of the public respondents were found to be actually
responsible for the abduction and torture of the petitioner, any inference regarding
the existence of reports being kept in violation of the petitioner’s right to privacy
The writ of habeas data was conceptualized as a judicial remedy enforcing the
becomes farfetched, and premature.
right to privacy, most especially the right to informational privacy of individuals.126
The writ operates to protect a person’s right to control information regarding
For these reasons, this Court must, at least in the meantime, strike down the grant
of the privilege of the writ of habeas data.
DISPOSITION OF THE CASE
Our review of the evidence of the petitioner, while telling of its innate insufficiency
to impute any form of responsibility on the part of the public respondents, revealed
two important things that can guide Us to a proper disposition of this case. One,
that further investigation with the use of extraordinary diligence must be made in
order to identify the perpetrators behind the abduction and torture of the petitioner;
and two, that the Commission on Human Rights (CHR), pursuant to its
Constitutional mandate to "investigate all forms of human rights violations involving
civil and political rights and to provide appropriate legal measures for the
protection of human rights,"128 must be tapped in order to fill certain investigative
and remedial voids.
Further Investigation Must Be Undertaken
Ironic as it seems, but part and parcel of the reason why the petitioner was not
able to adduce substantial evidence proving her allegations of government
complicity in her abduction and torture, may be attributed to the incomplete and
one-sided investigations conducted by the government itself. This "awkward"
situation, wherein the very persons alleged to be involved in an enforced
disappearance or extralegal killing are, at the same time, the very ones tasked by
law to investigate the matter, is a unique characteristic of these proceedings and is
the main source of the "evidentiary difficulties" faced by any petitioner in any
amparo case.129
Cognizant of this situation, however, the Amparo Rule placed a potent safeguard—
requiring the "respondent who is a public official or employee" to prove that no less
than "extraordinary diligence as required by applicable laws, rules and regulations
was observed in the performance of duty."130 Thus, unless and until any of the
public respondents is able to show to the satisfaction of the amparo court that
extraordinary diligence has been observed in their investigations, they cannot shed
the allegations of responsibility despite the prevailing scarcity of evidence to that
effect.
With this in mind, We note that extraordinary diligence, as required by the Amparo
Rule, was not fully observed in the conduct of the police and military investigations
in the case at bar.
A perusal of the investigation reports submitted by Task Group CAROJAN shows
modest effort on the part of the police investigators to identify the perpetrators of
the abduction. To be sure, said reports are replete with background checks on the
victims of the abduction, but are, at the same time, comparatively silent as to other
concrete steps the investigators have been taking to ascertain the authors of the
crime. Although conducting a background investigation on the victims is a logical
first step in exposing the motive behind the abduction—its necessity is clearly
outweighed by the need to identify the perpetrators, especially in light of the fact
that the petitioner, who was no longer in captivity, already came up with allegations
about the motive of her captors.
Instead, Task Group CAROJAN placed the fate of their investigations solely on the
cooperation or non-cooperation of the petitioner—who, they claim, was less than
enthusiastic in participating in their investigative efforts.131 While it may be
conceded that the participation of the petitioner would have facilitated the progress
of Task Group CAROJAN’s investigation, this Court believes that the former’s
reticence to cooperate is hardly an excuse for Task Group CAROJAN not to
explore other means or avenues from which they could obtain relevant leads.132
Indeed, while the allegations of government complicity by the petitioner cannot, by
themselves, hold up as adequate evidence before a court of law—they are,
nonetheless, a vital source of valuable investigative leads that must be pursued
and verified, if only to comply with the high standard of diligence required by the
Amparo Rule in the conduct of investigations.
Assuming the non-cooperation of the petitioner, Task Group CAROJAN’s reports Hence, We modify the directive of the Court of the Appeals for further
still failed to explain why it never considered seeking the assistance of Mr. Jesus investigation, as follows—
Paolo—who, along with the victims, is a central witness to the abduction. The
reports of Task Group CAROJAN is silent in any attempt to obtain from Mr. Paolo,
a cartographic sketch of the abductors or, at the very least, of the one who, by
1.) Appointing the CHR as the lead agency tasked with conducting further
petitioner’s account, was not wearing any mask.1avvphi1
investigation regarding the abduction and torture of the petitioner. Accordingly, the
CHR shall, under the norm of extraordinary diligence, take or continue to take the
necessary steps: (a) to identify the persons described in the cartographic sketches
The recollection of Mr. Paolo could have served as a comparative material to the submitted by the petitioner, as well as their whereabouts; and (b) to pursue any
sketches included in petitioner’s offer of exhibits that, it may be pointed out, were other leads relevant to petitioner’s abduction and torture.
prepared under the direction of, and first submitted to, the CHR pursuant to the
latter’s independent investigation on the abduction and torture of the petitioner.133
But as mentioned earlier, the CHR sketches remain to be unidentified as of this
2.) Directing the incumbent Chief of the Philippine National Police (PNP), or his
date.
successor, and the incumbent Chief of Staff of the AFP, or his successor, to
extend assistance to the ongoing investigation of the CHR, including but not limited
to furnishing the latter a copy of its personnel records circa the time of the
In light of these considerations, We agree with the Court of Appeals that further petitioner’s abduction and torture, subject to reasonable regulations consistent with
investigation under the norm of extraordinary diligence should be undertaken. This the Constitution and existing laws.
Court simply cannot write finis to this case, on the basis of an incomplete
investigation conducted by the police and the military. In a very real sense, the
right to security of the petitioner is continuously put in jeopardy because of the
3.) Further directing the incumbent Chief of the PNP, or his successor, to furnish to
deficient investigation that directly contributes to the delay in bringing the real
this Court, the Court of Appeals, and the petitioner or her representative, a copy of
perpetrators before the bar of justice.
the reports of its investigations and their recommendations, other than those that
are already part of the records of this case, within ninety (90) days from receipt of
this decision.
To add teeth to the appellate court’s directive, however, We find it fitting, nay,
necessary to shift the primary task of conducting further investigations on the
abduction and torture of the petitioner upon the CHR.134 We note that the CHR,
4.) Further directing the CHR to (a) furnish to the Court of Appeals within ninety
unlike the police or the military, seems to enjoy the trust and confidence of the
(90) days from receipt of this decision, a copy of the reports on its investigation
petitioner—as evidenced by her attendance and participation in the hearings
and its corresponding recommendations; and to (b) provide or continue to provide
already conducted by the commission.135 Certainly, it would be reasonable to
protection to the petitioner during her stay or visit to the Philippines, until such time
assume from such cooperation that the investigations of the CHR have advanced,
as may hereinafter be determined by this Court.
or at the very least, bears the most promise of advancing farther, in terms of
locating the perpetrators of the abduction, and is thus, vital for a final resolution of
this petition. From this perspective, We also deem it just and appropriate to
relegate the task of affording interim protection to the petitioner, also to the CHR. Accordingly, this case must be referred back to the Court of Appeals, for the
purposes of monitoring compliance with the above directives and determining
whether, in light of any recent reports or recommendations, there would already be
sufficient evidence to hold any of the public respondents responsible or, at least,
accountable. After making such determination, the Court of Appeals shall submit
its own report with recommendation to this Court for final action. The Court of
Appeals will continue to have jurisdiction over this case in order to accomplish its
tasks under this decision.
WHEREFORE, the instant petition is PARTIALLY MERITORIOUS. We hereby
render a decision:
1.) AFFIRMING the denial of the petitioner’s prayer for the return of her personal
belongings;
2.) AFFIRMING the denial of the petitioner’s prayer for an inspection of the
detention areas of Fort Magsaysay.
3.) REVERSING the grant of the privilege of habeas data, without prejudice,
however, to any modification that this Court may make on the basis of the
investigation reports and recommendations submitted to it under this decision.
4.) MODIFYING the directive that further investigation must be undertaken, as
follows—
a. APPOINTING the Commission on Human Rights as the lead agency tasked with
conducting further investigation regarding the abduction and torture of the
petitioner. Accordingly, the Commission on Human Rights shall, under the norm of
extraordinary diligence, take or continue to take the necessary steps: (a) to identify
the persons described in the cartographic sketches submitted by the petitioner, as
well as their whereabouts; and (b) to pursue any other leads relevant to petitioner’s
abduction and torture.
b. DIRECTING the incumbent Chief of the Philippine National Police, or his
successor, and the incumbent Chief of Staff of the Armed Forces of the
Philippines, or his successor, to extend assistance to the ongoing investigation of
the Commission on Human Rights, including but not limited to furnishing the latter
a copy of its personnel records circa the time of the petitioner’s abduction and
torture, subject to reasonable regulations consistent with the Constitution and
existing laws.
c. Further DIRECTING the incumbent Chief of the Philippine National Police, or his
successor, to furnish to this Court, the Court of Appeals, and the petitioner or her
representative, a copy of the reports of its investigations and their
recommendations, other than those that are already part of the records of this
case, within ninety (90) days from receipt of this decision.
d. Further DIRECTING the Commission on Human Rights (a) to furnish to the
Court of Appeals within ninety (90) days from receipt of this decision, a copy of the
reports on its investigation and its corresponding recommendations; and (b) to
provide or continue to provide protection to the petitioner during her stay or visit to
the Philippines, until such time as may hereinafter be determined by this Court.
5.) REFERRING BACK the instant case to the Court of Appeals for the following
purposes:
a. To MONITOR the investigations and actions taken by the PNP, AFP, and the
CHR;
b. To DETERMINE whether, in light of the reports and recommendations of the
CHR, the abduction and torture of the petitioner was committed by persons acting
under any of the public respondents; and on the basis of this determination—
 GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ.
GEN. JUANITO GOMEZ, MAJ. GEN. DELFIN BANGIT, LT. COL. NOEL
c. To SUBMIT to this Court within ten (10) days from receipt of the report and CLEMENT, LT. COL. MELQUIADES FELICIANO, and DIRECTOR GENERAL
recommendation of the Commission on Human Rights—its own report, which shall OSCAR CALDERON, Respondents.
include a recommendation either for the DISMISSAL of the petition as against the
public respondents who were found not responsible and/or accountable, or for the x-----------------------x
APPROPRIATE REMEDIAL MEASURES, AS MAY BE ALLOWED BY THE
AMPARO AND HABEAS DATA RULES, TO BE UNDERTAKEN as against those G.R. No. 183712
found responsible and/or accountable.
EDITA T. BURGOS, Petitioner,
vs.
GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ.
Accordingly, the public respondents shall remain personally impleaded in this GEN. JUANITO GOMEZ, LT. COL. MELQUIADES FELICIANO, and LT. COL.
petition to answer for any responsibilities and/or accountabilities they may have NOEL CLEMENT, Respondents.
incurred during their incumbencies.
x-----------------------x

*G.R. No. 178497 is included.

Other findings of the Court of Appeals in its Decision dated 26 August 2009 in CA-
G.R. SP No. 00036-WRA that are not contrary to this decision are AFFIRMED. G.R. No. 183713

EDITA T. BURGOS, Petitioner,

vs.
SO ORDERED. CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, GEN.
HERMOGENES ESPERON, JR.; Commanding General of the Philippine Army,
LT. GEN. ALEXANDER YANO; and Chief of the Philippine National Police,
DIRECTOR GENERAL AVELINO RAZON, JR., Respondents.
G.R. No. 178497 February 4, 2014
RESOLUTION
EDITA T. BURGOS, Petitioner,
vs. BRION, J.:
GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ.
GEN. JUANITO GOMEZ, MAJ. GEN. DELFIN BANGIT, LT. COL. NOEL We resolve in this Resolution all the pending incidents in this case, specifically:
CLEMENT, LT. COL. MELQUIADES FELICIANO, and DIRECTOR GENERAL
OSCAR CALDERON, Respondents. (a) The determination of the relevance and advisability of the public disclosure of
the documents submitted by respondents President Gloria Macapagal-Arroyo, Lt.
x-----------------------x Gen. Romeo P. Tolentino, Maj. Gen. Juanito Gomez, Maj. Gen. Delfin Bangit, Lt.
Col. Noel Clement, Lt. Col. Melquiades Feliciano, Director General Oscar
G.R. No. 183711 Calderon, Chief of Staff of the Armed Forces of the Philippines, Gen. Hermogenes
Esperon, Jr.; Commanding General of the Philippine Army, Lt. Gen. Alexander
EDITA T. BURGOS, Petitioner,
Yano; and Chief of the Philippine National Police, Director General Avelino Razon,
vs.
Jr. to this Court per paragraph III (i) of the fallo of our July 5, 2011 Resolution; and
(b) The Urgent Ex Parle Motion Ex Abundanti Cautela1 (together with sealed
attachments) filed by petitioner Edita T. Burgos praying that the Court: (1) order
the persons named in the sealed documents impleaded in CA-G.R. SP No. 00008-
WA and G.R. No. 183713; (2) issue a writ of Amparo on the basis of the newly
discovered evidence (the sealed attachments to the motion); and (3) refer the
cases to the Court of Appeals (CA) for further hearings on the newly discovered
evidence.
FACTUAL ANTECEDENTS
A. The Court’s June 22, 2010 Resolution
These incidents stemmed from our June 22, 2010 Resolution referring the present
case to the Commission on Human Rights (CHR) as the Court’s directly
commissioned agency, tasked with the continuation of the investigation of Jonas
Joseph T. Burgos’ abduction with the obligation to report its factual findings and
recommendations to this Court. This referral was necessary as the investigation by
the Philippine National Police-Criminal Investigation and Detection Group (PNP-
CIDG), by the Armed Forces of the Philippines (AFP) Provost Marshal, and even
the initial CHR investigation had been less than complete. In all of them, there
were significant lapses in the handling of the investigation. In particular, we
highlighted the PNP-CIDG’s failure to identify the cartographic sketches of two
(one male and one female) of the five abductors of Jonas, based on their interview
with the eyewitnesses to the abduction.
In this same Resolution, we also affirmed the CA’s dismissal of the petitions for
Contempt and issuance of a Writ of Amparo with respect to President Macapagal-
Arroyo who was then entitled, as President, to immunity from suit.
The March 15, 2011 CHR Report
On March 15, 2011, the CHR submitted to the Court its Investigation Report on the
Enforced Disappearance of Jonas Burgos (CHR Report), in compliance with our
June 22, 2010 Resolution. On the basis of the gathered evidence, the CHR
submitted the following findings:
Based on the facts developed by evidence obtaining in this case, the CHR finds
that the enforced disappearance of Jonas Joseph T. Burgos had transpired; and
that his constitutional rights to life liberty and security were violated by the
Government have been fully determined.
Jeffrey Cabintoy and Elsa Agasang have witnessed on that fateful day of April 28,
2007 the forcible abduction of Jonas Burgos by a group of about seven (7) men
and a woman from the extension portion of Hapag Kainan Restaurant, located at
the ground floor of Ever Gotesco Mall, Commonwealth Avenue, Quezon City.
xxxx
The eyewitnesses mentioned above were Jeffrey Cabintoy (Jeffrey) and Elsa
Agasang (Elsa), who at the time of the abduction were working as busboy and
Trainee-Supervisor, respectively, at Hapag Kainan Restaurant.
In his Sinumpaang Salaysay, Jeffrey had a clear recollection of the face of HARRY
AGAGEN BALIAGA, JR. as one of the principal abductors, apart from the faces of
the two abductors in the cartographic sketches that he described to the police,
after he was shown by the Team the pictures in the PMA Year Book of Batch
Sanghaya 2000 and group pictures of men taken some years thereafter.
The same group of pictures were shown to detained former 56th IB Army trooper
Edmond M. Dag-uman (Dag-uman), who also positively identified Lt. Harry
Baliaga, Jr. Daguman’s Sinumpaang Salaysay states that he came to know Lt.
Baliaga as a Company Commander in the 56th IB while he was still in the military
service (with Serial No. 800693, from 1997 to 2002) also with the 56th IB but under
1Lt. Usmalik Tayaban, the Commander of Bravo Company. When he was arrested
and brought to the 56th IB Camp in April 2005, he did not see Lt. Baliaga anymore
at the said camp. The similar reaction that the pictures elicited from both Jeffrey
and Daguman did not pass unnoticed by the Team. Both men always look pensive,
probably because of the pathetic plight they are in right now. It came as a surprise
therefore to the Team when they could hardly hide their smile upon seeing the face
of Baliaga, as if they know the man very well.
Moreover, when the Team asked how certain Jeffrey was or [sic] that it was indeed
Baliaga that he saw as among those who actually participated in Jonas’ abduction.
Jeffrey was able to give a graphic description and spontaneously, to boot, the blow
by blow account of the incident, including the initial positioning of the actors,
specially Baliaga, who even approached, talked to, and prevented him from
interfering in their criminal act.
A Rebel-returnee (RR) named Maria Vita Lozada y Villegas @KA MY, has
identified the face of the female in the cartographic sketch as a certain Lt.
Fernando. While Lozada refuses to include her identification of Lt. Fernando in her
Sinumpaang Salaysay for fear of a backlash, she told the Team that she was
certain it was Lt. Fernando in the cartographic sketch since both of them were
involved in counter-insurgency operations at the 56th IB, while she was under the
care of the battalion from March 2006 until she left the 56th IB Headquarters in
October 2007. Lozada’s involvement in counter-insurgency operations together
with Lt. Fernando was among the facts gathered by the CHR Regional Office 3
Investigators, whose investigation into the enforced disappearance of Jonas
Joseph Burgos was documented by way of an After Mission Report dated August
13, 2008.
Most if not all the actual abductors would have been identified had it not been for
what is otherwise called as evidentiary difficulties shamelessly put up by some
police and military elites. The deliberate refusal of TJAG Roa to provide the CHR
with the requested documents does not only defy the Supreme Court directive to
the AFP but ipso facto created a disputable presumption that AFP personnel were
responsible for the abduction and that their superiors would be found accountable,
if not responsible, for the crime committed. This observation finds support in the
disputable presumption "That evidence willfully suppressed would be adverse if
produced." (Paragraph (e), Section 3, Rule 131 on Burden of Proof and
Presumptions, Revised Rules on Evidence of the Rules of Court of the
Philippines).
In saying that the requested document is irrelevant, the Team has deemed that the
requested documents and profiles would help ascertain the true identities of the
cartographic sketches of two abductors because a certain Virgilio Eustaquio has
claimed that one of the intelligence operatives involved in the 2007 ERAP 5 case
fits the description of his abductor.
As regards the PNP CIDG, the positive identification of former 56th IB officer Lt.
HARRY A. BALIAGA, JR. as one of the principal abductors has effectively crushed
the theory of the CIDG witnesses that the NPAs abducted Jonas. Baliaga’s true
identity and affiliation with the military have been established by overwhelming
evidence corroborated by detained former Army trooper Dag-uman.
For lack of material time, the Commission will continue to investigate the enforced
disappearance of Jonas Burgos as an independent body and pursuant to its
mandate under the 1987 Constitution. Of particular importance are the identities
and locations of the persons appearing in the cartographic sketches; the
allegations that CIDG Witnesses Emerito G. Lipio and Meliza Concepcion-Reyes
are AFP enlisted personnel and the alleged participation of Delfin De Guzman @
Ka Baste in the abduction of Jonas Burgos whose case for Murder and Attempted
Murder was dismissed by the court for failure of the lone witness, an army man of
the 56th IB to testify against him.
Interview with Virgilio Eustaquio, Chairman of the Union Masses for Democracy
and Justice (UMDJ), revealed that the male abductor of Jonas Burgos appearing in
the cartographic sketch was among the raiders who abducted him and four others,
identified as Jim Cabauatan, Jose Curament, Ruben Dionisio and Dennis Ibona
otherwise known as ERAP FIVE.
Unfortunately, and as already pointed out above, The Judge Advocate General
(TJAG) turned down the request of the Team for a profile of the operatives in the
so-called "Erap 5" abduction on the ground of relevancy and branded the request
as a fishing expedition per its Disposition Form dated September 21, 2010.
Efforts to contact Virgilio Eustaquio to secure his affidavit proved futile, as his
present whereabouts cannot be determined. And due to lack of material time, the
Commission decided to pursue the same and determine the whereabouts of the
other members of the "Erap 5" on its own time and authority as an independent
body.2
B. The Court’s July 5, 2011 Resolution
On July 5, 2011, in light of the new evidence and leads the CHR uncovered, we
issued a Resolution: (1) issuing anew a Writ of Habeas Corpus and referring the
habeas corpus petition to the CA; (2) holding in abeyance our ruling on the merits
of the Amparo aspect of the case; referring back the same to the CA in order to
allow Lt. Harry A. Baliaga, Jr. and the present Amparo respondents to file their
Comments on the CHR Report; and ordering Lt. Baliaga to be impleaded as a
party to the Amparo petition; and (3) affirming the dismissal of the petitioner’s
petition for Contempt, without prejudice to the re-filing of the contempt charge as
may be warranted by the results of the subsequent CHR investigation. To quote
the exact wording of our Resolution:
WHEREFORE, in the interest of justice and for the foregoing reasons, we
RESOLVE to:
I. IN G.R. NO. 183711 (HABEAS CORPUS PETITION, CA-G.R. SP No. 99839)
a. ISSUE a Writ of Habeas Corpus anew, returnable to the Presiding Justice of the
Court of Appeals who shall immediately refer the writ to the same Division that
decided the habeas corpus petition;
b. ORDER Lt. Harry A. Baliaga, Jr. impleaded in CA-G.R. SP No. 99839 and G.R.
No. 183711, and REQUIRE him, together with the incumbent Chief of Staff, Armed
Forces of the Philippines; the incumbent Commanding General, Philippine Army;
and the Commanding Officer of the 56th IB, 7th Infantry Division, Philippine Army
at the time of the disappearance of Jonas Joseph T. Burgos, Lt. Col. Melquiades
Feliciano, to produce the person of Jonas Joseph T. Burgos under the terms the
Court of Appeals shall prescribe, and to show cause why Jonas Joseph T. Burgos
should not be released from detention;
c. REFER back the petition for habeas corpus to the same Division of the Court of
Appeals which shall continue to hear this case after the required Returns shall
have been filed and render a new decision within thirty (30) days after the case is
submitted for decision; and
d. ORDER the Chief of Staff of the Armed Forces of the Philippines and the
Commanding General of the Philippine Army to be impleaded as parties, separate
from the original respondents impleaded in the petition, and the dropping or
deletion of President Gloria Macapagal-Arroyo as party-respondent.
II. IN G.R. NO. 183712 (CONTEMPT OF COURT CHARGE, CA-G.R. SP No.
100230)
e. AFFIRM the dismissal of the petitioner’s petition for Contempt in CA-G.R. SP
No. 100230, without prejudice to the re-filing of the contempt charge as may be
warranted by the results of the subsequent CHR investigation this Court has
ordered; and
f. ORDER the dropping or deletion of former President Gloria Macapagal-Arroyo
as party-respondent, in light of the unconditional dismissal of the contempt charge
against her.
III. IN G.R. NO. 183713 (WRIT OF AMPARO PETITION, CA-G.R. SP No. 00008-
WA)
g. ORDER Lt. Harry A. Baliaga, Jr., impleaded in CA-G.R. SP No. 00008-WA and
G.R. No. 183713, without prejudice to similar directives we may issue with respect
to others whose identities and participation may be disclosed in future
investigations and proceedings;
h. DIRECT Lt. Harry A. Baliaga, Jr., and the present Amparo respondents to file
their Comments on the CHR report with the Court of Appeals, within a non-
extendible period of fifteen (15) days from receipt of this Resolution.
i. REQUIRE General Roa of the Office of the Judge Advocate General, AFP; the
Deputy Chief of Staff for Personnel, JI, AFP, at the time of our June 22, 2010
Resolution; and then Chief of Staff, AFP, Gen. Ricardo David, (a) to show cause
and explain to this Court, within a non-extendible period of fifteen (15) days from
receipt of this Resolution, why they should not be held in contempt of this Court for
their defiance of our June 22, 2010 Resolution; and (b) to submit to this Court,
within a non-extendible period of fifteen (15) days from receipt of this Resolution, a
copy of the documents requested by the CHR, particularly:
1) The profile and Summary of Information and pictures of T/Sgt. Jason Roxas
(Philippine Army); Cpl. Maria Joana Francisco (Philippine Air Force); M/Sgt. Aron
Arroyo (Philippine Air Force); an alias T.L. - all reportedly assigned with Military
Intelligence Group 15 of Intelligence Service of the Armed Forces of the
Philippines - and 2Lt. Fernando, a lady officer involved in the counter-insurgency
operations of the 56th IB in 2006 to 2007;
2) Copies of the records of the 2007 ERAP 5 incident in Kamuning, Quezon City
and the complete list of the intelligence operatives involved in that said covert
military operation, including their respective Summary of Information and individual
pictures; and
3) Complete list of the officers, women and men assigned at the 56th and 69th
Infantry Battalion and the 7th Infantry Division from January 1, 2004 to June 30,
2007 with their respective profiles, Summary of Information and pictures; including
the list of captured rebels and rebels who surrendered to the said camps and their
corresponding pictures and copies of their Tactical Interrogation Reports and the
cases filed against them, if any.
These documents shall be released exclusively to this Court for our examination to
determine their relevance to the present case and the advisability of their public
disclosure.
j. ORDER the Chief of Staff of the Armed Forces of the Philippines and the
Commanding General of the Philippine Army to be impleaded as parties, in
representation of their respective organizations, separately from the original
respondents impleaded in the petition; and the dropping of President Gloria
Macapagal-Arroyo as party-respondent;
k. REFER witnesses Jeffrey T. Cabintoy and Elsa B. Agasang to the Department
of Justice for admission to the Witness Protection Security and Benefit Program,
subject to the requirements of Republic Act No. 6981; and
l. NOTE the criminal complaint filed by the petitioner with the DOJ which the latter
may investigate and act upon on its own pursuant to Section 21 of the Rule on the
Writ of Amparo.3
C. The Court’s August 23, 2011 Resolution
On August 23, 2011, we issued a Resolution resolving among others:
(a) to NOTE the Explanation separately filed by Brigadier Gen. Gilberto Jose C.
Roa, Armed Forces of the Philippines (AFP), General Ricardo A. David, Jr., AFP
(ret.), and Rear Admiral Cornelio A. dela Cruz, Jr., AFP;
xxxx
(c) to LIMIT the documents to be submitted to this Court to those assigned at the
56th Infantry Battalion (IB) from January 1, 2004 to June 30, 2007, and to SUBMIT
these materials within ten (10) days from notice of this Resolution, without
prejudice to the submission of the other documents required under the Court’s July
5, 2011 Resolution, pertaining to those assigned at the other units of the AFP,
should the relevance of these documents be established during the Court of
Appeal’s hearing;
(d) to REQUIRE the submission, within ten (10) days from notice of this
Resolution, of the Summary of Information and individual pictures of the
intelligence operatives involved in the ERAP 5 incident, in compliance with the
Court’s July 5, 2011 Resolution;
(e) to REQUIRE the submission, within ten (10) days from notice of this
Resolution, of the profile and Summary of Information and pictures of an alias T.L.,
reportedly assigned with Military Intelligence Group 15 of the Intelligence Service
of the AFP and of a 2Lt. Fernando, a lady officer in the counter-insurgency
operations of the 56th IB in 2006 to 2007, in compliance with the Court’s July 5,
2011 Resolution.4
The Respondents’ September 23, 2011 Manifestation and Motion
On September 23, 2011, the respondents submitted a Manifestation and Motion in
compliance with the Court’s August 23, 2011 Resolution. Attached to this
Manifestation and Motion are the following documents:
a. The Summary of Information (SOI) of the officers and enlisted personnel of the
56th IB, 7th ID from January 1, 2004 to June 30, 2007;
b. The Summary of Information (SOI) of the intelligence operatives who were
involved in the ERAP 5 incident; and
c. The Summary of Information (SOI) of 2Lt. Fernando, who was a member of the
56th IB, 7th ID.5
D. The Court’s September 6, 2011 Resolution
On August 19, 2011, the petitioner filed a Manifestation and a Motion for
Clarificatory Order praying among others that she be allowed to examine the
documents submitted to the Court pursuant to paragraph III (i) of the Court’s July
5, 2011 Resolution. In our September 6, 2011 Resolution, we resolved, among
others, to:
(3) DENY the petitioner’s request to be allowed to examine the documents
submitted to this Court per paragraph (i) of the fallo of our July 5, 2011 Resolution,
without prejudice to our later determination of the relevance and of the advisability
of public disclosure of those documents/materials;6
E. The Court’s October 11, 2011 Resolution
On October 11, 2011, we issued a Resolution requiring the CHR to secure Virgilio
Eustaquio’s affidavit, and to submit a report of its ongoing investigation of Jonas’
abduction, viz:
(1) REQUIRE the Commission on Human Rights to undertake all available
measures to obtain the affidavit of witness Virgilio Eustaquio in connection with his
allegation that one of the male abductors of Jonas Joseph T. Burgos, appearing in
the cartographic sketch, was among the "raiders" who abducted him and four
others, identified as Jim Cabauatan, Jose Curament, Ruben Dionisio and Dennis
Ibona (otherwise known as the "ERAP FIVE");
(2) DIRECT the Commission on Human Rights to submit to this Court, within thirty
(30) days from receipt of this Resolution, a Report, with its recommendations of its
ongoing investigation of Burgos’ abduction, and the affidavit of Virgilio Eustaquio, if
any, copy furnished the petitioner, the Court of Appeals, the incumbent Chiefs of
the AFP, the PNP and the PNP-CIDG, and all the present respondents before the
Court of Appeals.7
F. The Court’s November 29, 2011 Resolution
On November 2, 2011, we received a letter dated October 28, 2011 from
Commissioner Jose Manuel S. Mamauag, Team Leader, CHR Special
Investigation Team, requesting photocopies of the following documents:
i. SOI of the officers and enlisted personnel of the 56th IB, 7th ID from January 1,
2004 to June 30, 2007;
ii. SOI of the intelligence operatives who were involved in the ERAP 5 incident; and
iii. SOI of 2Lt. Fernando who was a member of the 56th IB, 7th ID.8
In our November 29, 2011 Resolution, we denied the CHR's request considering
the confidential nature of the requested documents and because the relevance of
these documents to the present case had not been established. We referred the
CHR to our July 5, 2011 Resolution where we pointedly stated that these
documents shall be "released exclusively to this Court for our examination to
determine their relevance to the present case and the advisability of their public
disclosure."9
We held that "[w]e see no reason at this time to release these confidential
documents since their relevance to the present case has not been established to
our satisfaction. It is precisely for this reason that we issued our October 24, 2011
Resolution and directed the CHR to submit to this Court, within thirty (30) days
from receipt of the Resolution, a Report with its recommendations of its ongoing
investigation of Jonas Burgos’ abduction, and the affidavit of Virgilio Eustaquio, if
any. Simply stated, it is only after the CHR's faithful compliance with our October
24, 2011 Resolution that we will be able to determine the relevance of the
requested documents to the present case."10
G. The March 20, 2012 CHR Progress Report and Eustaquio’s Affidavit
On March 20, 2012, the CHR submitted its Progress Report detailing its efforts to
secure the affidavit of witness Eustaquio in relation with his allegation that one of
the male abductors of Jonas, appearing in the cartographic sketch, was among the
raiders who abducted him and four others, identified as Jim Cabauatan, Jose
Curament, Ruben Dionisio and Dennis Ibona (otherwise known as the "ERAP
FIVE"). Attached to this Report is Eustaquio’s sworn affidavit dated March 16,
2012, which pertinently stated:
1. I was one of the victims in the abduction incident on May 22, 2006 otherwise
known as ERAP 5 and because of that, we filed a case with the Ombudsman
against Commodore Leonardo Calderon, et al., all then ISAFP elements, docketed
as OMB-P-C-06-04050-E for Arbitrary Detention, Unlawful Arrest, Maltreatment of
Prisoners, Grave Threats, Incriminatory Machination, and Robbery.
2. On March 16, 2012, I was approached again by the CHR Special Investigation
Team regarding the information I have previously relayed to them sometime in
September 2010 as to the resemblance of the cartographic sketch of the man as
described by the two eyewitnesses Elsa Agasang and Jeffrey Cabintoy in the
abduction case of Jonas Burgos;
3. I can say that the male abductor of Jonas Burgos appearing in the cartographic
sketch is among the raiders who abducted me and my four other companions
because the cartographic sketch almost exactly matched and/or resembled to the
cartographic sketch that I also provided and described in relation to the said
incident at my rented house in Kamuning, Quezon City on May 22, 2006.
4. I am executing this affidavit voluntarily, freely and attest to the truth of the
foregoing.11
H. The March 18, 2013 CA Decision
On March 18, 2013, the CA issued its decision pursuant to the Court’s July 5, 2011
Resolution referring the Amparo and Habeas Corpus aspects of the case to the CA
for appropriate hearings and ruling on the merits of the petitions.
Petition for Habeas Corpus
The CA held that the issue in the petition for habeas corpus is not the illegal
confinement or detention of Jonas, but his enforced disappearance. Considering
that Jonas was a victim of enforced disappearance, the present case is beyond the
ambit of a petition for habeas corpus.
Petition for the Writ of Amparo
Based on its finding that Jonas was a victim of enforced disappearance, the CA
concluded that the present case falls within the ambit of the Writ of Amparo. The
CA found that the totality of the evidence supports the petitioner’s allegation that
the military was involved in the enforced disappearance of Jonas. The CA took
note of Jeffrey Cabintoy’s positive identification of Lt. Baliaga as one of the
abductors who approached him and told him not to interfere because the man
being arrested had been under surveillance for drugs; he also remembered the
face of Lt. Baliaga – the face he identified in the pictures because he resembles
his friend Raven. The CA also held that Lt. Baliaga’s alibi and corroborative
evidence cannot prevail over Cabintoy’s positive identification, considering
especially the absence of any indication that he was impelled by hatred or any
improper motive to testify against Lt. Baliaga. Thus, the CA held that Lt. Baliaga
was responsible and the AFP and the PNP were accountable for the enforced
disappearance of Jonas.
Based on these considerations, the CA resolved to:
1) RECOGNIZING the abduction of Jonas Burgos as an enforced disappearance
covered by the Rule on the Writ of Amparo;
2) With regard to authorship,
a) DECLARING Maj. Harry A. Baliaga, Jr. RESPONSIBLE for the enforced
disappearance of Jonas Burgos; and
b) DECLARING the Armed Forces of the Philippines and elements of the Armed
Forces of the Philippines, particularly the Philippine Army, ACCOUNTABLE for the
enforced disappearance of Jonas Burgos;
3) DECLARING the Philippine National Police ACCOUNTABLE for the conduct of
an exhaustive investigation of the enforced disappearance of Jonas Burgos. To
this end, the PNP through its investigative arm, the PNP-CIDG, is directed to
exercise extraordinary diligence to identify and locate the abductors of Jonas
Burgos who are still at large and to establish the link between the abductors of
Jonas Burgos and those involved in the ERAP 5 incident.
(4) DIRECTING the incumbent Chief of Staff of the Armed Forces of the
Philippines and the Director General of the Philippine National Police, and their
successors, to ensure the continuance of their investigation and coordination on
the enforced disappearance of Jonas Burgos until the persons found responsible
are brought before the bar of justice;
(5) DIRECTING the Commission on Human Rights to continue with its own
independent investigation on the enforced disappearance of Jonas Burgos with the
same degree of diligence required under the Rule on the Writ of Amparo; and
(6) DIRECTING the Armed Forces of the Philippines and the Philippine National
Police to extend full assistance to the Commission on Human Rights in the
conduct of the latter’s investigation.
The Chief of Staff, Armed Forces of the Philippines, the Director General,
Philippine National Police and the Chairman, Commission on Human Rights are
hereby DIRECTED to submit a quarterly report to this Court on the results of their
respective investigation.
The filing of petitioner’s Affidavit-Complaint against Maj. Harry A. Baliaga, Jr., et al.
before the Department of Justice on June 9, 2011 is NOTED. Petitioner is
DIRECTED to immediately inform this Court of any development regarding the
outcome of the case.12
The Respondent’s April 3, 2013 Motion for Partial Reconsideration
The Solicitor General, in behalf of the public respondents (the AFP Chief of Staff
and the PNP Director General), filed a motion for partial reconsideration of the
March 18, 2013 CA decision. The motion made the following submissions:
5. x x x[T]he Director General, PNP, respectfully takes exception to the Honorable
Court’s findings that the PNP, specifically the CIDG, "failed to exercise
extraordinary diligence in the conduct of its investigation." x x x [T]hat this
Honorable Court arrived at a conclusion different from that of the CIDG, or
accorded different credence to the statements of the witnesses presented by the
parties, does not necessarily translate to the CIDG’s failure to exercise
extraordinary diligence.
6. The Chief of Staff, AFP also takes exception to the Honorable Court’s findings
that the "Chief of Staff of the Armed Forces of the Philippines and the
Commanding General should be held accountable for Jonas Burgos
disappearance for failing to exercise extraordinary diligence in conducting an
internal investigation on the matter. The unwillingness of the respondent officers of
the 56th IB to cooperate in the investigation conducted by the CHR is a persuasive
proof of the alleged cover up of the military’s involvement in the enforced
disappearance of Jonas Burgos."
The AFP and the Philippine Army conducted a thorough investigation to determine
the veracity of the allegations implicating some of its officers and personnel. After
the conduct of the same, it is the conclusion of the Armed Forces of the Philippines
and the Philippine Army, based on the evidence they obtained, that Jonas Burgos
has never been in custody.
7. The Chief of Staff, AFP, also respectfully takes exception to the finding of the
Honorable Court "recognizing the abduction of Jonas Burgos as an enforced
disappearance."
xxxx
That the Honorable Court found a member of the Philippine Army or even a group
of military men to be responsible for the abduction of Jonas Burgos, does not
necessarily make the same a case of "enforced disappearance" involving the
State. There is dearth of evidence to show that the government is involved.
Respondent Baliaga’s alleged participation in the abduction and his previous
membership in the 56th Infantry Battalion of the Philippine Army, by themselves,
do not prove the participation or acquiescence of the State.13
I. The CA Resolution dated May 23, 2013
On May 23, 2013, the CA issued its resolution denying the respondents’ motion for
partial reconsideration. The CA ruled that as far as the PNP was concerned, its
failure to elicit leads and information from Cabintoy who witnessed Jonas’
abduction is eloquent proof of its failure to exercise extraordinary diligence in the
conduct of its investigation. As far as the AFP was concerned, the CA held that the
fact that Lt. Baliaga of the Philippine Army was positively identified as one of the
abductors of Jonas, coupled with the AFP’s lack of serious effort to conduct further
investigation, spoke loudly of the AFP leadership’s accountability.
To date, the respondents have not appealed to this Court, as provided under
Section 19 of the Rule on the Writ of Amparo.14
J. The Petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela dated April 1,
2013
On April 1, 2013, the petitioner filed an Ex Parte Motion Ex Abundanti Cautela
asking the Court to: (1) order the persons named in the sealed documents to be
impleaded in CA-G.R. SP No. 00008-WA and G.R. No. 183713; (2) issue a writ of
Amparo on the basis of the newly discovered evidence (the sealed attachment to
the motion); and (3) refer the cases to the CA for further hearing on the newly
discovered evidence.
The petitioner alleged that she received from a source (who requested to remain
anonymous) documentary evidence proving that an intelligence unit of the 7th
Infantry Division of the Philippine Army and 56th Infantry Battalion, operating
together, captured Jonas on April 28, 2007 at Ever Gotesco Mall, Commonwealth
Avenue, Quezon City. This documentary evidence consists of: (1) After
Apprehension Report dated April 30, 2007; (2) Psycho Social Processing Report
dated April 28, 2007; and (3) Autobiography of Jonas. The petitioner also claimed
that these are copies of confidential official reports on file with the Philippine Army.
i. After Apprehension Report dated April 30, 2007
This report is a photocopy consisting six pages dated April 30, 2007, addressed to
the Commanding Officer, 7MIB, 7ID, LA, Fort Magsaysay, NE. The report detailed
the planning and the objective of apprehending target communist leaders, among
them, one alias "Ramon" who was captured at Ever Gotesco Mall, Commonwealth,
Quezon City on April 28, 2007 by joint elements of the 72 MICO and S2, 56th IB.
This report also listed the names of the military personnel belonging to task
organization 72 MICO and 56th IB who conducted the operation.
ii. Psycho Social Processing Report dated April 28, 2007
This report details Jonas’ abduction and "neutralization"; the results of his
interrogation and the intelligence gathered on his significant involvements/activities
within the CPP/NPA/NDF organization.
iii. Undated Autobiography
This autobiography narrates how Jonas started as a student activist, his
recruitment and eventual ascent in the CPP/NPA as an intelligence officer.
K. The Court’s April 11, 2013 Resolution
In our April 11, 2013 Resolution, the Court resolved to require the respondents to
Comment on the petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela and its
attachments, within ten (10) days from receipt of the Resolution. In the same
Resolution, the Court:
(1) required BGen. Roa and Lt. Gen. Emmanuel T. Bautista to fully comply with the
terms of Section III (i) of the dispositive portion of our July 5, 2011 Resolution
within fifteen (15) days from receipt of the resolution;
(2) required Lt. Gen. Emmanuel T. Bautista to submit a written assurance within
fifteen (15) days from receipt of the Resolution that the military personnel listed in
the submitted After Apprehension Report can be located and be served with the
processes that the Court may serve;
(3) issued a Temporary Protection Order in favor of the petitioner and all the
members of her immediate family;
(4) directed the DOJ and the NBI to provide security and protection to the
petitioner and her immediate family and to submit a confidential memorandum on
the security arrangements made;
(5) directed the NBI to coordinate and provide direct investigative assistance to the
CHR as it may require pursuant to the authority granted under the Court’s June 22,
2010 Resolution.15
i. The respondents’ Comment from the petitioner’s Urgent Ex Parte Motion Ex
Abundanti Cautela dated June 6, 2013
On June 6, 2013, the respondents, through the Office of the Solicitor General, filed
their comments on the petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela.
First, the respondents alleged that the documents submitted by the petitioner do
not exist in the concerned military units’ respective records, nor are they in the
custody or possession of their respective units. To support their allegations, the
respondents submitted the following:
a. Certification dated May 29, 2013 from Maj. Gen. Gregorio Pio P. Catapang, Jr.
Commander, 7th Infantry Division, Philippine Army stating that the
documents16 submitted by the petitioner "do not exist nor in the
possession/custody of this Headquarters."
b. Certification dated May 29, 2013, from Lt. Col. Louie D.S. Villanueva, Assistant
Chief of Staff, Office of the Assistant Chief of Staff for Personnel, G1, 7th Infantry
Division, Philippine Army stating that the documents submitted by the petitioner
"could not be found nor do they exist in the records of this Command."
c. Certification dated May 24, 2013 from Lt. Col. Bernardo M. Ona, Commanding
Officer, 56th Infantry Battalion, 7th Infantry Division, Philippine Army stating that
the documents submitted by the petitioner "do not exist at this unit."
d. Certification dated May 24, 2013 from 1Lt. Donal S. Frias, Acting Commanding
Officer, 72nd Military Intelligence Company, 7th Military Intelligence Battalion, 7th
Infantry Division, Philippine Army stating that the documents submitted by the
petitioner "do not exist at the records or in the possession of this unit."17
The respondents also submitted the affidavits of Lt. Col. Melquiades Feliciano,
Maj. Allan M. Margarata and Cpl. Ruby Benedicto, viz:
a. In his June 3, 2013 Affidavit, Col. Feliciano stated:
1. That I was assigned as Battalion Commander of 56th Infantry Division, 7th
Infantry Division, PA last 17 January 2007 to 17 August 2007.
2. That I was showed a photocopy of the After Apprehension Report dated 30 April
2007 wherein members of 56th IB, 7ID, PA were included therein.
3. I vehemently oppose to (sic) the existence of the said document and the
participation of my men listed thereat. There were no military operations that I have
authorized or approved regarding Jonas Burgos. The contents thereof are false
and utter fabrication of facts.
b. In his May 31, 2013 Affidavit, Maj. Margarata stated:
1. That I was assigned at 72nd Military Intelligence Company (72MICO), 7th
Infantry Division, PA from 01 July 2006 to 01 July 2008.
2. That I was showed a photocopy of the Psycho-Social Processing Report dated
28 April 2007 and After Apprehension Report dated 30 April 2007, both of which
purportedly came from 72MICO, 7th Infantry Division, Philippine Army and that on
the last page of the Pyscho-Social Processing Report appears my name therein.
3. I vehemently oppose to (sic) the existence of the said documents and the
implication of my name in the said documents. The contents thereof are purely a
product of wild imagination. I have never seen such document until now.
4. I can only surmise that these are plainly a fishing expedition on the part of Mrs.
Edita Burgos. A ploy to implicate any military personnel especially those belonging
to the 7th Infantry Division, Philippine Army.
c. In her May 31, 2013 Affidavit, Cpl. Benedicto stated:
1. That I was never assigned at 72nd Military Intelligence Company, 7th Infantry
Division, PA.
2. That I was showed a photocopy of the Psycho-Social Processing Report dated
28 April 2007 and After Apprehension Report dated 30 April 2007, both of which
purportedly came from 72MICO, 7th Infantry Division, Philippine Army and that on
the last page of the Psycho-Social Processing Report appears my name therein.
3. I vehemently oppose to (sic) the existence of the said documents and the
implication of my name in the said documents. The contents thereof are false and
utter fabrication of facts. How can I ever be at 72MICO if I was never assigned
thereat.
4. I have never been an interrogator in my entire military service. I have never
been a member of any operation which involves the name of Jonas Burgos or any
other military operation for that matter. I have never seen such document until
now.
5. Furthermore, I have never worked with Maj. Allan Margarata or of his unit,
72MICO.18
Second, the respondents note that none of the documents submitted by the
petitioner were signed; a writ of Amparo cannot be issued and the investigation
cannot progress on the basis of false documents and false information.
Lastly, the respondents argue that since the National Bureau of Investigation (NBI)
and CHR are conducting their own investigations of the case, the petitioner’s
motion at this point is premature; the proceedings to be conducted by the CA will
be at the very least redundant.
ii. The Respondents’ Compliance dated June 7, 2013
On June 7, 2013, the respondents, through the Office of Judge Advocate General,
complied with our April 11, 2013 Resolution by submitting the following documents:
a. Profile/Summary of Information (SOI) with pictures of the personnel of 56th
Infantry Battalion (IB), 69th IB, and 7th Infantry Division, Philippine Army (PA).
These documents were submitted by the 7th ID in sealed nine (9) small and three
(3) big boxes (total of twelve (12) sealed boxes);
b. Investigation Report of the Intelligence Service, Armed Forces of the Philippines
(ISAFP) on the 2007 "ERAP 5" incident in Kamuning, Quezon City;
Profile/Summary of Information (SOI) with pictures of the Intel Operatives involved
in the "ERAP 5" incident; and certification issued by the Command Adjutant of
ISAFP concerning T/Sgt. Jason Roxas (Philippine Army), Cpl. Maria Joana
Francisco (Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air Force), an alias
T.L., all reportedly assigned with the Military Intelligence Group 15 of the
Intelligence Service, AFP (MIG 15, ISAFP). These documents were submitted by
ISAFP in a sealed envelope;
c. Profile/Summary of Information (SOI) with a picture of 2LT Fernando PA. This
document was submitted by Deputy Chief of Staff for Personnel, G1, PA in a
sealed envelope;
d. A certification issued by 56IB and 69IB, 7ID, PA concerning
captured/surrendered rebels;
e. A certification stating the present location and whereabouts of military personnel
listed in the submitted After Apprehension Report, dated April 30, 2007, allegedly
identified as members of the Task Organization -72 MICO and 56th IB with the
inclusion of four (4) separate certifications from Commander, 7ID, PA, Office of the
Assistant Chief of Staff for Personnel, G1, 7ID, PA, Commanding Officer, 72
MICO, and 56Ib, 71ID, PA, respectively, stating the non-existence of the following
documents: Psycho-Social Processing Report dated 28 April 2007; After-
Apprehension Report dated 30 April 2007; Autobiography of Jonas Burgos; and
Picture of Jonas Burgos;
f. Affidavit of Compliance of General Emmanuel T. Bautista, AFP, the Chief of
Staff, assuring that the active military personnel mentioned in the purported
apprehension report can be located at their given locations and be served with the
processes that may be issued by the Honorable Court. 19
OUR RULING
A. On the relevancy and disclosure of the documents submitted to this Court per
paragraph III(i) of the fallo of our July 5, 2011 Resolution
The directive for the submission of the above-mentioned documents arose from
our determination in our June 22, 2010 Resolution that the PNP-CIDG failed to
identify the cartographic sketches of two (one male and one female) of the five
abductors of Jonas, based on their interview with eyewitnesses to the abduction.
For this reason, the Court directly commissioned the CHR to continue the
investigation of Jonas’ abduction and the gathering of evidence.
Based on its March 15, 2011 Report, the CHR uncovered a lead – a claim made
by Eustaquio, Chairman of the Union Masses for Democracy and Justice, that the
male abductor of Jonas appearing in the cartographic sketch was among the
raiders who abducted him and four others, known as the "ERAP FIVE."
This prompted the CHR to request copies of the documents embodied in par. III(i)
of the fallo of the Court’s July 5, 2011 Resolution from General Gilberto Jose C.
Roa of the Office of the Judge Advocate General, AFP. Gen. Roa initially denied
this request but eventually complied with the Court’s directive of July 5, 2011 to
submit the documents via the September 23, 2011 Manifestation and Motion and
the June 7, 2013 Compliance. In the same July 5, 2011 Resolution, the Court
made it plain that these documents shall be released exclusively to the Court for its
examination to determine their relevance to the present case and the advisability
of their public disclosure.
Pursuant to the Court’s October 11, 2011 Resolution, the CHR submitted its March
20, 2012 Progress Report on its continuing investigation of Jonas’ abduction.
Attached to this Progress Report was Virgilio Eustaquio’s sworn affidavit stating
that: (1) he was one of the victims of the abduction incident on May 22, 2006,
otherwise known as the "ERAP FIVE" incident; (2) as a result of this incident, they
filed a case with the Ombudsman against Commodore Leonardo Calderon and
other members of the Intelligence Service, AFP (ISAFP) for arbitrary detention,
unlawful arrest, maltreatment of prisoners, grave threats, incriminatory machination
and robbery; and (3) the male abductor of Jonas appearing in the cartographic
sketch shown to him by the CHR was among the raiders who abducted him and
his four companions because it resembled the cartographic sketch he described in
relation to the ERAP FIVE incident on May 22, 2006.
After reviewing the submissions of both the respondents20 and the CHR21 pursuant
to the Court’s July 5, 2011, August 23, 2011 and October 11, 2011 Resolutions,
we resolve to grant the CHR access to these requested documents to allow them
the opportunity to ascertain the true identities of the persons depicted in the
cartographic sketches.
At this point, we emphasize that the sworn affidavit of Eustaquio (that attests to the
resemblance of one of Jonas’ abductors to the abductors of the ERAP FIVE)
constitutes the sought-after missing link that establishes the relevance of the
requested documents to the present case. We note that this lead may help the
CHR ascertain the identities of those depicted in the cartographic sketches as two
of Jonas’ abductors (one male and one female) who, to this day, remain
unidentified.
In view of the sensitive and confidential nature of the requested documents, we
direct the Clerk of Court of the Supreme Court to allow the duly-authorized
representatives of the CHR to inspect the requested documents in camera within
five (5) days from receipt of this Resolution.
The documents shall be examined and compared with the cartographic sketches
of the two abductors of Jonas, without copying and without bringing the documents
outside the premises of the Office of the Clerk of Court of the Supreme Court. The
inspection of the documents shall be within office hours and for a reasonable
period of time sufficient to allow the CHR to comprehensively investigate the lead
provided by Eustaquio.
To fully fulfill the objective of the Rule on the Writ of Amparo, further investigation
using the standard of extraordinary diligence should be undertaken by the CHR to
pursue the lead provided by Eustaquio. We take judicial notice of the ongoing
investigation being conducted by the Department of Justice (DOJ), through the
NBI, on the disappearance of Jonas.22 In this regard, we direct the NBI to
coordinate and provide direct investigative assistance to the CHR as the latter may
require, pursuant to the authority granted under the Court’s June 22, 2010
Resolution.
For this purpose, we require the CHR to submit a supplemental investigation report
to the DOJ, copy furnished the petitioner, the NBI, the incumbent Chiefs of the
AFP, the PNP and the PNP-CIDG, and all the respondents within sixty days (60)
days from receipt of this Resolution.
B. On the Urgent Ex Parte Motion Ex Abundanti Cautela
After reviewing the newly discovered evidence submitted by the petitioner and
considering all the developments of the case, including the March 18, 2013 CA
decision that confirmed the validity of the issuance of the Writ of Amparo in the
present case, we resolve to deny the petitioner’s Urgent Ex Parte Motion Ex
Abundanti Cautela.
We note and conclude, based on the developments highlighted above, that the
beneficial purpose of the Writ of Amparo has been served in the present case. As
we held in Razon, Jr. v. Tagitis,23 the writ merely embodies the Court’s directives
to police agencies to undertake specified courses of action to address the enforced
disappearance of an individual. The Writ of Amparo serves both a preventive and a
curative role. It is curative as it facilitates the subsequent punishment of
perpetrators through the investigation and remedial action that it directs. 24The
focus is on procedural curative remedies rather than on the tracking of a specific
criminal or the resolution of administrative liabilities. The unique nature of Amparo
proceedings has led us to define terms or concepts specific to what the
proceedings seek to achieve. In Razon Jr., v. Tagitis,25 we defined what the terms
"responsibility" and "accountability" signify in an Amparo case. We said:
Responsibility refers to the extent the actors have been established by substantial
evidence to have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court shall craft,
among them, the directive to file the appropriate criminal and civil cases against
the responsible parties in the proper courts. Accountability, on the other hand,
refers to the measure of remedies that should be addressed to those who
exhibited involvement in the enforced disappearance without bringing the level of
their complicity to the level of responsibility defined above; or who are imputed with
knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of
extraordinary diligence in the investigation of the enforced disappearance.26
In the present case, while Jonas remains missing, the series of calculated
directives issued by the Court outlined above and the extraordinary diligence the
CHR demonstrated in its investigations resulted in the criminal prosecution of Lt.
Baliaga. We take judicial notice of the fact that the Regional Trial Court, Quezon
City, Branch 216, has already found probable cause for arbitrary detention against
Lt. Baliaga and has ordered his arrest in connection with Jonas’ disappearance. 27
We also emphasize that the CA in its March 18, 2013 decision already ruled with
finality on the entities responsible and accountable (as these terms are defined in
Razon, Jr. v. Tagitis) for the enforced disappearance of Jonas. In its March 18,
2013 decision, the CA found, by substantial evidence, that Lt. Baliaga participated
in the abduction on the basis of Cabintoy’s positive identification that he was one
of the abductors of Jonas who told him not to interfere because the latter had been
under surveillance for drugs. In the same Decision, the CA also held the AFP and
the PNP accountable for having failed to discharge the burden of extraordinary
diligence in the investigation of the enforced disappearance of Jonas. Thus, the
CA issued the following directives to address the enforced disappearance of
Jonas:
(1) DIRECT the PNP through its investigative arm, the PNP-CIDG, to identify and
locate the abductors of Jonas Burgos who are still at large and to establish the link
between the abductors of Jonas Burgos and those involved in the ERAP 5
incident;
(2) DIRECT the incumbent Chief of Staff of the Armed Forces of the Philippines
and the Director General of the Philippines National Police, and their successors,
to ensure the continuance of their investigation and coordination on the enforced
disappearance of Jonas Burgos until the persons found responsible are brought
before the bar of justice;
(3) DIRECT the Commission on Human Rights to continue with its own
independent investigation on the enforced disappearance of Jonas Burgos with the
same degree of diligence required under the Rule on the Writ of Amparo;
(4) DIRECT the Armed Forces of the Philippines and the Philippine National Police
to extend full assistance to the Commission on Human Rights in the conduct of the
latter’s investigation; and
(5) DIRECT the Chief of Staff, Armed Forces of the Philippines, the Director
General, Philippine National Police and the Chairman, Commission on Human
Rights to submit a quarterly report to the Court on the results of their respective
investigation.28
We note that the respondents did not appeal the March 18, 2013 CA decision and
the May 23, 2013 CA resolution denying their motion for partial reconsideration.
Based on the above considerations, in particular, the final ruling of the CA that
confirmed the validity of the issuance of the Writ of Amparo and its determination
of the entities responsible for the enforced disappearance of Jonas, we resolve to
deny the petitioner’s prayer to issue the writ of Amparo anew and to refer the case
to the CA based on the newly discovered evidence. We so conclude as the
petitioner’s request for the reissuance of the writ and for the rehearing of the case
by the CA would be redundant and superfluous in light of: (1) the ongoing
investigation being conducted by the DOJ through the NBI; (2) the CHR
investigation directed by the Court in this Resolution; and (3) the continuing
investigation directed by the CA in its March 18, 2013 decision.
We emphasize that while the Rule on the Writ of Amparo accords the Court a wide
latitude in crafting remedies to address an enforced disappearance, it cannot
(without violating the nature of the writ of Amparo as a summary remedy that
provides rapid judicial relief) grant remedies that would complicate and prolong
rather than expedite the investigations already ongoing. Note that the CA has
already determined with finality that Jonas was a victim of enforced
disappearance.
We clarify that by denying the petitioner’s motion, we do not thereby rule on the
admissibility or the merits of the newly discovered evidence submitted by the
petitioner. We likewise do not foreclose any investigation by the proper
investigative and prosecutory agencies of the other entities whose identities and
participation in the enforced disappearance of Jonas may be disclosed in future
investigations and proceedings. Considering that the present case has already
reached the prosecution stage, the petitioner’s motion should have been filed with
the proper investigative and prosecutory agencies of the government.
To expedite proceedings, we refer the petitioner’s motion, this Resolution and its
covered cases to the DOJ for investigation, for the purpose of filing the appropriate
criminal charges in the proper courts against the proper parties, if warranted,
based on the gathered evidence. For this purpose, we direct the petitioner to
furnish the DOJ and the NBI copies of her Urgent Ex Parte Motion Ex Abundanti
Cautela, together with the sealed attachments to the Motion, within five (5) days
from receipt of this Resolution.
As mentioned, we take judicial notice of the ongoing investigation by the DOJ,
through the NBI, of the disappearance of Jonas. This DOJ investigation is without
prejudice to the Office of the Ombudsman’s exercise of its primary jurisdiction over
the investigation of the criminal aspect of this case should the case be determined
to be cognizable by the Sandiganbayan.29
As we direct below, further investigation for purposes of the present proceedings
shall continue to be undertaken by the CHR, in close coordination with the NBI, for
the completion of the investigation under the terms of our June 22, 2010
Resolution and the additional directives under the present Resolution.
As a final note, we emphasize that our ROLE in a writ of Amparo proceeding is
merely to determine whether an enforced disappearance has taken place; to
determine who is responsible or accountable; and to define and impose the
appropriate remedies to address the disappearance.1âwphi1
As shown above, the beneficial purpose of the Writ of Amparo has been served in
the present case with the CA’s final determination of the persons responsible and
accountable for the enforced disappearance of Jonas and the commencement of
criminal action against Lt. Baliaga. At this stage, criminal, investigation and
prosecution proceedings are already beyond the reach of the Writ of Amparo
proceeding now before us.
Based on the above developments, we now hold that the full extent of the
remedies envisioned by the Rule on the Writ of Amparo has been served and
exhausted.
Considering the foregoing, the Court RESOLVES to:
(1) DENY petitioner Edita Burgos’ Urgent Ex Parte Motion Ex Abundanti Cautela;
(2) REFER the petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela, this
Resolution and its covered cases to the Department of Justice for investigation for
the purpose of filing the appropriate criminal charges in the proper courts against
the proper parties if such action is warranted by the gathered evidence. The
referral to the Department of Justice is without prejudice to the Office of the
Ombudsman’s exercise of its primary jurisdiction over the investigation should the
case be determined to be cognizable by the Sandiganbayan;
(3) DIRECT the petitioner to furnish the Department of Justice and the National
Bureau of Investigation copies of her Urgent Ex Parte Motion Ex Abundanti
Cautela, together with the sealed attachments to the Motion, within five (5) days
from receipt of this Resolution;
(4) DIRECT the Clerk of Court of the Supreme Court to allow the duly-authorized
representatives of the Commission on Human Rights to inspect the requested
documents in camera within five (5) days from receipt of this Resolution. For this
purpose, the documents shall be examined and compared with the cartographic
sketches of the two abductors of Jonas Burgos without copying and bringing the
documents outside the premises of the Office of the Clerk of Court of the Supreme
Court. The inspection of the documents shall be conducted within office hours and
for a reasonable period of time that would allow the Commission on Human Rights
to comprehensively investigate the lead provided by Virgilio Eustaquio;
(5) DIRECT the National Bureau of Investigation to coordinate and provide direct
investigative assistance to the Commission on Human Rights as the latter may
require, pursuant to the authority granted under the Court's June 22, 2010
Resolution.
(6) REQUIRE the Commission on Human Rights to submit a supplemental
investigation report to the Department of Justice, copy furnished the petitioner, the
National Bureau of Investigation, the incumbent Chiefs of the Armed Forces of the
Philippines, the Philippine National Police and the Philippine National Police-
Criminal Investigation and Detection Group, and all the respondents, within sixty
(60) days from receipt of this Resolution.
(7) DECLARE this Writ of Amparo proceeding closed and terminated, without
prejudice to the concerned parties' compliance with the above directives and
subject to the Court's continuing jurisdiction to enforce compliance with this
Resolution.
SO ORDERED.
G.R. No. 199199 August 27, 2013
MARICRIS D. DOLOT, CHAIRMAN OF THE BAGONG ALYANSANG
MAKABAYAN-SORSOGON, PETITIONER
vs.
HON. RAMON PAJE, IN HIS CAPACITY AS THE SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, REYNULFO
A. JUAN, REGIONAL DIRECTOR, MINES AND GEOSCIENCES BUREAU,
DENR, HON. RAUL R. LEE, GOVERNOR, PROVINCE OF SORSOGON,
ANTONIO C. OCAMPO, JR., VICTORIA A. AJERO, ALFREDO M. AGUILAR,
AND JUAN M. AGUILAR, ANTONES ENTERPRISES, GLOBAL SUMMIT MINES
DEV'T CORP., AND TR ORE, RESPONDENTS.
DECISION
REYES, J.:
This is a petition for review on certiorari1 under Rule 45 of the Rules of Court
assailing the Order2 dated September 16, 2011 and Resolution3 dated October 18,
2011 issued by the Regional Trial Court (RTC) of Sorsogon, Branch 53. The
assailed issuances dismissed Civil Case No. 2011-8338 for Continuing
Mandamus, Damages and Attorney’s Fees with Prayer for the Issuance of a
Temporary Environment Protection Order.
Antecedent Facts
On September 15, 2011, petitioner Maricris D. Dolot (Dolot), together with the
parish priest of the Holy Infant Jesus Parish and the officers of Alyansa Laban sa
Mina sa Matnog (petitioners), filed a petition for continuing mandamus, damages
and attorney’s fees with the RTC of Sorsogon, docketed as Civil Case No. 2011-
8338.4 The petition contained the following pertinent allegations: (1) sometime in
2009, they protested the iron ore mining operations being conducted by Antones
Enterprises, Global Summit Mines Development Corporation and TR Ore in
Barangays Balocawe and Bon-ot Daco, located in the Municipality of Matnog, to no
avail; (2) Matnog is located in the southern tip of Luzon and there is a need to
protect, preserve and maintain the geological foundation of the municipality; (3)
Matnog is susceptible to flooding and landslides, and confronted with the
environmental dangers of flood hazard, liquefaction, ground settlement, ground
subsidence and landslide hazard; (4) after investigation, they learned that the
mining operators did not have the required permit to operate; (5) Sorsogon
Governor Raul Lee and his predecessor Sally Lee issued to the operators a small-
scale mining permit, which they did not have authority to issue; (6) the
representatives of the Presidential Management Staff and the Department of
Environment and Natural Resources (DENR), despite knowledge, did not do
anything to protect the interest of the people of Matnog;5 and (7) the respondents
violated Republic Act (R.A.) No. 7076 or the People’s Small-Scale Mining Act of
1991, R.A. No. 7942 or the Philippine Mining Act of 1995, and the Local
Government Code.6 Thus, they prayed for the following reliefs: (1) the issuance of
a writ commanding the respondents to immediately stop the mining operations in
the Municipality of Matnog; (2) the issuance of a temporary environment protection
order or TEPO; (3) the creation of an inter-agency group to undertake the
rehabilitation of the mining site; (4) award of damages; and (5) return of the iron
ore, among others.7
The case was referred by the Executive Judge to the RTC of Sorsogon, Branch 53
being the designated environmental court.8 In the Order9 dated September 16,
2011, the case was summarily dismissed for lack of jurisdiction.
The petitioners filed a motion for reconsideration but it was denied in the
Resolution10 dated October 18, 2011. Aside from sustaining the dismissal of the
case for lack of jurisdiction, the RTC11 further ruled that: (1) there was no final
court decree, order or decision yet that the public officials allegedly failed to act on,
which is a condition for the issuance of the writ of continuing mandamus; (2) the
case was prematurely filed as the petitioners therein failed to exhaust their
administrative remedies; and (3) they also failed to attach judicial affidavits and
furnish a copy of the complaint to the government or appropriate agency, as
required by the rules.12
Petitioner Dolot went straight to this Court on pure questions of law.
Issues
The main issue in this case is whether the RTC-Branch 53 has jurisdiction to
resolve Civil Case No. 2011-8338. The other issue is whether the petition is
dismissible on the grounds that: (1) there is no final court decree, order or decision
that the public officials allegedly failed to act on; (2) the case was prematurely filed
for failure to exhaust administrative remedies; and (3) the petitioners failed to
attach judicial affidavits and furnish a copy of the complaint to the government or
appropriate agency.
Ruling of the Court
Jurisdiction and Venue
In dismissing the petition for lack of jurisdiction, the RTC, in its Order dated
September 16, 2011, apparently relied on SC Administrative Order (A.O.) No. 7
defining the territorial areas of the Regional Trial Courts in Regions 1 to 12, and
Administrative Circular (Admin. Circular) No. 23-2008,13 designating the
environmental courts "to try and decide violations of environmental laws x x x
committed within their respective territorial jurisdictions."14 Thus, it ruled that its
territorial jurisdiction was limited within the boundaries of Sorsogon City and the
neighboring municipalities of Donsol, Pilar, Castilla, Casiguran and Juban and that
it was "bereft of jurisdiction to entertain, hear and decide [the] case, as such
authority rests before another co-equal court."15
Such reasoning is plainly erroneous. The RTC cannot solely rely on SC A.O. No. 7
and Admin. Circular No. 23-2008 and confine itself within its four corners in
determining whether it had jurisdiction over the action filed by the petitioners.
None is more well-settled than the rule that jurisdiction, which is the power and
authority of the court to hear, try and decide a case, is conferred by law.16 It may
either be over the nature of the action, over the subject matter, over the person of
the defendants or over the issues framed in the pleadings.17 By virtue of Batas
Pambansa (B.P.) Blg. 129 or the Judiciary Reorganization Act of 1980, jurisdiction
over special civil actions for certiorari, prohibition and mandamus is vested in the
RTC. Particularly, Section 21(1) thereof provides that the RTCs shall exercise
original jurisdiction –
in the issuance of writs of certiorari, prohibition, mandamus, quo warranto, habeas
corpus and injunction which may be enforced in any part of their respective
regions. (Emphasis ours)
A.O. No. 7 and Admin. Circular No. 23-2008 was issued pursuant to Section 18 of
B.P. Blg. 129, which gave the Court authority to define the territory over which a
branch of the RTC shall exercise its authority. These administrative orders and
circulars issued by the Court merely provide for the venue where an action may be
filed. The Court does not have the power to confer jurisdiction on any court or
tribunal as the allocation of jurisdiction is lodged solely in Congress. 18 It also
cannot be delegated to another office or agency of the Government.19 Section 18
of B.P. Blg. 129, in fact, explicitly states that the territory thus defined shall be
deemed to be the territorial area of the branch concerned for purposes of
determining the venue of all suits, proceedings or actions. It was also clarified in
Office of the Court Administrator v. Judge Matas20 that –
Administrative Order No. 3 [defining the territorial jurisdiction of the Regional Trial
Courts in the National Capital Judicial Region] and, in like manner, Circular Nos.
13 and 19, did not per se confer jurisdiction on the covered regional trial courts or
its branches, such that non-observance thereof would nullify their judicial acts. The
administrative order merely defines the limits of the administrative area within
which a branch of the court may exercise its authority pursuant to the jurisdiction
conferred by Batas Pambansa Blg. 129.21
The RTC need not be reminded that venue relates only to the place of trial or the
geographical location in which an action or proceeding should be brought and
does not equate to the jurisdiction of the court. It is intended to accord
convenience to the parties, as it relates to the place of trial, and does not restrict
their access to the courts.22Consequently, the RTC’s motu proprio dismissal of
Civil Case No. 2011-8338 on the ground of lack of jurisdiction is patently incorrect.
At most, the error committed by the petitioners in filing the case with the RTC of
Sorsogon was that of improper venue. A.M. No. 09-6-8-SC or the Rules of
Procedure for Environmental Cases (Rules) specifically states that a special civil
action for continuing mandamus shall be filed with the "[RTC] exercising
jurisdiction over the territory where the actionable neglect or omission occurred x x
x."23 In this case, it appears that the alleged actionable neglect or omission
occurred in the Municipality of Matnog and as such, the petition should have been
filed in the RTC of Irosin.24 But even then, it does not warrant the outright dismissal
of the petition by the RTC as venue may be waived.25 Moreover, the action filed by
the petitioners is not criminal in nature where venue is an essential element of
jurisdiction.26 In Gomez-Castillo v. Commission on Elections,27 the Court even
expressed that what the RTC should have done under the circumstances was to
transfer the case (an election protest) to the proper branch. Similarly, it would
serve the higher interest of justice28 if the Court orders the transfer of Civil Case
No. 2011 8338 to the RTC of Irosin for proper and speedy resolution, with the RTC
applying the Rules in its disposition of the case.
At this juncture, the Court affirms the continuing applicability of Admin. Circular No.
23-2008 constituting the different "green courts" in the country and setting the
administrative guidelines in the raffle and disposition of environmental cases.
While the designation and guidelines were made in 2008, the same should operate
in conjunction with the Rules.
A.M. No. 09-6-8-SC: Rules of Procedure for Environmental Cases
In its Resolution dated October 18, 2011, which resolved the petitioners’ motion for
reconsideration of the order of dismissal, the RTC further ruled that the petition
was dismissible on the following grounds: (1) there is no final court decree, order
or decision yet that the public officials allegedly failed to act on; (2) the case was
prematurely filed for failure to exhaust administrative remedies; and (3) there was
failure to attach judicial affidavits and furnish a copy of the complaint to the
government or appropriate agency.29 The respondents, and even the Office of the
Solicitor General, in behalf of the public respondents, all concur with the view of
the RTC.
The concept of continuing mandamus was first introduced in Metropolitan Manila
Development Authority v. Concerned Residents of Manila Bay.30 Now cast in stone
under Rule 8 of the Rules, the writ of continuing mandamus enjoys a distinct
procedure than that of ordinary civil actions for the enforcement/violation of
environmental laws, which are covered by Part II (Civil Procedure). Similar to the
procedure under Rule 65 of the Rules of Court for special civil actions for certiorari,
prohibition and mandamus, Section 4, Rule 8 of the Rules requires that the petition
filed should be sufficient in form and substance before a court may take further
action; otherwise, the court may dismiss the petition outright. Courts must be
cautioned, however, that the determination to give due course to the petition or
dismiss it outright is an exercise of discretion that must be applied in a reasonable
manner in consonance with the spirit of the law and always with the view in mind of
seeing to it that justice is served.31
Sufficiency in form and substance refers to the contents of the petition filed under
Rule 8, Section 1:
When any agency or instrumentality of the government or officer thereof unlawfully
neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station in connection with the enforcement or
violation of an environmental law rule or regulation or a right therein, or unlawfully
excludes another from the use or enjoyment of such right and there is no other
plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts
with certainty, attaching thereto supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation, and praying that judgment be
rendered commanding the respondent to do an act or series of acts until the
judgment is fully satisfied, and to pay damages sustained by the petitioner by
reason of the malicious neglect to perform the duties of the respondent, under the
law, rules or regulations. The petition shall also contain a sworn certification of
non-forum shopping.1âwphi1
On matters of form, the petition must be verified and must contain supporting
evidence as well as a sworn certification of non-forum shopping. It is also
necessary that the petitioner must be one who is aggrieved by an act or omission
of the government agency, instrumentality or its officer concerned. Sufficiency of
substance, on the other hand, necessitates that the petition must contain
substantive allegations specifically constituting an actionable neglect or omission
and must establish, at the very least, a prima facie basis for the issuance of the
writ, viz: (1) an agency or instrumentality of government or its officer unlawfully
neglects the performance of an act or unlawfully excludes another from the use or
enjoyment of a right; (2) the act to be performed by the government agency,
instrumentality or its officer is specifically enjoined by law as a duty; (3) such duty
results from an office, trust or station in connection with the enforcement or
violation of an environmental law, rule or regulation or a right therein; and (4) there
is no other plain, speedy and adequate remedy in the course of law. 32
The writ of continuing mandamus is a special civil action that may be availed of "to
compel the performance of an act specifically enjoined by law."33 The petition
should mainly involve an environmental and other related law, rule or regulation or
a right therein. The RTC’s mistaken notion on the need for a final judgment, decree
or order is apparently based on the definition of the writ of continuing mandamus
under Section 4, Rule 1 of the Rules, to wit:
(c) Continuing mandamus is a writ issued by a court in an environmental case
directing any agency or instrumentality of the government or officer thereof to
perform an act or series of acts decreed by final judgment which shall remain
effective until judgment is fully satisfied. (Emphasis ours)
The final court decree, order or decision erroneously alluded to by the RTC
actually pertains to the judgment or decree that a court would eventually render in
an environmental case for continuing mandamus and which judgment or decree
shall subsequently become final.
Under the Rules, after the court has rendered a judgment in conformity with Rule
8, Section 7 and such judgment has become final, the issuing court still retains
jurisdiction over the case to ensure that the government agency concerned is
performing its tasks as mandated by law and to monitor the effective performance
of said tasks. It is only upon full satisfaction of the final judgment, order or decision
that a final return of the writ shall be made to the court and if the court finds that
the judgment has been fully implemented, the satisfaction of judgment shall be
entered in the court docket.34 A writ of continuing mandamus is, in essence, a
command of continuing compliance with a final judgment as it "permits the court to
retain jurisdiction after judgment in order to ensure the successful implementation
of the reliefs mandated under the court’s decision."35
The Court, likewise, cannot sustain the argument that the petitioners should have
first filed a case with the Panel of Arbitrators (Panel), which has jurisdiction over
mining disputes under R.A. No. 7942.
Indeed, as pointed out by the respondents, the Panel has jurisdiction over mining
disputes.36 But the petition filed below does not involve a mining dispute. What was
being protested are the alleged negative environmental impact of the small-scale
mining operation being conducted by Antones Enterprises, Global Summit Mines
Development Corporation and TR Ore in the Municipality of Matnog; the authority
of the Governor of Sorsogon to issue mining permits in favor of these entities; and
the perceived indifference of the DENR and local government officials over the
issue. Resolution of these matters does not entail the technical knowledge and
expertise of the members of the Panel but requires an exercise of judicial function.
Thus, in Olympic Mines and Development Corp. v. Platinum Group Metals
Corporation,37 the Court stated –
Arbitration before the Panel of Arbitrators is proper only when there is a
disagreement between the parties as to some provisions of the contract between
them, which needs the interpretation and the application of that particular
knowledge and expertise possessed by members of that Panel. It is not proper
when one of the parties repudiates the existence or validity of such contract or
agreement on the ground of fraud or oppression as in this case. The validity of the
contract cannot be subject of arbitration proceedings. Allegations of fraud and
duress in the execution of a contract are matters within the jurisdiction of the
ordinary courts of law. These questions are legal in nature and require the
application and interpretation of laws and jurisprudence which is necessarily a
judicial function.38(Emphasis supplied in the former and ours in the latter)
Consequently, resort to the Panel would be completely useless and unnecessary.
The Court also finds that the RTC erred in ruling that the petition is infirm for failure
to attach judicial affidavits. As previously stated, Rule 8 requires that the petition
should be verified, contain supporting evidence and must be accompanied by a
sworn certification of non-forum shopping. There is nothing in Rule 8 that compels
the inclusion of judicial affidavits, albeit not prohibited. It is only if the evidence of
the petitioner would consist of testimony of witnesses that it would be the time that
judicial affidavits (affidavits of witnesses in the question and answer form) must be
attached to the petition/complaint.39
Finally, failure to furnish a copy of the petition to the respondents is not a fatal
defect such that the case should be dismissed. The RTC could have just required
the petitioners to furnish a copy of the petition to the respondents. It should be
remembered that "courts are not enslaved by technicalities, and they have the
prerogative to relax compliance with procedural rules of even the most mandatory
character, mindful of the duty to reconcile both the need to speedily put an end to
litigation and the parties’ right to an opportunity to be heard."40
WHEREFORE, the petition is GRANTED. The Order dated September 16, 2011
and Resolution dated October 18, 2011 issued by the Regional Trial Court of
Sorsogon, Branch 53, dismissing Civil Case No. 2011-8338 are NULLIFIED AND
SET ASIDE. The Executive Judge of the Regional Trial Court of Sorsogon is
DIRECTED to transfer the case to the Regional Trial Court of Irosin, Branch 55, for
further proceedings with dispatch. Petitioner Maricris D. Dolot is also ORDERED to
furnish the respondents with a copy of the petition and its annexes within ten (10)
days from receipt of this Decision and to submit its Compliance with the RTC of
Irosin.
SO ORDERED.
G.R. No. 184769 October 5, 2010
MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and RUBEN A.
SAPITULA, Petitioners,
vs.
ROSARIO GOPEZ LIM, Respondent.
DECISION
CARPIO MORALES, J.:
The Court is once again confronted with an opportunity to define the evolving
metes and bounds of the writ of habeas data. May an employee invoke the
remedies available under such writ where an employer decides to transfer her
workplace on the basis of copies of an anonymous letter posted therein ─ imputing
to her disloyalty to the company and calling for her to leave, which imputation it
investigated but fails to inform her of the details thereof?
Rosario G. Lim (respondent), also known as Cherry Lim, is an administrative clerk
at the Manila Electric Company (MERALCO).
On June 4, 2008, an anonymous letter was posted at the door of the Metering
Office of the Administration building of MERALCO Plaridel, Bulacan Sector, at
which respondent is assigned, denouncing respondent. The letter reads:
Cherry Lim:
MATAPOS MONG LAMUNIN LAHAT NG BIYAYA NG MERALCO, NGAYON
NAMAN AY GUSTO MONG PALAMON ANG BUONG KUMPANYA SA MGA
BUWAYA NG GOBYERNO. KAPAL NG MUKHA MO, LUMAYAS KA RITO,
WALANG UTANG NA LOOB….1
Copies of the letter were also inserted in the lockers of MERALCO linesmen.
Informed about it, respondent reported the matter on June 5, 2008 to the Plaridel
Station of the Philippine National Police.2
By Memorandum3 dated July 4, 2008, petitioner Alexander Deyto, Head of
MERALCO’s Human Resource Staffing, directed the transfer of respondent to
MERALCO’s Alabang Sector in Muntinlupa as "A/F OTMS Clerk," effective July 18,
2008 in light of the receipt of "… reports that there were accusations and threats
directed against [her] from unknown individuals and which could possibly
compromise [her] safety and security."
Respondent, by letter of July 10, 2008 addressed to petitioner Ruben A. Sapitula,
Vice-President and Head of MERALCO’s Human Resource Administration,
appealed her transfer and requested for a dialogue so she could voice her
concerns and misgivings on the matter, claiming that the "punitive" nature of the
transfer amounted to a denial of due process. Citing the grueling travel from her
residence in Pampanga to Alabang and back entails, and violation of the
provisions on job security of their Collective Bargaining Agreement (CBA),
respondent expressed her thoughts on the alleged threats to her security in this
wise:
xxxx
I feel that it would have been better . . . if you could have intimated to me the
nature of the alleged accusations and threats so that at least I could have found
out if these are credible or even serious. But as you stated, these came from
unknown individuals and the way they were handled, it appears that the veracity of
these accusations and threats to be [sic] highly suspicious, doubtful or are just
mere jokes if they existed at all.
Assuming for the sake of argument only, that the alleged threats exist as the
management apparently believe, then my transfer to an unfamiliar place and
environment which will make me a "sitting duck" so to speak, seems to betray the
real intent of management which is contrary to its expressed concern on my
security and safety . . . Thus, it made me think twice on the rationale for
management’s initiated transfer. Reflecting further, it appears to me that instead of
the management supposedly extending favor to me, the net result and effect of
management action would be a punitive one.4 (emphasis and underscoring
supplied)
Respondent thus requested for the deferment of the implementation of her transfer
pending resolution of the issues she raised.
No response to her request having been received, respondent filed a petition 5 for
the issuance of a writ of habeas data against petitioners before the Regional Trial
Court (RTC) of Bulacan, docketed as SP. Proc. No. 213-M-2008.
By respondent’s allegation, petitioners’ unlawful act and omission consisting of
their continued failure and refusal to provide her with details or information about
the alleged report which MERALCO purportedly received concerning threats to her
safety and security amount to a violation of her right to privacy in life, liberty and
security, correctible by habeas data. Respondent thus prayed for the issuance of a
writ commanding petitioners to file a written return containing the following:
a) a full disclosure of the data or information about respondent in relation to the
report purportedly received by petitioners on the alleged threat to her safety and
security; the nature of such data and the purpose for its collection;
b) the measures taken by petitioners to ensure the confidentiality of such data or
information; and
c) the currency and accuracy of such data or information obtained.
Additionally, respondent prayed for the issuance of a Temporary Restraining Order
(TRO) enjoining petitioners from effecting her transfer to the MERALCO Alabang
Sector.
By Order6 of August 29, 2008, Branch 7 of the Bulacan RTC directed petitioners to
file their verified written return. And by Order of September 5, 2008, the trial court
granted respondent’s application for a TRO.
Petitioners moved for the dismissal of the petition and recall of the TRO on the
grounds that, inter alia, resort to a petition for writ of habeas data was not in order;
and the RTC lacked jurisdiction over the case which properly belongs to the
National Labor Relations Commission (NLRC).7
By Decision8 of September 22, 2008, the trial court granted the prayers of
respondent including the issuance of a writ of preliminary injunction directing
petitioners to desist from implementing respondent’s transfer until such time that
petitioners comply with the disclosures required.
The trial court justified its ruling by declaring that, inter alia, recourse to a writ of
habeas data should extend not only to victims of extra-legal killings and political
activists but also to ordinary citizens, like respondent whose rights to life and
security are jeopardized by petitioners’ refusal to provide her with information or
data on the reported threats to her person.
Hence, the present petition for review under Rule 45 of 1997 Rules of Civil
Procedure and the Rule on the Writ of Habeas Data9 contending that 1) the RTC
lacked jurisdiction over the case and cannot restrain MERALCO’s prerogative as
employer to transfer the place of work of its employees, and 2) the issuance of the
writ is outside the parameters expressly set forth in the Rule on the Writ of Habeas
Data.101avvphi1
Maintaining that the RTC has no jurisdiction over what they contend is clearly a
labor dispute, petitioners argue that "although ingeniously crafted as a petition for
habeas data, respondent is essentially questioning the transfer of her place of
work by her employer"11 and the terms and conditions of her employment which
arise from an employer-employee relationship over which the NLRC and the Labor
Arbiters under Article 217 of the Labor Code have jurisdiction.
Petitioners thus maintain that the RTC had no authority to restrain the
implementation of the Memorandum transferring respondent’s place of work which
is purely a management prerogative, and that OCA-Circular No. 79-
200312 expressly prohibits the issuance of TROs or injunctive writs in labor-related
cases.
Petitioners go on to point out that the Rule on the Writ of Habeas Data directs the
issuance of the writ only against public officials or employees, or private individuals
or entities engaged in the gathering, collecting or storing of data or information
regarding an aggrieved party’s person, family or home; and that MERALCO (or its
officers) is clearly not engaged in such activities.
The petition is impressed with merit.
Respondent’s plea that she be spared from complying with MERALCO’s
Memorandum directing her reassignment to the Alabang Sector, under the guise of
a quest for information or data allegedly in possession of petitioners, does not fall
within the province of a writ of habeas data.
Section 1 of the Rule on the Writ of Habeas Data provides:
Section 1. Habeas Data. – The writ of habeas data is a remedy available to any
person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee or of
a private individual or entity engaged in the gathering, collecting or storing of
data or informationregarding the person, family, home and correspondence of
the aggrieved party. (emphasis and underscoring supplied)
The habeas data rule, in general, is designed to protect by means of judicial
complaint the image, privacy, honor, information, and freedom of information of an
individual. It is meant to provide a forum to enforce one’s right to the truth and to
informational privacy, thus safeguarding the constitutional guarantees of a
person’s right to life, liberty and security against abuse in this age of information
technology.
It bears reiteration that like the writ of amparo, habeas data was conceived as a
response, given the lack of effective and available remedies, to address the
extraordinary rise in the number of killings and enforced disappearances. Its intent
is to address violations of or threats to the rights to life, liberty or security as a
remedy independently from those provided under prevailing Rules. 13
Castillo v.Cruz14 underscores the emphasis laid down in Tapuz v. del
Rosario15 that the writs of amparo and habeas data will NOT issue to protect
purely property or commercial concerns nor when the grounds invoked in support
of the petitions therefor are vague or doubtful.16 Employment constitutes a property
right under the context of the due process clause of the Constitution. 17 It is evident
that respondent’s reservations on the real reasons for her transfer - a legitimate
concern respecting the terms and conditions of one’s employment - are what
prompted her to adopt the extraordinary remedy of habeas data. Jurisdiction over
such concerns is inarguably lodged by law with the NLRC and the Labor Arbiters.
In another vein, there is no showing from the facts presented that petitioners
committed any unjustifiable or unlawful violation of respondent’s right to
privacy vis-a-vis the right to life, liberty or security. To argue that petitioners’ refusal
to disclose the contents of reports allegedly received on the threats to
respondent’s safety amounts to a violation of her right to privacy is at best
speculative. Respondent in fact trivializes these threats and accusations from
unknown individuals in her earlier-quoted portion of her July 10, 2008 letter as
"highly suspicious, doubtful or are just mere jokes if they existed at all."18 And she
even suspects that her transfer to another place of work "betray[s] the real intent of
management]" and could be a "punitive move." Her posture unwittingly concedes
that the issue is labor-related.
WHEREFORE, the petition is GRANTED. The assailed September 22, 2008
Decision of the Bulacan RTC, Branch 7 in SP. Proc. No. 213-M-2008 is hereby
REVERSED and SET ASIDE. SP. Proc. No. 213-M-2008 is, accordingly,
DISMISSED.
No costs.
SO ORDERED.
G.R. No. 203254
DR. JOY MARGARTE LEE, Petitioner
vs.
P/SUPT. NERI A ILAGAN, Respondent
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for review on certiorari1 assailing the Decision2 dated
August 30, 2012 of the Regional Trial Court of Quezon City, Branch 224 (RTC) in
SP No. 12-71527, which extended the privilege of the writ of habeas data in favor
of respondent Police Superintendent Neri A. Ilagan (Ilagan).
The Facts
In his Petition for Issuance of the Writ of Habeas Data3 dated June 22, 2012,
Ilagan alleged that he and petitioner Dr. Joy Margate Lee (Lee) were former
common law partners. Sometime in July 2011, he visited Lee at the latter's
condominium, rested for a while and thereafter, proceeded to his office. Upon
arrival, Ilagan noticed that his digital camera was missing.4 On August 23, 2011,
Lee confronted Ilagan at the latter's office regarding a purported sex video (subject
video) she discovered from the aforesaid camera involving Ilagan and another
woman. Ilagan denied the video and demanded Lee to return the camera, but to
no avail.5 During the confrontation, Ilagan allegedly slammed Lee’s head against a
wall inside his office and walked away.6 Subsequently, Lee utilized the said video
as evidence in filing various complaints against Ilagan, namely: (a) a criminal
complaint for violation of Republic Act No. 9262,7 otherwise known as the "Anti-
Violence Against Women and Their Children Act of 2004," before the Office of the
City Prosecutor of Makati; and (b) an administrative complaint for grave
misconduct before the National Police Commission (NAPOLCOM). 8 Ilagan claimed
that Lee’s acts of reproducing the subject video and threatening to distribute the
same to the upper echelons of the NAPOLCOM and uploading it to the internet
violated not only his right to life, liberty, security, and privacy but also that of the
other woman, and thus, the issuance of a writ of habeas data in his favor is
warranted.9
Finding the petition prima facie meritorious, the RTC issued a Writ of Habeas
Data10 dated June 25, 2012, directing Lee to appear before the court a quo, and to
produce Ilagan’s digital camera, as well as the negative and/or original of the
subject video and copies thereof, and to file a verified written return within five (5)
working days from date of receipt thereof.
In her Verified Return11 dated July 2, 2012, Lee admitted that she indeed kept the
memory card of the digital camera and reproduced the aforesaid video but averred
that she only did so to utilize the same as evidence in the cases she filed against
Ilagan. She also admitted that her relationship with Ilagan started sometime in
2003 and ended under disturbing circumstances in August 2011, and that she only
happened to discover the subject video when Ilagan left his camera in her
condominium. Accordingly, Lee contended that Ilagan’s petition for the issuance of
the writ of habeas data should be dismissed because: (a) its filing was only aimed
at suppressing the evidence against Ilagan in the cases she filed; and (b) she is
not engaged in the gathering, collecting, or storing of data regarding the person of
Ilagan.12
The RTC Ruling
In a Decision13 dated August 30, 2012, the RTC granted the privilege of the writ
of habeas data in Ilagan’s favor, and accordingly, ordered the implementing officer
to turn-over copies of the subject video to him, and enjoined Lee from further
reproducing the same.14
The RTC did not give credence to Lee’s defense that she is not engaged in the
gathering, collecting or storing of data regarding the person of Ilagan, finding that
her acts of reproducing the subject video and showing it to other people, i.e., the
NAPOLCOM officers, violated the latter’s right to privacy in life and caused him to
suffer humiliation and mental anguish. In this relation, the RTC opined that Lee’s
use of the subject video as evidence in the various cases she filed against Ilagan
is not enough justification for its reproduction. Nevertheless, the RTC clarified that
it is only ruling on the return of the aforesaid video and not on its admissibility
before other tribunals.15
Dissatisfied, Lee filed this petition.
The Issue Before the Court
The essential issue for the Court’s resolution is whether or not the RTC correctly
extended the privilege of the writ of habeas data in favor of Ilagan.
The Court’s Ruling
The petition is meritorious.
A.M. No. 08-1-16-SC, or the Rule on the Writ of Habeas Data (Habeas Data Rule),
was conceived as a response, given the lack of effective and available remedies,
to address the extraordinary rise in the number of killings and enforced
disappearances.16 It was conceptualized as a judicial remedy enforcing the right to
privacy, most especially the right to informational privacy of individuals,17 which
is defined as "the right to control the collection, maintenance, use, and
dissemination of data about oneself."18
As defined in Section 1 of the Habeas Data Rule, the writ of habeas data now
stands as "a remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a
public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person,
family, home, and correspondence of the aggrieved party." Thus, in order to
support a petition for the issuance of such writ, Section 6 of the Habeas Data Rule
essentially requires that the petition sufficiently alleges, among others, "[t]he
manner the right to privacy is violated or threatened and how it affects the
right to life, liberty or security of the aggrieved party." In other words, the
petition must adequately show that there exists a nexus between the right to
privacy on the one hand, and the right to life, liberty or security on the
other.[[19]] Corollarily, the allegations in the petition must be supported
by substantial evidence showing an actual or threatened violation of the right to
privacy in life, liberty or security of the victim.20 In this relation, it bears pointing out
that the writ of habeas data will not issue to protect purely property or commercial
concerns nor when the grounds invoked in support of the petitions therefor are
vague and doubtful.21
In this case, the Court finds that Ilagan was not able to sufficiently allege that his
right to privacy in life, liberty or security was or would be violated through the
supposed reproduction and threatened dissemination of the subject sex video.
While Ilagan purports a privacy interest in the suppression of this video – which he
fears would somehow find its way to Quiapo or be uploaded in the internet for
public consumption – he failed to explain the connection between such interest
and any violation of his right to life, liberty or security.1âwphi1 Indeed, courts
cannot speculate or contrive versions of possible transgressions. As the rules and
existing jurisprudence on the matter evoke, alleging and eventually proving the
nexus between one’s privacy right to the cogent rights to life, liberty or security are
crucial in habeas data cases, so much so that a failure on either account certainly
renders a habeas data petition dismissible, as in this case.
In fact, even discounting the insufficiency of the allegations, the petition would
equally be dismissible due to the inadequacy of the evidence presented. As the
records show, all that Ilagan submitted in support of his petition was his self-
serving testimony which hardly meets the substantial evidence requirement as
prescribed by the Habeas Data Rule. This is because nothing therein would
indicate that Lee actually proceeded to commit any overt act towards the end of
violating Ilagan’s right to privacy in life, liberty or security. Nor would anything on
record even lead a reasonable mind to conclude22 that Lee was going to use the
subject video in order to achieve unlawful ends - say for instance, to spread it to
the public so as to ruin Ilagan' s reputation. Contrastingly, Lee even made it clear
in her testimony that the only reason why she reproduced the subject video was to
legitimately utilize the same as evidence in the criminal and administrative cases
that she filed against Ilagan.23 Hence, due to the insufficiency of the allegations as
well as the glaring absence of substantial evidence, the Court finds it proper to
reverse the R TC Decision and dismiss the habeas data petition.
WHEREFORE, the petition is GRANTED. The Decision dated August 30, 2012 of
the Regional Trial Court of Quezon City, Branch 224 in SP No. 12-71527 is
hereby REVERSED and SET ASIDE. Accordingly, the Petition for Issuance of the
Writ of Habeas Data filed by respondent P/Supt. Neri A. Ilagan is DISMISSED for
lack of merit.
SO ORDERED.
G.R. NO. 206510 SEPTEMBER 16, 2014
MOST REV. PEDRO D. ARIGO, VICAR APOSTOLIC OF PUERTO PRINCESA
D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR., BISHOP-EMERITUS OF
CALOOCAN, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
KALIKASAN-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR.,
BAGONG ALYANSANG MAKABAYAN, HON. NERI JAVIER COLMENARES,
BAYAN MUNA PARTYLIST, ROLAND G. SIMBULAN, PH.D., JUNK VF A
MOVEMENT, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO,
KABATAAN PARTY-LIST, PETER SJ. GONZALES, PAMALAKAYA, GIOVANNI
A. TAPANG, PH. D., AGHAM, ELMER C. LABOG, KILUSANG MAYO UNO,
JOAN MAY E. SALVADOR, GABRIELA, JOSE ENRIQUE A. AFRICA,
THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T. BAGUINON,
PH.D., A. EDSEL F. TUPAZ, PETITIONERS,
VS.
SCOTT H. SWIFT IN HIS CAPACITY AS COMMANDER OF THE US. 7TH
FLEET, MARK A. RICE IN HIS CAPACITY AS COMMANDING OFFICER OF
THE USS GUARDIAN, PRESIDENT BENIGNO S. AQUINO III IN HIS CAPACITY
AS COMMANDER-IN-CHIEF OF THE ARMED FORCES OF THE PHILIPPINES,
HON. ALBERT F. DEL ROSARIO, SECRETARY, PEPARTMENT OF FOREIGN
AFFAIR.S, HON. PAQUITO OCHOA, JR., EXECUTIV~.:SECRETARY, OFFICE
OF THE PRESIDENT, . HON. VOLTAIRE T. GAZMIN, SECRETARY,
DEPARTMENT OF NATIONAL DEFENSE, HON. RAMON JESUS P. P AJE,
SECRETARY, DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOZ!RCES, VICE ADMIRAL JOSE LUIS M. ALANO, PHILIPPINE NAVY
FLAG OFFICER IN COMMAND, ARMED FORCES OF THE PHILIPPINES,
ADMIRAL RODOLFO D. ISO RENA, COMMANDANT, PHILIPPINE COAST
GUARD, COMMODORE ENRICO EFREN EVANGELISTA, PHILIPPINE COAST
GUARD PALAWAN, MAJOR GEN. VIRGILIO 0. DOMINGO, COMMANDANT OF
ARMED FORCES OF THE PHILIPPINES COMMAND AND LT. GEN. TERRY G.
ROBLING, US MARINE CORPS FORCES. PACIFIC AND BALIKATAN 2013
EXERCISE CO-DIRECTOR, RESPONDENTS.
DECISION
VILLARAMA, JR, J.:
BEFORE US IS A PETITION FOR THE ISSUANCE OF A WRIT OF KALIKASAN
WITH PRAYER FOR THE ISSUANCE OF A TEMPORARY ENVIRONMENTAL
PROTECTION ORDER (TEPO) UNDER RULE 7 OF A.M. NO. 09-6-8-SC,
OTHERWISE KNOWN AS THE RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES (RULES), INVOLVING VIOLATIONS OF
ENVIRONMENTAL LAWS AND REGULATIONS IN RELATION TO THE
GROUNDING OF THE US MILITARY SHIP USS GUARDIAN OVER THE
TUBBATAHA REEFS.
FACTUAL BACKGROUND
THE NAME "TUBBATAHA" CAME FROM THE SAMAL (SEAFARING PEOPLE
OF SOUTHERN PHILIPPINES) LANGUAGE WHICH MEANS "LONG REEF
EXPOSED AT LOW TIDE." TUBBATAHA IS COMPOSED OF TWO HUGE
CORAL ATOLLS - THE NORTH ATOLL AND THE SOUTH ATOLL - AND THE
JESSIE BEAZLEY REEF, A SMALLER CORAL STRUCTURE ABOUT 20
KILOMETERS NORTH OF THE ATOLLS. THE REEFS OF TUBBATAHA AND
JESSIE BEAZLEY ARE CONSIDERED PART OF CAGAYANCILLO, A REMOTE
ISLAND MUNICIPALITY OF PALAWAN.1
IN 1988, TUBBATAHA WAS DECLARED A NATIONAL MARINE PARK BY
VIRTUE OF PROCLAMATION NO. 306 ISSUED BY PRESIDENT CORAZON C.
AQUINO ON AUGUST 11, 1988. LOCATED IN THE MIDDLE OF CENTRAL
SULU SEA, 150 KILOMETERS SOUTHEAST OF PUERTO PRINCESA CITY,
TUBBATAHA LIES AT THE HEART OF THE CORAL TRIANGLE, THE GLOBAL
CENTER OF MARINE BIODIVERSITY.
IN 1993, TUBBATAHA WAS INSCRIBED BY THE UNITED NATIONS
EDUCATIONAL SCIENTIFIC AND CULTURAL ORGANIZATION (UNESCO) AS A
WORLD HERITAGE SITE. IT WAS RECOGNIZED AS ONE OF THE
PHILIPPINES' OLDEST ECOSYSTEMS, CONTAINING EXCELLENT EXAMPLES
OF PRISTINE REEFS AND A HIGH DIVERSITY OF MARINE LIFE. THE 97,030-
HECTARE PROTECTED MARINE PARK IS ALSO AN IMPORTANT HABITAT
FOR INTERNATIONALLY THREATENED AND ENDANGERED MARINE
SPECIES. UNESCO CITED TUBBATAHA'S OUTSTANDING UNIVERSAL VALUE
AS AN IMPORTANT AND SIGNIFICANT NATURAL HABITAT FOR IN SITU
CONSERVATION OF BIOLOGICAL DIVERSITY; AN EXAMPLE REPRESENTING
SIGNIFICANT ON-GOING ECOLOGICAL AND BIOLOGICAL PROCESSES; AND
AN AREA OF EXCEPTIONAL NATURAL BEAUTY AND AESTHETIC
IMPORTANCE.2
ON APRIL 6, 2010, CONGRESS PASSED REPUBLIC ACT (R.A.) NO.
10067,3 OTHERWISE KNOWN AS THE "TUBBATAHA REEFS NATURAL PARK
(TRNP) ACT OF 2009" "TO ENSURE THE PROTECTION AND CONSERVATION
OF THE GLOBALLY SIGNIFICANT ECONOMIC, BIOLOGICAL,
SOCIOCULTURAL, EDUCATIONAL AND SCIENTIFIC VALUES OF THE
TUBBATAHA REEFS INTO PERPETUITY FOR THE ENJOYMENT OF PRESENT
AND FUTURE GENERATIONS." UNDER THE "NO-TAKE" POLICY, ENTRY
INTO THE WATERS OF TRNP IS STRICTLY REGULATED AND MANY HUMAN
ACTIVITIES ARE PROHIBITED AND PENALIZED OR FINED, INCLUDING
FISHING, GATHERING, DESTROYING AND DISTURBING THE RESOURCES
WITHIN THE TRNP. THE LAW LIKEWISE CREATED THE TUBBATAHA
PROTECTED AREA MANAGEMENT BOARD (TPAMB) WHICH SHALL BE THE
SOLE POLICY-MAKING AND PERMIT-GRANTING BODY OF THE TRNP.
THE USS GUARDIAN IS AN AVENGER-CLASS MINE COUNTERMEASURES
SHIP OF THE US NAVY. IN DECEMBER 2012, THE US EMBASSY IN THE
PHILIPPINES REQUESTED DIPLOMATIC CLEARANCE FOR THE SAID
VESSEL "TO ENTER AND EXIT THE TERRITORIAL WATERS OF THE
PHILIPPINES AND TO ARRIVE AT THE PORT OF SUBIC BAY FOR THE
PURPOSE OF ROUTINE SHIP REPLENISHMENT, MAINTENANCE, AND CREW
LIBERTY."4 ON JANUARY 6, 2013, THE SHIP LEFT SASEBO, JAPAN FOR
SUBIC BAY, ARRIVING ON JANUARY 13, 2013 AFTER A BRIEF STOP FOR
FUEL IN OKINAWA, JAPAN.1ÂWPHI1
ON JANUARY 15, 2013, THE USS GUARDIAN DEPARTED SUBIC BAY FOR ITS
NEXT PORT OF CALL IN MAKASSAR, INDONESIA. ON JANUARY 17, 2013 AT
2:20 A.M. WHILE TRANSITING THE SULU SEA, THE SHIP RAN AGROUND ON
THE NORTHWEST SIDE OF SOUTH SHOAL OF THE TUBBATAHA REEFS,
ABOUT 80 MILES EAST-SOUTHEAST OF PALAWAN. NO CINE WAS INJURED
IN THE INCIDENT, AND THERE HAVE BEEN NO REPORTS OF LEAKING FUEL
OR OIL.
ON JANUARY 20, 2013, U.S. 7TH FLEET COMMANDER, VICE ADMIRAL
SCOTT SWIFT, EXPRESSED REGRET FOR THE INCIDENT IN A PRESS
STATEMENT.5 LIKEWISE, US AMBASSADOR TO THE PHILIPPINES HARRY K.
THOMAS, JR., IN A MEETING AT THE DEPARTMENT OF FOREIGN AFFAIRS
(DFA) ON FEBRUARY 4, "REITERATED HIS REGRETS OVER THE
GROUNDING INCIDENT AND ASSURED FOREIGN AFFAIRS SECRETAZY
ALBERT F. DEL ROSARIO THAT THE UNITED STATES WILL PROVIDE
APPROPRIATE COMPENSATION FOR DAMAGE TO THE REEF CAUSED BY
THE SHIP."6 BY MARCH 30, 2013, THE US NAVY-LED SALVAGE TEAM HAD
FINISHED REMOVING THE LAST PIECE OF THE GROUNDED SHIP FROM
THE CORAL REEF.
ON APRIL 1 7, 2013, THE ABOVE-NAMED PETITIONERS ON THEIR BEHALF
AND IN REPRESENTATION OF THEIR RESPECTIVE
SECTOR/ORGANIZATION AND OTHERS, INCLUDING MINORS OR
GENERATIONS YET UNBORN, FILED THE PRESENT PETITION AGAIRTST
SCOTT H. SWIFT IN HIS CAPACITY AS COMMANDER OF THE US 7TH FLEET,
MARK A. RICE IN HIS CAPACITY AS COMMANDING OFFICER OF THE USS
GUARDIAN AND LT. GEN. TERRY G. ROBLING, US MARINE CORPS FORCES,
PACIFIC AND BALIKATAN 2013 EXERCISES CO-DIRECTOR ("US
RESPONDENTS"); PRESIDENT BENIGNO S. AQUINO III IN HIS CAPACITY AS
COMMANDER-IN-CHIEF OF THE ARMED FORCES OF THE PHILIPPINES
(AFP), DF A SECRETARY ALBERT F. DEL ROSARIO, EXECUTIVE
SECRETARY PAQUITO OCHOA, JR., SECRETARY VOLTAIRE T. GAZMIN
(DEPARTMENT OF NATIONAL DEFENSE), SECRETARY JESUS P. PAJE
(DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES), VICE-
ADMIRAL JOSE LUIS M. ALANO (PHILIPPINE NAVY FLAG OFFICER IN
COMMAND, AFP), ADMIRAL RODOLFO D. ISORENA (PHILIPPINE COAST
GUARD COMMANDANT), COMMODORE ENRICO EFREN EVANGELISTA
(PHILIPPINE COAST GUARD-PALAWAN), AND MAJOR GENERAL VIRGILIO 0.
DOMINGO (AFP COMMANDANT), COLLECTIVELY THE "PHILIPPINE
RESPONDENTS."
THE PETITION
PETITIONERS CLAIM THAT THE GROUNDING, SALVAGING AND POST-
SALVAGING OPERATIONS OF THE USS GUARDIAN CAUSE AND CONTINUE
TO CAUSE ENVIRONMENTAL DAMAGE OF SUCH MAGNITUDE AS TO
AFFECT THE PROVINCES OF PALAWAN, ANTIQUE, AKLAN, GUIMARAS,
ILOILO, NEGROS OCCIDENTAL, NEGROS ORIENTAL, ZAMBOANGA DEL
NORTE, BASILAN, SULU, AND TAWI-TAWI, WHICH EVENTS VIOLATE THEIR
CONSTITUTIONAL RIGHTS TO A BALANCED AND HEALTHFUL ECOLOGY.
THEY ALSO SEEK A DIRECTIVE FROM THIS COURT FOR THE INSTITUTION
OF CIVIL, ADMINISTRATIVE AND CRIMINAL SUITS FOR ACTS COMMITTED
IN VIOLATION OF ENVIRONMENTAL LAWS AND REGULATIONS IN
CONNECTION WITH THE GROUNDING INCIDENT.
SPECIFICALLY, PETITIONERS CITE THE FOLLOWING VIOLATIONS
COMMITTED BY US RESPONDENTS UNDER R.A. NO. 10067:
UNAUTHORIZED ENTRY (SECTION 19); NON-PAYMENT OF CONSERVATION
FEES (SECTION 21 ); OBSTRUCTION OF LAW ENFORCEMENT OFFICER
(SECTION 30); DAMAGES TO THE REEF (SECTION 20); AND DESTROYING
AND DISTURBING RESOURCES (SECTION 26[G]). FURTHERMORE,
PETITIONERS ASSAIL CERTAIN PROVISIONS OF THE VISITING FORCES
AGREEMENT (VFA) WHICH THEY WANT THIS COURT TO NULLIFY FOR
BEING UNCONSTITUTIONAL.
THE NUMEROUS RELIEFS SOUGHT IN THIS CASE ARE SET FORTH IN THE
FINAL PRAYER OF THE PETITION, TO WIT: WHEREFORE, IN VIEW OF THE
FOREGOING, PETITIONERS RESPECTFULLY PRAY THAT THE HONORABLE
COURT: 1. IMMEDIATELY ISSUE UPON THE FILING OF THIS PETITION A
TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO) AND/OR A
WRIT OF KALIKASAN, WHICH SHALL, IN PARTICULAR,
A. ORDER RESPONDENTS AND ANY PERSON ACTING ON THEIR BEHALF,
TO CEASE AND DESIST ALL OPERATIONS OVER THE GUARDIAN
GROUNDING INCIDENT;
B. INITIALLY DEMARCATING THE METES AND BOUNDS OF THE DAMAGED
AREA AS WELL AS AN ADDITIONAL BUFFER ZONE;
C. ORDER RESPONDENTS TO STOP ALL PORT CALLS AND WAR GAMES
UNDER 'BALIKATAN' BECAUSE OF THE ABSENCE OF CLEAR GUIDELINES,
DUTIES, AND LIABILITY SCHEMES FOR BREACHES OF THOSE DUTIES, AND
REQUIRE RESPONDENTS TO ASSUME RESPONSIBILITY FOR PRIOR AND
FUTURE ENVIRONMENTAL DAMAGE IN GENERAL, AND ENVIRONMENTAL
DAMAGE UNDER THE VISITING FORCES AGREEMENT IN PARTICULAR.
D. TEMPORARILY DEFINE AND DESCRIBE ALLOWABLE ACTIVITIES OF
ECOTOURISM, DIVING, RECREATION, AND LIMITED COMMERCIAL
ACTIVITIES BY FISHERFOLK AND INDIGENOUS COMMUNITIES NEAR OR
AROUND THE TRNP BUT AWAY FROM THE DAMAGED SITE AND AN
ADDITIONAL BUFFER ZONE;
2. AFTER SUMMARY HEARING, ISSUE A RESOLUTION EXTENDING THE
TEPO UNTIL FURTHER ORDERS OF THE COURT;
3. AFTER DUE PROCEEDINGS, RENDER A DECISION WHICH SHALL
INCLUDE, WITHOUT LIMITATION:
A. ORDER RESPONDENTS SECRETARY OF FOREIGN AFFAIRS, FOLLOWING
THE DISPOSITIVE PORTION OF NICOLAS V. ROMULO, "TO FORTHWITH
NEGOTIATE WITH THE UNITED STATES REPRESENTATIVES FOR THE
APPROPRIATE AGREEMENT ON [ENVIRONMENTAL GUIDELINES AND
ENVIRONMENTAL ACCOUNTABILITY] UNDER PHILIPPINE AUTHORITIES AS
PROVIDED IN ART. V[] OF THE VFA ... "
B. DIRECT RESPONDENTS AND APPROPRIATE AGENCIES TO COMMENCE
ADMINISTRATIVE, CIVIL, AND CRIMINAL PROCEEDINGS AGAINST ERRING
OFFICERS AND INDIVIDUALS TO THE FULL EXTENT OF THE LAW, AND TO
MAKE SUCH PROCEEDINGS PUBLIC;
C. DECLARE THAT PHILIPPINE AUTHORITIES MAY EXERCISE PRIMARY AND
EXCLUSIVE CRIMINAL JURISDICTION OVER ERRING U.S. PERSONNEL
UNDER THE CIRCUMSTANCES OF THIS CASE;
D. REQUIRE RESPONDENTS TO PAY JUST AND REASONABLE
COMPENSATION IN THE SETTLEMENT OF ALL MERITORIOUS CLAIMS FOR
DAMAGES CAUSED TO THE TUBBATAHA REEF ON TERMS AND
CONDITIONS NO LESS SEVERE THAN THOSE APPLICABLE TO OTHER
STATES, AND DAMAGES FOR PERSONAL INJURY OR DEATH, IF SUCH HAD
BEEN THE CASE;
E. DIRECT RESPONDENTS TO COOPERATE IN PROVIDING FOR THE
ATTENDANCE OF WITNESSES AND IN THE COLLECTION AND PRODUCTION
OF EVIDENCE, INCLUDING SEIZURE AND DELIVERY OF OBJECTS
CONNECTED WITH THE OFFENSES RELATED TO THE GROUNDING OF THE
GUARDIAN;
F. REQUIRE THE AUTHORITIES OF THE PHILIPPINES AND THE UNITED
STATES TO NOTIFY EACH OTHER OF THE DISPOSITION OF ALL CASES,
WHEREVER HEARD, RELATED TO THE GROUNDING OF THE GUARDIAN;
G. RESTRAIN RESPONDENTS FROM PROCEEDING WITH ANY PURPORTED
RESTORATION, REPAIR, SALVAGE OR POST SALVAGE PLAN OR PLANS,
INCLUDING CLEANUP PLANS COVERING THE DAMAGED AREA OF THE
TUBBATAHA REEF ABSENT A JUST SETTLEMENT APPROVED BY THE
HONORABLE COURT;
H. REQUIRE RESPONDENTS TO ENGAGE IN STAKEHOLDER AND LOU
CONSULTATIONS IN ACCORDANCE WITH THE LOCAL GOVERNMENT CODE
AND R.A. 10067;
I. REQUIRE RESPONDENT US OFFICIALS AND THEIR REPRESENTATIVES
TO PLACE A DEPOSIT TO THE TRNP TRUST FUND DEFINED UNDER
SECTION 17 OF RA 10067 AS A BONA .FIDE GESTURE TOWARDS FULL
REPARATIONS;
J. DIRECT RESPONDENTS TO UNDERTAKE MEASURES TO REHABILITATE
THE AREAS AFFECTED BY THE GROUNDING OF THE GUARDIAN IN LIGHT
OF RESPONDENTS' EXPERIENCE IN THE PORT ROYALE GROUNDING IN
2009, AMONG OTHER SIMILAR GROUNDING INCIDENTS;
K. REQUIRE RESPONDENTS TO REGULARLY PUBLISH ON A QUARTERLY
BASIS AND IN THE NAME OF TRANSPARENCY AND ACCOUNTABILITY SUCH
ENVIRONMENTAL DAMAGE ASSESSMENT, VALUATION, AND VALUATION
METHODS, IN ALL STAGES OF NEGOTIATION;
L. CONVENE A MULTISECTORAL TECHNICAL WORKING GROUP TO
PROVIDE SCIENTIFIC AND TECHNICAL SUPPORT TO THE TPAMB;
M. ORDER THE DEPARTMENT OF FOREIGN AFFAIRS, DEPARTMENT OF
NATIONAL DEFENSE, AND THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES TO REVIEW THE VISITING FORCES AGREEMENT
AND THE MUTUAL DEFENSE TREATY TO CONSIDER WHETHER THEIR
PROVISIONS ALLOW FOR THE EXERCISE OF ERGA OMNES RIGHTS TO A
BALANCED AND HEALTHFUL ECOLOGY AND FOR DAMAGES WHICH
FOLLOW FROM ANY VIOLATION OF THOSE RIGHTS;
N. NARROWLY TAILOR THE PROVISIONS OF THE VISITING FORCES
AGREEMENT FOR PURPOSES OF PROTECTING THE DAMAGED AREAS OF
TRNP;
O. DECLARE THE GRANT OF IMMUNITY FOUND IN ARTICLE V ("CRIMINAL
JURISDICTION") AND ARTICLE VI OF THE VISITING FORCES AGREEMENT
UNCONSTITUTIONAL FOR VIOLATING EQUAL PROTECTION AND/OR FOR
VIOLATING THE PREEMPTORY NORM OF NONDISCRIMINATION
INCORPORATED AS PART OF THE LAW OF THE LAND UNDER SECTION 2,
ARTICLE II, OF THE PHILIPPINE CONSTITUTION;
P. ALLOW FOR CONTINUING DISCOVERY MEASURES;
Q. SUPERVISE MARINE WILDLIFE REHABILITATION IN THE TUBBATAHA
REEFS IN ALL OTHER RESPECTS; AND
4. PROVIDE JUST AND EQUITABLE ENVIRONMENTAL REHABILITATION
MEASURES AND SUCH OTHER RELIEFS AS ARE JUST AND EQUITABLE
UNDER THE PREMISES.7 (UNDERSCORING SUPPLIED.)
SINCE ONLY THE PHILIPPINE RESPONDENTS FILED THEIR COMMENT8 TO
THE PETITION, PETITIONERS ALSO FILED A MOTION FOR EARLY
RESOLUTION AND MOTION TO PROCEED EX PARTE AGAINST THE US
RESPONDENTS.9
RESPONDENTS' CONSOLIDATED COMMENT
IN THEIR CONSOLIDATED COMMENT WITH OPPOSITION TO THE
APPLICATION FOR A TEPO AND OCULAR INSPECTION AND PRODUCTION
ORDERS, RESPONDENTS ASSERT THAT: ( 1) THE GROUNDS RELIED UPON
FOR THE ISSUANCE OF A TEPO OR WRIT OF KALIKASAN HAVE BECOME
FAIT ACCOMPLI AS THE SALVAGE OPERATIONS ON THE USS GUARDIAN
WERE ALREADY COMPLETED; (2) THE PETITION IS DEFECTIVE IN FORM
AND SUBSTANCE; (3) THE PETITION IMPROPERLY RAISES ISSUES
INVOLVING THE VFA BETWEEN THE REPUBLIC OF THE PHILIPPINES AND
THE UNITED STATES OF AMERICA; AND ( 4) THE DETERMINATION OF THE
EXTENT OF RESPONSIBILITY OF THE US GOVERNMENT AS REGARDS THE
DAMAGE TO THE TUBBATAHA REEFS RESTS EXDUSIVELY WITH THE
EXECUTIVE BRANCH.
THE COURT'S RULING
AS A PRELIMINARY MATTER, THERE IS NO DISPUTE ON THE LEGAL
STANDING OF PETITIONERS TO FILE THE PRESENT PETITION.
LOCUS STANDI IS "A RIGHT OF APPEARANCE IN A COURT OF JUSTICE ON
A GIVEN QUESTION."10 SPECIFICALLY, IT IS "A PARTY'S PERSONAL AND
SUBSTANTIAL INTEREST IN A CASE WHERE HE HAS SUSTAINED OR WILL
SUSTAIN DIRECT INJURY AS A RESULT" OF THE ACT BEING CHALLENGED,
AND "CALLS FOR MORE THAN JUST A GENERALIZED
GRIEVANCE."11 HOWEVER, THE RULE ON STANDING IS A PROCEDURAL
MATTER WHICH THIS COURT HAS RELAXED FOR NON-TRADITIONAL
PLAINTIFFS LIKE ORDINARY CITIZENS, TAXPAYERS AND LEGISLATORS
WHEN THE PUBLIC INTEREST SO REQUIRES, SUCH AS WHEN THE
SUBJECT MATTER OF THE CONTROVERSY IS OF TRANSCENDENTAL
IMPORTANCE, OF OVERREACHING SIGNIFICANCE TO SOCIETY, OR OF
PARAMOUNT PUBLIC INTEREST.12
IN THE LANDMARK CASE OF OPOSA V. FACTORAN, JR.,13 WE RECOGNIZED
THE "PUBLIC RIGHT" OF CITIZENS TO "A BALANCED AND HEALTHFUL
ECOLOGY WHICH, FOR THE FIRST TIME IN OUR CONSTITUTIONAL
HISTORY, IS SOLEMNLY INCORPORATED IN THE FUNDAMENTAL LAW." WE
DECLARED THAT THE RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY
NEED NOT BE WRITTEN IN THE CONSTITUTION FOR IT IS ASSUMED, LIKE
OTHER CIVIL AND POLITTCAL RIGHTS GUARANTEED IN THE BILL OF
RIGHTS, TO EXIST FROM THE INCEPTION OF MANKIND AND IT IS AN ISSUE
OF TRANSCENDENTAL IMPORTANCE WITH INTERGENERATIONAL
IMPLICATIONS.1ÂWPHI1 SUCH RIGHT CARRIES WITH IT THE CORRELATIVE
DUTY TO REFRAIN FROM IMPAIRING THE ENVIRONMENT.14
ON THE NOVEL ELEMENT IN THE CLASS SUIT FILED BY THE PETITIONERS
MINORS IN OPOSA, THIS COURT RULED THAT NOT ONLY DO ORDINARY
CITIZENS HAVE LEGAL STANDING TO SUE FOR THE ENFORCEMENT OF
ENVIRONMENTAL RIGHTS, THEY CAN DO SO IN REPRESENTATION OF
THEIR OWN AND FUTURE GENERATIONS. THUS:
PETITIONERS MINORS ASSERT THAT THEY REPRESENT THEIR
GENERATION AS WELL AS GENERATIONS YET UNBORN. WE FIND NO
DIFFICULTY IN RULING THAT THEY CAN, FOR THEMSELVES, FOR OTHERS
OF THEIR GENERATION AND FOR THE SUCCEEDING GENERATIONS, FILE
A CLASS SUIT. THEIR PERSONALITY TO SUE IN BEHALF OF THE
SUCCEEDING GENERATIONS CAN ONLY BE BASED ON THE CONCEPT OF
INTERGENERATIONAL RESPONSIBILITY INSOFAR AS THE RIGHT TO A
BALANCED AND HEALTHFUL ECOLOGY IS CONCERNED. SUCH A RIGHT, AS
HEREINAFTER EXPOUNDED, CONSIDERS THE "RHYTHM AND HARMONY
OF NATURE." NATURE MEANS THE CREATED WORLD IN ITS ENTIRETY.
SUCH RHYTHM AND HARMONY INDISPENSABLY INCLUDE, INTER ALIA, THE
JUDICIOUS DISPOSITION, UTILIZATION, MANAGEMENT, RENEWAL AND
CONSERVATION OF THE COUNTRY'S FOREST, MINERAL, LAND, WATERS,
FISHERIES, WILDLIFE, OFF-SHORE AREAS AND OTHER NATURAL
RESOURCES TO THE END THAT THEIR EXPLORATION, DEVELOPMENT
AND UTILIZATION BE EQUITABLY ACCESSIBLE TO THE PRESENT A:: WELL
AS FUTURE GENERATIONS. NEEDLESS TO SAY, EVERY GENERATION HAS
A RESPONSIBILITY TO THE NEXT TO PRESERVE THAT RHYTHM AND
HARMONY FOR THE FULL 1:NJOYMENT OF A BALANCED AND HEALTHFUL
ECOLOGY. PUT A LITTLE DIFFERENTLY, THE MINORS' ASSERTION OF
THEIR RIGHT TO A SOUND ENVIRONMENT CONSTITUTES, AT THE SAME
TIME, THE PERFORMANCE OF THEIR OBLIGATION TO ENSURE THE
PROTECTION OF THAT RIGHT FOR THE GENERATIONS TO
COME.15 (EMPHASIS SUPPLIED.)
THE LIBERALIZATION OF STANDING FIRST ENUNCIATED IN OPOSA,
INSOFAR AS IT REFERS TO MINORS AND GENERATIONS YET UNBORN, IS
NOW ENSHRINED IN THE RULES WHICH ALLOWS THE FILING OF A CITIZEN
SUIT IN ENVIRONMENTAL CASES. THE PROVISION ON CITIZEN SUITS IN
THE RULES "COLLAPSES THE TRADITIONAL RULE ON PERSONAL AND
DIRECT INTEREST, ON THE PRINCIPLE THAT HUMANS ARE STEWARDS OF
NATURE."16
HAVING SETTLED THE ISSUE OF LOCUS STANDI, WE SHALL ADDRESS THE
MORE FUNDAMENTAL QUESTION OF WHETHER THIS COURT HAS
JURISDICTION OVER THE US RESPONDENTS WHO DID NOT SUBMIT ANY
PLEADING OR MANIFESTATION IN THIS CASE.
THE IMMUNITY OF THE STATE FROM SUIT, KNOWN ALSO AS THE
DOCTRINE OF SOVEREIGN IMMUNITY OR NON-SUABILITY OF THE
STATE,17IS EXPRESSLY PROVIDED IN ARTICLE XVI OF THE 1987
CONSTITUTION WHICH STATES:
SECTION 3. THE STATE MAY NOT BE SUED WITHOUT ITS CONSENT.
IN UNITED STATES OF AMERICA V. JUDGE GUINTO,18 WE DISCUSSED THE
PRINCIPLE OF STATE IMMUNITY FROM SUIT, AS FOLLOWS:
THE RULE THAT A STATE MAY NOT BE SUED WITHOUT ITS CONSENT,
NOW · EXPRESSED IN ARTICLE XVI, SECTION 3, OF THE 1987
CONSTITUTION, IS ONE OF THE GENERALLY ACCEPTED PRINCIPLES OF
INTERNATIONAL LAW THAT WE HAVE ADOPTED AS PART OF THE LAW OF
OUR LAND UNDER ARTICLE II, SECTION 2. X X X.
EVEN WITHOUT SUCH AFFIRMATION, WE WOULD STILL BE BOUND BY THE
GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW UNDER THE
DOCTRINE OF INCORPORATION. UNDER THIS DOCTRINE, AS ACCEPTED
BY THE MAJORITY OF STATES, SUCH PRINCIPLES ARE DEEMED
INCORPORATED IN THE LAW OF EVERY CIVILIZED STATE AS A CONDITION
AND CONSEQUENCE OF ITS MEMBERSHIP IN THE SOCIETY OF NATIONS.
UPON ITS ADMISSION TO SUCH SOCIETY, THE STATE IS AUTOMATICALLY
OBLIGATED TO COMPLY WITH THESE PRINCIPLES IN ITS RELATIONS WITH
OTHER STATES.
AS APPLIED TO THE LOCAL STATE, THE DOCTRINE OF STATE IMMUNITY IS
BASED ON THE JUSTIFICATION GIVEN BY JUSTICE HOLMES THAT ''THERE
CAN BE NO LEGAL RIGHT AGAINST THE AUTHORITY WHICH MAKES THE
LAW ON WHICH THE RIGHT DEPENDS." [KAWANAKOA V. POLYBANK, 205
U.S. 349] THERE ARE OTHER PRACTICAL REASONS FOR THE
ENFORCEMENT OF THE DOCTRINE. IN THE CASE OF THE FOREIGN STATE
SOUGHT TO BE IMPLEADED IN THE LOCAL JURISDICTION, THE ADDED
INHIBITION IS EXPRESSED IN THE MAXIM PAR IN PAREM, NON HABET
IMPERIUM. ALL STATES ARE SOVEREIGN EQUALS AND CANNOT ASSERT
JURISDICTION OVER ONE ANOTHER. A CONTRARY DISPOSITION WOULD,
IN THE LANGUAGE OF A CELEBRATED CASE, "UNDULY VEX THE PEACE OF
NATIONS." [DE HABER V. QUEEN OF PORTUGAL, 17 Q. B. 171]
WHILE THE DOCTRINE APPEARS TO PROHIBIT ONLY SUITS AGAINST THE
STATE WITHOUT ITS CONSENT, IT IS ALSO APPLICABLE TO COMPLAINTS
FILED AGAINST OFFICIALS OF THE STATE FOR ACTS ALLEGEDLY
PERFORMED BY THEM IN THE DISCHARGE OF THEIR DUTIES. THE RULE IS
THAT IF THE JUDGMENT AGAINST SUCH OFFICIALS WILL REQUIRE THE
STATE ITSELF TO PERFORM AN AFFIRMATIVE ACT TO SATISFY THE
SAME,. SUCH AS THE APPROPRIATION OF THE AMOUNT NEEDED TO PAY
THE DAMAGES AWARDED AGAINST THEM, THE SUIT MUST BE REGARDED
AS AGAINST THE STATE ITSELF ALTHOUGH IT HAS NOT BEEN FORMALLY
IMPLEADED. [GARCIA V. CHIEF OF STAFF, 16 SCRA 120] IN SUCH A
SITUATION, THE STATE MAY MOVE TO DISMISS THE COMP.TAINT ON THE
GROUND THAT IT HAS BEEN FILED WITHOUT ITS CONSENT.19 (EMPHASIS
SUPPLIED.)
UNDER THE AMERICAN CONSTITUTION, THE DOCTRINE IS EXPRESSED IN
THE ELEVENTH AMENDMENT WHICH READS:
THE JUDICIAL POWER OF THE UNITED STATES SHALL NOT BE
CONSTRUED TO EXTEND TO ANY SUIT IN LAW OR EQUITY, COMMENCED
OR PROSECUTED AGAINST ONE OF THE UNITED STATES BY CITIZENS OF
ANOTHER STATE, OR BY CITIZENS OR SUBJECTS OF ANY FOREIGN
STATE.
IN THE CASE OF MINUCHER V. COURT OF APPEALS,20 WE FURTHER
EXPOUNDED ON THE IMMUNITY OF FOREIGN STATES FROM THE
JURISDICTION OF LOCAL COURTS, AS FOLLOWS:
THE PRECEPT THAT A STATE CANNOT BE SUED IN THE COURTS OF A
FOREIGN STATE IS A LONG-STANDING RULE OF CUSTOMARY
INTERNATIONAL LAW THEN CLOSELY IDENTIFIED WITH THE PERSONAL
IMMUNITY OF A FOREIGN SOVEREIGN FROM SUIT AND, WITH THE
EMERGENCE OF DEMOCRATIC STATES, MADE TO ATTACH NOT JUST TO
THE PERSON OF THE HEAD OF STATE, OR HIS REPRESENTATIVE, BUT
ALSO DISTINCTLY TO THE STATE ITSELF IN ITS SOVEREIGN CAPACITY. IF
THE ACTS GIVING RISE TO A SUIT ARC THOSE OF A FOREIGN
GOVERNMENT DONE BY ITS FOREIGN AGENT, ALTHOUGH NOT
NECESSARILY A DIPLOMATIC PERSONAGE, BUT ACTING IN HIS OFFICIAL
CAPACITY, THE COMPLAINT COULD BE BARRED BY THE IMMUNITY OF THE
FOREIGN SOVEREIGN FROM SUIT WITHOUT ITS CONSENT. SUING A
REPRESENTATIVE OF A STATE IS BELIEVED TO BE, IN EFFECT, SUING THE
STATE ITSELF. THE PROSCRIPTION IS NOT ACCORDED FOR THE BENEFIT
OF AN INDIVIDUAL BUT FOR THE STATE, IN WHOSE SERVICE HE IS, UNDER
THE MAXIM -PAR IN PAREM, NON HABET IMPERIUM -THAT ALL STATES
ARE SOVERR~IGN EQUALS AND CANNOT ASSERT JURISDICTION OVER
ONE ANOTHER. THE IMPLICATION, IN BROAD TERMS, IS THAT IF THE
JUDGMENT AGAINST AN OFFICIAL WOULD REC 1UIRE THE STATE ITSELF
TO PERFORM AN AFFIRMATIVE ACT TO SATISFY THE AWARD, SUCH AS
THE APPROPRIATION OF THE AMOUNT NEEDED TO PAY THE DAMAGES
DECREED AGAINST HIM, THE SUIT MUST BE REGARDED AS BEING
AGAINST THE STATE ITSELF, ALTHOUGH IT HAS NOT BEEN FORMALLY
IMPLEADED.21 (EMPHASIS SUPPLIED.)
IN THE SAME CASE WE ALSO MENTIONED THAT IN THE CASE OF
DIPLOMATIC IMMUNITY, THE PRIVILEGE IS NOT AN IMMUNITY FROM THE
OBSERVANCE OF THE LAW OF THE TERRITORIAL SOVEREIGN OR FROM
ENSUING LEGAL LIABILITY; IT IS, RATHER, AN IMMUNITY FROM THE
EXERCISE OF TERRITORIAL JURISDICTION.22
IN UNITED STATES OF AMERICA V. JUDGE GUINTO,23 ONE OF THE
CONSOLIDATED CASES THEREIN INVOLVED A FILIPINO EMPLOYED AT
CLARK AIR BASE WHO WAS ARRESTED FOLLOWING A BUY-BUST
OPERATION CONDUCTED BY TWO OFFICERS OF THE US AIR FORCE, AND
WAS EVENTUALLY DISMISSED FROM HIS EMPLOYMENT WHEN HE WAS
CHARGED IN COURT FOR VIOLATION OF R.A. NO. 6425. IN A COMPLAINT
FOR DAMAGES FILED BY THE SAID EMPLOYEE AGAINST THE MILITARY
OFFICERS, THE LATTER MOVED TO DISMISS THE CASE ON THE GROUND
THAT THE SUIT WAS AGAINST THE US GOVERNMENT WHICH HAD NOT
GIVEN ITS CONSENT. THE RTC DENIED THE MOTION BUT ON A PETITION
FOR CERTIORARI AND PROHIBITION FILED BEFORE THIS COURT, WE
REVERSED THE RTC AND DISMISSED THE COMPLAINT. WE HELD THAT
PETITIONERS US MILITARY OFFICERS WERE ACTING IN THE EXERCISE OF
THEIR OFFICIAL FUNCTIONS WHEN THEY CONDUCTED THE BUY-BUST
OPERATION AGAINST THE COMPLAINANT AND THEREAFTER TESTIFIED
AGAINST HIM AT HIS TRIAL. IT FOLLOWS THAT FOR DISCHARGING THEIR
DUTIES AS AGENTS OF THE UNITED STATES, THEY CANNOT BE DIRECTLY
IMPLEADED FOR ACTS IMPUTABLE TO THEIR PRINCIPAL, WHICH HAS NOT
GIVEN ITS CONSENT TO BE SUED.
THIS TRADITIONAL RULE OF STATE IMMUNITY WHICH EXEMPTS A STATE
FROM BEING SUED IN THE COURTS OF ANOTHER STATE WITHOUT THE
FORMER'S CONSENT OR WAIVER HAS EVOLVED INTO A RESTRICTIVE
DOCTRINE WHICH DISTINGUISHES SOVEREIGN AND GOVERNMENTAL
ACTS (JURE IMPERIL") FROM PRIVATE, COMMERCIAL AND PROPRIETARY
ACTS (JURE GESTIONIS). UNDER THE RESTRICTIVE RULE OF STATE
IMMUNITY, STATE IMMUNITY EXTENDS ONLY TO ACTS JURE IMPERII. THE
RESTRICTIVE APPLICATION OF STATE IMMUNITY IS PROPER ONLY WHEN
THE PROCEEDINGS ARISE OUT OF COMMERCIAL TRANSACTIONS OF THE
FOREIGN SOVEREIGN, ITS COMMERCIAL ACTIVITIES OR ECONOMIC
AFFAIRS.24
IN SHAUF V. COURT OF APPEALS,25 WE DISCUSSED THE LIMITATIONS OF
THE STATE IMMUNITY PRINCIPLE, THUS:
IT IS A DIFFERENT MATTER WHERE THE PUBLIC OFFICIAL IS MADE TO
ACCOUNT IN HIS CAPACITY AS SUCH FOR ACTS CONTRARY TO LAW AND
INJURIOUS TO THE RIGHTS OF PLAINTIFF. AS WAS CLEARLY SET FORTH
BY JUSTIGE ZALDIVAR IN DIRECTOR OF THE BUREAU OF
TELECOMMUNICATIONS, ET AL. VS. ALIGAEN, ETC., ET AL. : "INASMUCH AS
THE STATE AUTHORIZES ONLY LEGAL ACTS BY ITS OFFICERS,
UNAUTHORIZED ACTS OF GOVERNMENT OFFICIALS OR OFFICERS ARE
NOT ACTS OF THE STATE, AND AN ACTION AGAINST THE OFFICIALS OR
OFFICERS BY ONE WHOSE RIGHTS HAVE BEEN INVADED OR VIOLATED BY
SUCH ACTS, FOR THE PROTECTION OF HIS RIGHTS, IS NOT A SUIT
AGAINST THE STATE WITHIN THE RULE OF IMMUNITY OF THE STATE
FROM SUIT. IN THE SAME TENOR, IT HAS BEEN SAID THAT AN ACTION AT
LAW OR SUIT IN EQUITY AGAINST A STATE OFFICER OR THE DIRECTOR
OF A STATE DEPARTMENT ON THE GROUND THAT, WHILE CLAIMING TO
ACT FOR THE STATE, HE VIOLATES OR INVADES THE PERSONAL AND
PROPERTY RIGHTS OF THE PLAINTIFF, UNDER AN UNCONSTITUTIONAL
ACT OR UNDER AN ASSUMPTION OF AUTHORITY WHICH HE DOES NOT
HAVE, IS NOT A SUIT AGAINST THE STATE WITHIN THE CONSTITUTIONAL
PROVISION THAT THE STATE MAY NOT BE SUED WITHOUT ITS CONSENT."
THE RATIONALE FOR THIS RULING IS THAT THE DOCTRINE OF STATE
IMMUNITY CANNOT BE USED AS AN INSTRUMENT FOR PERPETRATING AN
INJUSTICE.
XXXX
THE AFORECITED AUTHORITIES ARE CLEAR ON THE MATTER. THEY
STATE THAT THE DOCTRINE OF IMMUNITY FROM SUIT WILL NOT APPLY
AND MAY NOT BE INVOKED WHERE THE PUBLIC OFFICIAL IS BEING SUED
IN HIS PRIVATE AND PERSONAL CAPACITY AS AN ORDINARY CITIZEN. THE
CLOAK OF PROTECTION AFFORDED THE OFFICERS AND AGENTS OF THE
GOVERNMENT IS REMOVED THE MOMENT THEY ARE SUED IN THEIR
INDIVIDUAL CAPACITY. THIS SITUATION USUALLY ARISES WHERE THE
PUBLIC OFFICIAL ACTS WITHOUT AUTHORITY OR IN EXCESS OF THE
POWERS VESTED IN HIM. IT IS A WELL-SETTLED PRINCIPLE OF LAW THAT
A PUBLIC OFFICIAL MAY BE LIABLE IN HIS PERSONAL PRIVATE CAPACITY
FOR WHATEVER DAMAGE HE MAY HAVE CAUSED BY HIS ACT DONE WITH
MALICE AND IN BAD FAITH, OR BEYOND THE SCOPE OF HIS AUTHORITY
OR JURISDICTION.26 (EMPHASIS SUPPLIED.) IN THIS CASE, THE US
RESPONDENTS WERE SUED IN THEIR OFFICIAL CAPACITY AS
COMMANDING OFFICERS OF THE US NAVY WHO HAD CONTROL AND
SUPERVISION OVER THE USS GUARDIAN AND ITS CREW. THE ALLEGED
ACT OR OMISSION RESULTING IN THE UNFORTUNATE GROUNDING OF
THE USS GUARDIAN ON THE TRNP WAS COMMITTED WHILE THEY WE:RE
PERFORMING OFFICIAL MILITARY DUTIES. CONSIDERING THAT THE
SATISFACTION OF A JUDGMENT AGAINST SAID OFFICIALS WILL REQUIRE
REMEDIAL ACTIONS AND APPROPRIATION OF FUNDS BY THE US
GOVERNMENT, THE SUIT IS DEEMED TO BE ONE AGAINST THE US ITSELF.
THE PRINCIPLE OF STATE IMMUNITY THEREFORE BARS THE EXERCISE OF
JURISDICTION BY THIS COURT OVER THE PERSONS OF RESPONDENTS
SWIFT, RICE AND ROBLING.
DURING THE DELIBERATIONS, SENIOR ASSOCIATE JUSTICE ANTONIO T.
CARPIO TOOK THE POSITION THAT THE CONDUCT OF THE US IN THIS
CASE, WHEN ITS WARSHIP ENTERED A RESTRICTED AREA IN VIOLATION
OF R.A. NO. 10067 AND CAUSED DAMAGE TO THE TRNP REEF SYSTEM,
BRINGS THE MATTER WITHIN THE AMBIT OF ARTICLE 31 OF THE UNITED
NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS). HE
EXPLAINED THAT WHILE HISTORICALLY, WARSHIPS ENJOY SOVEREIGN
IMMUNITY FROM SUIT AS EXTENSIONS OF THEIR FLAG STATE, ART. 31 OF
THE UNCLOS CREATES AN EXCEPTION TO THIS RULE IN CASES WHERE
THEY FAIL TO COMPLY WITH THE RULES AND REGULATIONS OF THE
COASTAL STATE REGARDING PASSAGE THROUGH THE LATTER'S
INTERNAL WATERS AND THE TERRITORIAL SEA.
ACCORDING TO JUSTICE CARPIO, ALTHOUGH THE US TO DATE HAS NOT
RATIFIED THE UNCLOS, AS A MATTER OF LONG-STANDING POLICY THE US
CONSIDERS ITSELF BOUND BY CUSTOMARY INTERNATIONAL RULES ON
THE "TRADITIONAL USES OF THE OCEANS" AS CODIFIED IN UNCLOS, AS
CAN BE GLEANED FROM PREVIOUS DECLARATIONS BY FORMER
PRESIDENTS REAGAN AND CLINTON, AND THE US JUDICIARY IN THE CASE
OF UNITED STATES V. ROYAL CARIBBEAN CRUISE LINES, LTD.27
THE INTERNATIONAL LAW OF THE SEA IS GENERALLY DEFINED AS "A
BODY OF TREATY RULES ARID CUSTOMARY NORMS GOVERNING THE
USES OF THE SEA, THE EXPLOITATION OF ITS RESOURCES, AND THE
EXERCISE OF JURISDICTION OVER MARITIME REGIMES. IT IS A BRANCH
OF PUBLIC INTERNATIONAL LAW, REGULATING THE RELATIONS OF
STATES WITH RESPECT TO THE USES OF THE OCEANS."28 THE UNCLOS IS
A MULTILATERAL TREATY WHICH WAS OPENED FOR SIGNATURE ON
DECEMBER 10, 1982 AT MONTEGO BAY, JAMAICA. IT WAS RATIFIED BY
THE PHILIPPINES IN 1984 BUT CAME INTO FORCE ON NOVEMBER 16, 1994
UPON THE SUBMISSION OF THE 60TH RATIFICATION.
THE UNCLOS IS A PRODUCT OF INTERNATIONAL NEGOTIATION THAT
SEEKS TO BALANCE STATE SOVEREIGNTY (MARE CLAUSUM) AND THE
PRINCIPLE OF FREEDOM OF THE HIGH SEAS (MARE LIBERUM).29 THE
FREEDOM TO USE THE WORLD'S MARINE WATERS IS ONE OF THE
OLDEST CUSTOMARY PRINCIPLES OF INTERNATIONAL LAW.30 THE
UNCLOS GIVES TO THE COASTAL STATE SOVEREIGN RIGHTS IN VARYING
DEGREES OVER THE DIFFERENT ZONES OF THE SEA WHICH ARE: 1)
INTERNAL WATERS, 2) TERRITORIAL SEA, 3) CONTIGUOUS ZONE, 4)
EXCLUSIVE ECONOMIC ZONE, AND 5) THE HIGH SEAS. IT ALSO GIVES
COASTAL STATES MORE OR LESS JURISDICTION OVER FOREIGN
VESSELS DEPENDING ON WHERE THE VESSEL IS LOCATED.31
INSOFAR AS THE INTERNAL WATERS AND TERRITORIAL SEA IS
CONCERNED, THE COASTAL STATE EXERCISES SOVEREIGNTY, SUBJECT
TO THE UNCLOS AND OTHER RULES OF INTERNATIONAL LAW. SUCH
SOVEREIGNTY EXTENDS TO THE AIR SPACE OVER THE TERRITORIAL SEA
AS WELL AS TO ITS BED AND SUBSOIL.32
IN THE CASE OF WARSHIPS,33 AS POINTED OUT BY JUSTICE CARPIO, THEY
CONTINUE TO ENJOY SOVEREIGN IMMUNITY SUBJECT TO THE
FOLLOWING EXCEPTIONS:
ARTICLE 30
NON-COMPLIANCE BY WARSHIPS WITH THE LAWS AND REGULATIONS OF
THE COASTAL STATE
IF ANY WARSHIP DOES NOT COMPLY WITH THE LAWS AND REGULATIONS
OF THE COASTAL STATE CONCERNING PASSAGE THROUGH THE
TERRITORIAL SEA AND DISREGARDS ANY REQUEST FOR COMPLIANCE
THEREWITH WHICH IS MADE TO IT, THE COASTAL STATE MAY REQUIRE IT
TO LEAVE THE TERRITORIAL SEA IMMEDIATELY.
ARTICLE 31
RESPONSIBILITY OF THE FLAG STATE FOR DAMAGE CAUSED BY A
WARSHIP
OR OTHER GOVERNMENT SHIP OPERATED FOR NON-COMMERCIAL
PURPOSES
THE FLAG STATE SHALL BEAR INTERNATIONAL RESPONSIBILITY FOR ANY
LOSS OR DAMAGE TO THE COASTAL STATE RESULTING FROM THE NON-
COMPLIANCE BY A WARSHIP OR OTHER GOVERNMENT SHIP OPERATED
FOR NON-COMMERCIAL PURPOSES WITH THE LAWS AND REGULATIONS
OF THE COASTAL STATE CONCERNING PASSAGE THROUGH THE
TERRITORIAL SEA OR WITH THE PROVISIONS OF THIS CONVENTION OR
OTHER RULES OF INTERNATIONAL LAW.
ARTICLE 32
IMMUNITIES OF WARSHIPS AND OTHER GOVERNMENT SHIPS OPERATED
FOR NON-COMMERCIAL PURPOSES
WITH SUCH EXCEPTIONS AS ARE CONTAINED IN SUBSECTION A AND IN
ARTICLES 30 AND 31, NOTHING IN THIS CONVENTION AFFECTS THE
IMMUNITIES OF WARSHIPS AND OTHER GOVERNMENT SHIPS OPERATED
FOR NON-COMMERCIAL PURPOSES. (EMPHASIS SUPPLIED.) A FOREIGN
WARSHIP'S UNAUTHORIZED ENTRY INTO OUR INTERNAL WATERS WITH
RESULTING DAMAGE TO MARINE RESOURCES IS ONE SITUATION IN
WHICH THE ABOVE PROVISIONS MAY APPLY. BUT WHAT IF THE
OFFENDING WARSHIP IS A NON-PARTY TO THE UNCLOS, AS IN THIS CASE,
THE US?
AN OVERWHELMING MAJORITY - OVER 80% -- OF NATION STATES ARE
NOW MEMBERS OF UNCLOS, BUT DESPITE THIS THE US, THE WORLD'S
LEADING MARITIME POWER, HAS NOT RATIFIED IT.
WHILE THE REAGAN ADMINISTRATION WAS INSTRUMENTAL IN UNCLOS'
NEGOTIATION AND DRAFTING, THE U.S. DELEGATION ULTIMATELY VOTED
AGAINST AND REFRAINED FROM SIGNING IT DUE TO CONCERNS OVER
DEEP SEABED MINING TECHNOLOGY TRANSFER PROVISIONS CONTAINED
IN PART XI. IN A REMARKABLE, MULTILATERAL EFFORT TO INDUCE U.S.
MEMBERSHIP, THE BULK OF UNCLOS MEMBER STATES COOPERATED
OVER THE SUCCEEDING DECADE TO REVISE THE OBJECTION.ABLE
PROVISIONS. THE REVISIONS SATISFIED THE CLINTON ADMINISTRATION,
WHICH SIGNED THE REVISED PART XI IMPLEMENTING AGREEMENT IN
1994. IN THE FALL OF 1994, PRESIDENT CLINTON TRANSMITTED UNCLOS
AND THE PART XI IMPLEMENTING AGREEMENT TO THE SENATE
REQUESTING ITS ADVICE AND CONSENT. DESPITE CONSISTENT SUPPORT
FROM PRESIDENT CLINTON, EACH OF HIS SUCCESSORS, AND AN
IDEOLOGICALLY DIVERSE ARRAY OF STAKEHOLDERS, THE SENATE HAS
SINCE WITHHELD THE CONSENT REQUIRED FOR THE PRESIDENT TO
INTERNATIONALLY BIND THE UNITED STATES TO UNCLOS.
WHILE UNCLOS CLEARED THE SENATE FOREIGN RELATIONS COMMITTEE
(SFRC) DURING THE 108TH AND 110TH CONGRESSES, ITS PROGRESS
CONTINUES TO BE HAMSTRUNG BY SIGNIFICANT POCKETS OF POLITICAL
AMBIVALENCE OVER U.S. PARTICIPATION IN INTERNATIONAL
INSTITUTIONS. MOST RECENTLY, 111 TH CONGRESS SFRC CHAIRMAN
SENATOR JOHN KERRY INCLUDED "VOTING OUT" UNCLOS FOR FULL
SENATE CONSIDERATION AMONG HIS HIGHEST PRIORITIES. THIS DID NOT
OCCUR, AND NO SENATE ACTION HAS BEEN TAKEN ON UNCLOS BY THE
112TH CONGRESS.34
JUSTICE CARPIO INVITED OUR ATTENTION TO THE POLICY STATEMENT
GIVEN BY PRESIDENT REAGAN ON MARCH 10, 1983 THAT THE US WILL
"RECOGNIZE THE RIGHTS OF THE OTHER , STATES IN THE WATERS OFF
THEIR COASTS, AS REFLECTED IN THE CONVENTION [UNCLOS], SO LONG
AS THE RIGHTS AND FREEDOM OF THE UNITED STATES AND OTHERS
UNDER INTERNATIONAL LAW ARE RECOGNIZED BY SUCH COASTAL
STATES", AND PRESIDENT CLINTON'S REITERATION OF THE US POLICY
"TO ACT IN A MANNER CONSISTENT WITH ITS [UNCLOS] PROVISIONS
RELATING TO TRADITIONAL USES OF THE OCEANS AND TO ENCOURAGE
OTHER COUNTRIES TO DO LIKEWISE." SINCE ARTICLE 31 RELATES TO
THE "TRADITIONAL USES OF THE OCEANS," AND "IF UNDER ITS POLICY,
THE US 'RECOGNIZE[S] THE RIGHTS OF THE OTHER STATES IN THE
WATERS OFF THEIR COASTS,"' JUSTICE CARPIO POSTULATES THAT
"THERE IS MORE REASON TO EXPECT IT TO RECOGNIZE THE RIGHTS OF
OTHER STATES IN THEIR INTERNAL WATERS, SUCH AS THE SULU SEA IN
THIS CASE."
AS TO THE NON-RATIFICATION BY THE US, JUSTICE CARPIO EMPHASIZES
THAT "THE US' REFUSAL TO JOIN THE UN CLOS WAS CENTERED ON ITS
DISAGREEMENT WITH UN CLOS' REGIME OF DEEP SEABED MINING (PART
XI) WHICH CONSIDERS THE OCEANS AND DEEP SEABED COMMONLY
OWNED BY MANKIND," POINTING OUT THAT SUCH "HAS NOTHING TO DO
WITH ITS [THE US'] ACCEPTANCE OF CUSTOMARY INTERNATIONAL RULES
ON NAVIGATION."
IT MAY BE MENTIONED THAT EVEN THE US NAVY JUDGE ADVOCATE
GENERAL'S CORPS PUBLICLY ENDORSES THE RATIFICATION OF THE
UNCLOS, AS SHOWN BY THE FOLLOWING STATEMENT POSTED ON ITS
OFFICIAL WEBSITE:
THE CONVENTION IS IN THE NATIONAL INTEREST OF THE UNITED STATES
BECAUSE IT ESTABLISHES STABLE MARITIME ZONES, INCLUDING A
MAXIMUM OUTER LIMIT FOR TERRITORIAL SEAS; CODIFIES INNOCENT
PASSAGE, TRANSIT PASSAGE, AND ARCHIPELAGIC SEA LANES PASSAGE
RIGHTS; WORKS AGAINST "JURISDICTIOMTL CREEP" BY PREVENTING
COASTAL NATIONS FROM EXPANDING THEIR OWN MARITIME ZONES; AND
REAFFIRMS SOVEREIGN IMMUNITY OF WARSHIPS, AUXILIARIES ANJ
GOVERNMENT AIRCRAFT.
XXXX
ECONOMICALLY, ACCESSION TO THE CONVENTION WOULD SUPPORT
OUR NATIONAL INTERESTS BY ENHANCING THE ABILITY OF THE US TO
ASSERT ITS SOVEREIGN RIGHTS OVER THE RESOURCES OF ONE OF THE
LARGEST CONTINENTAL SHELVES IN THE WORLD. FURTHER, IT IS THE
LAW OF THE SEA CONVENTION THAT FIRST ESTABLISHED THE CONCEPT
OF A MARITIME EXCLUSIVE ECONOMIC ZONE OUT TO 200 NAUTICAL
MILES, AND RECOGNIZED THE RIGHTS OF COASTAL STATES TO
CONSERVE AND MANAGE THE NATURAL RESOURCES IN THIS ZONE.35
WE FULLY CONCUR WITH JUSTICE CARPIO'S VIEW THAT NON-
MEMBERSHIP IN THE UNCLOS DOES NOT MEAN THAT THE US WILL
DISREGARD THE RIGHTS OF THE PHILIPPINES AS A COASTAL STATE
OVER ITS INTERNAL WATERS AND TERRITORIAL SEA. WE THUS EXPECT
THE US TO BEAR "INTERNATIONAL RESPONSIBILITY" UNDER ART. 31 IN
CONNECTION WITH THE USS GUARDIAN GROUNDING WHICH ADVERSELY
AFFECTED THE TUBBATAHA REEFS. INDEED, IT IS DIFFICULT TO IMAGINE
THAT OUR LONG-TIME ALLY AND TRADING PARTNER, WHICH HAS BEEN
ACTIVELY SUPPORTING THE COUNTRY'S EFFORTS TO PRESERVE OUR
VITAL MARINE RESOURCES, WOULD SHIRK FROM ITS OBLIGATION TO
COMPENSATE THE DAMAGE CAUSED BY ITS WARSHIP WHILE TRANSITING
OUR INTERNAL WATERS. MUCH LESS CAN WE COMPREHEND A
GOVERNMENT EXERCISING LEADERSHIP IN INTERNATIONAL AFFAIRS,
UNWILLING TO COMPLY WITH THE UNCLOS DIRECTIVE FOR ALL NATIONS
TO COOPERATE IN THE GLOBAL TASK TO PROTECT AND PRESERVE THE
MARINE ENVIRONMENT AS PROVIDED IN ARTICLE 197, VIZ:
ARTICLE 197
COOPERATION ON A GLOBAL OR REGIONAL BASIS
STATES SHALL COOPERATE ON A GLOBAL BASIS AND, AS APPROPRIATE,
ON A REGIONAL BASIS, DIRECTLY OR THROUGH COMPETENT
INTERNATIONAL ORGANIZATIONS, IN FORMULATING AND ELABORATING
INTERNATIONAL RULES, STANDARDS AND RECOMMENDED PRACTICES
AND PROCEDURES CONSISTENT WITH THIS CONVENTION, FOR THE
PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT,
TAKING INTO ACCOUNT CHARACTERISTIC REGIONAL FEATURES.
IN FINE, THE RELEVANCE OF UNCLOS PROVISIONS TO THE PRESENT
CONTROVERSY IS BEYOND DISPUTE. ALTHOUGH THE SAID TREATY
UPHOLDS THE IMMUNITY OF WARSHIPS FROM THE JURISDICTION OF
COASTAL STATES WHILE NAVIGATING THE.LATTER'S TERRITORIAL SEA,
THE FLAG STATES SHALL BE REQUIRED TO LEAVE THE TERRITORIAL '::;EA
IMMEDIATELY IF THEY FLOUT THE LAWS AND REGULATIONS OF THE
COASTAL STATE, AND THEY WILL BE LIABLE FOR DAMAGES CAUSED BY
THEIR WARSHIPS OR ANY OTHER GOVERNMENT VESSEL OPERATED FOR
NON-COMMERCIAL PURPOSES UNDER ARTICLE 31.
PETITIONERS ARGUE THAT THERE IS A WAIVER OF IMMUNITY FROM SUIT
FOUND IN THE VFA. LIKEWISE, THEY INVOKE FEDERAL STATUTES IN THE
US UNDER WHICH AGENCIES OF THE US HAVE STATUTORILY WAIVED
THEIR IMMUNITY TO ANY ACTION. EVEN UNDER THE COMMON LAW TORT
CLAIMS, PETITIONERS ASSEVERATE THAT THE US RESPONDENTS ARE
LIABLE FOR NEGLIGENCE, TRESPASS AND NUISANCE.
WE ARE NOT PERSUADED.
THE VFA IS AN AGREEMENT WHICH DEFINES THE TREATMENT OF UNITED
STATES TROOPS AND PERSONNEL VISITING THE PHILIPPINES TO
PROMOTE "COMMON SECURITY INTERESTS" BETWEEN THE US AND THE
PHILIPPINES IN THE REGION. IT PROVIDES FOR THE GUIDELINES TO
GOVERN SUCH VISITS OF MILITARY PERSONNEL, AND FURTHER DEFINES
THE RIGHTS OF THE UNITED STATES AND THE PHILIPPINE GOVERNMENT
IN THE MATTER OF CRIMINAL JURISDICTION, MOVEMENT OF VESSEL AND
AIRCRAFT, IMPORTATION AND EXPORTATION OF EQUIPMENT, MATERIALS
AND SUPPLIES.36 THE INVOCATION OF US FEDERAL TORT LAWS AND
EVEN COMMON LAW IS THUS IMPROPER CONSIDERING THAT IT IS THE VF
A WHICH GOVERNS DISPUTES INVOLVING US MILITARY SHIPS AND CREW
NAVIGATING PHILIPPINE WATERS IN PURSUANCE OF THE OBJECTIVES OF
THE AGREEMENT.
AS IT IS, THE WAIVER OF STATE IMMUNITY UNDER THE VF A PERTAINS
ONLY TO CRIMINAL JURISDICTION AND NOT TO SPECIAL CIVIL ACTIONS
SUCH AS THE PRESENT PETITION FOR ISSUANCE OF A WRIT OF
KALIKASAN. IN FACT, IT CAN BE INFERRED FROM SECTION 17, RULE 7 OF
THE RULES THAT A CRIMINAL CASE AGAINST A PERSON CHARGED WITH A
VIOLATION OF AN ENVIRONMENTAL LAW IS TO BE FILED SEPARATELY:
SEC. 17. INSTITUTION OF SEPARATE ACTIONS.-THE FILING OF A PETITION
FOR THE ISSUANCE OF THE WRIT OF KALIKASAN SHALL NOT PRECLUDE
THE FILING OF SEPARATE CIVIL, CRIMINAL OR ADMINISTRATIVE ACTIONS.
IN ANY CASE, IT IS OUR CONSIDERED VIEW THAT A RULING ON THE
APPLICATION OR NON-APPLICATION OF CRIMINAL JURISDICTION
PROVISIONS OF THE VF A TO US PERSONNEL WHO MAY BE FOUND
RESPONSIBLE FOR THE GROUNDING OF THE USS GUARDIAN, WOULD BE
PREMATURE AND BEYOND THE PROVINCE OF A PETITION FOR A WRIT OF
KALIKASAN. WE ALSO FIND IT UNNECESSARY AT THIS POINT TO
DETERMINE WHETHER SUCH WAIVER OF STATE IMMUNITY IS INDEED
ABSOLUTE. IN THE SAME VEIN, WE CANNOT GRANT DAMAGES WHICH
HAVE RESULTED FROM THE VIOLATION OF ENVIRONMENTAL LAWS. THE
RULES ALLOWS THE RECOVERY OF DAMAGES, INCLUDING THE
COLLECTION OF ADMINISTRATIVE FINES UNDER R.A. NO. 10067, IN A
SEPARATE CIVIL SUIT OR THAT DEEMED INSTITUTED WITH THE CRIMINAL
ACTION CHARGING THE SAME VIOLATION OF AN ENVIRONMENTAL LAW.37
SECTION 15, RULE 7 ENUMERATES THE RELIEFS WHICH MAY BE
GRANTED IN A PETITION FOR ISSUANCE OF A WRIT OF KALIKASAN, TO
WIT:
SEC. 15. JUDGMENT.-WITHIN SIXTY (60) DAYS FROM THE TIME THE
PETITION IS SUBMITTED FOR DECISION, THE COURT SHALL RENDER
JUDGMENT GRANTING OR DENYING THE PRIVILEGE OF THE WRIT OF
KALIKASAN.
THE RELIEFS THAT MAY BE GRANTED UNDER THE WRIT ARE THE
FOLLOWING:
(A) DIRECTING RESPONDENT TO PERMANENTLY CEASE AND DESIST
FROM COMMITTING ACTS OR NEGLECTING THE PERFORMANCE OF A
DUTY IN VIOLATION OF ENVIRONMENTAL LAWS RESULTING IN
ENVIRONMENTAL DESTRUCTION OR DAMAGE;
(B) DIRECTING THE RESPONDENT PUBLIC OFFICIAL, GOVEMMENT
AGENCY, PRIVATE PERSON OR ENTITY TO PROTECT, PRESERVE,
REHABILITATE OR RESTORE THE ENVIRONMENT;
(C) DIRECTING THE RESPONDENT PUBLIC OFFICIAL, GOVERNMENT
AGENCY, PRIVATE PERSON OR ENTITY TO MONITOR STRICT COMPLIANCE
WITH THE DECISION AND ORDERS OF THE COURT;
(D) DIRECTING THE RESPONDENT PUBLIC OFFICIAL, GOVERNMENT
AGENCY, OR PRIVATE PERSON OR ENTITY TO MAKE PERIODIC REPORTS
ON THE EXECUTION OF THE FINAL JUDGMENT; AND
(E) SUCH OTHER RELIEFS WHICH RELATE TO THE RIGHT OF THE PEOPLE
TO A BALANCED AND HEALTHFUL ECOLOGY OR TO THE PROTECTION,
PRESERVATION, REHABILITATION OR RESTORATION OF THE
ENVIRONMENT, EXCEPT THE AWARD OF DAMAGES TO INDIVIDUAL
PETITIONERS. (EMPHASIS SUPPLIED.)
WE AGREE WITH RESPONDENTS (PHILIPPINE OFFICIALS) IN ASSERTING
THAT THIS PETITION HAS BECOME MOOT IN THE SENSE THAT THE
SALVAGE OPERATION SOUGHT TO BE ENJOINED OR RESTRAINED HAD
ALREADY BEEN ACCOMPLISHED WHEN PETITIONERS SOUGHT
RECOURSE FROM THIS COURT. BUT INSOFAR AS THE DIRECTIVES TO
PHILIPPINE RESPONDENTS TO PROTECT AND REHABILITATE THE CORAL
REEF STN ICTURE AND MARINE HABITAT ADVERSELY AFFECTED BY THE
GROUNDING INCIDENT ARE CONCERNED, PETITIONERS ARE ENTITLED TO
THESE RELIEFS NOTWITHSTANDING THE COMPLETION OF THE REMOVAL
OF THE USS GUARDIAN FROM THE CORAL REEF. HOWEVER, WE ARE
MINDFUL OF THE FACT THAT THE US AND PHILIPPINE GOVERNMENTS
BOTH EXPRESSED READINESS TO NEGOTIATE AND DISCUSS THE
MATTER OF COMPENSATION FOR THE DAMAGE CAUSED BY THE USS
GUARDIAN. THE US EMBASSY HAS ALSO DECLARED IT IS CLOSELY
COORDINATING WITH LOCAL SCIENTISTS AND EXPERTS IN ASSESSING
THE EXTENT OF THE DAMAGE AND APPROPRIATE METHODS OF
REHABILITATION.
EXPLORING AVENUES FOR SETTLEMENT OF ENVIRONMENTAL CASES IS
NOT PROSCRIBED BY THE RULES. AS CAN BE GLEANED FROM THE
FOLLOWING PROVISIONS, MEDIATION AND SETTLEMENT ARE AVAILABLE
FOR THE CONSIDERATION OF THE PARTIES, AND WHICH DISPUTE
RESOLUTION METHODS ARE ENCOURAGED BY THE COURT, TO WIT:
RULE3
XXXX
SEC. 3. REFERRAL TO MEDIATION.-AT THE START OF THE PRE-TRIAL
CONFERENCE, THE COURT SHALL INQUIRE FROM THE PARTIES IF THEY
HAVE SETTLED THE DISPUTE; OTHERWISE, THE COURT SHALL
IMMEDIATELY REFER THE PARTIES OR THEIR COUNSEL, IF AUTHORIZED
BY THEIR CLIENTS, TO THE PHILIPPINE MEDIATION CENTER (PMC) UNIT
FOR PURPOSES OF MEDIATION. IF NOT AVAILABLE, THE COURT SHALL
REFER THE CASE TO THE CLERK OF COURT OR LEGAL RESEARCHER FOR
MEDIATION.
MEDIATION MUST BE CONDUCTED WITHIN A NON-EXTENDIBLE PERIOD OF
THIRTY (30) DAYS FROM RECEIPT OF NOTICE OF REFERRAL TO
MEDIATION.
THE MEDIATION REPORT MUST BE SUBMITTED WITHIN TEN (10) DAYS
FROM THE EXPIRATION OF THE 30-DAY PERIOD.
SEC. 4. PRELIMINARY CONFERENCE.-IF MEDIATION FAILS, THE COURT
WILL SCHEDULE THE CONTINUANCE OF THE PRE-TRIAL. BEFORE THE
SCHEDULED DATE OF CONTINUANCE, THE COURT MAY REFER THE CASE
TO THE BRANCH CLERK OF COURT FOR A PRELIMINARY CONFERENCE
FOR THE FOLLOWING PURPOSES:
(A) TO ASSIST THE PARTIES IN REACHING A SETTLEMENT;
XXXX
SEC. 5. PRE-TRIAL CONFERENCE; CONSENT DECREE.-THE JUDGE SHALL
PUT THE PARTIES AND THEIR COUNSELS UNDER OATH, AND THEY SHALL
REMAIN UNDER OATH IN ALL PRE-TRIAL CONFERENCES.
THE JUDGE SHALL EXERT BEST EFFORTS TO PERSUADE THE PARTIES TO
ARRIVE AT A SETTLEMENT OF THE DISPUTE. THE JUDGE MAY ISSUE A
CONSENT DECREE APPROVING THE AGREEMENT BETWEEN THE PARTIES
IN ACCORDANCE WITH LAW, MORALS, PUBLIC ORDER AND PUBLIC
POLICY TO PROTECT THE RIGHT OF THE PEOPLE TO A BALANCED AND
HEALTHFUL ECOLOGY.
XXXX
SEC. 10. EFFORTS TO SETTLE.- THE COURT SHALL ENDEAVOR TO MAKE
THE PARTIES TO AGREE TO COMPROMISE OR SETTLE IN ACCORDANCE
WITH LAW AT ANY STAGE OF THE PROCEEDINGS BEFORE RENDITION OF
JUDGMENT. (UNDERSCORING SUPPLIED.)
THE COURT TAKES JUDICIAL NOTICE OF A SIMILAR INCIDENT IN 2009
WHEN A GUIDED-MISSILE CRUISER, THE USS PORT ROYAL, RAN
AGROUND ABOUT HALF A MILE OFF THE HONOLULU AIRPORT REEF
RUNWAY AND REMAINED STUCK FOR FOUR DAYS. AFTER SPENDING $6.5
MILLION RESTORING THE CORAL REEF, THE US GOVERNMENT WAS
REPORTED TO HAVE PAID THE STATE OF HAWAII $8.5 MILLION IN
SETTLEMENT OVER CORAL REEF DAMAGE CAUSED BY THE
GROUNDING.38
TO UNDERSCORE THAT THE US GOVERNMENT IS PREPARED TO PAY
APPROPRIATE COMPENSATION FOR THE DAMAGE CAUSED BY THE USS
GUARDIAN GROUNDING, THE US EMBASSY IN THE PHILIPPINES HAS
ANNOUNCED THE FORMATION OF A US INTERDISCIPLINARY SCIENTIFIC
TEAM WHICH WILL "INITIATE DISCUSSIONS WITH THE GOVERNMENT OF
THE PHILIPPINES TO REVIEW CORAL REEF REHABILITATION OPTIONS IN
TUBBATAHA, BASED ON ASSESSMENTS BY PHILIPPINE-BASED MARINE
SCIENTISTS." THE US TEAM INTENDS TO "HELP ASSESS DAMAGE AND
REMEDIATION OPTIONS, IN COORDINATION WITH THE TUBBATAHA
MANAGEMENT OFFICE, APPROPRIATE PHILIPPINE GOVERNMENT
ENTITIES, NON-GOVERNMENTAL ORGANIZATIONS, AND SCIENTIFIC
EXPERTS FROM PHILIPPINE UNIVERSITIES."39
A REHABILITATION OR RESTORATION PROGRAM TO BE IMPLEMENTED AT
THE COST OF THE VIOLATOR IS ALSO A MAJOR RELIEF THAT MAY BE
OBTAINED UNDER A JUDGMENT RENDERED IN A CITIZENS' SUIT UNDER
THE RULES, VIZ:
RULES
SECTION 1. RELIEFS IN A CITIZEN SUIT.-IF WARRANTED, THE COURT MAY
GRANT TO THE PLAINTIFF PROPER RELIEFS WHICH SHALL INCLUDE THE
PROTECTION, PRESERVATION OR REHABILITATION OF THE
ENVIRONMENT AND THE PAYMENT OF ATTORNEY'S FEES, COSTS OF SUIT
AND OTHER LITIGATION EXPENSES. IT MAY ALSO REQUIRE THE VIOLATOR
TO SUBMIT A PROGRAM OF REHABILITATION OR RESTORATION OF THE
ENVIRONMENT, THE COSTS OF WHICH SHALL BE BORNE BY THE
VIOLATOR, OR TO CONTRIBUTE TO A SPECIAL TRUST FUND FOR THAT
PURPOSE SUBJECT TO THE CONTROL OF THE COURT.1ÂWPHI1
IN THE LIGHT OF THE FOREGOING, THE COURT DEFERS TO THE
EXECUTIVE BRANCH ON THE MATTER OF COMPENSATION AND
REHABILITATION MEASURES THROUGH DIPLOMATIC CHANNELS.
RESOLUTION OF THESE ISSUES IMPINGES ON OUR RELATIONS WITH
ANOTHER STATE IN THE CONTEXT OF COMMON SECURITY INTERESTS
UNDER THE VFA. IT IS SETTLED 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."40
ON THE OTHER HAND, WE CANNOT GRANT THE ADDITIONAL RELIEFS
PRAYED FOR IN THE PETITION TO ORDER A REVIEW OF THE VFA AND TO
NULLIFY CERTAIN IMMUNITY PROVISIONS THEREOF.
AS HELD IN BAYAN (BAGONG ALYANSANG MAKABAYAN) V. EXEC. SEC.
ZAMORA,41 THE VFA WAS DULY CONCURRED IN BY THE PHILIPPINE
SENATE AND HAS BEEN RECOGNIZED AS A TREATY BY THE UNITED
STATES AS ATTESTED AND CERTIFIED BY THE DULY AUTHORIZED
REPRESENTATIVE OF THE UNITED STATES GOVERNMENT. THE VF A
BEING A VALID AND BINDING AGREEMENT, THE PARTIES ARE REQUIRED
AS A MATTER OF INTERNATIONAL LAW TO ABIDE BY ITS TERMS AND
PROVISIONS.42 THE PRESENT PETITION UNDER THE RULES IS NOT THE
PROPER REMEDY TO ASSAIL THE CONSTITUTIONALITY OF ITS
PROVISIONS. WHEREFORE, THE PETITION FOR THE ISSUANCE OF THE
PRIVILEGE OF THE WRIT OF KALIKASAN IS HEREBY DENIED.
NO PRONOUNCEMENT AS TO COSTS.
SO ORDERED.
G.R. NO. 207257 FEBRUARY 3, 2015
HON. RAMON JESUS P. PAJE, IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
(DENR), PETITIONER,
VS.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL
V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA,
JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE
LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA
LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA
ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH
PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR.
GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO,
MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN
CARLO DELOS REYES, RESPONDENTS.
X-----------------------X
G.R. NO. 207276
REDONDO PENINSULA ENERGY, INC., PETITIONER,
VS.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL
V. MARIANO, HON. EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA,
JR., HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON. JAMES DE
LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH LUGERNA
LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE GAMBOA
ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG, RUBELH
PERALTA, ALEX CORPUS HERMOSO, RODOLFO SAMBAJON, REV. FR.
GERARDO GREGORIO P. JORGE, CARLITO A. BALOY, OFELIA D. PABLO,
MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q. RODRIGUEZ, JOHN
CARLO DELOS REYES, RAMON JESUS P. PAJE, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES AND SUBIC BAY METROPOLITAN
AUTHORITY, RESPONDENTS.
X-----------------------X
G.R. NO. 207282
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON.
EMERENCIANA A. DE JESUS, CLEMENTE G. BAUTISTA, JR., HON. RAFAEL
V. MARIANO, HON. ROLEN C. PAULINO, HON. EDUARDO PIANO, HON.
JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON. SARAH
LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA CHRISTINE
GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA MAGDARAOG,
RUBELH PERALTA, ALEX CORPUS HERMOSA, RODOLFO SAMBAJON, ET
AL., PETITIONERS,
VS.
RAMON JESUS P. PAJE IN HIS CAPACITY AS SECRETARY OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, SUBIC BAY
METROPOLITAN AUTHORITY, AND REDONDO PENINSULA ENERGY,
INC., RESPONDENTS.
X-----------------------X
G.R. NO. 207366
SUBIC BAY METROPOLITAN AUTHORITY, PETITIONER,
VS.
HON. TEODORO A. CASIÑO, HON. RAYMOND V. PALATINO, HON. RAFAEL
V. MARIANO, HON. EMERENCIANA A. DE JESUS, HON. ROLEN C. PAULINO,
HON EDUARDO PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y.
CORTEZ, JR., HON. SARAH LUGERNA LIPUMANOGARCIA, NORAIDA
VELARMINO, BIANCA CHRISTINE GAMBOA, GREGORIO LLORCA
MAGDARAOG, RUBELHPERALTA, ALEX CORPUS HERMOSO, RODOLFO
SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A.
BALOY, OFELIA D. PABLO, MARIO ESQUILLO, ELLE·LATINAZO, EV
ANGELINE Q. RODRIGUEZ, JOHN CARLO DELOS REYES, HON. RAMON
JESUS P. PAJE, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT
OF ENVIRONMENT AND NATURAL RESOURCES AND REDONDO
PENINSULA ENERGY, INC.,RESPONDENTS.
DECISION
DEL CASTILLO, J.:
BEFORE THIS COURT ARE CONSOLIDATED PETITIONS FOR REVIEW ON
CERTIORARI1 ASSAILING THE DECISION2 DATED JANUARY 30, 2013 AND
THE RESOLUTION3 DATED MAY 22, 2013 OF THE COURT OF APPEALS (CA)
IN CA-G.R. SP NO. 00015, ENTITLED "HON. TEODORO A. CASIÑO, ET AL. V.
HON. RAMON JESUS P. PAJE, ET AL."
FACTUAL ANTECEDENTS
IN FEBRUARY 2006, SUBIC BAY METROPOLITAN AUTHORITY· (SBMA), A
GOVERNMENT AGENCY ORGANIZED AND ESTABLISHED UNDER REPUBLIC
ACT NO. (RA) 7227,4 AND TAIWAN COGENERATION CORPORATION (TCC)
ENTERED INTO A MEMORANDUM OF UNDERSTANDING (MOU)
EXPRESSING THEIR INTENTION TO BUILD A POWER PLANT IN SUBIC BAY
WHICH WOULD SUPPLY RELIABLE AND AFFORDABLE POWER TO SUBIC
BAY INDUSTRIAL PARK (SBIP).5
ON JULY 28, 2006, SBMA AND TCC ENTERED INTO ANOTHER MOU,
WHEREBY TCC UNDERTOOK TO BUILD AND OPERATEA COAL-FIRED
POWER PLANT.6 IN THE SAID MOU, TCC IDENTIFIED 20 HECTARES OF
LAND AT SITIONAGLATORE, MT. REDONDO, SUBIC BAY FREEPORT ZONE
(SBFZ) AS THE SUITABLE AREA FOR THE PROJECT AND ANOTHER SITE OF
APPROXIMATELY 10 HECTARES TOBE USED AS AN ASH POND.7 TCC
INTENDS TO LEASE THE PROPERTY FROM SBMA FOR A TERM OF 50
YEARS WITH RENT FIXED AT$3.50 PER SQUARE METER, PAYABLE IN 10
EQUAL 5-YEAR INSTALLMENTS.8
ON APRIL 4, 2007, THE SBMA ECOLOGY CENTER ISSUED SBFZ
ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) NO. EC-SBFZ-ECC-69-
21-500 IN FAVOR OF TAIWAN COGENERATION INTERNATIONAL
CORPORATION (TCIC), A SUBSIDIARY OF TCC,9 FOR THE CONSTRUCTION,
INSTALLATION,AND OPERATION OF 2X150-MW CIRCULATING FLUIDIZED
BED (CFB) COAL-FIRED THERMAL POWER PLANT AT SITIO NAGLATORE.10
ON JUNE 6, 2008, TCC ASSIGNED ALL ITS RIGHTS AND INTERESTS UNDER
THE MOU DATED JULY 28, 2006 TO REDONDO PENINSULA ENERGY, INC.
(RP ENERGY),11 A CORPORATION DULY ORGANIZED AND EXISTING UNDER
THE LAWS OF THE PHILIPPINES WITH THE PRIMARY PURPOSE OF
BUILDING, OWNING, AND OPERATING POWERPLANTS IN THE PHILIPPINES,
AMONG OTHERS.12ACCORDINGLY, AN ADDENDUM TO THE SAID MOU WAS
EXECUTED BY SBMA AND RP ENERGY.13
RP ENERGY THEN CONTRACTED GHD PTY, LTD. (GHD) TO PREPARE AN
ENVIRONMENTAL IMPACT STATEMENT (EIS) FOR THE PROPOSED COAL-
FIRED POWER PLANT AND TO ASSIST RP ENERGY IN APPLYING FOR THE
ISSUANCE OFAN ECC FROM THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES (DENR).14 ON AUGUST 27, 2008, THE
SANGGUNIANG PANGLUNGSODOF OLONGAPO CITY ISSUED RESOLUTION
NO. 131, SERIES OF 2008, EXPRESSING THE CITY GOVERNMENT’S
OBJECTION TO THE COAL-FIRED POWER PLANT AS AN ENERGY SOURCE
AND URGING THE PROPONENT TO CONSIDER SAFER ALTERNATIVE
SOURCES OFENERGY FOR SUBIC BAY.15
ON DECEMBER 22, 2008, THE DENR, THROUGH FORMER SECRETARY
JOSE L. ATIENZA, JR., ISSUED AN ECC FOR THE PROPOSED 2X150-MW
COAL-FIRED POWER PLANT.16
SOMETIME THEREAFTER, RP ENERGY DECIDED TO INCLUDE ADDITIONAL
COMPONENTS IN ITS PROPOSED COAL-FIRED POWER PLANT. DUE TO
THE CHANGES IN THE PROJECT DESIGN, WHICH INVOLVED THE
INCLUSION OF A BARGE WHARF, SEAWATER INTAKE BREAKWATER,
SUBSEA DISCHARGE PIPELINE, RAW WATER COLLECTION SYSTEM,
DRAINAGE CHANNEL IMPROVEMENT, AND A 230KV DOUBLE-CIRCUIT
TRANSMISSION LINE,17 RP ENERGY REQUESTED THE DENR
ENVIRONMENTAL MANAGEMENT BUREAU(DENR-EMB) TO AMEND ITS
ECC.18 IN SUPPORT OF ITS REQUEST, RP ENERGY SUBMITTED TO THE
DENR-EMBAN ENVIRONMENTAL PERFORMANCE REPORT AND
MANAGEMENT PLAN (EPRMP), WHICH WAS PREPARED BY GHD.19
ON JUNE 8, 2010, RP ENERGY AND SBMA ENTERED INTO A LEASE AND
DEVELOPMENT AGREEMENT (LDA) OVER A 380,004.456-SQUARE METER
PARCEL OF LAND TO BE USED FOR BUILDING AND OPERATING THE COAL-
FIRED POWER PLANT.20
ON JULY 8, 2010, THE DENR-EMBISSUED AN AMENDED ECC (FIRST
AMENDMENT) ALLOWING THE INCLUSION OFADDITIONAL COMPONENTS,
AMONG OTHERS.21
SEVERAL MONTHS LATER, RP ENERGY AGAIN REQUESTED THE DENR-
EMB TO AMEND THE ECC.22 INSTEAD OF CONSTRUCTING A 2X150-MW
COAL-FIRED POWER PLANT, AS ORIGINALLY PLANNED, IT NOW SOUGHT
TOCONSTRUCT A 1X300-MWCOAL-FIRED POWER PLANT.23 IN SUPPORT OF
ITS REQUEST, RP ENERGY SUBMITTED A PROJECT DESCRIPTION REPORT
(PDR) TO THE DENR-EMB.24
ON MAY 26, 2011, THE DENR-EMB GRANTED THE REQUEST AND FURTHER
AMENDED THE ECC (SECOND AMENDMENT).25
ON AUGUST 1, 2011, THE SANGGUNIANG PANGLALAWIGANOF ZAMBALES
ISSUED RESOLUTION NO. 2011-149, OPPOSING THE ESTABLISHMENT OF A
COAL-FIRED THERMAL POWER PLANT AT SITIONAGLATORE, BRGY.
CAWAG, SUBIC, ZAMBALES.26
ON AUGUST 11, 2011, THE LIGA NG MGA BARANGAYOF OLONGAPO CITY
ISSUED RESOLUTION NO. 12, SERIES OF 2011, EXPRESSING ITS STRONG
OBJECTION TO THE COAL-FIRED POWER PLANT AS AN ENERGY
SOURCE.27
ON JULY 20, 2012, HON. TEODORO A. CASIÑO, HON. RAYMOND V.
PALATINO, HON. RAFAEL V. MARIANO, HON. EMERENCIANA A. DE JESUS,
CLEMENTE G. BAUTISTA, JR., HON. ROLEN C. PAULINO,HON. EDUARDO
PIANO, HON. JAMES DE LOS REYES, HON. AQUILINO Y. CORTEZ, JR., HON.
SARAH LUGERNA LIPUMANO-GARCIA, NORAIDA VELARMINO, BIANCA
CHRISTINE GAMBOA ESPINOS, CHARO SIMONS, GREGORIO LLORCA
MAGDARAOG, RUBELH PERALTA, ALEX CORPUS HERMOSO,RODOLFO
SAMBAJON, REV. FR. GERARDO GREGORIO P. JORGE, CARLITO A. BALOY,
OFELIA D. PABLO, MARIO ESQUILLO, ELLE LATINAZO, EVANGELINE Q.
RODRIGUEZ, AND JOHN CARLO DELOS REYES (CASIÑO GROUP) FILED
BEFORE THIS COURT A PETITION FOR WRIT OF KALIKASAN AGAINST RP
ENERGY, SBMA, AND HON. RAMON JESUS P. PAJE, IN HIS CAPACITY AS
SECRETARY OF THE DENR.28
ON JULY 31, 2012, THIS COURT RESOLVED, AMONG OTHERS, TO: (1) ISSUE
A WRIT OF KALIKASAN; AND (2) REFER THE CASE TO THE CA FOR
HEARING AND RECEPTION OF EVIDENCE AND RENDITION OF
JUDGMENT.29 WHILE THE CASE WAS PENDING, RP ENERGY APPLIED FOR
ANOTHER AMENDMENT TO ITS ECC (THIRD AMENDMENT) AND SUBMITTED
ANOTHER EPRMP TO THE DENR-EMB, PROPOSING THE CONSTRUCTION
AND OPERATION OF A 2X300-MW COAL-FIRED POWER PLANT.30
ON SEPTEMBER 11, 2012, THE PETITION FOR WRIT OF KALIKASANWAS
DOCKETED AS CA-G.R. SP NO. 00015 AND RAFFLED TO THE FIFTEENTH
DIVISION OF THE CA.31 IN THE PETITION, THE CASIÑO GROUP ALLEGED,
AMONG OTHERS, THAT THE POWER PLANT PROJECT WOULD CAUSE
GRAVE ENVIRONMENTAL DAMAGE;32 THAT IT WOULD ADVERSELY AFFECT
THE HEALTH OF THE RESIDENTS OF THE MUNICIPALITIES OF
SUBIC,ZAMBALES, MORONG, HERMOSA, AND THE CITY OF
OLONGAPO;33 THAT THE ECC WAS ISSUED AND THE LDA ENTERED INTO
WITHOUT THE PRIOR APPROVAL OF THE CONCERNED SANGGUNIANS AS
REQUIRED UNDER SECTIONS 26 AND 27 OF THE LOCAL GOVERNMENT
CODE (LGC);34 THAT THE LDA WAS ENTERED INTO WITHOUT SECURING A
PRIOR CERTIFICATION FROM THE NATIONAL COMMISSION ON
INDIGENOUS PEOPLES (NCIP) AS REQUIRED UNDER SECTION 59 OF
RA8371 OR THE INDIGENOUS PEOPLES’ RIGHTS ACT OF 1997 (IPRA
LAW);35 THAT SECTION 8.3 OF DENR ADMINISTRATIVE ORDER NO. 2003-30
(DAO 2003-30) WHICH ALLOWSAMENDMENTS OF ECCS IS ULTRA
VIRESBECAUSE THE DENR HAS NO AUTHORITY TO DECIDE ON REQUESTS
FOR AMENDMENTS OF PREVIOUSLY ISSUED ECCS IN THE ABSENCE OF A
NEW EIS;36 AND THAT DUE TO THE NULLITY OF SECTION 8.3 OF DAO 2003-
30, ALL AMENDMENTS TO RP ENERGY’S ECC ARE NULL AND VOID.37
ON OCTOBER 29, 2012, THE CA CONDUCTED A PRELIMINARY
CONFERENCE WHEREIN THE PARTIES, WITH THEIR RESPECTIVE
COUNSELS, APPEARED EXCEPT FOR HON. TEODORO A. CASIÑO, HON.
RAFAEL V. MARIANO, HON. EMERENCIA A. DE JESUS, CLEMENTE G.
BAUTISTA, MARIO ESQUILLO, ELLE LATINAZO,EVANGELINE Q.
RODRIGUEZ, AND THE SBMA.38 THE MATTERS TAKEN UP DURING THE
PRELIMINARY CONFERENCE WERE EMBODIED IN THE CA’S RESOLUTION
DATED NOVEMBER 5, 2012, TO WIT:
I. ISSUES
A. PETITIONERS (CASIÑO GROUP)
1. WHETHER X X X THE DENR ENVIRONMENTAL COMPLIANCE
CERTIFICATE (‘ECC’ X X X) IN FAVOR OF RP ENERGY FOR A 2X150 MW
COAL-FIRED THERMAL POWER PLANT PROJECT (‘POWER PLANT,’ X X X )
AND ITS AMENDMENT TO 1X300 MW POWER PLANT, AND THE LEASE AND
DEVELOPMENT AGREEMENT BETWEEN SBMA AND RP ENERGY COMPLIED
WITH THE CERTIFICATION PRECONDITION AS REQUIRED UNDER SECTION
59 OF REPUBLIC ACT NO. 8371 OR THE INDIGENOUS PEOPLE’S RIGHTS
ACT OF 1997 (‘IPRA LAW,’ X X X);
2. WHETHER X X X RP ENERGY CAN PROCEED WITH THE CONSTRUCTION
AND OPERATION OF THE 1X300 MW POWER PLANT WITHOUT PRIOR
CONSULTATION WITH AND APPROVAL OF THE CONCERNED LOCAL
GOVERNMENT UNITS (‘LGUS,’ X X X ), PURSUANT TO SECTIONS 26 AND 27
OF REPUBLIC ACT NO. 7160 OR THE LOCAL GOVERNMENT CODE;
3. WHETHER X X X SECTION 8.3 OF DENRADMINISTRATIVE ORDER NO.
2003-30 (‘DAO NO. 2003-30,’ X X X ) PROVIDING FOR THE AMENDMENT OF
AN ECC IS NULL AND VOID FOR BEING ULTRA VIRES; AND
4. WHETHER X X X THE AMENDMENT OF RPENERGY’S ECC UNDER
SECTION 8.3 OF DAO NO. 2003-30 IS NULL AND VOID.
B. RESPONDENT RP ENERGY
1. WHETHER X X X SECTION 8.3 OF DAO NO. 2003-30 CAN BE
COLLATERALLY ATTACKED;
1.1 WHETHER X X X THE SAME IS VALID UNTIL ANNULLED;
2. WHETHER X X X PETITIONERS EXHAUSTED THEIR ADMINISTRATIVE
REMEDIES WITH RESPECT TO THE AMENDED ECC FOR THE 1X300 MW
POWER PLANT;
2.1 WHETHER X X X THE INSTANT PETITION IS PROPER;
3. WHETHER X X X RP ENERGYCOMPLIED WITH ALL THE
PROCEDURES/REQUIREMENTS FOR THE ISSUANCE OF THE DENR ECC
AND ITS AMENDMENT;
3.1 WHETHER X X X A CERTIFICATE OF NON-OVERLAP FROM THE
NATIONAL COMMISSION ON INDIGENOUS PEOPLES IS APPLICABLE IN THE
INSTANT CASE;
4. WHETHER X X X THE LGU’S APPROVAL UNDER SECTIONS 26 AND 27 OF
THE LOCAL GOVERNMENT CODE IS NECESSARYFOR THE ISSUANCE OF
THE DENR ECC AND ITS AMENDMENTS, AND WHAT CONSTITUTES LGU
APPROVAL;
5. WHETHER X X X THERE IS A THREATENED OR ACTUAL VIOLATION OF
ENVIRONMENTAL LAWS TO JUSTIFY THE PETITION;
5.1 WHETHER X X X THE APPROVED 1X300 MW POWER PLANT COMPLIED
WITH THE ACCEPTED LEGAL STANDARDS ON THERMAL POLLUTION OF
COASTAL WATERS, AIR POLLUTION, WATER POLLUTION, AND ACID
DEPOSITS ON AQUATIC AND TERRESTRIAL ECOSYSTEMS; AND
6. WHETHER X X X THE INSTANT PETITION SHOULD BE DISMISSED FOR
FAILURE TO COMPLY WITH THE REQUIREMENTS OF
PROPERVERIFICATION AND CERTIFICATION OF NONFORUM SHOPPING
WITH RESPECT TO SOME PETITIONERS.
C. RESPONDENT DENR SECRETARY PAJE
1. WHETHER X X X THE ISSUANCE OF THE DENR ECC AND ITS
AMENDMENT IN FAVOR OF RP ENERGY REQUIRES COMPLIANCE WITH
SECTION 59 OF THE IPRA LAW, AS WELL AS SECTIONS 26 AND 27 OF THE
LOCAL GOVERNMENT CODE;
2. WHETHER X X X SECTION 8.3 OF DAO NO. 2003-30 CAN BE
COLLATERALLY ATTACKED IN THIS PROCEEDING; AND
3. WHETHER X X X SECTION 8.3 OF DAO NO. 2003-30 IS VALID.
II. ADMISSIONS/DENIALS
PETITIONERS, THROUGH ATTY. RIDON, ADMITTEDALL THE ALLEGATIONS
IN RP ENERGY’S VERIFIED RETURN, EXCEPT THE FOLLOWING:
1. PARAGRAPHS 1.4 TO 1.7;
2. PARAGRAPHS 1.29 TO 1.32; AND
3. PARAGRAPHS 1.33 TO 1.37.
PETITIONERS MADE NO SPECIFIC DENIAL WITHRESPECT TO THE
ALLEGATIONS OF DENR SECRETARY PAJE’S VERIFIED RETURN. X X X
RESPONDENT RP ENERGY PROPOSED THE FOLLOWING STIPULATIONS,
WHICH WERE ALL ADMITTED BY PETITIONERS, THROUGH ATTY. RIDON,
VIZ:
1. THE 1X300 MW POWER PLANT IS NOT YET OPERATIONAL;
2. AT PRESENT, THERE IS NO ENVIRONMENTAL DAMAGE;
3. THE 1X300 MW POWER PLANT PROJECT IS SITUATED WITHIN THE
SUBIC SPECIAL ECONOMIC ZONE; AND
4. APART FROM THE INSTANT CASE, PETITIONERS HAVE NOT
CHALLENGED THE VALIDITY OF SECTION 8.3 OF DAO NO. 2003-30.
PUBLIC RESPONDENT DENR SECRETARY PAJE DID NOT PROPOSE ANY
MATTER FOR STIPULATION.39
THEREAFTER, TRIAL ENSUED.
THE CASIÑO GROUP PRESENTED THREE WITNESSES, NAMELY: (1)
RAYMOND V. PALATINO, A TWO-TERM REPRESENTATIVEOF THE
KABATAANPARTYLIST IN THE HOUSE OF REPRESENTATIVES;40 (2) ALEX C.
HERMOSO, THE CONVENOR OF THE ZAMBALES-OLONGAPO CITY CIVIL
SOCIETY NETWORK,A DIRECTOR OF THE PREDA41 FOUNDATION, AND A
MEMBER OF THE ZAMBALES CHAPTER OF THE KAYA NATINMOVEMENT
AND THE ZAMBALES CHAPTER OF THE PEOPLE POWER VOLUNTEERS
FOR REFORM;42 AND (3) RAMON LACBAIN, THE VICEGOVERNOR OF THE
PROVINCE OF ZAMBALES.43
RP ENERGY PRESENTED FIVE WITNESSES,NAMELY: (1) JUNISSEP.
MERCADO (MS. MERCADO), AN EMPLOYEE OF GHD AND THE PROJECT
DIRECTOROF ONGOING PROJECTS FOR RP ENERGY REGARDING THE
PROPOSED POWER PLANT PROJECT;44 (2) JUHA SARKKI (ENGR. SARKKI),
A MASTER OF SCIENCE DEGREE HOLDER INCHEMICAL ENGINEERING;45 (3)
HENRY K. WONG, A DEGREE HOLDER OF BACHELOR OF SCIENCE MAJOR
IN MECHANICAL ENGINEERING FROM WORCESTER POLYTECHNIC
INSTITUTE;46 (4) DR. ELY ANTHONY R. OUANO (DR. OUANO), A LICENSED
CHEMICAL ENGINEER, SANITARY ENGINEER, AND ENVIRONMENTAL
PLANNER IN THE PHILIPPINES;47 AND (5) DAVID C. EVANGELISTA (MR.
EVANGELISTA), A BUSINESS DEVELOPMENT ANALYST WORKING FOR RP
ENERGY.48
SBMA, FOR ITS PART, PRESENTED ITS LEGAL DEPARTMENT MANAGER,
ATTY. VON F. RODRIGUEZ (ATTY. RODRIGUEZ).49
THE DENR, HOWEVER, PRESENTED NO EVIDENCE.50
MEANWHILE, ON OCTOBER 31, 2012, A CERTIFICATE OF NON-OVERLAP
(CNO) WAS ISSUED IN CONNECTION WITH RP ENERGY’S APPLICATION
FOR THE 2X300-MW COAL-FIRED POWER PLANT.51
ON NOVEMBER 15, 2012, THE DENR-EMB GRANTED RP ENERGY’S
APPLICATION FOR THE THIRD AMENDMENT TO ITS ECC, APPROVING THE
CONSTRUCTION AND OPERATION OF A 2X300-MW COAL-FIRED POWER
PLANT, AMONG OTHERS.52
RULING OF THE COURT OF APPEALS
ON JANUARY 30, 2013, THE CA RENDEREDA DECISION DENYING THE
PRIVILEGE OF THE WRIT OF KALIKASANAND THE APPLICATION FOR AN
ENVIRONMENT PROTECTION ORDER DUE TO THE FAILURE OF THE
CASIÑO GROUP TO PROVE THAT ITS CONSTITUTIONAL RIGHT TO A
BALANCED AND HEALTHFUL ECOLOGY WAS VIOLATED OR
THREATENED.53 THE CA LIKEWISE FOUND NO REASON TO NULLIFY
SECTION 8.3 OFDAO NO. 2003-30. IT SAID THAT THE PROVISION WAS NOT
ULTRA VIRES,AS THE EXPRESS POWER OF THE SECRETARY OF THE
DENR, THE DIRECTOR AND REGIONAL DIRECTORS OF THE EMB TO ISSUE
AN ECC IMPLIEDLY INCLUDES THE INCIDENTAL POWER TO AMEND THE
SAME.54 IN ANY CASE, THE CA RULED THAT THE VALIDITY OF THE SAID
SECTION COULD NOT BECOLLATERALLY ATTACKED IN A PETITION FOR A
WRIT OF KALIKASAN.55
NONETHELESS, THE CA RESOLVED TO INVALIDATE THE ECC DATED
DECEMBER 22, 2008 FOR NON-COMPLIANCE WITH SECTION 59 OF THE
IPRA LAW 56 AND SECTIONS 26 AND 27 OF THE LGC57 AND FOR FAILURE OF
LUIS MIGUEL ABOITIZ (MR. ABOITIZ), DIRECTOR OF RP ENERGY, TO AFFIX
HIS SIGNATURE IN THE SWORN STATEMENT OF FULL RESPONSIBILITY,
WHICH IS AN INTEGRAL PART OF THE ECC.58 ALSO DECLARED INVALID
WERE THE ECC FIRST AMENDMENT DATED JULY 8, 2010 AND THE ECC
SECOND AMENDMENT DATED MAY 26, 2011 IN VIEW OF THE FAILURE OF
RP ENERGY TO COMPLY WITH THE RESTRICTIONS SET FORTH IN THE
ECC, WHICH SPECIFICALLY REQUIRE THAT "ANY EXPANSION OF THE
PROJECT BEYOND THE PROJECT DESCRIPTION OR ANY CHANGE IN THE
ACTIVITY X X X SHALL BE SUBJECT TO A NEW ENVIRONMENTAL IMPACT
ASSESSMENT."59 HOWEVER, AS TO THE ECC THIRD AMENDMENT DATED
NOVEMBER 15, 2012, THE CA DECIDED NOT TO RULE ON ITS VALIDITY
SINCE IT WAS NOT RAISED AS AN ISSUE DURING THE PRELIMINARY
CONFERENCE.60
THE CA ALSO INVALIDATED THE LDA ENTERED INTO BY SBMA AND RP
ENERGY AS IT WAS ISSUED WITHOUT THE PRIOR CONSULTATION AND
APPROVAL OF ALL THE SANGGUNIANS CONCERNED AS REQUIRED
UNDER SECTIONS 26 AND 27 OF THE LGC,61 AND IN VIOLATION OF
SECTION 59, CHAPTER VIII OFTHE IPRA LAW, WHICH ENJOINS ALL
DEPARTMENTS AND OTHER GOVERNMENTAL AGENCIES FROM GRANTING
ANY LEASE WITHOUT A PRIOR CERTIFICATION THAT THE AREA AFFECTED
DOES NOT OVERLAP WITH ANY ANCESTRAL DOMAIN.62 THE CA NOTED
THAT NO CNO WAS SECURED FROM THE NCIP PRIOR TO THE EXECUTION
OF THE LDA,63 AND THAT THE CNO DATED OCTOBER 31, 2012 WAS
SECURED DURING THE PENDENCY OF THE CASE AND WAS ISSUED IN
CONNECTION WITH RP ENERGY’S APPLICATION FOR A 2X300-MW
COALFIRED POWER PLANT.64
THUS, THE CA DISPOSED OF THE CASE IN THIS WISE:
WHEREFORE, PREMISES CONSIDERED, JUDGMENT IS HEREBY
RENDERED DENYING THE PRIVILEGE OF THE WRIT OF KALIKASAN AND
THE APPLICATION FOR AN ENVIRONMENTAL PROTECTION ORDER. THE
PRAYER TO DECLARE THE NULLITY OF SECTION 8.3 OF THE DENR
ADMINISTRATIVE ORDER NO. 2003-30 FOR BEING ULTRA VIRES IS DENIED;
AND THE FOLLOWING ARE ALL DECLARED INVALID:
1. THE ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC REF. CODE:
0804-011-4021) DATED 22 DECEMBER 2008 ISSUED IN FAVOR OF
RESPONDENT REDONDO PENINSULA ENERGY, INC. BY FORMER
SECRETARY JOSE L. ATIENZA, JR. OF THE DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES;
2. THE ECC FIRST AMENDMENT DATED 08 JULY 2010 AND ECC SECOND
AMENDMENT DATED 26 MAY 2011, BOTH ISSUED IN FAVOR
OFRESPONDENT REDONDO PENINSULA ENERGY, INC. BY OIC DIRECTOR
ATTY. JUAN MIGUEL T. CUNAOF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, ENVIRONMENTAL MANAGEMENT BUREAU; AND
3. THE LEASE AND DEVELOPMENT AGREEMENT DATED 08 JUNE 2010
ENTERED INTO BY RESPONDENTS SUBIC BAY METROPOLITAN
AUTHORITY AND REDONDO PENINSULA ENERGY, INC. INVOLVING A
PARCEL OF LAND CONSISTING OF ₱380,004.456 SQUARE METERS.
SO ORDERED.65
THE DENR AND SBMA SEPARATELY MOVED FOR RECONSIDERATION.66 RP
ENERGY FILED A MOTION FOR PARTIAL RECONSIDERATION,67 ATTACHING
THERETO A SIGNED STATEMENT OF ACCOUNTABILITY.68 THE CASIÑO
GROUP, ON THE OTHER HAND, FILED OMNIBUS MOTIONS FOR
CLARIFICATION AND RECONSIDERATION.69
ON MAY 22, 2013, THE CAISSUED A RESOLUTION70 DENYING THE
AFORESAID MOTIONS FOR LACK OF MERIT. THE CA OPINED THAT THE
RELIEFS IT GRANTED IN ITS DECISION ARE ALLOWED UNDER SECTION 15,
RULE 7 OF THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES AS
THE RELIEFS ENUMERATED THEREIN ARE BROAD, COMPREHENSIVE, AND
NONEXCLUSIVE.71 IN FACT, PARAGRAPH (E) OF THE SAIDPROVISION
ALLOWS THE GRANTING OF "SUCH OTHER RELIEFS" IN CONSONANCE
WITH THE OBJECTIVE, PURPOSE, AND INTENT OF THE RULES.72 SBMA’S
CONTENTION THAT THE STOPPAGE OF A PROJECT FOR NON-
COMPLIANCE WITH SECTION 59 OF THE IPRA LAW MAY ONLY BE DONE BY
THE INDIGENOUS CULTURAL COMMUNITIES OR INDIGENOUS PEOPLES
WAS ALSO BRUSHED ASIDE BY THE CA AS THE CASIÑO GROUP DID NOT
FILE A CASE UNDER THE IPRA LAW BUT A PETITION FOR A WRIT OF
KALIKASAN, WHICH IS AVAILABLE TO ALL NATURAL OR JURIDICAL
PERSONS WHOSE CONSTITUTIONAL RIGHT TO A BALANCED AND
HEALTHFUL ECOLOGY IS VIOLATED, OR THREATENED TO BE
VIOLATED.73 AS TO RP ENERGY’S BELATED SUBMISSION OF A SIGNED
STATEMENT OF ACCOUNTABILITY, THE CA GAVENO WEIGHT AND
CREDENCETO IT AS THE BELATED SUBMISSION OF SUCH DOCUMENT,
LONG AFTER THE PRESENTATION OF EVIDENCE OF THE PARTIES HAD
BEEN TERMINATED, IS NOT IN ACCORD WITH THE RULES OF FAIR
PLAY.74 NEITHER WAS THE CA SWAYED BY THE ARGUMENT THAT THE
OMITTED SIGNATURE OF LUIS MIGUEL ABOITIZ IS A MERE FORMAL
DEFECT, WHICH DOES NOT AFFECT THE VALIDITY OF THE ENTIRE
DOCUMENT.75 THE DISPOSITIVE PORTION OF THE RESOLUTION READS:
WHEREFORE,PREMISES CONSIDERED, RESPONDENTS SUBIC BAY
METROPOLITAN AUTHORITY’S MOTION FOR RECONSIDERATION DATED 18
FEBRUARY 2013, DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES SECRETARY RAMON JESUS P. PAJE’S MOTION FOR
RECONSIDERATION DATED 19 FEBRUARY 2013, AND REDONDO
PENINSULA ENERGY, INC.’S MOTION FOR PARTIAL RECONSIDERATION
DATED 22 FEBRUARY 2013, AS WELL AS PETITIONERS’ OMNIBUSMOTIONS
FOR CLARIFICATION AND RECONSIDERATION DATED 25 FEBRUARY
2013,ARE ALL DENIED FOR LACK OF MERIT.
SO ORDERED.76
UNSATISFIED, THE PARTIES APPEALED TO THIS COURT.
THE CASIÑO GROUP’S ARGUMENTS
THE CASIÑO GROUP, IN ESSENCE, ARGUES THAT IT IS ENTITLED TO A
WRIT OF KALIKASAN AS IT WAS ABLE TO PROVE THAT THE OPERATION OF
THE POWER PLANT WOULD CAUSE ENVIRONMENTAL DAMAGE AND
POLLUTION, AND THAT THISWOULD ADVERSELY AFFECT THE RESIDENTS
OF THE PROVINCES OF BATAAN AND ZAMBALES, PARTICULARLY THE
MUNICIPALITIES OF SUBIC, MORONG, HERMOSA, AND THE CITY OF
OLONGAPO. IT CITES AS BASIS RP ENERGY’S EIS, WHICH ALLEGEDLY
ADMITS THAT ACID RAIN MAY OCCUR IN THE COMBUSTION OF
COAL;77 THAT THE INCIDENCE OF ASTHMA ATTACKS AMONG RESIDENTS
IN THE VICINITY OF THE PROJECT SITE MAY INCREASEDUE TO EXPOSURE
TO SUSPENDED PARTICLES FROM PLANT OPERATIONS;78 AND THAT
INCREASED SULFUR OXIDES (SOX) AND NITROGEN OXIDES (NOX)
EMISSIONS MAY OCCUR DURING PLANT OPERATIONS.79 IT ALSO CLAIMS
THAT WHEN THE SBMA CONDUCTED SOCIAL ACCEPTABILITY POLICY
CONSULTATIONS WITH DIFFERENT STAKEHOLDERS ON THE PROPOSED
POWER PLANT, THE RESULTS INDICATED THAT THE OVERALL
PERSUASION OF THE PARTICIPANTS WAS A CLEAR AVERSION TO THE
PROJECT DUE TO ENVIRONMENTAL, HEALTH, ECONOMIC AND SOCIO-
CULTURAL CONCERNS.80 FINALLY, IT CONTENDS THAT THE ECC THIRD
AMENDMENT SHOULD ALSO BE NULLIFIED FOR FAILURE TO COMPLY
WITH THE PROCEDURES AND REQUIREMENTS FOR THE ISSUANCE OF
THE ECC.81
THE DENR’S ARGUMENTS
THE DENR IMPUTES ERROR ON THE CAIN INVALIDATING THE ECC AND ITS
AMENDMENTS, ARGUING THAT THE DETERMINATION OF THE VALIDITY OF
THE ECC AS WELL AS ITS AMENDMENTS IS BEYOND THE SCOPE OF A
PETITION FOR A WRIT OF KALIKASAN.82 AND EVEN IF IT IS WITHIN THE
SCOPE, THERE IS NO REASON TO INVALIDATE THE ECC AND ITS
AMENDMENTS AS THESE WERE ISSUED IN ACCORDANCE WITH DAO NO.
2003-30.83 THE DENR ALSO INSISTS THAT CONTRARY TO THE VIEW OF THE
CA, A NEW EIS WAS NO LONGER NECESSARY SINCE THE FIRST EIS WAS
STILL WITHIN THE VALIDITY PERIOD WHEN THE FIRST AMENDMENT WAS
REQUESTED, AND THAT THIS IS PRECISELY THE REASON RP ENERGY
WAS ONLY REQUIRED TO SUBMIT AN EPRMP IN SUPPORT OF ITS
APPLICATION FOR THE FIRST AMENDMENT.84 AS TO THE SECOND
AMENDMENT, THE DENR-EMB ONLY REQUIRED RP ENERGY TO SUBMIT
DOCUMENTS TO SUPPORT THE PROPOSED REVISION CONSIDERING
THAT THE CHANGE IN CONFIGURATION OF THE POWER PLANT PROJECT,
FROM 2X150MW TO 1X300MW, WAS NOT SUBSTANTIAL.85 FURTHERMORE,
THE DENR ARGUES THAT NO PERMITS, LICENSES, AND/OR CLEARANCES
FROM OTHER GOVERNMENT AGENCIES ARE REQUIRED IN THE
PROCESSING AND APPROVAL OF THE ECC.86 THUS, NON-COMPLIANCE
WITH SECTIONS 26 AND 27 OF THE LGC AS WELL AS SECTION 59 OFTHE
IPRA LAW IS NOT A GROUND TO INVALIDATE THE ECC AND ITS
AMENDMENTS.87 THE DENR FURTHER POSITS THAT THE ECC IS NOT A
CONCESSION, PERMIT, OR LICENSE BUT IS A DOCUMENT CERTIFYING
THAT THE PROPONENT HAS COMPLIED WITH ALL THE REQUIREMENTS OF
THE EIS SYSTEM AND HAS COMMITTED TO IMPLEMENT THE APPROVED
ENVIRONMENTAL MANAGEMENT PLAN.88 THE DENR INVOKES
SUBSTANTIAL JUSTICE SO THAT THE BELATEDLY SUBMITTED CERTIFIED
TRUE COPY OF THE ECC CONTAINING THE SIGNATURE OF MR. ABOITIZ
ON THE STATEMENT OF ACCOUNTABILITY MAY BE ACCEPTED AND
ACCORDED WEIGHT AND CREDENCE.89
SBMA’S ARGUMENTS
FOR ITS PART, SBMA ASSERTS THAT SINCE THE CA DID NOT ISSUE A
WRIT OF KALIKASAN, IT SHOULD NOT HAVE INVALIDATED THE LDA AND
THAT IN DOING SO, THE CA ACTED BEYOND ITS POWERS.90 SBMA
LIKEWISE PUTS IN ISSUE THE LEGAL CAPACITY OF THE CASIÑO GROUP
TO IMPUGN THE VALIDITY OF THE LDA91 AND ITS FAILURE TO EXHAUST
ADMINISTRATIVE REMEDIES.92 IN ANY CASE, SBMA CONTENDS THAT
THERE IS NO LEGAL BASIS TO INVALIDATE THE LDA AS PRIOR
CONSULTATION UNDER SECTIONS 26 AND 27 OF THE LGC IS NOT
REQUIRED IN THIS CASE CONSIDERING THAT THE AREA IS WITHIN THE
SBFZ.93 UNDER RA 7227, IT IS THE SBMA WHICH HAS EXCLUSIVE
JURISDICTION OVER PROJECTS AND LEASES WITHIN THE SBFZ AND THAT
IN CASE OF CONFLICT BETWEEN THE LGC AND RA 7227, IT IS THE LATTER,
A SPECIAL LAW, WHICH MUST PREVAIL.94 MOREOVER, THE LACK OF
PRIOR CERTIFICATION FROM THE NCIP IS ALSONOT A GROUND TO
INVALIDATE A CONTRACT.95 IF AT ALL, THE ONLY EFFECT OF NON-
COMPLIANCE WITH THE SAID REQUIREMENT UNDER SECTION 59 OF THE
IPRA LAW IS THE STOPPAGE OR SUSPENSION OF THE
PROJECT.96 BESIDES, THE SUBSEQUENT ISSUANCE OF A CNO HAS CURED
ANY LEGAL DEFECT FOUND IN THE LDA.97
RP ENERGY’S ARGUMENTS
RP ENERGY QUESTIONS THE PROPRIETYOF THE RELIEFS GRANTED BY
THE CA CONSIDERING THAT IT DID NOT ISSUE A WRIT OF KALIKASANIN
FAVOR OF THE CASIÑO GROUP.98 RP ENERGY IS OF THE VIEW THAT
UNLESS A WRIT OF KALIKASANIS ISSUED, THE CA HAS NO POWER TO
GRANT THE RELIEFS PRAYED FOR IN THE PETITION.99 AND EVEN IF IT
DOES, THE RELIEFS ARE LIMITED TO THOSE ENUMERATED IN SECTION
15, RULE 7 OF THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES
AND THAT THE PHRASE "SUCH OTHER RELIEFS" IN PARAGRAPH (E)
SHOULD BE LIMITED ONLY TO THOSE OF THE SAME CLASS OR GENERAL
NATURE AS THE FOUR OTHER RELIEFS ENUMERATED.100 AS TO THE
VALIDITY OF THE LDA, THE ECC AND ITS AMENDMENTS, THE ARGUMENTS
OF RP ENERGY ARE BASICALLY THE SAME ARGUMENTS INTERPOSED BY
SBMA AND THE DENR. RP ENERGY MAINTAINS THAT THE ECC AND ITS
AMENDMENTS WERE OBTAINED IN COMPLIANCE WITH THE DENR RULES
AND REGULATIONS;101 THAT A CNO IS NOT NECESSARY IN THE
EXECUTION OF ANLDA AND IN THE ISSUANCE OF THE ECC AND ITS
AMENDMENTS;102 AND THAT PRIOR APPROVAL OF THE LOCAL
GOVERNMENTS, WHICH MAY BE AFFECTED BY THE PROJECT, ARE NOT
REQUIRED BECAUSE UNDER RA 7227, THE DECISION OF THE SBMA SHALL
PREVAIL IN MATTERS AFFECTING THE SUBIC SPECIAL ECONOMIC ZONE
(SSEZ), EXCEPT IN MATTERS INVOLVING DEFENSE AND SECURITY.103 RP
ENERGY ALSO RAISES THE ISSUE OF NON-EXHAUSTION OF
ADMINISTRATIVE REMEDIES ON THE PART OF THE CASIÑO
GROUP.104 PRELIMINARIES
THIS CASE AFFORDS US AN OPPORTUNITY TO EXPOUND ON THE NATURE
AND SCOPE OF THE WRIT OF KALIKASAN. IT PRESENTS SOME
INTERESTING QUESTIONS ABOUT LAW AND JUSTICE IN THE CONTEXT OF
ENVIRONMENTAL CASES, WHICH WE WILL TACKLE IN THE MAIN BODY OF
THIS DECISION.
BUT WE SHALL FIRST ADDRESS SOME PRELIMINARY MATTERS, IN VIEW
OF THE MANNER BY WHICH THE APPELLATE COURT DISPOSED OF THIS
CASE.
THE RULES ON THE WRIT OF KALIKASAN,105 WHICH IS PART III OF THE
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES,106 WAS ISSUED BY
THE COURT PURSUANT TO ITS POWER TO PROMULGATE RULES FOR THE
PROTECTION AND ENFORCEMENT OF CONSTITUTIONAL RIGHTS,107 IN
PARTICULAR, THE INDIVIDUAL’S RIGHTTO A BALANCED AND HEALTHFUL
ECOLOGY.108 SECTION 1 OF RULE 7 PROVIDES:
SECTION 1. NATURE OF THE WRIT.- THE WRIT IS A REMEDY AVAILABLE TO
A NATURAL OR JURIDICAL PERSON, ENTITY AUTHORIZED BY LAW,
PEOPLE’S ORGANIZATION, NONGOVERNMENTAL ORGANIZATION, OR ANY
PUBLIC INTEREST GROUP ACCREDITED BY OR REGISTERED WITH ANY
GOVERNMENT AGENCY, ON BEHALF OF PERSONS WHOSE
CONSTITUTIONAL RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY IS
VIOLATED, OR THREATENED WITH VIOLATION BY AN UNLAWFUL ACT OR
OMISSION OF A PUBLIC OFFICIAL OR EMPLOYEE, OR PRIVATE INDIVIDUAL
OR ENTITY, INVOLVING ENVIRONMENTAL DAMAGE OF SUCH MAGNITUDE
AS TO PREJUDICE THE LIFE, HEALTH OR PROPERTY OF INHABITANTS IN
TWO OR MORE CITIES OR PROVINCES.
THE WRIT IS CATEGORIZED AS A SPECIAL CIVIL ACTION AND WAS, THUS,
CONCEPTUALIZED AS AN EXTRAORDINARY REMEDY,WHICH AIMS TO
PROVIDE JUDICIAL RELIEF FROM THREATENED OR ACTUAL VIOLATION/S
OF THE CONSTITUTIONAL RIGHT TO A BALANCED AND HEALTHFUL
ECOLOGY OF A MAGNITUDE OR DEGREE OF DAMAGE THAT TRANSCENDS
POLITICAL AND TERRITORIAL BOUNDARIES.109 IT IS INTENDED "TO
PROVIDE A STRONGERDEFENSE FOR ENVIRONMENTAL RIGHTS
THROUGH JUDICIAL EFFORTS WHERE INSTITUTIONAL ARRANGEMENTS
OF ENFORCEMENT, IMPLEMENTATION AND LEGISLATION HAVE FALLEN
SHORT"110 AND SEEKS "TO ADDRESS THE POTENTIALLY EXPONENTIAL
NATURE OF LARGE-SCALE ECOLOGICAL THREATS."111
UNDER SECTION 1 OF RULE 7, THE FOLLOWING REQUISITES MUST BE
PRESENT TO AVAIL OF THIS EXTRAORDINARY REMEDY: (1) THERE IS AN
ACTUAL OR THREATENED VIOLATION OF THE CONSTITUTIONAL RIGHT TO
A BALANCED AND HEALTHFUL ECOLOGY; (2) THE ACTUAL OR
THREATENED VIOLATION ARISES FROM AN UNLAWFUL ACT OR OMISSION
OF A PUBLIC OFFICIAL OR EMPLOYEE, OR PRIVATE INDIVIDUAL OR
ENTITY; AND (3) THE ACTUAL OR THREATENED VIOLATION INVOLVES OR
WILL LEAD TO AN ENVIRONMENTAL DAMAGE OF SUCH MAGNITUDE AS TO
PREJUDICE THE LIFE, HEALTH OR PROPERTY OFINHABITANTS IN TWO OR
MORE CITIES OR PROVINCES.
EXPECTEDLY, THE RULES DO NOT DEFINETHE EXACT NATURE OR
DEGREE OF ENVIRONMENTAL DAMAGE BUT ONLY THAT IT MUST BE
SUFFICIENTLYGRAVE, IN TERMS OF THE TERRITORIAL SCOPE OF SUCH
DAMAGE, SO AS TOCALL FOR THE GRANT OFTHIS EXTRAORDINARY
REMEDY. THE GRAVITY OFENVIRONMENTAL DAMAGE SUFFICIENT TO
GRANT THE WRIT IS, THUS, TO BE DECIDED ON A CASE-TO-CASE BASIS.
IF THE PETITIONER SUCCESSFULLY PROVES THE FOREGOING
REQUISITES, THE COURT SHALL RENDER JUDGMENT GRANTING THE
PRIVILEGE OF THE WRIT OF KALIKASAN. OTHERWISE, THE PETITION
SHALL BE DENIED. IF THE PETITION IS GRANTED, THE COURT MAY GRANT
THE RELIEFS PROVIDED FOR UNDER SECTION 15OF RULE 7, TO WIT:
SECTION 15. JUDGMENT.- WITHIN SIXTY (60) DAYSFROM THE TIME THE
PETITION IS SUBMITTED FOR DECISION, THE COURT SHALL RENDER
JUDGMENT GRANTING OR DENYING THE PRIVILEGE OF THE WRIT OF
KALIKASAN.
THE RELIEFS THAT MAY BE GRANTED UNDER THE WRIT ARE THE
FOLLOWING:
(A) DIRECTING RESPONDENT TO PERMANENTLY CEASE AND DESIST
FROM COMMITTING ACTS OR NEGLECTING THE PERFORMANCE OF A
DUTY IN VIOLATION OF ENVIRONMENTAL LAWS RESULTING IN
ENVIRONMENTAL DESTRUCTION OR DAMAGE;
(B) DIRECTING THE RESPONDENT PUBLIC OFFICIAL, GOVERNMENT
AGENCY, PRIVATE PERSON OR ENTITY TO PROTECT, PRESERVE,
REHABILITATE OR RESTORE THE ENVIRONMENT;
(C) DIRECTING THE RESPONDENT PUBLIC OFFICIAL, GOVERNMENT
AGENCY, PRIVATE PERSON OR ENTITY TO MONITOR STRICT COMPLIANCE
WITH THE DECISION AND ORDERS OF THE COURT;
(D) DIRECTING THE RESPONDENT PUBLIC OFFICIAL, GOVERNMENT
AGENCY, OR PRIVATE PERSON OR ENTITY TO MAKE PERIODIC REPORTS
ON THE EXECUTION OF THE FINAL JUDGMENT; AND
(E) SUCH OTHER RELIEFS WHICH RELATE TO THE RIGHT OF THE PEOPLE
TO A BALANCED AND HEALTHFUL ECOLOGY OR TO THE PROTECTION,
PRESERVATION, REHABILITATION OR RESTORATION OF THE
ENVIRONMENT, EXCEPT THE AWARD OF DAMAGES TO INDIVIDUAL
PETITIONERS.
IT MUST BE NOTED, HOWEVER,THAT THE ABOVE ENUMERATED RELIEFS
ARE NON-EXHAUSTIVE. THE RELIEFS THAT MAY BE GRANTED UNDER THE
WRIT ARE BROAD, COMPREHENSIVE AND NON-EXCLUSIVE.112
PRESCINDING FROM THE ABOVE, THE DENR, SBMA AND RP ENERGY ARE
ONE IN ARGUING THAT THE RELIEFS GRANTED BY THE APPELLATE
COURT, I.E.INVALIDATING THE ECC AND ITS AMENDMENTS, ARE
IMPROPER BECAUSE IT HAD DENIEDTHE PETITION FOR WRIT OF
KALIKASANUPON A FINDING THAT THE CASIÑO GROUP FAILED TO PROVE
THE ALLEGED ENVIRONMENTAL DAMAGE, ACTUAL OR THREATENED,
CONTEMPLATED UNDER THE RULES.
ORDINARILY, NO RELIEFS COULD AND SHOULD BE GRANTED. BUT THE
QUESTION MAY BE ASKED, COULD NOT THE APPELLATE COURT HAVE
GRANTED THE PETITION FOR WRIT OF KALIKASANON THE GROUND OF
THE INVALIDITY OF THE ECC FOR FAILURE TO COMPLY WITH CERTAIN
LAWS AND RULES?
THIS QUESTION IS THE STARTING POINT FOR SETTING UP THE
FRAMEWORK OF ANALYSIS WHICH SHOULD GOVERN WRIT OF KALIKASAN
CASES.
IN THEIR PETITION FOR WRIT OF KALIKASAN,113 THE CASIÑO GROUP’S
ALLEGATIONS, RELATIVE TO THE ACTUAL OR THREATENED VIOLATION OF
THE CONSTITUTIONAL RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY,
MAY BE GROUPED INTO TWO.
THE FIRST SET OF ALLEGATIONS DEALS WITHTHE ACTUAL
ENVIRONMENTAL DAMAGE THAT WILL OCCUR IF THE POWER PLANT
PROJECT ISIMPLEMENTED. THE CASIÑO GROUP CLAIMS THAT THE
CONSTRUCTION AND OPERATION OF THE POWER PLANT WILL RESULT IN
(1) THERMAL POLLUTION OF COASTAL WATERS, (2) AIR POLLUTION DUE
TO DUST AND COMBUSTION GASES, (3) WATER POLLUTION FROM TOXIC
COAL COMBUSTION WASTE, AND (4) ACID DEPOSITION IN AQUATIC AND
TERRESTRIAL ECOSYSTEMS, WHICH WILL ADVERSELY AFFECT THE
RESIDENTS OF THE PROVINCES OF BATAAN AND ZAMBALES,
PARTICULARLY THE MUNICIPALITIES OF SUBIC, MORONG AND HERMOSA,
AND THE CITY OF OLONGAPO.
THE SECOND SET OF ALLEGATIONS DEALS WITH THE FAILURETO
COMPLY WITH CERTAIN LAWS AND RULES GOVERNING OR RELATING TO
THE ISSUANCE OFAN ECC AND AMENDMENTS THERETO. THE CASIÑO
GROUP CLAIMS THAT THE ECC WAS ISSUED IN VIOLATION OF (1) THE
DENR RULES ON THE ISSUANCE AND AMENDMENT OF AN ECC,
PARTICULARLY, DAO 2003-30 AND THE REVISED PROCEDURAL MANUAL
FOR DAO 2003-30 (REVISED MANUAL), (2) SECTION 59 OF THE IPRA
LAW,AND (3) SECTIONS 26 AND 27 OF THE LGC. IN ADDITION, IT CLAIMS
THAT THE LDA ENTERED INTO BETWEEN SBMA AND RP ENERGY
VIOLATED SECTION 59 OF THE IPRA LAW.
AS TO THE FIRST SET OF ALLEGATIONS, INVOLVING ACTUAL DAMAGE TO
THE ENVIRONMENT, IT IS NOT DIFFICULT TO DISCERN THAT, IF THEY ARE
PROVEN, THEN THE PETITION FOR WRIT OF KALIKASAN COULD
CONCEIVABLY BE GRANTED.
HOWEVER, AS TO THE SECOND SET OF ALLEGATIONS, A NUANCED
APPROACH IS WARRANTED. THE POWER OF THE COURTS TO NULLIFY AN
ECC EXISTED EVEN PRIOR TO THE PROMULGATION OF THE RULES ON
THE WRIT OF KALIKASANFOR JUDICIAL REVIEW OF THE ACTS OF
ADMINISTRATIVE AGENCIES OR BODIES HAS LONG BEEN
RECOGNIZED114 SUBJECT, OF COURSE, TO THE DOCTRINE OF
EXHAUSTION OF ADMINISTRATIVE REMEDIES.115
BUT THE ISSUE PRESENTED BEFORE US IS NOTA SIMPLE CASE OF
REVIEWING THE ACTS OF AN ADMINISTRATIVE AGENCY, THE DENR,
WHICH ISSUED THE ECC AND ITS AMENDMENTS. THE CHALLENGE TO THE
VALIDITY OFTHE ECC WAS RAISED IN THE CONTEXT OF A WRIT OF
KALIKASANCASE. THE QUESTION THEN IS, CAN THE VALIDITY OF AN ECC
BE CHALLENGED VIAA WRIT OF KALIKASAN?
WE ANSWER IN THE AFFIRMATIVE SUBJECT TO CERTAIN
QUALIFICATIONS.
AS EARLIER NOTED, THE WRIT OF KALIKASANIS PRINCIPALLY
PREDICATED ON AN ACTUAL OR THREATENED VIOLATION OF THE
CONSTITUTIONAL RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY,
WHICH INVOLVES ENVIRONMENTAL DAMAGE OF A MAGNITUDE THAT
TRANSCENDS POLITICAL AND TERRITORIAL BOUNDARIES. A PARTY,
THEREFORE, WHO INVOKES THE WRIT BASED ON ALLEGED DEFECTS OR
IRREGULARITIES IN THE ISSUANCE OF AN ECC MUST NOT ONLY ALLEGE
AND PROVE SUCH DEFECTS OR IRREGULARITIES, BUT MUSTALSO
PROVIDE A CAUSAL LINK OR, AT LEAST, A REASONABLE CONNECTION
BETWEEN THE DEFECTS OR IRREGULARITIES IN THE ISSUANCE OF AN
ECC AND THE ACTUAL OR THREATENED VIOLATION OF THE
CONSTITUTIONAL RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY OF
THE MAGNITUDE CONTEMPLATED UNDER THE RULES. OTHERWISE, THE
PETITION SHOULD BE DISMISSED OUTRIGHT AND THE ACTION RE-FILED
BEFORE THE PROPER FORUM WITH DUE REGARD TO THE DOCTRINE OF
EXHAUSTION OF ADMINISTRATIVE REMEDIES. THIS MUST BE SO IFWE
ARE TO PRESERVE THE NOBLE AND LAUDABLE PURPOSES OF THE WRIT
AGAINST THOSE WHO SEEK TO ABUSE IT.
AN EXAMPLE OF A DEFECT OR AN IRREGULARITY IN THE ISSUANCE OF AN
ECC, WHICH COULD CONCEIVABLY WARRANT THE GRANTING OF THE
EXTRAORDINARY REMEDY OF THE WRIT OF KALIKASAN, IS A CASE
WHERE THERE ARE SERIOUS AND SUBSTANTIAL MISREPRESENTATIONS
OR FRAUD IN THE APPLICATION FOR THE ECC, WHICH, IF NOT
IMMEDIATELY NULLIFIED, WOULD CAUSE ACTUAL NEGATIVE
ENVIRONMENTAL IMPACTS OF THE MAGNITUDE CONTEMPLATED UNDER
THE RULES, BECAUSE THE GOVERNMENT AGENCIESAND LGUS, WITH THE
FINAL AUTHORITY TO IMPLEMENT THE PROJECT, MAY SUBSEQUENTLY
RELY ON SUCH SUBSTANTIALLY DEFECTIVE OR FRAUDULENT ECC IN
APPROVING THE IMPLEMENTATION OF THE PROJECT.
TO REPEAT, IN CASES OF DEFECTS OR IRREGULARITIES IN THE
ISSUANCE OF AN ECC, IT IS NOT SUFFICIENT TO MERELY ALLEGE SUCH
DEFECTS OR IRREGULARITIES, BUT TO SHOW A CAUSAL LINK OR
REASONABLE CONNECTION WITH THE ENVIRONMENTAL DAMAGE OF THE
MAGNITUDE CONTEMPLATED UNDER THE RULES. IN THE CASE AT BAR,
NO SUCH CAUSAL LINK OR REASONABLE CONNECTION WAS SHOWN OR
EVEN ATTEMPTED RELATIVE TO THE AFORESAID SECOND SET OF
ALLEGATIONS. IT IS A MERE LISTING OF THE PERCEIVED DEFECTS OR
IRREGULARITIES IN THE ISSUANCE OF THE ECC. THIS WOULD HAVEBEEN
SUFFICIENT REASON TO DISALLOW THE RESOLUTION OF SUCH ISSUES IN
A WRIT OF KALIKASAN CASE.
HOWEVER, INASMUCH AS THIS IS THE FIRST TIME THAT WE LAY DOWN
THIS PRINCIPLE, WE HAVE LIBERALLY EXAMINED THE ALLEGED DEFECTS
OR IRREGULARITIES IN THE ISSUANCE OF THE ECC AND FIND THAT
THERE IS ONLY ONE GROUP OF ALLEGATIONS, RELATIVE TO THE ECC,
THAT CAN BE REASONABLY CONNECTED TO ANENVIRONMENTAL
DAMAGEOF THE MAGNITUDE CONTEMPLATED UNDER THE RULES. THIS IS
WITHRESPECT TO THE ALLEGATION THAT THERE WAS NO
ENVIRONMENTAL IMPACT ASSESSMENT RELATIVE TO THE FIRST AND
SECOND AMENDMENTS TO THE SUBJECT ECC. IF THIS WERE TRUE, THEN
THE IMPLEMENTATION OF THE PROJECT CAN CONCEIVABLY ACTUALLY
VIOLATE OR THREATEN TO VIOLATE THE RIGHT TO A HEALTHFUL AND
BALANCED ECOLOGY OF THE INHABITANTS NEAR THE VICINITY OF THE
POWER PLANT. THUS, THE RESOLUTION OF SUCH AN ISSUE COULD
CONCEIVABLY BE RESOLVED IN A WRIT OF KALIKASAN CASE PROVIDED
THAT THE CASE DOES NOT VIOLATE, OR IS ANEXCEPTION TO THE
DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES AND
PRIMARY JURISDICTION.116
AS TO THE CLAIMS THAT THE ISSUANCE OF THE ECC VIOLATED THE IPRA
LAW AND LGC AND THAT THE LDA, LIKEWISE, VIOLATED THE IPRA LAW,
WE FIND THE SAME NOT TO BE WITHIN THE COVERAGE OF THE WRIT OF
KALIKASANBECAUSE, ASSUMING THERE WAS NON-COMPLIANCE
THEREWITH, NO REASONABLE CONNECTION CAN BE MADE TO AN
ACTUAL OR THREATENED VIOLATION OF THE RIGHT TO A BALANCED AND
HEALTHFUL ECOLOGY OF THE MAGNITUDE CONTEMPLATED UNDER THE
RULES.
TO ELABORATE, THE ALLEGED LACKOF APPROVAL OF THE CONCERNED
SANGGUNIANS OVER THE SUBJECT PROJECT WOULD NOT LEAD TOOR IS
NOT REASONABLY CONNECTED WITH ENVIRONMENTAL DAMAGE BUT,
RATHER, IT IS AN AFFRONT TO THE LOCAL AUTONOMY OF LGUS.
SIMILARLY, THE ALLEGED LACK OF A CERTIFICATE PRECONDITION THAT
THE PROJECT SITE DOES NOT OVERLAP WITH AN ANCESTRAL DOMAIN
WOULD NOT RESULT INOR IS NOT REASONABLY CONNECTED WITH
ENVIRONMENTAL DAMAGE BUT, RATHER, IT IS AN IMPAIRMENT OF THE
RIGHT OF INDIGENOUS CULTURAL COMMUNITIES/INDIGENOUS PEOPLES
(ICCS/IPS) TO THEIR ANCESTRAL DOMAINS. THESE ALLEGED
VIOLATIONSCOULD BE THE SUBJECT OF APPROPRIATE REMEDIES
BEFORE THE PROPER ADMINISTRATIVE BODIES (LIKE THE NCIP) OR A
SEPARATE ACTION TO COMPEL COMPLIANCE BEFORE THE COURTS, AS
THE CASE MAY BE. HOWEVER, THE WRIT OF KALIKASAN WOULD NOT BE
THE APPROPRIATE REMEDY TO ADDRESS AND RESOLVE SUCH ISSUES.
BE THAT AS IT MAY, WE SHALL RESOLVE BOTH THE ISSUES PROPER IN A
WRIT OF KALIKASAN CASE AND THOSE WHICH ARE NOT, COMMINGLED AS
IT WERE HERE, BECAUSE OF THE EXCEPTIONAL CHARACTER OF THIS
CASE. WE TAKE JUDICIAL NOTICE OF THE LOOMING POWER CRISIS THAT
OUR NATION FACES. THUS, THE RESOLUTION OF ALL THE ISSUES IN THIS
CASE IS OF UTMOST URGENCY AND NECESSITY IN ORDER TO FINALLY
DETERMINE THE FATE OF THE PROJECT CENTER OF THIS
CONTROVERSY. IF WE WERE TO RESOLVE ONLY THE ISSUES PROPER IN
A WRIT OF KALIKASANCASE AND DISMISS THOSE NOT PROPER
THEREFOR, THAT WILL LEAVE SUCH UNRESOLVED ISSUES OPEN TO
ANOTHER ROUND OF PROTRACTED LITIGATION. IN ANY CASE, WE FIND
THE RECORDS SUFFICIENT TO RESOLVE ALL THE ISSUES PRESENTED
HEREIN. WE ALSO RULE THAT, DUE TO THE EXTREME URGENCY OF THE
MATTER AT HAND, THE PRESENT CASE IS AN EXCEPTION TO THE
DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES.117 AS WE
HAVE OFTEN RULED, IN EXCEPTIONAL CASES, WE CAN SUSPEND THE
RULES OF PROCEDURE IN ORDER TO ACHIEVE SUBSTANTIAL JUSTICE,
AND TO ADDRESS URGENT AND PARAMOUNT STATE INTERESTS VITAL TO
THE LIFE OF OUR NATION.
ISSUES
IN VIEW OF THE FOREGOING, WE SHALL RESOLVE THE FOLLOWING
ISSUES:
1. WHETHER THE CASIÑO GROUP WAS ABLE TO PROVE THAT THE
CONSTRUCTION AND OPERATION OF THE POWER PLANT WILL CAUSE
GRAVE ENVIRONMENTAL DAMAGE.
1.1. THE ALLEGED THERMAL POLLUTION OF COASTAL WATERS, AIR
POLLUTION DUE TO DUST AND COMBUSTION GASES, WATER POLLUTION
FROM TOXIC COAL COMBUSTION WASTE, AND ACID DEPOSITION TO
AQUATIC AND TERRESTRIAL ECOSYSTEMS THAT WILL BECAUSED BY THE
PROJECT.
1.2. THE ALLEGED NEGATIVE ENVIRONMENTAL ASSESSMENT OF THE
PROJECT BY EXPERTS IN A REPORT GENERATED DURING THE SOCIAL
ACCEPTABILITY CONSULTATIONS.
1.3. THE ALLEGED ADMISSIONS OF GRAVE ENVIRONMENTAL DAMAGE IN
THE EIS ITSELF OF THE PROJECT.
2. WHETHER THE ECC IS INVALID FOR LACKOF SIGNATURE OF MR. LUIS
MIGUEL ABOITIZ, AS REPRESENTATIVE OF RP ENERGY, IN THE
STATEMENT OF ACCOUNTABILITY OF THE ECC.
3. WHETHER THE FIRST AND SECOND AMENDMENTS TO THE ECC ARE
INVALID FOR FAILURE TO UNDERGO A NEW ENVIRONMENTAL IMPACT
ASSESSMENT (EIA) BECAUSE OF THE UTILIZATION OF INAPPROPRIATE
EIA DOCUMENTS.
4. WHETHER THE CERTIFICATE OF NON-OVERLAP, UNDER SECTION 59 OF
THE IPRA LAW, IS A PRECONDITION TO THE ISSUANCEOF AN ECC AND
THE LACK OF ITS PRIOR ISSUANCE RENDERED THE ECC INVALID.
5. WHETHER THE CERTIFICATE OF NON-OVERLAP, UNDER SECTION 59 OF
THE IPRA LAW, IS A PRECONDITION TO THE CONSUMMATION OF THE
LEASE AND DEVELOPMENT AGREEMENT (LDA) BETWEEN SBMA AND
RPENERGY AND THE LACK OF ITS PRIOR ISSUANCE RENDERED THE LDA
INVALID.
6. WHETHER COMPLIANCE WITH SECTION 27, IN RELATION TO SECTION
26, OF THE LGC (I.E., APPROVAL OF THE CONCERNED
SANGGUNIANREQUIREMENT) IS NECESSARY PRIOR TO THE
IMPLEMENTATION OF THE POWER PLANT PROJECT.
7. WHETHER THE VALIDITY OF THE THIRD AMENDMENT TO THE ECC CAN
BE RESOLVED IN THIS CASE.
RULING
THE PARTIES TO THIS CASE APPEALED FROM THE DECISION OF THE
APPELLATE COURT PURSUANT TO SECTION 16, RULE7 OF THE RULES OF
PROCEDURE FOR ENVIRONMENTAL CASES, VIZ:
SECTION 16. APPEAL.- WITHIN FIFTEEN (15) DAYS FROM THE DATE OF
NOTICE OF THE ADVERSE JUDGMENT OR DENIALOF MOTION FOR
RECONSIDERATION, ANY PARTY MAY APPEAL TO THE SUPREME COURT
UNDER RULE45 OF THE RULES OF COURT. THE APPEAL MAY RAISE
QUESTIONS OF FACT. (EMPHASIS SUPPLIED)
IT IS WORTH NOTING THAT THE RULES ON THE WRIT OF KALIKASAN
ALLOW THE PARTIES TO RAISE, ON APPEAL, QUESTIONS OF FACT— AND,
THUS, CONSTITUTES AN EXCEPTION TO RULE 45 OF THE RULES OF
COURT— BECAUSE OFTHE EXTRAORDINARY NATURE OF THE
CIRCUMSTANCES SURROUNDING THE ISSUANCE OF A WRIT OF
KALIKASAN.118 THUS, WE SHALL REVIEW BOTH QUESTIONS OF LAW AND
FACT IN RESOLVING THE ISSUES PRESENTED IN THIS CASE.
WE NOW RULE ON THE ABOVE-MENTIONED ISSUES IN DETAIL.
I.
WHETHER THE CASIÑO GROUP WAS ABLE TO PROVE THAT THE
CONSTRUCTION AND OPERATION OF THE POWER PLANT WILL CAUSE
GRAVE ENVIRONMENTAL DAMAGE.
THE ALLEGED THERMAL POLLUTION OF COASTAL
WATERS, AIR POLLUTION DUE TO DUST AND
COMBUSTION GASES, WATER POLLUTION FROM
TOXIC COAL COMBUSTION WASTE, AND ACID
DEPOSITION IN AQUATIC AND TERRESTRIAL
ECOSYSTEMS THAT WILLBE CAUSED BY THE
PROJECT.
AS PREVIOUSLY NOTED, THE CASIÑO GROUP ALLEGED THAT THE
CONSTRUCTION AND OPERATION OF THE POWER PLANT SHALL
ADVERSELY AFFECT THE RESIDENTS OF THE PROVINCES OF BATAAN
AND ZAMBALES, PARTICULARLY, THE MUNICIPALITIES OF SUBIC,
MORONG AND HERMOSA, AND THE CITY OF OLONGAPO, AS WELL AS THE
SENSITIVE ECOLOGICAL BALANCE OF THE AREA. THEIR CLAIMS OF
ECOLOGICAL DAMAGE MAY BE SUMMARIZED AS FOLLOWS:
1. THERMAL POLLUTION OF COASTAL WATERS. DUE TO THE DISCHARGE
OF HEATED WATER FROM THE OPERATION OF THE PLANT, THEY CLAIM
THAT THE TEMPERATURE OF THE AFFECTED BODIES OF WATER WILL
RISE SIGNIFICANTLY. THIS WILL HAVE ADVERSE EFFECTS ON AQUATIC
ORGANISMS. IT WILL ALSO CAUSE THE DEPLETION OF OXYGEN IN THE
WATER. RP ENERGY CLAIMS THAT THERE WILL BENO MORE THAN A 3°C
INCREASE IN WATER TEMPERATURE BUT THE CASIÑO GROUP CLAIMS
THAT A 1°C TO 2°C RISE CAN ALREADY AFFECT THE METABOLISM AND
OTHER BIOLOGICAL FUNCTIONS OF AQUATIC ORGANISMS SUCH
ASMORTALITY RATE AND REPRODUCTION.
2. AIR POLLUTION DUE TO DUST AND COMBUSTION GASES. WHILE THE
CASIÑO GROUP ADMITS THAT CIRCULATING FLUIDIZED BED (CFB) COAL
TECHNOLOGY, WHICH WILL BE USED IN THE POWER PLANT, IS A CLEAN
TECHNOLOGY BECAUSE IT REDUCES THE EMISSION OF TOXIC GASES, IT
CLAIMS THAT VOLATILE ORGANIC COMPOUNDS, SPECIFICALLY,
POLYCYCLIC AROMATIC HYDROCARBONS (PAHS) WILL ALSO BE EMITTED
UNDER THE CFB. PAHS ARE CATEGORIZED AS POLLUTANTS WITH
CARCINOGENIC AND MUTAGENIC CHARACTERISTICS. CARBON
MONOXIDE, A POISONOUS GAS, AND NITROUS OXIDE, A LETHAL GLOBAL
WARMING GAS, WILL ALSO BE PRODUCED.
3. WATER POLLUTION FROM TOXIC COAL COMBUSTION WASTE. THE
WASTE FROM COAL COMBUSTION OR THE RESIDUES FROM BURNING
POSE SERIOUS ENVIRONMENTAL RISK BECAUSE THEY ARE TOXIC AND
MAY CAUSE CANCER AND BIRTH DEFECTS. THEIR RELEASE TO NEARBY
BODIES OF WATER WILL BE A THREATTO THE MARINE ECOSYSTEM OF
SUBIC BAY. THE PROJECT IS LOCATED IN A FLOOD-PRONE AREA AND IS
NEAR THREE PROMINENT SEISMIC FAULTS AS IDENTIFIED BY PHILIPPINE
INSTITUTE OF VOLCANOLOGY AND SEISMOLOGY. THE CONSTRUCTION OF
AN ASH POND IN AN AREA SUSCEPTIBLE TO FLOODING AND
EARTHQUAKE ALSO UNDERMINES SBMA’S DUTY TO PRIORITIZE THE
PRESERVATION OF THE WATER QUALITY IN SUBIC BAY.
4. ACID DEPOSITION IN AQUATIC AND TERRESTRIAL ECOSYSTEMS. THE
POWER PLANT WILL RELEASE 1,888 TONS OF NITROUS OXIDES AND 886
TONS OF SULFUR DIOXIDE PER YEAR. THESE OXIDES ARE RESPONSIBLE
FOR ACID DEPOSITION. ACID DEPOSITION DIRECTLY IMPACTS AQUATIC
ECOSYSTEMS. IT IS TOXIC TO FISH AND OTHER AQUATIC ANIMALS. IT
WILL ALSO DAMAGE THE FORESTS NEAR SUBIC BAY AS WELL AS THE
WILDLIFE THEREIN. THIS WILL THREATEN THE STABILITY OF THE
BIOLOGICAL DIVERSITY OF THE SUBIC BAY FREEPORT WHICH WAS
DECLARED AS ONE OF THE TEN PRIORITY SITES AMONG THE PROTECTED
AREAS IN THE PHILIPPINES AND THE SUBIC WATERSHED AND FOREST
RESERVE. THIS WILL ALSO HAVE AN ADVERSE EFFECT ON TOURISM.119
IN ITS JANUARY 30, 2013 DECISION, THE APPELLATE COURT RULED THAT
THE CASIÑO GROUP FAILED TO PROVE THE ABOVE ALLEGATIONS.
WE AGREE WITH THE APPELLATE COURT.
INDEED, THE THREE WITNESSES PRESENTED BY THE CASIÑO GROUP
ARE NOT EXPERTS ON THE CFB TECHNOLOGY OR ON ENVIRONMENTAL
MATTERS. THESE WITNESSES EVEN ADMITTED ON CROSS-EXAMINATION
THAT THEYARE NOT COMPETENT TO TESTIFY ON THE ENVIRONMENTAL
IMPACT OF THE SUBJECT PROJECT. WHAT IS WANTING IN THEIR
TESTIMONIES IS THEIR TECHNICAL KNOWLEDGEOF THE PROJECT
DESIGN/IMPLEMENTATION OR SOME OTHER ASPECTS OF THE PROJECT,
EVEN THOSE NOT REQUIRING EXPERTKNOWLEDGE, VIS-À-VIS THE
SIGNIFICANT NEGATIVE ENVIRONMENTAL IMPACTS WHICH THE CASIÑO
GROUP ALLEGED WILL OCCUR. CLEARLY, THE CASIÑO GROUP FAILED TO
CARRY THE ONUSOF PROVING THE ALLEGED SIGNIFICANT NEGATIVE
ENVIRONMENTAL IMPACTS OF THE PROJECT. IN COMPARISON, RP
ENERGY PRESENTED SEVERAL EXPERTS TO REFUTE THE ALLEGATIONS
OF THE CASIÑO GROUP.
AS APTLY AND EXTENSIVELY DISCUSSED BY THE APPELLATE COURT:
PETITIONERS120 PRESENTED THREE (3) WITNESSES, NAMELY, PALATINO,
HERMOSO, AND LACBAIN, ALL OF WHOM ARE NOT EXPERTS ON THE CFB
TECHNOLOGY OR EVEN ON ENVIRONMENTAL MATTERS. PETITIONERS
DID NOT PRESENT ANY WITNESS FROM MORONG OR HERMOSA.
PALATINO, A FORMER FREELANCE WRITER AND NOW A CONGRESSMAN
REPRESENTING THE KABATAAN PARTYLIST, WITH A DEGREE OF BS
EDUCATION MAJOR IN SOCIAL STUDIES, ADMITTED THAT HE IS NOT A
TECHNICAL EXPERT. HERMOSO, A DIRECTOR OF THE PREDA
FOUNDATION WHICH IS ALLEGEDLY INVOLVED ON ENVIRONMENTAL
CONCERNS, AND A MEMBER OF GREENPEACE, IS NOT AN EXPERT ON
THE MATTER SUBJECT OF THIS CASE. HE IS A GRADUATE OF BS
SOCIOLOGY AND A PRACTICING BUSINESS DIRECTOR INVOLVED IN
SOCIAL DEVELOPMENT AND SOCIAL WELFARE SERVICES. LACBAIN,
INCUMBENT VICEGOVERNOR OF THE PROVINCE OF ZAMBALES,
ANACCOUNTING GRADUATE WITH A MASTER IN PUBLIC ADMINISTRATION,
WAS A FORMER BANCOFILIPINO TELLER, ENTERTAINMENT MANAGER,
DISCO MANAGER, MARKETING MANAGER AND COLLEGE INSTRUCTOR,
AND IS ALSO NOT AN EXPERT ON THE CFB TECHNOLOGY. LACBAIN ALSO
ADMITTED THAT HE IS NEITHER A SCIENTIST NOR AN EXPERT ON
MATTERS OF THE ENVIRONMENT.
PETITIONERS CITED VARIOUS SCIENTIFIC STUDIES OR ARTICLES AND
WEBSITES CULLED FROM THE INTERNET. HOWEVER, THE SAID
SCIENTIFIC STUDIESAND ARTICLES INCLUDING THE ALLEGED KEY
OBSERVATIONS AND RECOMMENDATIONS ON THE EIS OF THE
PROPOSED RPE PROJECT BY REX VICTOR O. CRUZ (EXHIBIT "DDDDD")
ATTACHED TO THE PETITION, WERE NOT TESTIFIED TO BY AN EXPERT
WITNESS, AND ARE BASICALLY HEARSAY IN NATURE AND CANNOT BE
GIVEN PROBATIVE WEIGHT. THE ARTICLE PURPORTEDLY WRITTEN BY
REX VICTOR O. CRUZ WAS NOT EVEN SIGNED BY THE SAID AUTHOR,
WHICH FACT WAS CONFIRMED BY PALATINO. PETITIONERS’ WITNESS,
LACBAIN, ADMITTED THAT HE DID NOT PERSONALLY CONDUCT ANY
STUDY ON THE ENVIRONMENTAL OR HEALTH EFFECTS OF A COAL-
FIREDPOWER PLANT, BUT ONLY ATTENDED SEMINARS AND
CONFERENCES PERTAINING TO CLIMATE CHANGE; AND THAT THE
SCIENTIFIC STUDIES MENTIONED IN THE PENULTIMATE WHEREAS
CLAUSE OF RESOLUTION NO. 2011-149 (EXHIBIT "AAAAA") OF THE
SANGGUNIANG PANLALAWIGANOF ZAMBALES IS BASED ON WHAT HE
READ ON THE INTERNET, SEMINARS HE ATTENDED AND WHAT HE HEARD
FROM UNNAMED EXPERTS IN THE FIELD OF ENVIRONMENTAL
PROTECTION.
IN HIS JUDICIAL AFFIDAVIT (EXHIBIT "HHHHH"), PALATINO STATED THAT
HE WAS FURNISHED BY THE CONCERNED RESIDENTS THE KEY
OBSERVATIONS AND RECOMMENDATIONS ON THE EIS OF PROPOSED
RPE PROJECT BY REX VICTOR O. CRUZ, AND THAT HE MERELY RECEIVED
AND READ THE FIVE (5) SCIENTIFIC STUDIES AND ARTICLES WHICH
CHALLENGE THE CFB TECHNOLOGY. PALATINO ALSO TESTIFIED THAT: HE
WAS ONLY FURNISHED BY THE PETITIONERS COPIES OF THE STUDIES
MENTIONED IN HIS JUDICIAL AFFIDAVIT AND HE DID NOT PARTICIPATE IN
THE EXECUTION, FORMULATION OR PREPARATION OF ANY OF THE SAID
DOCUMENTS; HE DOES NOT PERSONALLY KNOW REX CRUZ OR ANY OF
THE AUTHORS OF THE STUDIES INCLUDED IN HIS JUDICIAL AFFIDAVIT; HE
DID NOT READ OTHER MATERIALS ABOUT COAL-FIRED POWER PLANTS;
HE IS NOT AWARE OF THE ACCEPTABLE STANDARDS AS FAR AS THE
OPERATION OF A COAL-FIRED POWER PLANT IS CONCERNED;
PETITIONER VELARMINO WAS THE ONE WHO FURNISHED HIM COPIES OF
THE DOCUMENTS IN REFERENCE TO THE MOU AND SOME PAPERS
RELATED TO THE CASE; PETITIONER PERALTA WAS THE ONE WHO E-
MAILED TO HIM THE SOFT COPY OFALL THE DOCUMENTS [LETTERS (A) TO
(O) OF HIS JUDICIAL AFFIDAVIT], EXCEPT THE LGU RESOLUTIONS; AND HE
HAS NEVER BEEN AT THE ACTUAL POWER PLANT PROJECTSITE. IT MUST
BE NOTED THAT PETITIONERS VELARMINO AND PERALTA WERE NEVER
PRESENTED AS WITNESSES IN THIS CASE. IN ADDITION, PALATINO DID
NOT IDENTIFY THE SAID STUDIES BUT SIMPLYCONFIRMED THAT THE SAID
STUDIES WERE ATTACHED TO THE PETITION.
INDEED, UNDER THE RULES OF EVIDENCE, A WITNESS CAN TESTIFY ONLY
TO THOSE FACTS WHICH THE WITNESS KNOWS OF HIS ORHER
PERSONAL KNOWLEDGE, THAT IS, WHICH ARE DERIVED FROM THE
WITNESS’ OWN PERCEPTION. CONCOMITANTLY, A WITNESS MAY NOT
TESTIFY ON MATTERS WHICH HE OR SHE MERELY LEARNED FROM
OTHERS EITHER BECAUSE SAID WITNESS WAS TOLD OR READ OR HEARD
THOSE MATTERS. SUCH TESTIMONY IS CONSIDERED HEARSAY AND MAY
NOT BE RECEIVED AS PROOF OF THE TRUTH OF WHAT THE WITNESS HAS
LEARNED. THIS IS KNOWN AS THE HEARSAY RULE. HEARSAY IS
NOTLIMITED TO ORAL TESTIMONY OR STATEMENTS; THE GENERAL RULE
THAT EXCLUDES HEARSAY AS EVIDENCE APPLIES TO WRITTEN, AS WELL
AS ORAL STATEMENTS. THERE ARE SEVERAL EXCEPTIONS TO THE
HEARSAY RULE UNDER THE RULES OF COURT, AMONG WHICH ARE
LEARNED TREATISES UNDER SECTION 46 OF RULE 130, VIZ:
"SEC. 46. LEARNED TREATISES. -A PUBLISHED TREATISE, PERIODICAL OR
PAMPHLET ON A SUBJECTOF HISTORY, LAW, SCIENCE, OR ART IS
ADMISSIBLE AS TENDING TO PROVE THE TRUTH OF A MATTER STATED
THEREIN IF THE COURT TAKES JUDICIAL NOTICE, OR A WITNESS EXPERT
IN THE SUBJECT TESTIFIES, THAT THE WRITER OF THE STATEMENT IN
THE TREATISE, PERIODICAL OR PAMPHLET IS RECOGNIZED IN HIS
PROFESSION OR CALLING AS EXPERT IN THE SUBJECT."
THE ALLEGED SCIENTIFIC STUDIES MENTIONED IN THE PETITION CANNOT
BE CLASSIFIED AS LEARNED TREATISES. WE CANNOT TAKE JUDICIAL
NOTICE OF THE SAME, AND NO WITNESS EXPERT IN THE
SUBJECTMATTER OF THIS CASE TESTIFIED, THAT THE WRITERS OF THE
SAID SCIENTIFIC STUDIES ARE RECOGNIZED IN THEIR PROFESSION OR
CALLING AS EXPERTS IN THE SUBJECT.
IN STARK CONTRAST, RESPONDENT RP ENERGY PRESENTED SEVERAL
WITNESSES ON THE CFB TECHNOLOGY.
IN HIS JUDICIAL AFFIDAVIT, WITNESS WONG STATED THAT HE OBTAINED
A BACHELOR OF SCIENCE, MAJOR IN MECHANICAL ENGINEERING FROM
WORCESTER POLYTECHNIC INSTITUTE; HE IS A CONSULTING ENGINEER
OF STEAM GENERATORS OF URS; HE WAS FORMERLY CONNECTED WITH
FOSTER WHEELER WHERE HE HELD THE POSITIONS OF SITE
COMMISSIONING ENGINEER, TESTING ENGINEER, INSTRUMENTATION
AND CONTROLS ENGINEER, MECHANICAL EQUIPMENT DEPARTMENT
MANAGER, DIRECTOR OF BOILER PERFORMANCE AND MECHANICAL
DESIGN ENGINEERING AND PULVERIZED COAL PRODUCT DIRECTOR. HE
EXPLAINED THAT: CFB STANDS FOR CIRCULATING FLUIDIZED BED; IT IS A
PROCESS BY WHICH FUEL IS FED TO THE LOWER FURNACE WHERE IT IS
BURNED IN AN UPWARD FLOW OF COMBUSTION AIR; LIMESTONE, WHICH
IS USED AS SULFUR ABSORBENT, IS ALSO FED TO THE LOWER FURNACE
ALONG WITH THE FUEL; THE MIXTURE OFFUEL, ASH, AND THE BOILER
BED SORBENT MATERIAL IS CARRIED TO THE UPPER PART OF THE
FURNACE AND INTO A CYCLONE SEPARATOR; THE HEAVIER PARTICLES
WHICH GENERALLY CONSIST OF THE REMAINING UNCOMBUSTED FUEL
AND ABSORBENT MATERIAL ARE SEPARATED IN THE CYCLONE
SEPARATOR AND ARE RECIRCULATED TO THE LOWER FURNACE TO
COMPLETE THE COMBUSTION OF ANY UNBURNED PARTICLES AND TO
ENHANCE SO2 CAPTURE BY THE SORBENT; FLY ASH AND FLUE GAS EXIT
THE CYCLONE AND THE FLY ASH IS COLLECTED IN THE ELECTROSTATIC
PRECIPITATOR; FURNACE TEMPERATURE IS MAINTAINED IN THE RANGE
OF 800° TO 900° C BY SUITABLE HEAT ABSORBING SURFACE; THE FUEL
PASSES THROUGH A CRUSHER THAT REDUCES THE SIZE TO AN
APPROPRIATE SIZE PRIOR TO THE INTRODUCTION INTO THE LOWER
FURNACE ALONG WITH THE LIMESTONE; THE LIMESTONE IS USED AS A
SO2 SORBENT WHICH REACTS WITH THE SULFUR OXIDES TO FORM
CALCIUM SULFATE, AN INERT AND STABLE MATERIAL; AIR FANS AT THE
BOTTOM OF THE FURNACE CREATE SUFFICIENT VELOCITY WITHIN THE
STEAM GENERATOR TO MAINTAIN A BED OF FUEL, ASH, AND LIMESTONE
MIXTURE; SECONDARY AIR IS ALSO INTRODUCED ABOVE THE BED TO
FACILITATE CIRCULATION AND COMPLETE COMBUSTION OF THE
MIXTURE; THE COMBUSTION PROCESS GENERATES HEAT, WHICH THEN
HEATS THE BOILER FEEDWATER FLOWING THROUGH BOILER TUBE
BUNDLES UNDER PRESSURE; THE HEAT GENERATED IN THE FURNACE
CIRCUIT TURNS THE WATER TO SATURATED STEAM WHICH IS FURTHER
HEATED TO SUPERHEATED STEAM; THIS SUPERHEATED STEAM LEAVES
THE CFB BOILER AND EXPANDS THROUGH A STEAM TURBINE; THE STEAM
TURBINE IS DIRECTLY CONNECTED TO A GENERATOR THAT TURNS AND
CREATES ELECTRICITY; AFTER MAKING ITS WAY THROUGH THE STEAM
TURBINE, THE LOW-PRESSURE STEAM IS EXHAUSTED DOWNWARDS INTO
A CONDENSER; HEAT IS REMOVED FROM THE STEAM, WHICH COOLS AND
CONDENSES INTO WATER (CONDENSATE); THE CONDENSATE IS THEN
PUMPED BACK THROUGH A TRAIN OF FEEDWATER HEATERS TO
GRADUALLY INCREASE ITS TEMPERATURE BEFORETHIS WATER IS
INTRODUCED TO THE BOILER TO START THE PROCESS ALL OVER AGAIN;
AND CFB TECHNOLOGY HAS ADVANTAGESOVER PULVERIZED COAL
FIRING WITHOUT BACKEND CLEANUP SYSTEMS, I.E., GREATER FUEL
FLEXIBILITY, LOWER SO2 AND NOX EMISSIONS. MOREOVER, WONG
TESTIFIED, INTER ALIA, THAT: CFBS HAVE A WIDER RANGE OF FLEXIBILITY
SO THEY CAN ENVIRONMENTALLY HANDLE A WIDER RANGE OF FUEL
CONSTITUENTS, MAINLY THE CONSTITUENT SULFUR; AND IS CAPABLE OF
HANDLING DIFFERENT TYPES OF COAL WITHIN THE RANGE OF THE
DIFFERENT FUELCONSTITUENTS; SINCE CFB IS THE NEWER
TECHNOLOGY THAN THE PC OR STALKER FIRE, IT HAS BETTER
ENVIRONMENTAL PRODUCTION; 50 PERCENT OFTHE ELECTRIC
GENERATION IN THE UNITED STATES IS STILL PRODUCED BY COAL
COMBUSTION; AND THE CFB ABSORBS THE SULFUR DIOXIDE BEFORE IT
IS EMITTED; AND THERE WILL BE A LOWER PERCENTAGE OF EMISSIONS
THAN ANY OTHER TECHNOLOGY FOR THE COAL.
IN HIS JUDICIAL AFFIDAVIT, SARRKI, STATED THAT: HE IS THE CHIEF
ENGINEER FOR PROCESS CONCEPT IN FOSTERWHEELER; HE WAS A
MANAGER OF PROCESS TECHNOLOGY FOR FOSTER WHEELER FROM
1995 TO 2007; AND HE HOLDS A MASTER OF SCIENCE DEGREE IN
CHEMICAL ENGINEERING.HE EXPLAINED THAT: CFB BOILERS WILL EMIT
PAHS BUT ONLY IN MINIMAL AMOUNTS, WHILE BFB WILL PRODUCE
HIGHER PAH EMISSIONS; PAH IS A NATURAL PRODUCT OF ANY
COMBUSTION PROCESS; EVEN ORDINARY BURNING, SUCH AS COOKING
OR DRIVING AUTOMOBILES, WILL HAVE SOME EMISSIONS THAT ARE NOT
CONSIDERED HARMFUL; IT IS ONLY WHEN EMISSIONS ARE OF A
SIGNIFICANT LEVEL THAT DAMAGE MAY BE CAUSED; A CFB TECHNOLOGY
HAS MINIMAL PAH EMISSIONS; THE HIGH COMBUSTION EFFICIENCY OF
CFB TECHNOLOGY, DUE TO LONG RESIDENCE TIME OF PARTICLES INSIDE
THE BOILER, LEADS TO MINIMAL EMISSIONS OF PAH; OTHER FACTORS
SUCH AS INCREASE IN THE EXCESS AIR RATIO[,] DECREASE IN CA/S, AS
WELL AS DECREASE IN THE SULFUR AND CHLORINE CONTENTS OF COAL
WILL LIKEWISE MINIMIZE PAH PRODUCTION; AND CFB DOES NOT CAUSE
EMISSIONS BEYOND SCIENTIFICALLYACCEPTABLE LEVELS. HE TESTIFIED,
INTER ALIA, THAT: THE CFB TECHNOLOGY IS USED WORLDWIDE; THEY
HAVE A 50% PERCENT SHARE OF CFB MARKET WORLDWIDE; AND THIS
WILL BE THE FIRST CFB BY FOSTER WHEELER IN THE PHILIPPINES;
FOSTER WHEELER MANUFACTURES AND SUPPLIES DIFFERENT TYPE[S]
OF BOILERS INCLUDING BFB, BUT CFB IS ALWAYS APPLIED ON BURNING
COAL, SO THEY DO NOT APPLY ANY BFB FOR COAL FIRING; CFB HAS
FEATURES WHICH HAVE MUCH BETTER COMBUSTION EFFICIENCY, MUCH
LOWER EMISSIONS AND IT IS MORE EFFECTIVE AS A BOILER EQUIPMENT;
THE LONGER THE COAL STAYS INTHE COMBUSTION CHAMBER, THE
BETTER IT IS BURNED; EIGHT (8) SECONDS IS ALREADY BEYOND
ADEQUATE BUT IT KEEPS A MARGIN; IN CFB TECHNOLOGY, COMBUSTION
TECHNOLOGY IS UNIFORM THROUGHOUT THE COMBUSTION CHAMBER;
HIGH VELOCITY IS USED IN CFB TECHNOLOGY, THAT IS VIGOROUS
MIXING OR TURBULENCE; TURBULENCE IS NEEDED TO GET CONTACT
BETWEEN FUEL AND COMBUSTION AIR; AND AN IMPORTANT FEATURE OF
CFB IS AIR DISTRIBUTION.
IN HIS JUDICIAL AFFIDAVIT, OUANO STATED THAT: HE IS A LICENSED
CHEMICAL ENGINEER, SANITARY ENGINEER AND ENVIRONMENTAL
PLANNER IN THE PHILIPPINES; HE IS ALSO A CHARTERED PROFESSIONAL
ENGINEER INAUSTRALIA AND A MEMBER OF THE COLLEGES OF
ENVIRONMENTAL ENGINEERS AND CHEMICAL ENGINEERS OF THE
INSTITUTION OF ENGINEERS (AUSTRALIA); HE COMPLETED HIS
BACHELOR IN CHEMICAL ENGINEERING IN 1970, MASTER OF
ENVIRONMENTAL ENGINEERING IN 1972 AND DOCTOR OF
ENVIRONMENTAL ENGINEERING IN 1974; HE ALSO GRADUATED FROM THE
UNIVERSITY OF SYDNEY LAW SCHOOL WITH THE DEGREE OF MASTER OF
ENVIRONMENTAL LAW IN 2002 AND PHD IN LAW FROM MACQUARIE
UNIVERSITY IN 2007. HE EXPLAINED IN HIS JUDICIAL AFFIDAVIT THAT: THE
IMPACTS IDENTIFIED AND ANALYZED IN THE EIA PROCESS ARE ALL
POTENTIAL OR LIKELY IMPACTS; THERE ARE A LARGER NUMBER OF EIA
TECHNIQUES FOR PREDICTING THE POTENTIAL ENVIRONMENTAL
IMPACTS; IT IS IMPORTANT TO NOTE THAT ALL THOSE METHODS AND
TECHNIQUES ARE ONLY FOR PREDICTING THE POTENTIAL
ENVIRONMENTAL IMPACTS, NOT THE REAL IMPACTS; ALMOST ALL
ENVIRONMENTAL SYSTEMS ARE NON-LINEAR AND THEY ARE SUBJECT TO
CHAOTIC BEHAVIOR THAT EVEN THE MOST SOPHISTICATED COMPUTER
COULD NOT PREDICT ACCURATELY; AND THE ACTUAL OR REAL
ENVIRONMENTAL IMPACT COULD ONLY BE ESTABLISHED WHEN THE
PROJECT IS IN ACTUAL OPERATION. HE TESTIFIED, INTER ALIA, THAT: THE
HIGHER THE TEMPERATURE THE HIGHER THE NITROUS OXIDE EMITTED;
IN CFB TECHNOLOGY, THE LOWER THE TEMPERATURE, THE LOWER IS
THE NITROGEN OXIDE; AND IT STILL HAS A NITROGEN OXIDE BUT NOT AS
HIGH AS CONVENTIONAL COAL; THE CFB IS THE BOILER; FROM THE
BOILER ITSELF,DIFFERENT POLLUTION CONTROL FACILITIES ARE GOING
TO BE ADDED; AND FOR THE OVERALL PLANT WITH THE POLLUTION
CONTROL FACILITIES, THE PARTICULATE MATTERS, NITROGEN OXIDE
AND SULFUR DIOXIDE ARE UNDER CONTROL. (CITATIONS OMITTED)121
WE ALSO NOTE THAT RP ENERGY CONTROVERTED IN DETAIL THE
AFORE-SUMMARIZED ALLEGATIONS OF THE CASIÑO GROUP ON THE
FOUR AREAS OF ENVIRONMENTAL DAMAGE THAT WILL ALLEGEDLY
OCCUR UPON THE CONSTRUCTION AND OPERATION OF THE POWER
PLANT:
1. ON THERMAL POLLUTION OF COASTAL WATERS.
AS TO THE EXTENT OF THE EXPECTED RISE IN WATER TEMPERATURE
ONCE THE POWER PLANT IS OPERATIONAL, MS. MERCADO STATED IN
HER JUDICIALAFFIDAVIT THUS:
Q: WHAT WAS THE RESULT OF THE THERMAL PLUME MODELING THAT
WAS CONDUCTED FOR RP ENERGY?
A: THE THERMAL DISPERSION MODELING RESULTS SHOW THAT LARGEST
WARMING CHANGE (0.95°C ABOVE AMBIENT) IS OBSERVED IN THE
SHALLOWEST (5 M) DISCHARGE SCENARIO. THE WARMEST SURFACE
TEMPERATURE CHANGE FOR THE DEEPEST (30 M) SCENARIO IS 0.18°C.
ALL THE SIMULATED SCENARIOS COMPLY WITH THE DAO 90-35 LIMIT FOR
TEMPERATURE RISE OF 3°C WITHIN THE DEFINED 70 X 70 M MIXING ZONE.
THE PROPOSED POWER PLANT LOCATION IS NEAR THE MOUTH OF SUBIC
BAY, THUS THE TIDAL CURRENTS INFLUENCE THE BEHAVIOR OF
THERMAL DISCHARGE PLUME. SINCE THE AREA IS WELL-FLUSHED,
MIXING AND DILUTION OF THE THERMAL DISCHARGE IS EXPECTED.
IT ALSO CONCLUDED THAT CORALS ARE LESS LIKELY TO BE AFFECTED
BY THE COOLING WATER DISCHARGE AS CORALS MAY PERSIST IN
SHALLOW MARINE WATERSWITH TEMPERATURES RANGING FROM 18°C
TO 36°C. THE PREDICTED HIGHEST TEMPERATURE OF 30.75°C, FROM THE
0.95°C INCREASE IN AMBIENT IN THE SHALLOWEST (5 M) DISCHARGE
SCENARIO, IS WITHIN THIS RANGE.122
IN THE SAME VEIN, DR. OUANO STATED IN HIS JUDICIAL AFFIDAVIT:
Q: IN PAGE 41, PARAGRAPH 99 OF THE PETITION, IT WAS ALLEGED THAT:
"X X X A TEMPERATURE CHANGE OF 1°C TO 2°C CANALREADY AFFECT
THE METABOLISM AND OTHER BIOLOGICAL FUNCTIONS OF AQUATIC
ORGANISMS SUCH AS MORTALITY RATE AND REPRODUCTION." WHAT IS
YOUR EXPERT OPINION, IF ANY, ON THIS MATTER ALLEGED BY THE
PETITIONERS?
A: LIVING ORGANISMS HAVE PROVEN TIME AND AGAIN THAT THEY ARE
VERY ADAPTABLE TO CHANGES IN THE ENVIRONMENT. LIVING
ORGANISMS HAVE BEEN ISOLATED IN VOLCANIC VENTS UNDER THE
OCEAN LIVING ON THE ACIDIC NUTRIENT SOUP OF SULFUR AND OTHER
MINERALS EMITTED BY THE VOLCANO TO SUB-FREEZING TEMPERATURE
IN ANTARCTICA. ASA GENERAL RULE, METABOLISM AND REPRODUCTIVE
ACTIVITY [INCREASE] WITH TEMPERATURE UNTIL A MAXIMUM IS
REACHED AFTER WHICH [THEY DECLINE]. FOR THIS REASON, DURING
WINTER, ANIMALS HIBERNATE AND PLANTS BECOME DORMANT AFTER
SHEDDING THEIR LEAVES. IT IS ON THE ONSET OF SPRING THAT ANIMALS
BREED AND PLANTS BLOOM WHEN THE AIR AND WATER ARE WARMER.
AT THE MIDDLE OF AUTUMN WHEN THE TEMPERATURE DROPS TO
SINGLE DIGIT, WHALES, FISH, BIRDS AND OTHER LIVING ORGANISMS,
WHICH ARE CAPABLE OF MIGRATING, MOVE TO THE OTHER END OF THE
GLOBE WHERE SPRING IS JUST STARTING. IN THE PROCESSES OF
MIGRATION, THOSE MIGRATORY SPECIES HAVE TO CROSS THE TROPICS
WHERE THE TEMPERATURE IS NOT JUST ONE OR TWO DEGREES
WARMER BUT 10 TO 20 DEGREES WARMER. WHEN DISCUSSING THE
IMPACT OF 1 TO 2 DEGREES TEMPERATURE CHANGE AND ITS IMPACT ON
THE ECOSYSTEM, THE MOST IMPORTANT FACTORS TO CONSIDER ARE –
(1) ORGANISM TYPE – SPECIFICALLY ITS TOLERANCE TO TEMPERATURE
CHANGE (MAMMALS HAVE HIGHER TOLERANCE); (2) BASE TEMPERATURE
– IT IS THE TEMPERATURE OVER THE OPTIMUM TEMPERATURE SUCH
THAT AN INCREASEWILL RESULT IN THE DECLINE IN NUMBER OF THE
ORGANISMS; (3) MOBILITY OR SPACE FOR MIGRATION (I.E., AN AQUARIUM
WITH LIMITED SPACE OR AN OPEN OCEAN THAT THE ORGANISM CAN
MOVE TO A SPACE MORE SUITED TO [A] SPECIFIC NEED, SUCH AS THE
MIGRATORY BIRDS); AND (4) ECOSYSTEM COMPLEXITY AND
SUCCESSION. THE MORE COMPLEX THE ECOSYSTEM THE MORE STABLE
IT IS AS SUCCESSION AND ADAPTATION [ARE] MORE ROBUST.
NORMALLY, THE NATURAL VARIATION IN WATER TEMPERATURE
BETWEEN EARLY MORNING TO LATE AFTERNOON COULD BE SEVERAL
DEGREES (FOUR TO FIVE DEGREES CENTIGRADE AND UP TO TEN
DEGREES CENTIGRADE ON SEASONAL BASIS). THEREFORE, THE LESS
THAN ONE DEGREE CENTIGRADE CHANGE PREDICTED BY THE GHD
MODELING WOULD HAVE MINIMAL IMPACT.123
ON CROSS-EXAMINATION, DR. OUANO FURTHER EXPLAINED—
ATTY. AZURA:
X X X WHEN YOU SAY ORGANISM TYPE – YOU MENTIONED THAT
MAMMALS HAVE A HIGHER TOLERANCE FOR TEMPERATURE CHANGE?
DR. OUANO:
YES.
ATTY. AZURA:
WHAT ABOUT OTHER TYPES OF ORGANISMS, DR. OUANO? FISH FOR
EXAMPLE?
DR. OUANO:
WELL, MAMMALS HAVE HIGH TOLERANCE BECAUSE MAMMALS ARE
WARM[- ]BLOODED. NOW, WHEN IT COMES TO COLD[-]BLOODED ANIMALS
THE TOLERANCE IS MUCH LOWER. BUT AGAIN WHEN YOU ARE
CONSIDERING X X X FISH [E]SPECIALLY IN OPEN OCEAN YOU HAVE TO
REMEMBER THAT NATURE BY ITSELF IS X X X VERY BRUTAL X X X WHERE
THERE IS ALWAYS THE PREY-PREDATOR RELATIONSHIP. NOW, MOST OF
THE FISH THAT WE HAVE IN OPEN SEA [HAVE] ALREADY A VERY STRONG
ADAPTABILITY MECHANISM.AND IN FACT, KINGMAN BACK IN 1964 X X X
STUDIED THE COAL REEFAROUND THE GULF OF OMAN WHERE THE
TEMPERATURE VARIATION ON DAY TO DAY BASIS VARIED NOT BY 1
DEGREE TO 2 DEGREES BUT BY ALMOST 12 DEGREES CENTIGRADE.
NOW, IN THE SUBIC BAY AREA WHICH WHEN YOU’RE LOOKING AT IT
BETWEEN DAYTIME VARIATION, EARLY DAWN WHEN IT IS COLD, THE AIR
IS COLD, THE SEA TEMPERATURE, SEA WATER IS QUITE COLD. THEN BY
3:00 O’CLOCK IN THE AFTERNOON IT STARTS TO WARM UP. SOTHE
VARIATION [IN THE] SUBIC BAY AREA IS AROUND 2 TO 4 DEGREES BY
NATURAL VARIATION FROM THE SUN AS WELL AS FROM THE CURRENT
THAT GOES AROUND IT. SO WHEN YOU ARE TALKING ABOUT WHAT THE
REPORT HAS SAID OF AROUND 1 DEGREE CHANGE, THE TOTAL IMPACT X
X X ON THE FISHES WILL BE MINIMAL. X X X
ATTY. AZURA:
X X X SO, YOU SAID, DR. OUANO, THAT FISH, WHILE THEY HAVE A MUCH
LOWER TOLERANCE FOR TEMPERATURE VARIATION, ARE STILL VERY
ADAPTABLE. WHAT ABOUT OTHER SEA LIFE, DR. OUANO, FOR EXAMPLE,
SEA REPTILES?
DR. OUANO:
THAT’S WHAT I SAID. THE MOST SENSITIVE PART OF THE MARINE
ECOLOGY IS PHYSICALLY THE CORALS BECAUSE CORALS ARE NON-
MIGRATORY, THEY ARE FIX[ED]. SECOND[LY] X X X CORALS ARE ALSO
HIGHLY DEPENDENT ON SUNLIGHT PENETRATION. IF THEY ARE EXPOSED
OUT OF THE SEA, THEY DIE; IF THEYARE SO DEEP, THEY DIE. AND THAT IS
WHY I CITED KINGMAN IN HIS STUDIES OF CORAL ADAPTABILITY [IN] THE
SEA OFOMAN WHERE THERE WAS A VERY HIGH TEMPERATURE
VARIATION, [THEY] SURVIVED.
ATTY. AZURA:
WOULD YOU BE AWARE, DR. OUANO, IF KINGMAN HAS DONE ANY
STUDIES IN SUBIC BAY?
DR. OUANO:
NOT IN SUBIC BAY BUT I HAVE REVIEWEDTHE TEMPERATURE VARIATION,
NATURAL TEMPERATURE VARIATION FROM THE SOLAR SIDE, THE DAYS
SIDE AS WELL AS THE SEASONAL VARIATION. THERE ARE TWO TYPES OF
VARIATION SINCE TEMPERATURES ARE VERY CRITICAL. ONE IS THE
DAILY, WHICH MEANS FROM EARLY MORNING TO AROUND 3:00 O’CLOCK,
AND THE OTHER ONE IS SEASONAL VARIATION BECAUSE SUMMER,
DECEMBER, JANUARY, FEBRUARY ARE THE COLD MONTHS AND THEN BY
APRIL, MAY WE ARE HAVING WARM TEMPERATURE WHERE THE
TEMPERATURE GOES AROUND 32-33 DEGREES; CHRISTMAS TIME, IT
DROPS TO AROUND 18 TO 20 DEGREES SO IT[']SA VARIATION OF AROUND
SEASONAL VARIATION OF 14 DEGREES ALTHOUGH SOME OF THE FISH
MIGHT EVEN MIGRATE AND THAT IS WHY I WAS TRYING TO PUT IN
CORALS BECAUSE THEY ARE THE ONES THAT ARE REALLY FIX[ED]. THEY
ARE NOT IN A POSITION TO MIGRATE IN THIS SEASON.
ATTY. AZURA:
TO CLARIFY. YOU SAID THAT THE MOST POTENTIALLY SENSITIVE PART
OF THE ECOSYSTEM WOULD BE THE CORALS. DR. OUANO:
OR THREATENED PART BECAUSE THEY ARE THE ONES [THAT] ARE NOT IN
A POSITION TO MIGRATE.
ATTY AZURA:
IN THIS CASE, DR. OUANO, WITH RESPECTTO THIS PROJECT AND THE
PROJECTED TEMPERATURE CHANGE, WILL THE CORALS IN SUBIC BAY BE
AFFECTED?
DR. OUANO:
AS FAR AS THE OUTLET IS CONCERNED, THEY HAVE ESTABLISHED IT
OUTSIDE THE CORAL AREA. BY THE TIME IT REACHES THE CORAL AREA
THE TEMPERATURE VARIATION, AS PER THE GHD STUDY IS VERY SMALL,
IT[’]S ALMOST NEGLIGIBLE.
ATTY AZURA:
SPECIFICALLY, DR. OUANO, WHAT DOES NEGLIGIBLE MEAN, WHAT LEVEL
OF VARIATION ARE WE TALKING ABOUT?
DR. OUANO:
IF YOU ARE TALKING ABOUT A THERMOMETER, YOU MIGHT BE TALKING PREDICTED GLC126 FOR 1-HR NATIONAL AMBIENT AIR QUALITY
ABOUT, NORMALLY ABOUT .1 DEGREES CENTIGRADE. THAT’STHE ONE AVERAGING PERIOD GUIDELINE VALUES
THAT YOU COULD MORE OR LESS ASCERTAIN. X X X

ATTY. AZURA: SO2 45.79 µG/NM3 340 µG/NM3

DR. OUANO, YOU MENTIONED IN YOURANSWER TO THE SAME QUESTION,

NO2 100.8 µG/NM3 260 µG/NM3
QUESTION 51, THAT THERE IS A NORMAL VARIATION IN WATER
TEMPERATURE. IN FACT, YOU SAID THERE IS A VARIATION THROUGHOUT
THE DAY, DAILY AND ALSO THROUGHOUT THE YEAR, SEASONAL. JUST TOCO 10 µG/NM3 35 µG/NM3
CLARIFY, DR. OUANO. WHEN THE POWER PLANT CAUSES THE
PROJECTED TEMPERATURE CHANGE OF 1 DEGREE TO 2 DEGREES
CELSIUS THIS WILL BE IN ADDITION TO EXISTING VARIATIONS? WHAT I
MEAN, DR. OUANO, JUST SO I CAN UNDERSTAND, HOW WILL THAT WORK? PREDICTED GLC FOR 8-HR NATIONAL AMBIENT AIR QUALITY
HOW WILL THE TEMPERATURE CHANGE CAUSED BY THE POWER PLANT AVERAGING PERIOD GUIDELINE VALUES
WORK WITH THE EXISTING VARIATION? DR. OUANO:
CO 0.19 MG/NCM 10 µG/NM3
THERE IS SOMETHING LIKE WHAT WE CALL THE ZONAL MIXING. THIS IS
AN AREA OF APPROXIMATELY ONE OR TWO HECTARES WHERE THE PIPE
GOES OUT, THE HOT WATER GOES OUT. SO THAT X X X, WE HAVE TO
ACCEPT X X X THAT [THROUGHOUT IT] THE ZONE WILL BE A DISTURB[ED]
PREDICTED GLC FOR 24-HR NATIONAL AMBIENT AIR QUALITY
ZONE. AFTER THAT ONE OR TWO HECTARES PARK THE WATER
AVERAGING PERIOD GUIDELINE VALUES
TEMPERATURE IS WELL MIXED [SO] THAT THE TEMPERATURE ABOVE THE
NORMAL EXISTING VARIATION NOW PRACTICALLY DROPS DOWN TO
ALMOST THE NORMAL LEVEL.124 SO2 17.11 µG/NM3 180 µG/NM3

2. ON AIR POLLUTION DUE TODUST AND COMBUSTION GASES. NO2 45.79 µG/NM3 150 µG/NM3
TO ESTABLISH THAT THE EMISSIONS FROM THE OPERATION OF THE
POWER PLANT WOULD BE COMPLIANT WITH THE STANDARDS UNDER THE
CLEAN AIR ACT,125 MS. MERCADO STATED IN HER JUDICIAL AFFIDAVIT
THUS: PREDICTED GLC FOR 1-YR NATIONAL AMBIENT AIR QUALITY
AVERAGING PERIOD GUIDELINE VALUES
271. Q: WHAT WAS THE RESULT OF THE AIR DISPERSION MODELING THAT
WAS CONDUCTED FOR RP ENERGY? SO2 6.12 µG/NM3 80 µG/NM3
A: THE AIR DISPERSION MODELING PREDICTED THAT THE POWER PLANT
PROJECT WILL PRODUCE THE FOLLOWING EMISSIONS,WHICH [ARE] NO2 NO STANDARD ---
FULLY COMPLIANT WITH THE STANDARDS SET BY DENR:
CO NO STANDARD ---
272. Q: WHAT OTHER FINDINGS RESULTED FROM THE AIR DISPERSION
MODELING, IF ANY?
A: IT ALSO ESTABLISHED THAT THE HIGHEST GLC TO CLEANAIR ACT
STANDARDS RATIO AMONG POSSIBLE RECEPTORS WAS LOCATED 1.6 KM
NORTH NORTHEAST ("NNE") OF THE POWER PLANT PROJECT. FURTHER,
THIS RATIO WAS VALUED ONLY AT 0.434 OR LESS THAN HALF OF THE
UPPER LIMIT SET OUT IN THE CLEAN AIR ACT. THIS MEANS THAT THE
HIGHEST AIR AMBIENT QUALITY DISRUPTION WILL HAPPEN ONLY 1.6 KM
NNE OF THE POWER PLANT PROJECT, AND THAT SUCH DISRUPTION
WOULD STILL BE COMPLIANT WITH THE STANDARDS IMPOSED BY THE
CLEAN AIR ACT.127
THE CASIÑO GROUP ARGUED, HOWEVER, THAT, AS STATED INTHE EIS,
DURING UPSET CONDITIONS, SIGNIFICANT NEGATIVE ENVIRONMENTAL
IMPACT WILL RESULT FROM THE EMISSIONS. THIS CLAIM WAS REFUTED
BY RP ENERGY’S WITNESS DURING CROSS-EXAMINATION:
ATTY. AZURA:
IF I MAY REFER YOU TO ANOTHER PAGE OF THE SAME ANNEX, MS.
MERCADO, THAT’S PAGE 202 OF THE SAME DOCUMENT, THE AUGUST
2012. FIG. 2-78 APPEARS TO SHOW, THERE’S A TABLE, MS. MERCADO, THE
FIRST TABLE, THE ONE ON TOP APPEARS TO SHOW A COMPARISON IN
NORMAL AND UPSET CONDITIONS. I NOTICED, MS. MERCADO, THAT THE
BLACK BARS ARE MUCH HIGHER THAN THE BARS IN NORMAL CONDITION.
CAN YOU STATE WHAT THIS MEANS?
MS. MERCADO:
IT MEANS THERE ARE MORE EMISSIONS THAT COULD POTENTIALLY BE
RELEASED WHEN IT IS UNDER UPSET CONDITION.
ATTY. AZURA:
I ALSO NOTICED, MS. MERCADO, AT THE BOTTOM PART OF THIS CHART
THERE ARE RECEPTOR IDS, R1, R2, R3 AND SO FORTH AND ON PAGE 188
OF THIS SAME DOCUMENT, ANNEX "9-MERCADO," THERE IS A LIST
IDENTIFYING THESE RECEPTORS, FOR EXAMPLE, RECEPTOR 6, YOUR
HONOR, APPEARS TO HAVE BEEN LOCATED IN OLONGAPO CITY,
POBLACION. JUST SO I CAN UNDERSTAND, MS. MERCADO, DOES THAT
MEAN THAT IF UPSET CONDITION[S] WERE TO OCCUR, THE OLONGAPO
CITY POBLACION WILL BE AFFECTED BY THE EMISSIONS? MS. MERCADO:
ALL IT MEANS IS THAT THERE WILL BE HIGHER EMISSIONS AND A HIGHER
GROUND CONCENTRATION. BUT YOU MIGHT WANT TO ALSOPAY
ATTENTION TO THE "Y AXIS," IT SAYS THERE GLC/CAA [GROUND LEVEL
CONCENTRATION/CLEAN AIR ACT LIMIT]. SO IT MEANS THAT EVEN UNDER
UPSET CONDITIONS… SAY FOR R6, THE GROUND LEVEL
CONCENTRATION FOR UPSET CONDITION IS STILL AROUND .1 OR 10%
PERCENT ONLY OF THE CLEAN AIR ACT LIMIT. SO IT’S STILL MUCH LOWER
THAN THE LIMIT.
ATTY. AZURA:
BUT THAT WOULD MEAN, WOULD IT NOT, MS. MERCADO, THAT IN THE
EVENT OF UPSET CONDITIONS[,] EMISSIONSWOULD INCREASE IN THE
OLONGAPO CITY POBLACION?
MS. MERCADO:
NOT EMISSIONS WILL INCREASE. THE EMISSIONS WILL BE THE SAME BUT
THE GROUND LEVEL CONCENTRATION, THE GLC, WILL BE HIGHER IF YOU
COMPARE NORMAL VERSUS UPSET. BUT EVEN IF IT[’]S UNDER UPSET
CONDITIONS, IT IS STILL ONLY AROUND 10% PERCENT OF THE CLEAN AIR
ACT LIMIT.
XXXX
J. LEAGOGO:
SO YOU ARE TRYING TO IMPRESS UPON THIS COURT THAT EVEN IF THE
PLANT IS IN AN UPSET CONDITION, IT WILL EMIT LESS THAN WHAT THE
NATIONAL STANDARDS DICTATE?
MS. MERCADO:
YES, YOUR HONOR.128
WITH RESPECT TO THE CLAIMS THAT THE POWERPLANT WILL RELEASE
DANGEROUS PAHS AND CO, ENGR. SARRKI STATED IN HIS JUDICIAL
AFFIDAVIT THUS:
Q: IN PAGE 42, PARAGRAPH 102 OF THE PETITION, THE PETITIONERS
ALLEGED THAT VOLATILE ORGANIC COMPOUNDS ("VOC") SPECIFICALLY
POLYCYCLIC AROMATIC HYDROCARBON ("PAH") WILL BE EMITTED EVEN
BY CFB BOILERS. WHAT CAN YOU SAY ABOUT THIS?
A: ACTUALLY, THE STUDY CITED BY THE PETITIONERS DOES NOT APPLY
TO THE PRESENT CASE BECAUSE IT DOES NOT REFER TO CFB
TECHNOLOGY. THE STUDY REFERS TO A LABORATORY-SCALE TUBULAR
BUBBLING FLUIDIZED BED ("BFB") TEST RIG AND NOT A CFB. CFB BOILERS
WILL EMIT PAHS BUT ONLY IN MINIMAL AMOUNTS. INDEED, A BFB WILL
PRODUCE HIGHER PAH EMISSIONS.
XXXX
Q: WHY CAN THE STUDY CITED BY PETITIONERS NOT APPLY IN THE
PRESENT CASE?
A: THE LABORATORY-SCALE BFB USED IN THE STUDY ONLY HAS ONE (1)
AIR INJECTION POINT AND DOES NOT REPLICATE THE STAGED-AIR
COMBUSTION PROCESS OF THE CFB THAT RP ENERGY WILL USE.
THISSTAGED-AIR PROCESS INCLUDES THE SECONDARY AIR. INJECTING
SECONDARY AIR INTO THE SYSTEM WILL LEAD TO MORE COMPLETE
COMBUSTION AND INHIBITS PAH PRODUCTION. THERE IS A STUDY
ENTITLED "POLYCYCLIC AROMATIC HYDROCARBON (PAH) EMISSIONS
FROM A COAL-FIRED PILOT FBC SYSTEM" BYKUNLEI LIU, WENJUN HAN,
WEI-PING PAN, JOHN T. RILEY FOUND IN THE JOURNAL OF HAZARDOUS
MATERIALS B84 (2001) WHERE THE FINDINGS ARE DISCUSSED.
ALSO, THE SMALL-SCALE TEST RIG UTILIZED IN THE STUDY DOES NOT
SIMULATE THE PROCESS CONDITIONS (HYDRODYNAMICS, HEAT
TRANSFER CHARACTERISTICS, SOLID AND GAS MIXING BEHAVIOR, ETC.)
SEEN IN A LARGE SCALE UTILITY BOILER, LIKE THOSE WHICH WOULD BE
UTILIZED BY THE POWER PLANT PROJECT.
XXXX
Q: ASIDE FROM RESIDENCE TIME OF PARTICLES AND SECONDARY AIR,
WHAT OTHER FACTORS, IF ANY, REDUCE PAH PRODUCTION?
A: INCREASE IN THE EXCESS AIR RATIO WILL ALSO MINIMIZEPAH
PRODUCTION. FURTHERMORE, DECREASE IN CALCIUM TO SULFUR
MORAL RATIO ("CA/S"), AS WELL AS DECREASE IN THE SULFUR AND
CHLORINE CONTENTS OF COAL WILL LIKEWISE MINIMIZE PAH
PRODUCTION. THIS IS ALSO BASED ON THE STUDY ENTITLED
"POLYCYCLIC AROMATIC HYDROCARBON (PAH) EMISSIONS FROM A
COAL-FIRED PILOT FBC SYSTEM" BY KUNLEI LIU, WENJUN HAN, WEI-PING
PAN, JOHN T. RILEY.
IN RP ENERGY’S POWER PLANT PROJECT, THE PROJECTED COAL TO BE
UTILIZED HAS LOW SULFUR AND CHLORINE CONTENTS MINIMIZING PAH
PRODUCTION. ALSO, DUE TO OPTIMUM CONDITIONS FOR THE IN-
FURNACE SO2CAPTURE, THE CA/S WILL BE RELATIVELY LOW,
DECREASING PAH PRODUCTION.
Q: IN PARAGRAPH 104 OF THE PETITION, IT WAS ALLEGED THAT "CARBON
MONOXIDE (CO), A POISONOUS, COLORLESS AND ODORLESS GAS IS
ALSO PRODUCED WHEN THERE IS PARTIAL OXIDATION OR WHEN THERE
IS NOT ENOUGH OXYGEN (O2) TO FORM CARBON DIOXIDE (CO2)." WHAT
CAN YOU SAY ABOUT THIS?
A: CFB TECHNOLOGY REDUCES THE CO EMISSIONS OF THE POWER
PLANT PROJECT TO SAFE AMOUNTS. IN FACT, I UNDERSTAND THAT THE
PROJECTED EMISSIONS LEVEL OF THE POWER PLANT PROJECT
COMPL[IES]WITH THE INTERNATIONAL FINANCE CORPORATION ("IFC")
STANDARDS. FURTHERMORE, CHARACTERISTICS OF CFB TECHNOLOGY
SUCH AS LONG RESIDENCE TIME, UNIFORM TEMPERATURE AND HIGH
TURBULENCE PROVIDE AN EFFECTIVE COMBUSTION ENVIRONMENT
WHICH RESULTS [IN] LOWER AND SAFER CO EMISSIONS.
Q: I HAVE NO FURTHER QUESTIONS FOR YOUAT THE MOMENT. IS THERE
ANYTHING YOU WISH TO ADD TO THE FOREGOING?
A: YES. PAH IS A NATURAL PRODUCT OF ANY COMBUSTION PROCESS.
EVEN ORDINARY BURNING, SUCH AS COOKING OR DRIVING
AUTOMOBILES, WILL HAVE SOME EMISSIONS THAT ARE NOT
CONSIDERED HARMFUL. IT IS ONLY WHEN EMISSIONS ARE OF A
SIGNIFICANT LEVEL THAT DAMAGE MAY BE CAUSED.
GIVEN THAT THE POWER PLANT PROJECT WILL UTILIZE CFB
TECHNOLOGY, IT WILL HAVE MINIMAL PAH EMISSIONS. THE HIGH
COMBUSTION EFFICIENCY OF CFB TECHNOLOGY, DUE TO THE LONG
RESIDENCE TIME OF PARTICLES INSIDE THE BOILER, LEADS TO THE
MINIMAL EMISSIONS OF PAH. FURTHERMORE,OTHER FACTORS SUCH AS
INCREASE IN THE EXCESS AIR RATIO, DECREASE IN CA/S, AS WELL AS
DECREASE IN THE SULFUR AND CHLORINE CONTENTS OF COAL WILL
LIKEWISE MINIMIZE PAH PRODUCTION. CFB DOES NOT CAUSE EMISSIONS
BEYOND SCIENTIFICALLY ACCEPTABLE LEVELS, AND WE ARE CONFIDENT
IT WILL NOT RESULT IN THE DAMAGE SPECULATED BY THE
PETITIONERS.129
3. ON WATER POLLUTION FROM TOXIC COAL COMBUSTION WASTE.
WITH REGARD TO THE CLAIM THAT COAL COMBUSTION WASTE
PRODUCED BY THE PLANT WILL ENDANGER THE HEALTH OF THE
INHABITANTS NEARBY, DR. OUANO STATED IN HIS JUDICIAL AFFIDAVIT
THUS:
Q: IN PAGE 43, PARAGRAPH 110 OF THE PETITION, IT WAS ALLEGED THAT:
"[S]OLID COAL COMBUSTION WASTE IS HIGHLY TOXIC AND IS SAID TO
CAUSE BIRTH DEFECTS AND CANCER RISKS AMONG OTHERS X X X."
WHAT IS YOUR EXPERT OPINION, IF ANY, ON THIS MATTER ALLEGED BY
THE PETITIONERS?
A: COAL IS GEOLOGICALLY COMPRESSED REMAINS OF LIVING
ORGANISMS THAT ROAMED THE EARTH SEVERAL MILLION YEARS AGO. IN
THE PROCESS OF COMPRESSION, SOME OF THE MINERALS IN THE SOIL,
ROCKS OR MUD, THE GEOLOGIC MEDIA FOR COMPRESSION, ARE ALSO
IMPARTED INTO THE COMPRESSED REMAINS. IF THE COMPRESSING
MEDIA OF MUD, SEDIMENTS AND ROCKS CONTAIN HIGH CONCENTRATION
OF MERCURY, URANIUM, AND OTHER TOXIC SUBSTANCES, THE COAL
FORMED WILL LIKEWISE CONTAIN HIGH CONCENTRATION OF THOSE
SUBSTANCES. IF THE COMPRESSING MATERIALS HAVE LOW
CONCENTRATION OF THOSE SUBSTANCES, THEN THE COAL FORMED
WILL LIKEWISE HAVE LOW CONCENTRATION OF THOSE SUBSTANCES. IF
THE COAL DOES NOT CONTAIN EXCESSIVE QUANTITIES OF TOXIC
SUBSTANCES, THE SOLID RESIDUES ARE EVEN USED IN AGRICULTURE
TO SUPPLY MICRONUTRIENTS AND IMPROVE THE POTENCY OF
FERTILIZERS. IT IS USED FREELY AS A FILL MATERIAL IN ROADS AND
OTHER CONSTRUCTION ACTIVITIES REQUIRING LARGE VOLUME OF FILL
AND AS ADDITIVE IN CEMENT MANUFACTURE. AFTER ALL, DIAMONDS
THAT PEOPLE LOVE TO HANG AROUND THEIR NECKS AND KEEP CLOSE
TO THE CHEST ARE NOTHING MORE THAN THE RESULT OF SPECIAL
GEOLOGIC ACTION, AS THOSE IN VOLCANIC PIPES ON COAL.130
RP ENERGY FURTHER ARGUED, A MATTER WHICH THE CASIÑO GROUP
DID NOT REBUT OR REFUTE, THAT THE WASTE GENERATED BY THE
PLANT WILL BE PROPERLY HANDLED, TO WIT:
4.1.49 WHEN COAL IS BURNED IN THE BOILER FURNACE, TWO BY-
PRODUCTS ARE GENERATED - BOTTOM AND FLY ASH. BOTTOM ASH
CONSISTS OFLARGE AND FUSED PARTICLES THAT FALL TO THE BOTTOM
OF THE FURNACE AND MIX WITH THE BED MEDIA.FLY ASH INCLUDES
FINEGRAINED AND POWDERY PARTICLES THAT ARE CARRIED AWAY BY
FLUE GAS INTO THE ELECTROSTATIC PRECIPITATOR, WHICH IS THEN
SIFTED AND COLLECTED. THESE BY-PRODUCTS ARE NON-HAZARDOUS
MATERIALS. IN FACT, A COAL POWER PLANT’S FLY ASH, BOTTOM ASH
AND BOILER SLAG HAVE CONSEQUENT BENEFICIAL USES WHICH
"GENERATE SIGNIFICANT ENVIRONMENTAL, ECONOMIC, AND
PERFORMANCE BENEFITS." THUS, FLY ASH GENERATED DURING THE
PROCESS WILL BE SOLD AND TRANSPORTED TO CEMENT
MANUFACTURING FACILITIES OR OTHER LOCAL AND INTERNATIONAL
INDUSTRIES.
4.1.50 RP ENERGY SHALL ALSO INSTALL SAFETY MEASURES TO INSURE
THAT WASTE FROM BURNING OF COAL SHALL BE PROPERLY HANDLED
AND STORED.
4.1.51 BOTTOM ASH WILL BE CONTINUOUSLY COLLECTED FROM THE
FURNACE AND TRANSFERRED THROUGH A SERIES OF SCREW AND CHAIN
CONVEYORS AND BUCKET ELEVATOR TO THE BOTTOM ASH SILO. THE
COLLECTION AND HANDLING SYSTEM IS ENCLOSED TO PREVENT DUST
GENERATION. DISCHARGE CHUTES WILL BE INSTALLED AT THE BASE OF
THE BOTTOM ASH SILO FOR UNLOADING. OPEN TRUCKS WILL BE USED
TO COLLECT ASH THROUGH THE DISCHARGE CHUTES. BOTTOM ASH WILL
BE SOLD, AND UNSOLD ASH WILL BE STORED IN ASH CELLS. A PORTION
OF THE BOTTOM ASH WILL BE REUSED AS BED MATERIALTHROUGH THE
INSTALLATION OF A BED MEDIA REGENERATION SYSTEM (OR ASH
RECYCLE). RECYCLED BOTTOM ASH WILL BE SIEVED USING A VIBRATING
SCREEN AND TRANSPORTED TO A BED MATERIAL SURGE BIN FOR RE-
INJECTION INTO THE BOILER.
4.1.52 FLY ASH FROM THE ELECTROSTATIC PRECIPITATOR IS
PNEUMATICALLY REMOVED FROM THE COLLECTION HOPPER USING
COMPRESSED AIR AND TRANSPORTED IN DRY STATE TO THE FLY ASH
SILO. TWO DISCHARGE CHUTES WILL BE INSTALLED AT THE BASE OF THE
FLY ASH SILO. FLY ASH CAN EITHER BE DRY-TRANSFERRED THROUGH A
LOADING SPOUT INTO AN ENCLOSED LORRY OR TRUCK FOR SELLING,
RE-CYCLING, OR WET-TRANSFERRED THROUGH A WET UNLOADER INTO
OPEN DUMP TRUCKS AND TRANSPORTED TO ASH CELLS. FLY ASH
DISCHARGE WILL OPERATE IN TIMED CYCLES, WITH AN OVERRIDE
FUNCTION TO ACHIEVECONTINUOUS DISCHARGE IF REQUIRED. FLY ASH
ISOLATION VALVES IN EACH BRANCH LINE WILL PREVENT LEAKAGE AND
BACKFLOW INTO NON-OPERATING LINES.
4.1.53 APPROXIMATELY 120,000M² WILL BE REQUIRED FOR THE
CONSTRUCTION OF THE ASH CELL. ASH WILL BE STACKED ALONG THE
SLOPING HILL, WITHIN A GRID OF EXCAVATIONS (I.E. CELLS) WITH A 5M
EMBANKMENT. EXCAVATED SOILS WILL BE USED FOR EMBANKMENT
CONSTRUCTION AND BACKFILL. TO PREVENT INFILTRATION [OF] ASH
DEPOSITS INTO THE GROUNDWATER, A CLAY LAYER WITH MINIMUM
DEPTH OF400MM WILL BE LAID AT THE BASE OF EACH CELL. FOR EVERY
1-M DEPTH OF ASH DEPOSIT, A 10-CM SOIL BACKFILL WILL BE APPLIED TO
IMMOBILIZE ASH AND PREVENT MIGRATION VIA WIND. ASH CELL WALLS
WILL BE LINED WITH HIGH-DENSITY POLYETHYLENE TO PREVENT
SEEPAGE. THIS PROCEDURE AND TREATMENT METHOD IS IN FACT
SUITABLE FOR DISPOSAL OF TOXIC AND HAZARDOUS WASTES
ALTHOUGH FLY ASH IS NOT CLASSIFIED AS TOXIC AND HAZARDOUS
MATERIALS.131
ANENT THE CLAIMS THAT THE PLANT IS SUSCEPTIBLE TO EARTHQUAKE
AND LANDSLIDES, DR. OUANO TESTIFIED THUS:
J. LEAGOGO:
IN TERMS OF FAULT LINES, DID YOU STUDY WHETHER THIS PROJECT
SITE IS IN ANY FAULT LINE?
DR. OUANO:
THERE ARE SOME FAULT LINESAND IN FACT, IN THE PHILIPPINES IT IS
VERY DIFFICULT TO FIND AN AREA EXCEPT PALAWAN WHERE THERE IS
NO FAULT LINE WITHIN 20 TO 30 [KILOMETERS]. BUT THEN FAULT LINES
AS WELL AS EARTHQUAKES REALLY [DEPEND] UPON YOUR ENGINEERING
DESIGN. I MEAN, STO. TOMAS UNIVERSITY HAS WITHSTOOD ALL THE
POTENTIAL EARTHQUAKES WE HAD IN MANILA[,] EVEN SOMETIMES IT[’]S
INTENSITY 8 OR SO BECAUSE THE DESIGN FOR IT BACK IN 1600 THEY ARE
ALREADY USING WHAT WE CALL FLOATING FOUNDATION. SO IF THE
ENGINEERING SIDE FOR IT[,] TECHNOLOGY IS THERE TO WITHSTAND THE
EXPECTED FAULT LINE [MOVEMENT]. J. LEAGOGO:
WHAT IS THE ENGINEERING SIDE OF THE PROJECT? YOU SAID UST IS
FLOATING.
DR. OUANO:
THE FOUNDATION, THAT MEANS TO SAY YOU DON’T BREAK…
J. LEAGOGO:
FLOATING FOUNDATION. WHAT ABOUT THIS, WHAT KIND OF
FOUNDATION?
DR. OUANO:
IT WILL NOW DEPEND ON THEIR ENGINEERING DESIGN, THE TYPE OF
EQUIPMENT…
J. LEAGOGO:
NO, BUT DID YOU READ IT IN THEIR REPORT?
DR. OUANO: IT[’]S NOT THERE IN THEIR REPORT BECAUSE IT WILL
DEPEND ON THE SUPPLIER, THE EQUIPMENT SUPPLIER.
J. LEAGOGO:
SO IT[’]S NOT YET THERE?
DR. OUANO:
IT[’]S NOT YET THERE IN THE SITE BUT IT IS ALSO COVERED INOUR
BUILDING CODE WHAT ARE THE INTENSITIES OF EARTHQUAKES
EXPECTED OF THE DIFFERENT AREAS IN THE PHILIPPINES.
J. LEAGOGO:
HAVE YOU CHECKED OUR GEO-HAZARD MAPS IN THE PHILIPPINES TO ACID RAIN TAKES PLACE WHEN THE NO2 AND SO2 CONCENTRATION ARE
CHECK ON THIS PROJECT SITE? EXCESSIVE OR BEYOND THOSE VALUES SET IN THE AIR QUALITY
STANDARDS. NO2 AND SO2 IN THE AIR IN CONCENTRATIONS LOWER
DR. OUANO: THAN THOSE SET IN THE STANDARDS HAVE BENEFICIAL EFFECT TO THE
ENVIRONMENT AND AGRICULTURE AND ARE COMMONLY KNOWN AS
YES. IT IS INCLUDED THERE IN THE EIA REPORT.
MICRONUTRIENTS.133
J. LEAGOGO:
ON CLARIFICATORY QUESTIONS FROM THE APPELLATE COURT, THE
IT[’]S THERE? MATTER WAS FURTHER DISSECTED THUS:

DR. OUANO: J. LEAGOGO:

IT[’]S THERE.132 X X X THE PROJECT WILL RELEASE 1,888 TONS OF NITROUS OXIDE PER
YEAR. AND HE SAID, YES; THAT WITNESS ANSWERED, YES, ITWILL
4. ON ACID DEPOSITION IN AQUATIC AND TERRESTRIAL ECOSYSTEMS. PRODUCE 886 TONS OF SULFUR DIOXIDE PER YEAR. AND HE ALSO
ANSWERED YES, THAT THESE OXIDES ARE THE PRECURSORS TO THE
RELATIVE TO THE THREAT OF ACID RAIN, DR. OUANO STATED IN HIS FORMATION OF SULFURIC ACID AND NITRIC ACID. NOW MY
JUDICIAL AFFIDAVIT, THUS: CLARIFICATORY QUESTION IS, WITH THIS KIND OF RELEASES THERE WILL
BE ACID RAIN?
Q: IN PAGE 44, PARAGRAPH 114 OF THE PETITION, IT WAS ALLEGED THAT
"THE COALFIRED POWER PLANT WILL RELEASE 1,888 TONS OF NITROUS DR. OUANO:
OXIDES (NOX) PER YEAR AND 886 TONS OF SULFUR DIOXIDE (SO2) PER
YEAR. THESE OXIDES ARE THE PRECURSORS TO THE FORMATION OF NO.
SULFURIC ACID AND NITRIC ACID WHICH ARE RESPONSIBLE FOR ACID
DEPOSITION." WHATIS YOUR EXPERT OPINION ON THIS MATTER ALLEGED J. LEAGOGO:
BY THE PETITIONERS?
WHY?
A: NO2 IS FOUND IN THE AIR, WATER AND SOIL FROM NATURAL
DR. OUANO:
PROCESSES SUCH AS LIGHTNING, BACTERIAL ACTIVITIES AND GEOLOGIC
ACTIVITIES AS WELL AS FROM HUMAN ACTIVITIES SUCH AS POWER BECAUSE IT[’]S SO DILUTE[D].
PLANTS AND FERTILIZER USAGE IN AGRICULTURE. SO2 IS ALSO FOUND IN
AIR, WATER AND SOIL FROM BACTERIAL, GEOLOGIC AND HUMAN J. LEAGOGO:
ACTIVITIES. NO2 AND SO2 IN THE AIR ARE PART OF THE NATURAL
NITROGEN AND SULFUR CYCLE TO WIDELY REDISTRIBUTE AND RECYCLE IT WILL?
THOSE ESSENTIAL CHEMICALS FOR USE BY PLANTS. WITHOUT THE NO2
DR. OUANO:
AND SO2 IN THE AIR, PLANT AND ANIMAL LIFE WOULD BE LIMITED TO
SMALL AREAS OF THIS PLANET WHERE NITROGEN AND SULFUR ARE BECAUSE THE ACID CONCENTRATION IS SO DILUTE[D] SO THAT IT IS NOT
FOUND IN ABUNDANCE. WITH INTENSIVE AGRICULTURAL PRACTICES, GOING TO CAUSE ACID RAIN.
NITROGEN AND SULFUR ARE ADDED IN THE SOIL AS FERTILIZERS.
J. LEAGOGO:
THE ACID CONCENTRATION IS SO DILUTED THAT IT WILL NOT CAUSE ACID IN MILLIGRAMS PER CUBIC METER, MILLIGRAMS PER STANDARD CUBIC
RAIN? METER.

DR. OUANO: J. LEAGOGO:

YES . SO BEING AN EXPERT, WHATWILL BE THE CONCENTRATION OF THIS KIND

OF 1,888 TONS OF NITROUS OXIDE? WHAT WILL BE THE CONCENTRATION
J. LEAGOGO: IN TERMS OF YOUR…?
WHAT DO YOU MEAN IT[’]S SO DILUTED? HOW WILL IT BE DILUTED? DR. OUANO:

DR. OUANO: IF THE CONCENTRATION IS IN EXCESS OFSOMETHING LIKE 8,000

MICROGRAMS PER STANDARD CUBIC METERS, THEN THERE ISALREADY
BECAUSE IT[’]S GOING TO BE MIXED WITHTHE AIR IN THE ATMOSPHERE;
POTENTIAL FOR ACID RAIN.
DILUTED IN THE AIR IN THE ATMOSPHERE. AND BESIDES THIS 886 TONS,
THIS IS NOT RELEASED IN ONE GO, IT IS RELEASED ALMOST J. LEAGOGO:
THROUGHOUT THE YEAR.
I AM ASKING YOU, DR. OUANO, YOU SAID IT WILL RELEASE 1,888 TONS OF
J. LEAGOGO: NITROUS OXIDE?

YOU ALSO ANSWERED IN QUESTION NO. 61, "ACID RAINTAKES PLACE DR. OUANO:
WHEN THE NO2 AND SO2 CONCENTRATION ARE EXCESSIVE." SO
WHENDO YOU CONSIDER IT AS EXCESSIVE? YES .

DR. OUANO: J. LEAGOGO:

THAT IS SOMETHING WHEN YOU ARE TALKING ABOUT ACID… IN TERMS OF CONCENTRATION, WHAT WILL THAT BE?

J. LEAGOGO: DR. OUANO:

IN TERMS OF TONS OF NITROUS OXIDE AND TONS OF SULFUR OXIDE, IN TERMS OF THE GHD STUDY THAT WILL RESULT [IN] 19 MILLIGRAMS PER
WHEN DO YOU CONSIDER IT AS EXCESSIVE? STANDARD CUBIC METERS AND THE TIME WHEN ACID RAIN WILL START
[IS WHEN THE CONCENTRATION GETS] AROUND 8,000 MILLIGRAMS PER
DR. OUANO: STANDARD CUBIC METERS. SO WE HAVE 19 COMPARED TO 8,000. SO
WEARE VERY, VERY SAFE.
IT IS IN CONCENTRATION NOT ON TONS WEIGHT, YOUR HONOR.
J. LEAGOGO:
J. LEAGOGO:
WHAT ABOUT SO2?
IN CONCENTRATION?
DR. OUANO:
DR. OUANO:
SO2, WE ARE TALKING ABOUT ... YOUWON’T MIND IF I GO TO MY CODIGO.
FOR SULFUR DIOXIDE THIS ACID RAIN MOST LIKELY WILL START AT
AROUND 7,000 MILLIGRAMS PER STANDARD CUBIC METER BUT THEN …
SORRY, IT[’]S AROUND 3,400 MICROGRAMS PER CUBIC METER. THAT IS
THE CONCENTRATION FOR SULFUR DIOXIDE, AND IN OUR PLANT IT WILL
BE AROUND 45 MICROGRAMS PER STANDARD CUBIC METER. SO THE
ACID RAIN WILL START AT 3,400 AND THE EMISSION IS ESTIMATED HERE
TO RESULT TO CONCENTRATION OF 45.7 MICROGRAMS.
J. LEAGOGO:
THAT IS WHAT GHD SAID IN THEIR REPORT.
DR. OUANO:
YES. SO THAT IS THE FACTOR OF X X X SAFETY THAT WE HAVE.134
APART FROM THE FOREGOING EVIDENCE, WEALSO NOTE THAT THE
ABOVE AND OTHER ENVIRONMENTAL CONCERNS ARE EXTENSIVELY
ADDRESSED IN RP ENERGY’S ENVIRONMENTAL MANAGEMENT PLAN OR
PROGRAM(EMP). THE EMP IS "A SECTION IN THE EIS THAT DETAILS THE
PREVENTION, MITIGATION, COMPENSATION, CONTINGENCY AND
MONITORING MEASURES TO ENHANCE POSITIVE IMPACTS AND MINIMIZE
NEGATIVE IMPACTS AND RISKS OF A PROPOSED PROJECT OR
UNDERTAKING."135 ONE OF THE CONDITIONS OF THE ECC IS THAT RP
ENERGY SHALL STRICTLY COMPLY WITH AND IMPLEMENT ITS APPROVED
EMP. THE CASIÑO GROUP FAILED TO CONTEST, WITH PROOF, THE
ADEQUACY OF THE MITIGATING MEASURES STATED IN THE AFORESAID
EMP.
IN UPHOLDING THE EVIDENCE AND ARGUMENTS OF RP ENERGY,
RELATIVE TO THE LACK OF PROOF AS TO THE ALLEGED SIGNIFICANT
ENVIRONMENTAL DAMAGE THAT WILL BE CAUSED BY THE PROJECT, THE
APPELLATE COURT RELIED MAINLY ON THE TESTIMONIES OF EXPERTS,
WHICH WE FIND TO BE IN ACCORD WITHJUDICIAL PRECEDENTS. THUS,
WE RULED IN ONE CASE:
ALTHOUGH COURTS ARE NOT ORDINARILY BOUND BY TESTIMONIES OF
EXPERTS, THEY MAY PLACE WHATEVER WEIGHT THEY CHOOSE UPON
SUCH TESTIMONIES IN ACCORDANCE WITH THE FACTS OF THE CASE.
THE RELATIVE WEIGHT AND SUFFICIENCY OF EXPERT TESTIMONY IS
PECULIARLY WITHIN THE PROVINCE OF THE TRIAL COURT TO DECIDE,
CONSIDERING THE ABILITY AND CHARACTER OF THE WITNESS, HIS
ACTIONS UPON THE WITNESS STAND, THE WEIGHT AND PROCESS OF
THE REASONING BY WHICH HE HAS SUPPORTED HIS OPINION, HIS
POSSIBLE BIAS IN FAVOR OF THE SIDE FOR WHOM HE TESTIFIES,THE
FACT THAT HE IS A PAID WITNESS, THE RELATIVE OPPORTUNITIES FOR
STUDY AND OBSERVATION OF THE MATTERS ABOUT WHICH HE
TESTIFIES, AND ANY OTHER MATTERS WHICH SERVE TO ILLUMINATE HIS
STATEMENTS. THE OPINION OF THE EXPERT MAY NOT BE ARBITRARILY
REJECTED; IT ISTO BE CONSIDERED BY THE COURT IN VIEW OF ALL THE
FACTS AND CIRCUMSTANCES IN THE CASE AND WHEN COMMON
KNOWLEDGE UTTERLY FAILS, THE EXPERT OPINION MAY BE GIVEN
CONTROLLING EFFECTS (20 AM. JUR., 1056-1058). THE PROBLEM OF THE
CREDIBILITY OF THE EXPERT WITNESS AND THE EVALUATION OF HIS
TESTIMONY IS LEFT TO THE DISCRETION OF THE TRIAL COURT WHOSE
RULING THEREUPON IS NOT REVIEWABLE INTHE ABSENCE OF AN ABUSE
OF THAT DISCRETION.136
HENCE, WE SUSTAIN THE APPELLATE COURT’S FINDINGS THAT THE
CASIÑO GROUP FAILED TO ESTABLISH THE ALLEGED GRAVE
ENVIRONMENTAL DAMAGE WHICH WILL BE CAUSED BY THE
CONSTRUCTION AND OPERATION OF THE POWER PLANT.
IN ANOTHER VEIN, WE, LIKEWISE, AGREE WITH THE OBSERVATIONSOF
THE APPELLATE COURT THAT THE TYPE OF COAL WHICH SHALL BE USED
IN THE POWER PLANT HAS IMPORTANT IMPLICATIONS AS TO THE
POSSIBLE SIGNIFICANT NEGATIVE ENVIRONMENTAL IMPACTS OF THE
SUBJECT PROJECT.137 HOWEVER, THERE IS NO COAL SUPPLY
AGREEMENT, AS OF YET, ENTERED INTO BY RP ENERGY WITH A THIRD-
PARTY SUPPLIER. IN ACCORDANCE WITH THE TERMS AND CONDITIONS
OF THE ECC AND IN COMPLIANCE WITH EXISTING ENVIRONMENTAL LAWS
AND STANDARDS, RP ENERGY IS OBLIGATED TO MAKE USE OF THE
PROPER COAL TYPE THAT WILL NOT CAUSE SIGNIFICANT NEGATIVE
ENVIRONMENTAL IMPACTS.
THE ALLEGED NEGATIVE ENVIRONMENTAL
ASSESSMENT OF THE PROJECT BY EXPERTS IN A
REPORT GENERATED DURING THE SOCIAL
ACCEPTABILITY CONSULTATIONS
THE CASIÑO GROUP ALSO RELIES HEAVILY ON A REPORT ON THE SOCIAL
ACCEPTABILITY PROCESS OF THE POWER PLANT PROJECT TO BOLSTER
ITSCLAIM THAT THE PROJECT WILL CAUSE GRAVE ENVIRONMENTAL
DAMAGE. WE PURPOSELY DISCUSS THIS MATTER IN THIS SEPARATE
SUBSECTION FOR REASONS WHICH WILL BE MADE CLEAR SHORTLY.
BUT FIRST WE SHALL PRESENT THE PERTINENT CONTENTS OF THIS
REPORT.
ACCORDING TO THE CASIÑO GROUP, FROM DECEMBER 7 TO 9, 2011, THE
SBMA CONDUCTED SOCIAL ACCEPTABILITYPOLICY CONSULTATIONS
WITH DIFFERENT STAKEHOLDERS ON RP ENERGY’S PROPOSED 600 MW
COAL PLANT PROJECT AT THE SUBIC BAY EXHIBITION AND CONVENTION
CENTER. THE RESULTS THEREOF ARE CONTAINED IN A DOCUMENT
PREPARED BY SBMA ENTITLED "FINAL REPORT: SOCIAL ACCEPTABILITY
PROCESS FOR RP ENERGY, INC.’S 600-MW COAL PLANT PROJECT" (FINAL
REPORT). WE NOTETHAT SBMA ADOPTED THE FINAL REPORT AS A
COMMON EXHIBIT WITH THE CASIÑO GROUP IN THE COURSE OF THE
PROCEEDINGS BEFORE THE APPELLATE COURT.
THE FINAL REPORT STATED THAT THERE WAS A CLEAR AVERSION TO
THE CONCEPT OF A COAL-FIRED POWER PLANT FROM THE
PARTICIPANTS. THEIR CONCERNS INCLUDED ENVIRONMENTAL, HEALTH,
ECONOMIC AND SOCIO-CULTURAL FACTORS. PERTINENT TO THIS CASE
IS THE ALLEGED ASSESSMENT, CONTAINED IN THE FINAL REPORT, OF
THE POTENTIAL EFFECTS OF THE PROJECT BY THREE EXPERTS: (1) DR.
REX CRUZ (DR. CRUZ), CHANCELLOR OF THE UNIVERSITY OF THE
PHILIPPINES, LOS BAÑOS AND A FOREST ECOLOGY EXPERT, (2) DR.
VISITACION ANTONIO, A TOXICOLOGIST, WHO RELATED INFORMATION AS
TO PUBLIC HEALTH; AND (3) ANDRE JON UYCHIACO, A MARINE BIOLOGIST.
THE FINAL REPORT STATED THESE EXPERTS’ALLEGED VIEWS ON THE
PROJECT, THUS:
IV. EXPERTS’ OPINION
XXXX
THE SPECIALISTS SHARED THE JUDGMENT THAT THE CONDITIONS WERE
NOT PRESENT TO MERIT THE OPERATION OF A COAL-FIRED POWER
PLANT,AND TO PURSUE AND CARRY OUT THE PROJECT WITH
CONFIDENCE AND ASSURANCE THAT THE NATURAL ASSETS AND
ECOSYSTEMS WITHIN THE FREEPORT AREA WOULD NOT BE UNDULY
COMPROMISED, OR THAT IRREVERSIBLE DAMAGE WOULD NOT OCCUR
AND THAT THE THREATS TO THE FLORA AND FAUNA WITHIN THE
IMMEDIATE COMMUNITY AND ITS SURROUNDINGS WOULD BE
ADEQUATELY ADDRESSED. THE THREE EXPERTS WERE ALSO OF THE
SAME OPINION THAT THE PROPOSED COAL PLANT PROJECT WOULD
POSE A WIDE RANGE OF NEGATIVE IMPACTS ON THE ENVIRONMENT, THE
ECOSYSTEMS AND HUMAN POPULATION WITHIN THE IMPACT ZONE.
THE SPECIALISTS LIKEWISE DEEMED THE ENVIRONMENT IMPACT
ASSESSMENT (EIA) CONDUCTED BY RPEI TO BE INCOMPLETE AND
LIMITED IN SCOPE BASED ON THE FOLLOWING OBSERVATIONS:
I. THE ASSESSMENT FAILED TO INCLUDE AREAS 10KM. TO 50KM. FROM
THE OPERATION SITE, ALTHOUGH ACCORDING TOTHE PANEL, SULFUR
EMISSIONS COULD EXTEND AS FAR AS 40-50 KM.
II. THE EIA NEGLECTED TO INCLUDE OTHER FORESTS IN THE FREEPORT
IN ITS SCOPE AND THAT THERE WERE NO SPECIFIC DETAILS ON THE
PROTECTION OF THE ENDANGERED FLORA AND ENDEMIC FAUNA IN THE
AREA. SOIL, GRASSLAND, BRUSH LAND, BEACH FORESTS AND HOME
GARDENS WERE ALSO APPARENTLY NOT INCLUDED IN THE STUDY.
III. THE SAMPLING METHODS USED INTHE STUDY WERE LIMITED AND
INSUFFICIENT FOR EFFECTIVE LONG-TERM MONITORING OF SURFACE
WATER, EROSION CONTROL AND TERRESTRIAL FLORA AND FAUNA.
THE SPECIALISTS ALSO DISCUSSED THE POTENTIAL EFFECTS OF AN
OPERATIONAL COALFIRED POWER PLANT [ON] ITS ENVIRONS AND THE
COMMUNITY THEREIN. PRIMARY AMONG THESE WERE THE FOLLOWING:
I. FORMATION OF ACID RAIN, WHICH WOULD ADVERSELY AFFECT THE
TREES AND VEGETATION IN THE AREA WHICH, IN TURN, WOULD DIMINISH
FOREST COVER. THE ACID RAIN WOULD APPARENTLY WORSEN THE
ACIDITY OF THE SOIL IN THE FREEPORT.
II. WARMING AND ACIDIFICATION OF THE SEAWATER IN THE BAY,
RESULTING IN THE BIO-ACCUMULATIONOF CONTAMINANTS AND TOXIC
MATERIALS WHICH WOULD EVENTUALLY LEAD TO THE OVERALL
REDUCTION OF MARINE PRODUCTIVITY.
III. DISCHARGE OF POLLUTANTS SUCH AS NITROUS OXIDE, SODIUM
OXIDE, OZONE AND OTHER HEAVY METALS SUCHAS MERCURY AND LEAD
TO THE SURROUNDING REGION, WHICH WOULD ADVERSELY AFFECT THE
HEALTH OF THE POPULACE IN THE VICINITY.
V. FINDINGS
BASED ON THEIR ANALYSES OF THE SUBJECT MATTER, THE SPECIALISTS
RECOMMENDED THAT THE SBMA RE-SCRUTINIZE THE COAL-FIRED
POWER PLANT PROJECT WITH THE FOLLOWING GOALS IN MIND:
I. TO ENSURE ITS COHERENCE AND COMPATIBILITY TO [THE] SBMA
MANDATE, VISION, MISSION AND DEVELOPMENT PLANS, INCLUDING ITS
PROTECTED AREA MANAGEMENT PLAN;
II. TO PROPERLY DETERMINE ACTUAL AND POTENTIAL COSTS AND
BENEFITS;
III. TO EFFECTIVELY DETERMINE THE IMPACTS ON ENVIRONMENT AND
HEALTH; AND
IV. TO ENSURE A COMPLETE AND COMPREHENSIVE IMPACTS ZONE
STUDY.
THE SPECIALISTS ALSO URGED THE SBMA TO CONDUCT A
COMPREHENSIVE COST AND BENEFIT ANALYSIS OF THE PROPOSED
COAL PLANT PROJECT RELATIVE TO EACH STAKEHOLDER WHICH
SHOULD INCLUDE THE ENVIRONMENT AS PROVIDER OF NUMEROUS
ENVIRONMENTAL GOODS AND SERVICES.
THEY ALSO RECOMMENDED AN INTEGRATED/PROGRAMMATIC
ENVIRONMENTAL IMPACT ASSESSMENTTO ACCURATELY DETERMINE THE
ENVIRONMENTAL STATUS OF THE FREEPORT ECOSYSTEM AS BASIS AND
REFERENCE IN EVALUATING FUTURE SIMILAR PROJECTS. THE NEED FOR
A MORE COMPREHENSIVE MONITORING SYSTEM FOR THE ENVIRONMENT
AND NATURAL RESOURCESWAS ALSO REITERATED BY THE PANEL.138
OF PARTICULAR INTEREST ARE THE ALLEGED KEY OBSERVATIONS OF
DR. CRUZ ON THE EIS PREPARED BY RP ENERGY RELATIVE TO THE
PROJECT:
KEY OBSERVATIONS AND RECOMMENDATIONS ON THE EIS OF
PROPOSED RPE PROJECT
REX VICTOR O. CRUZ
BASED ON SBMA SAP ON DECEMBER 7-9, 2011
1. THE BASELINE VEGETATION ANALYSIS WAS LIMITED ONLY WITHIN THE
PROJECT SITE AND ITS IMMEDIATE VICINITY. NO VEGETATION ANALYSIS
WAS DONE IN THE BRUSHLAND AREAS IN THE PENINSULA WHICH IS
LIKELY TO BE AFFECTED IN THE EVENT ACID RAIN FORMS DUE TO
EMISSIONS FROM THE POWER PLANT.
2. THE FOREST IN THE REMAINING FORESTS INTHE FREEPORT WAS NOT
CONSIDERED AS IMPACT ZONE AS INDICATED BY THE LACK
OFDESCRIPTION OF THESE FORESTS AND THE POTENTIAL IMPACTS THE
PROJECT MIGHT HAVE ON THESE FORESTS. THIS APPEARS TO BE A KEY
OMISSION IN THE EIS CONSIDERING THAT THESE FORESTS ARE WELL
WITHIN 40 TO 50 KM AWAY FROM THE SITE AND THAT THERE ARE
STUDIES SHOWING THAT THE IMPACTS OF SULPHUR EMISSIONS CAN
EXTEND AS FAR AS 40 TO 50 KM AWAY FROM THE SOURCE.
3. THERE ARE 39 ENDEMIC FAUNA AND 1 ENDANGERED PLANT SPECIES
(MOLAVE) IN THE PROPOSED PROJECT SITE. THERE WILL BE A NEED TO
MAKE SURE THAT THESE SPECIES ARE PROTECTED FROM BEING
DAMAGED PERMANENTLY IN WHOLESALE. APPROPRIATE MEASURES
SUCH AS EX SITUCONSERVATION AND TRANSLOCATION IF FEASIBLE
MUST BE IMPLEMENTED.
4. THE PROJECT SITE IS LARGELY IN GRASSLAND INTERSPERSED WITH
SOME TREES. THESE PLANTS IF AFFECTED BY ACID RAIN OR BY
SULPHUR EMISSIONS MAY DISAPPEAR AND HAVE CONSEQUENCES ON
THE SOIL PROPERTIES AND HYDROLOGICAL PROCESSES IN THE AREA.
ACCELERATED SOIL EROSION AND INCREASED SURFACE RUNOFF AND
REDUCED INFILTRATION OF RAINWATER INTO THE SOIL.
5. THE REST OF THE PENINSULA IS COVERED WITH BRUSHLAND BUT
WERE NEVER INCLUDED AS PART OF THE IMPACT ZONE.
6. THERE ARE HOME GARDENS ALONG THE COASTAL AREAS OF THE SITE
PLANTED TO ORNAMENTAL AND AGRICULTURAL CROPS WHICH ARE
LIKELY TO BE AFFECTED BY ACID RAIN.
7. THERE IS ALSO A BEACH FOREST DOMINATED BY AROMA, TALISAI AND
AGOHO WHICH WILL LIKELY BE AFFECTEDALSO BY ACID RAIN.
8. THERE ARE NO ENVIRONMENTALLY CRITICAL AREAS WITHIN THE 1 KM
RADIUS FROM THE PROJECT SITE. HOWEVER, THE
OLONGAPOWATERSHED FOREST RESERVE, A PROTECTED AREA IS
APPROXIMATELY 10 KMSOUTHWEST OF THE PROJECTSITE.
CONSIDERING THE PREVAILING WIND MOVEMENT IN THE AREA, THIS
FOREST RESERVE IS LIKELY TO BE AFFECTED BY ACID RAIN IF IT
OCCURS FROM THE EMISSION OF THE POWER PLANT. THIS FOREST
RESERVE IS HOWEVER NOT INCLUDED AS PARTOF THE POTENTIAL
IMPACT AREA.
9. SOIL IN THE PROJECT SITE AND THE PENINSULA IS THIN AND HIGHLY
ACIDIC AND DEFICIENT IN NPK WITH MODERATE TO SEVERE EROSION
POTENTIAL. THE SPARSE VEGETATION COVER IN THE VICINITY OF THE
PROJECTSITE IS LIKELY A RESULT OF THE HIGHLY ACIDIC SOIL AND THE
NUTRIENT DEFICIENCY. ADDITIONAL ACIDITY MAY RESULT FROM ACID
RAIN THAT MAY FORM IN THE AREA WHICH COULD FURTHER MAKE IT
HARDER FOR THE PLANTS TO GROW IN THE AREA THAT IN TURN COULD
EXACERBATE THE ALREADY SEVERE EROSION IN THE AREA. 10. THERE IS
A NEED TO REVIEW THE PROPOSALTO ENSURE THAT THE PROPOSED
PROJECT IS CONSISTENT WITH THE VISION FOR THE FREEPORT AS
ENUNCIATED IN THE SBMA MASTER PLAN AND THE PROTECTED AREA
MANAGEMENT PLAN. THIS WILL REINFORCE THE VALIDITY AND
LEGITIMACY OF THESE PLANS AS A LEGITIMATE FRAMEWORK FOR
SCREENING POTENTIAL LOCATORS IN THE FREEPORT. ITWILL ALSO
REINFORCE THE TRUST AND CONFIDENCE OF THE STAKEHOLDERS ON
THE COMPETENCE AND AUTHORITY OF THE SBMA THAT WOULD
TRANSLATE IN STRONGER POPULAR SUPPORT TO THE PROGRAMS
IMPLEMENTED IN THE FREEPORT.
11. THE EGF AND TRUST FUND (TABLE 5.13) SHOULD BE MADE CLEAR
THAT THE AMOUNTS ARE THE MINIMUM AMOUNT AND THAT ADEQUATE
FUNDS WILL BE PROVIDED BY THE PROPONENT AS NECESSARY BEYOND
THE MINIMUM AMOUNTS. FURTHERMORE THE BASIS FOR THE AMOUNTS
ALLOCATED FOR THE ITEMS (PUBLIC LIABILITY AND REHABILITATION) IN
TRUST FUND AND IN EGF (TREE PLANTING AND LANDSCAPING,
ARTIFICIAL REEF ESTABLISHMENT) MUST BE CLARIFIED. THE SPECIFIC
DAMAGES AND IMPACTS THAT WILL BE COVERED BY THE TF AND EGF
MUST ALSO BE PRESENTED CLEARLY AT THE OUTSET TO AVOID
PROTRACTED NEGOTIATIONS IN THE EVENT OF ACTUAL IMPACTS
OCCURRING IN THE FUTURE.
12. THE MONITORING PLAN FOR TERRESTRIAL FLORA AND FAUNA IS NOT
CLEAR ON THE FREQUENCY OF MEASUREMENT. MORE IMPORTANTLY,
THE PROPOSED METHOD OF MEASUREMENT (SAMPLING TRANSECT)
WHILE ADEQUATE FOR ESTIMATING THE DIVERSITY OF INDICES FOR
BENCHMARKING IS NOT SUFFICIENT FOR LONG[-]TERM MONITORING.
INSTEAD, LONG[-]TERM MONITORINGPLOTS (AT LEAST 1 HECTARE IN
SIZE) SHOULD BE ESTABLISHED TO MONITOR THE LONG[-]TERM IMPACTS
OF THE PROJECT ON TERRESTRIAL FLORA AND FAUNA.
13. SINCE THE PROPOSED MONITORING OF TERRESTRIAL FLORA AND
FAUNA IS LIMITED TO THE VICINITY OF THE PROJECT SITE, IT WILL BE
USEFUL NOT ONLY FOR MITIGATING AND AVOIDING UNNECESSARY
ADVERSE IMPACTS OFTHE PROJECT BUT ALSO FOR IMPROVING
MANAGEMENT DECISIONS IF LONG[-]TERM MONITORING PLOTS FOR THE
REMAINING NATURAL FORESTS IN THE FREEPORT ARE ESTABLISHED.
THESE PLOTS WILL ALSO BE USEFUL FOR THE STUDY OF THE DYNAMIC
INTERACTIONS OF TERRESTRIAL FLORA AND FAUNA WITH CLIMATE
CHANGE, FARMING AND OTHER HUMAN ACTIVITIES AND THE RESULTING
INFLUENCES ON SOIL, WATER, BIODIVERSITY, AND OTHER VITAL
ECOSYSTEM SERVICES IN THE FREEPORT.139
WE AGREE WITH THE APPELLATE COURT THAT THE ALLEGED
STATEMENTS BY THESE EXPERTS CANNOT BE GIVEN WEIGHT BECAUSE
THEY ARE HEARSAY EVIDENCE. NONE OF THESE ALLEGED EXPERTS
TESTIFIED BEFORE THE APPELLATE COURT TO CONFIRM THE PERTINENT
CONTENTS OF THE FINAL REPORT. NO REASON APPEARS IN THE
RECORDS OF THIS CASE AS TO WHY THE CASIÑO GROUP FAILED TO
PRESENT THESE EXPERT WITNESSES.
WE NOTE, HOWEVER, THAT THESE STATEMENTS, ON THEIR FACE,
ESPECIALLY THE OBSERVATIONS OF DR. CRUZ, RAISE SERIOUS
OBJECTIONS TO THE ENVIRONMENTAL SOUNDNESS OF THE PROJECT,
SPECIFICALLY, THE EIS THEREOF.IT BRINGS TO FORE THE QUESTION OF
WHETHER THE COURT CAN, ON ITS OWN, COMPEL THE TESTIMONIES OF
THESE ALLEGED EXPERTS IN ORDER TO SHED LIGHT ON THESE
MATTERS IN VIEW OF THE RIGHTAT STAKE— NOT JUST DAMAGE TO THE
ENVIRONMENT BUT THE HEALTH, WELL-BEING AND,ULTIMATELY, THE
LIVESOF THOSE WHO MAY BE AFFECTED BY THE PROJECT.
THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES LIBERALLY
PROVIDE THE COURTS WITH MEANS AND METHODS TO OBTAIN
SUFFICIENT INFORMATION IN ORDER TO ADEQUATELY PROTECT
ORSAFEGUARD THE RIGHT TO A HEALTHFUL AND BALANCED ECOLOGY.
IN SECTION 6 (L)140 OF RULE 3 (PRE-TRIAL), WHEN THERE IS A FAILURE TO
SETTLE, THE JUDGE SHALL, AMONG OTHERS, DETERMINE THE
NECESSITY OF ENGAGING THE SERVICES OF A QUALIFIED EXPERT AS A
FRIEND OF THE COURT (AMICUS CURIAE). WHILE, IN SECTION 12141 OF
RULE 7 (WRIT OF KALIKASAN), A PARTY MAY AVAIL OF DISCOVERY
MEASURES: (1) OCULAR INSPECTION AND (2) PRODUCTION OR
INSPECTION OF DOCUMENTS OR THINGS. THE LIBERALITY OF THE RULES
IN GATHERING AND EVEN COMPELLING INFORMATION, SPECIFICALLY
WITH REGARD TO THE WRIT OF KALIKASAN, IS EXPLAINED IN THIS WISE:
[T]HE WRIT OF KALIKASANWAS REFASHIONED AS A TOOL TO BRIDGE THE
GAP BETWEEN ALLEGATION AND PROOF BY PROVIDING A REMEDY FOR
WOULD-BE ENVIRONMENTAL LITIGANTS TO COMPEL THE PRODUCTION
OF INFORMATION WITHIN THE CUSTODY OF THE GOVERNMENT. THE
WRIT WOULD EFFECTIVELY SERVE AS A REMEDY FOR THE
ENFORCEMENT OF THE RIGHT TO INFORMATION ABOUT THE
ENVIRONMENT. THE SCOPE OF THE FACT-FINDING POWER COULD BE: (1)
ANYTHING RELATED TO THE ISSUANCE, GRANT OF A GOVERNMENT
PERMIT ISSUED OR INFORMATION CONTROLLED BY THE GOVERNMENT
OR PRIVATE ENTITY AND (2) [I]NFORMATION CONTAINED IN DOCUMENTS
SUCH AS ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) AND OTHER
GOVERNMENT RECORDS. IN ADDITION, THE [W]RIT MAY ALSO BE
EMPLOYED TO COMPEL THE PRODUCTION OF INFORMATION, SUBJECT
TO CONSTITUTIONAL LIMITATIONS. THIS FUNCTION IS ANALOGOUS TO A
DISCOVERY MEASURE, AND MAY BE AVAILED OF UPON APPLICATION FOR
THE WRIT.142
CLEARLY, IN ENVIRONMENTAL CASES, THE POWER TOAPPOINT FRIENDS
OF THE COURT IN ORDER TO SHED LIGHT ON MATTERS REQUIRING
SPECIAL TECHNICAL EXPERTISE AS WELL AS THE POWER TO ORDER
OCULAR INSPECTIONS AND PRODUCTION OF DOCUMENTS OR THINGS
EVINCE THE MAIN THRUST OF, AND THE SPIRIT BEHIND, THE RULES TO
ALLOW THE COURT SUFFICIENT LEEWAY IN ACQUIRING THE NECESSARY
INFORMATION TO RULE ON THE ISSUES PRESENTED FOR ITS
RESOLUTION, TO THE END THAT THE RIGHT TOA HEALTHFUL AND
BALANCED ECOLOGY MAY BE ADEQUATELY PROTECTED. TO DRAW A
PARALLEL, IN THE PROTECTION OF THE CONSTITUTIONAL RIGHTS OF AN
ACCUSED, WHEN LIFE OR LIBERTY ISAT STAKE, THE TESTIMONIES OF
WITNESSES MAY BE COMPELLED AS AN ATTRIBUTE OF THE DUE
PROCESS CLAUSE. HERE, WHERE THE RIGHT TO A HEALTHFUL AND
BALANCED ECOLOGY OF A SUBSTANTIAL MAGNITUDE IS AT STAKE,
SHOULD WE NOT TREAD THE PATH OF CAUTION AND PRUDENCE BY
COMPELLING THE TESTIMONIES OF THESE ALLEGED EXPERTS?
AFTER DUE CONSIDERATION, WE FIND THAT, BASED ON THE
STATEMENTS IN THE FINAL REPORT, THERE IS NO SUFFICIENTLY
COMPELLING REASON TO COMPEL THE TESTIMONIES OF THESE
ALLEGED EXPERT WITNESSES FOR THE FOLLOWING REASONS.
FIRST, THE STATEMENTSARE NOT SUFFICIENTLY SPECIFICTO POINT TO
US A FLAW (OR FLAWS) IN THE STUDY OR DESIGN/IMPLEMENTATION (OR
SOME OTHER ASPECT) OF THE PROJECT WHICH PROVIDES A CAUSAL
LINK OR, AT LEAST, A REASONABLE CONNECTION BETWEEN THE
CONSTRUCTION AND OPERATION OFTHE PROJECT VIS-À-VIS POTENTIAL
GRAVE ENVIRONMENTAL DAMAGE. IN PARTICULAR, THEY DO NOT
EXPLAIN WHY THE ENVIRONMENTAL MANAGEMENT PLAN (EMP)
CONTAINED IN THE EIS OF THE PROJECT WILL NOTADEQUATELY
ADDRESS THESE CONCERNS.
SECOND, SOME OF THE CONCERNS RAISEDIN THE ALLEGED
STATEMENTS, LIKE ACID RAIN, WARMING AND ACIDIFICATION OF THE
SEAWATER, AND DISCHARGE OF POLLUTANTS WERE, AS PREVIOUSLY
DISCUSSED, ADDRESSED BY THE EVIDENCE PRESENTED BY RP ENERGY
BEFORE THE APPELLATE COURT. AGAIN, THESE ALLEGED STATEMENTS
DO NOT EXPLAIN WHY SUCH CONCERNS ARE NOT ADEQUATELY
COVERED BY THE EMP OF RP ENERGY.
THIRD, THE KEY OBSERVATIONS OF DR. CRUZ, WHILE CONCEDEDLY
ASSAILING CERTAIN ASPECTS OF THE EIS, DO NOT CLEARLY AND
SPECIFICALLY ESTABLISH HOW THESE OMISSIONS HAVE LED TO THE
ISSUANCE OF AN ECC THAT WILL POSE SIGNIFICANT NEGATIVE
ENVIRONMENTAL IMPACTS ONCE THE PROJECT IS CONSTRUCTED AND
BECOMES OPERATIONAL. THE RECOMMENDATIONS STATED THEREIN
WOULD SEEM TO SUGGEST POINTS FOR IMPROVEMENT IN THE
OPERATION AND MONITORING OF THE PROJECT,BUT THEY DO NOT
CLEARLY SHOW WHY SUCH RECOMMENDATIONS ARE INDISPENSABLE
FOR THE PROJECT TO COMPLY WITH EXISTING ENVIRONMENTAL LAWS
AND STANDARDS, OR HOW NON-COMPLIANCE WITH SUCH
RECOMMENDATIONS WILL LEAD TO AN ENVIRONMENTAL DAMAGE OF THE
MAGNITUDE CONTEMPLATEDUNDER THE WRIT OF KALIKASAN. AGAIN,
THESE STATEMENTS DO NOT STATE WITH SUFFICIENT PARTICULARITY
HOW THE EMP IN THE EIS FAILED TO ADEQUATELY ADDRESS THESE
CONCERNS.
FOURTH, BECAUSE THE REASON FOR THE NON-PRESENTATION OF THE
ALLEGED EXPERT WITNESSES DOES NOT APPEAR ON RECORD, WE
CANNOT ASSUME THAT THEIR TESTIMONIES ARE BEING UNDULY
SUPPRESSED.
BY RULING THAT WE DO NOT FIND A SUFFICIENTLY COMPELLING REASON
TO COMPEL THE TAKING OF THE TESTIMONIES OF THESE ALLEGED
EXPERT WITNESSES IN RELATION TO THEIR SERIOUS OBJECTIONS TO
THE POWER PLANT PROJECT, WE DO NOT FORECLOSE THE POSSIBILITY
THAT THEIR TESTIMONIES COULD LATER ON BE PRESENTED, IN A
PROPER CASE, TO MORE DIRECTLY, SPECIFICALLY AND
SUFFICIENTLYASSAIL THE ENVIRONMENTAL SOUNDNESS OF THE
PROJECT AND ESTABLISH THE REQUISITE MAGNITUDE OF ACTUALOR
THREATENED ENVIRONMENTAL DAMAGE, IF INDEED PRESENT. AFTER
ALL, THEIR SENSE OFCIVIC DUTY MAY WELL PREVAIL UPON THEM TO
VOLUNTARILY TESTIFY, IF THERE ARE TRULY SUFFICIENT REASONS
TOSTOP THE PROJECT, ABOVE AND BEYOND THEIR INADEQUATE CLAIMS
IN THE FINAL REPORT THAT THE PROJECT SHOULD NOT BE PURSUED. AS
THINGS NOW STAND,HOWEVER, WE HAVE INSUFFICIENT BASES TO
COMPEL THEIR TESTIMONIES FOR THE REASONS ALREADY PROFFERED.
THE ALLEGED ADMISSIONS OF GRAVE
ENVIRONMENTAL DAMAGE IN THE EIS OF THE
PROJECT.
IN THEIR OMNIBUS MOTIONS FOR CLARIFICATION AND
RECONSIDERATION BEFORE THE APPELLATE COURT AND PETITION FOR
REVIEW BEFORE THISCOURT, THE CASIÑO GROUP BELATEDLY CLAIMS
THAT THE STATEMENTS IN THE EIS PREPARED BY RPENERGY
ESTABLISHED THE SIGNIFICANT NEGATIVE ENVIRONMENTAL IMPACTS OF
THE PROJECT. THEY ARGUE IN THIS MANNER:
ACID RAIN
35. ACCORDING TO RP ENERGY’S ENVIRONMENTAL IMPACT STATEMENT
FOR ITS PROPOSED 2 X 150 MW COAL-FIRED THERMAL POWER PLANT
PROJECT, ACID RAIN MAY OCCUR IN THE COMBUSTION OF COAL, TO WIT
–XXXX
DURING THE OPERATION PHASE, COMBUSTION OF COAL WILL RESULT IN
EMISSIONS OF PARTICULATES SOX AND NOX. THIS MAY CONTRIBUTE TO
THE OCCURRENCE OF ACID RAIN DUE TO ELEVATED SO2 LEVELS IN THE
ATMOSPHERE. HIGH LEVELS OF NO2 EMISSIONS MAY GIVE RISE TO
HEALTH PROBLEMS FOR RESIDENTS WITHIN THE IMPACT AREA.
XXXX
ASTHMA ATTACKS
36. THE SAME EPRMP143 MENTIONED THE INCIDENCE OF ASTHMA
ATTACKS [AS A] RESULT OF POWER PLANT OPERATIONS, TO WIT –
XXXX
THE INCIDENCE OF ASTHMA ATTACKS AMONG RESIDENTS IN THE
VICINITY OF THE PROJECT SITE MAY INCREASE DUE TO EXPOSURE TO
SUSPENDED PARTICULATES FROM PLANT OPERATIONS.144
RP ENERGY, HOWEVER, COUNTERS THAT THE ABOVE PORTIONS OF THE
EIS WERE QUOTED OUT OF CONTEXT. AS TO THE SUBJECT OF ACID RAIN,
THE EIS STATES IN FULL:
OPERATION
DURING THE OPERATION PHASE, COMBUSTION OF COAL WILL RESULT IN
EMISSIONS OF PARTICULATES, SOX AND NOX. THIS MAY CONTRIBUTE TO
THE OCCURRENCE OF ACID RAIN DUE TO ELEVATED SO2 LEVELS IN THE
ATMOSPHERE. HIGH LEVELS OF NO2 EMISSIONS MAY GIVE RISE TO
HEALTH PROBLEMS FOR RESIDENTS WITHIN THE IMPACT AREA.
EMISSIONS MAY ALSO HAVE AN EFFECT ONVEGETATION (SECTION
4.1.4.2). HOWEVER, THE USE OF CFBC TECHNOLOGY IS A BUILT-IN
MEASURE THAT RESULTS IN REDUCED EMISSION CONCENTRATIONS.
SOX EMISSIONS WILL BEMINIMISED BY THE INCLUSION OF A
DESULFURISATION PROCESS, WHILST NOX EMISSIONS WILL BE REDUCED
AS THE COAL IS BURNED AT A TEMPERATURE LOWER THAN THAT
REQUIRED TO OXIDISE NITROGEN.145(EMPHASIS SUPPLIED)
AS TO THE SUBJECT OF ASTHMA ATTACKS, THE EIS STATES IN FULL:
THE INCIDENCE OF ASTHMA ATTACKS AMONG RESIDENTS IN THE
VICINITY OF THE PROJECT SITE MAY INCREASE DUE TO EXPOSURETO
SUSPENDED PARTICULATES FROM PLANT OPERATIONS. COAL AND ASH
PARTICULATES MAY ALSO BECOME SUSPENDED AND DISPERSED INTO
THE AIR DURING UNLOADING AND TRANSPORT, DEPENDING ON WIND
SPEED AND DIRECTION. HOWEVER, EFFECT ON AIR QUALITY DUE TO
WINDBLOWN COAL PARTICULATES WILL BE INSIGNIFICANT AS THE COAL
HANDLING SYSTEM WILL HAVE ENCLOSURES (I.E. ENCLOSED
CONVEYORS AND COAL DOME) TO ELIMINATE THE EXPOSURE OF COAL
TO OPEN AIR, AND THEREFORE GREATLY REDUCE THE POTENTIAL FOR
PARTICULATES FROM BEING CARRIED AWAY BY WIND (COALHANDLING
SYSTEMS, SECTION 3.4.3.3). IN ADDITION, THE PROPOSED PROCESS WILL
INCLUDE AN ELECTROSTATICPRECIPITATOR THAT WILL REMOVE FLY ASH
FROM THE FLUE GAS PRIOR TO ITS RELEASE THROUGH THE STACKS,
AND SO PARTICULATES EMISSIONS WILL BE MINIMAL.146 (EMPHASIS
SUPPLIED)
WE AGREE WITH RP ENERGY THAT, WHILE THE EIS DISCUSSES THE
SUBJECTS OF ACID RAIN AND ASTHMA ATTACKS, IT GOES ON TO STATE
THAT THERE ARE MITIGATING MEASURES THAT WILL BE PUT IN PLACE TO
PREVENT THESE ILL EFFECTS. QUITE CLEARLY, THE CASIÑO GROUP
QUOTED PIECEMEAL THE EIS IN SUCHA WAY AS TO MISLEAD THIS COURT
AS TO ITS TRUE AND FULL CONTENTS.
WE DEPLORE THE WAY THE CASIÑO GROUP HAS ARGUED THIS POINT
AND WE TAKE THIS TIME TO REMIND IT THAT LITIGANTS SHOULD NOT
TRIFLE WITHCOURT PROCESSES. ALONG THE SAME LINES, WE NOTE
HOW THE CASIÑO GROUP HAS MADE SERIOUS ALLEGATIONS IN ITS
PETITION FOR WRIT OF KALIKASANBUT FAILED TO SUBSTANTIATE THE
SAME IN THE COURSE OF THE PROCEEDINGS BEFORE THE APPELLATE
COURT. IN PARTICULAR, DURING THE PRELIMINARY CONFERENCE OF
THIS CASE, THE CASIÑO GROUP EXPRESSLY ABANDONED ITS FACTUAL
CLAIMS ON THE ALLEGED GRAVE ENVIRONMENTAL DAMAGE THAT WILL
BE CAUSED BY THE POWER PLANT (I.E., AIR, WATER AND LAND
POLLUTION) AND, INSTEAD, LIMITED ITSELF TO LEGAL ISSUES
REGARDING THE ALLEGED NON-COMPLIANCE OF RP ENERGY WITH
CERTAIN LAWS AND RULES IN THE PROCUREMENT OF THE ECC.147 WE
ALSO NOTE HOW THE CASIÑO GROUP FAILED TO COMMENT ON THE
SUBJECT PETITIONS BEFORE THIS COURT, WHICH LED THIS COURT TO
EVENTUALLY DISPENSE WITH ITS COMMENT.148 WE MUST EXPRESS OUR
DISAPPROVAL OVER THE WAY IT HAS PROSECUTED ITSCLAIMS,
BORDERING AS IT DOES ON TRIFLING WITH COURT PROCESSES. WE
DEEM ITPROPER, THEREFORE, TO ADMONISHIT TO BE MORE
CIRCUMSPECT IN HOW IT PROSECUTESITS CLAIMS.
IN SUM, WE AGREE WITH THE APPELLATE COURT THAT THE CASIÑO
GROUP FAILED TO SUBSTANTIATE ITS CLAIMS THATTHE CONSTRUCTION
AND OPERATION OF THE POWER PLANT WILL CAUSE ENVIRONMENTAL
DAMAGE OF THE MAGNITUDE CONTEMPLATED UNDER THE WRIT OF
KALIKASAN. THE EVIDENCE IT PRESENTED IS INADEQUATE TO ESTABLISH
THE FACTUAL BASES OF ITS CLAIMS.
II.
WHETHER THE ECC IS INVALID FOR LACK OF SIGNATURE OF MR. LUIS
MIGUEL ABOITIZ (MR. ABOITIZ), AS REPRESENTATIVE OF RP ENERGY, IN
THE STATEMENT OF ACCOUNTABILITY OF THE ECC.
THE APPELLATE COURT RULED THAT THE ECC IS INVALID BECAUSE MR.
ABOITIZ FAILED TO SIGN THE STATEMENT OF ACCOUNTABILITY PORTION
OF THE ECC.
WE SHALL DISCUSS THE CORRECTNESS OFTHIS RULING ON BOTH
PROCEDURAL AND SUBSTANTIVE GROUNDS. PROCEDURALLY, WE
CANNOT FAULT THE DENR FOR PROTESTING THE MANNER BY WHICH THE
APPELLATE COURT RESOLVED THE ISSUE OF THE AFORESAID LACK OF
SIGNATURE. WE AGREE WITH THE DENR THAT THIS ISSUE WAS NOT
AMONG THOSE RAISED BY THE CASIÑO GROUP IN ITS PETITION FOR WRIT
OF KALIKASAN.149 WHAT IS MORE, THIS WAS NOT ONE OF THE TRIABLE
ISSUES SPECIFICALLYSET DURING THE PRELIMINARY CONFERENCE OF
THIS CASE.150
HOW THEN DID THE ISSUE OFLACK OF SIGNATURE ARISE?
A REVIEW OF THE VOLUMINOUS RECORDS INDICATES THAT THE
MATTEROF THE LACK OF SIGNATURE WAS DISCUSSED, DEVELOPED OR
SURFACED ONLY INTHE COURSE OF THE HEARINGS, SPECIFICALLY, ON
CLARIFICATORY QUESTIONS FROM THE APPELLATE COURT, TO WIT:
J. LEAGOGO:
I WOULD ALSO SHOW TO YOU YOUR ECC, THAT’S PAGE 622 OF THE
ROLLO. I AM SHOWING TO YOU THIS ENVIRONMENTAL COMPLIANCE
CERTIFICATE DATED DECEMBER 22, 2008 ISSUED BY SEC. JOSE L.
ATIENZA, JR. OF THE DENR. THIS IS YOUR "EXHIBIT "18." WOULD YOU LIKE
TO GO OVER THIS? ARE YOU FAMILIAR WITH THIS DOCUMENT?
MS. MERCADO:
YES, IT[’]S MY ANNEX "3," YOUR HONOR.
J. LEAGOGO:
I WOULD LIKE TO REFER YOU TO PAGE 3 OF THE ECC DATED DECEMBER
22, 2008. PAGE 2 REFERS TO THE ENVIRONMENTAL COMPLIANCE
CERTIFICATE, ECC REF. NO. 0804-011-4021. THAT’S PAGE 2 OF THE
LETTER DATED DECEMBER 22, 2008. AND ON PAGE 3, DR. JULIAN AMADOR
RECOMMENDED APPROVAL AND IT WAS APPROVED BY SEC. ATIENZA.
YOU SEE THAT ON PAGE 3?
MS. MERCADO:
YES, YOUR HONOR.
J. LEAGOGO:
OKAY. ON THE SAME PAGE, PAGE 3, THERE’S A STATEMENT OF
ACCOUNTABILITY.
MS. MERCADO:
YES, YOUR HONOR.
J. LEAGOGO:
LUIS, WHO IS LUIS MIGUEL ABOITIZ?
MS. MERCADO:
DURING THAT TIME HE WAS THE AUTHORIZED REPRESENTATIVE OF RP
ENERGY,
YOUR HONOR.
J. LEAGOGO:
NOW, WHO IS THE AUTHORIZED REPRESENTATIVE OF RP ENERGY?
MS. MERCADO:
IT WOULD BE MR. AARON DOMINGO, I BELIEVE.
J. LEAGOGO:
PLEASE TELL THE COURT WHY THIS WAS NOT SIGNED BY MR. LUIS
MIGUEL ABOITIZ, THE STATEMENT OF ACCOUNTABILITY?
BECAUSE THE STATEMENT OF ACCOUNTABILITY SAYS, "MR. LUIS MIGUEL
ABOITIZ, DIRECTOR, REPRESENTING REDONDO PENINSULA ENERGY
WITH OFFICE ADDRESS LOCATED AT 110 LEGASPI STREET, LEGASPI
VILLAGE, MAKATI CITY, TAKES FULL RESPONSIBILITY IN COMPLYING WITH
ALL CONDITIONS IN THISENVIRONMENTAL COMPLIANCE CERTIFICATE
[ECC][.]" WILL YOU TELL THIS COURT WHY THIS WAS NOT SIGNED?
MS. MERCADO:
IT WAS SIGNED, YOUR HONOR, BUT THIS COPY WASN’T SIGNED. MY
APOLOGIES, I WAS THE ONE WHO PROVIDED THIS, I BELIEVE, TO THE
LAWYERS. THIS COPY WAS NOT SIGNED BECAUSE DURING….
J. LEAGOGO:
BUT THIS IS YOUR EXHIBIT, THIS IS YOUREXHIBIT "18" AND THIS IS NOT
SIGNED. DO YOU AGREE WITH ME THAT YOUR EXHIBIT "18" IS NOT
SIGNED BY MR. ABOITIZ?
MS. MERCADO:
THAT’S CORRECT, YOUR HONOR.151
WE FIND THIS LINE OF QUESTIONING INADEQUATE TO APPRISE THE
PARTIES THAT THE LACK OF SIGNATURE WOULD BE A KEY ISSUE IN THIS
CASE; AS IN FACT IT BECAME DECISIVE IN THE EVENTUAL INVALIDATION
OF THE ECC BY THE APPELLATE COURT.
CONCEDEDLY, A COURT HAS THE POWER TO SUSPEND ITS RULES OF
PROCEDURE IN ORDER TO ATTAIN SUBSTANTIAL JUSTICE SO THAT IT
HAS THE DISCRETION, IN EXCEPTIONAL CASES, TO TAKE INTO
CONSIDERATION MATTERS NOT ORIGINALLY WITHIN THE SCOPE OF THE
ISSUES RAISED IN THE PLEADINGS OR SET DURING THE PRELIMINARY
CONFERENCE, IN ORDER TO PREVENT A MISCARRIAGE OF JUSTICE. IN
THE CASE AT BAR, THE IMPORTANCE OF THE SIGNATURE CANNOT BE
SERIOUSLY DOUBTED BECAUSE IT GOES INTO THE CONSENT AND
COMMITMENT OF THE PROJECT PROPONENT TO COMPLY WITH THE
CONDITIONS OF THE ECC, WHICH IS VITAL TO THE PROTECTION OF THE
RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY OF THOSE WHO MAY
BE AFFECTED BY THE PROJECT. NONETHELESS, THE POWER OF A
COURT TOSUSPEND ITS RULES OF PROCEDURE IN EXCEPTIONAL CASES
DOES NOT LICENSE IT TO FOIST A SURPRISE ON THE PARTIES IN A GIVEN
CASE. TO ILLUSTRATE, IN ORAL ARGUMENTS BEFORE THIS COURT,
INVOLVING SUFFICIENTLY IMPORTANT PUBLIC INTEREST CASES, WE
NOTE THAT INDIVIDUAL MEMBERS OF THE COURT, FROM TIME TO TIME,
POINT OUT MATTERS THAT MAY NOT HAVE BEEN SPECIFICALLY
COVERED BY THE ADVISORY (THE ADVISORY DELINEATES THE ISSUES
TO BE ARGUED AND DECIDED). HOWEVER, A DIRECTIVE IS GIVEN TO THE 1.0 SCREENING SCREENINGDETERMINES IF A PROJECT IS COVERED OR NOT COVERED
CONCERNED PARTIES TO DISCUSS THE AFORESAID MATTERS IN THEIR
MEMORANDA. SUCH A PROCEDURE ENSURES THAT, AT THE VERY LEAST,
THE PARTIES ARE APPRISED THAT THE COURT HAS TAKEN AN INTEREST
IN SUCH MATTERS AND MAY ADJUDICATE THE CASE ON THE BASIS
THEREOF. THUS, THE PARTIES ARE GIVEN AN OPPORTUNITY TO
ADEQUATELY ARGUE THE ISSUE OR MEET THE ISSUE HEAD-ON. WE,
THEREFORE, FIND THAT THE APPELLATE COURT SHOULD HAVE, AT THE
VERY LEAST, DIRECTED RP ENERGY AND THE DENR TO DISCUSS AND
ELABORATE ON THE ISSUE OF LACK OF SIGNATURE IN THE
PRESENTATION OF THEIR EVIDENCE AND MEMORANDA, BEFOREMAKING
A DEFINITIVE RULING THAT THE LACK THEREOF INVALIDATED THE
ECC.THIS IS IN KEEPING WITH THE BASIC TENETS OF DUE PROCESS.
AT ANY RATE, WE SHALL DISREGARD THE PROCEDURAL DEFECT AND
RULE DIRECTLY ON WHETHER THE LACK OF SIGNATURE INVALIDATED
THE ECC IN THE INTEREST OF SUBSTANTIAL JUSTICE.
THE LAWS GOVERNING THE ECC, I.E., PRESIDENTIALDECREE NO. (PD)
1151 AND PD 1586, DO NOT SPECIFICALLY STATE THAT THE LACK OF
SIGNATURE IN THE STATEMENT OF ACCOUNTABILITY HAS THE EFFECT
OF INVALIDATING THE ECC. UNLIKE IN WILLS OR DONATIONS, WHERE
FAILURE TO COMPLY WITHTHE SPECIFIC FORM PRESCRIBED BY LAW
LEADS TO ITS NULLITY,152 THE APPLICABLE LAWS HERE ARE SILENTWITH
RESPECT TO THE NECESSITY OF A SIGNATURE IN THE STATEMENT OF
ACCOUNTABILITY AND THE EFFECT OF THE LACK THEREOF. THIS IS, OF
COURSE, UNDERSTANDABLE BECAUSE THE STATEMENT OF
ACCOUNTABILITY IS A MERE OFF-SHOOT OF THE RULE-MAKING POWERS
OF THE DENR RELATIVE TOTHE IMPLEMENTATION OF PD 1151 AND PD
1586. TO DETERMINE, THEREFORE, THE EFFECT OF THE LACK OF
SIGNATURE, WE MUST LOOK ATTHE SIGNIFICANCE THEREOF UNDER THE
ENVIRONMENTAL IMPACT ASSESSMENT (EIA) RULES OF THE DENR AND
THE SURROUNDING CIRCUMSTANCES OF THIS CASE.
TO PLACE THIS ISSUE IN ITS PROPER CONTEXT, A HELPFUL OVERVIEW
OF THE STAGES OF THE EIA PROCESS, TAKEN FROM THE REVISED
MANUAL, IS REPRODUCED BELOW:
FIGURE 1-3 OVERVIEW OF STAGES OF THE PHILIPPINE EIA PROCESS153
BY THE PEISS.154IF A PROJECT IS COVERED, SCREENING FURTHER
DETERMINES WHAT DOCUMENT TYPE THE PROJECT SHOULD PREPARE
TO SECURE THE NEEDED APPROVAL, AND WHAT THE REST OF THE
REQUIREMENTS ARE IN TERMS OF EMB OFFICE OF APPLICATION,
ENDORSING AND DECISION AUTHORITIES, DURATION OF PROCESSING.
2.0 SCOPING SCOPINGIS A PROPONENT-DRIVEN MULTI-SECTORAL FORMAL PROCESS
OF DETERMINING THE FOCUSED TERMS OF REFERENCE OF THE EIA
STUDY. SCOPING IDENTIFIES THE MOST SIGNIFICANT ISSUES/IMPACTS
5.0 DECISION
OF A PROPOSED PROJECT, AND THEN, DELIMITS THE EXTENT OFMAKING
BASELINE INFORMATION TO THOSE NECESSARY TO EVALUATE AND
MITIGATE THE IMPACTS. THE NEED FOR AND SCOPE OF AN
ENVIRONMENTAL RISK ASSESSMENT (ERA) IS ALSO DONE DURING THE
SCOPING SESSION. SCOPING IS DONE WITH THE LOCAL COMMUNITY
THROUGH PUBLIC SCOPING AND WITH A THIRD PARTY EIA REVIEW
COMMITTEE (EIARC) THROUGH TECHNICAL SCOPING, BOTH WITH THE
PARTICIPATION OF THE DENR-EMB. THE PROCESS RESULTS IN A
SIGNED FORMAL SCOPING CHECKLIST BY THE REVIEW TEAM, WITH
FINAL APPROVAL BY THE EMB CHIEF.
EIA STUDY THE EIA STUDYINVOLVES A DESCRIPTION OF THE PROPOSED PROJECT
AND AND ITS ALTERNATIVES, CHARACTERIZATION OF THE PROJECT
3.0 REPORT ENVIRONMENT, IMPACT IDENTIFICATION AND PREDICTION, EVALUATION
PREPARATION OF IMPACT SIGNIFICANCE, IMPACT MITIGATION, FORMULATION OF
ENVIRONMENTAL MANAGEMENT AND MONITORING PLAN,
WITHCORRESPONDING COST ESTIMATES AND INSTITUTIONAL SUPPORT
COMMITMENT. THE STUDY RESULTS ARE PRESENTED IN AN EIA
REPORTFOR WHICH AN OUTLINE IS PRESCRIBED BY EMB FOR EVERY
MAJOR DOCUMENT TYPE MONITORING.
6.0
EIA REPORT REVIEW OF EIA REPORTSNORMALLY ENTAILS AN EMB PROCEDURAL VALIDATION,
4.0 REPORT SCREENING FOR COMPLIANCE WITH MINIMUM REQUIREMENTS AND
AND SPECIFIED DURING SCOPING, FOLLOWED BY A SUBSTANTIVE REVIEW
EVALUATION/
EVALUATION OF EITHER COMPOSED THIRD PARTY EXPERTS COMMISSIONED BY AUDIT
EMB
AS THE EIA REVIEW COMMITTEE FOR PEIS/EIS-BASED APPLICATIONS,
OR DENR/EMB INTERNAL SPECIALISTS, THE TECHNICAL COMMITTEE,
FOR IEE-BASED APPLICATIONS. EMB EVALUATES THE EIARC
RECOMMENDATIONS AND THE PUBLIC’S INPUTS DURING PUBLIC
CONSULTATIONS/HEARINGS IN THE PROCESS OF RECOMMENDING A
DECISION ON THE APPLICATION. THE EIARC CHAIR SIGNS EIARC
RECOMMENDATIONS INCLUDING ISSUES OUTSIDE THE MANDATE OF
THE EMB. THE ENTIRE EIA REVIEW AND EVALUATION PROCESS IS
SUMMARIZED IN THE REVIEW PROCESS REPORT (RPR) OF THE EMB,
WHICH INCLUDES A DRAFT DECISION DOCUMENT.
DECISION MAKING INVOLVES EVALUATION OF EIA RECOMMENDATIONS
AND THE DRAFT DECISION DOCUMENT, RESULTING TO THE ISSUANCE
OF AN ECC, CNC OR DENIAL LETTER. WHEN APPROVED, A COVERED
PROJECT IS ISSUED ITS CERTIFICATE OF ENVIRONMENTAL
COMPLIANCE COMMITMENT (ECC) WHILE AN APPLICATION OF A NON-
COVERED PROJECT IS ISSUED A CERTIFICATE OF NON-COVERAGE
(CNC). ENDORSING AND DECIDING AUTHORITIES ARE DESIGNATED BY
AO 155 42, AND FURTHER DETAILED IN THIS MANUAL FOR EVERY
REPORT TYPE. MOREOVER, THE PROPONENT SIGNS A SWORN
STATEMENT OF FULL RESPONSIBILITY ON IMPLEMENTATION OF ITS
COMMITMENTS PRIOR TO THE RELEASE OF THE ECC. 156 THE ECC IS
THEN TRANSMITTED TO CONCERNED LGUS AND OTHER GAS FOR
INTEGRATION INTO THEIR DECISIONMAKING PROCESS. THE
REGULATED PART OF EIA REVIEW IS LIMITED TO THE PROCESSES
WITHIN EMB CONTROL. THE TIMELINES FOR THE ISSUANCE OF
DECISION DOCUMENTS PROVIDED FOR IN AO 42 AND DAO 2003-30 ARE
APPLICABLE ONLY FROM THE TIME THE EIA REPORT IS ACCEPTED FOR
SUBSTANTIVE REVIEW TO THE TIME A DECISION IS ISSUED ON THE
APPLICATION.
MONITORING, VALIDATION AND EVALUATION/AUDIT STAGE ASSESSES
PERFORMANCE OF THE PROPONENT AGAINST THE ECC AND
ITSCOMMITMENTS IN THE ENVIRONMENTAL MANAGEMENT AND
MONITORING PLANS TO ENSURE ACTUAL IMPACTS OF THE PROJECT
ARE ADEQUATELY PREVENTED OR MITIGATED.
THE SIGNING OF THE STATEMENT OF ACCOUNTABILITY TAKES PLACEAT
THE DECISION MAKING STAGE. AFTER A FAVORABLE REVIEW OF ITS ECC
APPLICATION, THE PROJECT PROPONENT, THROUGH ITS AUTHORIZED
REPRESENTATIVE, IS MADE TO SIGN A SWORN STATEMENT OF FULL
RESPONSIBILITY ON THE IMPLEMENTATION OFITS COMMITMENTS PRIOR
TO THE OFFICIAL RELEASE OF THE ECC.
THE DEFINITION OF THE ECC IN THE REVISED MANUAL HIGHLIGHTS THE
IMPORTANCE OF THE SIGNING OF THE STATEMENT OF ACCOUNTABILITY:
ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) - A CERTIFICATE OF
ENVIRONMENTAL COMPLIANCE COMMITMENT TO WHICH THE
PROPONENT CONFORMS WITH, AFTER DENR-EMB EXPLAINS THE ECC
CONDITIONS, BY SIGNING THE SWORN UNDERTAKING OF FULL
RESPONSIBILITY OVER IMPLEMENTATION OF SPECIFIED MEASURES
WHICH ARE NECESSARY TO COMPLY WITH EXISTING ENVIRONMENTAL
REGULATIONS OR TO OPERATE WITHIN BEST ENVIRONMENTAL
PRACTICES THAT ARE NOT CURRENTLY COVERED BY EXISTING LAWS. IT
IS A DOCUMENT ISSUED BY THE DENR/EMB AFTER A POSITIVE REVIEW OF
AN ECC APPLICATION, CERTIFYING THAT THE PROPONENT HAS
COMPLIED WITH ALL THE REQUIREMENTS OF THE EIS SYSTEM AND HAS
COMMITTED TO IMPLEMENT ITS APPROVED ENVIRONMENTAL
MANAGEMENT PLAN. THE ECC ALSO PROVIDES GUIDANCE TO OTHER
AGENCIES AND TO LGUS ON EIA FINDINGS AND RECOMMENDATIONS,
WHICH NEED TO BE CONSIDERED IN THEIR RESPECTIVE DECISION-
MAKING PROCESS.157 (EMPHASIS SUPPLIED)
AS CAN BE SEEN, THE SIGNING OF THE STATEMENT OF
ACCOUNTABILITYIS AN INTEGRAL AND SIGNIFICANT COMPONENT OF THE
EIA PROCESS AND THE ECC ITSELF. THE EVIDENT INTENTION IS TO BIND
THE PROJECT PROPONENTTO THE ECC CONDITIONS, WHICH WILL
ENSURE THAT THE PROJECT WILL NOT CAUSE SIGNIFICANT NEGATIVE
ENVIRONMENTAL IMPACTS BY THE "IMPLEMENTATION OF SPECIFIED
MEASURES WHICH ARE NECESSARY TO COMPLY WITH EXISTING
ENVIRONMENTAL REGULATIONS OR TOOPERATE WITHIN BEST
ENVIRONMENTAL PRACTICES THAT ARE NOT CURRENTLY COVERED BY
EXISTING LAWS." INDEED, THE EIA PROCESS WOULD BE A MEANINGLESS
EXERCISE IF THE PROJECT PROPONENT SHALL NOT BE STRICTLY BOUND
TO FAITHFULLY COMPLY WITHTHE CONDITIONS NECESSARY
TOADEQUATELY PROTECT THE RIGHT OF THE PEOPLE TO A HEALTHFUL
AND BALANCED ECOLOGY.
CONTRARY TO RP ENERGY’S POSITION, WE, THUS, FIND THAT THE
SIGNATURE OF THE PROJECT PROPONENT’S REPRESENTATIVE IN THE
STATEMENT OF ACCOUNTABILITY IS NECESSARY FOR THE VALIDITY OF
THE ECC. IT IS NOT, AS RP ENERGY WOULD HAVE IT, A MERE FORMALITY
AND ITS ABSENCE A MERE FORMAL DEFECT.
THE QUESTION THEN IS, WAS THE ABSENCE OF THE SIGNATURE OF MR.
ABOITIZ, AS REPRESENTATIVE OF RP ENERGY, IN THE STATEMENT OF
ACCOUNTABILITY SUFFICIENT GROUND TO INVALIDATE THE ECC?
VIEWED WITHIN THE PARTICULAR CIRCUMSTANCES OF THIS CASE, WE
ANSWER IN THE NEGATIVE.
WHILE IT IS CLEAR THAT THE SIGNING OF THE STATEMENT OF
ACCOUNTABILITY IS NECESSARY FOR THE VALIDITY OFTHE ECC, WE
CANNOT CLOSE OUREYES TO THE PARTICULAR CIRCUMSTANCES OF
THIS CASE. SO OFTEN HAVE WE RULED THAT THIS COURT IS NOT
MERELY A COURT OF LAW BUT A COURT OF JUSTICE. WE FIND THAT
THERE ARE SEVERAL CIRCUMSTANCES PRESENT IN THIS CASE WHICH
MILITATE AGAINST THE INVALIDATION OF THE ECC ON THIS GROUND.
WE EXPLAIN.
FIRST, THE REASON FOR THE LACK OF SIGNATURE WAS NOT
ADEQUATELY TAKEN INTO CONSIDERATION BY THE APPELLATE COURT.
TO REITERATE, THE MATTER SURFACED DURING THE HEARING OF THIS
CASE ON CLARIFICATORY QUESTIONS BY THE APPELLATE COURT, VIZ:
J. LEAGOGO:
PLEASE TELL THE COURT WHY THIS WAS NOT SIGNED BY MR. LUIS
MIGUEL ABOITIZ, THE STATEMENT OF ACCOUNTABILITY?
BECAUSE THE STATEMENT OF ACCOUNTABILITY SAYS, "MR. LUIS MIGUEL
ABOITIZ, DIRECTOR, REPRESENTING REDONDO PENINSULA ENERGY
WITH OFFICE ADDRESS LOCATED AT 110 LEGASPI STREET, LEGASPI
VILLAGE, MAKATI CITY, TAKES FULL RESPONSIBILITY IN COMPLYING WITH
ALL CONDITIONS IN THIS ENVIRONMENTAL COMPLIANCE CERTIFICATE
[ECC][.]" WILL YOU TELL THIS COURT WHY THIS WAS NOT SIGNED?
MS. MERCADO:
IT WAS SIGNED, YOUR HONOR, BUT THIS COPY WASN’T SIGNED. MY
APOLOGIES, I WAS THE ONE WHO PROVIDED THIS, I BELIEVE, TO THE
LAWYERS. THIS COPY WAS NOT SIGNED BECAUSE DURING…
J. LEAGOGO:
BUT THIS IS YOUR EXHIBIT, THIS IS YOUREXHIBIT "18" AND THIS IS NOT
SIGNED. DO YOU AGREE WITH ME THAT YOUR EXHIBIT "18" IS NOT
SIGNED BY MR. ABOITIZ?
MS. MERCADO:
THAT’S CORRECT, YOUR HONOR.158 (EMPHASIS SUPPLIED)
DUE TO THE INADEQUACY OF THE TRANSCRIPTAND THE APPARENT LACK
OF OPPORTUNITY FOR THE WITNESS TO EXPLAIN THE LACK OF
SIGNATURE, WE FIND THAT THE WITNESS’ TESTIMONY DOES NOT, BY
ITSELF, INDICATE THAT THERE WAS A DELIBERATE OR MALICIOUS INTENT
NOT TO SIGN THE STATEMENT OF ACCOUNTABILITY.
SECOND, AS PREVIOUSLY DISCUSSED, THE CONCERNED PARTIES TO
THIS CASE, SPECIFICALLY, THE DENR AND RP ENERGY, WERENOT
PROPERLY APPRISED THAT THE ISSUE RELATIVE TO THE LACK OF
SIGNATURE WOULD BE DECISIVE INTHE DETERMINATION OF THE
VALIDITY OF THE ECC. CONSEQUENTLY, THE DENR AND RPENERGY
CANNOT BE FAULTED FOR NOT PRESENTING PROOF DURING THE
COURSE OFTHE HEARINGS TO SQUARELY TACKLE THE ISSUE OF LACK
OF SIGNATURE.
THIRD, AFTER THE APPELLATE COURT RULED IN ITS JANUARY 30, 2013
DECISION THAT THE LACK OF SIGNATURE INVALIDATED THE ECC,RP
ENERGY ATTACHED, TO ITS MOTION FOR PARTIAL RECONSIDERATION, A
CERTIFIED TRUE COPY OF THE ECC, ISSUED BY THE DENREMB, WHICH
BORE THE SIGNATURE OF MR. ABOITIZ. THE CERTIFIED TRUE COPY OF
THE ECC SHOWED THAT THE STATEMENT OF ACCOUNTABILITY WAS
SIGNED BY MR. ABOITIZ ON DECEMBER 24, 2008.159
THE AUTHENTICITY AND VERACITY OF THIS CERTIFIED TRUE COPY OF
THE ECC WAS NOT CONTROVERTED BY THE CASIÑO GROUP IN
ITSCOMMENT ON RP ENERGY’S MOTION FOR PARTIAL RECONSIDERATION
BEFORE THE APPELLATE COURT NOR IN THEIR PETITION BEFORE THIS
COURT. THUS, IN ACCORDANCE WITH THE PRESUMPTION OF
REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTIES, IT REMAINS
UNCONTROVERTED THAT THE ECC ON FILE WITH THE DENR CONTAINS
THE REQUISITE SIGNATURE OF MR. ABOITIZ IN THE STATEMENT OF
ACCOUNTABILITY PORTION.
AS PREVIOUSLY NOTED, THE DENR AND RPENERGY WERE NOT
PROPERLY APPRISED THAT THE ISSUE RELATIVE TO THE LACK
OFSIGNATURE WOULD BE DECISIVE IN THE DETERMINATION OF THE
VALIDITY OF THE ECC. AS A RESULT, WE CANNOT FAULT RP ENERGY FOR
SUBMITTING THE CERTIFIED TRUE COPY OF THE ECC ONLY AFTER IT
LEARNED THAT THE APPELLATE COURT HAD INVALIDATED THE ECC ON
THE GROUND OF LACK OFSIGNATURE IN ITS JANUARY 30, 2013 DECISION.
WE NOTE, HOWEVER, THAT, AS PREVIOUSLY DISCUSSED, THE CERTIFIED
TRUE COPY OF THE STATEMENT OF ACCOUNTABILITY WAS SIGNED BY
MR. ABOITIZ ON DECEMBER 24, 2008 OR TWO DAYS AFTER THE ECC’S
OFFICIAL RELEASE ON DECEMBER 22, 2008. THE AFOREDISCUSSED
RULES UNDER THE REVISED MANUAL, HOWEVER, STATE THAT THE
PROPONENT SHALL SIGN THE SWORN STATEMENT OF FULL
RESPONSIBILITY ON IMPLEMENTATION OF ITS COMMITMENTS PRIORTO
THE RELEASE OF THE ECC. ITWOULD SEEM THAT THE ECC WAS FIRST
ISSUED, THEN IT WAS SIGNED BY MR. ABOITIZ, AND THEREAFTER,
RETURNED TO THE DENR TO SERVE AS ITS FILE COPY. ADMITTEDLY,
THERE IS LACK OF STRICT COMPLIANCE WITH THE RULES ALTHOUGH
THE SIGNATURE ISPRESENT. BE THATAS IT MAY, WE FIND NOTHING IN
THE RECORDS TO INDICATE THAT THIS WAS DONE WITH BAD FAITH OR
INEXCUSABLE NEGLIGENCE BECAUSE OF THE INADEQUACY OF THE
EVIDENCE AND ARGUMENTS PRESENTED, RELATIVE TO THE ISSUE OF
LACK OF SIGNATURE, IN VIEW OF THE MANNER THIS ISSUE AROSE IN
THIS CASE, AS PREVIOUSLY DISCUSSED. ABSENT SUCH PROOF, WE ARE
NOT PREPARED TO RULE THAT THE PROCEDURE ADOPTED BY THE DENR
WAS DONE WITH BAD FAITHOR INEXCUSABLE NEGLIGENCE BUT WE
REMIND THE DENR TO BE MORE CIRCUMSPECT IN FOLLOWING THE
RULES IT PROVIDED IN THE REVISED MANUAL. THUS, WE RULE THAT THE
SIGNATURE REQUIREMENT WAS SUBSTANTIALLY COMPLIED WITH PRO
HAC VICE.
FOURTH, WE PARTLY AGREE WITH THE DENRTHAT THE SUBSEQUENT
LETTER-REQUESTS FOR AMENDMENTS TO THE ECC, SIGNED BY MR.
ABOITIZ ON BEHALF OF RP ENERGY, INDICATE ITS IMPLIED CONFORMITY
TO THE ECC CONDITIONS. IN PRACTICAL TERMS, IF FUTURE LITIGATION
SHOULD OCCUR DUE TO VIOLATIONS OF THE ECC CONDITIONS, RP
ENERGY WOULD BE ESTOPPED FROM DENYING ITS CONSENT AND
COMMITMENT TO THE ECC CONDITIONS EVEN IF THERE WAS NO
SIGNATURE IN THE STATEMENT OF ACCOUNTABILITY. HOWEVER, WE
NOTE THAT THE STATEMENT OF ACCOUNTABILITY PRECISELY SERVES
TO OBVIATE ANY DOUBT AS TO THE CONSENT AND COMMITMENT OF THE
PROJECT PROPONENT TO THE ECC CONDITIONS. AT ANY RATE, THE
AFORESAID LETTER-REQUESTS DO ADDITIONALLY INDICATE RP
ENERGY’S CONFORMITY TO THE ECC CONDITIONS AND, THUS, NEGATE A
PATTERN TO MALICIOUSLY EVADE ACCOUNTABILITY FOR THE ECC
CONDITIONS OR TO INTENTIONALLY CREATE A "LOOPHOLE" IN THE ECC
TO BE EXPLOITED IN A POSSIBLE FUTURELITIGATION OVER NON-
COMPLIANCE WITH THE ECC CONDITIONS.
IN SUM, WE RULE THAT THE APPELLATE COURT ERRED WHEN IT
INVALIDATED THE ECC ON THE GROUND OF LACK OF SIGNATURE OF MR.
ABOITIZ IN THE ECC’S STATEMENT OF ACCOUNTABILITY RELATIVE TO
THE COPY OF THE ECC SUBMITTED BY RP ENERGY TO THE APPELLATE
COURT. WHILE THE SIGNATURE IS NECESSARY FOR THE VALIDITY OF THE
ECC, THE PARTICULAR CIRCUMSTANCES OF THIS CASE SHOW THAT THE
DENR AND RP ENERGY WERE NOT PROPERLY APPRISED OF THE ISSUE
OF LACK OFSIGNATURE IN ORDER FOR THEM TO PRESENT
CONTROVERTING EVIDENCE AND ARGUMENTS ON THIS POINT, AS THE
MATTER ONLY DEVELOPED DURING THE COURSE OF THE PROCEEDINGS
UPON CLARIFICATORY QUESTIONS FROM THE APPELLATE COURT.
CONSEQUENTLY, RP ENERGY CANNOT BE FAULTED FOR SUBMITTING
THE CERTIFIED TRUE COPY OF THE ECC ONLY AFTER IT LEARNED THAT
THE ECC HAD BEEN INVALIDATED ON THE GROUND OF LACK OF
SIGNATURE IN THE JANUARY 30, 2013 DECISION OF THE APPELLATE
COURT.
THE CERTIFIED TRUE COPY OF THE ECC, BEARING THE SIGNATURE OF
MR. ABOITIZ IN THE STATEMENT OF ACCOUNTABILITY PORTION, WAS
ISSUED BY THE DENR-EMB AND REMAINS UNCONTROVERTED. ITSHOWED
THAT THE STATEMENT OF ACCOUNTABILITY WAS SIGNED BY MR. ABOITIZ
ON DECEMBER 24, 2008. ALTHOUGH THE SIGNING WAS DONE TWO DAYS
AFTER THE OFFICIAL RELEASE OF THE ECC ON DECEMBER 22, 2008,
ABSENT SUFFICIENT PROOF, WE ARE NOT PREPARED TO RULE THAT THE
PROCEDURE ADOPTEDBY THE DENR WAS DONE WITH BAD FAITH OR
INEXCUSABLE NEGLIGENCE. THUS, WERULE THAT THE SIGNATURE
REQUIREMENT WAS SUBSTANTIALLY COMPLIED WITH PRO HAC VICE.
III.
WHETHER THE FIRST AND SECOND AMENDMENTS TO THE ECC ARE
INVALID FOR FAILURE TO UNDERGO A NEW ENVIRONMENTAL IMPACT
ASSESSMENT (EIA) BECAUSE OF THE UTILIZATION OF INAPPROPRIATE
EIA DOCUMENTS.
UPHOLDING THE ARGUMENTS OF THE CASIÑO GROUP, THE APPELLATE
COURT RULED THAT THE FIRST AND SECOND AMENDMENTS TOTHE ECC
WERE INVALID BECAUSE THE ECC CONTAINED AN EXPRESS
RESTRICTION THAT ANY EXPANSION OF THE PROJECT BEYOND THE
PROJECT DESCRIPTION SHALL BE THE SUBJECT OF A NEW EIA. IT FOUND
THAT BOTH AMENDMENTS FAILED TO COMPLY WITH THE APPROPRIATE
EIA DOCUMENTARY REQUIREMENTS UNDER DAO 2003-30 AND THE
REVISED MANUAL. IN PARTICULAR, IT FOUND THAT THE ENVIRONMENTAL
PERFORMANCE REPORT AND MANAGEMENT PLAN (EPRMP) AND
PROJECT DESCRIPTION REPORT (PDR), WHICH RP ENERGY SUBMITTED
TOTHE DENR, RELATIVE TO THE APPLICATION FOR THE FIRST AND
SECOND AMENDMENTS, RESPECTIVELY, WERE NOT THE PROPER EIA
DOCUMENT TYPE. HENCE, THE APPELLATE COURT RULED THAT THE
AFORESAID AMENDMENTS WERE INVALID.
PRELIMINARILY, WE MUST STATE THAT EXECUTIVE ACTIONS CARRY
PRESUMPTIVE VALIDITY SO THAT THE BURDEN OF PROOF IS ON THE
CASIÑO GROUP TO SHOW THAT THE PROCEDURE ADOPTED BYTHE DENR
IN GRANTING THE AMENDMENTS TO THE ECC WERE DONE WITH GRAVE
ABUSE OF DISCRETION. MORE SO HERE BECAUSE THE ADMINISTRATION
OF THE EIA PROCESS INVOLVES SPECIAL TECHNICAL SKILL OR
KNOWLEDGE WHICH THE LAW HAS SPECIFICALLY VESTED IN THE DENR.
AFTER OUR OWN EXAMINATION OF DAO 2003-30 AND THE REVISED
MANUAL AS WELL AS THE VOLUMINOUS EIA DOCUMENTS OF RP ENERGY
APPEARING IN THE RECORDS OF THIS CASE, WE FIND THAT THE
APPELLATE COURT MADE AN ERRONEOUS INTERPRETATION AND
APPLICATION OF THE PERTINENT RULES.
WE EXPLAIN.
AS A BACKGROUNDER, PD 1151 SET THE PHILIPPINE ENVIRONMENT
POLICY. NOTABLY, THIS LAW RECOGNIZED THE RIGHT OFTHE PEOPLE TO
A HEALTHFUL ENVIRONMENT.160 PURSUANT THERETO, IN EVERY ACTION,
PROJECT OR UNDERTAKING, WHICH SIGNIFICANTLY AFFECTS THE
QUALITY OF THE ENVIRONMENT, ALL AGENCIES AND INSTRUMENTALITIES
OF THE NATIONAL GOVERNMENT, INCLUDING GOVERNMENT-OWNED OR -
CONTROLLED CORPORATIONS, AS WELL AS PRIVATE CORPORATIONS,
FIRMS, AND ENTITIES WERE REQUIRED TO PREPARE, FILE AND INCLUDE
A STATEMENT (I.E., ENVIRONMENTAL IMPACT STATEMENT OR EIS)
CONTAINING:
(A) THE ENVIRONMENTAL IMPACT OF THE PROPOSED ACTION, PROJECT
OR UNDERTAKING;
(B) ANY ADVERSE ENVIRONMENTAL EFFECT WHICH CANNOT BE AVOIDED
SHOULD THE PROPOSAL BE IMPLEMENTED;
(C) ALTERNATIVE TO THE PROPOSED ACTION;
(D) A DETERMINATION THAT THE SHORT-TERM USES OF THE RESOURCES
OF THE ENVIRONMENT ARE CONSISTENT WITH THE MAINTENANCE AND
ENHANCEMENT OF THE LONGTERM PRODUCTIVITY OF THE SAME; AND
(E) WHENEVER A PROPOSAL INVOLVES THE USE OF DEPLETABLE OR
NON-RENEWABLE RESOURCES, A FINDING MUST BE MADE THAT SUCH
USE AND COMMITMENT ARE WARRANTED.161
TO FURTHER STRENGTHEN AND DEVELOP THE EIS, PD1586 WAS
PROMULGATED, WHICH ESTABLISHED THE PHILIPPINE ENVIRONMENTAL
IMPACT STATEMENT SYSTEM (PEISS). THE PEISS IS "A SYSTEMS-
ORIENTED AND INTEGRATED APPROACH TO THE EIS SYSTEM TO ENSURE
A RATIONAL BALANCE BETWEEN SOCIO-ECONOMIC DEVELOPMENT AND
ENVIRONMENTAL PROTECTION FOR THE BENEFIT OF PRESENT AND
FUTURE GENERATIONS."162 THE ECC REQUIREMENT ISMANDATED UNDER
SECTION 4 THEREOF:
SECTION 4. PRESIDENTIAL PROCLAMATION OFENVIRONMENTALLY
CRITICAL AREAS AND PROJECTS. THE PRESIDENT OF THE PHILIPPINES
MAY, ON HIS OWN INITIATIVE OR UPON RECOMMENDATION OF THE
NATIONAL ENVIRONMENTAL PROTECTION COUNCIL, BY PROCLAMATION
DECLARE CERTAIN PROJECTS, UNDERTAKINGS OR AREAS IN THE
COUNTRY AS ENVIRONMENTALLY CRITICAL. NO PERSON, PARTNERSHIP
OR CORPORATION SHALL UNDERTAKE OR OPERATE ANY SUCH
DECLARED ENVIRONMENTALLY CRITICAL PROJECT OR AREA WITHOUT
FIRST SECURING AN ENVIRONMENTAL COMPLIANCE CERTIFICATE
ISSUED BY THE PRESIDENT OR HIS DULYAUTHORIZED REPRESENTATIVE.
X X X (EMPHASIS SUPPLIED)
THE PEISS CONSISTS OF THE ENVIRONMENTAL IMPACT ASSESSMENT
(EIA) PROCESS, WHICH IS MANDATORY FOR PRIVATE ORPUBLIC
PROJECTS THATMAY SIGNIFICANTLY AFFECT THE QUALITY OF THE
ENVIRONMENT. IT INVOLVES EVALUATING AND PREDICTING THE LIKELY
IMPACTS OF THE PROJECT ON THE ENVIRONMENT, DESIGNING
APPROPRIATE PREVENTIVE, MITIGATING AND ENHANCEMENT MEASURES
ADDRESSING THESE CONSEQUENCES TO PROTECT THE ENVIRONMENT
AND THE COMMUNITY’S WELFARE.163
PD 1586 WAS IMPLEMENTED BY DAO 2003-30 WHICH, IN TURN, SET UP A
SYSTEM OR PROCEDURE TO DETERMINE WHEN A PROJECT IS REQUIRED
TO SECURE AN ECC AND WHEN IT IS NOT. WHEN AN ECC IS NOT
REQUIRED, THE PROJECT PROPONENT PROCURES A CERTIFICATE OF
NON-COVERAGE (CNC).164 AS PART OF THE EIA PROCESS, THE PROJECT
PROPONENT IS REQUIRED TO SUBMIT CERTAIN STUDIES OR REPORTS
(I.E., EIA DOCUMENT TYPE) TO THE DENR-EMB, WHICH WILLBE USED IN
THE REVIEW PROCESS IN ASSESSING THE ENVIRONMENTAL IMPACT OF
THE PROJECT AND THE ADEQUACY OF THE CORRESPONDING
ENVIRONMENTAL MANAGEMENT PLAN OR PROGRAM TO ADDRESS SUCH
ENVIRONMENTAL IMPACT. THIS WILL THEN BE PART OF THE BASES TO
GRANT OR DENY THE APPLICATION FOR AN ECC OR CNC, AS THE CASE
MAY BE.
TABLE 1-4 OF THE REVISED MANUAL SUMMARIZES THE REQUIRED EIA
DOCUMENT TYPE FOR EACH PROJECT CATEGORY. IT CLASSIFIES A
PROJECT AS BELONGING TO GROUP I, II, III, IV OR V, WHERE:
I- ENVIRONMENTALLY CRITICAL PROJECTS (ECPS) IN EITHER
ENVIRONMENTALLY CRITICAL AREA (ECA) OR NON-ENVIRONMENTALLY
CRITICAL AREA (NECA),
II- NON-ENVIRONMENTALLY CRITICAL PROJECTS (NECPS) IN ECA,
III- NECPS IN NECA,
IV- CO-LOCATED PROJECTS, AND
V- UNCLASSIFIED PROJECTS.
THE AFORESAID TABLE THEN FURTHER CLASSIFIES A PROJECT, AS
PERTINENT TO THIS CASE, AS BELONGING TO CATEGORY A,B OR C,
WHERE:
A- NEW;
B- EXISTING PROJECTS FOR MODIFICATION OR RE-START UP; AND
C- OPERATING PROJECTS WITHOUT AN ECC.
FINALLY, THE AFORESAID TABLE CONSIDERS WHETHER THE PROJECT IS
SINGLE OR CO-LOCATED.165 AFTER WHICH, IT STATES THE
APPROPRIATEEIA DOCUMENT TYPENEEDED FOR THE APPLICATION FOR
AN ECC OR CNC, AS THE CASE MAY BE.
THE APPROPRIATE EIA DOCUMENT TYPE VIS-À-VIS A PARTICULAR
PROJECT DEPENDS ON THE POTENTIAL SIGNIFICANT ENVIRONMENTAL
IMPACT OF THE PROJECT. AT THE HIGHEST LEVEL WOULD BE AN ECP,
SUCH AS THE SUBJECT PROJECT. THE HIERARCHY OF EIA DOCUMENT
TYPE, BASED ON COMPREHENSIVENESS AND DETAIL OF THE STUDY OR
REPORT CONTAINED THEREIN, INSOFAR AS SINGLE PROJECTS ARE
CONCERNED, IS AS FOLLOWS:
1. ENVIRONMENTAL IMPACT STATEMENT166 (EIS),
2. INITIAL ENVIRONMENTAL EXAMINATION167 (IEE) REPORT,
3. INITIAL ENVIRONMENTAL EXAMINATION168 (IEE) CHECKLIST REPORT,
4. ENVIRONMENTAL PERFORMANCE REPORT AND MANAGEMENT
PLAN169 (EPRMP), AND
5. PROJECT DESCRIPTION170 (PD) OR PROJECT DESCRIPTION REPORT
(PDR).
THUS, IN THE COURSE OF RP ENERGY’S APPLICATION FOR ANECC, IT
WAS REQUIRED BY THE DENR-EMB TO SUBMIT AN EIS BECAUSE THE
SUBJECT PROJECT IS: AN ECP, NEW AND A SINGLE PROJECT.
THE PRESENT CONTROVERSY, HOWEVER, REVOLVES AROUND, NOT AN
APPLICATION FOR AN ECC, BUT AMENDMENTS THERETO.
RP ENERGY REQUESTED THE SUBJECT FIRST AMENDMENT TO ITS ECC
DUE TO ITS DESIRE TO MODIFY THE PROJECT DESIGN THROUGH THE
INCLUSION OF A BARGE WHARF, SEAWATER INTAKE BREAKWATER,
SUBSEA DISCHARGE PIPELINE, RAW WATER COLLECTION SYSTEM,
DRAINAGE CHANNEL IMPROVEMENT AND A 230-KV DOUBLE
TRANSMISSION LINE. THE DENR-EMB DETERMINED THAT THIS WAS A
MAJOR AMENDMENT AND, THUS, REQUIRED RP ENERGY TO SUBMIT AN
EPRMP.
THE CASIÑO GROUP ARGUED, AND THE APPELLATE COURT SUSTAINED,
THAT AN EPRMP IS NOT THE CORRECT EIA DOCUMENT TYPE BASED ON
THE DEFINITION OF AN EPRMP IN DAO 2003-30 AND THE REVISED
MANUAL.
IN DAO 2003-30, AN EPRMP IS DEFINED AS:
ENVIRONMENTAL PERFORMANCE REPORT AND MANAGEMENT PLAN
(EPRMP) — DOCUMENTATION OF THE ACTUAL CUMULATIVE
ENVIRONMENTAL IMPACTS AND EFFECTIVENESS OF CURRENT
MEASURES FOR SINGLE PROJECTS THAT ARE ALREADY OPERATING BUT
WITHOUT ECC'S, I.E., CATEGORY A-3. FOR CATEGORY B-3 PROJECTS, A
CHECKLIST FORM OF THE EPRMP WOULD SUFFICE;171(EMPHASIS
SUPPLIED)
FURTHER, THE TABLE IN SECTION 5 OF DAO 2003-30 STATES THAT AN
EPRMP IS REQUIRED FOR "A-2: EXISTING AND TO BEEXPANDED
(INCLUDING UNDERTAKINGS THAT HAVE STOPPED OPERATIONS FOR
MORE THAN 5 YEARS AND PLAN TO RE-START WITH OR WITHOUT
EXPANSION) AND A-3: OPERATING WITHOUT ECC."
ON THE OTHER HAND, THE REVISED MANUAL DELINEATES WHEN AN
EPRMP IS THE PROPER EIA DOCUMENT TYPE, THUS:
FOR OPERATING PROJECTS WITH PREVIOUS ECCS BUT PLANNING OR
APPLYING FOR CLEARANCE TO MODIFY/EXPAND OR RE-START
OPERATIONS, OR FOR PROJECTS OPERATING WITHOUT AN ECCBUT
APPLYING TO SECURE ONE TO COMPLY WITH PD 1586 REGULATIONS,
THE APPROPRIATE DOCUMENT IS NOT AN EIS BUT AN EIA REPORT
INCORPORATING THE PROJECT’S ENVIRONMENTAL PERFORMANCE AND
ITS CURRENT ENVIRONMENTAL MANAGEMENT PLAN. THIS REPORT ISX X
X ANX X X ENVIRONMENTAL PERFORMANCE REPORT AND MANAGEMENT
PLAN (EPRMP) FOR SINGLE PROJECT APPLICATIONS X X X172 (EMPHASIS
SUPPLIED)
IN ITS "GLOSSARY," THE REVISED MANUAL DEFINES AN EPRMP AS:
ENVIRONMENTAL PERFORMANCE REPORT AND MANAGEMENT PLAN
(EPRMP) - DOCUMENTATION OF THE ACTUAL CUMULATIVE
ENVIRONMENTAL IMPACTS AND EFFECTIVENESS OF CURRENT
MEASURES FOR SINGLE PROJECTS THAT ARE ALREADY OPERATING BUT
WITHOUT ECCS.173 (EMPHASIS SUPPLIED)
FINALLY, TABLE 1-4, IN THE REVISED MANUAL, STATES THAT AN EPRMP IS
REQUIRED FOR "ITEM I-B: EXISTING PROJECTS FOR MODIFICATION OR
RE-START UP (SUBJECT TO CONDITIONS IN ANNEX 2-1C) AND I-C:
OPERATING WITHOUT ECC."
FROM THESE DEFINITIONS AND TABLES, AN EPRMP IS, THUS, THE
REQUIRED EIA DOCUMENT TYPE FOR AN ECP-SINGLE PROJECT WHICH IS:
1. EXISTING AND TO BE EXPANDED (INCLUDING UNDERTAKINGS THAT
HAVE STOPPED OPERATIONS FOR MORE THAN 5 YEARS AND PLAN TO
RE-START WITH OR WITHOUT EXPANSION);
2. OPERATING BUT WITHOUT ECCS;
3. OPERATING PROJECTS WITH PREVIOUS ECCS BUT PLANNING OR
APPLYING FOR CLEARANCE TO MODIFY/EXPAND ORRE-START
OPERATIONS; AND
4. EXISTING PROJECTS FOR MODIFICATION OR RE-START UP.
IT MAY BE OBSERVED THAT, BASED FROM THE ABOVE, DAO2003-30 AND
THE REVISED MANUAL APPEAR TO USE THE TERMS "OPERATING"AND
"EXISTING" INTERCHANGEABLY. IN THE CASE AT BAR, THE SUBJECT
PROJECT HAS NOT YET BEEN CONSTRUCTED ALTHOUGH THERE HAVE
BEEN HORIZONTAL CLEARING OPERATIONS AT THE PROJECT SITE.
ON ITS FACE, THEREFORE, THE THEORY OF THE CASIÑO GROUP, AS
SUSTAINED BY THE APPELLATE COURT — THAT THE EPRMP IS NOT THE
APPROPRIATE EIA DOCUMENT TYPE— SEEMS PLAUSIBLE BECAUSE THE
SUBJECT PROJECT IS NOT: (1) OPERATING/EXISTING WITH A PREVIOUS
ECC BUT PLANNING OR APPLYING FOR MODIFICATION OR EXPANSION,
OR (2) OPERATING BUT WITHOUT AN ECC. INSTEAD, THE SUBJECT
PROJECT IS AN UNIMPLEMENTED OR A NON-IMPLEMENTED, HENCE,NON-
OPERATING PROJECT WITH A PREVIOUS ECC BUT PLANNING FOR
MODIFICATION OR EXPANSION.
THE ERROR IN THE ABOVE THEORY LIES IN THE FAILURE TO CONSIDER
OR TRACE THE APPLICABLE PROVISIONS OF DAO 2003-30 AND THE
REVISED MANUAL ON AMENDMENTS TO AN ECC.
THE PROPER STARTING POINT IN DETERMINING THE VALIDITY OF THE
SUBJECT FIRST AMENDMENT, SPECIFICALLY, THE PROPRIETY OF THE EIA
DOCUMENT TYPE (I.E., EPRMP) WHICH RP ENERGY SUBMITTED IN
RELATION TO ITS APPLICATION FOR THE AFORESAID AMENDMENT, MUST
OF NECESSITY BE THE RULES ON AMENDMENTS TO AN ECC.174 THIS IS
PRINCIPALLY FOUND IN SECTION 8.3,ARTICLE II OF DAO 2003-03, VIZ:
8.3 AMENDING AN ECC
REQUIREMENTS FOR PROCESSING ECC AMENDMENTS SHALL DEPEND
ON THE NATURE OF THE REQUEST BUT SHALL BE FOCUSED ON THE
INFORMATION NECESSARY TO ASSESS THE ENVIRONMENTAL IMPACT OF
SUCH CHANGES.
8.3.1. REQUESTS FOR MINOR CHANGES TO ECCS SUCH AS EXTENSION OF
DEADLINES FOR SUBMISSION OF POST-ECC REQUIREMENTS SHALL BE
DECIDED UPON BY THE ENDORSING AUTHORITY.
8.3.2. REQUESTS FOR MAJOR CHANGES TO ECCS SHALL BE DECIDED
UPON BY THE DECIDING AUTHORITY.
8.3.3. FOR ECCS ISSUED PURSUANT TO AN IEE OR IEE CHECKLIST, THE
PROCESSING OF THE AMENDMENT APPLICATION SHALL NOT EXCEED
THIRTY (30) WORKING DAYS; AND FOR ECCS ISSUED PURSUANT TO AN
EIS, THE PROCESSING SHALL NOT EXCEED SIXTY (60) WORKING DAYS.
PROVISIONS ON AUTOMATIC APPROVAL RELATED TO PRESCRIBED
TIMEFRAMES UNDER AO 42 SHALL ALSO APPLY FOR THE PROCESSING OF
APPLICATIONS TO AMEND ECCS. (EMPHASIS SUPPLIED)
IMPLEMENTING THE AFORE-QUOTED SECTION, THE REVISED MANUAL
PERTINENTLY STATES IN SECTION 2.2, PARAGRAPH 16:
 16) APPLICATION PROCESS FOR ECC AMENDMENTS DURING PROJECT PROPONENT PREPARES AND SUBMITS TO THE
IMPLEMENTATION, THE ECC-ENDORSING DENR-EMB OFFICE A LETTER-
FIGURE 2-4 PRESENTS HOW PROPONENTS MAY REQUEST FOR MINOR OR
PROPONENT PREPARES AND REQUESTFOR ECC AMENDMENTS, INCLUDING
MAJOR CHANGES IN THEIR ECCS. ANNEX 2-1C PROVIDES A DECISION
SUBMITS TO THE ECC-ENDORSING DATA/INFORMATION, REPORTS OR DOCUMENTS TO
CHART FOR THE DETERMINATION OF REQUIREMENTS FOR PROJECT
DENR-EMB OFFICE A LETTER- SUBSTANTIATE THE REQUESTED REVISIONS.
MODIFICATIONS, PARTICULARLY FOR DELINEATING WHICH APPLICATION
REQUEST FOR ECC AMENDMENT,
SCENARIOS WILL REQUIRE EPRMP (WHICH WILL BE SUBJECT TO FIGURE
INCLUDING DATA/INFORMATION, 2
2-1 PROCESS) OR OTHER SUPPORT DOCUMENTATIONS (WHICH WILL BE
REPORTS OR DOCUMENTS TO
SUBJECT TO FIGURE 2-4 PROCESS). FIGURE 2-4, IN TURN, PROVIDES:
SUBSTANTIATE THE REQUESTED
REVISIONS. FOR PROJECTS THAT HAVE STARTED
FIGURE 2-4. FLOWCHART ON REQUEST FOR ECC AMENDMENTS175
IMPLEMENTATION, EMB EVALUATES REQUEST
BASED ON ANNEX 2-1CFOR VARIOUS SCENARIOS
SCENARIO 1: REQUEST FOR MINOR SCENARIO 2: REQUEST FOR MAJOR AMENDMENTS
OF PROJECT MODIFICATION. DOCUMENTARY
AMENDMENTS
REQUIREMENTS MAY RANGE FROM A LETTER-
1. EXPANSION OF PROJECT AREA W/IN
REQUEST TO AN EPRMP TO THE EMB CO/RO WHILE
1. TYPOGRAPHICAL ERROR CATCHMENT DESCRIBED IN EIA
FOR THOSE WITH PROGRAMMATIC ECC, A PEPRMP
2. EXTENSION OF DEADLINES FOR 2. INCREASE IN PRODUCTION CAPACITY OR 2 MAY NEED TO BE SUBMITTED TO THE EMB CO TO
SUBMISSION OF POST-ECC AUXILIARY COMPONENT OF THE ORIGINAL SUPPORT THE REQUEST. IT IS IMPORTANT TO
REQUIREMENT/S PROJECT NOTE THAT FOR OPERATING PROJECTS, THE
APPROPRIATE DOCUMENT IS NOT AN EIS BUT AN
3. EXTENSION OF ECC VALIDITY 3. CHANGE/S IN PROCESS FLOW OR TECHNOLOGY EIA REPORT INCORPORATING THE PROJECT’S
HISTORICAL ENVIRONMENTAL PERFORMANCE AND
4. CHANGE IN COMPANY 4. ADDITION OF NEW PRODUCT ITS CURRENT EMP, SUBJECT TO SPECIFIC
NAME/OWNERSHIP DOCUMENTARY REQUIREMENTS DETAILED IN
5. INTEGRATION OF ECCS FOR SIMILAR OR
ANNEX 2-1CFOR EVERY MODIFICATION SCENARIO.
5. DECREASE IN LAND/PROJECT DISSIMILAR BUT CONTIGUOUS PROJECTS (NOTE:
AREA OR PRODUCTION CAPACITY ITEM#5 IS PROPONENT’S OPTION, NOT EMB’S)
3
6. OTHER AMENDMENTS DEEMED 6. REVISION/REFORMATTING OF ECC CONDITIONS

"MINOR" AT THE DISCRETION OF 7. OTHER AMENDMENTS DEEMED "MAJOR" AT THE

THE
EMB CO/RO DIRECTOR
1 [START]
WITHIN THREE (3) YEARS FROM
ECC ISSUANCE (FOR PROJECTS
NOT STARTED)176 OR AT ANY TIME
DISCRETION OF THE EMB CO/RO DIRECTOR
THE ECC-ENDORSING EMB OFFICE FOR EPRMP/PEPRMP-BASED REQUESTS, EMB
ASSIGNS A CASE HANDLER TO FORMS A TECHNICAL/REVIEW COMMITTEE TO
1[START] EVALUATE THE REQUEST EVALUATE THE REQUEST. FOR OTHER REQUESTS,
A CASE HANDLER MAY SOLELY UNDERTAKE THE
WITHIN THREE (3) YEARS FROM ECC ISSUANCE EVALUATION. EMB CO AND RO WILL PROCESS
(FOR PROJECTS NOT STARTED)177 OR AT ANY TIME P/EPRMP FOR PECC/ECC UNDER GROUPS I AND II
DURING PROJECT IMPLEMENTATION, THE RESPECTIVELY. (GO TO FIGURE 2-1)
3 4 REPRODUCE BELOW THE FIRST THREE COLUMNS OF ANNEX 2-1C, AS
ARE PERTINENT TO THE ISSUE AT HAND:

ANNEX 2-1C

DECISION CHART FOR DETERMINATION OF REQUIREMENTS FOR

ECC-ENDORSING AUTHORITY
DECIDES ON THE LETTER-
REQUEST, BASED ON CH
RECOMMENDATION
ECC-ENDORSING/ISSUING AUTHORITY (PER TABLE
PROJECT MODIFICATION178
1-4) DECIDES ON LETTER
REQUESTS/EPRMP/PEPRMP/OTHER DOCUMENTS
PROPOSED ANALYSIS OF RESULTING DECISION
BASED ON EMB CH AND/OR TECH/REVIEW
MODIFICATIONS TO THE PROPOSED MODIFICATIONS DOCUMENT/TYPE OF EIA
COMMITTEE RECOMMENDATIONS.
CURRENT PROJECT REPORT REQUIRED

MAXIMUM PROCESSING TIME TO MAX PROCESSING TIME TO ISSUANCE OF

OPERATIONAL PROJECTS,
ISSUANCE OF DECISION DECISION
OR THOSE WHICH HAVE
STOPPED FOR ≤5 YEARS
EMB CO 7 WORKDAYS CO CO EPRMP RO RO EPRMP AND PLAN TO RE-START
PEPRMP PEPRMP

FOR GROUPS I AND II

EMB RO 7 WORKDAYS 120 90 60 30 EISBASED PROJECTS WITH
AN ECC APPLYING FOR
WORKDAYS WORKDAYS WORKDAYS WORKDAYS
MODIFICATION

OTHER DOCUMENT APPLICATIONS: MAX 30

1. EXPANSION OF SINCE THE MODIFICATION ECC AMENDMENT /LETTER
WORKDAYS (EMB CO AND RO)
LAND/PROJECT AREA WILL BE IN AN AREA REQUEST WITH BRIEF
W/IN CATCHMENT OR ALREADY DESCRIBED AND DESCRIPTION OF ACTIVITIES
ENVIRONMENT EVALUATED IN THE IN THE ADDITIONAL AREA
DESCRIBED IN THE ORIGINAL EIA REPORT,
ORIGINAL EIA REPORT INCREMENTAL IMPACTS
FROM ADDITIONAL LAND
DEVELOPMENT WILL HAVE
NOTEWORTHY IN THE ABOVE, WHICH IS PERTINENT TO THE ISSUE AT
BEEN ADDRESSED IN THE
HAND, IS THAT THE AMENDMENT PROCESS SQUARELY APPLIES TO
APPROVED EMP
PROJECTS NOT STARTED, SUCH AS THE SUBJECT PROJECT, BASED ON
THE PHRASE "[W]ITHIN THREE (3) YEARS FROM ECC ISSUANCE (FOR
PROJECTS NOT STARTED) X X X". 2. EXPANSION OF IT IS ASSUMED THE ECC AMENDMENT
LAND/PROJECT AREA MODIFICATION PROPOSAL /ENVIRONMENTAL
ANNEX 2-1C, IN TURN, PROVIDES A "DECISION CHART FOR OUTSIDE CATCHMENT MAY HAVE SIGNIFICANT PERFORMANCE REPORT
DETERMINATION OF REQUIREMENTS FOR PROJECT MODIFICATION." WE OR ENVIRONMENT POTENTIAL IMPACTS DUE AND MANAGEMENT PLAN
DESCRIBED IN THE TO ABSENCE OF PRIOR
 ORIGINAL EIA REPORT ASSESSMENT AS TO HOW (EPRMP) ECCS
THE PROJECT MAY AFFECT
THE PROPOSED EXPANSION 5. CHANGE/S IN EMP AND ERA CAN STILL ECC AMENDMENT /LETTER
AREA PROCESS FLOW OR ADDRESS IMPACTS & RISKS REQUEST WITH BRIEF
TECHNOLOGY ARISING FROM PROCESS DESCRIPTION
3. INCREASE IN NON-EXCEEDANCE OF PDR ECC AMENDMENT /LETTER MODIFICATION
CAPACITY OR (NON COVERED PROJECT) REQUEST WITH BRIEF
AUXILIARY THRESHOLD IS ASSUMED DESCRIPTION OF EMP AND ERA CANNOT ECC AMENDMENT
COMPONENT OF THE THAT IMPACTS ARE NOT ADDITIONAL CAPACITY OR ADDRESS IMPACTS & RISKS /ENVIRONMENTAL
ORIGINAL PROJECT SIGNIFICANT; COMPONENT ARISING FROM PERFORMANCE REPORT
WHICH WILL MODIFICATION AND MANAGEMENT PLAN
EITHERNOT ENTAIL MODIFICATION SCENARIO
(EPRMP)
EXCEEDANCE OF PDR AND DECISION PROCESS
(NON-COVERED ARE APPLICABLE TO BOTH
PROJECT) NONIMPLEMENTED AND 6. ADDITIONAL ACTIVITY IS DIRECTLY ECC AMENDMENT /LETTER
THRESHOLDS OR EMP OPERATING PROJECTS COMPONENT OR LESSENING OR MITIGATING REQUEST WITH
& ERA CAN STILL ISSUED ECCS PRODUCTS WHICH THE PROJECT’S IMPACTS CONSOLIDATED PROJECT
ADDRESS IMPACTS & WILL ENHANCE THE ON THE ENVIRONMENT. DESCRIPTION REPORT OF
RISKS ARISING FROM ENVIRONMENT (E.G. HOWEVER, TO ENSURE NEW PROJECT COMPONENT
MODIFICATION DUE TO COMPLIANCE THERE IS NO COMPONENT AND INTEGRATED EMP
TO NEW STRINGENT IN THE MODIFICATION
REQUIREMENTS) OR WHICH FALL UNDER
4. INCREASE IN EXCEEDANCE OF PDR (NON- ECC AMENDMENT LESSEN IMPACTS ON COVERED PROJECT TYPES,
CAPACITY OR COVERED) THRESHOLD IS /ENVIRONMENTAL THE ENVIRONMENT EMB WILL REQUIRE
AUXILIARY ASSUMED THAT IMPACTS PERFORMANCE REPORT (E.G. THRU DISCLOSURE OF THE
COMPONENT OF THE MAY BE POTENTIALLY AND MANAGEMENT PLAN UTILIZATION OF DESCRIPTION OF THE
ORIGINAL PROJECT SIGNIFICANT, (EPRMP) WASTE INTO NEW COMPONENTS AND
WHICH WILL EITHER PARTICULARLY IF PRODUCTS) PROCESS WITH WHICH THE
EXCEED PDR MODIFICATION WILL RESULT NEW PRODUCT WILL BE
(NONCOVERED TO A NEXT HIGHER LEVEL DEVELOPED.
PROJECT) OF THRESHOLD RANGE
THRESHOLDS, OR EMP
& ERA CANNOT MODIFICATION SCENARIO 7. DOWNGRADE NO INCREMENTAL ADVERSE FROM ECC AMENDMENT TO
ADDRESS IMPACTS AND DECISION PROCESS PROJECT SIZE OR IMPACTS; MAY RESULT TO RELIEF OF ECC
AND RISKS ARISING ARE APPLICABLE TO BOTH AREA OR OTHER LOWER PROJECT COMMITMENTS
FROM MODIFICATION NONIMPLEMENTED AND UNITS OF MEASURE THRESHOLD OR MAY (CONVERSION TO CNC):
OPERATING PROJECTS OF THRESHOLDS RESULT TO NON-COVERAGE /LETTER-REQUEST ONLY
WITH OR WITHOUT ISSUED LIMITS
8. CONVERSION TO NEW CONSIDERED NEW NEW ECC /EIS MANDATES WILL BE
PROJECT TYPE (E.G. APPLICATION BUT WITH DELETED)
BUNKER-FIRED PLANT LESSER DATA
TO GAS-FIRED) REQUIREMENTS SINCE 10. REVISION/ NO PHYSICAL CHANGE ON ECC AMENDMENT /LETTER
MOST FACILITIES ARE REFORMATTING OF THE PROJECT BUT ECC REQUEST ONLY
ESTABLISHED; ECC CONDITIONS CONDITIONS RELATING TO
ENVIRONMENTAL REQUIREMENTS WITHIN
PERFORMANCE IN THE PAST OTHER AGENCIES’
WILL SERVE AS BASELINE; MANDATES WILL BE
HOWEVER, FOR OPERATING DELETED
PROJECTS, THERE MAY BE
NEED TO REQUEST FOR WE NOW APPLY THESE PROVISIONS TO THE CASE AT BAR.
RELIEF FROM ECC
COMMITMENT PRIOR TO TO REITERATE, THE FIRST AMENDMENT TO THE ECC WAS REQUESTED
APPLYING FOR NEW BY RP ENERGY DUE TO ITS PLANNED CHANGE OF PROJECT DESIGN
PROJECT TYPE TO ENSURE INVOLVING THE INCLUSION OF A BARGE WHARF, SEAWATER INTAKE
NO BALANCE OF BREAKWATER, SUBSEADISCHARGE PIPELINE, RAW WATER COLLECTION
ENVIRONMENTAL SYSTEM, DRAINAGE CHANNEL IMPROVEMENT AND A 230-KV DOUBLE
ACCOUNTABILITIES FROM TRANSMISSION LINE. THE DENR-EMB DETERMINED179 THAT THE
THE CURRENT PROJECT PROPOSED MODIFICATIONS INVOLVED A MAJOR AMENDMENT BECAUSE
IT WILL RESULT IN ANINCREASE IN CAPACITY OR AUXILIARY COMPONENT,
9. INTEGRATION OF NO PHYSICAL CHANGE IN ECC AMENDMENT /LETTER AS PER SCENARIO 2,ITEM #2 OF FIGURE 2-4:
ECCS FOR SIMILAR OR PROJECT SIZE/AREA; NO REQUEST WITH
SCENARIO 2: REQUEST FOR MAJOR AMENDMENTS
CONTIGUOUS CHANGE IN CONSOLIDATED PROJECT
PROJECTS PROCESS/TECHNOLOGY DESCRIPTION REPORT AND 1. EXPANSION OF PROJECT AREA W/IN CATCHMENT DESCRIBED IN EIA
BUT IMPROVED INTEGRATED EMP
(NOTE: INTEGRATION MANAGEMENT OF 2. INCREASE IN PRODUCTION CAPACITY OR AUXILIARY COMPONENT OF
OF ECCS IS AT THE CONTINUOUS PROJECTS BY THE ORIGINAL PROJECT180
OPTION OF THE HAVING AN INTEGRATED
PROPONENT TO PLANNING DOCUMENT IN 3. CHANGE/S IN PROCESS FLOW OR TECHNOLOGY
REQUEST/APPLY) THE FORM OR AN
4. ADDITION OF NEW PRODUCT
INTEGRATED ECC (ECC
CONDITIONS WILL BE 5. INTEGRATION OF ECCS FOR SIMILAR OR DISSIMILAR BUT CONTIGUOUS
HARMONIZED ACROSS PROJECTS (NOTE: ITEM#5 IS PROPONENT’S OPTION, NOT EMB’S)
PROJECTS; CONDITIONS
RELATING TO 6. REVISION/REFORMATTING OF ECC CONDITIONS
REQUIREMENTS WITHIN
OTHER AGENCIES’ 7. OTHER AMENDMENTS DEEMED "MAJOR AT THE DISCRETION OF THE
EMB CO/RO DIRECTOR
 THE CASIÑO GROUP DOES NOT CONTROVERT THIS FINDING BY THE
DENR-EMB AND WE FIND THE SAME REASONABLY SUPPORTED BY THE
EVIDENCE ON RECORD CONSIDERING THAT, AMONG OTHERS, THE
CONSTRUCTION OF A 230-KVDOUBLE TRANSMISSION LINE WOULD
RESULT IN MAJOR ACTIVITIES OUTSIDE THE PROJECT SITE WHICH COULD
HAVE SIGNIFICANT ENVIRONMENTAL IMPACTS.
THIS LENGTHY EXPLANATION BRINGS US TOA SIMPLE CONCLUSION. THE
DEFINITIONS IN DAO 2003-30 AND THE REVISED MANUAL, STATING THAT
THE EPRMP IS APPLICABLE TO (1) OPERATING/EXISTING PROJECTSWITH
A PREVIOUS ECC BUT PLANNING OR APPLYING FOR MODIFICATION OR
EXPANSION, OR (2) OPERATING PROJECTS BUT WITHOUT AN ECC, WERE
NOT AN EXCLUSIVE LIST.

CONSEQUENTLY, THE AMENDMENT WAS CONSIDERED ASFALLING UNDER THE AFORE-DISCUSSED PROVISIONS OF FIGURE 2-4, IN RELATION TO
ITEM#4 OF ANNEX 2-1C, AND, THUS, THE APPROPRIATE EIA DOCUMENT ANNEX 2-1C, PLAINLY SHOW THAT THE EPRMP CAN, LIKEWISE, BE USED
TYPEIS AN EPRMP, VIZ: AS AN APPROPRIATE EIA DOCUMENT TYPE FOR A SINGLE, NON-
IMPLEMENTED PROJECT APPLYING FOR A MAJOR AMENDMENT TO ITS
4. INCREASE IN CAPACITY EXCEEDANCE OF PDR (NON- ECC AMENDMENT ECC, INVOLVING AN INCREASE IN CAPACITY OR AUXILIARY COMPONENT,
OR AUXILIARY COVERED) THRESHOLDS IS /ENVIRONMENTAL WHICH WILL EXCEED PDR (NON-COVERED PROJECT) THRESHOLDS, OR
COMPONENT OF THE ASSUMED THAT IMPACTS PERFORMANCE REPORT RESULT IN THE INABILITY OF THE EMP AND ERA TO ADDRESS THE
ORIGINAL PROJECT MAY BE POTENTIALLY AND MANAGEMENT PLAN IMPACTS AND RISKS ARISING FROM THE MODIFICATION, SUCH AS THE
WHICH WILL EITHER SIGNIFICANT, (EPRMP)182 SUBJECT PROJECT.
EXCEED PDR (NON- PARTICULARLY IF
COVERED PROJECT) MODIFICATION WILL RESULT THAT THE PROPOSED MODIFICATIONS IN THE SUBJECT PROJECT FALL
THRESHOLDS, OR EMP & TO A NEXT HIGHER LEVEL UNDER THIS CLASS OR TYPE OF AMENDMENT WAS A DETERMINATION
ERA CANNOT ADDRESS OF THRESHOLD RANGE MADE BY THE DENR-EMBAND, ABSENT A SHOWING OF GRAVE ABUSE OF
IMPACTS AND RISKS DISCRETION, THE DENR-EMB’S FINDINGS ARE ENTITLED TO GREAT
ARISING FROM MODIFICATION SCENARIO RESPECT BECAUSE IT IS THE ADMINISTRATIVE AGENCY WITH THE
MODIFICATION AND DECISION PROCESS SPECIAL COMPETENCE OR EXPERTISE TO ADMINISTER OR IMPLEMENT
ARE APPLICABLE TO BOTH THE EIS SYSTEM. THE APPARENT CONFUSION OF THE CASIÑO GROUP
NONIMPLEMENTED AND AND THE APPELLATE COURT IS UNDERSTANDABLE. THEY HAD
OPERATING PROJECTS APPROACHED THE ISSUE WITH A LEGAL TRAINING MINDSET OR
WITH OR WITHOUT ISSUED BACKGROUND. AS A GENERAL PROPOSITION, THE DEFINITION OF TERMS
ECCS181 IN A STATUTE OR RULE IS CONTROLLING AS TO ITS NATURE AND SCOPE
WITHIN THE CONTEXT OF LEGAL OR JUDICIAL PROCEEDINGS. THUS,
NOTE THAT THE CHART EXPRESSLY STATES THAT, "[M]ODIFICATION SINCE THE PROCEDURE ADOPTED BY THE DENR-EMB SEEMED TO
SCENARIO AND DECISION PROCESS ARE APPLICABLE TO BOTH NON- CONTRADICT OR GO BEYOND THE DEFINITION OF TERMS IN THE
IMPLEMENTEDAND OPERATING PROJECTS WITHOR WITHOUT RELEVANT ISSUANCES, THE CASIÑO GROUP AND THE APPELLATE COURT
ECCS."183 TO RECALL, THE SUBJECT PROJECT HAS NOT BEEN CONCLUDED THAT THE PROCEDURE WAS INFIRM.
CONSTRUCTED AND IS NOT YET OPERATIONAL, ALTHOUGH HORIZONTAL
CLEARING ACTIVITIES HAVE ALREADY BEEN UNDERTAKEN AT THE HOWEVER, A HOLISTIC READING OF DAO2003-30 AND THE REVISED
PROJECT SITE. THUS, THE SUBJECT PROJECT MAY BE REASONABLY MANUAL WILL SHOW THAT SUCH A LEGALISTIC APPROACH INITS
CLASSIFIED AS A NON-IMPLEMENTED PROJECT WITH AN ISSUED ECC, INTERPRETATION AND APPLICATION IS UNWARRANTED. THIS IS
WHICH FALLS UNDER ITEM#4 AND, HENCE, AN EPRMP IS THE PRIMARILY BECAUSE THE EIA PROCESS IS A SYSTEM, NOT A SET OF
APPROPRIATE EIA DOCUMENT TYPE. RIGID RULES AND DEFINITIONS. IN THE EIA PROCESS, THERE IS MUCH
ROOM FOR FLEXIBILITY IN THE DETERMINATION AND USE OFTHE
APPROPRIATE EIA DOCUMENT TYPE AS THE FOREGOING DISCUSSION
HAS SHOWN.184 TO OUR MIND, WHATSHOULD BE CONTROLLING IS THE
GUIDING PRINCIPLE SET IN DAO 2003-30 IN THE EVALUATION OF
APPLICATIONS FOR AMENDMENTS TO ECCS, AS STATED IN SECTION 8.3
THEREOF: "[R]EQUIREMENTS FOR PROCESSING ECC AMENDMENTS
SHALL DEPEND ON THE NATURE OF THE REQUESTBUT SHALL BE
FOCUSED ON THEINFORMATION NECESSARY TO ASSESS THE
ENVIRONMENTAL IMPACT OF SUCH CHANGES."185
THIS BRINGS US TO THE NEXT LOGICALQUESTION, DID THE EPRMP
PROVIDE THE NECESSARY INFORMATION IN ORDER FOR THE DENR-EMB
TO ASSESS THE ENVIRONMENTAL IMPACT OF RP ENERGY’S REQUEST
RELATIVE TO THE FIRST AMENDMENT?
WE ANSWER IN THE AFFIRMATIVE.
IN THE FIRST PLACE, THE CASIÑO GROUP NEVER ATTEMPTED TO PROVE
THAT THE SUBJECT EPRMP, SUBMITTED BY RP ENERGY TO THE DENR-
EMB, WAS INSUFFICIENT FOR PURPOSES OF EVALUATING THE
ENVIRONMENTAL IMPACT OF THE PROPOSED MODIFICATIONS TO THE
ORIGINAL PROJECT DESIGN. THERE IS NO CLAIM THAT THE DATA
SUBMITTED WERE FALSIFIED OR MISREPRESENTED. NEITHER WAS
THERE AN ATTEMPT TO SUBPOENA THE REVIEW PROCESS DOCUMENTS
OF THE DENR TO ESTABLISH THATTHE GRANT OF THE AMENDMENT TO
THE ECC WAS DONE WITH GRAVE ABUSE OF DISCRETION OR TO THE
GRAVE PREJUDICE OF THE RIGHT TO A HEALTHFUL ENVIRONMENT OF
THOSE WHO WILL BEAFFECTED BY THE PROJECT. INSTEAD, THE CASIÑO
GROUP RELIED SOLELY ON THE DEFINITION OF TERMS IN DAO 2003-30
AND THE REVISED MANUAL, WHICH APPROACH, AS PREVIOUSLY
DISCUSSED,WAS ERRONEOUS.
AT ANY RATE, WE HAVE EXAMINED THE CONTENTS OF THE VOLUMINOUS
EPRMP SUBMITTED BY RP ENERGY AND WEFIND THEREIN SUBSTANTIAL
SECTIONS EXPLAINING THE PROPOSED CHANGES AS WELL AS THE
ADJUSTMENTS THAT WILL BE MADE IN THE ENVIRONMENTAL
MANAGEMENT PLAN IN ORDER TO ADDRESS THE POTENTIAL
ENVIRONMENTAL IMPACTS OF THE PROPOSED MODIFICATIONS TO THE
ORIGINAL PROJECT DESIGN. THESE ARE SUMMARIZED IN THE "PROJECT
FACT SHEET"186 OF THE EPRMP AND EXTENSIVELY DISCUSSED IN
SECTION 4187 THEREOF. ABSENT ANY CLAIM OR PROOF TO THE
CONTRARY, WE HAVE NO BASES TO CONCLUDE THAT THESE DATA WERE
INSUFFICIENT TO ASSESS THE ENVIRONMENTAL IMPACT OF THE
PROPOSED MODIFICATIONS. IN ACCORDANCE WITH THE PRESUMPTION
OF REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTIES, THE DENR-
EMB MUST BE DEEMED TO HAVE ADEQUATELY ASSESSED THE
ENVIRONMENTAL IMPACT OF THE PROPOSED CHANGES, BEFORE
GRANTING THE REQUEST UNDER THE FIRST AMENDMENT TO THE
SUBJECT ECC.
IN SUM, THE REVISED MANUAL PERMITS THE USE OF AN EPRMP, AS THE
APPROPRIATE EIA DOCUMENT TYPE, FOR MAJOR AMENDMENTS TO AN
ECC, EVEN FOR AN UNIMPLEMENTED OR NON-IMPLEMENTEDPROJECT
WITH A PREVIOUS ECC, SUCH AS THE SUBJECT PROJECT.
CONSEQUENTLY, WE FIND THAT THE PROCEDURE ADOPTED BY THE
DENR, IN REQUIRING RP ENERGY TO SUBMITAN EPRMP IN ORDER TO
UNDERTAKE THE ENVIRONMENTAL IMPACT ASSESSMENT OF THE
PLANNED MODIFICATIONS TO THE ORIGINAL PROJECT DESIGN, RELATIVE
TO THE FIRST AMENDMENT TO THE ECC, SUFFERS FROM NO INFIRMITY.
WE APPLY THE SAME FRAMEWORK OF ANALYSIS IN DETERMINING THE
PROPRIETY OF A PDR, AS THE APPROPRIATE EIA DOCUMENT TYPE,
RELATIVE TO THE SECOND AMENDMENT TO THE SUBJECT ECC.
AGAIN, THE CASIÑO GROUP, AS SUSTAINED BY THE APPELLATE COURT,
RELIED ON THE DEFINITIONS OF A PDR IN DAO 2003-30 AND THE REVISED
MANUAL:
PROJECT DESCRIPTION (PD) — DOCUMENT, WHICH MAY ALSO BE A
CHAPTER IN AN EIS, THAT DESCRIBES THE NATURE, CONFIGURATION,
USE OF RAW MATERIALS AND NATURAL RESOURCES, PRODUCTION
SYSTEM, WASTE OR POLLUTION GENERATION AND CONTROL AND THE
ACTIVITIES OF A PROPOSED PROJECT. IT INCLUDES A DESCRIPTION OF
THE USE OF HUMAN RESOURCES AS WELL AS ACTIVITY TIMELINES,
DURING THE PRE-CONSTRUCTION, CONSTRUCTION, OPERATION AND
ABANDONMENT PHASES. IT IS TOBE USED FOR REVIEWING CO-LOCATED
AND SINGLE PROJECTS UNDER CATEGORY C, ASWELL AS FOR
CATEGORY D PROJECTS.188
XXXX
A) FOR NEW PROJECTS: X X X FOR NON-COVERED PROJECTS IN GROUPS
II AND III, A X X X PROJECT DESCRIPTION REPORT (PDR) IS THE
APPROPRIATE DOCUMENT TO SECURE A DECISION FROM DENR/EMB. THE
PDR IS A "MUST" REQUIREMENT FOR ENVIRONMENTAL ENHANCEMENT
AND MITIGATION PROJECTS IN BOTH ECAS (GROUP II) AND NECAS
(GROUP III) TO ALLOW EMB TO CONFIRM THE BENIGN NATURE OF
PROPOSED OPERATIONS FOR EVENTUAL ISSUANCE OF A CERTIFICATE
OFNON-COVERAGE (CNC). ALL OTHER GROUP III (NON-COVERED)
PROJECTS DO NOT NEED TO SUBMIT PDRS – APPLICATION IS AT THE
OPTION OF THE PROPONENT SHOULD IT NEED A CNC FOR ITS OWN
PURPOSES, E.G. FINANCING PRE-REQUISITE. FOR GROUP V PROJECTS, A
PDR IS REQUIRED TO ENSURE NEW PROCESSES/TECHNOLOGIES OR ANY
NEW UNLISTED PROJECT DOES NOT POSE HARM TO THE ENVIRONMENT.
THE GROUP V PDR IS A BASIS FOR EITHER ISSUANCE OF A CNC OR
CLASSIFICATION OF THE PROJECT INTO ITS PROPER PROJECT GROUP.
B) FOR OPERATING PROJECTS WITH PREVIOUS ECCS BUT PLANNING OR
APPLYING FOR CLEARANCE TO MODIFY/EXPAND OR RE-START
OPERATIONS, OR FOR PROJECTS OPERATING WITHOUT AN ECC BUT
APPLYING TO SECURE ONETO COMPLY WITH PD 1586 REGULATIONS, THE
APPROPRIATE DOCUMENT IS NOT AN EIS BUT AN EIA REPORT
INCORPORATING THE PROJECT’S ENVIRONMENTAL PERFORMANCE AND
ITS CURRENT ENVIRONMENTAL MANAGEMENT PLAN. THIS REPORT IS
EITHER AN (6) ENVIRONMENTAL PERFORMANCE REPORT AND
MANAGEMENT PLAN (EPRMP) FOR SINGLE PROJECT APPLICATIONS OR A
(7) PROGRAMMATIC EPRMP (PEPRMP) FOR CO-LOCATED PROJECT
APPLICATIONS. HOWEVER, FOR SMALL PROJECT MODIFICATIONS, AN
UPDATING OF THE PROJECT DESCRIPTION OR THE ENVIRONMENTAL
MANAGEMENT PLAN WITH THE USE OF THE PROPONENT’S HISTORICAL
PERFORMANCE AND MONITORING RECORDS MAY SUFFICE.189
XXXX
PROJECT DESCRIPTION (PD) - DOCUMENT, WHICH MAY ALSO BE A
CHAPTER IN AN EIS, THAT DESCRIBES THE NATURE, CONFIGURATION,
USE OF RAW MATERIALS AND NATURAL RESOURCES, PRODUCTION
SYSTEM, WASTE OR POLLUTION GENERATION AND CONTROL AND THE
ACTIVITIES OF A PROPOSED PROJECT. IT INCLUDES A DESCRIPTION OF
THE USE OF HUMAN RESOURCES AS WELL AS ACTIVITY TIMELINES,
DURING THE PRE-CONSTRUCTION, CONSTRUCTION, OPERATION AND
ABANDONMENT PHASES.190
WE WILL NO LONGER DELVE INTOTHE DETAILS OF THESE DEFINITIONS.
SUFFICE IT TO STATE, SIMILAR TO THE DISCUSSION ON THE EPRMP, THAT
IF WE GO BY THE STRICT LIMITS OF THESE DEFINITIONS, THE PDR
RELATIVE TO THE SUBJECT SECOND AMENDMENT WOULD NOT FALL
SQUARELY UNDER ANY OF THE ABOVE.
HOWEVER, AGAIN, THESE ARE NOT THE ONLY PROVISIONS GOVERNING
THE PDR IN THE REVISED MANUAL.
AFTER THE FAVORABLE GRANT OF THE FIRST AMENDMENT, RP ENERGY
APPLIED FOR ANOTHER AMENDMENT TO ITS ECC, THIS TIME
INCONSIDERATION OF ITS PLAN TO CHANGE THE CONFIGURATION OF
THE PROJECT FROM 2 X 150 MWTO 1 X 300 MW. IN PRACTICAL TERMS,
THIS MEANT THAT THE SUBJECT PROJECT WILL STILL PRODUCE 300 MW
OF ELECTRICITY BUT WILL NOW MAKE USE OF ONLY ONE BOILER
(INSTEAD OF TWO) TO ACHIEVE GREATER EFFICIENCY IN THE
OPERATIONS OF THE PLANT. THE DENR-EMB DETERMINED191 THIS
AMENDMENT TO BE MINOR, UNDER SCENARIO 1, ITEM#6 OF FIGURE 2-4:
SCENARIO 1: REQUEST FOR MINOR
AMENDMENTS
1. TYPOGRAPHICAL ERROR
2. EXTENSION OF DEADLINES FOR SUBMISSION OF POST-ECC
REQUIREMENT/S
3. EXTENSION OF ECC VALIDITY
4. CHANGE IN COMPANY NAME/OWNERSHIP
5. DECREASE IN LAND/PROJECT AREA OR PRODUCTION CAPACITY
6. OTHER AMENDMENTS DEEMED "MINOR" AT THE DISCRETION OF THE
EMB CO/RO DIRECTOR192
— BECAUSE (1) THERE IS NO INCREASE IN CAPACITY; (2) IT DOES NOT
CONSTITUTE ANY SIGNIFICANT IMPACT; AND (3) ITS EMP AND ERA AS
 SPECIFIED IN THE SUBMITTED EPRMP REMAIN THE SAME.193 RELATIVE TO AMENDMENT. CONSEQUENTLY, AS BEFORE, WE FINDTHAT THE REVISED
ANNEX 2-1C, THE REQUESTED AMENDMENT WAS, IN TURN, MANUAL SUPPORTS THE PROCEDURE ADOPTED BY THE DENR-EMB IN
DETERMINEDTO FALL UNDER ITEM#3: REQUIRING RP ENERGY TO SUBMIT A PDR IN ORDER TO ASSESS THE
ENVIRONMENTAL IMPACT OF THE PLANNED MODIFICATIONS RELATIVE TO
3. INCREASE IN CAPACITY NON-EXCEEDANCE OF PDR ECC AMENDMENT /LETTER THE SECOND AMENDMENT.
OR AUXILIARY (NON COVERED PROJECT) REQUEST WITH BRIEF
COMPONENT OF THE THRESHOLDS IS ASSUMED DESCRIPTION OF IN THEIR PETITION BEFORE THIS COURT, THE CASIÑO GROUP BOLDLY
ORIGINAL PROJECT THAT IMPACTS ARE NOT ADDITIONAL CAPACITY OR ASSERTS THAT "[T]HERE IS NOTHING IN THE PROJECT DESCRIPTION
WHICH WILL EITHER SIGNIFICANT; COMPONENT195 REPORT THAT PROVIDES AN ENVIRONMENTAL IMPACT ASSESSMENT OF
NOT ENTAIL THE EFFECTS OF CONSTRUCTING AND OPERATING A SINGLE 300-MW
EXCEEDANCE OF PDR MODIFICATION SCENARIO GENERATING UNIT."196 HOWEVER, TO OUR DISMAY, AS IN THEIR OTHER
(NON-COVERED AND DECISION PROCESS SERIOUS ALLEGATIONS IN THEIR PETITION FOR WRIT OFKALIKASAN, THE
PROJECT) ARE APPLICABLE TO BOTH SAME IS, LIKEWISE, BASELESS. APART FROM SUCH A SWEEPING CLAIM,
THRESHOLDS OR EMP NON-IMPLEMENTED AND THE CASIÑO GROUP HAS PROVIDED NO EVIDENCE OR ARGUMENT TO
& ERA CAN STILL OPERATING PROJECTS BACK UP THE SAME.
ADDRESS IMPACTS & ISSUED ECCS194
AN EXAMINATION OF THE PDR READILY REVEALS THAT IT CONTAINS THE
RISKS ARISING FROM
DETAILS OF THE PROPOSED MODIFICATIONS197 AND AN EXPRESS
MODIFICATION
FINDING THAT NO SIGNIFICANT ENVIRONMENTAL IMPACT WILL BE
GENERATED BYSUCH MODIFICATIONS, AS IN FACT IT IS EXPECTED THAT
WE MAKE THE SAME OBSERVATION, AS BEFORE, THAT THE ABOVE
THE OPERATION OF THE POWER PLANT WILL BECOME MORE EFFICIENT
APPLIES TO AN UNIMPLEMENTED OR NON-IMPLEMENTED PROJECT WITH
AS A RESULT OF THE CHANGE FROM 2 X 150 MW TO 1 X 300 MW
A PREVIOUS ECC, LIKE THE SUBJECT PROJECT. ALTHOUGH IT MAY BE
CONFIGURATION.198 CONSEQUENTLY, THE PDR MERELY REITERATES THE
NOTED THATTHE PROPOSED MODIFICATION DOES NOT SQUARELY FALL
SAME MITIGATING MEASURES THAT WILL PRESUMABLY ADDRESS THE
UNDER ITEM#3, CONSIDERING THAT, AS PREVIOUSLY MENTIONED,THERE
MINOR MODIFICATIONS TO THE PROJECT DESIGN. AGAIN, NO EVIDENCE
WILL BE NO INCREASE IN CAPACITY RELATIVE TO THE SECOND
WAS PRESENTED TO SHOW SUBSTANTIAL ERRORS OR
AMENDMENT, STILL, WE FIND NOTHING OBJECTIONABLE TO THIS
MISREPRESENTATIONS IN THESE DATA OR THEIR INADEQUACY FOR
CLASSIFICATION BY THE DENR-EMB, FOR IT SEEMS PLAIN ENOUGH THAT
PROVIDING THE BASES FOR THE DENR-EMB TO ASSESS THE
THIS CLASSIFICATION WAS USED BECAUSE THE MODIFICATION WAS
ENVIRONMENTAL IMPACT OF THE PROPOSED MODIFICATIONS UNDER
DEEMED TOO MINOR TO REQUIRE A DETAILED PROJECT STUDY LIKE AN
THE SECOND AMENDMENT.
EIS OR EPRMP. SINCE THIS IS THE CLASSIFICATION MOST RELEVANT AND
CLOSELY RELATED TO THE INTENDED AMENDMENT, FOLLOWING THE IN FINE, ABSENT PROOF TO THE CONTRARY, BEARING IN MIND THAT
BASIC PRECEPT THAT THE GREATER INCLUDES THE LESSER, THE DENR- ALLEGATIONS ARE NOT PROOF, WE SUSTAIN THE PROCEDURE
EMB REASONABLY EXERCISED ITS DISCRETION IN MERELY REQUIRING A ADOPTEDBY THE DENR-EMB IN REQUIRING RP ENERGY TO SUBMIT A PDR
LETTER REQUEST WITH A BRIEF DESCRIPTION OF THE MODIFICATION. AND, ON THE BASIS THEREOF, APPROVING THE REQUEST FOR THE
SECOND AMENDMENT.
AS EARLIER NOTED, THE PDR IS THE EIA DOCUMENT TYPE WITH THE
LEAST DETAIL, AND, THUS, APPLICABLE TO SUCH MINOR MODIFICATIONS. IN ANOTHER VEIN, WE NOTE THAT THE APPELLATE COURT PROCEEDED
THUS, THE DENR-EMB CANNOT BE FAULTED FOR REQUIRING RPENERGY FROM THE ERRONEOUS PREMISE THAT THE EIA IS A DOCUMENT, WHEN
TO SUBMIT A PDR RELATIVE TO ITS APPLICATION FOR THE SECOND IT REPEATEDLY STATED THAT THE AMENDMENTS TO THE ECC REQUIRE A
NEW EIA, AND NOT MERELY AN EPRMP OR PDR. THE APPELLATE COURT
RELIED ON THE PROVISOIN THE ECC, WHICH STATED THAT "[A]NY
EXPANSION OF THE PROJECT BEYOND THE PROJECT DESCRIPTION OR
ANY CHANGE IN THE ACTIVITY OR TRANSFER OF LOCATION SHALL
BESUBJECT TO A NEW ENVIRONMENTAL IMPACT ASSESSMENT."199
HOWEVER, AS CORRECTLY POINTED OUT BY THE DENR AND RP ENERGY,
THE EIA IS NOT A DOCUMENT BUT A PROCESS:
ENVIRONMENTAL IMPACT ASSESSMENT (EIA) — PROCESSTHAT INVOLVES
EVALUATING AND PREDICTING THE LIKELY IMPACTS OF A PROJECT
(INCLUDING CUMULATIVE IMPACTS) ON THE ENVIRONMENT DURING
CONSTRUCTION, COMMISSIONING, OPERATION AND ABANDONMENT. IT
ALSO INCLUDES DESIGNING APPROPRIATE PREVENTIVE, MITIGATING AND
ENHANCEMENT MEASURES ADDRESSING THESE CONSEQUENCES TO
PROTECT THE ENVIRONMENT AND THE COMMUNITY'S WELFARE.THE
PROCESS IS UNDERTAKEN BY, AMONG OTHERS, THE PROJECT
PROPONENT AND/OREIA CONSULTANT, EMB, A REVIEW COMMITTEE,
AFFECTED COMMUNITIES AND OTHER STAKEHOLDERS.200 (EMPHASIS
SUPPLIED)
WHEN THE PROVISOIN THE ECC, THEREFORE, STATES THAT A NEW EIA
SHALL BECONDUCTED, THIS SIMPLY MEANS THAT THE PROJECT
PROPONENT SHALL BE REQUIRED TO SUBMIT SUCH STUDY OR REPORT,
AS WARRANTED BY THE DENR RULES AND CIRCUMSTANCES, WHICH WILL
SUFFICIENTLY AID THE DENR IN MAKING A NEW EIA AND, THUS,
DETERMINE WHETHER TO GRANT THE PROPOSED AMENDMENT (OR
PROJECT MODIFICATION). ASWE HAVE SEEN, CONSISTENT WITH DAO
2003-30 AND THE REVISED MANUAL, THE DENR REQUIRED RP ENERGY TO
SUBMIT AN EPRMP AND A PDR RELATIVE TO THE LATTER’S REQUEST
INVOLVING THE FIRST AND SECOND AMENDMENTS, RESPECTIVELY,
WHICH LED TO THE NEW EIA OF THE PROJECT IN COMPLIANCE WITH THE
PROVISOOF THE ECC.
VERILY, THE VARIOUS EIA DOCUMENTS, SUCH AS THE EPRMP AND PDR,
ARE MERE TOOLS USED BY THE DENR TO ASSESS THE ENVIRONMENTAL
IMPACT OF A PARTICULAR PROJECT. THESE DOCUMENTS ARE FLEXIBLY
USED BY THE DENR, AS THE CIRCUMSTANCES WARRANT, IN ORDER TO
ADEQUATELY ASSESS THE IMPACTS OF A NEW PROJECT OR
MODIFICATIONS THERETO. BEING THE ADMINISTRATIVE AGENCY
ENTRUSTED WITH THE DETERMINATION OF WHICH EIA DOCUMENT TYPE
APPLIES TO A PARTICULAR APPLICATION FOR AN AMENDMENT TO AN
ECC, FALLING AS IT DOES WITHIN ITS PARTICULAR TECHNICAL
EXPERTISE, WEMUST ACCORD GREAT RESPECT TO ITS DETERMINATION,
ABSENT A SHOWING OF GRAVE ABUSE OF DISCRETION OR PATENT
ILLEGALITY.
IN SUM, WE FIND THAT THE APPELLATE COURT ERRED WHEN IT RULED
THAT THE FIRST AND SECOND AMENDMENTS TO THE SUBJECT ECC
WEREINVALID FOR FAILURE TO COMPLY WITH A NEW EIA AND FOR
VIOLATING DAO 2003-30 AND THE REVISED MANUAL. THE APPELLATE
COURT FAILED TO PROPERLY CONSIDER THE APPLICABLE PROVISIONS
IN DAO 2003-30 AND THE REVISED MANUAL ON AMENDMENTS TO ECCS.
OUR EXAMINATION OF THE PROVISIONS ON AMENDMENTS TO ECCS, AS
WELL AS THE EPRMP AND PDR THEMSELVES, SHOWS THAT THE DENR
REASONABLY EXERCISED ITS DISCRETION IN REQUIRING AN EPRMP AND
A PDR FOR THE FIRST AND SECOND AMENDMENTS, RESPECTIVELY.
THROUGH THESE DOCUMENTS, WHICH THE DENR REVIEWED, A NEW EIA
WAS CONDUCTED RELATIVE TO THE PROPOSED PROJECT
MODIFICATIONS. HENCE, ABSENT SUFFICIENT SHOWING OF GRAVE
ABUSE OF DISCRETION OR PATENT ILLEGALITY, RELATIVE TO BOTH THE
PROCEDURE AND SUBSTANCE OF THE AMENDMENT PROCESS, WE
UPHOLD THE VALIDITY OF THESE AMENDMENTS.
IV.
WHETHER THE CERTIFICATE OF NON-OVERLAP (CNO), UNDER SECTION
59 OF THE IPRA LAW, IS A PRECONDITION TO THE ISSUANCE OF ANECC
AND THE LACK OF ITS PRIOR ISSUANCE RENDERED THE ECC INVALID.
THE APPELLATE COURT RULED THAT THE ECC ISSUED IN FAVOR OF RP
ENERGY ON DECEMBER 22, 2008 IS INVALID BECAUSE THE CNO
COVERING THE SUBJECT PROJECT WAS ISSUED ONLY ON OCTOBER 31,
2012 OR ALMOST FOURYEARS FROM THE TIMEOF ISSUANCE OF THE ECC.
THUS, THE ECC WAS ISSUED IN VIOLATION OF SECTION 59 OF THE IPRA
LAW AND ITS IMPLEMENTING RULES WHICH REQUIRE THAT A CNO BE
OBTAINED PRIOR TO THE ISSUANCE OF A GOVERNMENT AGENCY OF,
AMONG OTHERS, A LICENSE OR PERMIT. IN SO RULING, THE APPELLATE
COURT IMPLICITLY UPHELD THE CASIÑO GROUP’S ARGUMENT THAT THE
ECC IS A FORM OF GOVERNMENT LICENSE OR PERMIT PURSUANT TO
SECTION 4 OF PD 1586 WHICH REQUIRES ALL ENTITIES TO SECUREAN
ECC BEFORE (1) ENGAGING IN AN ENVIRONMENTALLY CRITICAL PROJECT
OR (2) IMPLEMENTING A PROJECT WITHIN AN ENVIRONMENTALLY
CRITICAL AREA.
THE DENR AND RP ENERGY, HOWEVER, ARGUE THAT AN ECC IS NOT THE
LICENSE OR PERMIT CONTEMPLATED UNDER SECTION 59 OF THE IPRA
LAW AND ITS IMPLEMENTING RULES AS MAY BE DEDUCED FROM THE
DEFINITION, NATURE AND SCOPE OF AN ECC UNDER DAO 2003-03 AND
THE REVISED MANUAL. THE DENR EXPLAINS THAT THE ISSUANCE OF AN
ECC DOES NOT EXEMPT THE PROJECT PROPONENT FROM SECURING
OTHER PERMITS AND CLEARANCES AS REQUIRED UNDER EXISTING
LAWS, INCLUDING THE CNO, AND THAT THE FINAL DECISION ON
WHETHER A PROJECT WILL BE IMPLEMENTED LIES WITH THE
CONCERNED LOCAL GOVERNMENT UNIT/S OR THE LEAD GOVERNMENT
AGENCY WHICH HAS SECTORAL MANDATE TO PROMOTE THE
GOVERNMENT PROGRAMWHERE THE PROJECT BELONGS.
WE AGREE WITH THE DENR AND RP ENERGY.
SECTION 59, CHAPTER VIII OF THE IPRA LAW PROVIDES:
SEC. 59. CERTIFICATION PRECONDITION. ALL DEPARTMENTS AND OTHER
GOVERNMENTAL AGENCIES SHALL HENCEFORTH BE STRICTLY ENJOINED
FROM ISSUING, RENEWING, OR GRANTING ANY CONCESSION,LICENSE OR
LEASE, OR ENTERING INTO ANY PRODUCTION-SHARING AGREEMENT,
WITHOUT PRIOR CERTIFICATION FROM THE NCIP THAT THE AREA
AFFECTED DOES NOT OVERLAP WITH ANY ANCESTRAL DOMAIN.SUCH
CERTIFICATION SHALL ONLY BE ISSUED AFTER A FIELD-BASED
INVESTIGATION IS CONDUCTED BY THE ANCESTRAL DOMAINS OFFICE OF
THE AREA CONCERNED: PROVIDED, THAT NO CERTIFICATION SHALL BE
ISSUED BY THE NCIP WITHOUT THE FREE AND PRIOR INFORMED AND
WRITTEN CONSENT OF ICCS/IPS CONCERNED: PROVIDED, FURTHER,
THAT NO DEPARTMENT, GOVERNMENT AGENCY OR GOVERNMENT-
OWNED OR -CONTROLLED CORPORATION MAY ISSUE NEW CONCESSION,
LICENSE, LEASE, OR PRODUCTION SHARING AGREEMENT WHILE THERE
IS A PENDING APPLICATION FOR A CADT: PROVIDED, FINALLY, THAT THE
ICCS/IPS SHALL HAVE THE RIGHT TO STOP OR SUSPEND, IN
ACCORDANCE WITH THIS ACT, ANY PROJECT THAT HAS NOT SATISFIED
THE REQUIREMENT OF THIS CONSULTATION PROCESS. (EMPHASIS
SUPPLIED)
WHILE SECTION 9, PART II, RULE VIII OF NATIONAL COMMISSION ON
INDIGENOUS PEOPLES (NCIP) ADMINISTRATIVE ORDER NO. 01-
98201 STATES:
SECTION 9. CERTIFICATION PRECONDITION PRIOR TO ISSUANCE OF ANY
PERMITS OR LICENSES. —
A. NEED FOR CERTIFICATION. NO DEPARTMENT OF GOVERNMENT OR
OTHER AGENCIES SHALL ISSUE, RENEW OR GRANT ANYCONCESSION,
LICENSE, LEASE, PERMIT, OR ENTER INTO ANY PRODUCTION SHARING
AGREEMENT WITHOUT A PRIOR CERTIFICATION FROM THE NCIP THAT
THE AREA AFFECTED DOES NOT OVERLAP ANY ANCESTRAL DOMAIN.
B. PROCEDURE FOR ISSUANCE OFCERTIFICATION BY NCIP.
1) THE CERTIFICATION, ABOVE MENTIONED, SHALL BE ISSUED BY THE
ANCESTRAL DOMAIN OFFICE, ONLY AFTER A FIELD BASED
INVESTIGATION THAT SUCH AREAS ARE NOT WITHIN ANY CERTIFIED OR
CLAIMED ANCESTRAL DOMAINS.
2) THE CERTIFICATION SHALL BE ISSUED ONLY UPON THE FREE, PRIOR,
INFORMED AND WRITTEN CONSENT OF THE ICCS/IPS WHO WILL BE
AFFECTED BY THE OPERATION OF SUCH CONCESSIONS, LICENSES OR
LEASES OR PRODUCTION-SHARING AGREEMENTS. A WRITTEN CONSENT
FOR THE ISSUANCE OF SUCH CERTIFICATION SHALL BE SIGNED BY AT
LEAST A MAJORITY OF THE REPRESENTATIVES OF ALL THE HOUSEHOLDS
COMPRISING THE CONCERNED ICCS/IPS. (EMPHASIS SUPPLIED)
AS MAY BE DEDUCED FROM ITS SUBTITLE, SECTION 59 REQUIRES AS A
PRECONDITION, RELATIVE TO THE ISSUANCE OF ANY CONCESSION,
LICENSE, LEASE OR AGREEMENT OVER NATURAL RESOURCES, A
CERTIFICATION ISSUED BY THE NCIP THAT THE AREA SUBJECT THEREOF
DOES NOT LIE WITHIN ANY ANCESTRAL DOMAIN.202 THIS IS IN KEEPING
WITH THE STATE POLICY TO PROTECT THE RIGHTS OF INDIGENOUS
CULTURAL COMMUNITIES/INDIGENOUS PEOPLES (ICCS/IPS) TO THEIR
ANCESTRAL DOMAINS IN ORDER TO ENSURE THEIR ECONOMIC, SOCIAL
AND CULTURAL WELL-BEING AS WELL AS TO RECOGNIZE THE
APPLICABILITY OF CUSTOMARY LAWS GOVERNING PROPERTY RIGHTS
OR RELATIONS IN DETERMINING THE OWNERSHIP AND EXTENT OF SUCH
ANCESTRAL DOMAIN.203
THE IPRA LAW AND ITS IMPLEMENTING RULES DO NOT DEFINE THE
TERMS "LICENSE" AND "PERMIT" SO THAT RESORT TO THEIR PLAIN OR
ORDINARY MEANING IN RELATION TO THE INTENDMENT OF THE LAW IS
APPROPRIATE.
A "LICENSE" HAS BEEN DEFINED AS "A GOVERNMENTAL PERMISSION TO
PERFORM A PARTICULAR ACT (SUCH AS GETTING MARRIED), CONDUCT A
PARTICULAR BUSINESS OR OCCUPATION, OPERATE MACHINERY OR
VEHICLES AFTER PROVING CAPACITY AND ABILITY TO DO SO SAFELY, OR
USE PROPERTY FOR A CERTAIN PURPOSE"204 WHILE A "PERMIT" HAS
BEEN DEFINED AS "A LICENSE OR OTHER DOCUMENT GIVEN BY AN
AUTHORIZED PUBLIC OFFICIAL OR AGENCY (BUILDING INSPECTOR,
DEPARTMENT OFMOTOR VEHICLES) TO ALLOW A PERSON OR BUSINESS
TO PERFORM CERTAIN ACTS."205
THE EVIDENT INTENTION OF SECTION 59, IN REQUIRING THE CNO PRIOR
TO THE ISSUANCE OF A LICENSE OR PERMIT, IS TO PREVENT THE
IMPLEMENTATION OF A PROJECT THAT MAY IMPAIR THE RIGHT OF
ICCS/IPS TO THEIR ANCESTRAL DOMAINS. THE LAW SEEKS TO ENSURE
THAT A PROJECT WILLNOT OVERLAP WITH ANY ANCESTRAL DOMAIN
PRIOR TO ITS IMPLEMENTATION AND THEREBY PRE-EMPT ANY
POTENTIAL ENCROACHMENT OF, AND/OR DAMAGE TO THE ANCESTRAL
DOMAINS OF ICCS/IPS WITHOUT THEIR PRIOR AND INFORMED CONSENT.
WITH THESE CONSIDERATIONSIN MIND, WE NOW LOOK ATTHE
DEFINITION, NATURE AND SCOPE OF AN ECC IN ORDER TO DETERMINE IF
IT FALLS WITHIN THE AMBIT OF A "LICENSE" OR "PERMIT" TO WHICH THE
CNO REQUIREMENT, UNDER SECTION 59 OF THE IPRA LAW AND ITS
IMPLEMENTING RULES, FINDS APPLICATION. SECTION 4 OF PD 1586
PROVIDES, IN PART:
SECTION 4. PRESIDENTIAL PROCLAMATION OF ENVIRONMENTALLY
CRITICAL AREAS AND PROJECTS. — THE PRESIDENT OF THE PHILIPPINES
MAY, ON HIS OWN INITIATIVE OR UPON RECOMMENDATION OF THE
NATIONAL ENVIRONMENTAL PROTECTION COUNCIL, BY PROCLAMATION
DECLARE CERTAIN PROJECTS, UNDERTAKINGS OR AREAS IN THE
COUNTRY AS ENVIRONMENTALLY CRITICAL. NO PERSON, PARTNERSHIP
OR CORPORATION SHALL UNDERTAKE OR OPERATE ANY
SUCHDECLARED ENVIRONMENTALLY CRITICAL PROJECT OR AREA
WITHOUT FIRST SECURING AN ENVIRONMENTAL COMPLIANCE
CERTIFICATE ISSUED BY THE PRESIDENT ORHIS DULY AUTHORIZED
REPRESENTATIVE.FOR THE PROPER MANAGEMENT OF SAID CRITICAL
PROJECT OR AREA, THE PRESIDENT MAY BY HIS PROCLAMATION
REORGANIZE SUCH GOVERNMENT OFFICES, AGENCIES, INSTITUTIONS,
CORPORATIONS OR INSTRUMENTALITIES INCLUDING THE RE-ALIGNMENT
OF GOVERNMENT PERSONNEL, AND THEIR SPECIFIC FUNCTIONSAND
RESPONSIBILITIES. (EMPHASIS SUPPLIED)
WHILE THE ABOVE STATUTORY PROVISION REVEALS THAT THE ECC IS AN
INDISPENSABLE REQUIREMENT BEFORE (1) THE CONDUCT OF AN
ENVIRONMENTALLY CRITICAL PROJECT OR (2) THE IMPLEMENTATION OF
A PROJECT INAN ENVIRONMENTALLY CRITICAL AREA, IT DOES NOT
FOLLOW THAT THE ECC IS THE "LICENSE" OR "PERMIT" CONTEMPLATED
UNDER SECTION 59 OF THE IPRA LAW AND ITS IMPLEMENTING RULES.
SECTION 3(D), ARTICLE I OF DAO 2003-03 DEFINES AN ECC IN THIS WISE:
SECTION 3. DEFINITION OF TERMS. —
FOR THE PURPOSE OF THIS ORDER, THE FOLLOWING DEFINITIONS SHALL
BE APPLIED:
XXXX
D. ENVIRONMENTAL COMPLIANCE CERTIFICATE (ECC) — DOCUMENT
ISSUED BY THE DENR/EMB AFTER A POSITIVE REVIEW OF AN ECC
APPLICATION, CERTIFYING THAT BASED ON THE REPRESENTATIONS OF
THE PROPONENT, THE PROPOSED PROJECT OR UNDERTAKING WILL NOT
CAUSE SIGNIFICANT NEGATIVE ENVIRONMENTAL IMPACT. THE ECC ALSO
CERTIFIES THAT THE PROPONENT HAS COMPLIED WITH ALL THE
REQUIREMENTS OF THE EIS SYSTEM AND HAS COMMITTED TO
IMPLEMENT ITS APPROVED ENVIRONMENTAL MANAGEMENT PLAN. THE
ECC CONTAINS SPECIFIC MEASURES AND CONDITIONS THAT THE
PROJECT PROPONENT HAS TO UNDERTAKE BEFOREAND DURING THE
OPERATION OF A PROJECT, AND IN SOME CASES, DURING THE
PROJECT'S ABANDONMENT PHASE TO MITIGATE IDENTIFIED
ENVIRONMENTAL IMPACTS.
IN TURN, SECTION 1.0, PARAGRAPHS 3 AND 6 OF THE REVISED MANUAL
PROVIDE, IN PART:
3) PURPOSE OF THE EIA PROCESS
AS A BASIC PRINCIPLE, EIA IS USED TO ENHANCE PLANNING AND GUIDE
DECISIONMAKING. IN THIS MANUAL, EIA IS PRIMARILY PRESENTED IN THE
CONTEXT OF A REQUIREMENT TO INTEGRATE ENVIRONMENTAL
CONCERNS IN THE PLANNING PROCESS OF PROJECTS AT THE
FEASIBILITY STAGE. THROUGH THE EIA PROCESS, ADVERSE
ENVIRONMENTAL IMPACTS OF PROPOSED ACTIONS ARE CONSIDERABLY
REDUCED THROUGH A REITERATIVE REVIEW PROCESS OF PROJECT
SITING, DESIGN AND OTHER ALTERNATIVES, AND THE SUBSEQUENT
FORMULATION OF ENVIRONMENTAL MANAGEMENT AND MONITORING
PLANS. A POSITIVE DETERMINATION BY THE DENR-EMB RESULTS TO THE
ISSUANCE OF AN ENVIRONMENTAL COMPLIANCE COMMITMENT (ECC)
DOCUMENT, TO BE CONFORMED TO BY THE PROPONENT AND
REPRESENTS THE PROJECT’S ENVIRONMENTAL COMPLIANCE
CERTIFICATE. THE RELEASE OF THE ECC ALLOWS THE PROJECT TO
PROCEED TO THE NEXT STAGE OF PROJECT PLANNING, WHICH IS THE
ACQUISITION OF APPROVALS FROM OTHER GOVERNMENT AGENCIES
AND LGUS, AFTER WHICH THE PROJECT CAN START IMPLEMENTATION.
XXXX
6) THE EIA PROCESS INRELATION TO OTHER AGENCIES’ REQUIREMENTS
IT IS INHERENT UPON THE EIA PROCESS TO UNDERTAKE A
COMPREHENSIVE AND INTEGRATED APPROACH IN THE REVIEW AND
EVALUATION OF ENVIRONMENT-RELATED CONCERNS OF GOVERNMENT
AGENCIES (GAS), LOCAL GOVERNMENT UNITS (LGUS) AND THE GENERAL
PUBLIC. THE SUBSEQUENT EIA FINDINGS SHALL PROVIDE GUIDANCE AND
RECOMMENDATIONS TO THESE ENTITIES AS A BASIS FOR THEIR
DECISION MAKING PROCESS.
A) AN INTER-AGENCY MOA ON EIS STREAMLINING WAS ENTERED INTO IN
1992 BY 29 GOVERNMENT AGENCIES WHEREIN ECC OF COVERED
PROJECTS WAS AGREED TO BE A PREREQUISITE OF ALL OTHER
SUBSEQUENT GOVERNMENT APPROVALS;
B) DENR MEMO CIRCULAR NO. 2007-08 ISSUED ON 13 JULY 2007
REITERATES IN EFFECT THE INTENT OF THE MOA AND REINFORCES THE
ROLE OF THE ECC/CNC AS A GUIDANCE DOCUMENT TO OTHER AGENCIES
AND LGUS, AS FOLLOWS:
I) "NO PERMITS AND/OR CLEARANCES ISSUED BY OTHER NATIONAL
GOVERNMENT AGENCIES AND LOCAL GOVERNMENT UNITS SHALL BE
REQUIRED IN THE PROCESSING OF ECC OR CNC APPLICATIONS.
II) THE FINDINGS AND RECOMMENDATIONS OFTHE EIA SHALL BE
TRANSMITTED TO RELEVANT GOVERNMENT AGENCIES FOR THEM TO
INTEGRATE IN THEIR DECISION MAKING PRIOR TO THE ISSUANCE OF
CLEARANCES, PERMITS AND LICENSES UNDER THEIR MANDATES.
III) THE ISSUANCE OF AN ECC OR CNC FOR A PROJECT UNDER THE EIS
SYSTEM DOES NOT EXEMPT THE PROPONENT FROM SECURING OTHER
GOVERNMENT PERMITS AND CLEARANCES AS REQUIRED BY OTHER
LAWS. THE CURRENT PRACTICE OF REQUIRING VARIOUS PERMITS,
CLEARANCESAND LICENSES ONLY CONSTRAINS THE EIA EVALUATION
PROCESS AND NEGATES THE PURPOSE AND FUNCTION OF THE EIA."
IV) HENCEFORTH, ALL RELATED PREVIOUS INSTRUCTIONS AND OTHER
ISSUANCES SHALL BE MADE CONSISTENT WITH THE CIRCULAR.
C) "PERMITS, LICENSES AND CLEARANCES" ARE INCLUSIVE OF OTHER
NATIONAL AND LOCAL GOVERNMENT APPROVALS SUCH AS
ENDORSEMENTS, RESOLUTIONS, CERTIFICATIONS, PLANS AND
PROGRAMS, WHICH HAVE TO BE CLEARED/APPROVED OR OTHER
GOVERNMENT DOCUMENTS REQUIRED WITHIN THE RESPECTIVE
MANDATES AND JURISDICTION OF THESE AGENCIES/LGUS.
XXXX
F) THE FINAL DECISION WHETHER A PROJECT WILL BE IMPLEMENTED OR
NOT LIES EITHER WITH THE LGUS WHO HAVE SPATIAL JURISDICTION
OVER THE PROJECT OR WITH THE LEAD GOVERNMENT AGENCY WHO
HAS SECTORAL MANDATE TO PROMOTE THE GOVERNMENT PROGRAM
WHERE THE PROJECT BELONGS, E.G. DOE FOR ENERGY PROJECTS;
DENR-MGB FOR MINING PROJECTS.(EMPHASIS SUPPLIED)
AS CAN BE SEEN, THE ISSUANCE OF THE ECC DOES NOT, BY AND OF
ITSELF, AUTHORIZE THE IMPLEMENTATION OF THE PROJECT. ALTHOUGH
IT IS INDISPENSABLE BEFORE THE COVERED PROJECT CAN BE
COMMENCED, ASPER SECTION 4 OF PD 1586,THE ISSUANCEOF THE ECC
DOES NOT, AS OF YET, RESULT INTHE IMPLEMENTATION OF THE
PROJECT. RATHER, THE ECC IS INTENDED TO, AMONG OTHERS, PROVIDE
GUIDANCE OR ACT AS A DECISION-MAKING TOOL TO OTHER
GOVERNMENT AGENCIES AND LGUS WHICH HAVE THE FINAL AUTHORITY
TO GRANT LICENSES OR PERMITS, SUCH AS BUILDING PERMITS OR
LICENSES TO OPERATE, THAT WILL ULTIMATELY RESULT IN, OR
AUTHORIZE THE IMPLEMENTATION OF THE PROJECT OR THE CONDUCT
OF SPECIFIC ACTIVITIES.
AS A CONSEQUENCE, WE FIND THAT THE CNO REQUIREMENT UNDER
SECTION 59 OF THE IPRA LAW IS NOT REQUIRED TO BE OBTAINED PRIOR
TO THE ISSUANCE OF AN ECC. AS PREVIOUSLY DISCUSSED, SECTION 59
AIMS TO FORESTALL THE IMPLEMENTATION OF A PROJECT THAT MAY
IMPAIR THE RIGHT OF ICCS/IPS TOTHEIR ANCESTRAL DOMAINS, BY
ENSURING OR VERIFYING THAT A PROJECT WILL NOT OVERLAP WITH ANY
ANCESTRAL DOMAIN PRIOR TO ITS IMPLEMENTATION. HOWEVER,
BECAUSE THE ISSUANCE OF AN ECC DOES NOT RESULT IN THE
IMPLEMENTATION OF THE PROJECT, THERE IS NO NECESSITY TO
SECURE A CNO PRIOR TO AN ECC’S ISSUANCE AS THE GOAL
ORPURPOSE, WHICH SECTION 59 SEEKS TO ACHIEVE, IS, AT THE TIME OF
THE ISSUANCE OF AN ECC, NOT YET APPLICABLE.
IN SUM, WE FIND THAT THE ECC IS NOT THE LICENSE OR PERMIT
CONTEMPLATED UNDER SECTION 59 OF THE IPRA LAW AND ITS
IMPLEMENTING RULES. HENCE, THERE IS NO NECESSITY TO SECURE THE
CNO UNDER SECTION 59 BEFORE AN ECC MAY BE ISSUED AND THE
ISSUANCE OF THE SUBJECT ECC WITHOUT FIRST SECURING THE
AFORESAID CERTIFICATION DOES NOT RENDER IT INVALID.
V.
WHETHER THE CERTIFICATE OF NON-OVERLAP (CNO), UNDER SECTION
59 OF THE IPRA LAW, IS A PRECONDITION TO THE CONSUMMATION OF
THE LEASE AND DEVELOPMENT AGREEMENT (LDA) BETWEEN SBMA AND
RP ENERGY AND THE LACK OF ITS PRIOR ISSUANCE RENDERED THE LDA
INVALID.
WE NOW TURN TO THE APPLICABILITY OF SECTION 59 OF THE IPRA LAW
TO THE LDA ENTERED INTO BETWEEN THE SBMA AND RP ENERGY ON
JUNE 8, 2010. SIMILAR TO THE ECC, THE LDA WAS ENTERED INTO PRIOR
TO THE ISSUANCE OFTHE CNO ON OCTOBER 31, 2012.
BEFORE THIS COURT, SBMA AND RP ENERGY REITERATE THEIR
ARGUMENTS ON WHY THE CNO IS NO LONGER NECESSARY IN THE
INSTANT CASE, TO WIT:
1. PRIOR TO ENTERING INTO THE LDA WITHRP ENERGY, SBMA ENTERED
INTO A LEASE AGREEMENT WITH HHIC206 -PHILIPPINES, INC. AND A CNO
WAS ALREADY ISSUED THEREFOR WHICH, FOR ALL INTENTS AND
PURPOSES, IS APPLICABLE TO THE AREA LEASED BY RP ENERGY BEING
PART OF CONTIGUOUS LOTS IN REDONDO PENINSULA.
2. THE SITE OF THE POWER PLANT PROJECT IS VERY DISTANT FROM THE
BOUNDARIES OF THE LONE AREA AT THE SUBIC BAY FREEPORT ZONE
COVERED BY AN AETA COMMUNITY’S CERTIFICATE OF ANCESTRAL
DOMAIN TITLE (CADT).
3. THERE WAS NO INDIGENOUS COMMUNITY WITHIN THE VICINITY OF THE
PROJECT AREA AS STATED IN RP ENERGY’S EIS.
4. THE LAND WHERE THE PROJECT IS LOCATED WAS SUBSEQUENTLY
CLASSIFIED AS INDUSTRIAL BY THE SBMA. 5. THE SCOPING/PROCEDURAL
SCREENING CHECKLIST CLASSIFIED AS "NOT RELEVANT" THE ISSUE OF
INDIGENOUS PEOPLE.
6. MS. MERCADO, WHO WAS PART OF THE TEAM WHICH PREPARED THE
EIS, TESTIFIED THAT SHE VISITED THE PROJECT SITE TEN OR MORE
TIMES AND DID NOT SEE ANY AETA COMMUNITIES THERE.
7. MR. EVANGELISTA TESTIFIED THAT THE PROJECT SITE USED TO BE A
FIRING RANGE OF THE U.S. ARMED FORCES WHICH WOULD MAKE IT
IMPOSSIBLE TO BE A SETTLEMENT AREA OF INDIGENOUS COMMUNITIES.
8. ATTY. RODRIGUEZ STATED THAT THE PROJECT SITE IS NOT COVERED
BY A CADT AND THAT FROM THE START OF NEGOTIATIONS ON THE LDA,
THE SBMA ECOLOGY CENTER VERIFIED WITH THE NCIP THAT THERE WAS
NO APPLICATION FOR SAID AREA TO BE COVERED BY A CADT.
RP ENERGY FURTHER ARGUES THAT, IN ANY CASE, AS A MATTER OF
PRUDENCE, IT SECURED A CNO FROM THE NCIP. ON OCTOBER 31, 2012,
THE NCIP ISSUED THE SUBJECT CNO OVER THE PROJECT SITE, WHICH
SHOULD ERASE ANY DOUBT AS TO WHETHER IT OVERLAPS WITH AN
ANCESTRAL DOMAIN.
UPHOLDING THE ARGUMENTS OF THE CASIÑO GROUP, THE APPELLATE
COURT RULED THAT SBMA FAILED TO COMPLY WITH THE CNO
REQUIREMENT AND, THUS, THE LDA ENTERED INTO BETWEEN SBMA AND
RP ENERGY IS INVALID. IT REJECTED THE REASONS GIVEN BY SBMA AND
RP ENERGY, TO WIT:
1. RP ENERGY’S RELIANCE ON ITS OWN FIELD INVESTIGATION THAT NO
INDIGENOUS COMMUNITY WAS FOUND WITHIN THE VICINITY IS
UNAVAILING BECAUSE IT WAS NOT THE FIELD INVESTIGATION BY THE
NCIP REQUIRED BY THE IPRA LAW.
2. RP ENERGY ACKNOWLEDGED THAT AETAS WERE AMONG THE
EARLIEST SETTLERS IN THE MUNICIPALITY WHERE THE PROJECT WILL BE
BUILT. HENCE, IT WAS NOT CLEARLY SHOWN THAT IN 2008, AT THE TIME
THE LDA WAS ENTERED INTO, THERE WERE NO
INDIGENOUSCOMMUNITIES IN THE PROJECT SITE.
3. SBMA’S REPRESENTATION THAT THE PROJECT SITE IS INDUSTRIAL
RELIES ON A LETTER DATED MARCH 5, 2008 AND THE SCOPING
CHECKLIST, WHICH ARE HEARSAY EVIDENCE.
4. THE STATEMENTS OF ATTY. RODRIGUEZ HAVE NO PROBATIVE VALUE
BECAUSE HE IS NOT AN OFFICER OF SBMA ECOLOGY CENTER ORAN
OFFICER OF NCIP.
5. AT THE TIME THE CNO WAS ISSUED ON OCTOBER 31, 2012, AND THE
FIELD INVESTIGATION RELATIVE THERETO WAS CONDUCTED BY THE
NCIP, THE PROJECT SITE NO LONGER REFLECTED THE ACTUAL
CONDITION ON DECEMBER 22, 2008 WHEN THE LDA WAS ENTERED INTO
BECAUSE THE HOUSEHOLDS WHICH OCCUPIED THE SITE HAD ALREADY
BEEN RELOCATED BY THEN.
6. SBMA, PRIOR TO ENTERING INTO A LEASE AGREEMENT WITH HHIC,
SECURED A CNO, BUT ODDLY DID NOT DO THE SAME WITH RESPECT TO
THE LEASE AGREEMENT WITH RP ENERGY, CONSIDERING THAT BOTH
LEASES COVER LANDS LOCATED WITHIN THE SAME PENINSULA. RP
ENERGY APPEARS TO HAVE BEEN ACCORDED A DIFFERENT TREATMENT.
7. THE CNO ISSUED IN FAVOR OF HHIC CANNOT JUSTIFY THE LACK OF A
CNO FOR THE POWER PLANT PROJECT BECAUSE THE TWO PROJECTS
ARE SITUATED IN DIFFERENT LOCATIONS: THE HHIC PROJECT IS
LOCATED IN SITIO AGUSUHIN,WHILE THE POWER PLANT PROJECT IS
LOCATED IN SITIO NAGLATORE.
WHILE WE AGREE WITH THE APPELLATE COURT THAT A CNO SHOULD
HAVE BEEN SECURED PRIOR TO THE CONSUMMATION OF THE LDA
BETWEEN SBMAAND RP ENERGY, AND NOT AFTER, AS WAS DONE HERE,
WE FIND THAT, UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE,
THE SUBSEQUENT AND BELATED COMPLIANCE WITHTHE CNO
REQUIREMENT DOES NOT INVALIDATE THE LDA.
FOR CONVENIENCE, AND AS STARTING POINT OF OURANALYSIS, WE
REPRODUCE SECTION 59 OF THE IPRA LAW BELOW:
SEC. 59. CERTIFICATION PRECONDITION. ALL DEPARTMENTS AND OTHER
GOVERNMENTAL AGENCIES SHALL HENCEFORTH BE STRICTLY ENJOINED
FROM ISSUING, RENEWING, OR GRANTING ANY CONCESSION, LICENSE
OR LEASE, OR ENTERING INTO ANY PRODUCTIONSHARING AGREEMENT,
WITHOUT PRIOR CERTIFICATION FROM THE NCIP THAT THE AREA
AFFECTED DOES NOT OVERLAP WITH ANY ANCESTRAL DOMAIN.SUCH
CERTIFICATION SHALL ONLY BE ISSUED AFTER A FIELD-BASED
INVESTIGATION IS CONDUCTED BY THE ANCESTRAL DOMAINS OFFICE OF
THE AREA CONCERNED: PROVIDED, THAT NO CERTIFICATION SHALL BE
ISSUED BY THE NCIP WITHOUT THE FREE AND PRIOR INFORMED AND
WRITTEN CONSENT OF ICCS/IPS CONCERNED: PROVIDED, FURTHER,
THAT NO DEPARTMENT, GOVERNMENT AGENCY OR GOVERNMENT-
OWNED OR -CONTROLLED CORPORATION MAY ISSUE NEW CONCESSION,
LICENSE, LEASE, OR PRODUCTION SHARING AGREEMENT WHILE THERE
IS A PENDING APPLICATION FOR A CADT: PROVIDED, FINALLY, THAT THE
ICCS/IPS SHALL HAVE THE RIGHT TO STOP OR SUSPEND, IN
ACCORDANCE WITH THIS ACT, ANY PROJECT THAT HAS NOT SATISFIED
THE REQUIREMENT OF THIS CONSULTATION PROCESS. (EMPHASIS
SUPPLIED)
THE LAW IS CLEAR BUT ITS ACTUAL OPERATION OR APPLICATION
SHOULD NOT BE INTERPRETED BEYOND THE BOUNDS OF REASON OR
PRACTICALITY.
WE EXPLAIN.
INDEED, A CNO IS REQUIRED PRIOR TO THE GRANT OF A LEASE BY ALL
GOVERNMENT AGENCIES, INCLUDING THE SBMA. AGAIN, THE EVIDENT
INTENTION IS TO PREVENT THE IMPAIRMENT OF THE RIGHT OF ICCS/IPS
TO THEIR ANCESTRAL DOMAINS. A LEASE, SUCH AS THE LDA UNDER
CONSIDERATION, WOULD RESULT IN, AMONG OTHERS, GRANTING RP
ENERGY THE RIGHT TO THE USE AND ENJOYMENT OF THE PROJECT SITE
TO THE EXCLUSION OF THIRD PARTIES.207 AS SUCH, THE LEASE COULD
CONCEIVABLY ENCROACH ON AN ANCESTRAL DOMAIN IF THE CNO IS NOT
FIRST OBTAINED.
HOWEVER, IMPLICIT IN THE OPERATION OF SECTION 59 IS THE
PRACTICAL REALITY THAT THE CONCERNED GOVERNMENT AGENCY
MUST MAKE A PRELIMINARY DETERMINATIONON WHETHER OR NOT TO
OBTAIN THE REQUIRED CERTIFICATION IN THE FIRST PLACE. TO
EXPOUND, A GOVERNMENT AGENCY, WHICH WISHES TO LEASE PART OF
ITS PROPERTY LOCATED NEAR PADRE FAURA STREET, MANILA CITY
COULD NOT, AND SHOULD NOT BE REASONABLY EXPECTED TO OBTAIN
THE CNO, AS IT IS OBVIOUSLY INAPPLICABLE TO ITS PLANNED LEASE. IN
CONTRAST, A GOVERNMENT AGENCY, WHICH INTENDS TO LEASE A
PROPERTY IN A VALLEY OR MOUNTAINOUS REGION, WHERE INDIGENOUS
COMMUNITIES ARE KNOWN TO RESIDE, CONDUCT HUNTING ACTIVITIES,
PERFORM RITUALS, OR CARRY OUT SOME OTHER ACTIVITIES, SHOULD
BE REASONABLY EXPECTED TO SECURE THE CNO PRIOR TO
CONSUMMATING THE PLANNED LEASE WITH THIRD PERSONS.
EVEN IF THE INDIGENOUS COMMUNITY DOES NOT ACTUALLYRESIDE ON
THE PROPOSED LEASE SITE, THE GOVERNMENT AGENCY WOULD STILL
BE REQUIRED TO OBTAIN THE CNO PRECISELYTO RULE OUT THE
POSSIBILITY THAT THE PROPOSED LEASE SITE ENCROACHES UPON AN
ANCESTRAL DOMAIN. THE REASON FOR THIS IS THAT AN ANCESTRAL
DOMAIN DOES NOT ONLY COVER THE LANDS ACTUALLY OCCUPIED BY AN
INDIGENOUS COMMUNITY, BUT ALL AREAS WHERE THEY HAVE A CLAIM
OF OWNERSHIP, THROUGH TIME IMMEMORIAL USE, SUCH AS HUNTING,
BURIAL OR WORSHIP GROUNDS AND TO WHICH THEY HAVE TRADITIONAL
ACCESS FOR THEIR SUBSISTENCE AND OTHER TRADITIONAL
ACTIVITIES.208
THE WORDING OF THE LAW ITSELF SEEMS TO PRESUPPOSE THAT IF THE
CONCESSION, LEASE, LICENSE OR PRODUCTION-SHARING AGREEMENT
IS OVER NATURAL RESOURCES, THEN THE CNO SHOULD BE FIRST
OBTAINED. THIS IS BECAUSE THE LASTTERM, "PRODUCTION-SHARING
AGREEMENT," NORMALLY REFERS TO NATURAL RESOURCES. BUT THE
PROBLEM ARISES AS TO WHAT SHOULD BE CONSIDERED "NATURAL
RESOURCES"; FOR A VACANT LOT, NEARPADRE FAURA STREET, OR A
FOREST LAND, IN MT. BANAHAW, COULD BOTH BECONSIDERED AS
"NATURAL RESOURCES," DEPENDING ON THE RESTRICTIVE OR
EXPANSIVE UNDERSTANDING OF THAT TERM.
AFTER DUE CONSIDERATION, WE FIND THAT THE PROPER RULE OF
ACTION, FOR PURPOSES OF APPLICATION OF SECTION 59, IS THAT ALL
GOVERNMENT OFFICES SHOULD UNDERTAKE PROPER AND REASONABLE
DILIGENCE IN MAKING A PRELIMINARY DETERMINATION ON WHETHER TO
SECURE THE CNO, BEARING IN MIND THE PRIMORDIAL STATE INTEREST
IN PROTECTING THE RIGHTS OF ICCS/IPS TO THEIR ANCESTRAL
DOMAINS. THEY SHOULD CONSIDER THE NATURE AND LOCATION OF THE
AREAS INVOLVED; THE HISTORICAL BACKGROUND OF THE AFORESAID
AREAS RELATIVE TO THE OCCUPATION, USE OR CLAIM OF OWNERSHIP
BY ICCS/IPS; THE PRESENT AND ACTUAL CONDITION OF THE AFORESAID
AREAS LIKETHE EXISTENCE OF ICCS/IPS WITHIN THE AREA ITSELF OR
WITHIN NEARBY TERRITORIES; AND SUCH OTHER CONSIDERATIONS THAT
WOULD HELP DETERMINE WHETHER A CNO SHOULD BE FIRST OBTAINED
PRIOR TO GRANTING A CONCESSION, LEASE, LICENSE OR PERMIT, OR
ENTERING INTO A PRODUCTION-SHARING AGREEMENT.
IF THERE ARE CIRCUMSTANCES THAT INDICATE THAT A CLAIM OF
OWNERSHIP BY ICCS/IPS MAY BE PRESENT OR A CLAIM OF OWNERSHIP
MAY BE ASSERTED IN THE FUTURE, NO MATTER HOW REMOTE, THE
PROPER AND PRUDENT COURSE OFACTION IS TO OBTAIN THE CNO. IN
CASE OF DOUBT, THE DOUBT SHOULD BE RESOLVED IN FAVOR OF
SECURING THE CNO AND, THUS, THE GOVERNMENT AGENCY IS UNDER
OBLIGATION TOSECURE THE AFORESAID CERTIFICATION IN ORDER TO
PROTECT THE INTERESTS AND RIGHTS OF ICCS/IPS TO THEIR
ANCESTRAL DOMAINS. THIS MUST BE SO IF WE ARE TO ACCORD THE
PROPER RESPECT DUE TO, AND ADEQUATELY SAFEGUARD THE
INTERESTS AND RIGHTS OF, OUR BROTHERS AND SISTERS BELONGING
TO ICCS/IPS IN CONSONANCE WITH THE CONSTITUTIONAL POLICY209 TO
PROMOTE AND PROTECT THE RIGHTS OF ICCS/IPS AS FLESHED OUT IN
THE IPRA LAW AND ITS IMPLEMENTING RULES.
IN THE CASE AT BAR, WE FIND, APPLYING THIS RULE OF ACTION, THAT
THE SBMA SHOULD HAVE FIRST SECURED A CNO BEFORE ENTERING
INTO THE LDA WITH RP ENERGY FOR THE FOLLOWING REASONS.
FIRST, THE SUBIC AREA IS HISTORICALLYKNOWN TO BE THE HOME OF
OUR BROTHERS AND SISTERS BELONGING TO THE AETA COMMUNITIES.
IN PARTICULAR, THE EIS210 ITSELF OF RP ENERGY NOTED THAT AETA
COMMUNITIES ORIGINALLY OCCUPIEDTHE PROPOSED PROJECT SITE OF
THE POWER PLANT. THUS, EVEN IF WE ASSUME THAT, AT THE TIME OF
THE OCULAR INSPECTION OF THE PROPOSED PROJECT SITE IN 2008,
THERE WERE NO AETA COMMUNITIES SEEN THEREAT, AS CLAIMED BY RP
ENERGY, THE EXERCISE OF REASONABLE PRUDENCE SHOULD HAVE
MOVED SBMA AND RP ENERGY TO SECURE A CNO IN ORDER TO RULE
OUT THE POSSIBILITY THAT THE PROJECT SITE MAY OVERLAP WITH AN
ANCESTRAL DOMAIN. THIS IS ESPECIALLY SO, IN VIEW OF THE
OBSERVATION PREVIOUSLY MADE, THAT LACK OF ACTUAL OCCUPATION
BY AN INDIGENOUS COMMUNITY OFTHE AREA DOES NOT NECESSARILY
MEAN THAT IT IS NOT A PART OF ANANCESTRAL DOMAIN BECAUSE THE
LATTER ENCOMPASSES AREAS THAT ARE NOT ACTUALLY OCCUPIED BY
INDIGENOUSCOMMUNITIES BUT ARE USED FOR OTHER PURPOSES LIKE
HUNTING, WORSHIP OR BURIAL GROUNDS.
SECOND, SBMA AND RP ENERGY CLAIM THAT THE SBMA ECOLOGY
CENTER VERIFIED WITH THE NCIP THAT THE PROJECT SITE DOES NOT
OVERLAP WITH AN ANCESTRAL DOMAIN. HOWEVER, THE PERSON, WHO
ALLEGEDLY DID THE VERIFICATION, AND THE OFFICER FROM THE NCIP,
WHO WAS CONTACTED IN THIS ALLEGED VERIFICATION, WERE NOT
PRESENTED IN COURT. ASSUMING THAT THIS VERIFICATION DID TAKE
PLACE AND THAT THE SBMA ECOLOGY CENTER DETERMINED THAT
THERE IS NO PENDINGAPPLICATION FOR A CADT COVERING THE
PROJECT SITE AND THAT THE PRESENTLY RECOGNIZED CADT OF AETA
COMMUNITIES IS TOO FAR AWAY FROM THE PROJECT SITE, IT STILL
DOES NOT FOLLOW THAT THE CNO UNDER SECTION 59 SHOULD HAVE
BEEN DISPENSED WITH. THE ACTS OF INDIVIDUAL MEMBERS OFA
GOVERNMENT AGENCY, WHO ALLEGEDLY CHECKED WITH THE NCIP THAT
THE PROJECT SITE DOES NOT OVERLAP WITH AN ANCESTRAL DOMAIN,
CANNOT SUBSTITUTE FOR THE CNO REQUIRED BY LAW. THE REASON IS
OBVIOUS. SUCH POSTURE WOULD CIRCUMVENT THE NOBLE AND
LAUDABLE PURPOSES OF THE LAW IN PROVIDING THE CNO AS THE
APPROPRIATE MECHANISM IN ORDER TO VALIDLY AND OFFICIALLY
DETERMINE WHETHER A PARTICULAR PROJECT SITE DOES NOT
OVERLAP WITH AN ANCESTRAL DOMAIN. IT WOULD OPEN THE DOORS TO
ABUSE BECAUSE A GOVERNMENT AGENCY CAN EASILY CLAIM THAT IT
CHECKED WITH THE NCIP REGARDING ANY APPLICATION FOR AN
ANCESTRAL DOMAIN OVER A PROPOSED PROJECT SITE WHILE STOPPING
SHORT OF SECURING A CNO. TO REITERATE, THE LEGALLY MANDATED
MANNER TO VERIFY IF A PROJECT SITE OVERLAPS WITH AN ANCESTRAL
DOMAIN IS THE CNO,AND NOT THROUGH PERSONAL VERIFICATION BY
MEMBERS OF A GOVERNMENT AGENCY WITH THE NCIP.
THIRD, THAT THE PROJECT SITE WAS FORMERLYUSED AS THE FIRING
RANGE OF THE U.S. ARMED FORCES DOES NOT PRECLUDE THE
POSSIBILITY THAT A PRESENT ORFUTURE CLAIM OF ANCESTRAL DOMAIN
MAY BE MADE OVER THE AFORESAID SITE. THE CONCEPT OF AN
ANCESTRAL DOMAIN INDICATES THAT, EVEN IF THE USE OFAN AREA WAS
INTERRUPTED BY THE OCCUPATION OF FOREIGN FORCES, IT MAY STILL
BE VALIDLY CLAIMED TO BE AN ANCESTRAL DOMAIN.211
FOURTH, THAT THE PROJECT SITE WAS SUBSEQUENTLY CLASSIFIED BY
THE SBMA AS FORMING PART OF AN INDUSTRIAL ZONE DOES NOT
EXEMPT IT FROM THE CNO REQUIREMENT. THE CHANGE IN THE
CLASSIFICATION OF THE LAND IS NOT AN EXCEPTION TO THE CNO
REQUIREMENT UNDER THE IPRA LAW. OTHERWISE, GOVERNMENT
AGENCIES CAN EASILY DEFEAT THE RIGHTS OF ICCS/IPS THROUGH THE
CONVERSION OF LAND USE.
FIFTH, SBMA ARGUES THAT THE CNO ISSUED TO HHIC SHOULD, FOR ALL
INTENTS AND PURPOSES, BE APPLICABLE TO RP ENERGY. HOWEVER,
ASCORRECTLY RULED BY THE APPELLATE COURT, THE CNO ISSUED TO
HHIC’S SHIPYARD CANNOT BE EXTENDED TO RP ENERGY’S PROJECT
SITE BECAUSE THEY INVOLVE TWO DIFFERENT LOCATIONS ALTHOUGH
FOUND WITHIN THE SAME LAND MASS. THE CNO ISSUED IN FAVOR OF
HHIC CLEARLY STATES THAT THE FINDINGS IN THE CNO ARE APPLICABLE
ONLY TO THE SHIPYARD LOCATION OF HHIC. LAST, THE STEPS TAKEN BY
SBMA, IN SECURING A CNO PRIOR TO ITS LEASE AGREEMENT WITH HHIC,
WAS THE PROPER AND PRUDENT COURSE OF ACTION THAT SHOULD
HAVE BEEN APPLIED TO THE LDA WITH RP ENERGY. IT DOES NOTMATTER
THAT HHIC ITSELF ASKED FOR THE CNO PRIOR TO ENTERING INTO A
LEASE AGREEMENT WITH SBMA, AS CLAIMED BY SBMA, WHILE RP
ENERGY DID NOT MAKE SUCH A REQUEST BECAUSE, AS WE HAVE
DISCUSSED, SBMA HAD THE OBLIGATION, GIVEN THE SURROUNDING
CIRCUMSTANCES, TO SECURE A CNO IN ORDER TO RULE OUT THE
POSSIBILITY THAT THE PROJECT SITE OVERLAPPED WITH AN ANCESTRAL
DOMAIN.
ALL IN ALL, WE FIND, APPLYING THE FOREGOING RULE OF ACTION,THAT
SBMA SHOULD HAVE SECURED A CNO BEFORE ENTERING INTO THE LDA
WITH RP ENERGY. CONSIDERING THAT SECTION 59 IS A PROHIBITORY
STATUTORY PROVISION, A VIOLATION THEREOF WOULD ORDINARILY
RESULT IN THE NULLIFICATION OF THE CONTRACT.212 HOWEVER, WE
RULE THAT THE HARSH CONSEQUENCES OF SUCH A RULING SHOULD
NOT BE APPLIED TO THE CASE AT BAR.
THE REASON IS THAT THIS IS THE FIRST TIME THAT WE LAY DOWN THE
FOREGOING RULE OF ACTION SO MUCH SO THAT IT WOULD BE
INEQUITABLE TO RETROACTIVELY APPLY ITS EFFECTS WITH RESPECT TO
THE LDA ENTERED INTO BETWEEN SBMA AND RPENERGY. WE ALSO
NOTE THAT, UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE,
THERE IS NO SHOWING THAT SBMA AND RP ENERGY HAD A DELIBERATE
OR ILL INTENT TO ESCAPE, DEFEAT OR CIRCUMVENT THE MANDATE OF
SECTION 59 OF THE IPRA LAW. ON THE CONTRARY, THEY APPEAR TO
HAVE BELIEVED IN GOOD FAITH, ALBEITERRONEOUSLY, THAT A CNO WAS
NO LONGER NEEDED BECAUSE OF THE AFORE-DISCUSSED DEFENSES
THEY RAISED HEREIN. WHEN THE MATTER OF LACK OF A CNO RELATIVE
TO THE LDA WAS BROUGHT TO THEIR ATTENTION, THROUGH THE
SUBJECT PETITION FOR WRIT OFKALIKASAN FILED BY THE CASIÑO
GROUP, RP ENERGY, WITH THE ENDORSEMENT OF SBMA, PROMPTLY
UNDERTOOK TO SECURE THE CNO, WHICH WAS ISSUED ON OCTOBER 31,
2012 AND STATED THAT THE PROJECT SITE DOES NOT OVERLAP WITH
ANY ANCESTRAL DOMAIN.213
THUS, ABSENT PROOF TO THE CONTRARY, WEARE NOT PREPARED TO
RULE THAT SBMA AND RP ENERGY ACTED INBAD FAITH OR WITH
INEXCUSABLE NEGLIGENCE, CONSIDERING THAT THE FOREGOING RULE
OF ACTION HAS NOT HERETOFORE BEEN LAIDDOWN BY THIS COURT. AS
A RESULT, WE HOLD THAT THE LDA SHOULD NOTBE INVALIDATED DUE TO
EQUITABLE CONSIDERATIONS PRESENT HERE.
BY SO RULING, WE CLARIFY THAT WE REJECT RP ENERGY’S CLAIM THAT
THE BELATED SUBMISSION OF THE CNO IS AN "OVER COMPLIANCE" ON
ITS PART. QUITE THE CONTRARY, AS WE HAVE DISCUSSED, THE CNO
SHOULD HAVE BEEN FIRST SECURED GIVEN THE SURROUNDING
CIRCUMSTANCES OF THIS CASE.
IN THE SAME VEIN, WE REJECT SBMA’S ARGUMENT THATTHE BELATED
APPLICATION FOR, AND SUBMISSION OF THE CNO CURED WHATEVER
DEFECT THE LDA HAD. WE HAVE PURPOSELY AVOIDED A RULING TO THE
EFFECT THAT A CNO SECURED SUBSEQUENT TO THE CONCESSION,
LEASE, LICENSE, PERMIT OR PRODUCTION-SHARING AGREEMENT WILL
CURE THE DEFECT. SUCH A RULING WOULD LEAD TO ABUSE OF THE CNO
REQUIREMENT SINCE THE DEFECT CAN BE CURED ANYWAY BY A
SUBSEQUENT AND BELATED APPLICATION FOR A CNO. GOVERNMENT
AGENCIES AND THIRD PARTIES, EITHER THROUGH DELIBERATE INTENT
OR NEGLIGENCE, MAY VIEW IT AS AN EXCUSE NOT TO TIMELY AND
PROMPTLY SECURE THE CNO, EVEN WHEN THE CIRCUMSTANCES
WARRANT THE APPLICATION FOR A CNO UNDER THE AFOREDISCUSSED
RULE OF ACTION, TOTHE DAMAGE AND PREJUDICE OF ICCS/IPS. VERILY,
ONCE THE CONCESSION, LEASE, LICENSE OR PERMIT IS ISSUED, OR THE
AGREEMENT IS ENTERED INTO WITHOUT THE REQUISITE CNO,
CONSEQUENT DAMAGES WILL HAVE ALREADY OCCURRED IF IT LATER
TURNS OUT THAT THE SITE OVERLAPS WITH ANANCESTRAL DOMAIN.
THIS IS SO EVEN IF THE ICCS/IPS CAN HAVE THE PROJECT STOPPED
UPON DISCOVERY THATIT OVERLAPPED WITH THEIR ANCESTRAL DOMAIN
UNDER THE LAST PROVISO214 OF SECTION 59. TO PREVENT THIS EVIL,
COMPLIANCE WITH THE CNO REQUIREMENT SHOULD BE FOLLOWED
THROUGH THE AFOREDISCUSSED RULE OF ACTION.
IN SUM, WE RULE THAT A CNO SHOULD HAVE BEEN SECURED PRIOR TO
THE CONSUMMATION OF THE LDA BETWEEN SBMA AND RP ENERGY.
HOWEVER, CONSIDERING THAT THIS IS THE FIRST TIME WE LAY DOWN
THE RULE OF ACTION APPROPRIATE TO THE APPLICATION OF SECTION
59, WE REFRAIN FROM INVALIDATING THE LDA DUE TO EQUITABLE
CONSIDERATIONS.
VI.
WHETHER COMPLIANCE WITH SECTION 27, INRELATION TO SECTION 26,
OF THE LGC (I.E., APPROVAL OF THE CONCERNED
SANGGUNIANREQUIREMENT) IS NECESSARY PRIOR TO THE
IMPLEMENTATION OF THE POWER PLANT PROJECT.
SUSTAINING THE ARGUMENTS OFTHE CASIÑO GROUP, THE APPELLATE
COURT RULED THAT THE SUBJECT PROJECT CANNOT BECONSTRUCTED
AND OPERATED UNTIL AFTER THE PRIOR APPROVAL OF THE CONCERNED
SANGGUNIANREQUIREMENT, UNDER SECTION 27 OF THE LGC, IS
COMPLIED WITH. HENCE, THE ECC AND LDA COULD NOT BE VALIDLY
GRANTED AND ENTERED INTO WITHOUT FIRST COMPLYING WITH THE
AFORESAID PROVISION. IT HELD THAT ALL THE REQUISITES FOR THE
APPLICATION OF THE AFORESAID PROVISION ARE PRESENT. AS TO THE
PERTINENT PROVISIONS OF RA 7227 OR "THEBASES CONVERSION AND
DEVELOPMENT ACT OF 1992," WHICH GRANTS BROAD POWERS OF
ADMINISTRATION TO THE SBMA OVER THE SUBIC SPECIAL ECONOMIC
ZONE(SSEZ), THE APPELLATE COURT RULED THAT RA 7227 CONTAINS A
PROVISION RECOGNIZING THE BASIC AUTONOMY OFTHE LGUS WHICH
JOINED THE SSEZ. THUS, THE LGC AND RA 7227SHOULD BE HARMONIZED
WHEREBY THE CONCERNED SANGGUNIAN’SPOWER TO APPROVE UNDER
SECTION 27 MUST BE RESPECTED.
THE DENR IMPLIEDLY AGREES WITH THE CASIÑO GROUP THAT
COMPLIANCE WITH SECTION 27 IS STILL REQUIRED BUT WITHOUT
CLEARLY ELABORATING ITS REASONS THEREFOR.
THE SBMA AND RP ENERGY, HOWEVER, ARGUE THAT THE PRIOR
APPROVAL OF THE CONCERNED SANGGUNIANREQUIREMENT, UNDER
SECTION 27, IS INAPPLICABLE TO THE SUBJECT PROJECT BECAUSE IT IS
LOCATED WITHIN THE SSEZ. THE LGC AND RA 7227 CANNOT BE
HARMONIZED BECAUSE OF THE CLEAR MANDATE OF THE SBMA TO
GOVERN AND ADMINISTER ALL INVESTMENTS AND BUSINESSES WITHIN
THE SSEZ. HENCE, RA 7227 SHOULD BE DEEMED AS CARVING OUT AN
EXCEPTION TO THE PRIOR APPROVAL OF THE CONCERNED
SANGGUNIANREQUIREMENT INSOFAR AS THE SSEZ IS CONCERNED.
WE AGREE WITH THE SBMA AND RP ENERGY.
PRELIMINARILY, WE NOTE THAT SECTIONS 26 AND 27 OF THE LGC
CONTEMPLATE TWO REQUIREMENTS: (1) PRIOR CONSULTATIONS AND (2)
PRIOR APPROVAL OF THE CONCERNED SANGGUNIAN,VIZ:
SECTION 26. DUTY OF NATIONAL GOVERNMENT AGENCIES IN THE
MAINTENANCE OF ECOLOGICAL BALANCE. — IT SHALL BE THE DUTY OF
EVERY NATIONAL AGENCY OR GOVERNMENT-OWNED OR -CONTROLLED
CORPORATION AUTHORIZING OR INVOLVED IN THE PLANNING AND
IMPLEMENTATION OF ANY PROJECT OR PROGRAM THAT MAY CAUSE
POLLUTION, CLIMATIC CHANGE, DEPLETION OF NON-RENEWABLE
RESOURCES, LOSS OF CROPLAND, RANGELAND, OR FOREST COVER,
AND EXTINCTION OF ANIMAL OR PLANT SPECIES, TO CONSULT WITH THE
LOCAL GOVERNMENT UNITS, NON GOVERNMENTAL ORGANIZATIONS, AND
OTHER SECTORS CONCERNED AND EXPLAIN THE GOALS AND
OBJECTIVES OF THE PROJECT OR PROGRAM, ITS IMPACT UPON THE
PEOPLEAND THE COMMUNITY IN TERMS OF ENVIRONMENTAL OR
ECOLOGICAL BALANCE, AND THE MEASURES THAT WILL BE UNDERTAKEN
TO PREVENT OR MINIMIZE THE ADVERSE EFFECTS THEREOF. (EMPHASIS
SUPPLIED)
SECTION 27. PRIOR CONSULTATIONS REQUIRED. — NO PROJECT OR
PROGRAM SHALL BE IMPLEMENTED BY GOVERNMENT AUTHORITIES
UNLESS THE CONSULTATIONS MENTIONED IN SECTIONS 2 (C) AND 26
HEREOF ARE COMPLIED WITH, AND PRIOR APPROVAL OF THE
SANGGUNIAN CONCERNED IS OBTAINED: PROVIDED, THAT OCCUPANTS
IN AREAS WHERE SUCH PROJECTS ARE TO BE IMPLEMENTED SHALL NOT
BE EVICTED UNLESS APPROPRIATE RELOCATION SITES HAVE BEEN
PROVIDED, IN ACCORDANCE WITH THE PROVISIONS OF THE
CONSTITUTION. (EMPHASIS SUPPLIED)
IN THE CASE AT BAR, THE CASIÑO GROUP ONLY QUESTIONS THE
ALLEGED LACK OF THE PRIOR APPROVAL OF THE CONCERNED
SANGGUNIANS UNDER SECTION 27 OF THE LGC. THUS, WE SHALL LIMIT
OUR DISCUSSION TO THE RESOLUTION OF THIS ISSUE.
(PARENTHETICALLY, WE NOTE THAT PRIOR CONSULTATIONS, AS
REQUIRED BY SECTION 26 OF THE LGC, APPEAR TO HAVE BEEN
COMPLIED WITH. THIS MAY BEGLEANED FROM THE EIS OF RPENERGY
WHICH CONTAINS THE DOCUMENTATION OF THE EXTENSIVE PUBLIC
CONSULTATIONS HELD, UNDER THE SUPERVISION OF THE DENR-EMB,
RELATIVE TO THE SUBJECT PROJECT, AS REQUIRED BY THE EIA
PROCESS,215 AS WELL AS THE SOCIALACCEPTABILITY POLICY
CONSULTATIONS CONDUCTED BY THE SBMA, WHICH GENERATED THE
DOCUMENT ENTITLED "FINAL REPORT: SOCIAL ACCEPTABILITY PROCESS
FOR RP ENERGY, INC.’S 600-MW COAL PLANT PROJECT," AS NOTED AND
DISCUSSED IN AN EARLIER SUBSECTION.216)
WE ALSO NOTE THAT THE CASIÑO GROUP ARGUES THAT THE APPROVAL
OF THE CONCERNED SANGGUNIAN REQUIREMENT WAS NECESSARY
PRIOR TO THE ISSUANCE OF THE ECC AND THE CONSUMMATION OF THE
LDA; THE ABSENCE OF WHICH INVALIDATED THE ECC AND LDA.
WE SHALL NO LONGER DISCUSS AT LENGTH WHETHER THE APPROVAL
OF THE CONCERNED SANGGUNIAN REQUIREMENT MUST BE COMPLIED
WITH PRIOR TO THE ISSUANCE OF AN ECC. AS DISCUSSED IN AN EARLIER
SUBSECTION, THE ISSUANCE OF AN ECC DOES NOT, BY ITSELF, RESULT
IN THE IMPLEMENTATION OF THE PROJECT. HENCE, THE PURPOSE OR
GOAL OF SECTIONS 26 AND 27 OF THE LGC,LIKE SECTION 59 OF THE IPRA
LAW, DOES NOT YET OBTAIN AND, THUS, THE ECC MAY BE ISSUED
EVENWITHOUT PRIOR COMPLIANCE WITH SECTIONS 26 AND 27 OF THE
LGC.
WE, THUS, LIMIT THE DISCUSSION AS TO WHETHER THE APPROVAL OF
THE CONCERNED SANGGUNIAN REQUIREMENT SHOULD HAVE BEEN
COMPLIED WITH PRIOR TO THE CONSUMMATION OF THE LDA,
CONSIDERING THAT THE LDA IS PART OF THE IMPLEMENTATION OF THE
SUBJECT PROJECT AND ALREADY VESTS IN RP ENERGY THE RIGHT TO
THE USE AND ENJOYMENT OF THE PROJECT SITE, ASIN FACT
HORIZONTAL CLEARING ACTIVITIES WERE ALREADY UNDERTAKEN BY RP
ENERGY AT THE PROJECT SITE BY VIRTUE OF THE LDA.
THE PRIOR APPROVAL OF THE CONCERNED SANGGUNIAN REQUIREMENT
IS AN ATTRIBUTE AND IMPLEMENTATION OF THE LOCAL AUTONOMY
GRANTED TO, AND ENJOYED BY LGUS UNDER THE CONSTITUTION.217 THE
LGU HAS THE DUTY TO PROTECT ITS CONSTITUENTS AND INTERESTS IN
THE IMPLEMENTATION OF THE PROJECT. HENCE, THE APPROVAL OF THE
CONCERNED SANGGUNIAN IS REQUIRED BY LAW TO ENSURE THATLOCAL
COMMUNITIES PARTAKE IN THE FRUITS OF THEIR OWN BACKYARD.218
FOR SECTION 27, IN RELATION TO SECTION 26, TO APPLY, THE
FOLLOWING REQUISITES MUST CONCUR: (1) THE PLANNING AND
IMPLEMENTATION OF THE PROJECT OR PROGRAM IS VESTED IN A
NATIONAL AGENCY OR GOVERNMENT-OWNED AND-CONTROLLED
CORPORATION, I.E., NATIONAL PROGRAMS AND/OR PROJECTS WHICH
ARE TO BE IMPLEMENTED IN A PARTICULAR LOCAL COMMUNITY; AND (2)
THE PROJECT OR PROGRAM MAY CAUSE POLLUTION, CLIMATIC CHANGE,
DEPLETION OF NON-RENEWABLE RESOURCES, LOSS OF CROPLAND,
RANGELAND, OR FOREST COVER, EXTINCTION OF ANIMAL OR PLANT
SPECIES, OR CALL FOR THE EVICTION OF A PARTICULAR GROUP OF
PEOPLE RESIDING IN THE LOCALITY WHERE THE PROJECT WILL BE
IMPLEMENTED.219
IN THE CASE AT BAR, THE TWO REQUISITES ARE EVIDENTLY PRESENT: (1)
THE PLANNING AND IMPLEMENTATION OF THE SUBJECT PROJECT
INVOLVES THE DEPARTMENT OF ENERGY, DENR, AND SBMA; AND (2) THE
SUBJECT PROJECT MAY CAUSE POLLUTION, CLIMATIC CHANGE,
DEPLETION OF NON-RENEWABLE RESOURCES, LOSS OF CROPLAND,
RANGELAND, OR FOREST COVER, AND EXTINCTION OF ANIMAL OR PLANT
SPECIES,OR CALL FOR THE EVICTION OF A PARTICULAR GROUP OF
PEOPLE RESIDING IN THE LOCALITY WHERE THE PROJECT WILL BE
IMPLEMENTED. HENCE, SECTION 27 OF THE LGC SHOULD ORDINARILY
APPLY.
IT IS NOT DISPUTED THAT NO APPROVAL WAS SOUGHT FROM THE
CONCERNED SANGGUNIANSRELATIVE TO THE SUBJECT
PROJECT.1A\^/PHI1WHATIS MORE, THE AFFECTED LGUS HAVE
EXPRESSED THEIR STRONG OPPOSITIONS TO THE PROJECT THROUGH
VARIOUS SANGGUNIAN RESOLUTIONS.220 HOWEVER, IT IS ALSO
UNDISPUTED THAT THE SUBJECT PROJECT IS LOCATED WITHIN THE SSEZ
AND, THUS, UNDER THE TERRITORIAL JURISDICTION OF THE SBMA
PURSUANT TO RA 7227.
THUS, WE ARE TASKED TO DETERMINE THE APPLICABILITY OF THE PRIOR
APPROVAL OF THE CONCERNED SANGGUNIAN REQUIREMENT, UNDER
SECTION 27 OF THE LGC, RELATIVE TO A PROJECT WITHIN THE
TERRITORIAL JURISDICTION OF THE SBMA UNDER RA 7227.
RA 7227 WAS PASSED ON MARCH 13, 1992 IN THE AFTERMATH OF THE
MOUNT PINATUBO ERUPTION AND THE CLOSURE OF THE SUBIC NAVAL
BASE OFTHE U.S. ARMED FORCES. IT SOUGHT TO REVIVETHE AFFECTED
AREAS BY CREATING AND DEVELOPING THE SSEZ INTO A "SELF-
SUSTAINING INDUSTRIAL, COMMERCIAL, FINANCIAL AND INVESTMENT
CENTER TO GENERATE EMPLOYMENT OPPORTUNITIES IN AND AROUND
THE ZONE AND TO ATTRACT AND PROMOTE PRODUCTIVE FOREIGN
INVESTMENTS."221 THE SSEZ COVERED THE CITY OF OLANGAPO AND
MUNICIPALITY OF SUBIC IN THE PROVINCE OFZAMBALES AND THE LANDS
AND ITS CONTIGUOUS EXTENSIONS OCCUPIED BY THE FORMER U.S.
NAVAL BASE, WHICH TRAVERSED THE TERRITORIES OF THE
MUNICIPALITIES OF HERMOSA AND MORONG IN THE PROVINCE OF
BATAAN. UNDER SECTION 12 OF RA 7227, THE CREATION OF THE SSEZ
WAS MADE SUBJECT TO THE CONCURRENCE BY RESOLUTION OF THE
RESPECTIVE SANGGUNIANS OF THE CITY OF OLONGAPO AND THE
MUNICIPALITIES OF SUBIC, MORONG AND HERMOSA, VIZ:
SECTION 12. SUBIC SPECIAL ECONOMIC ZONE. — SUBJECT TO THE
CONCURRENCE BY RESOLUTION OF THE SANGGUNIANG PANLUNGSOD
OF THE CITY OF OLONGAPO AND THE SANGGUNIANG BAYANOF THE
MUNICIPALITIES OF SUBIC, MORONG AND HERMOSA, THERE IS HEREBY
CREATED A SPECIAL ECONOMIC AND FREE-PORT ZONE CONSISTING OF
THE CITY OF OLONGAPO AND THE MUNICIPALITY OF SUBIC, PROVINCE OF
ZAMBALES, THE LANDS OCCUPIED BY THE SUBIC NAVAL BASE AND ITS
CONTIGUOUS EXTENSIONS AS EMBRACED, COVERED, AND DEFINED BY
THE 1947 MILITARY BASES AGREEMENT BETWEEN THE PHILIPPINES AND
THE UNITED STATES OF AMERICA AS AMENDED, AND WITHIN THE
TERRITORIAL JURISDICTION OF THE MUNICIPALITIES OF MORONG AND
HERMOSA, PROVINCE OF BATAAN, HEREINAFTER REFERRED TO AS THE
SUBIC SPECIAL ECONOMIC ZONE WHOSE METES AND BOUNDS SHALL BE
DELINEATED IN A PROCLAMATION TO BE ISSUED BY THE PRESIDENT OF
THE PHILIPPINES. WITHIN THIRTY (30) DAYS AFTER THE APPROVAL OF
THIS ACT, EACH LOCAL GOVERNMENT UNIT SHALL SUBMIT ITS
RESOLUTION OF CONCURRENCE TO JOIN THE SUBIC SPECIAL ECONOMIC
ZONE TO THE OFFICE OF THE PRESIDENT. THEREAFTER, THE PRESIDENT
OF THE PHILIPPINES SHALL ISSUE A PROCLAMATION DEFINING THE
METES AND BOUNDS OF THE ZONE AS PROVIDED HEREIN.
SUBSEQUENTLY, THE AFORESAID SANGGUNIANS SUBMITTED THEIR
RESPECTIVE RESOLUTIONS OF CONCURRENCE AND THE PRESIDENT
ISSUED PRESIDENTIAL PROCLAMATION NO. 532, SERIES OF 1995,
DEFINING THE METES AND BOUNDS OF THE SSEZ.
IN EXECUTIVE SECRETARY V. SOUTHWING HEAVY INDUSTRIES,
INC.,222 WE DESCRIBED THE CONCEPT OF SSEZ AS A FREEPORT:
THE FREEPORT WAS DESIGNED TO ENSUREFREE FLOW OR MOVEMENT
OF GOODS AND CAPITAL WITHIN A PORTION OF THE PHILIPPINE
TERRITORY IN ORDER TO ATTRACT INVESTORS TO INVEST THEIR
CAPITAL IN A BUSINESS CLIMATE WITH THE LEAST GOVERNMENTAL
INTERVENTION. THE CONCEPT OFTHIS ZONE WAS EXPLAINED BY
SENATOR GUINGONA IN THIS WISE:
SENATOR GUINGONA. MR. PRESIDENT, THE SPECIAL ECONOMIC ZONE IS
SUCCESSFUL IN MANY PLACES, PARTICULARLY HONG KONG, WHICH IS A
FREE PORT. THE DIFFERENCE BETWEEN A SPECIAL ECONOMIC ZONE
AND AN INDUSTRIAL ESTATE IS SIMPLY EXPANSIVE IN THE SENSE THAT
THE COMMERCIAL ACTIVITIES, INCLUDING THE ESTABLISHMENT OF
BANKS, SERVICES, FINANCIAL INSTITUTIONS, AGRO-INDUSTRIAL
ACTIVITIES, MAYBE AGRICULTURE TO A CERTAIN EXTENT.
THIS DELINEATES THE ACTIVITIES THAT WOULD HAVE THE LEAST OF
GOVERNMENT INTERVENTION, AND THE RUNNING OF THE AFFAIRS OF
THE SPECIAL ECONOMIC ZONE WOULD BE RUN PRINCIPALLY BY THE
INVESTORS THEMSELVES, SIMILAR TOA HOUSING SUBDIVISION, WHERE
THE SUBDIVISION OWNERS ELECT THEIR REPRESENTATIVES TO RUN THE
AFFAIRS OF THE SUBDIVISION, TOSET THE POLICIES, TO SET THE
GUIDELINES.
WE WOULD LIKE TO SEE SUBIC AREA CONVERTED INTO A LITTLE HONG
KONG, MR. PRESIDENT, WHERE THERE IS A HUB OF FREE PORT AND
FREE ENTRY, FREE DUTIES AND ACTIVITIES TO A MAXIMUM SPUR
GENERATION OF INVESTMENT AND JOBS.
WHILE THE INVESTOR IS RELUCTANT TO COME IN THE PHILIPPINES, AS A
RULE, BECAUSE OF RED TAPE AND PERCEIVED DELAYS, WE ENVISION
THIS SPECIAL ECONOMIC ZONE TO BE AN AREA WHERE THERE WILL BE
MINIMUM GOVERNMENT INTERFERENCE.
THE INITIAL OUTLAY MAY NOT ONLY COME FROM THE GOVERNMENT OR
THE AUTHORITY AS ENVISIONED HERE, BUT FROM THEM THEMSELVES,
BECAUSE THEY WOULD BE ENCOURAGED TO INVEST NOT ONLY FOR THE
LAND BUT ALSO FOR THE BUILDINGS AND FACTORIES. AS LONG AS THEY
ARE CONVINCED THAT IN SUCH AN AREA THEY CAN DO BUSINESS AND
REAP REASONABLE PROFITS, THENMANY FROM OTHER PARTS, BOTH
LOCAL AND FOREIGN, WOULD INVEST, MR. PRESIDENT.223 (EMPHASIS IN
THE ORIGINAL)
TO ACHIEVE THE ABOVE-MENTIONED PURPOSES, THE LAW CREATED
SBMA TO ADMINISTER THE SSEZ. IN THE PROCESS, SBMA WAS GRANTED
BROAD AND ENORMOUS POWERS AS PROVIDED FOR UNDER SECTION
13(B) OF RA 7227:
SEC. 13. THE SUBIC BAY METROPOLITAN AUTHORITY. –
XXXX
(B) POWERS AND FUNCTIONS OF THE SUBIC BAY METROPOLITAN
AUTHORITY - THE SUBIC BAY METROPOLITAN AUTHORITY, OTHERWISE
KNOWNAS THE SUBIC AUTHORITY, SHALL HAVE THE FOLLOWING
POWERS AND FUNCTION: (1) TO OPERATE, ADMINISTER, MANAGE AND
DEVELOP THE SHIP REPAIR AND SHIP BUILDING FACILITY, CONTAINER
PORT, OIL STORAGE AND REFUELING FACILITY AND CUBI AIR BASE
WITHIN THE SUBIC SPECIAL ECONOMIC AND FREE-PORT ZONE AS A FREE
MARKET IN ACCORDANCE WITH THE POLICIES SET FORTH IN SECTION 12
OF THIS ACT;
(2) TO ACCEPT ANY LOCAL OR FOREIGN INVESTMENT, BUSINESS OR
ENTERPRISE, SUBJECT ONLY TO SUCH RULES AND REGULATIONS TO BE
PROMULGATED BY THE SUBIC AUTHORITY IN CONFORMITY WITH THE
POLICIES OF THE CONVERSION AUTHORITY WITHOUT PREJUDICE TO THE
NATIONALIZATION REQUIREMENTS PROVIDED FOR IN THE
CONSTITUTION;
(3) TO UNDERTAKE AND REGULATE THE ESTABLISHMENT, OPERATION
AND MAINTENANCE OF UTILITIES, OTHER SERVICES AND
INFRASTRUCTURE IN THE SUBIC SPECIAL ECONOMIC ZONE INCLUDING
SHIPPING AND RELATED BUSINESS, STEVEDORING AND PORT TERMINAL
SERVICES OR CONCESSIONS, INCIDENTAL THERETO AND AIRPORT
OPERATIONS IN COORDINATION WITH THE CIVIL AERONAUTICS BOARD,
AND TO FIX JUST AND REASONABLE RATES, FARES CHARGES AND
OTHER PRICES THEREFOR;
(4) TO CONSTRUCT, ACQUIRE, OWN, LEASE, OPERATE AND MAINTAIN ON
ITS OWN OR THROUGH CONTRACT, FRANCHISE, LICENSE PERMITS BULK
PURCHASE FROM THE PRIVATE SECTOR AND BUILD-OPERATE TRANSFER
SCHEME OR JOINT-VENTURE THE REQUIRED UTILITIES AND
INFRASTRUCTUREIN COORDINATION WITH LOCAL GOVERNMENT UNITS
AND APPROPRIATE GOVERNMENT AGENCIES CONCERNED AND
INCONFORMITY WITH EXISTING APPLICABLE LAWS THEREFOR;
(5) TO ADOPT, ALTER AND USE A CORPORATE SEAL; TO CONTRACT,
LEASE, SELL, DISPOSE, ACQUIRE AND OWN PROPERTIES; TO SUE AND BE
SUED IN ORDER TO CARRY OUT ITS DUTIES AND FUNCTIONS AS
PROVIDED FOR IN THIS ACT AND TO EXERCISE THE POWER OF EMINENT
DOMAIN FOR PUBLIC USE AND PUBLIC PURPOSE;
(6) WITHIN THE LIMITATION PROVIDED BY LAW, TO RAISE AND/OR
BORROW THE NECESSARY FUNDS FROM LOCAL AND INTERNATIONAL
FINANCIAL INSTITUTIONS AND TO ISSUE BONDS, PROMISSORY NOTES
AND OTHER SECURITIES FOR THAT PURPOSE AND TO SECURE THE SAME
BY GUARANTEE, PLEDGE, MORTGAGE DEED OF TRUST, OR ASSIGNMENT
OF ITS PROPERTIES HELD BY THE SUBIC AUTHORITY FOR THE PURPOSE
OF FINANCING ITS PROJECTS AND PROGRAMS WITHIN THE FRAMEWORK
AND LIMITATION OF THIS ACT;
(7) TO OPERATE DIRECTLY OR INDIRECTLY OR LICENSE TOURISM
RELATED ACTIVITIES SUBJECT TO PRIORITIES AND STANDARDS SET BY
THE SUBIC AUTHORITY INCLUDING GAMES AND AMUSEMENTS, EXCEPT
HORSE RACING, DOG RACING AND CASINO GAMBLING WHICH SHALL
CONTINUE TO BE LICENSED BY THE PHILIPPINE AMUSEMENT AND
GAMING CORPORATION (PAGCOR) UPON RECOMMENDATION OF THE
CONVERSION AUTHORITY; TO MAINTAIN AND PRESERVE THE FORESTED
AREAS AS A NATIONAL PARK;
(8) TO AUTHORIZE THE ESTABLISHMENT OFAPPROPRIATE EDUCATIONAL
AND MEDICAL INSTITUTIONS;
(9) TO PROTECT, MAINTAIN AND DEVELOP THE VIRGIN FORESTS WITHIN
THE BASELANDS, WHICH WILL BE PROCLAIMED AS A NATIONAL PARK AND
SUBJECT TO A PERMANENT TOTAL LOG BAN, AND FOR THIS PURPOSE,
THE RULES AND REGULATIONS OF THE DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES AND OTHER GOVERNMENT AGENCIES
DIRECTLY INVOLVED IN THE ABOVE FUNCTIONS SHALL BE IMPLEMENTED
BY THE SUBIC AUTHORITY;
(10) TO ADOPT AND IMPLEMENT MEASURES AND STANDARDS FOR
ENVIRONMENTAL POLLUTION CONTROL OF ALL AREAS WITHIN ITS
TERRITORY, INCLUDING BUT NOT LIMITED TO ALL BODIES OF WATER AND
TO ENFORCE THE SAME. FOR WHICH PURPOSE THE SUBIC AUTHORITY
SHALL CREATE AN ECOLOGY CENTER; AND
(11) TO EXERCISE SUCH POWERS AS MAY BE ESSENTIAL, NECESSARY OR
INCIDENTAL TO THE POWERS GRANTED TO IT HEREUNDER AS WELL AS
TO CARRY OUT THE POLICIES AND OBJECTIVES OF THIS ACT. (EMPHASIS
SUPPLIED) THE IMPLEMENTING RULES OF RA 7227 FURTHER PROVIDE:
SEC. 11. RESPONSIBILITIES OF THE SBMA. OTHER THAN THE POWERS
AND FUNCTIONS PRESCRIBED IN SECTION 10 OF THESE RULES, THE
SBMA SHALL HAVE THE FOLLOWING RESPONSIBILITIES:
(A) THE SBMA SHALL EXERCISE AUTHORITY AND JURISDICTION OVER ALL
ECONOMIC ACTIVITY WITHIN THE SBF224
XXXX
(F) CONSISTENT WITH THE CONSTITUTION, THE SBMA SHALL HAVE THE
FOLLOWING POWERS TO ENFORCE THE LAW AND THESE RULES IN THE
SBF:
XXXX
(8) TO ISSUE, ALTER, MODIFY, SUSPEND OR REVOKE FOR CAUSE, ANY
PERMIT, CERTIFICATE, LICENSE, VISA OR PRIVILEGE ALLOWED UNDER
THE ACT OR THESE RULES;
XXXX
(11) TO PROMULGATE SUCH OTHER RULES, REGULATIONS AND
CIRCULARS AS MAY BE NECESSARY, PROPER OR INCIDENTAL TO CARRY
OUT THE POLICIES AND OBJECTIVES OF THE ACT, THESE RULES, AS
WELL AS THE POWERS AND DUTIES OF THE SBMA THEREUNDER.225
AS CAN BE SEEN, THE SBMA WAS GIVEN BROAD ADMINISTRATIVE
POWERS OVER THE SSEZ AND THESE NECESSARILY INCLUDE THE
POWER TO APPROVE OR DISAPPROVE THE SUBJECT PROJECT, WHICH IS
WITHIN ITS TERRITORIAL JURISDICTION. BUT, AS PREVIOUSLY
DISCUSSED, THE LGC GRANTS THE CONCERNED SANGGUNIANSTHE
POWER TO APPROVE AND DISAPPROVE THIS SAME PROJECT. THE SBMA
ASSERTS THAT ITS APPROVAL OF THE PROJECT PREVAILS OVER THE
APPARENT DISAPPROVAL OF THE CONCERNED SANGGUNIANS. THERE IS,
THEREFORE, A REAL CLASH BETWEEN THE POWERS GRANTED UNDER
THESE TWO LAWS.
WHICH SHALL PREVAIL?
SECTION 12 OF RA 7227 PROVIDES:
SEC. 12. SUBIC SPECIAL ECONOMIC ZONE. X X X
THE ABOVEMENTIONED ZONE SHALL BE SUBJECTED TO THE FOLLOWING
POLICIES:
(A) WITHIN THE FRAMEWORK AND SUBJECT TO THE MANDATE AND
LIMITATIONS OF THE CONSTITUTION AND THE PERTINENT PROVISIONS
OF THE LOCAL GOVERNMENT CODE, THE SUBIC SPECIAL ECONOMIC
ZONE SHALL BEDEVELOPED INTO A SELF-SUSTAINING, INDUSTRIAL,
COMMERCIAL, FINANCIAL AND INVESTMENT CENTER TO GENERATE
EMPLOYMENT OPPORTUNITIES IN AND AROUND THE ZONE AND TO
ATTRACT AND PROMOTE PRODUCTIVE FOREIGN INVESTMENTS;
XXXX
(I) EXCEPT AS HEREIN PROVIDED, THE LOCAL GOVERNMENT UNITS
COMPRISING THE SUBIC SPECIAL ECONOMIC ZONE SHALL RETAIN THEIR
BASIC AUTONOMY AND IDENTITY. THE CITIES SHALL BE GOVERNED BY
THEIR RESPECTIVE CHARTERS AND THE MUNICIPALITIES SHALL
OPERATE AND FUNCTION IN ACCORDANCE WITH REPUBLIC ACT NO. 7160,
OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991.
(EMPHASIS SUPPLIED)
THIS SECTION SETS OUT THE BASIC POLICIES UNDERLYING THE
CREATION OF THE SSEZ. INDEED, AS NOTED BY THE APPELLATE COURT,
SECTION 12(I) EXPRESSLY RECOGNIZES THE BASIC AUTONOMY AND
IDENTITY OF THE LGUSCOMPRISING THE SSEZ. HOWEVER, THE CLAUSE
"[E]XCEPT AS HEREIN PROVIDED" UNAMBIGUOUSLY PROVIDES THAT THE
LGUS DO NOT RETAIN THEIR BASIC AUTONOMY AND IDENTITYWHEN IT
COMES TO MATTERS SPECIFIED BY THE LAW AS FALLING UNDER THE
POWERS, FUNCTIONS AND PREROGATIVES OF THE SBMA.
IN THE CASE AT BAR, WE FIND THAT THE POWER TO APPROVE OR
DISAPPROVE PROJECTS WITHIN THE SSEZ IS ONE SUCH POWER OVER
WHICH THE SBMA’S AUTHORITY PREVAILS OVER THE LGU’S AUTONOMY.
HENCE, THERE ISNO NEED FOR THE SBMA TO SECURE THE APPROVAL
OF THE CONCERNED SANGGUNIANSPRIOR TO THE IMPLEMENTATION OF
THE SUBJECT PROJECT.
THIS INTERPRETATION IS BASED ON THE BROAD GRANT OF POWERS TO
THE SBMA OVER ALL ADMINISTRATIVE MATTERS RELATING TO THE SSEZ
UNDER SECTION 13 OF RA 7227, AS AFORE-DISCUSSED. EQUALLY
IMPORTANT, UNDER SECTION 14, OTHER THAN THOSE INVOLVING
DEFENSE AND SECURITY, THE SBMA’S DECISION PREVAILS IN CASE OF
CONFLICT BETWEEN THE SBMA AND THE LGUS IN ALL MATTERS
CONCERNING THE SSEZ, VIZ.:
SEC. 14. RELATIONSHIP WITH THE CONVERSION AUTHORITY AND THE
LOCAL GOVERNMENT UNITS.
(A) THE PROVISIONS OF EXISTING LAWS, RULES AND REGULATIONS TO
THE CONTRARY NOTWITHSTANDING, THE SUBIC AUTHORITY SHALL
EXERCISE ADMINISTRATIVE POWERS, RULE-MAKING AND DISBURSEMENT
OF FUNDS OVER THE SUBIC SPECIAL ECONOMIC ZONEIN CONFORMITY
WITH THE OVERSIGHT FUNCTION OF THE CONVERSION AUTHORITY.
(B) IN CASE OF CONFLICT BETWEEN THE SUBIC AUTHORITY AND THE
LOCAL GOVERNMENT UNITS CONCERNED ON MATTERS AFFECTING THE
SUBIC SPECIAL ECONOMIC ZONE OTHER THAN DEFENSE AND SECURITY,
THE DECISION OF THE SUBICAUTHORITY SHALL PREVAIL. (EMPHASIS
SUPPLIED)
CLEARLY, THE SUBJECT PROJECT DOES NOT INVOLVE DEFENSE OR
SECURITY, BUT RATHER BUSINESS AND INVESTMENT TO FURTHER THE
DEVELOPMENT OF THE SSEZ. SUCH IS IN LINE WITH THE OBJECTIVE OF
RA 7227 TO DEVELOP THE SSEZ INTO A SELF-SUSTAINING INDUSTRIAL,
COMMERCIAL, FINANCIAL AND INVESTMENT CENTER. HENCE, THE
DECISION OF THE SBMA WOULD PREVAIL OVER THE APPARENT
OBJECTIONS OF THE CONCERNED SANGGUNIANS OF THE LGUS.
SIGNIFICANTLY, THE LEGISLATIVE DELIBERATIONS ON RA 7227, LIKEWISE,
SUPPORT AND CONFIRM THE FOREGOING INTERPRETATION. AS EARLIER
NOTED, SECTION 13 B(4) OF RA 7227 PROVIDES:
SEC. 13. THE SUBIC BAY METROPOLITAN AUTHORITY. –
XXXX
(B) POWERS AND FUNCTIONS OF THE SUBIC BAY METROPOLITAN
AUTHORITY - THE SUBIC BAY METROPOLITAN AUTHORITY, OTHERWISE
KNOWNAS THE SUBIC AUTHORITY, SHALL HAVE THE FOLLOWING
POWERS AND FUNCTION: X X X X
(4) TO CONSTRUCT, ACQUIRE, OWN, LEASE, OPERATE AND MAINTAIN ON
ITS OWN OR THROUGH CONTRACT, FRANCHISE, LICENSE PERMITS BULK
PURCHASE FROM THE PRIVATE SECTOR AND BUILD-OPERATE TRANSFER
SCHEME OR JOINT-VENTURE THE REQUIRED UTILITIES AND
INFRASTRUCTURE IN COORDINATION WITH LOCAL GOVERNMENT UNITS
AND APPROPRIATE GOVERNMENT AGENCIES CONCERNED AND IN
CONFORMITY WITH EXISTING APPLICABLE LAWS THEREFOR;
IN THE SENATE, DURING THE PERIOD OF AMENDMENTS, WHEN THE
PROVISION WHICH WOULD EVENTUALLY BECOME THE AFORE-QUOTED
SECTION 13 B(4) OF RA 7227 WAS UNDER CONSIDERATION, THE
FOLLOWING EXCHANGES TOOK PLACE:
SENATOR LAUREL. MR. PRESIDENT.
THE PRESIDENT. SENATOR LAUREL IS RECOGNIZED.
SENATOR LAUREL. RELATIVE TO LINE 27 UP TO LINE 31 OF PAGE 16,
REGARDING THE PROVISION TO THE EFFECT THAT THE AUTHORITYWILL
HAVE THE FOLLOWING FUNCTIONS: "TO CONSTRUCT, ACQUIRE, OWN,
ETCETERA," THAT IS ALL RIGHT.
MY MOTION IS THAT WE AMEND THIS PARTICULAR LINE, STARTING FROM
THE WORD "STRUCTURES", BY DELETING THE WORDS THAT FOLLOW ON
LINE 31, WHICH STATES: "IN COORDINATION WITH LOCAL GOVERNMENT
UNITSAND", AND SUBSTITUTE THE FOLLOWING IN PLACE OF THOSE
WORDS: "SUBJECT TO THE APPROVAL OF THE SANGGUNIAN OF THE
AFFECTED LOCAL GOVERNMENT UNITS AND IN COORDINATION WITH."
SO, THIS PARAGRAPH WILL READ, AS FOLLOWS: "TO CONSTRUCT, OWN,
LEASE, OPERATE, AND MAINTAIN ON ITS OWN OR THROUGH CONTRACT,
FRANCHISE, LICENSE PERMITS, BULK PURCHASE FROM THE PRIVATE
SECTOR AND BUILD-OPERATE-TRANSFER SCHEME OR JOINT VENTURE
THE REQUIRED UTILITIES AND INFRASTRUCTURE SUBJECT TO THE
APPROVAL OF THE SANGGUNIAN OF THE AFFECTED LOCAL
GOVERNMENT UNITS AND IN COORDINATION WITH APPROPRIATE
GOVERNMENT AGENCIES CONCERNED AND IN CONFORMITY WITH
EXISTING APPLICABLE LAWS THEREFOR."
THE PRESIDENT. WHAT DOES THE SPONSOR SAY?
SENATOR SHAHANI. I BELIEVE THIS WOULD CRIPPLE THE AUTHORITY. I
WOULD LIKE TO REMIND OUR COLLEAGUES THAT IN THE BOARD OF
DIRECTORS, THE REPRESENTATIVES OF THE LOCAL GOVERNMENT UNITS
THAT AGREE TO JOIN WITH THE SUBIC SPECIAL ECONOMIC ZONE WILL BE
MEMBERS OF THE BOARD SO THAT THEY WILL HAVE A SAY, MR.
PRESIDENT. BUT IF WE SAY "SUBJECT," THAT IS A VERY STRONG WORD.
IT REALLY MEANS THAT THEY WILL BE THE ONES TO DETERMINE THE
POLICY.
SO, I AM AFRAID THAT I CANNOT ACCEPT THIS AMENDMENT, MR.
PRESIDENT.
SENATOR LAUREL. MAY I RESPOND OR REACT, MR. PRESIDENT.
THE PRESIDENT. YES.
SENATOR LAUREL. THE CONSTITUTION IS THERE,VERY CATEGORICAL
INTHE PROMOTION AND ENCOURAGEMENT OF LOCAL AUTONOMY, AND
MANDATING CONGRESS TO ENACT THE NECESSARY LOCAL
GOVERNMENT CODE WITH EMPHASIS ON LOCAL AUTONOMY.
WE HAVE NOW SECTION 27 OF THE NEW LOCAL GOVERNMENT CODE
WHICH ACTUALLY PROVIDES THAT FOR EVERY PROJECTIN ANY LOCAL
GOVERNMENT TERRITORY, THE CONFORMITY OR CONCURRENCE OF THE
SANGGUNIAN OF EVERY SUCH LOCAL GOVERNMENT UNIT SHALL BE
SECURED IN THE FORM OF RESOLUTION—THE CONSENT OF THE
SANGGUNIAN.
THE PRESIDENT. WELL, BOTH SIDES HAVE ALREADY BEEN HEARD. THERE
IS THE LAUREL AMENDMENT THAT WOULD MAKE THE POWER OF THE
SUBIC BAY METROPOLITAN AUTHORITY TO CONSTRUCT, ACQUIRE, OWN,
LEASE, OPERATE AND MAINTAIN ON ITS OWN OR THROUGH CONTRACT,
FRANCHISE, LICENSE, PERMITS, BULK PURCHASES FROM PRIVATE
SECTOR, BUILDOPERATE-AND-TRANSFER SCHEME, OR JOINT VENTURE,
THE REQUIRED UTILITIES AND INFRASTRUCTURE, SUBJECT TO
APPROVAL BY THE APPROPRIATE SANGGUNIAN OF THE LOCAL
GOVERNMENT CONCERNED.
THIS AMENDMENT TO THE AMENDMENT HAS BEEN REJECTED BY THE
SPONSOR. SO, WE ARE VOTING NOW ON THIS AMENDMENT.
AS MANY AS ARE IN FAVOR OF THE LAUREL AMENDMENT, SAY AYE. (FEW
SENATORS: AYE.)
THOSE WHO ARE AGAINST THE SAID AMENDMENT, SAY NAY. (SEVERAL
SENATORS: NAY.)
SENATOR LAUREL. MR. PRESIDENT, MAY I ASK FOR A NOMINAL VOTING.
THE PRESIDENT. A NOMINAL VOTING SHOULD BEUPON THE REQUEST OF
ONE-FIFTH OF THE MEMBERS OF THE HOUSE, BUT WE CAN
ACCOMMODATE THE GENTLEMAN BY ASKING FOR A DIVISION OF THE
HOUSE. THEREFORE, THOSE IN FAVOR OF THE LAUREL AMENDMENT,
PLEASE RAISE THEIR RIGHT HANDS. (FEW SENATORS RAISED THEIR
RIGHT HANDS.)
SENATOR LAUREL. I WAS ASKING, MR. PRESIDENT, FOR A NOMINAL
VOTING. THE PRESIDENT. A NOMINAL VOTING CAN BE HAD ONLY UPON
MOTION OFONE-FIFTH OF THE MEMBERS OF THE BODY. SENATOR
LAUREL. THAT IS CORRECT, MR. PRESIDENT. BUT THIS ISSUCH AN
IMPORTANT ISSUE BEING PRESENTED TO US, BECAUSE THIS QUESTION
IS RELATED TO THE OTHER IMPORTANT ISSUE, WHICH IS: MAY AN
ELECTED PUBLIC OFFICIAL OF A PARTICULAR GOVERNMENT UNIT, SUCH
AS A TOWN OR MUNICIPALITY, PARTICIPATE AS A MEMBER OF THE
BOARD OF DIRECTORS OF THIS PARTICULAR ZONE.
THE PRESIDENT. THE RULING OF THE CHAIR STANDS. THE DIVISION OF
THE HOUSE IS HEREBY DIRECTED.
AS MANY AS ARE INFAVOR OF THE LAUREL AMENDMENT, PLEASE RAISED
(SIC) THEIR RIGHT HANDS. (FEW SENATORS RAISED THEIR RIGHT
HANDS.)
AS MANY AS ARE AGAINST THE SAID AMENDMENT, PLEASE DO LIKEWISE.
(SEVERAL SENATORS RAISED THEIR RIGHT HANDS.)
THE AMENDMENT IS LOST.226 (EMPHASIS SUPPLIED)
INDUBITABLY, THE LEGISLATURE REJECTED THE ATTEMPTS TO ENGRAFT
SECTION 27’S PRIOR APPROVAL OF THE CONCERNED SANGGUNIAN
REQUIREMENT UNDER THE LGC INTO RA 7227. HENCE, THE CLEAR
INTENT WAS TO DO AWAYWITH THE APPROVAL REQUIREMENT OF THE
CONCERNED SANGGUNIANSRELATIVE TO THE POWER OFTHE SBMA TO
APPROVE OR DISAPPROVE A PROJECT WITHIN THE SSEZ.
THE POWER TO CREATE THE SSEZ IS EXPRESSLY RECOGNIZED IN
SECTION 117 OF THE LGC, VIZ.:
TITLE VIII.
AUTONOMOUS SPECIAL ECONOMIC ZONES
SECTION 117. ESTABLISHMENT OF AUTONOMOUS SPECIAL ECONOMIC
ZONES. — THE ESTABLISHMENT BY LAW OF AUTONOMOUS SPECIAL
ECONOMIC ZONES IN SELECTED AREAS OF THE COUNTRY SHALL BE
SUBJECT TO CONCURRENCE BY THE LOCAL GOVERNMENT UNITS
INCLUDED THEREIN.
WHEN THE CONCERNED SANGGUNIANS OPTED TO JOIN THE SSEZ, THEY
WERE, THUS, FULLY AWARE THAT THIS WOULD LEAD TO SOME
DIMINUTION OF THEIR LOCAL AUTONOMY IN ORDER TO GAIN THE
BENEFITS AND PRIVILEGES OF BEING A PART OF THE SSEZ.
FURTHER, THE POINT OF SENATOR SHAHANI THAT THE
REPRESENTATION OF THE CONCERNED LGUS IN THE BOARD OF
DIRECTORS WILL COMPENSATE FOR THE DIMINUTION OF THEIR LOCAL
AUTONOMY AND ALLOW THEM TO BE REPRESENTED IN THE DECISION-
MAKING OF THE SBMA IS NOT LOST ON US. THIS IS EXPRESSLY
PROVIDED FOR IN SECTION 13(C) OF RA 7227, VIZ:
SECTION 13. THE SUBIC BAY METROPOLITAN AUTHORITY. —
XXXX
(C) BOARD OF DIRECTORS. — THE POWERS OF THE SUBIC AUTHORITY
SHALL BE VESTED IN AND EXERCISED BY A BOARD OF DIRECTORS,
HEREINAFTER REFERRED TO AS THE BOARD, WHICH SHALL BE
COMPOSED OF FIFTEEN (15) MEMBERS, TO WIT:
(1) REPRESENTATIVES OF THE LOCAL GOVERNMENT UNITS THAT
CONCUR TO JOIN THE SUBIC SPECIAL ECONOMIC ZONE;
(2) TWO (2) REPRESENTATIVES FROM THE NATIONAL GOVERNMENT;
(3) FIVE (5) REPRESENTATIVES FROM THE PRIVATE SECTOR COMING
FROM THE PRESENT NAVAL STATIONS, PUBLIC WORKS CENTER, SHIP
REPAIR FACILITY, NAVAL SUPPLY DEPOT AND NAVAL AIR STATION; AND
(4) THE REMAINING BALANCE TO COMPLETE THE BOARD SHALL BE
COMPOSED OF REPRESENTATIVES FROM THE BUSINESS AND
INVESTMENT SECTORS. (EMPHASIS SUPPLIED)
SBMA’S UNDISPUTED CLAIM IS THAT, DURING THE BOARD MEETING
WHEN THE SUBJECT PROJECT WAS APPROVED, EXCEPTFOR ONE, ALL
THE REPRESENTATIVES OF THE CONCERNED LGUS WERE PRESENT AND
VOTED TO APPROVE THE SUBJECT PROJECT.227 VERILY, THE WISDOM OF
THE LAW CREATING THE SSEZ; THE WISDOM OF THE CHOICE OF THE
CONCERNED LGUS TO JOIN THE SSEZ; AND THE WISDOM OFTHE
MECHANISM OF REPRESENTATION OF THE CONCERNED LGUS IN THE
DECISION-MAKING PROCESS OF THE SBMA ARE MATTERS OUTSIDE THE
SCOPE OF THE POWER OF JUDICIAL REVIEW. WE CAN ONLY INTERPRET
AND APPLY THE LAW AS WE FIND IT.
IN SUM, WE FIND THAT THE IMPLEMENTATION OF THE PROJECT IS NOT
SUBJECT TO THE PRIOR APPROVAL OF THE CONCERNED SANGGUNIANS,
UNDER SECTION 27 OF THE LGC, AND THE SBMA’S DECISION TO
APPROVE THE PROJECT PREVAILS OVER THE APPARENT OBJECTIONS OF
THE CONCERNED SANGGUNIANSOF THE LGUS, BY VIRTUE OFTHE CLEAR
PROVISIONS OF RA 7227. THUS, THERE WAS NO INFIRMITY WHEN THE
LDA WAS ENTERED INTO BETWEEN SBMA AND RP ENERGY DESPITE THE
LACK OF APPROVAL OF THE CONCERNED SANGGUNIANS. VII.
WHETHER THE VALIDITY OF THE THIRD AMENDMENT TO THE ECC CAN BE
RESOLVED BY THE COURT.
THE CASIÑO GROUP ARGUES THAT THE VALIDITY OF THE THIRD
AMENDMENT SHOULD HAVE BEEN RESOLVED BY THE APPELLATE COURT
BECAUSE IT IS COVERED BY THE BROAD ISSUES SET DURING THE XXXX
PRELIMINARY CONFERENCE.
J. LEAGOGO:
RP ENERGY COUNTERS THAT THIS ISSUE CANNOT BE RESOLVED
BECAUSE IT WAS EXPRESSLY EXCLUDED DURING THE PRELIMINARY ATTY. RIDON, I GO BACK TO MY QUESTION. WE’RE NOT YET TALKING OF
CONFERENCE. THE LEGAL POINTS HERE. I’M JUST TALKING OF WHAT ARE YOU
QUESTIONING. YOU ARE QUESTIONING THE 1 X 300?
THE APPELLATE COURT SUSTAINED THE POSITION OF RP ENERGY AND
RULED THAT THIS ISSUE WAS NOT INCLUDED IN THE PRELIMINARY ATTY. RIDON:
CONFERENCE SO THAT IT CANNOT BE RESOLVED WITHOUT VIOLATING
YES, YOUR HONOR.
THE RIGHT TODUE PROCESS OF RP ENERGY.
J. LEAGOGO:
WE AGREE WITH THE APPELLATE COURT.
BECAUSE IT WAS 2 X 150 AND THEN 1 X 300?
INDEED, THE ISSUE OF THE VALIDITY OF THE THIRD AMENDMENT TO THE
ECC WAS NOT PART OF THE ISSUES SET DURING THE PRELIMINARY ATTY. RIDON:
CONFERENCE, AS IT APPEARS AT THAT TIME THAT THE APPLICATION FOR
THE THIRD AMENDMENT WAS STILL ONGOING. THE FOLLOWING YES, YOUR HONOR.
CLARIFICATORY QUESTIONS DURING THE AFORESAID CONFERENCE
CONFIRM THIS, VIZ.: J. LEAGOGO:

J. LEAGOGO: UP TO THAT POINT?

SO WHAT ARE YOU QUESTIONING IN YOUR PETITION? ATTY. RIDON:

ATTY. RIDON: YES, YOUR HONOR.

WE ARE QUESTIONING THE VALIDITY OF THE AMENDMENT, YOUR HONOR. J. LEAGOGO:

J. LEAGOGO:
WHICH AMENDMENT?
ATTY. RIDON:
FROM 2 X 150 TO 1 X 300, YOUR HONOR.
J. LEAGOGO:
YOUR PETITION DOES NOT INVOLVE THE 2 X 300 WHICH IS STILL PENDING
WITH THE DENR. BECAUSE YOU STILL HAVE REMEDIES THERE, YOU CAN
MAKE YOUR NOISE THERE, YOU CAN QUESTION IT TO YOUR HEART[’]S
CONTENT BECAUSE IT IS STILL PENDING
BECAUSE THERE IS NO AMENDED ECC YET FOR THE 2 X 300 OR 600.
THAT’S CLEAR ENOUGH FOR ALL OF US.
ATTY. RIDON:
YES, YOUR HONOR.228
GIVEN THE INVOCATION OF THE RIGHT TO DUE PROCESS BY RP ENERGY,
WE MUST SUSTAIN THE APPELLATE COURT’S FINDING THAT THE ISSUE
AS TO THE VALIDITY OF THE THIRD AMENDMENT CANNOT BE
ADJUDICATED IN THIS CASE.
REFUTATION OF THE PARTIAL DISSENT.
JUSTICE LEONEN PARTIALLY DISSENTS FROM THE FOREGOING
DISPOSITION ON THE FOLLOWING GROUNDS:
(A) ENVIRONMENTAL CASES, SUCH ASA PETITION FOR A WRIT OF
KALIKASAN, SHOULD NOT, IN GENERAL,BE LITIGATED VIAA
REPRESENTATIVE, CITIZEN OR CLASS SUIT BECAUSE OF THE DANGER OF
MISREPRESENTING THE INTERESTS— AND THUS, BARRING FUTURE
ACTION DUE TO RES JUDICATA— OF THOSE NOT ACTUALLY PRESENT IN
THE PROSECUTION OF THE CASE, EITHER BECAUSE THEY DO NOT YET
EXIST, LIKE THE UNBORN GENERATIONS, OR BECAUSE THE PARTIES
BRINGING SUIT DO NOT ACCURATELY REPRESENT THE INTERESTS
OFTHE GROUP THEY REPRESENT OR THE CLASS TO WHICH THEY
BELONG. AS AN EXCEPTION, SUCH REPRESENTATIVE, CITIZEN OR CLASS
SUIT MAY BE ALLOWED SUBJECT TO CERTAIN CONDITIONS; AND
(B) THE AMENDMENTS TO THE ECC, GRANTED BY THE DENR IN FAVOR OF
RP ENERGY, ARE VOID FOR FAILURE TO SUBMIT A NEW EIS IN SUPPORT
OF THE APPLICATIONS FOR THESE AMENDMENTS TO THE SUBJECT ECC,
AND A PETITION FOR WRIT OF KALIKASANIS NOT THE PROPER REMEDY
TO RAISE A DEFECT INTHE ECC.
WE DISAGREE.
A.
JUSTICE LEONEN’S PROPOSITION THAT ENVIRONMENTAL CASES SHOULD
NOT, IN GENERAL, BE LITIGATED VIA A REPRESENTATIVE, CITIZEN OR
CLASS SUIT IS BOTH NOVEL AND GROUND-BREAKING. HOWEVER, IT
ISINAPPROPRIATE TO RESOLVE SUCH AN IMPORTANT ISSUE IN THIS
CASE, IN VIEW OF THE REQUISITES FOR THE EXERCISE OF OUR POWER
OF JUDICIAL REVIEW, BECAUSE THE MATTER WAS NOT RAISED BY THE
PARTIES SO THAT THE ISSUE WAS NOT SQUARELY TACKLED AND FULLY
VENTILATED. THE PROPOSITION WILL ENTAIL, AS JUSTICE LEONEN
EXPLAINS, AN ABANDONMENT OR, AT LEAST, A MODIFICATION OF OUR
RULING IN THE LANDMARK CASE OF OPOSA V. FACTORAN.229 IT WILL
ALSO REQUIRE AN AMENDMENT OR A MODIFICATION OF SECTION 5 (ON
CITIZEN SUITS), RULE 2 OFTHE RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES. HENCE, IT IS MORE APPROPRIATE TO AWAIT A
CASE WHERE SUCH ISSUES AND ARGUMENTS ARE PROPERLY RAISEDBY
THE PARTIES FOR THE CONSIDERATION OF THE COURT.
B.
JUSTICE LEONEN REASONS THAT THE AMENDMENTS TO THE SUBJECT
ECC ARE VOID BECAUSE THE APPLICATIONS THEREFOR WERE
UNSUPPORTED BY ANEIS, AS REQUIRED BY PD 1151 AND PD 1586. THE
CLAIM IS MADE THAT AN EIS IS REQUIRED BY LAW, EVEN IF THE
AMENDMENT TO THE ECC IS MINOR, BECAUSE AN EIS IS NECESSARY TO
DETERMINE THE ENVIRONMENTAL IMPACT OF THE PROPOSED
MODIFICATIONS TO THE ORIGINAL PROJECT DESIGN. THE DENR RULES,
THEREFORE, WHICH PERMIT THE MODIFICATION OF THE ORIGINAL
PROJECT DESIGN WITHOUT THE REQUISITE EIS, ARE VOID FOR
VIOLATING PD 1151 AND PD 1586.
WE DISAGREE.
INDEED, SECTION 4 OF PD 1151 SETS OUT THE BASIC POLICY OF
REQUIRING AN EIS IN EVERY ACTION, PROJECT OR UNDERTAKING THAT
SIGNIFICANTLY AFFECTS THE QUALITY OF THE ENVIRONMENT, VIZ:
SECTION 4. ENVIRONMENTAL IMPACT STATEMENTS. — PURSUANT TO
THE ABOVE ENUNCIATED POLICIES AND GOALS, ALL AGENCIES AND
INSTRUMENTALITIES OF THE NATIONAL GOVERNMENT, INCLUDING
GOVERNMENT-OWNED OR -CONTROLLED CORPORATIONS, AS WELL AS
PRIVATE CORPORATIONS, FIRMS AND ENTITIES SHALL PREPARE, FILE
AND INCLUDE IN EVERY ACTION, PROJECTOR UNDERTAKING WHICH
SIGNIFICANTLY AFFECTS THE QUALITY OF THE ENVIRONMENTA DETAILED
STATEMENT ON —
(A) THE ENVIRONMENTAL IMPACT OF THE PROPOSED ACTION, PROJECT
OR UNDERTAKING;
(B) ANY ADVERSE ENVIRONMENTAL EFFECT WHICH CANNOT BE AVOIDED
SHOULD THE PROPOSAL BE IMPLEMENTED;
(C) ALTERNATIVE TO THE PROPOSED ACTION;
(D) A DETERMINATION THAT THE SHORT-TERM USES OF THE RESOURCES
OF THE ENVIRONMENT ARE CONSISTENT WITH THE MAINTENANCE AND
ENHANCEMENT OF THE LONG-TERM PRODUCTIVITY OF THE SAME; AND
(E) WHENEVER A PROPOSAL INVOLVES THE USE OF DEPLETABLE OR
NONRENEWABLE RESOURCES, A FINDING MUST BE MADE THAT SUCH
USE AND COMMITMENT ARE WARRANTED.
BEFORE AN ENVIRONMENTAL IMPACT STATEMENT IS ISSUED BY A LEAD
AGENCY, ALL AGENCIES HAVING JURISDICTION OVER, OR SPECIAL
EXPERTISE ON, THE SUBJECT MATTER INVOLVED SHALL COMMENT ON
THE DRAFT ENVIRONMENTAL IMPACT STATEMENT MADE BY THE LEAD
AGENCY WITHIN THIRTY (30) DAYS FROM RECEIPT OF THE SAME.
(EMPHASIS SUPPLIED)
AS EARLIER STATED, THE EIS WAS SUBSEQUENTLY DEVELOPED AND
STRENGTHENED THROUGH PD 1586 WHICH ESTABLISHED THE PHILIPPINE
ENVIRONMENTAL IMPACT STATEMENT SYSTEM. SECTIONS 4 AND 5 OF PD
1586 PROVIDE:
SECTION 4. PRESIDENTIAL PROCLAMATION OF ENVIRONMENTALLY
CRITICAL AREAS AND PROJECTS.1AVVPHI1 THE PRESIDENT OF THE
PHILIPPINES MAY, ON HIS OWN INITIATIVE OR UPON RECOMMENDATION
OF THE NATIONAL ENVIRONMENTAL PROTECTION COUNCIL, BY
PROCLAMATION DECLARE CERTAIN PROJECTS, UNDERTAKINGS OR
AREAS IN THE COUNTRY AS ENVIRONMENTALLY CRITICAL. NO PERSON,
PARTNERSHIP OR CORPORATION SHALL UNDERTAKE OR OPERATE ANY
SUCH DECLARED ENVIRONMENTALLY CRITICAL PROJECT OR AREA
WITHOUT FIRST SECURING AN ENVIRONMENTAL COMPLIANCE
CERTIFICATE ISSUED BY THE PRESIDENT OR HIS DULY AUTHORIZED
REPRESENTATIVE. FOR THE PROPER MANAGEMENT OF SAID CRITICAL
PROJECT OR AREA, THE PRESIDENT MAY BY HIS PROCLAMATION
REORGANIZE SUCH GOVERNMENT OFFICES, AGENCIES, INSTITUTIONS,
CORPORATIONS OR INSTRUMENTALITIES INCLUDING THE RE-ALIGNMENT
OF GOVERNMENT PERSONNEL, AND THEIR SPECIFIC FUNCTIONS AND
RESPONSIBILITIES.
FOR THE SAME PURPOSE AS ABOVE, THE MINISTRY OF HUMAN
SETTLEMENTS SHALL: (A) PREPARE THE PROPER LAND OR WATER USE
PATTERN FOR SAID CRITICAL PROJECT(S) OR AREA(S); (B) ESTABLISH
AMBIENT ENVIRONMENTAL QUALITY STANDARDS; (C) DEVELOP A
PROGRAM OF ENVIRONMENTAL ENHANCEMENT OR PROTECTIVE
MEASURES AGAINST CALAMITUOUS FACTORS SUCH AS EARTHQUAKE,
FLOODS, WATER EROSION AND OTHERS, AND (D) PERFORM SUCH OTHER
FUNCTIONS AS MAY BE DIRECTED BY THE PRESIDENT FROM TIME TO
TIME.
SECTION 5. ENVIRONMENTALLY NON-CRITICAL PROJECTS. — ALL OTHER
PROJECTS, UNDERTAKINGS AND AREAS NOT DECLARED BY THE
PRESIDENT AS ENVIRONMENTALLY CRITICAL SHALL BE CONSIDERED AS
NON-CRITICAL AND SHALL NOT BE REQUIRED TO SUBMIT AN
ENVIRONMENTAL IMPACT STATEMENT. THE NATIONAL ENVIRONMENTAL
PROTECTION COUNCIL, THRU THE MINISTRY OF HUMAN SETTLEMENTS
MAY HOWEVER REQUIRE NON-CRITICAL PROJECTS AND UNDERTAKINGS
TO PROVIDE ADDITIONAL ENVIRONMENTAL SAFEGUARDS AS IT MAY
DEEM NECESSARY. (EMPHASIS SUPPLIED)
THESE LAWS WERE, IN TURN, IMPLEMENTED BY DAO 2003-30 AND THE
REVISED MANUAL.
AS CORRECTLY NOTED BY JUSTICE LEONEN,PRESIDENTIAL
PROCLAMATION NO. 2146 WAS SUBSEQUENTLY ISSUED WHICH, AMONG
OTHERS, CLASSIFIED FOSSIL-FUELED POWER PLANTS AS
ENVIRONMENTALLY CRITICAL PROJECTS.
IN CONFORMITY WITH THE ABOVE-QUOTED LAWS AND THEIR
IMPLEMENTING ISSUANCES, THE SUBJECT PROJECT, A COAL POWER
PLANT, WAS CLASSIFIED BY THE DENR AS AN ENVIRONMENTALLY
CRITICAL PROJECT, NEW AND SINGLE. HENCE, RP ENERGY WAS
REQUIRED TO SUBMIT AN EIS IN SUPPORT OF ITS APPLICATION FOR AN
ECC. RP ENERGY THEREAFTER COMPLIED WITH THE EIS REQUIREMENT
AND THE DENR, AFTER REVIEW, EVALUATION AND COMPLIANCE WITH
THE OTHER STEPS PROVIDED IN ITS RULES, ISSUED AN ECC IN FAVOR OF
RP ENERGY. AS CAN BE SEEN, THE EIS REQUIREMENT WAS DULY
COMPLIED WITH.
ANENT JUSTICE LEONEN’S ARGUMENT THATTHE SUBSEQUENT
AMENDMENTS TO THE ECC WERE VOID FOR FAILURE TO PREPARE AND
SUBMIT A NEW EIS RELATIVE TO THESE AMENDMENTS, IT IS IMPORTANT
TO NOTE THATPD 1586 DOES NOT STATE THE PROCEDURE TO BE
FOLLOWED WHEN THERE IS AN APPLICATION FOR AN AMENDMENT TO A
PREVIOUSLY ISSUED ECC. THERE IS NOTHING IN PD 1586 WHICH
EXPRESSLY REQUIRES AN EIS FOR AN AMENDMENT TO AN ECC.
IN FOOTNOTE 174 OF THE PONENCIA, IT IS STATED:
PARENTHETICALLY, WE MUST MENTION THAT THE VALIDITY OF THE
RULES PROVIDING FOR AMENDMENTS TO THE ECC WAS CHALLENGED BY
THE CASIÑO GROUP ON THE GROUND THAT IT IS ULTRA VIRES BEFORE
THE APPELLATE COURT. IT ARGUED THAT THE LAWS GOVERNING THE
ECC DO NOT EXPRESSLY PERMIT THE AMENDMENT OF AN ECC.
HOWEVER, THE APPELLATE COURT CORRECTLY RULED THAT THE
VALIDITY OF THE RULES CANNOT BE COLLATERALLY ATTACKED.
BESIDES,THE POWER OF THE DENR TO ISSUE RULES ON AMENDMENTS
OF AN ECC IS SANCTIONED UNDER THE DOCTRINE OF NECESSARY
IMPLICATION. CONSIDERING THAT THE GREATER POWER TODENY OR
GRANT AN ECC IS VESTED BY LAW IN THE PRESIDENT OR HIS
AUTHORIZED REPRESENTATIVE, THE DENR, THERE IS NO OBSTACLE TO
THE EXERCISE OF THE LESSER OR IMPLIED POWER TO AMEND THE ECC
FOR JUSTIFIABLE REASONS. THIS ISSUE WAS NO LONGER RAISED
BEFORE THIS COURT AND, THUS, WE NO LONGERTACKLE THE SAME
HERE.
BECAUSE PD 1586 DID NOT EXPRESSLY PROVIDE THE PROCEDURE TO BE
FOLLOWED IN CASE OF AN APPLICATION FOR AN AMENDMENT TOA
PREVIOUSLY ISSUED ECC, THE DENR EXERCISED ITS DISCRETION,
PURSUANT TO ITS DELEGATED AUTHORITY TO IMPLEMENT THIS LAW, IN
ISSUING DAO 2003-30 AND THE REVISED MANUAL.
JUSTICE LEONEN’S ARGUMENT EFFECTIVELY CHALLENGES THE VALIDITY
OF THE PROVISIONS IN DAO 2003-30 AND THE REVISED MANUAL
RELATIVE TO AMENDMENTS TO AN ECC FOR BEING CONTRARY TO PD
1151 AND 1586.
WE DISAGREE.
FIRST, TO REPEAT, THERE IS NOTHING IN PD 1586 WHICH EXPRESSLY
REQUIRES AN EIS FOR AN AMENDMENT TO AN ECC.
SECOND, AS EARLIER NOTED, THE PROPOSITION WOULD CONSTITUTE A
COLLATERAL ATTACK ON THE VALIDITY OF DAO 2003-30 AND THE
REVISED MANUAL, WHICH IS NOT ALLOWED UNDER THE PREMISES. THE
CASIÑO GROUP ITSELF HAS ABANDONED THIS CLAIM BEFORE THIS
COURT SO THAT THE ISSUE IS NOT PROPERLY BEFORE THIS COURT FOR
ITS RESOLUTION.
THIRD, ASSUMING THAT A COLLATERAL ATTACK ON THE VALIDITY OF DAO
2003-30 AND THE REVISED MANUAL CAN BE ALLOWED IN THIS CASE, THE
RULES ON AMENDMENTS APPEAR TO BE REASONABLE, ABSENT A
SHOWING OF GRAVE ABUSE OF DISCRETION OR PATENT ILLEGALITY.
ESSENTIALLY, THE RULES TAKE INTO CONSIDERATION THE NATURE OF
THE AMENDMENT IN DETERMINING THE PROPER ENVIRONMENTAL
IMPACT ASSESSMENT (EIA) DOCUMENT TYPE THAT THE PROJECT
PROPONENT WILL SUBMIT IN SUPPORT OF ITS APPLICATION FOR AN
AMENDMENT TO ITS PREVIOUSLY ISSUED ECC. A MINOR AMENDMENT
WILL REQUIRE A LESS DETAILED EIA DOCUMENT TYPE, LIKE A PROJECT
DESCRIPTION REPORT (PDR), WHILE A MAJOR AMENDMENT WILL
REQUIRE A MORE DETAILED EIA DOCUMENT TYPE, LIKE AN
ENVIRONMENTAL PERFORMANCE REPORT AND MANAGEMENT PLAN
(EPRMP) OR EVEN AN EIS.230
THE RULES APPEAR TO BE BASED ON THE PREMISE THAT IT WOULD BE
UNDULY BURDEN SOME OR IMPRACTICAL TO REQUIRE A PROJECT
PROPONENT TO SUBMIT A DETAILED EIA DOCUMENT TYPE, LIKE AN EIS,
FOR AMENDMENTS THAT, UPON PRELIMINARY EVALUATION BY THE
DENR, WILL NOT CAUSE SIGNIFICANT ENVIRONMENTAL IMPACT. IN
PARTICULAR, AS APPLIED TO THE SUBJECT PROJECT, THE DENR
EFFECTIVELY DETERMINED THAT IT IS IMPRACTICAL TO REQUIRERP
ENERGY TO, IN A MANNER OF SPEAKING, START FROM SCRATCH BY
SUBMITTING A NEW EIS IN SUPPORT OF ITS APPLICATION FOR THE FIRST
AMENDMENT TO ITS PREVIOUSLY ISSUED ECC, CONSIDERING THAT THE
EXISTING EIS MAY BE SUPPLEMENTED BY AN EPRMP TO ADEQUATELY
EVALUATE THE ENVIRONMENTAL IMPACT OF THE PROPOSED
MODIFICATIONS UNDER THE FIRST AMENDMENT. THE SAME REASONING
MAY BE APPLIED TO THE PDR RELATIVE TO THE SECOND AMENDMENT.
AS PREVIOUSLY DISCUSSED, THE CASIÑO GROUP FAILED TO PROVETHAT
THE EPRMP AND PDR WERE INADEQUATE TO ASSESS THE
ENVIRONMENTAL IMPACT OF THE PLANNED MODIFICATIONS UNDER THE
FIRST AND SECOND AMENDMENTS, RESPECTIVELY. ON THE CONTRARY,
THE EPRMP AND PDR APPEARED TO CONTAIN THE DETAILS OF THE
PLANNED MODIFICATIONS AND THE CORRESPONDING ADJUSTMENTS TO
BEMADE IN THE ENVIRONMENTAL MANAGEMENT PLAN OR MITIGATING
MEASURES INORDER TO ADDRESS THE POTENTIAL IMPACTS OF THESE
PLANNED MODIFICATIONS. HENCE, ABSENT SUFFICIENT PROOF, THERE
IS NO BASIS TO CONCLUDE THAT THE PROCEDURE ADOPTED BY THE
DENR WAS DONE WITH GRAVE ABUSE OF DISCRETION.
JUSTICE LEONEN’S PROPOSITION WOULD EFFECTIVELY IMPOSE A
STRINGENT REQUIREMENT OF AN EIS FOR EACH AND EVERY PROPOSED
AMENDMENT TO AN ECC, NO MATTER HOW MINOR THE AMENDMENT MAY
BE. WHILE THIS REQUIREMENT WOULD SEEM IDEAL, IN ORDER TO
ENSURE THAT THE ENVIRONMENTAL IMPACT OF THE PROPOSED
AMENDMENT IS FULLY TAKEN INTO CONSIDERATION, THE PERTINENT
LAWS DO NOT, HOWEVER, EXPRESSLY REQUIRE THAT SUCH A
PROCEDURE BE FOLLOWED.AS ALREADY DISCUSSED, THE DENR APPEAR
TO HAVE REASONABLY ISSUED DAO 2003-30 AND THE REVISED
MANUALRELATIVE TO THE AMENDMENT PROCESS OF AN ECC, BY
BALANCING PRACTICALITY VIS-À-VIS THE NEED FOR SUFFICIENT
INFORMATION IN DETERMINING THE ENVIRONMENTAL IMPACT OF THE
PROPOSED AMENDMENT TO AN ECC. IN FINE, THE COURT CANNOT
INVALIDATE THE RULES WHICH APPEAR TO BE REASONABLE, ABSENT A
SHOWING OF GRAVE ABUSE OF DISCRETION OR PATENT ILLEGALITY.
WE NEXT TACKLE JUSTICE LEONEN’S ARGUMENT THAT A PETITION FOR
CERTIORARI,AND NOT A WRIT OF KALIKASAN,IS THE PROPER REMEDY TO
QUESTION A DEFECT IN AN ECC.
IN GENERAL, THE PROPER PROCEDURE TO QUESTION A DEFECTIN AN
ECC IS TO FOLLOW THE APPEAL PROCESS PROVIDED IN DAO 2003-30 AND
THE REVISED MANUAL. AFTER COMPLYING WITH THE PROPER
ADMINISTRATIVE APPEAL PROCESS, RECOURSE MAY BE MADE TO THE
COURTS IN ACCORDANCE WITH THE DOCTRINE OF EXHAUSTION OF
ADMINISTRATIVE REMEDIES. HOWEVER, AS EARLIER DISCUSSED, IN
EXCEPTIONAL CASES, A WRIT OF KALIKASAN MAY BE AVAILED OF TO
CHALLENGE DEFECTS IN THE ECC PROVIDEDTHAT (1) THE DEFECTS ARE
CAUSALLY LINKED OR REASONABLY CONNECTED TO AN
ENVIRONMENTAL DAMAGE OF THE NATURE AND
MAGNITUDECONTEMPLATED UNDER THE RULES ON WRIT OF KALIKASAN,
AND (2) THE CASE DOES NOT VIOLATE, OR FALLS UNDER AN EXCEPTION
TO, THE DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES
AND/OR PRIMARY JURISDICTION.
AS PREVIOUSLY DISCUSSED, IN THE CASE AT BAR, ONLY THE
ALLEGATION WITH RESPECT TO THE LACK OF AN EIA RELATIVE TO THE
FIRST AND SECOND AMENDMENTS TO THE SUBJECT ECC MAY BE
REASONABLY CONNECTED TO SUCH AN ENVIRONMENTAL DAMAGE.
FURTHER, GIVEN THE EXTREME URGENCY OF RESOLVING THE ISSUE
DUE TO THE LOOMING POWER CRISIS, THIS CASE MAY BE CONSIDERED
AS FALLING UNDER AN EXCEPTION TO THE DOCTRINE OF EXHAUSTION
OF ADMINISTRATIVE REMEDIES. THUS, THE AFORESAID ISSUE MAY BE
CONCEIVABLY RESOLVED IN A WRIT OF KALIKASAN CASE.
MORE IMPORTANTLY, WE HAVE EXPRESSLY RULED THAT THIS CASE IS
AN EXCEPTIONAL CASE DUE TO THE LOOMING POWER CRISIS, SO THAT
THE RULES OF PROCEDURE MAY BE SUSPENDED IN ORDER TO ADDRESS
ISSUES WHICH, ORDINARILY, THE COURT WOULD NOT CONSIDER
PROPER IN A WRIT OF KALIKASAN CASE. HENCE, ALL ISSUES, INCLUDING
THOSE NOT PROPER IN A WRIT OF KALIKASAN CASE, WERE RESOLVED
HERE IN ORDER TO FORESTALL ANOTHER ROUND OF PROTRACTED
LITIGATION RELATIVE TO THE IMPLEMENTATION OF THE SUBJECT
PROJECT.
CONCLUSION
WE NOW SUMMARIZE OUR FINDINGS:
1. THE APPELLATE COURT CORRECTLY RULED THAT THE CASIÑO GROUP
FAILED TO SUBSTANTIATE ITS CLAIMS THATTHE CONSTRUCTION AND
OPERATION OF THE POWER PLANT WILL CAUSE ENVIRONMENTAL
DAMAGE OF THE MAGNITUDE CONTEMPLATED UNDER THE WRIT OF
KALIKASAN. ON THE OTHER HAND, RP ENERGY PRESENTED EVIDENCETO
ESTABLISH THAT THE SUBJECT PROJECT WILL NOT CAUSE GRAVE
ENVIRONMENTAL DAMAGE, THROUGH ITS ENVIRONMENTAL
MANAGEMENT PLAN, WHICH WILL ENSURE THATTHE PROJECT WILL
OPERATE WITHIN THE LIMITS OF EXISTING ENVIRONMENTAL LAWS AND
STANDARDS;
2. THE APPELLATE COURT ERRED WHEN IT INVALIDATED THE ECC ON
THE GROUND OF LACK OF SIGNATURE OF MR. ABOITIZ IN THE ECC’S
STATEMENT OF ACCOUNTABILITY RELATIVE TO THE COPY OF THE ECC
SUBMITTED BY RP ENERGY TO THE APPELLATE COURT. WHILE THE
SIGNATURE IS NECESSARY FOR THE VALIDITY OF THE ECC, THE
PARTICULAR CIRCUMSTANCES OF THIS CASE SHOW THAT THE DENR AND
RP ENERGY WERE NOT PROPERLY APPRISED OF THE ISSUE OF LACK OF
SIGNATURE IN ORDER FOR THEM TO PRESENT CONTROVERTING
EVIDENCE AND ARGUMENTS ON THIS POINT, AS THE ISSUE ONLY AROSE
DURING THE COURSE OF THE PROCEEDINGS UPON CLARIFICATORY
QUESTIONS FROM THE APPELLATE COURT. CONSEQUENTLY, RP ENERGY
CANNOT BE FAULTED FOR SUBMITTING THE CERTIFIED TRUE COPY OF
THE ECC ONLY AFTER IT LEARNED THAT THE ECC HAD BEEN
INVALIDATEDON THE GROUND OF LACK OF SIGNATURE IN THE JANUARY
30, 2013 DECISION OF THE APPELLATE COURT. THE CERTIFIED TRUE
COPY OF THE ECC, BEARING THE SIGNATURE OF MR. ABOITIZ IN THE
STATEMENT OF ACCOUNTABILITY PORTION, WAS ISSUED BY THE DENR-
EMB, AND REMAINS UNCONTROVERTED. IT SHOWED THAT THE
STATEMENT OF ACCOUNTABILITY WAS SIGNED BY MR. ABOITIZ ON
DECEMBER 24, 2008. BECAUSE THE SIGNING WAS DONE AFTER THE
OFFICIAL RELEASE OF THE ECC ON DECEMBER 22, 2008, WENOTE THAT
THE DENR DID NOT STRICTLY FOLLOW ITS RULES, WHICH REQUIRE THAT
THE SIGNING OF THE STATEMENT OF ACCOUNTABILITY SHOULD BE DONE
BEFORE THE OFFICIAL RELEASE OF THE ECC. HOWEVER, CONSIDERING
THAT THE ISSUE WAS NOT ADEQUATELY ARGUED NORWAS EVIDENCE
PRESENTED BEFORE THE APPELLATE COURT ON THE CIRCUMSTANCES
AT THE TIME OF SIGNING, THERE IS INSUFFICIENT BASIS TO CONCLUDE
THAT THE PROCEDURE ADOPTEDBY THE DENR WAS TAINTED WITH BAD
FAITH OR INEXCUSABLE NEGLIGENCE. WE REMIND THE DENR, HOWEVER,
TO BE MORE CIRCUMSPECT IN FOLLOWING ITS RULES. THUS, WE RULE
THAT THE SIGNATURE REQUIREMENT WAS SUBSTANTIALLY COMPLIED
WITH PRO HAC VICE.
3. THE APPELLATE COURT ERRED WHEN IT RULED THAT THE FIRST AND
SECOND AMENDMENTS TO THE ECC WERE INVALID FOR FAILURE TO
COMPLY WITH A NEW EIA AND FOR VIOLATING DAO 2003-30 AND THE
REVISED MANUAL. IT FAILED TO PROPERLY CONSIDER THE APPLICABLE
PROVISIONS IN DAO 2003-30 AND THE REVISED MANUAL FOR
AMENDMENT TO ECCS. OUR OWN EXAMINATION OF THE PROVISIONS ON
AMENDMENTS TO ECCS IN DAO 2003-30 AND THE REVISED MANUAL, AS
WELLAS THE EPRMP AND PDR THEMSELVES, SHOWS THAT THE DENR
REASONABLY EXERCISED ITS DISCRETION IN REQUIRING AN EPRMP AND
A PDR FOR THE FIRST AND SECOND AMENDMENTS, RESPECTIVELY.
THROUGH THESE DOCUMENTS, WHICH THE DENR REVIEWED, A NEW EIA
WAS CONDUCTED RELATIVE TO THE PROPOSED PROJECT
MODIFICATIONS. HENCE, ABSENT SUFFICIENT SHOWING OF GRAVE
ABUSE OF DISCRETION OR PATENT ILLEGALITY, RELATIVE TO BOTH THE
PROCEDURE AND SUBSTANCE OF THE AMENDMENT PROCESS, WE
UPHOLD THE VALIDITY OF THESE AMENDMENTS;
4. THE APPELLATE COURT ERRED WHEN IT INVALIDATED THE ECC FOR
FAILURE TO COMPLY WITH SECTION 59 OF THE IPRA LAW.1ÂWPHI1 THE
ECC IS NOT THE LICENSE OR PERMIT CONTEMPLATED UNDER SECTION
59 OF THE IPRA LAW AND ITS IMPLEMENTING RULES. HENCE, THERE IS
NO NECESSITY TO SECURE THE CNO UNDER SECTION 59 BEFORE AN
ECC MAY BE ISSUED, AND THE ISSUANCE OF THE SUBJECT ECC WITHOUT
FIRST SECURING THE AFORESAID CERTIFICATION DOES NOT RENDER IT
INVALID;
5. THE APPELLATE COURT ERRED WHEN IT INVALIDATED THE LDA
BETWEEN SBMA AND RP ENERGY FOR FAILURE TO COMPLY
WITHSECTION 59 OF THE IPRA LAW. WHILE WE FIND THAT A CNO SHOULD
HAVE BEEN SECURED PRIOR TO THE CONSUMMATION OF THE LDA
BETWEEN SBMA AND RP ENERGY, CONSIDERING THAT THIS IS THE FIRST
TIME WE LAY DOWN THE RULE OF ACTION APPROPRIATE TO THE
APPLICATION OF SECTION 59, WE REFRAIN FROM INVALIDATING THE LDA
FOR REASONS OF EQUITY;
6. THE APPELLATE COURT ERRED WHEN IT RULED THAT COMPLIANCE
WITH SECTION 27, IN RELATION TO SECTION 26, OF THE LGC (I.E.,
APPROVAL OF THE CONCERNED SANGGUNIAN REQUIREMENT) IS
NECESSARY PRIOR TO ISSUANCE OF THE SUBJECTECC. THE ISSUANCE
OF AN ECC DOES NOT, BY ITSELF, RESULT INTHE IMPLEMENTATION OF
THE PROJECT. HENCE, THERE IS NO NECESSITY TO SECURE PRIOR
COMPLIANCE WITH THE APPROVAL OF THE CONCERNED SANGGUNIAN
REQUIREMENT, AND THE ISSUANCE OF THE SUBJECT ECC WITHOUT
FIRST COMPLYING WITH THE AFORESAID REQUIREMENT DOES NOT
RENDER IT INVALID. THE APPELLATE COURT ALSO ERRED WHEN IT
RULED THAT COMPLIANCE WITH THE AFORESAID REQUIREMENT IS
NECESSARY PRIOR TO THE CONSUMMATION OF THE LDA. BY VIRTUE OF
THE CLEAR PROVISIONS OF RA 7227, THE PROJECT IS NOT SUBJECT TO
THE AFORESAID REQUIREMENT AND THE SBMA’S DECISION TO APPROVE
THE PROJECT PREVAILS OVER THE APPARENT OBJECTIONS OF THE
CONCERNED SANGGUNIANS. THUS, THE LDA ENTERED INTO BETWEEN
SBMA AND RP ENERGY SUFFERS FROM NO INFIRMITY DESPITE THE LACK
OF APPROVAL OF THE CONCERNED SANGGUNIANS; AND
7. THE APPELLATE COURT CORRECTLY RULED THATTHE ISSUE AS TO
THE VALIDITY OF THE THIRD AMENDMENT TO THE ECC CANNOT BE
RESOLVED IN THIS CASE BECAUSE IT WAS NOT ONE OF THE ISSUES SET
DURING THE PRELIMINARY CONFERENCE, AND WOULD, THUS, VIOLATE
RP ENERGY’S RIGHT TO DUE PROCESS. WHEREFORE, THE COURT
RESOLVES TO:
1. DENY THE PETITION IN G.R. NO. 207282; AND
2. GRANT THE PETITIONS IN G.R.NOS. 207257, 207366 AND 207276:
2.1. THE JANUARY 30, 2013 DECISION AND MAY 22, 2013 RESOLUTION OF
THE COURT OF APPEALS IN CA-G.R. SP NO. 00015 ARE REVERSED AND
SET ASIDE;
2.2. THE PETITION FOR WRIT OF KALIKASAN, DOCKETED AS CA-G.R. SP
NO. 00015, IS DENIED FOR INSUFFICIENCY OF EVIDENCE;
2.3. THE VALIDITY OF THE DECEMBER 22, 2008 ENVIRONMENTAL
COMPLIANCE CERTIFICATE, AS WELL AS THE JULY 8, 2010 FIRST
AMENDMENT AND THE MAY 26, 2011 SECOND AMENDMENT THERETO,
ISSUED BY THE DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES IN FAVOR OF REDONDO PENINSULA ENERGY, INC., ARE
UPHELD; AND
2.4. THE VALIDITY OF THE JUNE 8, 2010 LEASE AND DEVELOPMENT
AGREEMENT BETWEEN SUBIC BAY METROPOLITAN AUTHORITY AND
REDONDO PENINSULA ENERGY, INC. IS UPHELD.
SO ORDERED.
G.R. NO. 194239 JUNE 16, 2015
WEST TOWER CONDOMINIUM CORPORATION, ON BEHALF OF THE
RESIDENTS OF WEST TOWER CONDOMINIUM AND IN REPRESENTATION
OF BARANGAY BANGKAL, AND OTHERS, INCLUDING MINORS AND
GENERATIONS YET UNBORN,PETITIONERS,
VS.
FIRST PHILIPPINE INDUSTRIAL CORPORATION, FIRST GEN CORPORATION
AND THEIR RESPECTIVE BOARD OF DIRECTORS AND OFFICERS, JOHN
DOES, AND RICHARD DOES, RESPONDENTS.
DECISION
VELASCO, JR., J.:
NATURE OF THE CASE
BEFORE THE COURT IS THE PETITION FOR THE ISSUANCE OF A WRIT OF
KALIKASAN FILED FOLLOWING THE LEAK IN THE OIL PIPELINE OWNED BY
FIRST PHILIPPINE INDUSTRIAL CORPORATION (FPIC) IN MAKATI CITY. THE
FACTS
RESPONDENT FPI C OPERATES TWO PIPELINES SINCE 1969, VIZ: ( 1) THE
WHITE OIL PIPELINE (WOPL) SYSTEM, WHICH COVERS A 117-KILOMETER
STRETCH FROM BATANGAS TO THE PANDACAN TERMINAL IN MANILA AND
TRANSPORTS DIESEL, GASOLINE, JET FUEL AND KEROSENE; AND (B) THE
BLACK OIL PIPELINE (BOPL) SYSTEM WHICH EXTENDS 105 KILOMETERS
AND TRANSPORTS BUNKER FUEL FROM BATANGAS TO A DEPOT IN
SUCAT, PARAÑAQUE. THESE SYSTEMS TRANSPORT NEARLY 60% OF THE
PETROLEUM REQUIREMENTS OF METRO MANILA AND PARTS OF THE
PROVINCES OF BULACAN, LAGUNA, AND RIZAL.
THE TWO PIPELINES WERE SUPPOSEDLY DESIGNED TO PROVIDE MORE
THAN DOUBLE THE STANDARD SAFETY ALLOWANCE AGAINST LEAKAGE,
CONSIDERING THAT THEY ARE MADE OUT OF HEAVY DUTY STEEL THAT
CAN WITHSTAND MORE THAN TWICE THE CURRENT OPERATING
PRESSURE AND ARE BURIED AT A MINIMUM DEPTH OF 1.5 METERS,
WHICH IS DEEPER THAN THE US DEPARTMENT OF TRANSPORTATION
STANDARD OF 0.9 METERS. IN MAY 2010, HOWEVER, A LEAKAGE FROM
ONE OF THE PIPELINES WAS SUSPECTED AFTER THE RESIDENTS OF
WEST TOWER CONDOMINIUM (WEST TOWER) STARTED TO SMELL GAS
WITHIN THE CONDOMINIUM. A SEARCH MADE ON JULY 10, 2010 WITHIN
THE CONDOMINIUM PREMISES LED TO THE DISCOVERY OF A FUEL LEAK
FROM THE WALL OF ITS BASEMENT 2. OWING TO ITS INABILITY TO
CONTROL THE FLOW, WEST TOWER'S MANAGEMENT REPORTED THE
MATTER TO THE POLICE DEPARTMENT OF MAKATI CITY, WHICH IN TURN
CALLED THE CITY'S BUREAU OF FIRE PROTECTION.
WHAT STARTED AS A TWO-DRUM LEAK AT THE INITIAL STAGES BECAME A
15-20 DRUM A DAY AFFAIR. EVENTUALLY, THE SUMP PIT OF THE
CONDOMINIUM WAS ORDERED SHUT DOWN BY THE CITY OF MAKATI TO
PREVENT THE DISCHARGE OF CONTAMINATED WATER INTO THE
DRAINAGE SYSTEM OF BARANGAY BANGKAL. EVENTUALLY, THE FUMES
COMPELLED THE RESIDENTS OF WEST TOWER TO ABANDON THEIR
RESPECTIVE UNITS ON JULY 23, 2010 AND THE CONDO'S POWER WAS
SHUT DOWN.
PETITIONER FPIC INITIALLY DISOWNED ANY LEAK FROM ITS OIL PIPELINE.
THUS, THE RESIDENTS OF WEST TOWER SHOULDERED THE EXPENSES
OF HAULING THE WASTE WATER FROM ITS BASEMENT, WHICH
EVENTUALLY REQUIRED THE SETTING UP OF A TREATMENT PLANT IN THE
AREA TO SEPARATE FUEL FROM THE WASTE WATER. ON OCTOBER 28,
2010, THE UNIVERSITY OF THE PHILIPPINES-NATIONAL INSTITUTE OF
GEOLOGICAL SCIENCES (UP-NIGS), WHICH THE CITY OF MAKATI INVITED
TO DETERMINE THE SOURCE OF THE FUEL, FOUND A LEAK IN FPIC'S
WOPL ABOUT 86 METERS FROM WEST TOWER.
A DAY AFTER, OR ON OCTOBER 29, 2010, FPIC ADMITTED THAT INDEED
THE SOURCE OF THE FUEL LEAK IS THE WOPL, WHICH WAS ALREADY
CLOSED SINCE OCTOBER 24, 2010, BUT DENIED LIABILITY BY PLACING
BLAME ON THE CONSTRUCTION ACTIVITIES ON THE ROADS
SURROUNDING WEST TOWER.
ON NOVEMBER 15, 2010, WEST TOWER CONDOMINIUM CORPORATION
(WEST TOWER CORP.) INTERPOSED THE PRESENT PETITION FOR THE
ISSUANCE OF A WRIT OF KALIKASAN ON BEHALF OF THE RESIDENTS OF
WEST TOWER AND IN REPRESENTATION OF THE SURROUNDING
COMMUNITIES IN BARANGAY BANGKAL, MAKATI CITY. WEST TOWER
CORP. ALSO ALLEGED THAT IT IS JOINED BY THE CIVIL SOCIETY AND
SEVERAL PEOPLE'S ORGANIZATIONS, NON-GOVERNMENTAL
ORGANIZATIONS AND PUBLIC INTEREST GROUPS WHO HAVE EXPRESSED
THEIR INTENT TO JOIN THE SUIT BECAUSE OF THE MAGNITUDE OF THE
ENVIRONMENTAL ISSUES INVOLVED.1
IN THEIR PETITION, PETITIONERS PRAYED THAT RESPONDENTS FPIC AND
ITS BOARD OF DIRECTORS AND OFFICERS, AND FIRST GEN
CORPORATION (FGC) AND ITS BOARD OF DIRECTORS AND OFFICERS BE
DIRECTED TO: (1) PERMANENTLY CEASE AND DESIST FROM COMMITTING
ACTS OF NEGLIGENCE IN THE PERFORMANCE OF THEIR FUNCTIONS AS A
COMMON CARRIER; (2) CONTINUE TO CHECK THE STRUCTURAL
INTEGRITY OF THE WHOLE 117-KILOMETER PIPELINE AND TO REPLACE
THE SAME; (3) MAKE PERIODIC REPORTS ON THEIR FINDINGS WITH
REGARD TO THE 117-KILOMETER PIPELINE AND THEIR REPLACEMENT OF
THE SAME; (4) REHABILITATE AND RESTORE THE ENVIRONMENT,
ESPECIALLY BARANGAY BANGKAL AND WEST TOWER, AT LEAST TO WHAT
IT WAS BEFORE THE SIGNS OF THE LEAK BECAME MANIFEST; AND (5) TO
OPEN A SPECIAL TRUST FUND TO ANSWER FOR SIMILAR AND FUTURE
CONTINGENCIES IN THE FUTURE. FURTHERMORE, PETITIONERS PRAY
THAT RESPONDENTS BE PROHIBITED FROM OPENING THE PIPELINE AND
ALLOWING THE USE THEREOF UNTIL THE SAME HAS BEEN THOROUGHLY
CHECKED AND REPLACED, AND BE TEMPORARILY RESTRAINED FROM
OPERATING THE PIPELINE UNTIL THE FINAL RESOLUTION OF THE CASE.
TO BOLSTER THEIR PETITION, PETITIONERS ARGUED THAT FPIC'S
OMISSION OR FAILURE TO TIMELY REPLACE. ITS PIPELINES AND TO
OBSERVE EXTRAORDINARY DILIGENCE CAUSED THE PETROLEUM SPILL
IN THE CITY OF MAKATI. THUS, FOR PETITIONERS, THE CONTINUED USE
OF THE NOW 4 7-YEAR OLD PIPELINE WOULD NOT ONLY BE A HAZARD OR
A THREAT TO THE LIVES, HEALTH, AND PROPERTY OF THOSE WHO LIVE
OR SOJOURN IN ALL THE MUNICIPALITIES IN WHICH THE PIPELINE IS LAID,
BUT WOULD ALSO AFFECT THE RIGHTS OF THE GENERATIONS YET
UNBORN TO LIVE IN A BALANCED AND "HEALTHFUL ECOLOGY,"
GUARANTEED UNDER SECTION 16, ARTICLE II OF THE 1987
CONSTITUTION.
ON NOVEMBER 19, 2010, THE COURT ISSUED THE WRIT OF
KALIKASAN2 WITH A TEMPORARY ENVIRONMENTAL PROTECTION ORDER
(TEPO) REQUIRING RESPONDENTS FPIC, FGC, AND THE MEMBERS OF
THEIR BOARDS OF DIRECTORS TO FILE THEIR RESPECTIVE VERIFIED
RETURNS. THE TEPO ENJOINED FPIC AND FGC TO: (A) CEASE AND DESIST
FROM OPERATING THE WOPL UNTIL FURTHER ORDERS; (B) CHECK THE
STRUCTURAL INTEGRITY OF THE WHOLE SPAN OF THE 11 7-KILOMETER
WOPL WHILE IMPLEMENTING SUFFICIENT MEASURES TO PREVENT AND
AVERT ANY UNTOWARD INCIDENT THAT MAY RESULT FROM ANY LEAK OF
THE PIPELINE; AND ( C) MAKE A REPORT THEREON WITHIN 60 DAYS FROM
RECEIPT THEREOF.
IN COMPLIANCE WITH THE WRIT, FPIC DIRECTORS EDGAR CHUA, DENNIS
JAVIER, DENNIS GAMAB AND WILLIE SARMIENTO SUBMITTED A JOINT
RETURN3 PRAYING FOR THE DISMISSAL OF THE PETITION AND THE
DENIAL OF THE PRIVILEGE OF THE WRIT OF KALIKASAN. THEY ALLEGED
THAT: PETITIONERS HAD NO LEGAL CAPACITY TO INSTITUTE THE
PETITION; THERE IS NO ALLEGATION THAT THE ENVIRONMENTAL
DAMAGE AFFECTED THE INHABITANTS OF TWO (2) OR MORE CITIES OR
PROVINCES; AND THE CONTINUED OPERATION OF THE PIPELINE SHOULD
BE ALLOWED IN THE INTEREST OF MAINTAINING ADEQUATE PETROLEUM
SUPPLY TO THE PUBLIC.
RESPONDENTS FPIC AND ITS DIRECTORS AND OFFICERS, OTHER THAN
THE AFOREMENTIONED FOUR ( 4) DIRECTORS, ALSO FILED A VERIFIED
RETURN4 CLAIMING THAT NOT ALL REQUIREMENTS FOR THE ISSUANCE
OF THE WRIT OF KALIKASAN ARE PRESENT AND THERE IS NO SHOWING
THAT WEST TOWER CORP. WAS AUTHORIZED BY ALL THOSE IT CLAIMED
TO REPRESENT. THEY FURTHER AVERRED THAT THE PETITION CONTAINS
NO ALLEGATION THAT RESPONDENTS FPIC DIRECTORS AND OFFICERS
ACTED IN SUCH A MANNER AS TO ALLOW THE PIERCING OF THE
CORPORATE VEIL.
MEANWHILE, ON JANUARY 18, 201-1, FGC AND THE MEMBERS OF ITS
BOARD OF DIRECTORS AND OFFICERS FILED A JOINT
COMPLIANCE5 SUBMITTING THE REPORT REQUIRED BY THE WRIT OF
KALIKASAN/TEPO. THEY CONTENDED THAT THEY NEITHER OWN NOR
OPERATE THE PIPELINES, ADDING THAT IT IS IMPOSSIBLE FOR THEM TO
REPORT ON THE STRUCTURAL INTEGRITY OF THE PIPELINES, MUCH LESS
TO CEASE AND DESIST FROM OPERATING THEM AS THEY HAVE NO
CAPABILITY, POWER, CONTROL OR RESPONSIBILITY OVER THE
PIPELINES. THEY, THUS, PRAYED THAT THE DIRECTIVES OF THE WRIT OF
KALIKASAN/TEPO BE CONSIDERED AS SUFFICIENTLY PERFORMED, AS TO
THEM.
ON JANUARY 21, 2011, FPIC, IN COMPLIANCE WITH THE WRIT, SUBMITTED
ITS 4-PAGE "REPORT ON PIPELINE INTEGRITY CHECK AND PREVENTIVE
MAINTENANCE PROGRAM."6 IN GIST, FPIC REPORTED THE FOLLOWING: (I)
FOR THE STRUCTURAL INTEGRITY OF THE 117-KILOMETER PIPELINE, (A)
THE DOE ENGAGED THE SERVICES OF UP-NIGS TO DO BOREHOLE
TESTING ON 81 PRE-IDENTIFIED CRITICAL AREAS OF THE WQPL IN EIGHT
CITIES AND MUNICIPALITIES-ALL THE BOREHOLES SHOWED NEGATIVE
PRESENCE OF PETROLEUM VAPORS; (B) PRESSURE TESTS WERE
CONDUCTED AFTER THE REPAIR OF THE LEAK AND RESULTS SHOWED
NEGATIVE LEAKS AND THE DOE'S PIPELINE EXPERT, SOCIETE GENERAL
DE SURVEILLANCE, NEW ZEALAND, HAS DEVELOPED A PRESSURE TEST
PROTOCOL REQUIRING A 24-HOUR OPERATION OF RUNNING A SCRAPER
PIG THROUGH THE PIPELINE TO ELIMINATE AIR GAP; (C) IN-LINE
INSPECTION TEST, WAS CONDUCTED BY NDT THROUGH MFL AND
ULTRASONIC. THE NDT LATER CLEARED THE WOPL FROM ANY DAMAGE
OR CORROSION.
(II) FOR PREVENTIVE MAINTENANCE MEASURES, (A) CATHODIC
PROTECTION SYSTEMS ARE INSTALLED INVOLVING THE USE OF ANODE
MATERIALS AND THE INTRODUCTION OF ELECTRIC CURRENT IN THE
PIPELINE TO ENHANCE PREVENTION OF CORROSION; (B) REGULAR
SCRAPER RUNS THROUGH THE PIPELINE TO MAINTAIN CLEANLINESS AND
INTEGRITY OF THE PIPELINES' INTERNAL SURFACE; (C) DAILY PATROLS
EVERY TWO HOURS OF THE PIPELINE ROUTE TO DETER UNAUTHORIZED
DIGGINGS IN THE VICINITY OF THE PIPELINE SEGMENTS; ( D) REGULAR
COORDINATION MEETINGS WITH DPWH, MMDA AND UTILITY COMPANIES
TO MONITOR PROJECTS THAT MIGHT INVOLVE DIGGING OR EXCAVATION
IN THE VICINITY OF THE PIPELINE SEGMENTS; (E) INSTALLATION OF
SECURITY WARNING SIGNS ALONG THE PIPELINE ROUTE WITH TOLL
FREE NUMBER WHICH CAN BE CALLED IN THE EVENT OF AN ACCIDENT
OR EMERGENCY; (F) EMERGENCY RESPONSE PROCEDURE OF THE ERT
IS ACTIVATED BY A CALL-OUT PROCEDURE; (G) MAINTENANCE OF
EMERGENCY EQUIPMENT AND REPAIR KIT WHICH ARE ALWAYS ON
STANDBY; AND, (H) REMOTELY CONTROLLED ISOLATION VALVES ARE IN
PLACE TO SHUT THE PIPELINE WHEN NECESSARY.
ON FEBRUARY 9, 2011, PETITIONERS FILED, AND THE COURT
EVENTUALLY GRANTED, THEIR MOTION TO SET THE CASE FOR
PRELIMINARY CONFERENCE AND HEARING7 PURSUANT TO SEC. 11, RULE
7 OF THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES.
ON APRIL 15, 2011, THE COURT CONDUCTED AN OCULAR INSPECTION OF
THE WOPL IN THE VICINITY OF WEST TOWER TO DETERMINE THE
VERACITY OF THE CLAIM THAT THERE WERE TWO (2) ADDITIONAL LEAKS
ON FPIC'S PIPELINE. RESULTS OF THE OCULAR INSPECTION BELIED THE
CLAIM.
IN THE MEANTIME, PETITIONERS ALSO FILED CIVIL AND CRIMINAL
COMPLAINTS AGAINST RESPONDENTS ARISING FROM THE SAME
INCIDENT OR LEAKAGE FROM THE WOPL.8
SINCE AFTER THE COURT'S ISSUANCE OF THE WRIT OF KALIKASAN AND
THE TEPO ON NOVEMBER 19, 2010, FPIC HAS CEASED OPERATIONS ON
BOTH THE WOPL AND THE BOPL. ON MAY 31, 2011, HOWEVER, THE
COURT, ANSWERING A QUERY OF THE DOE, CLARIFIED AND CONFIRMED
THAT WHAT IS COVERED BY THE WRIT OF KALIKASAN AND TEPO IS ONLY
THE WOPL SYSTEM OF FPIC; THUS, FPIC CAN RESUME OPERATION OF ITS
BOPL SYSTEM.9
ON JULY 7, 2011, PETITIONERS FILED AN OMNIBUS MOTION10 ASSAILING
THE COURT'S MAY 31, 2011 RESOLUTION, PRAYING FOR THE CONDUCT
OF ORAL ARGUMENT ON THE ISSUE OF REOPENING THE BOPL SYSTEM.
THIS WAS FOLLOWED, ON SEPTEMBER 9, 2011, BY A MANIFESTATION (RE:
CURRENT DEVELOPMENTS) WITH OMNIBUS MOTION11 WHEREIN
PETITIONERS INVOKED THE PRECAUTIONARY PRINCIPLE12 AND
ASSERTED THAT THE POSSIBILITY OF A LEAK IN THE BOPL SYSTEM
LEADING TO CATASTROPHIC ENVIRONMENTAL DAMAGE IS ENOUGH
REASON TO ORDER THE CLOSURE OF ITS OPERATION. THEY LIKEWISE
ALLEGED THAT THE ENTITIES CONTRACTED BY FPIC TO CLEAN AND
REMEDIATE THE ENVIRONMENT ARE ILLEGALLY DISCHARGING WASTE
WATER, WHICH HAD NOT UNDERGONE PROPER TREATMENT, INTO THE
PARAÑAQUE RIVER. PETITIONERS, THUS, PRAYED THAT RESPONDENTS
BE DIRECTED TO COMPLY WITH ENVIRONMENTAL LAWS IN
REHABILITATING THE SURROUNDINGS AFFECTED BY THE OIL LEAK AND
TO SUBMIT A COPY OF THEIR WORK PLAN AND MONTHLY REPORTS ON
THE PROGRESS THEREOF. TO THESE OMNIBUS MOTIONS, RESPONDENTS
WERE DIRECTED TO FILE THEIR RESPECTIVE COMMENTS.
ON SEPTEMBER 28, 2011, RESPONDENT FPIC FILED AN URGENT MOTION
FOR LEAVE (TO UNDERTAKE "BANGKAL REALIGNMENT" PROJECT)13 IN
ORDER TO REDUCE STRESS ON THE WOPL SYSTEM. FPIC SOUGHT TO
CONSTRUCT A NEW REALIGNED SEGMENT TO REPLACE THE OLD PIPE
SEGMENT UNDER THE MAGALLANES INTERCHANGE, WHICH COVERS THE
PORTION THAT LEAKED. PETITIONERS WERE DIRECTED TO FILE THEIR
COMMENT ON FPIC'S MOTION.
REPORT AND RECOMMENDATION OF THE COURT OF APPEALS
TO EXPEDITE THE RESOLUTION OF THE CONTROVERSY, THE COURT
REMANDED THE CASE TO THE COURT OF APPEALS (CA). BY THIS
COURT'S RESOLUTION DATED NOVEMBER 22, 2011,14 THE APPELLATE
COURT WAS REQUIRED TO CONDUCT HEARINGS AND, THEREAFTER,
SUBMIT A REPORT AND RECOMMENDATION WITHIN 30 DAYS AFTER THE
RECEIPT OF THE PARTIES' MEMORANDA.
ON MARCH 21, 2012, THE PRELIMINARY CONFERENCE WAS CONTINUED
BEFORE THE CA WHEREIN THE PARTIES MADE ADMISSIONS AND
STIPULATIONS OF FACTS AND DEFINED THE ISSUES FOR RESOLUTION. IN
VIEW OF THE TECHNICAL NATURE OF THE CASE, THE CA ALSO
APPOINTED15 SEVERAL AMICI CURIAE,16 BUT ONLY FOUR (4) FILED THEIR
REPORTS.17
ON DECEMBER 26, 2012, THE CA FORMER 11TH DIVISION SUBMITTED TO
THE COURT ITS WELL-CRAFTED AND EXHAUSTIVE 156-PAGE REPORT AND
RECOMMENDATION18 DATED DECEMBER 21, 2012 (CA REPORT). SOME
HIGHLIGHTS OF THE REPORT:
1. ANENT PETITIONERS' JUNE 28, 2011 OMNIBUS MOTION ASSAILING THE
REOPENING OF THE BOPL SYSTEM, THE CA DIRECTED RESPONDENT FPIC
TO SUBMIT THE APPROPRIATE CERTIFICATION FROM THE DOE AS TO THE
SAFE COMMERCIAL OPERATION OF THE BOPL; OTHERWISE, THE
OPERATION OF THE BOPL MUST ALSO BE ENJOINED.
2. ON PETITIONERS' SEPTEMBER 9, 2011 MANIFESTATION (RE: CURRENT
DEVELOPMENTS) WITH OMNIBUS MOTION, THE CA DIRECTED THE INTER-
AGENCY COMMITTEE ON HEALTH TO SUBMIT ITS EVALUATION OF THE
REMEDIATION PLAN PREPARED BY CH2M HILL PHILIPPINES, INC. FOR
FPIC. FURTHER, THE APPELLATE COURT DIRECTED FPIC TO STRICTLY
COMPLY WITH THE STIPULATIONS CONTAINED IN THE PERMITS ISSUED
BY THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES
(DENR) FOR ITS REMEDIATION ACTIVITIES IN BARANGAY BANGKAL,
MAKATI CITY. THE DENR WAS IN TURN DIRECTED BY THE CA TO:
(A) MONITOR COMPLIANCE BY RESPONDENT FPIC WITH APPLICABLE
ENVIRONMENTAL LAWS AND REGULATIONS AND CONDITIONS SET FORTH
IN THE PERMITS ISSUED;
(B) CONDUCT INDEPENDENT ANALYSIS OF END-PRODUCTS OF THE
MULTI-PHASE EXTRACTION SYSTEM;
(C) CONDUCT REGULAR CONSULTATIVE MEETINGS WITH THE CITY OF
MAKATI, RESIDENTS OF BARANGAY BANGKAL AND OTHER
STAKEHOLDERS CONCERNING THE REMEDIATION ACTIVITIES; AND,
(D) EVALUATE THE VIABILITY OF THE RECOMMENDATION OF AMICUS DR.
BENJAMIN R. DE JESUS, JR. TO INCLUDE THE USE OF SURFACTANTS AND
OXYGEN-RELEASING COMPOUNDS (ORCS) IN THE MIDDLE AND TERMINAL
PORTIONS OF THE REMEDIATION PLAN.
3. RESPONDENT'S SEPTEMBER 27, 2011 URGENT MOTION FOR LEAVE (TO
UNDERTAKE "BANGKAL REALIGNMENT" PROJECT) WAS DENIED.
4. WITH REGARD TO THE MARCH 29, 2012 SUPPLEMENTAL
MANIFESTATION (RE: LIST OF AMICI CURIAE AND RECENT POSSIBLE LEAK
IN THE PIPELINE) FILED BY PETITIONERS, THE CA FOUND THAT THE
EXISTENCE OF ANOTHER POSSIBLE LEAK ALLEGED BY PETITIONERS WAS
NOT ESTABLISHED. NONETHELESS, TO PREVENT SUCH EVENT, THE CA
ORDERED FPIC TO: (I) REVIEW, ADOPT AND STRICTLY OBSERVE
APPROPRIATE SAFETY AND PRECAUTIONARY MEASURES; (II) CLOSELY
MONITOR THE CONDUCT OF ITS MAINTENANCE AND REPAIR WORKS; AND
(III) SUBMIT TO THE DOE REGULAR MONTHLY REPORTS ON THE
STRUCTURAL INTEGRITY AND SAFE COMMERCIAL OPERATION OF THE
PIPELINE.
5. AS TO THE MERITS OF THE CASE, THE CA SUBMITTED THE FOLLOWING
RECOMMENDATIONS:
(A) THAT THE PEOPLE'S ORGANIZATIONS, NON-GOVERNMENTAL
ORGANIZATIONS, AND PUBLIC INTEREST GROUPS THAT INDICATED THEIR
INTENTION TO JOIN THE PETITION AND SUBMITTED PROOF OF JURIDICAL
PERSONALITY (NAMELY: THE CATHOLIC BISHOP'S CONFERENCE OF THE
PHILIPPINES; KILUSANG MAKABANSANG EKONOMIYA, INC.; WOMEN'S
BUSINESS COUNCIL OF THE PHILIPPINES, INC.; JUNIOR CHAMBERS
INTERNATIONAL PHILIPPINES, INC. - SAN JUAN CHAPTER; ZONTA CLUB OF
MAKATI AYALA FOUNDATIONS; AND THE CONSOLIDATED MANSIONS
CONDOMINIUM CORPORATION) BE ALLOWED TO BE FORMALLY
IMPLEADED AS PETITIONERS.
(B) THAT RESPONDENT FPIC BE ORDERED TO SUBMIT A CERTIFICATION
FROM THE DOE SECRETARY THAT THE WOPL IS ALREADY SAFE FOR
COMMERCIAL OPERATION. THE CERTIFICATION SHOULD TAKE INTO
CONSIDERATION THE ADOPTION BY FPIC OF THE APPROPRIATE LEAK
DETECTION SYSTEM TO BE USED IN MONITORING THE ENTIRE PIPELINE'S
MASS INPUT VERSUS MASS OUTPUT. THE CERTIFICATION MUST ALSO
CONSIDER THE NECESSITY OF REPLACING THE PIPES WITH EXISTING
PATCHES AND SLEEVES. IN CASE OF FAILURE OF RESPONDENT FPIC TO
SUBMIT THE REQUIRED CERTIFICATION FROM THE DOE SECRETARY
WITHIN SIXTY (60) DAYS FROM NOTICE OF THE HONORABLE SUPREME
COURT'S APPROVAL OF THIS RECOMMENDATION, THE TEPO MUST BE
MADE PERMANENT.
(C) THAT PETITIONERS' PRAYER FOR THE CREATION OF A SPECIAL TRUST
FUND TO ANSWER FOR SIMILAR CONTINGENCIES IN THE FUTURE BE
DENIED FOR LACK OF SUFFICIENT BASIS.
D) THAT RESPONDENT FGC BE NOT HELD SOLIDARILY LIABLE UNDER THE
TEPO.
(E) THAT WITHOUT PREJUDICE TO THE OUTCOME OF THE CIVIL AND
CRIMINAL CASES FILED AGAINST RESPONDENTS, THE INDIVIDUAL
DIRECTORS AND OFFICERS OF FPIC AND FGC BE NOT HELD LIABLE IN
THEIR INDIVIDUAL CAPACITIES.
ON JANUARY 11, 2013, PETITIONERS FILED THEIR MOTION FOR PARTIAL
RECONSIDERATION19 OF THE CA'S REPORT PRAYING THAT (A) INSTEAD
OF THE DOE, THE REQUIRED CERTIFICATION SHOULD BE ISSUED BY THE
DOST-METAL INDUSTRY RESEARCH AND DEVELOPMENT CENTER; (B) A
TRUST FUND BE CREATED TO ANSWER FOR FUTURE CONTINGENCIES;
AND ( C) THE DIRECTORS AND OFFICERS OF FPIC AND FGC BE HELD
ACCOUNTABLE.
ON JANUARY 25, 2013, FPIC FILED ITS COMPLIANCE (RE: DEPARTMENT OF
ENERGY CERTIFICATION ON THE BLACK OIL PIPELINE)20AND SUBMITTED
THE REQUIRED DOE CERTIFICATION21 ISSUED ON JANUARY 22, 2013 BY
DOE SECRETARY CARLOS JERICHO L. PETILLA (SECRETARY PETILLA). ON
MARCH 14, 2013, PETITIONERS COUNTERED WITH A MANIFESTATION WITH
MOTION22 ASSERTING THAT FPIC'S CERTIFICATION IS NOT COMPLIANT
WITH THE CA'S REQUIREMENT. HENCE, PETITIONERS MOVED THAT THE
CERTIFICATION SHOULD BE DISREGARDED, THE 30-DAY PERIOD BE
DEEMED TO HAVE LAPSED, AND FPIC BE PERMANENTLY ENJOINED FROM
OPERATING THE BOPL.
ON JULY 30, 2013, THE COURT ISSUED A RESOLUTION ADOPTING THE
RECOMMENDATION OF THE CA IN ITS REPORT AND RECOMMENDATION
THAT FPIC BE ORDERED TO SECURE A CERTIFICATION FROM THE DOE
SECRETARY BEFORE THE WOPL MAY RESUME ITS OPERATIONS. THE
PERTINENT PORTION OF SAID RESOLUTION READS:
[FPIC] IS HEREBY ORDERED TO SUBMIT A CERTIFICATION FROM THE DOE
SECRETARY THAT THE PIPELINE IS ALREADY SAFE FOR COMMERCIAL
OPERATION. THE CERTIFICATION SHOULD TAKE INTO CONSIDERATION
THE ADOPTION BY FPIC OF THE APPROPRIATE LEAK DETECTION SYSTEM
TO BE USED IN MONITORING THE ENTIRE PIPELINE'S MASS INPUT
VERSUS MASS OUTPUT. THE CERTIFICATION MUST ALSO CONSIDER THE
NECESSITY OF REPLACING THE PIPES WITH EXISTING PATCHES AND
SLEEVES X X X.23
THE DOE SECRETARY IS DIRECTED TO CONSULT THE [DOST] REGARDING
THE ADOPTION OF THE APPROPRIATE LEAK DETECTION SYSTEM AND
THE NECESSITY OF REPLACING THE PIPES WITH EXISTING PATCHES AND
SLEEVES.
ON OCTOBER 2, 2013, PETITIONERS, IN A MOTION FOR
RECONSIDERATION WITH MOTION FOR CLARIFICATION, EMPHASIZED
THAT THE CA FOUND FPIC'S TESTS AND MAINTENANCE PROGRAM TO BE
INSUFFICIENT AND INCONCLUSIVE TO ESTABLISH THE WOPL' S
STRUCTURAL INTEGRITY FOR CONTINUED COMMERCIAL
OPERATION.24 FURTHERMORE, PETITIONERS POINT OUT THAT THE DOE
IS BIASED AND INCAPABLE OF DETERMINING THE WOPL'S STRUCTURAL
INTEGRITY.
RESPONDENTS, FOR THEIR PART, MAINTAIN THAT THE DOE HAS THE
TECHNICAL COMPETENCE AND EXPERTISE TO ASSESS THE STRUCTURAL
INTEGRITY OF THE WOPL AND TO CERTIFY THE SYSTEM'S SAFETY FOR
COMMERCIAL OPERATION.25 RESPONDENTS FURTHER ALLEGE THAT THE
DOE IS THE AGENCY EMPOWERED TO REGULATE THE TRANSPORTATION
AND DISTRIBUTION OF PETROLEUM PRODUCTS, AND TO REGULATE AND
MONITOR DOWNSTREAM OIL INDUSTRY ACTIVITIES, INCLUDING
"PRODUCT DISTRIBUTION" THROUGH PIPELINES.26
IN COMPLIANCE WITH THE COURT'S JULY 30, 2013 RESOLUTION, THE DOE
SECRETARY ISSUED ON OCTOBER 25, 2013 A
CERTIFICATION,27 ATTESTING THAT THE WOPL IS SAFE TO RESUME
COMMERCIAL OPERATIONS, SUBJECT TO MONITORING OR INSPECTION
REQUIREMENTS, AND IMPOSING SEVERAL CONDITIONS THAT FPIC MUST
COMPLY WITH. THE CERTIFICATION, IN ITS ENTIRETY, READS:
THIS IS TO CERTIFY THAT BASED ON THE PIPELINE INTEGRITY
MANAGEMENT SYSTEMS (PIMS) BEING IMPLEMENTED BY [FPIC] FOR ITS
[WOPL] FACILITY, THE SAME IS SAFE TO RESUME COMMERCIAL
OPERATIONS. THIS CERTIFICATION IS BEING ISSUED AFTER
CONSULTATION WITH THE [DOST] AND ON THE BASIS OF THE FOLLOWING
CONSIDERATIONS, TO WIT:
1. DOE NOTED THE ADOPTION BY FPIC OF THE APPROPRIATE LEAK
DETECTION SYSTEM TO BE USED IN MONITORING THE PIPELINE'S MASS
INPUT VERSUS MASS OUTPUT, AS WELL AS THE OTHER MEASURES OF
LEAK DETECTION AND PREVENTION ADOPTED BY THE LATTER;
2. DOE FURTHER NOTED THAT FPIC HAS ALREADY UNDERTAKEN
REALIGNMENT AND REINFORCEMENT WORKS ON THE CURRENT PIPELINE
TO REMOVE MAJORITY OF THE PATCHES. FPIC HAS LIKEWISE
PRESENTED SUBSTANTIAL AND ADEQUATE DOCUMENTATION SHOWING
THAT THE REMAINING PATCHES AND SLEEVES ARE SAFE, AND THAT THE
USE OF SUCH IS RECOGNIZED BY THE INDUSTRY AND COMPLIES WITH
EXISTING STANDARDS;
3. DOE FINALLY NOTED THE RESULTS OF VARIOUS TESTS AND
INSPECTIONS DONE ON THE PIPELINE AS INDICATED IN THE
MANIFESTATION SUBMITTED BY ,THE DOE ON MARCH 31, 2012, IN THE
CIVIL CASE DOCKETED AS CA GR SP NO. 00008 AND ENTITLED WEST
TOWER CONDOMINIUM, ET AL. [V.] FIRST PHILIPPINE INDUSTRIAL
CORPORATION, ET AL.
THIS CERTIFICATION IS BEING ISSUED SUBJECT TO THE CONDITION THAT
FPIC WILL SUBMIT ITSELF TO REGULAR MONITORING AND VALIDATION BY
THE OIL INDUSTRY MANAGEMENT BUREAU (OIMB) OF THE
IMPLEMENTATION OF ITS PIMS, PARTICULARLY ON THE FOLLOWING: (A)
MASS OR VOLUME INPUT VERSUS MASS OR VOLUME OUTPUT LOSS/GAIN
ACCOUNTING; (B) RESULTS OF BOREHOLE MONITORING, (C) INSPECTION
OF THE PIPELINE CATHODIC PROTECTION AND (D) PRESSURE TEST.
FURTHER, FPIC SHALL SUBMIT ITSELF TO ANY TEST OR INSPECTION THAT
THE DOE AND DOST MAY DEEM APPROPRIATE FOR PURPOSES OF
MONITORING THE OPERATIONS OF THE WOPL FACILITY.
THE COURT IS FULLY COGNIZANT OF THE WOPL' S VALUE IN COMMERCE
AND THE ADVERSE EFFECTS OF A PROLONGED CLOSURE THEREOF.
NEVERTHELESS, THERE IS A NEED TO BALANCE THE NECESSITY OF THE
IMMEDIATE REOPENING OF THE WOPL WITH THE MORE IMPORTANT NEED
TO ENSURE THAT IT IS SOUND FOR CONTINUED OPERATION, SINCE THE
SUBSTANCES IT CARRIES POSE A SIGNIFICANT HAZARD TO THE
SURROUNDING POPULATION AND TO THE ENVIRONMENT.28 A CURSORY
REVIEW OF THE MOST RECENT OIL PIPELINE TRAGEDIES AROUND THE
WORLD WILL READILY SHOW THAT EXTREME CAUTION SHOULD BE
EXERCISED IN THE MONITORING AND OPERATION OF THESE COMMON
CARRIERS:
(1) ON AUGUST 1, 2014, A SERIES OF POWERFUL EXPLOSIONS FROM
UNDERGROUND PIPELINE SYSTEMS RIPPED UP THE STREETS OF
KAOHSIUNG, TAIWAN, KILLING AT LEAST 28 PEOPLE AND INJURING 299
MORE. FURTHER, 23 ,600, 2,268 AND 6,000 HOUSEHOLDS WERE LEFT
WITHOUT GAS, POWER AND WATER, RESPECTIVELY, IN THE 2-3 SQUARE
KILOMETER BLAST AREA.29
(2) ON NOVEMBER 22, 2013, AN OIL PIPELINE LEAKED, CAUGHT FIRE, AND
EXPLODED IN QINGDAO, SHANGDAO PROVINCE IN CHINA, KILLING 55
PEOPLE AND INJURING MORE THAN A HUNDRED MORE.30
(3) ON SEPTEMBER 14, 2011, A FUEL PIPELINE EXPLODED IN KENYA'S
CAPITAL CITY, NAIROBI, REDUCING BODIES TO DUST AND FLATTENING
HOMES. AT LEAST 7 5 PEOPLE DIED IN THE EXPLOSION, WHILE MORE
THAN A HUNDRED PEOPLE WERE INJURED.31
(4) IN SEPTEMBER 2010, A NATURAL GAS PIPELINE RUPTURED AND SET
OFF A FIREBALL, KILLING EIGHT (8) PEOPLE AND LEVELING 3 8 HOMES IN
SAN BRUNO, CALIFORNIA IN THE UNITED STATES.32
(5) ON JULY 30, 2004, A RUPTURE OF AN UNDERGROUND NATURAL GAS
PIPELINE BURIED SIX (6) METERS IN GHISLENGHIEN, BELGIUM RESULTED
IN 24 DEATHS AND OVER 120 INJURIES.33
ON APRIL 29 AND 30, 2014, THE DOE ORGANIZED A DIALOGUE BETWEEN
SAID GOVERNMENT AGENCIES AND THE FPIC. THERE IT WAS STATED
THAT DURING THE DIALOGUE, "THE DIVISION HEADS AND A HIGH PROFILE
TEAM FROM FPIC, BOTH FROM OPERATION AND MANAGEMENT MADE
PRESENTATIONS AND ANSWERED QUESTIONS ON PIPELINE PUMPING
OPERATION AND PRODUCT DELIVERY, AND A DETAILED EXPLANATION OF
THE FPIC PIMS' CONTROL MEASURES, CONDITION MONITORING
MEASURES, AND EMERGENCY MEASURES, AS WELL AS ITS VARIOUS
ACTIVITIES AND PROJECTS IMPLEMENTED SINCE 2010 SUCH AS PIPELINE
REPLACEMENT AND REALIGNMENT IN PANDACAN AND BANGKAL,
INSPECTION AND REINFORCEMENT OF ALL PATCHES IN THE WOPL,
INSPECTION AND REINFORCEMENT OF A NUMBER OF REPORTED DENTS
IN THE WOPL, CONDUCT OF SUCCESSFUL LEAK TESTS, AND
INSTALLATION OF BOREHOLES THAT ARE GAS-TESTED ON A WEEKLY
BASIS, AND THE SAFETY SYSTEMS THAT GO WITH THE DAILY PIPELINE
OPERATION AND MAINTENANCE AND PROJECT EXECUTION."34
ON AUGUST 5, 2014, SECRETARY CARLOS JERICHO L. PETILLA OF THE
DOE SUBMITTED A LETTER35 RECOMMENDING ACTIVITIES AND TIMETABLE
FOR THE RESUMPTION OF THE WOPL OPERATIONS, TO WIT:
A. PREPARATORY TO THE TEST RUN
I. FPIC TASKS:
A. CONTINUE SUBMISSION OF MONITORING CHARTS, DATA/READING,
ACCOMPLISHMENT REPORTS, AND PROJECT STATUS FOR ALL RELATED
ACTIVITIES/WORKS. RESPOND TO COMMENTS AND PREPARE FOR SITE
INSPECTION.
B. CONTINUE GAS TESTING ALONG THE RIGHT-OF-WAY USING THE
MONITORING WELLS OR BOREHOLES. PREPARE FOR INSPECTION OF
RIGHT-OF-WAY AND OBSERVATION OF GAS TESTING ACTIVITIES ON
MONITORING WELLS AND BOREHOLES.
C. EXPOUND ON THE SELECTION OF BOREHOLE LOCATION. FOR
EXAMPLE, IDENTIFY THOSE LOCATED IN PIPELINE BENDS, BODIES OF
WATER, RESIDENTIAL AREAS, REPAIRED PORTIONS OF THE PIPELINES,
DENTS AND WELDED JOINTS.
D. CONTINUE SUBMITTING STATUS REPORT RELATING TO "PROJECT
MOJICA" (AN ONGOING PIPELINE SEGMENT REALIGNMENT ACTIVITY
UNDERTAKEN BY FPIC TO GIVE WAY TO A FLOOD CONTROL PROJECT OF
MMDA IN THE VICINITY OF MOJICA ST. AND PRES. OSMEÑA HIGHWAY IN
MAKATI CITY). PREPARE FOR SITE INSPECTION.
II. INTER-AGENCY UNDERTAKING:
A. CONDUCT ONSITE INSPECTION OF RIGHT-OF-WAY
B. REVIEW/CHECK REMAINING 22 PATCHES THAT WERE ALREADY
INSPECTED AND REINFORCED WITH CLOCKSPRING SLEEVES.
I. DETERMINE LOCATION OF SLEEVES.
II. REVIEW OF PROCEDURES ON REPAIR OF SLEEVES.
III. RANDOM VISUAL INSPECTION OF AREAS EASILY ACCESSIBLE.
C. CATHODIC PROTECTION'S ONSITE INSPECTION ON RECTIFIER TO
CHECK READINGS
I. OLD READINGS
II. CURRENT READINGS
III. SEGMENT COVERED
IV. CRITERIA FOR PRIORITIZATION FOR CORRECTIVE ACTION
D. OBSERVE AND WITNESS THE RUNNING/OPERATION OF THE CLEANING
PIG.
E. CHECK AND VALIDATE ALL CALIBRATION CERTIFICATE OF
INSTRUMENTS
I. INSTRUMENT VERIFICATION AND CALIBRATION.
B. ACTUAL TEST RUN (TO BE UNDERTAKEN BOTH BY FPIC AND INTER-
AGENCY)
A. PERFORM CLEANING PIG RUN
I. WITNESS LAUNCHING AND RECEIVING OF THE CLEANING PIG.
II. HANDLING OF THE RESIDUALS AFTER CLEANING.
B. DEMONSTRATE VARIOUS PRESSURE TESTS (ALREADY BEING
CONDUCTED BY FPIC)
I. BLOCKED-IN PRESSURE TEST (LEAK TEST, NOT IN OPERATION)
II. IN-OPERATION (HOURLY READING)
C. CONTINUE CURRENT GAS MONITORING (BOREHOLES)
I. OCULAR INSPECTION OF SELECTED AREAS
D. DEMONSTRATE MASS OR VOLUME BALANCE COMPUTATION DURING
WOPL TEST RUN (ALREADY BEING IMPLEMENTED IN THE BOPL)
I. 30 DAYS BASELINE DATA GENERATION
II. 30 DAYS COMPUTATIONAL ANALYSIS AND MONITORING
C. COMMISSIONING OR RETURN TO COMMERCIAL OPERATION
I. FPIC TASKS:
A. CONTINUE IMPLEMENTATION OF THE PIMS. REVIEW
RECOMMENDATIONS FROM DOE.
B. CONTINUE MONTHLY REPORTING OF OPERATIONS AND MAINTENANCE
ACTIVITIES WITH DOE.
C. CONTINUE REPORTING AND COORDINATION WITH DOE AND OTHER
GOVERNMENT AGENCIES FOR IMPLEMENTATION OF PROJECTS.36
SECRETARY PETILLA ALSO RECOUNTED TO THE COURT IN HIS AUGUST 5,
2014 LETTER THAT THE DOE, TOGETHER WITH THE DPWH AND THE
METROPOLITAN MANILA DEVELOPMENT AUTHORITY (MMDA), OBSERVED
THE DIFFERENT MILESTONES OF THE REALIGNMENT PROJECT BEING
UNDERTAKEN BY FPIC IN SUPPORT OF THE MMDA FLOOD CONTROL
PROJECT AND STATED THAT THE NEW LINE SEGMENT AS LAID WAS
COATED WITH CORROSION PROTECTION PRIOR TO THE BACKFILLING OF
THE EXCAVATED PORTION.
ON FEBRUARY 3, 2015, THE COURT REQUIRED THE PARTIES TO SUBMIT
THEIR COMMENT ON SEC. PETILLA'S LETTER WITHIN TEN (10) DAYS FROM
RECEIPT OF THE RESOLUTION. ON VARIOUS DATES, RESPONDENTS
FIRST GEN CORPORATION, FPIC, AND PETITIONER WEST TOWER FILED
THEIR RESPECTIVE COMMENTS37 IN COMPLIANCE WITH THE COURT'S
RESOLUTION. THE INTERVENORS WERE UNABLE TO COMPLY WITH THE
COURT'S DIRECTIVE; HENCE, THEY ARE DEEMED TO HAVE WAIVED THEIR
RIGHT TO FILE THEIR RESPECTIVE COMMENTS. THE ISSUES
HAVING RECEIVED THE OCTOBER 25, 2013 CERTIFICATION AND THE
AUGUST 5, 2014 LETTER FROM THE DOE ON THE STATE OF THE WOPL, AS
WELL AS THE PARTIES' COMMENTS THEREON, THE FOLLOWING ISSUES
DEFINED BY THE PARTIES DURING THE MARCH 21, 2012 PRELIMINARY
CONFERENCE ARE NOW RIPE FOR ADJUDICATION:
1. WHETHER PETITIONER WEST TOWER CORP. HAS THE LEGAL CAPACITY
TO REPRESENT THE OTHER PETITIONERS AND WHETHER THE OTHER
PETITIONERS, APART FROM THE RESIDENTS OF WEST TOWER AND
BARANGAY BANGKAL, ARE REAL PARTIES-IN-INTEREST;
2. WHETHER A PERMANENT ENVIRONMENTAL PROTECTION ORDER
SHOULD BE ISSUED TO DIRECT THE RESPONDENTS TO PERFORM OR TO
DESIST FROM PERFORMING ACTS IN ORDER TO PROTECT, PRESERVE,
AND REHABILITATE THE AFFECTED ENVIRONMENT;
3. WHETHER A SPECIAL TRUST FUND SHOULD BE OPENED BY
RESPONDENTS TO ANSWER FOR FUTURE SIMILAR CONTINGENCIES; AND
4. WHETHER FGC AND THE DIRECTORS AND OFFICERS OF RESPONDENTS
FPIC AND FGC MAY BE HELD LIABLE UNDER THE ENVIRONMENTAL
PROTECTION ORDER.38
THE COURT'S RULING
WE ADOPT, WITH MODIFICATIONS, THE RECOMMENDATIONS OF THE CA
AND DISCUSS THE FOREGOING ISSUES IN SERIATIM.
I.
PETITIONERS AS REAL PARTIES-IN-INTEREST
ON THE PROCEDURAL ASPECT, WE AGREE WITH THE CA THAT
PETITIONERS WHO ARE AFFECTED RESIDENTS OF WEST TOWER AND
BARANGAY BANGKAL HAVE THE REQUISITE CONCERN TO BE REAL
PARTIES-IN-INTEREST TO PURSUE THE INSTANT PETITION.
RESIDENTS OF WEST TOWER AND BARANGAY BANGKAL
AS DEFINED, A REAL PARTY-IN-INTEREST IS THE PARTY WHO STANDS TO
BE BENEFITED OR INJURED BY THE JUDGMENT IN THE SUIT, OR THE
PARTY ENTITLED TO THE AVAILS OF THE SUIT.39 GENERALLY, EVERY
ACTION MUST BE PROSECUTED OR DEFENDED IN THE NAME OF THE
REAL PARTIES-IN-INTEREST.40 IN OTHER WORDS, THE ACTION MUST BE
BROUGHT BY THE PERSON WHO, BY SUBSTANTIVE LAW, POSSESSES THE
RIGHT SOUGHT TO BE ENFORCED.41 ALTERNATIVELY, ONE WHO HAS NO
RIGHT OR INTEREST TO PROTECT CANNOT INVOKE THE JURISDICTION OF
THE COURT AS PARTY-PLAINTIFF-IN-ACTION FOR IT IS
JURISPRUDENTIALLY ORDAINED THAT EVERY ACTION MUST BE
PROSECUTED OR DEFENDED IN THE NAME OF THE REAL PARTY-IN-
INTEREST.42
IN THE CASE AT BAR, THERE CAN BE NO QUIBBLE THAT THE OIL LEAK
FROM THE WOPL AFFECTED ALL THE CONDOMINIUM UNIT OWNERS AND
RESIDENTS OF WEST TOWER AS, IN FACT, ALL HAD TO EVACUATE THEIR
UNITS AT THE WEE HOURS IN THE MORNING OF JULY 23, 2010, WHEN THE
CONDOMINIUM'S ELECTRICAL POWER WAS SHUT DOWN. UNTIL NOW, THE
UNIT OWNERS AND RESIDENTS OF WEST TOWER COULD STILL NOT
RETURN TO THEIR CONDOMINIUM UNITS. THUS, THERE IS NO
GAINSAYING THAT THE RESIDENTS OF WEST TOWER ARE REAL PARTIES-
IN-INTEREST.
THERE CAN ALSO BE NO DENYING THAT WEST TOWER CORP.
REPRESENTS THE COMMON INTEREST OF ITS UNIT OWNERS AND
RESIDENTS, AND HAS THE LEGAL STANDING TO FILE AND PURSUE THE
INSTANT PETITION. WHILE A CONDOMINIUM CORPORATION HAS LIMITED
POWERS UNDER RA 4 726, OTHERWISE KNOWN AS THE CONDOMINIUM
ACT,43 IT IS EMPOWERED TO PURSUE ACTIONS IN BEHALF OF ITS
MEMBERS. IN THE INSTANT CASE, THE CONDOMINIUM CORPORATION .IS
THE MANAGEMENT BODY OF WEST TOWER AND DEALS WITH
EVERYTHING THAT MAY AFFECT SOME OR ALL OF THE CONDOMINIUM
UNIT OWNERS OR USERS.
IT IS OF NO MOMENT THAT ONLY FIVE RESIDENTS OF WEST TOWER
SIGNED THEIR ACQUIESCENCE TO THE FILING OF THE PETITION FOR THE
ISSUANCE OF THE WRIT OF KALIKASAN, AS THE MERITS OF SUCH
PETITION IS, AS APTLY PUT BY THE CA, NOT MEASURED BY THE NUMBER
OF PERSONS WHO SIGNIFIED THEIR ASSENT THERETO, BUT ON THE
EXISTENCE OF A PRIMA FACIE CASE OF A MASSIVE ENVIRONMENTAL
DISASTER.
MOREOVER, THE FACT THAT NO BOARD RESOLUTION WAS SUBMITTED
BY WEST TOWER CORP. AUTHORIZING MANUEL DY CHUAUNSU, JR. TO
SIGN THE VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING
IS IRRELEVANT. THE RECORDS SHOW THAT PETITIONERS SUBMITTED A
NOTARIZED SECRETARY'S CERTIFICATE44 ATTESTING THAT THE
AUTHORITY OF CHUAUNSU TO REPRESENT THE CONDOMINIUM
CORPORATION IN FILING THE PETITION IS FROM THE RESOLUTION OF
THE TOTAL MEMBERSHIP OF WEST TOWER CORP. ISSUED DURING THEIR
NOVEMBER 9, 2010 MEETING WITH THE REQUISITE QUORUM. IT IS, THUS,
CLEAR THAT IT WAS NOT THE BOARD OF WEST TOWER CORP. WHICH
GRANTED CHUAUNSU THE AUTHORITY BUT THE FULL MEMBERSHIP OF
THE CONDOMINIUM CORPORATION ITSELF.
AS TO THE RESIDENTS OF BARANGAY BANGKAL, THEY ARE SIMILARLY
SITUATED WITH THE UNIT OWNERS AND RESIDENTS OF WEST TOWER
AND ARE REAL PARTIES-IN-INTEREST TO THE INSTANT CASE, I.E., IF THEY
SO WISH TO JOIN THE PETITIONERS.
ORGANIZATIONS THAT INDICATED THEIR INTENTION TO JOIN THE
PETITION
AND SUBMITTED PROOF OF JURIDICAL PERSONALITY
ANENT THE PROPRIETY OF INCLUDING THE CATHOLIC BISHOPS'
CONFERENCE OF THE PHILIPPINES, KILUSANG MAKABANSANG
EKONOMIYA, INC., WOMEN'S BUSINESS COUNCIL OF THE PHILIPPINES,
INC., JUNIOR CHAMBERS INTERNATIONAL PHILIPPINES, INC. - SAN JUAN
CHAPTER, ZONTA CLUB OF MAKATI AYALA FOUNDATIONS, AND THE
CONSOLIDATED MANSIONS CONDOMINIUM CORPORATION, AS
PETITIONERS IN THE CASE, THE COURT ALREADY GRANTED THEIR
INTERVENTION IN THE PRESENT CONTROVERSY IN THE ADVERTED JULY
30, 2013 RESOLUTION.
THIS IS SO CONSIDERING THAT THE FILING OF A PETITION FOR THE
ISSUANCE OF A WRIT OF KALIKASAN UNDER SEC. 1, RULE 745 OF THE
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES DOES NOT
REQUIRE THAT A PETITIONER BE DIRECTLY AFFECTED BY AN
ENVIRONMENTAL DISASTER. THE RULE CLEARLY ALLOWS JURIDICAL
PERSONS TO FILE THE PETITION ON BEHALF OF PERSONS WHOSE
CONSTITUTIONAL RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY IS
VIOLATED, OR THREATENED WITH VIOLATION.
THUS, AS PARTIES TO THE CASE, THEY ARE ENTITLED TO BE FURNISHED
COPIES OF ALL THE SUBMISSIONS TO THE COURT, INCLUDING THE
PERIODIC REPORTS OF FPIC AND THE RESULTS OF THE EVALUATIONS
AND TESTS CONDUCTED ON THE WOPL.
HAVING DISPOSED OF THE PROCEDURAL ISSUE, WE PROCEED TO THE
BONE OF CONTENTION IN THE PENDING MOTIONS. SUFFICE IT TO STATE
IN THE OUTSET THAT AS REGARDS THE SUBSTANTIVE ISSUES
PRESENTED, THE COURT, LIKEWISE, CONCURS WITH THE OTHER
RECOMMENDATIONS OF THE CA, WITH A FEW MODIFICATIONS.
II.
PROPRIETY OF CONVERTING THE TEPO TO PEPO OR ITS LIFTING IN LIGHT
OF THE
DOE CERTIFICATION OF THE WOPL'S COMMERCIAL VIABILITY
TO RECALL, PETITIONERS' PERSISTENT PLEA IS FOR THE CONVERSION
OF THE NOVEMBER 19, 2010 TEPO INTO A PERMANENT ENVIRONMENTAL
PROTECTION ORDER (PEPO) PURSUANT TO SEC. 3,46 RULE 5 OF THE
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES. FOR ITS PART,
RESPONDENT FPIC ASSERTS THAT REGULAR TESTING, AS WELL AS THE
MEASURES THAT ARE ALREADY IN PLACE, WILL SUFFICIENTLY ADDRESS
ANY CONCERN OF OIL LEAKS FROM THE WOPL.
WITH RESPECT TO LEAK DETECTION, FPIC CLAIMS THAT IT HAS IN PLACE
THE FOLLOWING SYSTEMS: (A) REGULAR CLEANING SCRAPER RUNS,
WHICH ARE DONE QUARTERLY; (B) PIPELINE INTEGRITY GAUGE (PIG)
TESTS/INTELLIGENT PIG, NOW KNOWN AS IN-LINE INSPECTIONS (ILI),
WHICH IS DONE EVERY FIVE YEARS; (C) PRESSURE MONITORING VALVES;
AND ( D) 24-HOUR PATROLS. ADDITIONALLY, FPIC ASSERTED THAT IT
ALSO UNDERTOOK THE FOLLOWING: (A) MONITORING OF WELLS AND
BOREHOLE TESTING/VAPOR TESTS; (B) LEAK TIGHTNESS TEST, ALSO
KNOWN AS SEGMENT PRESSURE TEST; (C) PRESSURE-CONTROLLED
TEST; (D) INSPECTION AND REINFORCEMENT OF PATCHES; (E)
INSPECTION AND REINFORCEMENT OF DENTS; AND (F) PANDACAN
SEGMENT REPLACEMENT.47FURTHERMORE, IN AUGUST 2010, WITH THE
OIL LEAK HOGGING THE HEADLINES, FPIC HIRED NDT MIDDLE EAST FZE
(NDT) TO CONDUCT ILI INSPECTIONS THROUGH MAGNETIC FLUX
LEAKAGE (MFL) AND ULTRASONIC TESTS TO, RESPECTIVELY, DETECT
WALL THINNING OF THE PIPELINE AND CHECK IT FOR CRACKS.
THE CA, HOWEVER, OBSERVED THAT ALL OF THESE TESTS AND
MEASURES ARE INCONCLUSIVE AND INSUFFICIENT FOR PURPOSES OF
LEAK DETECTION AND PIPELINE INTEGRITY MAINTENANCE. HENCE,
CONSIDERING THE NECESSARY CAUTION AND LEVEL OF ASSURANCE
REQUIRED TO ENSURE THAT THE WOPL SYSTEM IS FREE FROM LEAKS
AND IS SAFE FOR COMMERCIAL OPERATION, THE CA RECOMMENDED
THAT FPIC OBTAIN FROM THE DOE A CERTIFICATION THAT THE WOPL IS
ALREADY SAFE FOR COMMERCIAL OPERATION. THIS CERTIFICATION,
ACCORDING TO THE CA, WAS TO BE ISSUED WITH DUE CONSIDERATION
OF THE ADOPTION BY FPIC OF THE APPROPRIATE LEAK DETECTION
SYSTEMS TO MONITOR SUFFICIENTLY THE ENTIRE WOPL AND THE NEED
TO REPLACE PORTIONS OF THE PIPES WITH EXISTING PATCHES AND
SLEEVES. SANS THE REQUIRED CERTIFICATION, USE OF THE WOPL
SHALL REMAIN ABATED.
THE COURT FOUND THIS RECOMMENDATION OF THE APPELLATE COURT
PROPER. HENCE, WE REQUIRED FPIC TO OBTAIN THE ADVERTED DOE
CERTIFICATION IN OUR JULY 30, 2013 RESOLUTION. WE DEEMED IT
PROPER TO REQUIRE SAID CERTIFICATION FROM THE DOE CONSIDERING
THAT THE CORE ISSUE OF THIS CASE REQUIRES THE SPECIALIZED
KNOWLEDGE AND SPECIAL EXPERTISE OF THE DOE AND VARIOUS OTHER
ADMINISTRATIVE AGENCIES. ON OCTOBER 25, 2013, THE DOE SUBMITTED
THE CERTIFICATION PURSUANT TO THE JULY 30, 2013 RESOLUTION OF
THE COURT. LATER, HOWEVER, ON AUGUST 5, 2014, DOE SECRETARY
CARLOS JERICHO I. PETILLA SUBMITTED A LETTER RECOMMENDING
CERTAIN ACTIVITIES AND THE TIMETABLE FOR THE RESUMPTION OF THE
WOPL OPERATIONS AFTER CONDUCTING A DIALOGUE BETWEEN THE
CONCERNED GOVERNMENT AGENCIES AND FPIC.
AFTER A PERUSAL OF THE RECOMMENDATIONS OF THE DOE AND THE
SUBMISSIONS OF THE PARTIES, THE COURT ADOPTS THE ACTIVITIES AND
MEASURES PRESCRIBED IN THE DOE LETTER DATED AUGUST 5, 2014 TO
BE COMPLIED WITH BY FPIC AS CONDITIONS FOR THE RESUMPTION OF
THE COMMERCIAL OPERATIONS OF THE WOPL. THE DOE SHOULD,
THEREFORE, PROCEED WITH THE IMPLEMENTATION OF THE TESTS
PROPOSED IN THE SAID AUGUST 5, 2014 LETTER. THEREAFTER, IF IT IS
SATISFIED THAT THE RESULTS WARRANT THE IMMEDIATE REOPENING OF
THE WOPL, THE DOE SHALL ISSUE AN ORDER ALLOWING FPIC TO
RESUME THE OPERATION OF THE WOPL. ON THE OTHER HAND, SHOULD
THE PROBE RESULT IN A FINDING THAT THE PIPELINE IS NO LONGER
SAFE FOR CONTINUED USE AND THAT ITS CONDITION IS IRREMEDIABLE,
OR THAT IT ALREADY EXCEEDED ITS SERVICEABLE LIFE, AMONG
OTHERS, THE CLOSURE OF THE WOPL MAY BE ORDERED.
THE DOE IS SPECIALLY EQUIPPED TO CONSIDER FPIC'S PROPER
IMPLEMENTATION AND COMPLIANCE WITH ITS PIMS AND TO EVALUATE
THE RESULT OF THE VARIOUS TESTS CONDUCTED ON THE PIPELINE. THE
DOE IS EMPOWERED BY SEC. 12(B)(L), RA 7638 TO FORMULATE AND
IMPLEMENT POLICIES FOR THE EFFICIENT AND ECONOMICAL
"DISTRIBUTION, TRANSPORTATION, AND STORAGE OF PETROLEUM,
COAL, NATURAL GAS."48 THUS, IT CANNOT BE GAINSAID THAT THE DOE
POSSESSES TECHNICAL KNOWLEDGE AND SPECIAL EXPERTISE WITH
RESPECT TO PRACTICES IN THE TRANSPORTATION OF OIL THROUGH
PIPELINES.
MOREOVER, IT IS NOTABLE THAT THE DOE DID NOT ONLY LIMIT ITSELF TO
THE KNOWLEDGE AND PROFICIENCY AVAILABLE WITHIN ITS OFFICES, IT
HAS ALSO RALLIED AROUND THE ASSISTANCE OF PERTINENT BUREAUS
OF THE OTHER ADMINISTRATIVE AGENCIES: THE ITDI49OF THE DOST,
WHICH IS MANDATED TO UNDERTAKE TECHNICAL SERVICES INCLUDING
STANDARDS, ANALYTICAL AND CALIBRATION SERVICES; THE
MIRDC,50 ALSO OF THE DOST, WHICH IS THE SOLE GOVERNMENT ENTITY
DIRECTLY SUPPORTING THE METALS AND ENGINEERING
INDUSTRY;51 THE EMB52 OF THE DENR, THE AGENCY MANDATED TO
IMPLEMENT, AMONG OTHERS, RA 6969 (TOXIC SUBSTANCES AND
HAZARDOUS AND NUCLEAR WASTE CONTROL ACT OF 1990) AND RA 9275
(PHILIPPINE CLEAN WATER ACT OF 2004); AND THE BOD OF THE DPWH,
WHICH IS MANDATED TO CONDUCT, SUPERVISE, AND REVIEW THE
TECHNICAL DESIGN ASPECTS OF PROJECTS OF GOVERNMENT
AGENCIES.53
THE SPECIALIZED KNOWLEDGE AND EXPERTISE OF THE FOREGOING
AGENCIES MUST, THEREFORE, BE AVAILED OF TO ARRIVE AT A
JUDICIOUS DECISION ON THE PROPRIETY OF ALLOWING THE IMMEDIATE
RESUMPTION OF THE WOPL'S OPERATION. IN A HOST OF CASES, THIS
COURT HELD THAT WHEN THE ADJUDICATION OF A CONTROVERSY
REQUIRES THE RESOLUTION OF ISSUES WITHIN THE EXPERTISE OF AN
ADMINISTRATIVE BODY, SUCH ISSUES MUST BE INVESTIGATED AND
RESOLVED BY THE ADMINISTRATIVE BODY EQUIPPED WITH THE
SPECIALIZED KNOWLEDGE AND THE TECHNICAL EXPERTISE.54 HENCE,
THE COURTS, ALTHOUGH THEY MAY HAVE JURISDICTION AND POWER TO
DECIDE CASES, CAN UTILIZE THE FINDINGS AND RECOMMENDATIONS OF
THE ADMINISTRATIVE AGENCY ON QUESTIONS THAT DEMAND "THE
EXERCISE OF SOUND ADMINISTRATIVE DISCRETION REQUIRING THE
SPECIAL KNOWLEDGE, EXPERIENCE, AND SERVICES OF THE
ADMINISTRATIVE TRIBUNAL TO DETERMINE TECHNICAL AND INTRICATE
MATTERS OF FACT."55
JUSTICE LEONEN, IN HIS DISSENT, IS OF THE VIEW THAT THE PETITION
SHOULD BE DENIED AND THE TEPO IMMEDIATELY LIFTED IN LIGHT OF
THE DOE'S ISSUANCE OF A CERTIFICATION ATTESTING TO THE SAFETY
OF THE WOPL FOR CONTINUED COMMERCIAL OPERATIONS, THEREBY
RENDERING THE INSTANT PETITION MOOT AND ACADEMIC, SEEKING, AS
IT DOES, THE CHECKING OF THE PIPELINE'S STRUCTURAL INTEGRITY.
ACCORDING TO HIS DISSENT, THE WRIT OF KALIKASAN ISSUED BY THE
COURT HAS ALREADY SERVED ITS FUNCTIONS AND, THEREFORE, IS
FUNCTUS OFFICIO. MOREOVER, HE ARGUES THAT DIRECTING THE DOE
AND FPIC TO REPEAT THEIR PREVIOUS PROCEDURES IS TANTAMOUNT
TO DOUBTING THE AGENCY'S PERFORMANCE OF ITS STATUTORILY-
MANDATED TASKS, OVER WHICH THEY HAVE THE NECESSARY
EXPERTISE, AND IMPLIES THAT SAID DOE CERTIFICATION IS IMPROPER, A
BREACH, ALLEGEDLY, OF THE PRINCIPLE OF SEPARATION OF POWERS.
HE ALSO CONTENDS THAT THE MAJORITY ORDERED THE REPETITION OF
THE PROCEDURES AND TESTS ALREADY CONDUCTED ON THE WOPL
BECAUSE OF THE FEAR AND UNCERTAINTY ON ITS SAFENESS DESPITE
THE FINDING OF THE DOE IN FAVOR OF ITS REOPENING, TAKING INTO
CONSIDERATION THE OCCURRENCE OF NUMEROUS PIPELINE INCIDENTS
WORLDWIDE. THE DISSENT ARGUES THAT THE PRECAUTIONARY
PRINCIPLE SHOULD NOT BE SO STRICTLY APPLIED AS TO UNJUSTIFIABLY
DEPRIVE THE PUBLIC OF THE BENEFITS OF THE ACTIVITY TO BE
INHIBITED, AND TO UNDULY CREATE OTHER RISKS.
THE DISSENT'S CONTENTIONS THAT THE CASE IS ALREADY MOOT AND
ACADEMIC, THAT THE WRIT OF KALIKASAN HAS ALREADY SERVED ITS
FUNCTION, AND THAT THE DELAY IN THE LIFTING OF THE TEPO MAY DO
MORE HARM THAN GOOD ARE ANCHORED ON THE MISTAKEN PREMISE
THAT THE PRECAUTIONARY PRINCIPLE WAS APPLIED IN ORDER TO
JUSTIFY THE ORDER TO THE DOE AND THE FPIC FOR THE CONDUCT OF
THE VARIOUS TESTS ANEW. THE FOLLOWING REASONS EASILY DEBUNK
THESE ARGUMENTS:
1. THE PRECAUTIONARY PRINCIPLE IS NOT APPLICABLE TO THE INSTANT
CASE;
2. THE DOE CERTIFICATION IS NOT AN ABSOLUTE ATTESTATION AS TO
THE WOPL'S STRUCTURAL INTEGRITY AND IN FACT IMPOSES SEVERAL
CONDITIONS FOR FPIC'S COMPLIANCE;
3. THE DOE ITSELF, IN CONSULTATION WITH FPIC AND THE OTHER
CONCERNED AGENCIES, PROPOSED THE ACTIVITIES TO BE CONDUCTED
PREPARATORY TO THE REOPENING OF THE PIPELINE; AND
4 . THERE ARE NO CONCLUSIVE FINDINGS YET ON THE WOPL'S
STRUCTURAL INTEGRITY.
SECTION 1, RULE 20 OF A.M. NO. 09-6-8-SC OR THE RULES OF
PROCEDURE FOR ENVIRONMENTAL CASES, ON THE PRECAUTIONARY
PRINCIPLE, PROVIDES THAT "[ W ]HEN THERE IS LACK OF FULL SCIENTIFIC
CERTAINTY IN ESTABLISHING A CAUSAL LINK BETWEEN HUMAN ACTIVITY
AND ENVIRONMENTAL EFFECT, THE COURT SHALL APPLY THE
PRECAUTIONARY PRINCIPLE IN RESOLVING THE CASE BEFORE IT."
ACCORDING TO THE DISSENT, THE DIRECTIVE FOR THE REPETITION OF
THE TESTS IS BASED ON SPECULATIONS, JUSTIFIED BY THE APPLICATION
OF SAID PRINCIPLE. THIS, HOWEVER, IS NOT THE CASE. NOWHERE DID
WE APPLY THE PRECAUTIONARY PRINCIPLE IN DECIDING THE ISSUE ON
THE WOPL'S STRUCTURAL INTEGRITY.
THE PRECAUTIONARY PRINCIPLE ONLY APPLIES WHEN THE LINK
BETWEEN THE CAUSE, THAT IS THE HUMAN ACTIVITY SOUGHT TO BE
INHIBITED, AND THE EFFECT, THAT IS THE DAMAGE TO THE
ENVIRONMENT, CANNOT BE ESTABLISHED WITH FULL SCIENTIFIC
CERTAINTY. HERE, HOWEVER, SUCH ABSENCE OF A LINK IS NOT AN
ISSUE. DETECTING THE EXISTENCE OF A LEAK OR THE PRESENCE OF
DEFECTS IN THE WOPL, WHICH IS THE ISSUE IN THE CASE AT BAR, IS
DIFFERENT FROM DETERMINING WHETHER THE SPILLAGE OF
HAZARDOUS MATERIALS INTO THE SURROUNDINGS WILL CAUSE
ENVIRONMENTAL DAMAGE OR WILL HARM HUMAN HEALTH OR THAT OF
OTHER ORGANISMS. AS A MATTER OF FACT, THE PETROLEUM LEAK AND
THE HARM THAT IT CAUSED TO THE ENVIRONMENT AND TO THE
RESIDENTS OF THE AFFECTED AREAS IS NOT EVEN QUESTIONED BY
FPIC.
IT MUST BE STRESSED THAT WHAT IS IN ISSUE IN THE INSTANT PETITION
IS THE WOPL'S COMPLIANCE WITH PIPELINE STRUCTURE STANDARDS SO
AS TO MAKE IT FIT FOR ITS PURPOSE, A QUESTION OF FACT THAT IS TO
BE DETERMINED ON THE BASIS OF THE EVIDENCE PRESENTED BY THE
PARTIES ON THE WOPL'S ACTUAL STATE. HENCE, OUR CONSIDERATION
OF THE NUMEROUS FINDINGS AND RECOMMENDATIONS OF THE CA, THE
DOE, AND THE AMICI CURIAE ON THE WOPL' S PRESENT STRUCTURE,
AND NOT THE CITED PIPELINE INCIDENTS AS THE DISSENT PROPOUNDS.
CONSIDER ALSO THE FACT THAT IT IS THE DOE ITSELF THAT IMPOSED
SEVERAL CONDITIONS UPON FPIC FOR THE RESUMPTION OF THE
OPERATIONS OF THE WOPL. THIS, COUPLED WITH THE SUBMISSION BY
THE DOE OF ITS PROPOSED ACTIVITIES AND TIMETABLE, IS A CLEAR AND
UNEQUIVOCAL MESSAGE COMING FROM THE DOE THAT THE WOPL'S
SOUNDNESS FOR RESUMPTION OF AND CONTINUED COMMERCIAL
OPERATIONS IS NOT YET FULLY DETERMINED. AND IT IS ONLY AFTER AN
EXTENSIVE DETERMINATION BY THE DOE OF THE PIPELINE'S ACTUAL
PHYSICAL STATE THROUGH ITS PROPOSED ACTIVITIES, AND NOT
MERELY THROUGH A SHORT-FORM INTEGRITY AUDIT,56THAT THE
FACTUAL ISSUE ON THE WOPL'S VIABILITY CAN BE SETTLED. THE ISSUE,
THEREFORE, ON THE PIPELINE'S STRUCTURAL INTEGRITY HAS NOT YET
BEEN RENDERED MOOT AND REMAINS TO BE SUBJECT TO THIS COURT'S
RESOLUTION. CONSEQUENTLY, WE CANNOT SAY THAT THE DOE'S
ISSUANCE OF THE CERTIFICATION ADVERTED TO EQUATES TO THE WRIT
OF KALIKASAN BEING FUNCTUS OFFICIO AT THIS POINT.
THE DISSENT IS CORRECT IN EMPHASIZING THAT WE DEFER TO THE
FINDINGS OF FACT OF ADMINISTRATIVE AGENCIES CONSIDERING THEIR
SPECIALIZED KNOWLEDGE IN THEIR FIELD. AND WE, AS A MATTER OF
FACT, ACCEDED TO THE DOE' S CONCLUSIONS ON THE NECESSITY OF
THE CONDUCT OF THE VARIOUS ACTIVITIES AND TESTS ENUMERATED IN
SEC. PETILLA'S LETTER TO THIS COURT DATED AUGUST 5, 2014. HENCE,
OUR DIRECTIVE FOR THE DOE TO IMMEDIATELY COMMENCE THE
ACTIVITIES ENUMERATED IN SAID LETTER, TO DETERMINE THE
PIPELINE'S RELIABILITY, AND TO ORDER ITS REOPENING SHOULD THE
DOE FIND THAT SUCH IS PROPER.
THE DISSENT ALSO LOSES SIGHT OF THE FACT THAT THE PETITION NOT
ONLY SEEKS THE CHECKING OF THE WOPL'S STRUCTURAL INTEGRITY,
BUT ALSO PRAYS FOR THE REHABILITATION OF THE AREAS AFFECTED BY
THE LEAK, THE CREATION OF A SPECIAL TRUST FUND, THE IMPOSITION
OF LIABILITY UPON THE DIRECTORS OF FPIC, AMONG OTHERS. THESE
ISSUES, UNDOUBTEDLY, ARE MATTERS THAT ARE NOT ADDRESSED BY
THE DOE CERTIFICATION ALONE. FURTHERMORE, THESE ARE ISSUES
THAT NO LONGER RELATE TO THE WOPL' S STRUCTURE BUT TO ITS
MAINTENANCE AND OPERATIONS, AS WELL AS TO THE RESIDUES OF THE
INCIDENT. IT WILL, THUS, BE IMPROPER FOR US TO SIMPLY DISMISS THE
PETITION ON THE BASIS SOLELY OF THE ALLEGED RESOLUTION OF ONLY
ONE OF SEVERAL ISSUES, WHICH PURPORTEDLY RENDERS THE ISSUE
ON THE WOPL' S SOUNDNESS MOOT, WITHOUT DISPOSING OF THE
OTHER ISSUES PRESENTED.
LASTLY, ANY DELAY IN THE REOPENING OF THE WOPL, IF SAID DELAY IS
FOR THE PURPOSE OF MAKING SURE THAT THE PIPELINE IS
COMMERCIALLY VIABLE, IS BETTER THAN HASTILY ALLOWING ITS
REOPENING WITHOUT AN EXTENSIVE CHECK ON ITS STRUCTURAL
INTEGRITY WHEN EXPERIENCE SHOWS THAT THERE WERE AND MAY
STILL BE FLAWS IN THE PIPELINE. EVEN THE DOE, THE AGENCY TASKED
TO OVERSEE THE SUPPLY AND DISTRIBUTION OF PETROLEUM IN THE
COUNTRY, IS WELL AWARE OF THIS AND EVEN RECOMMENDED THE
CHECKING OF THE PATCHED PORTIONS OF THE PIPELINE, AMONG
OTHERS. IN THIS REGARD, THE COURT DEEMS IT BEST TO TAKE THE
NECESSARY SAFEGUARDS, WHICH ARE NOT SIMILAR TO APPLYING THE
PRECAUTIONARY PRINCIPLE AS PREVIOUSLY EXPLAINED, IN ORDER TO
PREVENT A SIMILAR INCIDENT FROM HAPPENING IN THE FUTURE.
III.
PROPRIETY OF THE CREATION OF A SPECIAL TRUST FUND
ANENT PETITIONERS' PRAYER FOR THE CREATION OF A SPECIAL TRUST
FUND, WE NOTE THAT UNDER SEC. 1, RULE 5 OF THE RULES OF
PROCEDURE FOR ENVIRONMENTAL CASES, A TRUST FUND IS LIMITED
SOLELY FOR THE PURPOSE OF REHABILITATING OR RESTORING THE
ENVIRONMENT. SAID PROVISO PERTINENTLY PROVIDES:
SEC. 1. RELIEFS IN A CITIZEN SUIT. - IF WARRANTED, THE COURT MAY
GRANT TO THE PLAINTIFF PROPER RELIEFS WHICH SHALL INCLUDE THE
PROTECTION, PRESERVATION OR REHABILITATION OF THE
ENVIRONMENT AND THE PAYMENT OF ATTORNEY'S FEES, COSTS OF SUIT
AND OTHER LITIGATION EXPENSES. IT MAY ALSO REQUIRE THE VIOLATOR
TO SUBMIT A PROGRAM OF REHABILITATION OR RESTORATION OF THE
ENVIRONMENT, THE COSTS OF WHICH SHALL BE BORNE BY THE
VIOLATOR, OR TO CONTRIBUTE TO A SPECIAL TRUST FUND FOR THAT
PURPOSE SUBJECT TO THE CONTROL OF THE COURT. (EMPHASIS
SUPPLIED)
FURTHERMORE, SEC. 15( E ), RULE 7 OF THE RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES EXPRESSLY PROHIBITS THE GRANT OF
DAMAGES TO PETITIONERS IN A PETITION FOR THE ISSUANCE OF A WRIT
OF KALIKASAN, VIZ:
SECTION 15. JUDGMENT. - WITHIN SIXTY (60) DAYS FROM THE TIME THE
PETITION IS SUBMITTED FOR DECISION, THE COURT SHALL RENDER
JUDGMENT GRANTING OR DENYING THE PRIVILEGE OF THE WRIT OF
KALIKASAN.
THE RELIEFS THAT MAY BE GRANTED UNDER THE WRIT ARE THE
FOLLOWING:
XXXX
(E) SUCH OTHER RELIEFS WHICH RELATE TO THE RIGHT OF THE PEOPLE
TO A BALANCED AND HEALTHFUL ECOLOGY OR TO THE PROTECTION,
PRESERVATION, REHABILITATION OR RESTORATION OF THE
ENVIRONMENT, EXCEPT THE AWARD OF DAMAGES TO INDIVIDUAL
PETITIONERS.
A READING OF THE PETITION AND THE MOTION FOR PARTIAL
RECONSIDERATION READILY REVEALS THAT THE PRAYER IS FOR THE
CREATION OF A TRUST FUND FOR SIMILAR FUTURE CONTINGENCIES.
THIS IS CLEARLY OUTSIDE THE LIMITED PURPOSE OF A SPECIAL TRUST
FUND UNDER THE RULES OF PROCEDURE FOR ENVIRONMENTAL CASES,
WHICH IS TO REHABILITATE OR RESTORE THE ENVIRONMENT THAT HAS
PRESUMABLY ALREADY SUFFERED. HENCE, THE COURT AFFIRMS WITH
CONCURRENCE THE OBSERVATION OF THE APPELLATE COURT THAT THE
PRAYER IS BUT A CLAIM FOR DAMAGES, WHICH IS PROHIBITED BY THE
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES. AS SUCH, THE
COURT IS OF THE CONSIDERED VIEW THAT THE CREATION OF A SPECIAL
TRUST FUND IS MISPLACED. THE PRESENT RULING ON PETITIONERS'
PRAYER FOR THE CREATION OF A SPECIAL TRUST FUND IN THE INSTANT
RECOURSE, HOWEVER, IS WITHOUT PREJUDICE TO THE JUDGMENT/S
THAT MAY BE RENDERED IN THE CIVIL AND/OR CRIMINAL CASES FILED BY
PETITIONERS ARISING FROM THE SAME INCIDENT IF THE PAYMENT OF
DAMAGES IS FOUND WARRANTED.
IV.
LIABILITY OF FPIC, FGC AND THEIR RESPECTIVE DIRECTORS AND
OFFICERS
ON THE LAST ISSUE OF THE LIABILITY OF FPIC, FGC AND THEIR
RESPECTIVE DIRECTORS AND OFFICERS, THE CA FOUND FGC NOT
LIABLE UNDER THE TEPO AND, WITHOUT PREJUDICE TO THE OUTCOME
OF THE CIVIL CASE (CIVIL CASE NO. 11-256, RTC, BRANCH 58 IN MAKATI
CITY) AND CRIMINAL COMPLAINT (COMPLAINT-AFFIDAVIT FOR RECKLESS
IMPRUDENCE, OFFICE OF THE PROVINCIAL PROSECUTOR OF MAKATI
CITY) FILED AGAINST THEM, THE INDIVIDUAL DIRECTORS AND OFFICERS
OF FPIC AND FGC ARE NOT LIABLE IN THEIR INDIVIDUAL CAPACITIES.
THE COURT WILL REFRAIN FROM RULING ON THE FINDING OF THE CA
THAT THE INDIVIDUAL DIRECTORS AND OFFICERS OF FPIC AND FGC ARE
NOT LIABLE DUE TO THE EXPLICIT RULE IN THE RULES OF PROCEDURE
FOR ENVIRONMENTAL CASES THAT IN A PETITION FOR A WRIT OF
KALIKASAN, THE COURT CANNOT GRANT THE AWARD OF DAMAGES TO
INDIVIDUAL PETITIONERS UNDER RULE 7, SEC. 15(E) OF THE RULES OF
PROCEDURE FOR ENVIRONMENTAL CASES. AS DULY NOTED BY THE CA,
THE CIVIL CASE AND CRIMINAL COMPLAINT FILED BY PETITIONERS
AGAINST RESPONDENTS ARE THE PROPER PROCEEDINGS TO VENTILATE
AND DETERMINE THE INDIVIDUAL LIABILITY OF RESPONDENTS, IF ANY, ON
THEIR EXERCISE OF CORPORATE POWERS AND THE MANAGEMENT OF
FPIC RELATIVE TO THE DIRE ENVIRONMENTAL IMPACT OF THE DUMPING
OF PETROLEUM PRODUCTS STEMMING FROM THE LEAK IN THE WOPL IN
BARANGAY BANGKAL, MAKATI CITY.
HENCE, THE COURT WILL NOT RULE ON THE ALLEGED LIABILITY ON THE
PART OF THE FPIC AND FGC OFFICIALS WHICH CAN, HOWEVER, BE
PROPERLY RESOLVED IN THE CIVIL AND CRIMINAL CASES NOW PENDING
AGAINST THEM.
OTHER MATTERS
THE CA'S RESOLUTION ON PETITIONERS' SEPTEMBER 9, 2011
MANIFESTATION (RE: CURRENT DEVELOPMENTS) WITH OMNIBUS MOTION
ON THE REMEDIATION PLAN IN BARANGAY BANGKAL BY DIRECTING THE
INTER-AGENCY COMMITTEE ON ENVIRONMENTAL HEALTH TO SUBMIT ITS
EVALUATION OF THE SAID PLAN PREPARED BY CH2M PHILIPPINES, INC.,
FOR FPIC TO STRICTLY COMPLY WITH THE STIPULATIONS EMBODIED IN
THE PERMITS ISSUED BY THE DENR, AND TO GET A CERTIFICATION FROM
THE DENR OF ITS COMPLIANCE THERETO IS WELL TAKEN. DENR IS THE
GOVERNMENT AGENCY TASKED TO IMPLEMENT THE STATE POLICY OF
"MAINTAINING A SOUND ECOLOGICAL BALANCE AND PROTECTING AND
ENHANCING THE QUALITY OF THE ENVIRONMENT"57 AND TO
"PROMULGATE RULES AND REGULATIONS FOR THE CONTROL OF WATER,
AIR, AND LAND POLLUTION."58 IT IS INDUBITABLE THAT THE DENR HAS
JURISDICTION IN OVERSEEING AND SUPERVISING THE ENVIRONMENTAL
REMEDIATION OF BARANGAY BANGKAL, WHICH IS ADVERSELY AFFECTED
BY THE LEAK IN THE WOPL IN 2010.
WITH REGARD TO PETITIONERS' MARCH 29, 2012 SUPPLEMENTAL
MANIFESTATION ABOUT A RECENT POSSIBLE LEAK IN THE PIPELINE, THE
CA APPROPRIATELY FOUND NO ADDITIONAL LEAK. HOWEVER, DUE TO
THE DEVASTATING EFFECT ON THE ENVIRONS IN BARANGAY BANGKAL
DUE TO THE 2010 LEAK, THE COURT FINDS IT FITTING THAT THE PIPELINE
BE CLOSELY AND REGULARLY MONITORED TO OBVIATE ANOTHER
CATASTROPHIC EVENT WHICH WILL PREJUDICE THE HEALTH OF THE
AFFECTED PEOPLE, AND TO PRESERVE AND PROTECT THE
ENVIRONMENT NOT ONLY FOR THE PRESENT BUT ALSO FOR THE FUTURE
GENERATIONS TO COME.
PETITIONER'S JANUARY 10, 2013 MOTION FOR PARTIAL
RECOMMENDATION OF THE CA' S REPORT NEED NOT BE DISCUSSED AND
GIVEN CONSIDERATION. AS THE CA' S REPORT CONTAINS BUT THE
APPELLATE COURT'S RECOMMENDATION ON HOW THE ISSUES SHOULD
BE RESOLVED, AND NOT THE ADJUDICATION BY THIS COURT, THERE IS
NOTHING FOR THE APPELLATE COURT TO RECONSIDER.
AS TO PETITIONER'S OCTOBER 2, 2013 MOTION FOR RECONSIDERATION
WITH MOTION FOR CLARIFICATION, THE MATTERS CONTAINED THEREIN
HAVE BEEN CONSIDERED IN THE FOREGOING DISCUSSION OF THE
PRIMARY ISSUES OF THIS CASE. WITH ALL THESE, WE NEED NOT
BELABOR THE OTHER ARGUMENTS RAISED BY THE PARTIES.
IN VIEW OF THE FOREGOING, THE MOTION FOR PARTIAL
RECONSIDERATION IS HEREBY DENIED. THE MOTION FOR
RECONSIDERATION WITH MOTION FOR CLARIFICATION IS PARTLY
GRANTED. THE COURT OF APPEALS' RECOMMENDATIONS, EMBODIED IN
ITS DECEMBER 21, 2012 REPORT AND RECOMMENDATION, ARE HEREBY
ADOPTED WITH THE FOLLOWING MODIFICATIONS:
I. THE DEPARTMENT OF ENERGY (DOE) IS HEREBY ORDERED TO
OVERSEE THE STRICT IMPLEMENTATION OF THE FOLLOWING ACTIVITIES:
A. PREPARATORY TO THE TEST RUN OF THE ENTIRE STRETCH OF THE
WOPL:
1) FPIC SHALL PERFORM THE FOLLOWING:
A. CONTINUE SUBMISSION OF MONITORING CHARTS, DATA/READING,
ACCOMPLISHMENT REPORTS, AND PROJECT STATUS FOR ALL RELATED
ACTIVITIES/WORKS. RESPOND TO COMMENTS AND PREPARE FOR SITE
INSPECTION.
B. CONTINUE GAS TESTING ALONG THE RIGHT-OF-WAY USING THE
MONITORING WELLS OR BOREHOLES. PREPARE FOR INSPECTION OF
RIGHT-OF-WAY AND OBSERVATION OF GAS TESTING ACTIVITIES ON
MONITORING WELLS AND BOREHOLES.
C. EXPLAIN THE PROCESS OF THE SELECTION OF BOREHOLE LOCATION
AND IDENTIFY THOSE LOCATED IN PIPELINE BENDS, BODIES OF WATER,
HIGHWAYS, RESIDENTIAL AREAS, REPAIRED PORTIONS OF THE
PIPELINES, DENTS AND WELDED JOINTS, AS WELL OTHER NOTABLE
FACTORS, CIRCUMSTANCES, OR EXPOSURE TO STRESSES. D. SET UP
ADDITIONAL BOREHOLES AND MONITORING WELLS SUFFICIENT TO
COVER THE ENTIRE STRETCH OF THE WOPL, THE NUMBER AND
LOCATION OF WHICH SHALL BE DETERMINED BY THE DOE.
E. CONTINUE SUBMITTING STATUS REPORT TO THE CONCERNED
GOVERNMENT AGENCY/IES RELATING TO "PROJECT MOJICA," OR THE ON-
GOING PIPELINE SEGMENT REALIGNMENT ACTIVITY BEING UNDERTAKEN
BY FPIC TO GIVE WAY TO A FLOOD CONTROL PROJECT OF THE MMDA IN
THE VICINITY OF MOJICA ST. AND PRES. OSMEÑA HIGHWAY, AND
PREPARE FOR SITE INSPECTION.
2) THE DOE SHALL PERFORM THE FOLLOWING UNDERTAKINGS:
A. CONDUCT ONSITE INSPECTION OF THE PIPELINE RIGHT-OF-WAY, THE
AREA AROUND THE WOPL AND THE EQUIPMENT INSTALLED
UNDERGROUND OR ABOVEGROUND.
B. REVIEW AND CHECK THE CONDITION OF THE 22 PATCHES
REINFORCED WITH CLOCKSPRING SLEEVES BY PERFORMING THE
FOLLOWING:
I. DETERMINE THE LOCATION OF THE SLEEVES
II. REVIEW THE PROCEDURE FOR THE REPAIR OF THE SLEEVES
III. INSPECT THE AREAS WHERE THE AFFECTED PORTIONS OF THE WOPL
ARE LOCATED AND WHICH ARE EASILY ACCESSIBLE.
C. INSPECT ONSITE THE CATHODIC PROTECTION RECTIFIER TO CHECK
THE FOLLOWING:
I. OLD AND CURRENT READINGS
II. THE SEGMENT/S COVERED BY THE CATHODIC PROTECTION SYSTEM
III. REVIEW THE CRITERIA FOR PRIORITIZATION OF CORRECTIVE ACTION.
D. OBSERVE AND WITNESS THE RUNNING/OPERATION OF THE
INTELLIGENT AND CLEANING PIGS.
E. CHECK AND CALIBRATE THE INSTRUMENTS THAT WILL BE USED FOR
THE ACTUAL TESTS ON THE PIPELINE, AND VALIDATE THE CALIBRATION
CERTIFICATES OF THESE INSTRUMENTS.
B. DURING THE ACTUAL TEST RUN:
1) FPIC SHALL PERFORM THE FOLLOWING:
A. PERFORM CLEANING PIG RUN AND WITNESS THE LAUNCHING AND
RECEIVING OF THE INTELLIGENT AND CLEANING PIGS.
B. DEMONSTRATE AND OBSERVE THE VARIOUS PRESSURE AND LEAKAGE
TESTS, INCLUDING THE FOLLOWING:
I. "BLOCKED-IN PRESSURE TEST" OR THE PRESSURE TEST CONDUCTED
WHILE ALL THE WOPL'S OPENINGS ARE BLOCKED OR CLOSED OFF; AND
II. "IN-OPERATION TEST" OR THE HOURLY MONITORING OF PRESSURE
RATING AFTER THE PIPELINE IS FILLED WITH DYED WATER AND
PRESSURIZED AT A SPECIFIED RATE.
C. CONTINUE, INSPECT, AND OVERSEE THE CURRENT GAS MONITORING
SYSTEM, OR THE MONITORING OF GAS FLOW FROM THE BOREHOLES
AND MONITORING WELLS OF THE WOPL.
D. CHECK THE MASS OR VOLUME BALANCE COMPUTATION DURING WOPL
TEST RUN BY CONDUCTING:
I. 30 DAYS BASELINE DATA GENERATION
II. COMPUTATIONAL ANALYSIS AND MONITORING OF THE DATA
GENERATED.
II. AFTER FPIC HAS UNDERTAKEN THE ACTIVITIES PRESCRIBED IN THE
PRECEDING PARAGRAPH 1, THE DOE SHALL DETERMINE IF THE
ACTIVITIES AND THE RESULTS OF THE TEST RUN WARRANT THE RE-
OPENING OF THE WOPL. IN THE EVENT THAT THE DOE IS SATISFIED THAT
THE WOPL IS SAFE FOR CONTINUED COMMERCIAL OPERATIONS, IT
SHALL ISSUE AN ORDER ALLOWING FPIC TO RESUME THE OPERATIONS
OF THE PIPELINE.
III. ONCE THE WOPL IS RE-OPENED, THE DOE SHALL SEE TO IT THAT FPIC
STRICTLY COMPLIES WITH THE FOLLOWING DIRECTIVES:
A. CONTINUE IMPLEMENTATION OF ITS PIPELINE INTEGRITY
MANAGEMENT SYSTEM (PIMS), AS REVIEWED BY THE DOE, WHICH SHALL
INCLUDE, BUT SHALL NOT BE LIMITED TO:
1. THE CONDUCT OF DAILY PATROLS ON THE ENTIRE STRETCH OF THE
WOPL, EVERY TWO HOURS;
2. CONTINUED CLOSE MONITORING OF ALL THE BOREHOLES AND
MONITORING WELLS OF THE WOPL PIPELINE;
IV. RESPONDENT FPIC IS ALSO DIRECTED TO UNDERTAKE AND CONTINUE
THE REMEDIATION, REHABILITATION AND RESTORATION OF THE
AFFECTED BARANGAY BANGKAL ENVIRONMENT UNTIL FULL
RESTORATION OF THE AFFECTED AREA TO ITS CONDITION PRIOR TO THE
LEAKAGE IS ACHIEVED. FOR THIS PURPOSE, RESPONDENT FPIC MUST
STRICTLY COMPLY WITH THE MEASURES, DIRECTIVES AND PERMITS
ISSUED BY THE DENR FOR ITS REMEDIATION ACTIVITIES IN BARANGAY
BANGKAL, INCLUDING BUT NOT LIMITED TO, THE WASTEWATER
DISCHARGE PERMIT AND PERMIT TO OPERATE. THE DENR HAS THE
AUTHORITY TO OVERSEE AND SUPERVISE THE AFORESAID ACTIVITIES
ON SAID AFFECTED BARANGAY.

3. REGULAR PERIODIC TESTING AND MAINTENANCE BASED ON ITS PIMS; V. THE INTER-AGENCY COMMITTEE ON ENVIRONMENTAL HEALTH UNDER
AND THE CITY GOVERNMENT OF MAKATI SHALL SUBMIT TO THE DENR ITS
EVALUATION OF THE REMEDIATION PLAN PREPARED BY CH2M HILL
4. THE AUDITING OF THE PIPELINE'S MASS INPUT VERSUS MASS OUTPUT; PHILIPPINES, INC. WITHIN THIRTY (30) DAYS FROM RECEIPT HEREOF.

B. SUBMIT TO THE DOE, WITHIN TEN (10) DAYS OF EACH SUCCEEDING VI. PETITIONERS' PRAYER FOR THE CREATION OF A SPECIAL TRUST FUND
MONTH, MONTHLY REPORTS ON ITS COMPLIANCE WITH THE ABOVE TO ANSWER FOR SIMILAR CONTINGENCIES IN THE FUTURE IS DENIED.
DIRECTIVES AND ANY OTHER CONDITIONS THAT THE DOE MAY IMPOSE,
THE RESULTS OF THE MONITORING, TESTS, AND AUDIT, AS WELL AS ANY SO ORDERED.
AND ALL ACTIVITIES UNDERTAKEN ON THE WOPL OR IN CONNECTION
WITH ITS OPERATION. THE CONCERNED GOVERNMENT AGENCIES,
NAMELY: THE INDUSTRIAL TECHNOLOGY DEVELOPMENT INSTITUTE (ITDI)
AND THE METALS INDUSTRY RESEARCH AND DEVELOPMENT CENTER
(MIRDC), BOTH UNDER THE DEPARTMENT OF SCIENCE AND TECHNOLOGY
(DOST), THE ENVIRONMENTAL MANAGEMENT BUREAU (EMB) OF THE
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES (DENR), THE
BUREAU OF DESIGN (BOD) OF THE DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS (DPWH), THE UNIVERSITY OF THE PHILIPPINES - NATIONAL
INSTITUTE OF GEOLOGICAL SCIENCE (UP-NI GS) AND UNIVERSITY OF THE
PHILIPPINES - INSTITUTE OF CIVIL ENGINEERING (UP-ICE), THE
PETITIONERS, INTERVENORS AND THIS COURT SHALL LIKEWISE BE
FURNISHED BY FPIC WITH THE MONTHLY REPORTS. THIS SHALL INCLUDE,
BUT SHALL NOT BE LIMITED TO: REALIGNMENT, REPAIRS, AND
MAINTENANCE WORKS; AND

C. CONTINUE COORDINATION WITH THE CONCERNED GOVERNMENT

AGENCIES FOR THE IMPLEMENTATION OF ITS PROJECTS.1ÂWPHI1