Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 183871
February 18, 2010
LOURDES D. RUBRCO, !E"N RUBRCO "PRUEBO, a#$ M"R% !O% RUBRCO C"RBONEL, Petitioners,
vs. GLOR" M"C"P"G"L&"RRO%O, GEN. 'ERMOGENES ESPERON, P(DR. GEN. ")ELNO R"*ON, M"!. D"R+N S% a..a. D"R+N RE%ES, !MM% S"NT"N", RUBEN "LF" RO, C"PT. "NGELO CU"RESM", a -era/# !ON"T'"N, P(SUPT. EDG"R B. ROUERO, "RSENO C. GOME*, a#$ OFFCE OF T'E OMBUDSM"N,Respondents. DECII!N )EL"SCO, !R., J.:
In this petition for revie" under Rule #$ of the Rules of Court in relation to ection 1% 1 of the Rule on the &rit of A'paro( )A'paro Rule*, +ourdes D. Rubrico, ean Rubrico Apruebo, and Mar- o- Rubrico Carbonel assail and see to set aside the Decision / of the Court of Appeals )CA* dated ul- /1, (00 in CA23.R. P No. 0000/, a petition co''enced under the A'paro Rule. 4he petition for the "rit of a'paro dated !ctober ($, (005 "as ori6inall- filed before this Court. After issuin6 the desired "rit and directin6 the respondents to file a verified "ritten return, the Court referred the petition to the CA for su''ar- hearin6 and appropriate action. 4he petition and its attach'ents contained, in substance, the follo"in6 alle6ations7 1. !n April /, (005, ar'ed 'en belon6in6 to the /01st Air Intelli 6ence and ecurit- 8uadron )AI, for short* based in 9ernando Air Base in +ipa Cit- abducted +ourdes D. Rubrico )+ourdes*, then attendin6 a +enten pabasa in Ba6on6 Ba-an, Das'ari:as, Cavite, and brou6ht to, and detained at, the air base "ithout char6es. 9ollo"in6 a "ee of relentless interro6ation 2 conducted alternatel- b- hooded individuals 2 and "hat a'ounts to verbal abuse and 'ental harass'ent, +ourdes, chair of the ;6na-an n6 Maralita para sa 3a"a Adhian, "as released at Das'ari:as, Cavite, her ho'eto"n, but onl- after bein6 'ade to si6n a state'ent that she "ould be a 'ilitar- asset. After +ourdes< release, the harass'ent, co'in6 in the for' of bein6 tailed on at least t"o occasions at different places, i.e., Das'ari:as, Cavite and Baclaran in Pasa- Cit-, b- 'otorc-cle2ridin6 'en in bonnets, continued= (. Durin6 the ti'e +ourdes "as 'issin6, P>r. Insp. Arsenio 3o'e? )P>Insp. 3o'e?*, then sub2station co''ander of Ba6on6 Ba-an, Das'ari:as, Cavite, ept sendin6 te@t 'essa6es to +ourdes< dau6hter, Mar- o- R. Carbonel )Mar- o-*, brin6in6 her to beaches and asin6 her 8uestions about Karapatan,
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an alliance of hu'an ri6hts or6ani?ations. e, ho"ever, failed to 'ae an investi6ation even after +ourdes< disappearance had been 'ade no"n to hi'= /. A "ee after +ourdes< release, another dau6hter, ean R. Apruebo )ean*, "as constrained to leave their house because of the presence of 'en "atchin6 the'= #. +ourdes has filed "ith the !ffice of the !'buds'an a cri'inal co'plaint for idnappin6 and arbitrar- detention and ad'inistrative co'plaint for 6ross abuse of authorit- and 6rave 'isconduct a6ainst Capt. An6elo Cuares'a )Cuares'a*, Ruben Alfaro )Alfaro*, i''- antana )antana* and a certain onathan, c>o ead8uarters /01st AI, 9ernando Air Base and Ma. ->Re-es "ith address at No. 0% A'sterda' E@t., Merville ubd., Para:a8ue Cit-, but nothin6 has happened= and the threats and harass'ent incidents have been reported to the Das'ari:as 'unicipal and Cavite provincial police stations, but nothin6 eventful resulted fro' their respective investi6ations. 4"o of the four "itnesses to +ourdes< abduction "ent into hidin6 after bein6 visited b- 6overn'ent a6ents in civilian clothes= and $. arapatan conducted an investi6ation on the incidents. 4he investi6ation "ould indicate that 'en belon6in6 to the Ar'ed 9orces of the Philippines )A9P*, na'el- Capt. Cuares'a of the Philippine Air 9orce )PA9*, Alfaro, antana, onathan and Ma. Dar"in ->Re-es, led the abduction of +ourdes= that unno"n to the abductors, +ourdes "as able to pilfer a 'ission order "hich "as addressed to CA Ruben Alfaro and si6ned b- Capt. Cuares'a of the PA9. 4he petition pra-ed that a "rit of a'paro issue, orderin6 the individual respondents to desist fro' perfor'in6 an- threatenin6 act a6ainst the securit- of the petitioners and for the !ffice of the !'buds'an )!MB* to i''ediatel- file an infor'ation for idnappin6 8ualifi ed "ith the a66ravatin6 circu'stance of 6ender of the offended part-. It also pra-ed for da'a6es and for respondents to produce docu'ents sub'itted to an- of the' on the case of +ourdes. Before the CA, respondents President 3loria Macapa6al2Arro-o, 3en. er'o6enes Esperon, then Ar'ed 9orces of the Philippines )A9P* Chief of taff, Police Director23eneral )P>Dir. 3en.* Avelino Ra?on, then Philippine National Police )PNP* Chief, Police uperintendent )P>upt.* Ro8uero of the Cavite Police Provincial !ffice, Police Inspector )P>Insp.* 3o'e?, no" retired, and the !MB )ans"erin6 respondents, collectivel-* filed, throu6h the !ffice of the olicitor 3eneral )!3*, a oint return on the "rit specificall- den-in6 the 'aterial inculpator- aver'ents a6ainst the'. 4he !3 also denied the alle6ations a6ainst the follo"in6 i'pleaded persons, na'el-7 Cuares'a, Alfaro, antana, onathan, and ->Re-es, for lac of no"led6e or infor'ation sufficient to for' a belief as to the alle6ations< truth. And b- "a- of 6eneral affir'ative defenses, ans"erin6 respondents interposed the follo"in6 defenses7 )1* the President 'a- not be sued durin6 her incu'benc-= and )(* the petition is inco'plete, as it fails to indicate the 'atters re8uired b- ec. $)d* and )e* of the A'paro Rule. # Attached to the return "ere the affidavits of the follo"in6, a'on6 other public officials, containin6 their respective affir'ative defenses and>or state'ents of "hat the- had undertaen or co''itted to undertae re6ardin6 the clai'ed disappearance of +ourdes and the harass'ents 'ade to bear on her and her dau6hters7
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1. 3en. Esperon attested that, pursuant to a directive of then ecretar- of National Defense )ND* 3ilberto C. 4eodoro, r., he ordered the Co''andin6 3eneral of the PA9, "ith infor'ation to all concerned units, to conduct an investi6ation to establish the circu'stances behind the disappearance and the reappearance of +ourdes insofar as the involve'ent of alle6ed personnel>unit is concerned. 4he Provost Marshall 3eneral and the !ffice of the ud6e Advocate 3eneral )A3!*, A9P, also undertoo a parallel action. 3en. Esperon 'anifested his resolve to provide the CA "ith 'aterial results of the investi6ation= to continue "ith the probe on the alle6ed abduction of +ourdes and to brin6 those responsi ble, includin6 'ilitar- personnel, to the bar of ustice "hen "arranted b- the findin6s and the co'petent evidence that $
'a- be 6athered in the investi6ation process b- those 'andated to loo into the 'atter= (. P>Dir. 3en. Ra?on 2 stated that an investi6ation he i''ediatel- ordered upon receivin6 a cop- of the petition is on26oin6 vis2F2vis +ourdes< abduction, and that a bac6round verification "ith the PNP Personnel Accountin6 and Infor'ation -ste' disclosed that the na'es antana, Alfaro, Cuares'a and one onathan do not appear in the police personnel records, althou6h the PNP files carr- the na'e of Dar"in Re-es G. Mu6a. Per the initial investi6ation report of the Das'ari:as 'unicipal police station, P>Dir. 3en. Ra?on disclosed, +ourdes "as abducted b- si@ ar'ed 'en in the afternoon of April /, (005 and dra66ed aboard a 4o-ota Revo "ith plate nu'ber HRR #(, "hich plate "as issued for a Mitsubishi van to A Cotta6e Industr- "ith address at % A'sterda' t., Merville ubd., Para:a8ue Cit-. 4he person residin6 in the apart'ent on that 6iven address is one Darius>Er"in ee Darius Re-es alle6edl- "orin6, per the latter
Dir. 3en. Ra?on, ho"ever, be'oaned the fact that Mrs. Rubrico never contacted nor coordinated "ith the local police or other investi6atin6 units of the PNP after her release, althou6h she is in the best position to establish the identit- of her abductors and>or provide positive description throu6h co'posite setchin6. Nonetheless, he 'anifested that the PNP is read- to assist and protect the petitioners and the e- "itnesses fro' threats, harass'ents and inti'idation fro' "hatever source and, at the sa'e ti'e, to assist the Court in the i'ple'entation of its orders.J1avvphi1 /. P>upt. Ro8uero stated conductin6, upon receipt of +ourdes< co'plaint, an investi6ation and sub'ittin6 the correspondin6 report to the PNP Calabar?on, observin6 that neither +ourdes nor her relatives provided the police "ith relevant infor'ation= #. P>Insp. 3o'e? alle6ed that +ourdes, her in and "itnesses refused to cooperate "ith the investi6atin6 Cavite PNP= and $. !verall Deput- !'buds'an !rlando Casi'iro 2 alle6ed that cases for violation of Articles (J5 and 1(#, or idnappin6 and arbitrar- detention, respectivel-, have been filed "ith, and are under preli'inarinvesti6ation b- the !MB a6ainst those believed to be involved in +ourdes< idnappin6= that upon receipt of the petition for a "rit of amparo, proper coordination "as 'ade "ith the !ffice of the Deput!'buds'an for the Militar- and other +a" Enforce'ent !ffices )M!+E!* "here the subect cri'inal and ad'inistrative co'plaints "ere filed.
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Co''entin6 on the return, petitioners pointed out that the return "as no 'ore than a 6eneral denial of aver'ents in the petition. 4he-, thus, pleaded to be allo"ed to present evidence ex parte a6ainst the President, antana, Alfaro, Capt. Cuares'a, Dar"in -, and onathan. And "ith leave of court, the- also ased to serve notice of the petition throu6h publication, o"in6 to their failure to secure the current address of the latter five and thus sub'it, as the CA re8uired, proof of service of the petition on the'. 4he hearin6 started on Nove'ber 1/, (005. 5 In that settin6, petitioners< counsel pra-ed for the issuance of a te'porar- protection order )4P!* a6ainst the ans"erin6 respondents on the basis of the alle6ations in the petition. At the hearin6 of Nove'ber (0, (005, the CA 6ranted petitioners< 'otion that the petition and "rit be served b- the courtRe-es, antana, Alfaro, Capt. Cuares'a, and onathan. 4he le6al sir'ishes that follo"ed over the propriet- of e@cludin6 President Arro-o fro' the petition, petitioners< 'otions for service b- publication, and the issuance of a 4P! are not of decisive pertinence in this recital. 4he botto' line is that, b- separate resolutions, the CA dropped the President as respondent in the case= denied the 'otion for a 4P! for the courtDir. 3en. Avelino Ra?on, upt. Ed6ar B. Ro8uero, P>r. Insp. Arsenio C. 3o'e? )ret.* and the !ffice of the !'buds'an.
Nevertheless, in order that petitioners< co'plaint "ill not end up as another unsolved case, the heads of the Ar'ed 9orces of the Philippines and the Philippine National Police are directed to ensure that the investi6ations alread- co''enced are dili6entl- pursued to brin6 the perpetrators to ustice. 4he Chief of taff of the Ar'ed 9orces of the Philippines and P>Dir. 3en. Avelino Ra?on are directed to re6ularlupdate petitioners and this Court on the status of their investi6ation. SO ORDERED.
In this recourse, petitioners for'ulate the issue for resolution in the follo"in6 "ise7 &E4ER !R N!4 the KCAL co''itted reversible error in dis'issin6 KtheirL Petition and droppin6 President 3loria Macapa6al Arro-o as part- respondent. Petitioners first tae issue on the President
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6overn'ent, albeit not e@pressl- reserved in the present constitution. Addressin6 a concern of his co2 'e'bers in the 1%J Constitutional Co''ission on the absence of an e@press provision on the 'atter, 9r. oa8uin Bernas, .. observed that it "as alread- understood in urisprudence that the President 'anot be sued durin6 his or her tenure .% 4he Court subse8uentl- 'ade it abundant l- clear in David v. Macapagal-Arroyo, a case lie"ise resolved under the u'brella of the 1%5 Constitution, that indeed the President eno-s i''unit- durin6 her incu'benc-, and "h- this 'ust be so7 ettled is the doctrine that the President, durin6 his tenure of office or actual incu'benc-, 'a- not be sued in an- civil or cri'inal case, and there is no need to provide for it in the Constitution or la". It "ill de6rade the di6nit- of the hi6h office of the President, the ead of tate, if he can be dra66ed into court liti6ations "hile servin6 as such. 9urther'ore, it is i'portant that he be freed fro' an- for' of harass'ent, hindrance or distraction to enable hi' to full- attend to the perfor'ance of his official duties and functions. ;nlie the le6islative and udicial branch, onl- one constitutes the e@ecutive branch and an-thin6 "hich i'pairs his usefulness in the dischar6e of the 'an- 6reat and i'portant duties i'posed upon hi' b- the Constitution necessaril- i'pairs the operation of the 3overn'ent. 10 @ @ @ And lest it be overlooed, the petition is si'pl- bereft of an- alle6ation as to "hat specific presidential act or o'ission violated or threatened to violate petitioners< protected ri6hts. 4his brin6s us to the correctness of the assailed dis'issal of the petition "ith respect to 3en. Esperon, P>Dir. 3en. Ra?on, P>upt. Ro8uero, P>Insp. 3o'e?, and the !MB. None of the four individual respondents i''ediatel- referred to above has been i'plicated as bein6 connected to, let alone as bein6 behind, the alle6ed abduction and harass'ent of petitioner +ourdes. 4heir na'es "ere not even 'entioned in +ourdes< Sinumpaang Salaysay11 of April (005. 4he sa'e 6oes for the respectiveSinumpaang Salaysay and>or Karagdagang Sinumpaang Salaysay of ean1( and Maro-.1/ As e@plained b- the CA, 3en. Esperon and P>Dir. 3en. Ra?on "ere included in the case on the theorthat the-, as co''anders, "ere responsible for the unla"ful acts alle6edl- co''itted b- their subordinates a6ainst petitioners. 4o the appellate court, the privile6e of the "rit of a'paro 'ust be denied as a6ainst 3en. Esperon and P>Dir. 3en. Ra?on for the si'ple reason that petitioners have not presented evidence sho"in6 that those "ho alle6edl- abducted and ille6all- detained +ourdes and later threatened her and her fa'il- "ere, in fact, 'e'bers of the 'ilitar- or the police force. 4he t"o 6enerals, the CAInsp. 3o'e? of acts constitutin6 threats a6ainst Mar- o-. &hile in a 8ualified sense tenable, the dis'issal b- the CA of the case as a6ainst 3en. Esperon and P>Dir. 3en. Ra?on is incorrect if vie"ed a6ainst the bacdrop of the stated rationale underpinnin6 the
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assailed decision vis2F2vis the t"o 6enerals, i.e., co''and responsibilit-. 4he Court assu'es the latter stance o"in6 to the fact that co''and responsibilit-, as a concept defined, developed, and applied under international la", has little, if at all, bearin6 in a'paro proceedin6s. 4he evolution of the co''and responsibilit- doctrine finds its conte@t in the develop'ent of la"s of "ar and ar'ed co'bats. Accordin6 to 9r. Bernas, co''and responsibilit-, in its si'plest ter's, 'eans the responsibilit- of co''anders for cri'es co''itted b- subordinate 'e'bers of the ar'ed forces or other persons subect to their control in international "ars or do'estic conflict. 1# In this sense, co''and responsibilit- is properl- a for' of cri'inal co'plicit-. 4he a6ue Conventions of 1%05 adopted the doctrine of co''and responsibilit-,1$ foreshado"in6 the present2da- precept of holdin6 a superior accountable for the atrocities co''itted b- his subordinates should he be re'iss in his dut- of control over the'. As then for'ulated, co''and responsibilit- is a# o//o# o$e o /#$/4/$ua5 -r//#a5 5/ab/5/-, "hereb- the superior is 'ade responsible for -r/e -o/e$ b- his subordinates for failin6 to prevent or punish the perpetrators 1J )as opposed to cri'es he ordered*. 4he doctrine has recentl- been codified in the Ro'e tatute 15 of the International Cri'inal Court )ICC* to "hich the Philippines is si6nator-. ec. ( of the tatute i'poses individual responsibilit- on 'ilitarco''anders for cri'es co''itted b- forces under their control. 4he countr- is, ho"ever, not -et for'all- bound b- the ter's and provisions e'bodied in this treat-2statute, since the enate has -et to e@tend concurrence in its ratification. 1 &hile there are several pendin6 bills on co''and responsibilit-, 1% there is still no Philippine la" that provides for cri'inal liabilit- under that doctrine.(0 It 'a- plausibl- be contended that co''and responsibilit-, as le6al basis to hold 'ilitar->police co''anders liable for e@tra2le6al illin6s, enforced disappearances, or threats, 'a- be 'ade applicable to this urisdiction on the theor- that the co''and responsibilit- doctrine no" constitutes a principle of international la" or custo'ar- international la" in accordance "ith the incorporation clause of the Constitution.(1 till, it "ould be inappropriate to appl- to these proceedin6s the doctrine of co''and responsibilit-, as the CA see'ed to have done, as a for' of cri'inal co'plicit- throu6h o'ission, for individual respondents< cri'inal liabilit-, if there be an-, is be-ond the reach of a'paro. In other "ords, the Court does not rule in such proceedin6s on an- issue of cri'inal culpabilit-, even if incidentall- a cri'e or an infraction of an ad'inistrative rule 'a- have been co''itted. As the Court stressed in ecretar- of National Defense v. Manalo )Manalo*, (( the "rit of a'paro "as conceived to provide e@peditious and effective procedural relief a6ainst violations or threats of violation of the basic ri6hts to life, libert-, and securit- of persons= the correspondin6 a'paro suit, ho"ever, is not an action to deter'ine cri'inal 6uilt re8uirin6 proof be-ond reasonable doubt @ @ @ or ad'inistrative liabilitre8uirin6 substantial evidence that "ill re8uire full and e@haustive proceedin6s. (/ !f the sa'e tenor, and b- "a- of e@poundin6 on the nature and role of a'paro, is "hat the Court said in a!on v. "agitis7 It does not deter'ine 6uilt nor pinpoint cri'inal culpabilit- for the disappearance Kthreats thereof or e@tra2udicial illin6sL= it deter'ines responsibilit-, or at least accountabilit-, for the enforced disappearance Kthreats thereof or e@tra2udicial illin6sL for purposes of i'posin6 the appropriate re'edies to address the disappearance Kor e@tra2udicial illin6sL. @@@@
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As the la" no" stands, e@tra2udicial illin6s and enforced disappearances in this urisdiction are not cri'es penali?ed separatel- fro' the co'ponent cri'inal acts undertaen to carr- out these illin6s and enforced disappearances and are no" penali?ed under the Revised Penal Code and special la"s. 4he si'ple reason is that the +e6islature has not spoen on the 'atter= the deter'ination of "hat acts are cri'inal @ @ @ are 'atters of substantive la" that onl- the +e6islature has the po"er to enact.(# @ @ @ If co''and responsibilit- "ere to be invoed and applied to these proceedin6s, it should, at 'ost, be onl- to deter'ine the author "ho, at the first instance, is accountable for, and has the dut- to address, the disappearance and harass'ents co'plained of, so as to enable the Court to devise re'edial 'easures that 'a- be appropriate under the pre'ises to protect ri6hts covered b- the "rit of a'paro. As inti'ated earlier, ho"ever, the deter'ination should not be pursued to fi@ cri'inal liabilit- on respondents preparator- to cri'inal prosecution, or as a prelude to ad'inistrative disciplinar- proceedin6s under e@istin6 ad'inistrative issuances, if there be an-. Petitioners, as the CA has declared, have not adduced substantial evidence pointin6 to 6overn'ent involve'ent in the disappearance of +ourdes. 4o a concrete point, petitioners have not sho"n that the actual perpetrators of the abduction and the harass'ents that follo"ed for'all- or infor'all- for'ed part of either the 'ilitar- or the police chain of co''and. A preli'inar- police investi6ation report, ho"ever, "ould tend to sho" a lin, ho"ever ha?-, bet"een the license plate )HRR #(* of the vehicle alle6edl- used in the abduction of +ourdes and the address of Dar"in Re-es>-, "ho "as alle6ed to be "orin6 in Ca'p A6uinaldo.($ 4hen, too, there "ere affidavits and testi'onies on events that transpired "hich, if taen to6ether, lo6icall- point to 'ilitar- involve'ent in the alle6ed disappearance of +ourdes, such as, but not li'ited to, her abduction in broad da-li6ht, her bein6 forcibl- dra66ed to a vehicle blindfolded and then bein6 brou6ht to a place "here the sounds of planes tain6 off and landin6 could be heard. Mention 'a- also be 'ade of the fact that +ourdes "as ased about her 'e'bership in the Co''unist Part- and of bein6 released "hen she a6reed to beco'e an asset. till and all, the identities and lins to the A9P or the PNP of the alle6ed abductors, na'el- Cuares'a, Alfaro, antana, onathan, and ->Re-es, have -et to be established. Based on the separate s"orn state'ents of Ma. Paul Ciano (J and 4echnical er6eant ohn N. Ro'ano,(5officer2in2char6e and a staff of the /01st AI, respectivel-, none of the alle6ed abductors of +ourdes belon6ed to the /01st AI based in an 9ernando Air Base. Neither "ere the- 'e'bers of anunit of the Philippine Air 9orce, per the certification ( of Col. Raul Di'atactac, Air 9orce Adutant. And as stated in the challen6ed CA decision, a verification "ith the Personnel Accountin6 and Infor'ation -ste' of the PNP -ielded the infor'ation that, e@cept for a certain Dar"in Re-es - Mu6a, the other alle6ed abductors, i.e., Cuares'a, Alfaro, antana and onathan, "ere not 'e'bers of the PNP. Petitioners, "hen 6iven the opportunit- to identif- Police !fficer 1 Dar"in Re-es - Mu6a, 'ade no effort to confir' if he "as the sa'e Ma. Dar"in Re-es a..a. Dar"in - the- "ere i'plicatin6 in +ourdes< abduction. Petitioners, to be sure, have not successfull- controverted ans"erin6 respondents< docu'entarevidence, adduced to debun the for'erRe-es "as an NBI a6ent. (% 4he Court is, of course, a"are of "hat "as referred to in Ra?on /0 as the evidentiar- difficulties presented b- the nature of, and
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encountered b- petitioners in, enforced disappear ance cases. But it is precisel- for this reason that the Court should tae care too that no "ron6 'essa6e is sent, lest one conclude that an- ind or de6ree of evidence, even the outlandish, "ould suffice to secure a'paro re'edies and protection. ec. 15, as co'ple'ented b- ec. 1 of the A'paro Rule, e@pressl- prescribes the 'ini'u' evidentiarsubstantiation re8uire'ent and nor' to support a cause of action under the Rule, thus7 ec. 15. Burden of Proof and tandard of Dili6ence Re8uired.4he parties shall establish their clai's b- substantial evidence. @@@@ ec. 1. ud6'ent.@ @ @ If the alle6ations in the petition are proven b- substantial evidence, the court shall 6rant the privile6e of the "rit and such reliefs as 'a- be proper and appropriate= other"ise, the privile6e shall be denied. )E'phasis added.* ubstantial evidence is 'ore than a 'ere i'putation of "ron6doin6 or violation that "ould "arrant a findin6 of liabilit- a6ainst the person char6ed= /1 it is 'ore than a scintilla of evidence. It 'eans such a'ount of relevant evidence "hich a reasonable 'ind 'i6ht accept as ade8uate to support a conclusion, even if other e8uall- reasonable 'inds 'i6ht opine other"ise. /( Per the CADir. 3en. Ra?on, per their separate affidavits, lost no ti'e, upon their receipt of the order to 'ae a return on the "rit, in issuin6 directives to the concerned units in their respective co''ands for a thorou6h probe of the case and in providin6 the investi6ators the necessar- support. As of this date, ho"ever, the investi6ations have -et to be concluded "ith so'e definite findin6s and reco''endation. As re6ards P>upt. Ro'ero and P>Insp. 3o'e?, the Court is 'ore than satisfied that the- have no direct or indirect hand in the alle6ed enforced disappearance of +ourdes and the threats a6ainst her dau6hters. As police officers, thou6h, theirs "as the dut- to thorou6hl- investi6ate the abduction of +ourdes, a dutthat "ould include looin6 into the cause, 'anner, and lie details of the disappearance= identif-in6 "itnesses and obtainin6 state'ents fro' the'= and follo"in6 evidentiar- leads, such as the 4o-ota Revo vehicle "ith plate nu'ber HRR #(, and securin6 and preservin6 evidence related to the abduction and the threats that 'a- aid in the prosecution of the person>s responsible. As "e said in Manalo,// the ri6ht to securit-, as a 6uarantee of protection b- the 6overn'ent, is breached b- the superficial and one2 sidedhence, ineffectiveinvesti6ation b- the 'ilitar- or the police of reported cases under their urisdiction. As found b- the CA, the local police stations concerned, includin6 P>upt. Ro8uero and P>Insp. 3o'e?, did conduct a preli'inar- fact2findin6 on petitioners< co'plaint. 4he- could not, ho"ever, 'ae an- head"a-, o"in6 to "hat "as perceived to be the refusal of +ourdes, her fa'il-, and
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her "itnesses to cooperate. Petitioners< counsel, Att-. Re@ .M.A. 9ernande?, provided a plausible e@planation for his clients and their "itnesses< attitude, K4he-L do not trust the 6overn'ent a6encies to protect the'./# 4he difficult- arisin6 fro' a situation "here the part- "hose co'plicit- in e@tra2udicial illin6 or enforced disappearance, as the case 'a- be, is alle6ed to be the sa'e part- "ho investi6ates it is understandable, thou6h. 4he see'in6 reluctance on the part of the Rubricos or their "itnesses to cooperate ou6ht not to pose a hindrance to the police in pursuin6, on its o"n initiative, the investi6ation in 8uestion to its natural end. 4o repeat "hat the Court said in Manalo, the ri6ht to securit- of persons is a 6uarantee of the protection of oneInsp. 3o'e?. &ith the vie" "e tae of this incident, there is nothin6 concrete to support the char6e, save for Mar- o-r. 3o'e? )ret* co''itted a6ainst her or her 'other and sister, Mar- o- replied None /J i'ilarl-, there appears to be no basis for petitioners< alle6ations about the !MB failin6 to act on their co'plaint a6ainst those "ho alle6edl- abducted and ille6all- detained +ourdes. Contrar- to petitioners< contention, the !MB has taen the necessar- appropriate action on said co'plaint. As culled fro' the affidavit/5 of the Deput- !verall !'buds'a n and the oint affidavits / of the desi6nated investi6ators, all dated Nove'ber 5, (005, the !MB had, on the basis of said co'plaint, co''enced cri'inal /% and ad'inistrative#0 proceedin6s, doceted as !MB2P2C20520J0(2E and !MB2P2A 052$J52E, respectivel-, a6ainst Cuares'a, Alfaro, antana, onathan, and ->Re-es. 4he re8uisite orders for the sub'ission of counter2affidavits and verified position papers had been sent out. 4he privile6e of the "rit of a'paro, to reiterate, is a re'ed- available to victi's of e@tra2udicial illin6s and enforced disappearances or threats of si'ilar nature, re6ardless of "hether the perpetrator of the unla"ful act or o'ission is a public official or e'plo-ee or a private individual. At this uncture, it bears to state that petitioners have not provided the CA "ith the correct addresses of respondents Cuares'a, Alfaro, antana, onathan, and ->Re-es. 4he 'ailed envelopes containin6 the petition for a "rit of a'paro individuall- addressed to each of the' have all been returned unopened. And petitioners< 'otion interposed before the appellate court for notice or service via publication has not
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been acco'panied b- supportin6 affidavits as re8uired b- the Rules of Court. Accordin6l-, the appealed CA partial ud6'entdisposin6 of the underl-in6 petition for a "rit of a'paro "ithout )1* pronounce'ent as to the accountabilit-, or lac of it, of the four non2ans"erin6 respondents or )(* outri6ht dis'issal of the sa'e petition as to the'he"s to the prescription of ec. (0 of the A'paro Rule on archivin6 and revivin6 cases. #1 Parentheticall-, petitioners have also not furnished this Court "ith sufficient data as to "here the afore2na'ed respondents 'a- be served a cop- of their petition for revie". Apart fro' the fore6oin6 considerations, the petition did not alle6e ulti'ate facts as "ould lin the !MB in an- 'anner to the violation or threat of violation of the petitioners< ri6hts to life, libert-, or personal securit-. 4he privile6e of the "rit of a'paro is envisioned basicall- to protect and 6uarantee the ri6hts to life, libert-, and securit- of persons, free fro' fears and threats that vitiate the 8ualit- of this life. #( It is an e@traordinar- "rit conceptuali?ed and adopted in li6ht of and in response to the prevalence of e@tra2le6al illin6s and enforced disappearances. #/ Accordin6l-, the re'ed- ou6ht to be resorted to and 6ranted udiciousl-, lest the ideal sou6ht b- the A'paro Rule be diluted and under'ined b- the indiscri'inate filin6 of a'paro petitions for purposes less than the desire to secure a'paro reliefs and protection and>or on the basis of unsubstantiated alle6ations. In their petition for a "rit of a'paro, petitioners ased, as their 'ain pra-er, that the Court order the i'pleaded respondents to i''ediatel- desist fro' doin6 an- acts that "ould threaten or see' to threaten the securit- of the Petitioners and to desist fro' approachin6 Petitioners, @ @ @ their residences and offices "here the- are "orin6 under pain of conte'pt of KthisL Court. Petitioners, ho"ever, failed to adduce the threshold substantive evidence to establish the predicate facts to support their cause of action, i.e., the adverted harass'ents and threats to their life, libert-, or securit-, a6ainst respondin6 respondents, as responsible for the disappearance and harass'ents co'plained of. 4his is not to sa-, ho"ever, that petitioners< alle6ation on the fact of the abduction incident or harass'ent is necessarilcontrived. 4he realit- on the 6round, ho"ever, is that the 'ilitar- or police connection has not been ade8uatel- proved either b- identif-in6 the 'alefactors as co'ponents of the A9P or PNP= or in case identification is not possible, b- sho"in6 that the- acted "ith the direct or indirect ac8uiescence of the 6overn'ent. 9or this reason, the Court is unable to ascribe the authorship of and responsibilit- for the alle6ed enforced disappearance of +ourdes and the harass'ent and threats on her dau6hters to individual respondents. 4o this e@tent, the dis'issal of the case a6ainst the' is correct and 'ust, accordin6l-, be sustained. Prescindin6 fro' the above considerations, the Court distinctl- notes that the appealed decision veritabl- e@tended the privile6e of the "rit of a'paro to petitioners "hen it 6ranted "hat to us are a'paro reliefs. Consider7 the appellate court decreed, and ri6htl- so, that the police and the 'ilitar- tae specific 'easures for the protection of petitioners< ri6ht or threatened ri6ht to libert- or securit-. 4he protection ca'e in the for' of directives specificall- to 3en. Esperon and P>Dir. 3en. Ra?on, re8uirin6 each of the' )1* to ensure that the investi6ations alread- co''enced b- the A9P and PNP units, respectivel-, under the' on the co'plaints of +ourdes and her dau6hters are bein6 pursued "ith ur6encto brin6 to ustice the perpetrators of the acts co'plained of= and )(* to sub'it to the CA, cop- furnished the petitioners, a re6ular report on the pro6ress and status of the investi6ations. 4he directives obviousl6o to 3en. Esperon in his capacit- as head of the A9P and, in a sense, chief 6uarantor of order and
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securit- in the countr-. !n the other hand, P>Dir. 3en. Ra?on is called upon to perfor' a dut- pertainin6 to the PNP, a cri'e2preventin6, investi6ator-, and arrestin6 institution. As the CA, ho"ever, for'ulated its directives, no definitive ti'e fra'e "as set in its decision for the co'pletion of the investi6ation and the reportorial re8uire'ents. It also failed to consider 3en. Esperon and P>Dir. 3en. Ra?onor o'issions subect of the cri'inal co'plaint and the a'paro petition are so lined as to call for the consolidation of both proceedin6s to obviate the 'ischief inherent in a 'ultiplicit-2of2suits situation. 3iven the above perspective and to full- appl- the beneficial nature of the "rit of a'paro as an ine@pensive and effective tool to protect certain ri6hts violated or threatened to be violated, the Court hereb- adusts to a de6ree the literal application of ecs. (( and (/ of the A'paro Rule to fittin6laddress the situation obtainin6 under the pre'ises. # 4o"ards this end, t"o thin6s are at once indicated7 )1* the consolidation of the probe and fact2findin6 aspects of the instant petition "ith the investi6ation of the cri'inal co'plaint before the !MB= and )(* the incorporation in the sa'e cri'inal co'plaint of the alle6ations in this petition bearin6 on the threats to the ri6ht to securit-. &ithal, the !MB should be furnished copies of the investi6ation reports to aid that bod- in its o"n investi6ation and eventual resolution of !MB2P2C2!520J0(2E. 4hen, too, the !MB shall be 6iven eas- access to all pertinent docu'ents and evidence, if an-, adduced before the CA. Necessaril-, +ourdes, as co'plainant in !MB2 P2C2!520J0(2E, should be allo"ed, if so 'inded, to a'end her basic cri'inal co'plaint if the
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consolidation of cases is to be full- effective. &ERE9!RE, the Court PAR4IA++G 3RAN4 this petition for revie" and 'aes a decision7 )1* Affir'in6 the droppin6 of President 3loria Macapa6al2Arro-o fro' the petition for a "rit of a'paro= )(* Affir'in6 the dis'issal of the a'paro case as a6ainst 3en. er'o6enes Esperon, and P>Dir. 3en. Avelino Ra?on, insofar as it tended, under the co''and responsibilit- principle, to attach accountabilitand responsibilit- to the', as then A9P Chief of taff and then PNP Chief, for the alle6ed enforced disappearance of +ourdes and the ensuin6 harass'ents alle6edl- co''itted a6ainst petitioners. 4he dis'issal of the petition "ith respect to the !MB is also affir'ed for failure of the petition to alle6e ulti'ate facts as to 'ae out a case a6ainst that bod- for the enforced disappearance of +ourdes and the threats and harass'ent that follo"ed= and )/* Directin6 the incu'bent Chief of taff, A9P, or his successor, and the incu'bent Director23eneral of the PNP, or his successor, to ensure that the investi6ations alread- co''enced b- their respective units on the alle6ed abduction of +ourdes Rubrico and the alle6ed harass'ents and threats she and her dau6hters "ere 'ade to endure are pursued "ith e@traordinar- dili6ence as re8uired b- ec. 15 #% of the A'paro Rule. 4he- shall order their subordinate officials, in particular, to do the follo"in67 )a* Deter'ine based on records, past and present, the identities and locations of respondents Ma. Dar"in -, a..a. Dar"in Re-es, i''- antana, Ruben Alfaro, Capt. An6elo Cuares'a, and one onathan= and sub'it certifications of this deter'ination to the !MB "ith cop- furnished to petitioners, the CA, and this Court= )b* Pursue "ith e@traordinar- dili6ence the evidentiar- leads relatin6 to Ma. Dar"in - and the 4o-ota Revo vehicle "ith Plate No. HRR #(= and )c* Prepare, "ith the assistance of petitioners and>or "itnesses, carto6raphic setches of respondents Ma. ->Re-es, i''- antana, Ruben Alfaro, Capt. An6elo Cuares'a, and a certain onathan to aid in positivel- identif-in6 and locatin6 the'. 4he investi6ations shall be co'pleted not later than si@ )J* 'onths fro' receipt of this Decision= and "ithin thirt- )/0* da-s after co'pletion of the investi6ations, the Chief of taff of the A9P and the Director23eneral of the PNP shall sub'it a full report of the results of the investi6ations to the Court, the CA, the !MB, and petitioners. 4his case is accordin6l- referred bac to the CA for the purpose of 'onitorin6 the investi6ations and the actions of the A9P and the PNP. ubect to the fore6oin6 'odifications, the Court A99IRM the partial ud6'ent dated ul- /1, (00 of the CA. ! !RDERED.
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PRESBTERO !. )EL"SCO, !R.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 1891&92
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May 31, 2011
1/
LT. COL. ROGELO BO"C, LT. COL. FELPE "NOT"DO "ND LT. FR"NCS MR"BELLE S"MSON,Petitioners, vs. Respondents. ERLND" T. C"D"P"N "ND CONCEPCON E. EMPE:O,
@ 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2@ G.R. No. 18;<
Petitioners, ERLND" T. C"D"P"N "ND CONCEPCON E. EMPE:O, vs. GEN. 'ERMOGENES ESPERON, P(DR.GEN. ")ELNO R"*ON, =RET.> GEN. ROMEO TOLENTNO, =RET.> GEN. !O)TO P"LP"R"N, LT. COL. ROGELO BO"C, LT. COL. FELPE "NOT"DO, ET "L.,Respondents. @ 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2@ G.R. No. 18710;
Petitioners, ERLND" T. C"D"P"N "ND CONCEPCON E. EMPE:O, vs. GLOR" M"C"P"G"L&"RRO%O, GEN. 'ERMOGENES ESPERON, P(DR.GEN. ")ELNO R"*ON, =RET.> GEN. ROMEO TOLENTNO, =RET.> GEN. !O)TO P"LP"R"N, LT. COL. ROGELO BO"C, LT. COL. FELPE "NOT"DO, DON"LD C"G"S, ".?.". "L"N OR Respondents. "L)N, "RNEL ENRUE* "ND LT. FR"NCS MR"BELLE S"MSON, DECII!N C"RPO MOR"LES, J.:
At (700 a.'. of une (J, (00J, ar'ed 'en abducted herl-n Cadapan )herl-n*, aren E'pe:o )aren* and Manuel Merino )Merino* fro' a house in an Mi6uel, a6ono-, Bulacan. 4he three "ere herded onto a eep bearin6 license plate R49 $%5 that sped to"ards an undisclosed location. avin6 thereafter heard nothin6 fro' herl-n, aren and Merino, their respective fa'ilies scoured nearb- police precincts and 'ilitar- ca'ps in the hope of findin6 the' but the sa'e -ielded nothin6. !n ul- 15, (00J, spouses Asher and Erlinda Cadapan and Concepcion E'pe:o filed a petition for habeas corpus 1 before the Court, doceted as 3.R. No. 15/((, i'pleadin6 then 3enerals Ro'eo 4olentino and ovito Palparan )3en. Palparan*, +t. Col. Ro6elio Boac )+t. Col. Boac*, Arnel Enri8ue? and +t. 9rancis Mirabelle a'son )+t. Mirabelle* as respondents. B- Resolution of ul- 1%, (00J, ( the Court issued a "rit of habeas corpus, returnable to the Presidin6 ustice of the Court of Appeals. 4he habeas corpus petition "as doceted at the appellate court as CA23.R. P No. %$/0/.
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B- Return of the &rit dated ul- (1, (00J, / the respondents in the habeas corpus petition denied that herl-n, aren and Merino are in the custod- of the 'ilitar-. 4o the Return "ere attached affidavits fro' the respondents, e@cept Enri8ue?, "ho all attested that the- do not no" herl-n, aren and Merino= that the- had in8uired fro' their subordinates about the reported abduction and disappearance of the three but their in8uir- -ielded nothin6= and that the 'ilitar- does not o"n nor possess a stainless steel eep "ith plate nu'ber R49 $%5. Also appended to the Return "as a certification fro' the +and 4ransportation !ffice )+4!* that plate nu'ber R49 $%5 had not -et been 'anufactured as of ul- (J, (00J. 4rial thereupon ensued at the appellate court. &itness &ilfredo Ra'os, o"ner of the house "here the three "ere abducted, recounted that on une (J, (00J, "hile he "as inside his house in a6ono-, he "itnessed ar'ed 'en "earin6 bonnets abduct herl-n and aren fro' his house and also abduct Merino on their "a- out= and that tied and blindfolded, the three "ere boarded on a eep and taen to"ards Iba in a6ono-.# &itness Alberto Ra'ire? )Ra'ire?* recalled that on une (, (00J, "hile he "as sleepin6 in his house, he "as a"aened b- Merino "ho, in the co'pan- of a 6roup of unidentified ar'ed 'en, repaired to his house= that onboard a stainless eep bearin6 plate nu'ber R49 $%5, he )Ra'ire?* "as taen to a place in Mercado, a6ono- and "as ased b- one Enri8ue? if he ne" ierra, 4an-a, Oincent and +isa= and that Enri8ue? described the appearance of t"o ladies "hich 'atched those of herl-n and aren, "ho' he "as fa'iliar "ith as the t"o had previousl- slept in his house.$ Another "itness, !scar +euterio, "ho "as hi'self previousl- abducted b- ar'ed 'en and detained for five 'onths, testified that "hen he "as detained in 9ort Ma6sa-sa- in Nueva Ecia, he sa" t"o "o'en fittin6 the descriptions of herl-n and aren, and also sa" Merino, his u'pare. J +t. Col. Boac, the then co''ander of 4as 9orce Malolos, a special operations tea' tased to neutrali?e the intelli6ence net"or of co''unists and other ar'ed 6roups, declared that he conducted an in8uiron the abduction of herl-n, aren and Merino but his subordinates denied no"led6e thereof.5 &hile he denied havin6 received an- order fro' 3en. Palparan to investi6ate the disappearance of herl-n, aren and Merino, his assistance in locatin6 the 'issin6 persons "as sou6ht b- the 'a-or of a6ono-. Maor Do'inador Din6le, the then division adutant of the Philippine Ar'-
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nor an- order to investi6ate the 'atter. And she denied no"in6 an-thin6 about the abduction of Ra'ire? nor "ho "ere a 4an-a or a +isa.10 3en. Palparan testified that durin6 a debate in a televised pro6ra', he 'entioned the na'es of a +isa and a 4an-a as the ones involved in revolutionar- ta@ activities= and that he ordered +t. Col. Boac to conduct an investi6ation on the disappearance of herl-n, aren and Merino. 11 &hen pressed to elaborate, he stated7 I said that I 6ot the report that it stated that it "as a 4an-a and a +isa that, I 'ean, that incident happened in a6ono-, Bulacan "as the abduction of a +isa and a 4an-a, Gour onor, and another one. 4hat "as the report co'in6 fro' the people in the area. 1( 1/
B- Decision of March (%, (005, the Court of Appeals dis'issed the habeas corpus petition in this "ise7 As herl-n Cadapan, aren E'pe:o and Manuel Merino are indeed 'issin6, the present petition for habeas corpus is not the appropriate re'ed- since the 'ain office or function of the habeas corpus is to in8uire into the le6alit- of one
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Durin6 the pendenc- of the 'otion for reconsideration in CA23.R. P No. %$/0/, Erlinda Cadapan and Concepcion E'pe:o filed before this Court a Petition for &rit of A'paro 1# &ith Pra-ers for Inspection of Place and Production of Docu'ents dated !ctober (#, (005, doceted as 3.R. No. 15%%%#. 4he petition i'pleaded the sa'e respondents in the habeas corpus petition, "ith the addition of then President 3loria Macapa6al2Arro-o, then Ar'ed 9orces of the Phil. )A9P* Chief of taff er'o6enes Esperon r., then Phil. National Police )PNP* Chief 3en. Avelino Ra?on )3en. Ra?on*, +t. Col. 9elipe Anotado )+t. Col. Anotado* and Donald Cai6as. 4hen President Arro-o "as eventuall- dropped as respondent in li6ht of her i''unit- fro' suit "hile in office. Petitioners in 3.R. No. 15%%%# also pra-ed that the- be allo"ed to inspect the detention areas of the follo"in6 places7 1. 5th Infantr- Division at 9ort Ma6sa-sa-, +aur, Nueva Ecia (. (#th Infantr- Batallion at +i'a-, Bataan /. Ar'- Detach'ent inside Oal'ocina 9ar', Pinaod, an Ildefonso, Bulacan #. Ca'p 4ecson, an Mi6uel, Bulacan $. 4he Resthouse of Donald Cai6as alias Allan or Alvin of the (#th Infantr- Batallion at Baran6aBano6, Bolinao, Pan6asinan
J. $Jth Infantr- Batallion ead8uarters at Iba, a6ono-, Bulacan 5. Ar'- Detach'ent at Baran6a- Mercado, a6ono-, Bulacan . Beach ouse KatL Iba, a'bales used as a safehouse "ith a retired 'ilitar- personnel as a caretaer= B- Resolution of !ctober ($, (005, the Court issued in 3.R. No. 15%%%# a "rit of a'paro returnable to the pecial 9or'er Eleventh Division of the appellate court, and ordered the consolidation of the a'paro petition "ith the pendin6 habeas corpus petition. Doceted as CA23.R. P No. 00(, respondents in the a'paro case, throu6h the olicitor 3eneral, filed their Return of the &rit on Nove'ber J, (005. 1$ In the Return, 3en. Palparan, +t. Col. Boac and +t. Mirabelle reiterated their earlier narrations in the habeas corpus case. 3en. er'o6enes Esperon r. stated in the Return that he i''ediatel- caused to investi6ate and verifthe identities of the 'issin6 persons and "as a"are of the earlier decision of the appellate court orderin6 the police, the Co''ission on u'an Ri6hts and the National Bureau of Investi6ation to tae further action on the 'atter.1J +t. Col. 9elipe Anotado, the then battalion co''ander of the (#th Infantr- Battalion based in Balan6a
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Cit-, Bataan, denied an- involve'ent in the abduction. &hile the (#th Infantr- Battalion detach'ent "as reported to be a detention site of the 'issin6 persons, +t. Col. Anotado clai'ed that he found no unto"ard incident "hen he visited said detach'ent. e also clai'ed that there "as no report of the death of Merino per his in8uir- "ith the local police.15 Police Director 3eneral Avelino Ra?on narrated that he ordered the co'pilation of pertinent records, papers and other docu'ents of the PNP on the abduction of the three, and that the police e@hausted all possible actions available under the circu'stances.1 In addition to the "itnesses alread- presented in the habeas corpus case, petitioners called on Adoracion Paulino and Ra-'ond Manalo to testif- durin6 the trial. Adoracion Paulino recalled that her dau6hter2in2la" herl-n sho"ed up at ho'e on April 11, (005, acco'panied b- t"o 'en and three "o'en "ho' she believed "ere soldiers. he averred that she did not report the incident to the police nor infor' herl-n
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Dito sa Ca'p 4ecson na'in6 nailala si Allan Alvin< )'a-a2'a-a nala'an na'in6 na si-a pala si Donald Cai6as*, n6 (#th IB, na tinata"a6 na 'aster< o co''ander< n6 an-an6 '6a tauhan. Pa6alipas n6 ( ara" 'atapos dalhi n si Re-naldo sa Ca'p 4ecs on du'atin6 sina aren E'pe:o at Manuel Merino na '6a biha6 din. Inila6a- si aren at Manuel sa "arto ni AllanK.L< a'i na'an ni Re-naldo a- nasa atabin6 "arto, asa'a si herl-n. @@@@ J(. @ @ @ @ a'in6 '6a lalae )ao, si Re-naldo at si Manuel* a- 6ina"an6 utusan, haban6 sina herl-n at aren a- 6ina"an6 labandera. i herl-n an6 pinahirapan nina Mice-, Donald at Bill-. abi ni herl-n sa ain na si-a<- 6inahasa. @@@@ J/. @ @ @ @ @@@@ a'in6 li'a )ao, si Re-naldo, si herl-n, si aren at si KMerinoL* an6 dinala sa +i'a-. inaa- ao, si Re-naldo, si herl-n at si KMerinoL sa isan6 stainless na eep. i aren a- isinaa- sa iti' na sasa-an ni Donald Cai6as. @ @ @ @ @@@@ JJ. aan pa a-o dinala 'ula sa +i'a-, BataanQ Mula sa +i'a-, a'in6 $ )ao, si Re-naldo, si herl-n, i aren at si Manuel* a- dinala sa isan6 safehouse sa a'bales, tabi n6 da6at. @ @ @ @ )underscorin6 supplied= italics and e'phasis in the ori6inal* !n rebuttal, +t. Col. Anotado and Col. Eduardo Bo-les Davalan "ere called to the "itness stand. +t. Col. Anotado denied seein6 or 'eetin6 Manalo. e posited that Manalo reco6ni?ed hi' because he "as ver- active in conductin6 lectures in Bataan and even appeared on television re6ardin6 an incident involvin6 the (#th Infantr- Batallion. e contended that it "as i'possible for Manalo, herl-n, aren and Merino to be detained in the +i'a- detach'ent "hich had no detention area. Col. Eduardo Bo-les Davalan, the then chief of staff of the 9irst cout Ran6er Re6i'ent in Ca'p 4ecson, testified that the ca'p is not a detention facilit-, nor does it conduct 'ilitar- operations as it onl- serves as a trainin6 facilit- for scout ran6ers. e averred that his re6i'ent does not have an-
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co''and relation "ith either the 5th Infantr- Division or the (#th Infantr- Battalion.(( B- Decision of epte'ber 15, (00 ,(/ the appellate court 6ranted the Motion for Reconsideration in CA2 3.R. P No. %$/0/ )the habeas corpus case* and ordered the i''ediate release of herl-n, aren and Merino in CA23.R. P No. 0000( )the a'paro case*. 4hus it disposed7 &ERE9!RE, in CA23.R. P N!. %$/0/ )abeas Corpus case*, the Motion for Reconsideration is 3RAN4ED. Accordin6l-, in both CA23.R. P N!. %$/0/ )abeas Corpus case* and in CA23.R. P N!. 0000( )A'paro case*, the respondents are thereb- ordered to i''ediatel- RE+EAE, or cause the release, fro' detention the persons of herKl-nL Cadapan, aren E'pe:o and Manuel Merino. Respondent Director 3eneral Avelino Ra?on is hereb- ordered to resu'e KtheL PNP
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Manalo. Indeed, Ca'p 4ecson has been utili?ed as a trainin6 ca'p for ar'- scout ran6ers. Even Ra-'ond Manalo noticed it but the ca'pResolution before the upre'e Court . @ @ @. Besides, the Court has no basis. 4he petitioners did not file a 'otion for e@ecution pendin6 appeal under ection ( of Rule /%. 4here bein6 no 'otion, the Court could not have issued, and did not issue, a "rit
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of e@ecution. @ @ @. )underscorin6 supplied* Oia a petition for certiorari filed on March /0, (00% before this Court, Erlinda Cadapan and Concepcion E'pe:o challen6ed the appellate court
unno"n. In 3.R. Nos. 1##J12J(, petitioners posit as follo"s7 I 4E C!;R4 !9 APPEA+ 3R!+G MIAPPRECIA4ED 4E OA+;E !9 4E 4E4IM!NG !9 RAGM!ND MANA+!. II 4E PE4I4I!NKL 9!R ABEA C!RP; AND &RI4 !9 AMPAR! !;+D BE DIMIED BECA;E REP!NDEN4 9AI+ED 4! PR!OE BG 4E RES;IRED S;AN4;M !9 EOIDENCE 4A4 PE4I4I!NER AOE ER+GN CADAPAN, AREN EMPE:! AND MAN;E+ MERIN! ARE IN 4EIR C;4!DG. III PE4I4I!NER< DENIA + PER E !;+D N!4 AOE BEEN 4AEN A3AIN4 4EM BECA;E 4EG DID N!4 REA++G AOE ANG INO!+OEMEN4 IN 4E A++E3ED ABD;C4I!N= M!RE!OER, 4E ;PP!ED INC!NI4ENCIE IN 4EIR 4E4IM!NIE ARE !N P!IN4 IRRE+EOAN4 4! 4E PE4I4I!N. IO 4E DIP!I4IOE P!R4I!N !9 4E AAI+ED DECII!N I OA3;E AND INC!N3R;EN4 &I4 4E 9INDIN3 !9 4E C!;R4 !9 APPEA+. O 4E C!;R4 !9 APPEA+ I3N!RED AND 9AI+ED 4! R;+E ;P!N 4E 9A4A+ PR!CED;RA+ IN9IRMI4IE IN 4E PE4I4I!N 9!R &RI4 !9 AMPAR!.(% In 3.R. No. 1##%$, petitioners posit as follo"s7
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$. 4he Court of Appeals erred in not 6rantin6 the Interi' Relief for Inspection of Places= J. 4he Court of Appeals erred in not 6rantin6 the Interi' Relief for Production of Docu'ents= 5. 4he Court of Appeals erred in not findin6 that the Police Director 3en. Avelino Ra?on did not 'ae e@traordinar- dili6ence in investi6atin6 the enforced disappearance of the a66rieved parties . 4he Court of Appeals erred in not findin6 that this "as not the co''and co'in6 fro' the hi6hest echelon of po"ers of the Ar'ed 9orces of the Philippines, Philippine Ar'- and the eventh InfantrDivision of the Philippine Ar'- to enforcibl- disappear KsicL the a66rieved parties %. 4he Court of Appeals erred in droppin6 President 3loria Macapa6al Arro-o as part- respondent in this case= 10. 4he Court of Appeals erred in not findin6 that President 3loria Macapa6al Arro-o had co''and responsibilit- in the enforced disappearance and continued detention of the three a66rieved parties 11. 4he Court of Appeals erred in not findin6 that the Ar'ed 9orces Chief of taff then er'o6enes Esperon and the Present Chief of taff as havin6 co''and responsibilit- in the enforced disappearance and continued detention of the three a66rieved parties/0 In 3.R. No. 1510%, petitioners raise the follo"in6 issues7 K1L &hether the decision in the Court of Appeals has beco'e final and [email protected] K(L &hetherthere is a need to file a 'otion for e@ecution in a abeas Corpus decision or in an A'paro decisionK.L K/L &hetheran appeal can sta- the decision of a abeas Corpus KcaseL KorL an A'paro caseK.L/1 Essentiall-, the consolidated petitions present three pri'ar- issues, vi? 7 a* "hether the testi'on- of Ra-'ond Manalo is credible= b* "hether the chief of the A9P, the co''andin6 6eneral of the Philippine Ar'-, as "ell as the heads of the concerned units had co''and responsibilit- over the abduction and detention of herl-n, aren and Merino= and c* "hether there is a need to file a 'otion for e@ecution to cause the release of the a66rieved parties. 3.R. Nos. 1##J12J( Petitioners +t. Col. Boac, et al. contend that the appellate court erred in 6ivin6 full credence to the testi'on- of Manalo "ho could not even accuratel- describe the structure s of Ca'p 4ecson "here he clai'ed to have been detained alon6 "ith herl-n, aren and Merino. 4he- underscore that Ca'p 4ecson is not under the urisdiction of the (#th Infantr- Batallion and that Manalo
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an ori6inal petition for Prohibition, Inunction and
(/
4e'porar- Restrainin6 !rder "hich "as treated as a petition under the A'paro Rule, said Rule havin6 taen effect durin6 the pendenc- of the petition, the Court ruled on the truthfulness and veracit- of the personal account of Manalo "hich included his encounter "ith herl-n, ara and Merino "hile on detention. 4hus it held7 &e affir' the factual findin6s of the appellate court, lar6el- based on respondent Ra-'ond Manalo
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ac8uainted "ith soldiers of the (#th Infantr- Battalion "hose na'es and descriptions he stated in his affidavit. !n Nove'ber ((, (00J, respondents, alon6 "ith herl-n, aren, and Manuel, "ere transferred to a ca'p of the (#th Infantr- Battalion in +i'a-, Bataan. 4here "ere 'an- huts in the ca'p. 4he- sta-ed in that ca'p until Ma- , (005. o'e soldiers of the battalion sta-ed "ith the'. &hile there, battalion soldiers "ho' Ra-'ond ne" as Mar and Bill- beat hi' up and hit hi' in the sto'ach "ith their 6uns. herl-n and aren also suffered enor'ous torture in the ca'p. 4he- "ere all 'ade to clean, coo, and help in raisin6 livestoc. Ra-'ond recalled that "hen !peration +ubo6 "as launched, Cai6as and so'e other soldiers brou6ht hi' and Manuel "ith the' to tae and ill all s-'pathi?ers of the NPA. 4he- "ere brou6ht to Baran6aBa-an2ba-anan, Bataan "here he "itnessed the illin6 of an old 'an doin6 ain6in. 4he soldiers said he "as illed because he had a son "ho "as a 'e'ber of the NPA and he coddled NPA 'e'bers in his house. Another ti'e, in another !peration +ubo6, Ra-'ond "as brou6ht to Baran6a- !rion in a house "here NPA 'en sta-ed. &hen the- arrived, onl- the old 'an of the house "ho "as sic "as there. 4he- spared hi' and illed onl- his son ri6ht before Ra-'ondor incon6ruent about the cate6orical order of the appell ate court for
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petitioners to release herl-n, aren and Merino. In its discourse, the appellate court 'erel- referred to a fe" 'is6uided self2ri6hteous people "ho resort to the e@traudicial process of neutrali?in6 those "ho disa6ree "ith the countr-
ection ( of the Rule on the &rit of A'paro provides7 4he petition 'a- be filed b- the a66rieved part- or b- an- 8ualified person or entit- in the follo"in6 order7 )a* An- 'e'ber of the i''ediate fa'il-, na'el-7 the spouse, children and parents of the a66rieved part-= )b* An- ascendant, descendant or collateral relative of the a66rieved part- "ithin the fourth civil de6ree of consan6uinit- or affinit-, in default of those 'entioned in the precedin6 para6raph= or )c* An- concerned citi?e n, or6ani?ation, association or institution, if there is no no"n 'e'ber of the i''ediate fa'il- or relative of the a66rieved part- . Indeed, the parents of herl-n and aren failed to alle6e that there "ere no no"n 'e'bers of the i''ediate fa'il- or relatives of Merino. 4he e@clusive and successive order 'andated b- the above2 8uoted provision 'ust be follo"ed. 4he order of priorit- is not "ithout reasonto prevent the indiscri'inate and 6roundless filin6 of petitions for a'paro "hich 'a- even preudice the ri6ht to life, libert- or securit- of the a66rieved part-./% 4he Court notes that the parents of herl-n and aren also filed the petition for habeas corpus on Merino
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de6rade the di6nit- of the hi6h office of the President, the ead of tate, if he can be dra66ed into court liti6ations "hile servin6 as such. 9urther'ore, it is i'portant that he be freed fro' an- for' of harass'ent, hindrance or distraction to enable hi' to full- attend to the perfor'ance of his official duties and functions. ;nlie the le6islative and udicial branch, onl- one constitutes the e@ecutive branch and an-thin6 "hich i'pairs his usefulness in the dischar6e of the 'an- 6reat and i'portant duties i'posed upon hi' b- the Constitution necessaril- i'pairs the operation of the 3overn'ent. @ @ @ #(
Parentheticall-, the petitions are bereft of an- alle6ation that then President Arro-o per'itted, condoned or perfor'ed an- "ron6doin6 a6ainst the three 'issin6 persons. !n the issue of "hether a 'ilitar- co''ander 'a- be held liable for the acts of his subordinates in an a'paro proceedin6, a brief discussion of the concept of co''and responsibilit- and its application insofar as a'paro cases alread- decided b- the Court is in order. Rubrico v. Macapa6al Arro-o#/ e@pounded on the concept of co''and responsibilit- as follo"s7 4he evolution of the co''and responsibilit- doctrine finds its conte@t in the develop'ent of la"s of "ar and ar'ed co'bats. Accordin6 to 9r. Bernas, co''and responsibilit-, in its si'plest ter's, 'eans the responsibilit- of co''anders for cri'es co''itted b- subordinate 'e'bers of the ar'ed forces or other persons subect to their control in international "ars or do'estic conflict. In this sense, co''and responsibilit- is properl- a for' of cri'inal co'plicit-. 4he a6ue Conventions of 1%05 adopted the doctrine of co''and responsibilit-, foreshado"in6 the present2da- precept of holdin6 a superior accountable for the atrocities co''itted b- his subordinates should he be re'iss in his dut- of control over the'. As then for'ulated, co''and responsibilit- is a# o//o# o$e o /#$/4/$ua5 -r//#a5 5/ab/5/y, "hereb- the superior is 'ade responsible for -r/e -o/e$ b- his subordinates for failin6 to prevent or punish the perpetrators )as opposed to cri'es he ordered*. )citations o'itted= e'phasis in the ori6inal= underscorin6 supplied* ## It bears stressin6 that co''and responsibilit- is properl- a for' of cri'inal co'plicit-, substantive rule that points to cri'inal or ad'inistrative liabilit-.
#$
and thus a
An a'paro proceedin6 is not cri'inal in nature nor does it ascertain the cri'inal liabilit- of individuals or entities involved. Neither does it partae of a civil or ad'inistrative suit. #J Rather, it is a re'edial 'easure desi6ned to direct specified courses of action to 6overn'ent a6encies to safe6uard the constitutional ri6ht to life, libert- and securit- of a66rieved individuals.#5 4hus Ra?on r. v. 4a6itis# enli6htens7 KAn a'paro proceedin6L does nor deter'ine 6uilt nor pinpoint cri'inal culpabilit- for the disappearance Kthreats thereof or e@traudicial illin6sL= it deter'ines responsibilit-, or at least accountabilit- , for the #% enforced disappearancefor of i'posin6 disappearance )e'phasis andpurposes underscorin6 supplied* the appropriate re'edies to address the
9urther, 4a6itis defines "hat constitutes responsibilit- and accountabilit-, vi?7
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@ @ @. Re6o#/b/5/y refers to the e@tent the actors have been established b- substantial evidence to have participated in "hatever "a-, b- action or o'ission, in an enforced disappearance, as a 'easure of the re'edies this Court shall craft, a'on6 the', the directive to file the appropriate cri'inal and civil cases a6ainst the responsible parties in the proper courts. "--ou#ab/5/y, on the other hand, refers to the 'easure of re'edies that should be addressed to those "ho e@hibited involve'ent in the enforced disappearance "ithout brin6in6 the level of their co'plicit- to the level of responsibilit- defined above= or "ho are i'puted "ith no"led6e relatin6 to the enforced disappearance and "ho carr- the burden of disclosure= or those "ho carr-, but have failed to dischar6e, the burden of e@traordinar- dili6ence in the investi6ation of the enforced disappearance . In all these cases, the issuance of the &rit of Amparo is ustified b- our pri'ar- 6oal of addressin6 the disappearance, so that the life of the victi' is preserved $0
and his libert- and securit- are restored. )e'phasis in the ori6inal= underscorin6 supplied* Rubrico cate6oricall- denies the application of co''and responsibilit- in a'paro cases to deter'ine cri'inal liabilit-.$1 4he Court 'aintains its adherence to this pronounce'ent as far as a'paro cases are concerned. Rubrico, ho"ever, reco6ni?es a preli'inar- -et li'ited application of co''and responsibilit- in a'paro cases to instances of deter'inin6 the responsible or accountable individuals or entities that are dut-2bound to abate an- trans6ression on the life, libert- or securit- of the a66rieved part-. If co''and responsibilit- "ere to be invoed and applied to these proceedin6s, it should, at 'ost, be onl- to deter'ine the author "ho, at the first instance, is accountable for, and has the dut- to address, the disappearance and harass'ents co'plained of, so as to enable the Court to devise re'edial 'easures that 'a- be appropriate under the pre'ises to protect ri6hts covered b- the "rit of a'paro. As inti'ated earlier, ho"ever, the deter'ination should not be pursued to fi@ cri'inal liabilit- on respondents preparator- to cri'inal prosecution, or as a prelude to ad'inistrative disciplinar- proceedin6s under e@istin6 ad'inistrative issuances, if there be an-.$( )e'phasis and underscorin6 supplied* In other "ords, co''and responsibilit- 'a- be loosel- applied in a'paro cases in order to identifthose accountable individuals that have the po"er to effectivel- i'ple'ent "hatever processes an a'paro court "ould issue. $/ In such application, the a'paro court does not i'pute cri'inal responsibilit- but 'erel- pinpoint the superiors it considers to be in the best position to protect the ri6hts of the a66rieved part-. uch identification of the responsible and accountable superiors 'a- "ell be a preli'inardeter'ination of cri'inal liabilit- "hich, of course, is still subect to further investi6ation b- the appropriate 6overn'ent a6enc-. $# Relatedl-, the le6islature ca'e up "ith Republic Act No. %$1 )RA %$1* to include co''and responsibilit- as a for' of cri'inal co'plicit- in cri'es a6ainst international hu'anitarian la", 6enocide and other cri'es .$$ RA %$1 is thus the substantive la" that definitivel- i'putes cri'inal liabilit- to those superiors "ho, despite their position, still fail to tae all necessar- and reasonable 'easures "ithin their po"er to prevent or repress the co''ission of ille6al acts or to sub'it these 'atters to the co'petent authorities for investi6ation and prosecution.
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4he Court finds that the appellate court erred "hen it did not specificall- na'e the respondents that it found to be responsible for the abduction and continued detention of herl-n, aren and Merino. 9or, fro' the records, it appears that the responsible and accountable individuals are +t. Col. Anotado, +t. Mirabelle, 3en. Palparan, +t. Col. Boac, Arnel Enri8ue? and Donald Cai6as . 4he- should thus be 'ade to co'pl- "ith the epte'ber 15, (00 Decision of the appellate court to IMMEDIA4E+G RE+EAE herl-n, aren and Merino. 4he petitions a6ainst 3eneral s Esperon, Ra?on and 4olentino should be dis'issed for lac of 'erit as there is no sho"in6 that the- "ere even re'otel- accountable and responsible for the abduction and continued detention of herl-n, aren and Merino. 3.R. No. 1510%. Contrar- to the rulin6 of the appellate court, there is no need to file a 'otion for e@ecution for an a'paro or habeas corpus decision. ince the ri6ht to life, libert- and securit- of a person is at stae, the proceedin6s should not be dela-ed and e@ecution of an- decision thereon 'ust be e@pedited as soon as possible since an- for' of dela-, even for a da-, 'a- eopardi?e the ver- ri6hts that these "rits see to i''ediatel- protect. 4he olicitor 3eneralor reassi6n'ent to other places of assi6n'ent of so'e of the respondents herein and in 3.R. No. 1##%$, the incu'bent co''andin6 6eneral of the 5th Infantr- Division and the incu'bent battalion co''ander
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of the (#th Infantr- Battalion, both of the Philippine Ar'-, are enoined to full- ensure the release of herl-n Cadapan, aren E'pe:o and Manuel Merino fro' detention. 1a%phi1 Respondents +t. Col. 9elipe Anotado, +t. 9rancis Mirabelle a'son, 3en. ovito Palparan, +t. Col. Ro6elio Boac, Arnel Enri8ue? and Donald Cai6as shall re'ain personall- i'pleaded in the petitions to ans"er for an- responsibilities and>or accountabilities the- 'a- have incurred durin6 their incu'bencies. +et copies of this Decision and the records of these cases be furnished the Depart'ent of ustice )D!*, the Philippine National Police )PNP* and the Ar'ed 9orces of the Philippines )A9P* for furth er investi6ation to deter'ine the respective cri'inal and ad'inistrative liabilities of respondents. All the present petitions are REMANDED to the Court of Appeals for appropriate action, directed at 'onitorin6 of the D!, PNP and A9P investi6ations and the validation of their results. ! !RDERED. CONC'T" C"RPO MOR"LES Associate ustice
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 1;180<
No4eber 1<, 2011
N T'E M"TTER OF T'E PETTON FOR T'E +RT OF "MP"RO "ND '"BE"S D"T" N Petitioner, F")OR OF NOREL '. RODRGUE*, NOREL '. RODRGUE*,
vs. GLOR" M"C"P"G"L&"RRO%O, GEN. )CTOR S. BR"DO, PDG !ESUS "ME )ERSO*", LT. GEN. DELFN B"NGT, M"!. GEN. NESTOR *. OC'O", P(CSUPT. "METO G. TOLENTNO, P(SSUPT. !UDE +. S"NTOS, COL. REMGO M. DE )ER", a# o/-er #ae$
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M"TUTN", LT. COL. MN", C"LOG, GEORGE P"L"CP"C u#$er e #ae @'"RR%,@ "NTONO CRU*, "LD+N @BONG@ P"SCOL"N a#$ )NCENT C"LL"G"N, Respondents.
@222222222222222222222222@ G.R. No. 1;3190 N T'E M"TTER OF T'E PETTON FOR T'E +RT OF "MP"RO "ND '"BE"S D"T" N F")OR OF NOREL '. RODRGUE*, POLCE DR. GEN. !ESUS ". )ERSO*", P(SSUPT. !UDE +. S"NTOS, BGEN. REMEGO M. DE )ER", 1 LT. R%"N S. M"TUTN", LT. COL. L"URENCE E. MN", "NTONO C. CRU*, "LD+N C. P"SCOL"N a#$ )CENTE ". C"LL"G"N, Petitioners, vs. NOREL '. RODRGUE*, Respondent.
DECII!N SERENO, J.:
Before this Court are t"o consolidated cases, na'el-, )1* Petition for Partial Revie" on Certiorari dated (0 April (010 )3.R. No. 1%10$*, and )(* Petition for Revie" on Certiorari dated 1% Au6ust (010 )3.R. No. 1%/1J0*.1Both Petitions assail the 1( April (010 Decision of the Court of Appeals, the dispositive portion of "hich reads7 &ERE9!RE, the petition for "rit of a'paro and "rit of habeas data is 3RAN4ED. Respondents 3en. Oictor . Ibrado, +t. 3en. Delfin Ban6it, Ma. 3en. Nestor . !choa, PCupt. A'eto 3. 4olentino, Pupt. ude &. antos, Col. Re'i6io M. De Oera, +t. Col. +aurence E. Mina and 1+t. R-an . Matutina, or their replace'ents in their official posts if the- have alread- vacated the sa'e, are !RDERED to furnish this Court "ithin five )$* da-s fro' notice of this decision, official or unofficial reports pertainin6 to petitioner coverin6 but not li'ited to intelli6ence reports, operation reports and provost 'arshal reports prior to, durin6 and subse8uent to epte'ber J, (00% 'ade b- the $th InfantrDivision, Philippine Ar'-, its branches and subsidiaries, includin6 the 15th Infantr- Battalion, Philippine Ar'-. 4he above2na'ed respondents are also DIREC4ED to refrain fro' usin6 the said reports in antransaction or operation of the 'ilitar-. Necessaril-, the afore2na'ed respondents are !RDERED to e@pun6e fro' the records of the 'ilitar- all docu'ents havin6 an- reference to petitioner. +ie"ise, the afore2na'ed respondents, as "ell as respondents Police Director 3eneral esus A'e Oerso?a, Antonio Cru?, Ald"in Pasicolan and Oicente Calla6an are DIREC4ED to ensure that no further violation of petitioner
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presidential i''unit- fro' suit. i'ilarl-, the petition is DIMIED "ith respect to respondents Calo6 and 3eor6e Palacpac or arr- for lac of 'erit. Petitionerupt.* ude &. antos, Bri6adier 3eneral )Bri6. 3en.* Re'e6io M. De Oera, 9irst +ieutenant )1st +t.* R-an . Matutina, +ieutenant Colonel )+t. Col.* +aurence E. Mina, Antonio C. Cru? )Cru?*, Ald"i n C. Pasicolan )Pasicolan* and Oicente A. Calla6an )Calla6an* are respondents in 3.R. No. 1%10$ and petitioners in 3.R. No. 1%/1J0. At the ti'e the events relevant to the present Petitions occurred, for'er President Arro-o "as the President of the Philippines. PD3. Oer?osa, P>upt. antos, Bri6. 3en. De Oera, 1st +t. Matutina and +t. Col. Mina "ere officers of the Philippine National Police )PNP*. Cru?, Pasicolan and Calla6an "ere pecial Investi6ators of the Co''ission on u'an Ri6hts )CR* in Re6ion II. Antecedent 9acts Rodri6ue? clai's that the 'ilitar- ta66ed MP as an ene'- of the tate under the !plan Banta- +a-a, 'ain6 its 'e'bers tar6ets of e@traudicial illin6s and enforced disappearances. ( !n J epte'ber (00%, at $700 p.'., Rodri6ue? had ust reached Baran6a- 4apel, Ca6a-an onboard a tric-cle driven b- er'ie Antonio Carlos )Carlos*, "hen four 'en forcibl- too hi' and forced hi' into a car. Inside the vehicle "ere several 'en in civilian clothes, one of "ho' "as holdin6 a .#$ caliber pistol. ubse8uentl-, three 'ore persons arrived, and one of the' carried a 6un at his side. 4"o 'en boarded the car, "hile the others rode on the tric-cle./ 4he 'en tied the hands of Rodri6ue?, ordered hi' to lie on his sto'ach, sat on his bac and started punchin6 hi'. 4he car travelled to"ards the direction of ta. 4eresita2Mission and 'oved around the area until about (700 a.'. Durin6 the drive, the 'en forced Rodri6ue? to confess to bein6 a 'e'ber of the Ne" People
hi' to sleep. In the 'ornin6 of 5 epte'ber (00%, the 'en tied the hands of Rodri6ue?, blindfolded hi' and 'ade hi' board a vehicle. &hile the- "ere in transit, the soldiers repeatedl- hit hi' in the head and
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threatened to ill hi'. &hen the car stopped after about ten 'inutes, the soldiers brou6ht hi' to a roo', re'oved his blindfold, and forced hi' to confess to bein6 a 'e'ber of the NPA. Durin6 the interro6ation, the soldiers repeatedl- hit hi' on the head. 4hereafter, he "as detained inside the roo' for the entire da-. 4he soldiers tied his sto'ach to a papag,and 6ave hi' rice and viand. 9earin6 that the food 'i6ht be poisoned, he refused to eat an-thin6. e slept on the papag "hile bein6 tied to it at the "aist.J !n epte'ber (00%, the 'en forced Rodri6ue? into a vehicle, "hich brou6ht the' to Bu6e- and Mission. &hile passin6 houses alon6 the "a-, the 'en ased hi' if his contacts lived in those houses. &hen he failed to ans"er, a soldier pointed a 6un to his head and threatened to ill hi' and his fa'il-. Because he re'ained silent, the soldiers beat hi' and tied hi' up. 4he vehicle returned to the 'ilitarca'p at past 1700 p.'., "here he "as a6ain subected to tactical interro6ation about the location of an NPA ca'p and his alle6ed NPA co'rades. e suffered incessant 'aulin6 ever- ti'e he failed to ans"er.5 At da"n on % epte'ber (00%, soldiers ar'ed "ith rifles too Rodri6ue? and 'ade hi' their 6uide on their "a- to an NPA ca'p in Birao. Acco'pan-in6 the' "as a 'an na'ed arr-, "ho, accordin6 to the soldiers, "as an NPA 'e'ber "ho had surrendered to the 'ilitar-. arr- pointed to Rodri6ue? and called hi' a 'e'ber of the NPA. e also heard arr- tell the soldiers that the latter ne" the area "ell and "as ac8uainted "ith a 'an na'ed Elvis. 4he soldiers loaded Rodri6ue? into a 'ilitar- truc and drove to 4abba, Bu6e-. &hile he "as "alin6 "ith the soldiers, he noticed a soldier "ith the na'e ta6 Matutina, "ho appeared to be an official because the other soldiers addressed hi' as sir. ;pon reachin6 Birao on foot, the soldiers looed for and "as able to locate a certain Elvis and told hi' that Rodri6ue? had identified his "hereabouts location. 4he soldiers forced Rodri6ue? to convince Elvis to disclose the location of the NPA ca'p. 4he- brou6ht the t"o to the 'ountains, "here both "ere threatened "ith death. &hen the soldiers punched Elvis, Rodri6ue? told the' that he "ould reveal the location of the NPA ca'p if the- let Elvis 6o ho'e. 4he- finall- released Elvis around /700 p.'. that da-. 4he soldiers and Rodri6ue? spent the ne@t three ni6hts in the 'ountains.% !n 1( epte'ber (00%, the soldiers a6ain hit Rodri6ue? and forced hi' to identif- the location of the NPA ca'p. e "as blindfolded and "arned to 6et read- because the- "ould beat hi' up a6ain in the 'ilitar- ca'p. ;pon arrival therein, the- brou6ht hi' to the sa'e roo' "here he had first been detained, and t"o soldiers 'auled hi' a6ain. 4he- repeatedl- punched and iced hi'. In the afternoon, the- let hi' rest and 6ave hi' an Ala@an tablet. 4hereafter, he fell asleep due to over2fati6ue and e@tre'e bod- pain. 4he soldiers, ho"ever, hit hi' a6ain. After 6ivin6 hi' a pen and a piece of paper, the- ordered hi' to "rite do"n his re8uest for rice fro' the people. &hen he refused, the soldiers 'altreated hi' once 'ore.10 !n 1/ epte'ber (00%, the soldiers forced Rodri6 ue? to si6n docu'ents declar in6 that he had surrendered in an encounter in Cu'ao, and that the soldiers did not shoot hi' because he beca'e a 'ilitar- asset in Ma-. &hen he refused to si6n the docu'ent, he received another beatin6. 4hus, he "as co'pelled to si6n, but did so usin6 a different si6nature to sho" that he "as 'erel- coerced.11
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4he soldiers sho"ed Rodri6ue? photo6raphs of different persons and ased hi' if he ne" the 'en appearin6 therein. &hen he told the' that he did not reco6ni?e the individuals on the photos, the soldiers instructed hi' to "rite do"n the na'e of his school and or6ani?ation, but he declined. 4he soldiers then "rote so'ethin6 on the paper, 'ain6 it appear that he "as the one "ho had "ritten it, and forced hi' to si6n the docu'ent. 4he soldiers too photo6raphs of hi' "hile he "as si6nin6. After"ards, the soldiers forced hi' do"n, held his hands, and sat on his feet. e did not onl- receive another beatin6, but "as also electrocuted. 4he torture lasted for about an hour.1( At 11700 p.'. on 1$ epte'ber (00%, the soldiers brou6ht Rodri6ue? to a 'ilitar- operation in the 'ountains, "here he sa" Matutina a6ain. 4he- all spent the ni6ht there. 1/ In the 'ornin6 of 1J epte'ber (00%, the soldiers and Rodri6ue? started their descent. &hen thestopped, the soldiers too his photo6raph and ased hi' to na'e the location of the NPA ca'p. 4hereafter, the- all returned to the 'ilitar- ca'p. 4he soldiers ased hi' to tae a bath and "ear a "hite polo shirt handed to hi'. e "as then brou6ht to the Enrile Medical Center, "here Dr. uliet Ra'il )Dr. Ra'il* e@a'ined hi'.1# &hen the doctor ased hi' "h- he had bruises and contusions, he lied and told her that he sustained the' "hen he slipped, as he noticed a soldier observin6 hi'. Dr. Ra'il
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Rodri6ue? and his fa'il- 'issed their fli6ht. ubse8uentl-, the soldiers acco'panied the' to the CR office, "here Rodri6ue? "as 'ade to si6n an affidavit statin6 that he "as neither abducted nor tortured. Afraid and desperate to return ho'e, he "as forced to si6n the docu'ent. Cru? advised hi' not to file a case a6ainst his abductors because the- had alread- freed hi'. 4he CR personnel then led hi' and his fa'il- to the CR 4o-ota 4a'ara" 9H service vehicle. e noticed that a vehicle "ith soldiers on board follo"ed the'.(1 4he 4a'ara" 9H pulled over and respondent 1st +t. Matutina boarded the vehicle. ;pon reachin6 a 'all in Isabela, Rodri6ue?, his fa'il-, Calla6an, 1st +t. Matutina and t"o other soldiers transferred to an oran6e 4o-ota Revo "ith plate nu'ber &43 $5%. ;pon reachin6 the boundar- of Nueva Ecia and Nueva Oisca-a, 1st +t. Matutina ali6hted and called Rodri6ue? to a diner. A certain Alan approached Rodri6ue? and handed hi' a cellphone "ith a IM card. 4he latter and his fa'il- then left and resu'ed their ourne- bac ho'e.(( Rodri6ue? reached his house in ta. Ana, Manila at /700 a.'. on 1 epte'ber (010. Calla6an and t"o soldiers "ent inside the house, and too photo6raphs and a video foota6e thereof. 4he soldiers e@plained that the photos and videos "ould serve as evidence of the fact that Rodri6ue? and his fa'il- "ere able to arrive ho'e safel-. Despite Rodri6ue?Cupt. 4olentino, P>upt. antos, Col. De Oera, 1st +t. Matutina, Calo6, 3eor6e Palacpac )Palacpac*, Cru?, Pasicolan and Calla6an. 4he petition pra-ed for the follo"in6 reliefs7 a. 4he issuance of the "rit of a'paro orderin6 respondents to desist fro' violatin6 Rodri6ue?
c. Allo"in6 the inspection of Ca6a-an the detention areas of the near ead8uarters of Bravo"as Co., $th InfantrDivision, Ma6uin6, 3on?a6a, and another place "here Rodri6ue? brou6ht. d. !rderin6 respondents to produce docu'ents sub'itted to the' re6ardin6 an- report on Rodri6ue?,
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includin6 operation reports and provost 'arshall reports of the $th Infantr- Division, the pecial !perations 3roup of the Ar'ed 9orces of the Philippines )A9P*, prior to, on and subse8uent to J epte'ber (00%.1&%phi1 e. !rderin6 records pertinent or in an- "a- connected to Rodri6ue?, "hich are in the custod- of respondents, to be e@pun6ed, disabused, and forever barred fro' bein6 used.(5 !n 1$ Dece'ber (00%, "e 6ranted the respective "rits after findin6 that the petition sufficientl- alle6ed that Rodri6ue? had been abducted, tortured and later released b- 'e'bers of the 15th Infantr- Battalion of the Philippine Ar'-.( &e lie"ise ordered respondents therein to file a verified return on the "rits on (%
or before (( Dece'ber (00% and to co''ent on the petition on or before # anuar- (010. 9inall-, "e directed the Court of Appeals to hear the petition on # anuar- (010 and decide on the case "ithin 10 da-s after its sub'ission for decision./0 Durin6 the initial hearin6 on # anuar- (010, the Court of Appeals re8uired the parties to sub'it affidavits and other pieces of evidence at the ne@t scheduled hearin6 on (5 anuar- (010./1 !n anuar- (010, respondents therein, throu6h the !ffice of the olicitor 3eneral )!3*, filed their Return of the &rit, "hich "as lie"ise considered as their co''ent on the petition. /( In their Return, respondents therein alle6ed that Rodri6ue? had surrendered to the 'ilitar- on ( Ma- (00% after he had been put under surveillance and identified as a Pepito b- for'er rebels. // Accordin6 to his 'ilitarhandlers, Corporal )Cpl.* Rodel B. Cabaccan and Cpl. ulius P. Navarro, Rodri6ue? "as a for'er 'e'ber of the NPA operatin6 in Ca6a-an Oalle-./# &antin6 to bolt fro' the NPA, he told Cpl. Cabaccan and Cpl. Navarro that he "ould help the 'ilitar- in e@chan6e for his protection./$ ;pon his voluntar- surrender on ( Ma- (00%, Rodri6ue? "as 'ade to si6n an !ath of +o-alt- and an A6entContract, sho"in6 his "illin6ness to return to societ- and beco'e a 'ilitar- asset. /J ince then, he acted as a double a6ent, returnin6 to the NPA to 6ather infor'ation. /5 o"ever, he feared that his NPA co'rades "ere be6innin6 to suspect hi' of bein6 an infiltrator./ 4hus, "ith his no"led6e and consent, the soldiers planned to sta6e a sha' abduction to erase an- suspicion about hi' bein6 a double a6ent./% ence, the abduction subect of the instant petition "as conducted.#0 Mean"hile, Cru?, Pasicolan and Calla6an filed a Consolidated Return of the &rit dated 1$ anuar(010,#1alle6in6 that the- had e@ercised e@traordinar- dili6ence in locatin6 Rodri6ue?, facilitatin6 his safe turnover to his fa'il- and securin6 their ourne- bac ho'e to Manila. More specificall-, thealle6ed that, on 1J epte'ber (00%, after &il'a sou6ht their assistance in ascertainin6 the "hereabouts of her son, Cru? 'ade phone calls to the 'ilitar- and la" enforce'ent a6encies to deter'ine his location.#( Cru? "as able to spea "ith +t. Col. Mina, "ho confir'ed that Rodri6ue? "as in their custod-.#/ 4his infor'ation "as trans'itted to CR Re6ional Director Att-. i''- P. Bali6a. e, in turn, ordered Cru?, Pasicolan and Calla6an to acco'pan- &il'a to the 15th Infantr- Division. ## &hen the CR officers, alon6 "ith &il'a and Rodel, arrived at the 15th Infantr- Battal ion at Masin, Alcala, Ca6a-an, Bri6ade Co''ander Col. de Oera and Battalion Co''ander +t. Col. Mina alle6ed
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that Rodri6ue? had beco'e one of their assets, as evidenced b- the u''ar- on the urrender of Noriel Rodri6ue? and the latter
and the rule on the "rit of habeas data. !n 1% Au6ust (010, PD3. Oer?osa, P>upt. antos, B3en. De Oera, 1st +t. Matutina, +t. Col. Mina, Cru?, Pasicolan and Calla6an filed a Petition for Revie" on Certiorari, seein6 the reversal of the 1(
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April (010 Decision of the Court of Appeals.$$ 4he- alle6ed that Rodri6ue? as not presented an- ade8uate and co'petent evidence, 'ust less substantial evidence, to establish his clai' that petitioners have violated, are violatin6 or threatenin6 "ith violation his ri6hts to life, libertand securit-, as "ell as his ri6ht to privac-= hence, he is not entitled to the privile6e of the "rits of a'paro and habeas data and their correspondin6 interi' reliefs )i.e., inspection order, production order and te'porar- protection order* provided under the Rule on the &rit of A'paro and the Rule on the &rit of abeas Data.$J In ascertainin6 "hether the Court of Appeals co''itted reversible error in issuin6 its assailed Decision and Resolution, the follo"in6 issues 'ust be resolved7 I. &hether the interi' reliefs pra-ed for b- Rodri6ue? 'a- be 6ranted after the "rits of a'paro and habeas data have alread- been issued in his favor. II. &hether for'er President Arro-o should be dropped as a respondent on the basis of the presidential i''unit- fro' suit. III. &hether the doctrine of co''and responsibilit- can be used in a'paro and habeas data cases. IO. &hether the ri6hts to life, libert- and propert- of Rodri6ue? "ere violated or threatened brespondents in 3.R. No. 1%10$. At the outset, it 'ust be e'phasi?ed that the "rits of a'paro and habeas data "ere pro'ul6ated to ensure the protection of the people
throu6h unla"ful 'eans in order to achieve As an independent re'edto protect the ri6ht to privac especialltheunla"ful ri6ht to ends. infor'ational privac- JJ and the su''arproceedin6s for the issuance of the "rit of habeas data does not entail an- findin6 of cri'inal, civil or ad'inistrative culpabilit-. If the alle6ations in the petition are proven throu6h substantial evidence, then the Court 'a-
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)a* 6rant access to the database or infor'ation= )b* enoin the act co'plained of= or )c* in case the database or infor'ation contains erroneous data or infor'ation, order its deletion, destruction or rectification.J5 9irst issue7 3rant of interi' reliefs In the petition in 3.R. No. 1%10$, Rodri6ue? pra-s for the issuance of a te'porar- protection order. It 'ust be underscored that this interi' relief is onl- available before final ud6'ent. ection 1# of the Rule on the &rit of A'paro clearl- provides7 Interi' Reliefs. ;pon filin6 of the petition or at an-ti'e before final ud6'ent, the court, ustice or ud6e 'a- 6rant an- of the follo"in6 reliefs7 4e'porar- Protection !rder. 4he court, ustice or ud6e, upon 'otion or 'otu proprio, 'a- order that the petitioner or the a66rieved part- and an- 'e'ber of the i''ediate fa'il- be protected in a 6overn'ent a6enc- or b- an accredited person or private institution capable of eepin6 and securin6 their safet-. If the petitioner is an or6ani?ation, association or institution referred to in ection /)c* of this Rule, the protection 'a- be e@tended to the officers involved. 4he upre'e Court shall accredit the persons and private institutions that shall e@tend te'porarprotection to the petitioner or the a66rieved part- and an- 'e'ber of the i''ediate fa'il-, in accordance "ith 6uidelines "hich it shall issue. 4he accredited persons and private institutions shall co'pl- "ith the rules and conditions that 'a- be i'posed b- the court, ustice or ud6e. )a* Inspection !rder. 4he court, ustice or ud6e, upon verified 'otion and after due hearin6, 'aorder an- person in possession or control of a desi6nated land or other propert-, to per'it entr- for the purpose of inspectin6, 'easurin6, surve-in6, or photo6raphin6 the propert- or an- relevant obect or operation thereon. 4he 'otion shall state in detail the place or places to be inspected. It shall be supported b- affidavits or testi'onies of "itnesses havin6 personal no"led6e of the enforced disappearance or "hereabouts of the a66rieved part-. If the 'otion is opposed on the 6round of national securit- or of the privile6ed nature of the infor'ation, the court, ustice or ud6e 'a- conduct a hearin6 in cha'bers to deter'ine the 'erit of the opposition. 4he 'ovant 'ust sho" that the inspection order is necessar- to establish the ri6ht of the a66rieved partalle6ed to be threatened or violated. 4he inspection order shall specif- the person or persons authori?ed to 'ae the inspection and the date, ti'e, place and 'anner of 'ain6 the inspection and 'a- prescribe other conditions to protect the constitutional ri6hts of all parties. 4he order shall e@pire five )$* da-s after the date of its issuance, unless e@tended for ustifiable reasons.
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)b* Production !rder. 4he court, ustice, or ud6e, upon verified 'otion and after due hearin6, 'aorder an- person in possession, custod- or control of an- desi6nated docu'ents, papers, boos, accounts, letters, photo6raphs, obects or tan6ible thin6s, or obects in di6iti?ed or electronic for', "hich constitute or contain evidence relevant to the petition or the return, to produce and per'it their inspection, cop-in6 or photo6raphin6 b- or on behalf of the 'ovant. 4he 'otion 'a- be opposed on the 6round of national securit- or of the privile6ed nature of the infor'ation, in "hich case the court, ustice or ud6e 'a- conduct a hearin6 in cha'bers to deter'ine the 'erit of the opposition. 4he court, ustice or ud6e shall prescribe other conditions to protect the constitutional ri6hts of all the parties. )c* &itness Protection !rder. 4he court, ustice or ud6e, upon 'otion or 'otu proprio, 'a- refer the "itnesses to the Depart'ent of ustice for ad'ission to the &itness Protection, ecurit- and Benefit Pro6ra', pursuant to Republic Act No. J%1. 4he court, ustice or ud6e 'a- also refer the "itnesses to other 6overn'ent a6encies, or to accredited persons or private institutions capable of eepin6 and securin6 their safet-. )E'phasis supplied* &e held in Gano v. anche?J that KtLhese provisional reliefs are intended to assist the court before it arrives at a udicious deter'ination of the a'paro petition. Bein6 interi' reliefs, the- can onl- be 6ranted before a final adudication of the case is 'ade. In an- case, it 'ust be underscored that the privile6e of the "rit of a'paro, once 6ranted, necessaril- entails the protection of the a66rieved part-. 4hus, since "e 6rant petitioner the privile6e of the "rit of a'paro, there is no need to issue a te'porarprotection order independentl- of the for'er. 4he order restrictin6 respondents fro' 6oin6 near Rodri6ue? is subsu'ed under the privile6e of the "rit. econd issue7 Presidential i''unit- fro' suit It bears stressin6 that since there is no deter'ination of ad'inistrative, civil or cri'inal liabilit- in a'paro and habeas data proceedin6s, courts can onl- 6o as far as ascertainin6 responsibilit- or accountabilit- for the enforced disappearance or e@traudicial illin6. As "e held in Ra?on v. 4a6itis7J% It does not deter'ine 6uilt nor pinpoint cri'inal culpabilit- for the disappearance= rather, it deter'ines responsibilit-, or at least accountabilit-, for the enforced disappearance for purposes of i'posin6 the appropriate re'edies to address the disappearance. Responsibilit- refers to the e@tent the actors have been established b- substantial evidence to have participated in "hatever "a-, b- action or o'ission, in an enforced disappearance, as a 'easure of the re'edies this Court shall craft, a'on6 the', the directive to file the appropriate cri'inal and civil cases a6ainst the responsible parties in the proper courts. Accountabilit-, on the other hand, refers to the 'easure of re'edies that should be addressed to those "ho e@hibited involve'ent in thedefined enforced disappearance brin6in6 the level relatin6 of their to co'plicitto the level of responsibilitabove= or "ho are"ithout i'puted "ith no"led6e the enforced disappearance and "ho carr- the burden of disclosure= or those "ho carr-, but have failed to dischar6e, the burden of e@traordinar- dili6ence in the investi6ation of the enforced disappearance. In
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all these cases, the issuance of the &rit of A'paro is ustified b- our pri'ar- 6oal of addressin6 the disappearance, so that the life of the victi' is preserved and his libert- and securit- are restored. )E'phasis supplied.*
50
4hus, in the case at bar, the Court of Appeals, in its Decision 51 found respondents in 3.R. No. 1%10$ "ith the e@ception of Calo6, Palacpac or arr- to be accountable for the violations of Rodri6ue?
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Mr. A8uino. !n another point, if an i'peach'ent proceedin6 has been filed a6ainst the President, for e@a'ple, and the President resi6ns before ud6'ent of conviction has been rendered b- the i'peach'ent court or b- the bod-, ho" does it affect the i'peach'ent proceedin6Q &ill it be necessaril- droppedQ Mr. Ro'ulo. If "e decide the purpose of i'peach'ent to re'ove one fro' office, then his resi6nation "ould render the case 'oot and acade'ic. o"ever, as the provision sa-s, the cri'inal and civil aspects of it 'a- continue in the ordinar- courts. 4his is in accord "ith our rulin6 in In Re7 aturnino Ber'ude? that incu'bent Presidents are i''une fro' suit or fro' bein6 brou6ht to court durin6 the period of their incu'benc- and tenure but not be-ond. @@@
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&e no" co'e to the scope of i''unit- that can be clai'ed b- petitioner as a non2sittin6 President. 4he cases filed a6ainst petitioner Estrada are cri'inal in character. 4he- involve plunder, briber- and 6raft and corruption. B- no stretch of the i'a6ination can these cri'es, especiall- plunder "hich carries the death penalt-, be covered b- the alle6ed 'antle of i''unit- of a non2sittin6 president. Petitioner cannot cite an- decision of this Court licensi n6 the President to co''it cri'inal acts and "rappin6 hi' "ith post2tenure i''unit- fro' liabilit-. It "ill be ano'alous to hold that i''unit- is an inoculation fro' liabilit- for unla"ful acts and o'issions. 4he rule is that unla"ful acts of public officials are not acts of the tate and the officer "ho acts ille6all- is not actin6 as such but stands in the sa'e footin6 as another trespasser. Indeed, a critical readin6 of current literature on e@ecutive i''unit- "ill reveal a udicial disinclination to e@pand the privile6e especiall- "hen it i'pedes the search for truth or i'pairs the vindication of a ri6ht. In the 1%5# case of ; v. Ni@on, ; President Richard Ni@on, a sittin6 President, "as subpoenaed to produce certain recordin6s and docu'ents relatin6 to his conversations "ith aids and advisers. even advisers of President Ni@onTs associates "ere facin6 char6es of conspirac- to obstruct ustice and other offenses "hich "ere co''itted in a bur6lar- of the De'ocratic National ead8uarters in &ashin6tonTs &ater6ate otel durin6 the 1%5( presidential ca'pai6n. President Ni@on hi'self "as na'ed an unindicted co2conspirator. President Ni@on 'oved to 8uash the subpoena on the 6round, a'on6 others, that the President "as not subect to udicial process and that he should first be i'peached and re'oved fro' office before he could be 'ade a'enable to udicial proceedin6s. 4he clai' "as reected b- the ; upre'e Court. It concluded that "hen the 6round for asser tin6 privile6e as to subpoenaed 'aterials sou6ht for use in a cri'inal trial is based onl- on the 6enerali?ed interest in confidentialit-, it cannot prevail over the funda'ental de'ands of due process of la" in the fair ad'inistration of cri'inal ustice. In the 1%( case of Ni@on v. 9it?6erald, the ; upre'e Court further held that the i''unitof the President fro' civil da'a6es covers onl- official acts. Recentl-, the ; upre'e Court had the occasion to reiterate this doctrine in the case of Clinton v. ones "here it held that the ; PresidentTs i''unitfro' suits for 'one- da'a6es arisin6 out of their official acts is inapplicable to unofficial conduct.5# )E'phasis supplied* 9urther, in our Resolution in Estrada v. Desierto, 5$ "e reiterated that the presidential i''unit- fro' suit e@ists onl- in concurrence "ith the president
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Mr. uare?. 4han -ou. 4he last 8uestion is "ith reference to the Co''itteeTs o'ittin6 in the draft proposal the i''unitprovision for the President. I a6ree "ith Co''issioner Nolledo that the Co''ittee did ver- "ell in striin6 out this second sentence, at the ver- least, of the ori6inal provision on i''unit- fro' suit under the 1%5/ Constitution. But "ould the Co''ittee 'e'bers not a6ree to a restoration of at least the first sentence that the president shall be i''une fro' suit durin6 his tenure, considerin6 that if "e do not provide hi' that ind of an i''unit-, he 'i6ht be spendin6 all his ti'e facin6 liti6ations, as the President2in2e@ile in a"aii is no" facin6 liti6ations al'ost dail-Q 9r. Bernas7 4he reason for the o'ission is that "e consider it understood in present urisprudence that durin6 his tenure he is i''une fro' suit. Mr. uare?7 o there is no need to e@press it here. 9r. Bernas7 4here is no need. It "as that "a- before. 4he onl- innovation 'ade b- the 1%5/ Constitution "as to 'ae that e@plicit and to add other thin6s. Mr. uare?7 !n the understandin6, I "ill not press for an- 'ore 8uer-, 'ada' President. I than the Co''issioner for the clarification. Petitioner, ho"ever, fails to distin6uish bet"een ter' and tenure. 4he ter' 'eans the ti'e durin6 "hich the officer 'a- clai' to hold the office as of ri6ht, and fi@es the interval after "hich the several incu'bents shall succeed one another. 4he tenure represents the ter' durin6 "hich the incu'bent actuall- holds office. 4he tenure 'a- be shorter than the ter' for reasons "ithin or be-ond the po"er of the incu'bent. 9ro' the deliberations, the intent of the fra'ers is clear that the i''unit- of the president fro' suit is concurrent onl- "ith his tenure and not his ter'.5J )E'phasis supplied* Appl-in6 the fore6oin6 rationale to the case at bar, it is clear that for'er President Arro-o cannot use the presidential i''unit- fro' suit to shield herself fro' udicial scrutin- that "ould assess "hether, "ithin the conte@t of a'paro proceedin6s, she "as responsible or accountable for the abduction of Rodri6ue?. 4hird issue7 Co''and responsibilit- in a'paro proceedin6s 4o attribute responsibilit- or accountabilit- to for'er President Arro-o, Rodri6ue? contends that the doctrine of co''and responsibilit- 'a- be applied. As "e e@plained in Rubrico v. Arro-o, 55 co''and
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responsibilit- pertains to the responsibilit- of co''anders for cri'es co''itted b- subordinate 'e'bers of the ar'ed forces or other persons subect to their control in international "ars or do'estic conflict.5 Althou6h ori6inall- used for ascertainin6 cri'inal co'plicit-, the co''and responsibilitdoctrine has also found application in civil cases for hu'an ri6hts abuses. 5% In the ;nited tates, for e@a'ple, co''and responsibilit- "as used in 'ord v. (arciaand omago!a v. (arcia civil actions filed under the Alien 4ort Clai's Act and the 4orture Oicti' Protection Act. 0 4his develop'ent in the use of co''and responsibilit- in civil proceedin6s sho"s that the application of this doctrine has been liberall- e@tended even to cases not cri'inal in nature. 4hus, it is our vie" that co''and responsibilit'a- lie"ise find application in proceedin6s seein6 the privile6e of the "rit of a'paro. As "e held in ubrico7 It 'a- plausibl- be contended that co''and responsibilit-, as le6al basis to hold 'ilitar->police co''anders liable for e@tra2le6al illin6s, enforced disappearances, or threats, 'a- be 'ade applicable to this urisdiction on the theor- that the co''and responsibilit- doctrine no" constitutes a principle of international la" or custo'ar- international la" in accordance "ith the incorporation clause of the Constitution. @@@
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If co''and responsibilit- "ere to be invoed and applied to these proceedin6s, it should, at 'ost, be onl- to deter'ine the author "ho, at the first instance, is accountable for, and has the dut- to address, the disappearance and harass'ents co'plained of, so as to enable the Court to devise re'edial 'easures that 'a- be appropriate under the pre'ises to protect ri6hts covered b- the "rit of a'paro. As inti'ated earlier, ho"ever, the deter'ination should not be pursued to fi@ cri'inal liabilit- on respondents preparator- to cri'inal prosecution, or as a prelude to ad'inistrative disciplinar- proceedin6s under e@istin6 ad'inistrative issuances, if there be an-.1 )E'phasis supplied.* Precisel- in the case at bar, the doctrine of co''and responsibilit- 'a- be used to deter'ine "hether respondents are accountable for and have the dut- to address the abduction of Rodri6ue? in order to enable the courts to devise re'edial 'easures to protect his ri6hts. Clearl-, nothin6 precludes this Court fro' appl-in6 the doctrine of co''and responsibilit- in a'paro proceedin6s to ascertain responsibilitand accountabilit- in e@traudicial illin6s and enforced disappearances. In this re6ard, the eparate !pinion of ustice Conchita Carpio2Morales in ubrico is "orth notin6, thus7 4hat proceedin6s under the Rule on the &rit of A'paro do not deter'ine cri'inal, civil or ad'inistrative liabilit- should not abate the applicabilit- of the doctrine of co''and responsibilit-. 4ain6 ecretar- of National Defense v. Manalo and Ra?on v. 4a6itis in proper conte@t, the- do not preclude the application of the doctrine of co''and responsibilit- to A'paro cases. Manalo "as actuall- e'phatic on the i'portance of the ri6ht to securit- of person and its conte'porarsi6nification as a 6uarantee of protection of oneor their fa'ilies, and brin6in6 offenders to the bar of ustice.
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4a6itis, on the other hand, cannot be 'ore cate6orical on the application, at least in principle, of the doctrine of co''and responsibilit-7 3iven their 'andates, the PNP and PNP2CID3 officials and 'e'bers "ere the ones "ho "ere re'iss in their duties "hen the 6overn'ent co'pletel- failed to e@ercise the e@traordinar- dili6ence that the A'paro Rule re8uires. &e hold these or6ani?ations accountable throu6h their incu'bent Chiefs "ho, under this Decision, shall carr- the personal responsibilit- of seein6 to it that e@traordinar- dili6ence, in the 'anner the A'paro Rule re8uires, is applied in addressin6 the enforced disappearance of 4a6itis. Neither does Republic Act No. %$1 e'asculate the applicabilit- of the co''and responsibilit- doctrine to A'paro case s. 4he short tit le of the la" is the )*hilippine Act on +rimes Against nternational umanitarian a%, (enocide, and /ther +rimes Against umanity.) !bviousl-, it should, as it did, onltreat of superior responsibilit- as a 6round for cri'inal responsibilit- for the cri'es covered.http7>>""".la"phil.net>uduris>uri(010>feb(010>6rU1/51U(010.ht'l 2 fnt(0c' uch li'ited treat'ent, ho"ever, is 'erel- in eepin6 "ith the statuteDir. 3en. Avelino Ra?on accountable under the co''and responsibilitdoctrine, the ponencia
ubrico cate6oricall- denies the application of co''and responsibilit- in amparo cases to deter'ine cri'inal liabilit-. 4he Court 'aintains its adherence to this pronounce'ent as far as amparo cases are concerned. Rubrico, ho"ever, reco6ni?es a preli'inar- -et li'ited application of co''and responsibilit- in a'paro cases to instances of deter'inin6 the responsible or accountable individuals or entities that are dut-2bound to abate an- trans6ression on the life, libert- or securit- of the a66rieved part-. If co''and responsibilit- "ere to be invoed and applied to these proceedin6s, it should, at 'ost, be onl- to deter'ine author "ho, at the firstof, instance, accountable for, to and has the dut- to'easures address, the disappearance andthe harass'ents co'plained so as toisenable the Court devise re'edial that 'a- be appropriate under the pre'ises to protect ri6hts covered b- the "rit of a'paro. As inti'ated earlier, ho"ever, the deter'ination should not be pursued to fi@ cri'inal liabilit- on respondents
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preparator- to cri'inal prosecution, or as a prelude to ad'inistrative disciplinar- proceedin6s under e@istin6 ad'inistrative issuances, if there be an-. In other "ords, co''and responsibilit- 'a- be loosel- applied in a'paro cases in order to identifthose accountable individuals that have the po"er to effectivel- i'ple'ent "hatever processes an a'paro court "ould issue. In such application, the a'paro court does not i'pute cri'inal responsibilitbut 'erel- pinpoint the superiors it considers to be in the best position to protect the ri6hts of the a66rieved part-. uch identification of the responsible and accountable superiors 'a- "ell be a preli'inardeter'ination of cri'inal liabilit- "hich, of course, is still subect to further investi6ation b- the appropriate 6overn'ent a6enc-. )E'phasis supplied.* As earlier pointed out, a'paro proceedin6s deter'ine )a* responsibilit-, or the e@tent the actors have been established b- substantial evidence to have participated in "hatever "a-, b- action or o'ission, in an enforced disappearance, and )b* accountabilit-, or the 'easure of re'edies that should be addressed to those )i* "ho e@hibited involve'ent in the enforced disappearance "ithout brin6in6 the level of their co'plicit- to the level of responsibilit- defined above= or )ii* "ho are i'puted "ith no"led6e relatin6 to the enforced disappearance and "ho carr- the burden of disclosure= or )iii* those "ho carr-, but have failed to dischar6e, the burden of e@traordinar- dili6ence in the investi6ation of the enforced disappearance. 4hus, althou6h there is no deter'ination of cri'inal, civil or ad'inistrative liabilities, the doctrine of co''and responsibilit- 'a- nevertheless be applied to ascertain responsibilit- and accountabilit- "ithin these fore6oin6 definitions. a. Co''and responsibilit- of the President avin6 established the applicabilit- of the doctrine of co''and responsibilit- in a'paro proceedin6s, it 'ust no" be resolved "hether the president, as co''ander2in2chief of the 'ilitar-, can be held responsible or accountable for e@traudicial illin6s and enforced disappearances. &e rule in the affir'ative. 4o hold so'eone liable under the doctrine of co''and responsibilit-, the follo"in6 ele'ents 'ust obtain7 a. the e@istence of a superior2subordinate relationship bet"een the accused as superior and the perpetrator of the cri'e as his subordinate= b. the superior ne" or had reason to no" that the cri'e "as about to be or had been co''itted= and c. the superior failed to tae the necessar- and reasonable 'easures to prevent the cri'inal acts or punish the perpetrators thereof.# 4he president, bein6 the co''ander2in2chief of all ar'ed forces, $ necessaril- possesses control over the 'ilitar- that 8ualifies hi' as a superior "ithin the purvie" of the co''and responsibilit- doctrine. J
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!n the issue of no"led6e, it 'ust be pointed out that althou6h international tribunals appl- a strict standard of no"led6e, i.e., actual no"led6e, such 'a- nonetheless be established throu6h circu'stantial evidence.5 In the Philippines, a 'ore liberal vie" is adopted and superiors 'a- be char6ed "ith constructive no"led6e. 4his vie" is buttressed b- the enact'ent of E@ecutive !rder No. ((J, other"ise no"n as the Institutionali?ation of the Doctrine of Co''and Responsibilit-< in all 3overn'ent !ffices, particularl- at all +evels of Co''and in the Philippine National Police and other +a" Enforce'ent A6encies )E.!. ((J*. ;nder E.!. ((J, a 6overn'ent official 'a- be held liable for ne6lect of dut- under the doctrine of co''and responsibilit- if he has no"led6e that a cri'e or offense shall be co''itted, is bein6 co''itted, or has been co''itted b- his subordinates, or b- others "ithin his area of responsibilit- and, despite such no"led6e, he did not tae preventive or corrective action %
either before,cri'es durin6, i''ediatelafter "hen its co''ission. the the co''i ssion of irre6ularities, or or offenses is presu'ed )a* the acts areno"led6e "idespreadof"ithin 6overn'ent official
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other pieces of adduced evidence. 4hus, even hearsa- evidence can be ad'itted if it satisfies this basic 'ini'u' test.%$ )E'phasis supplied.* In the case at bar, "e find no reason to depart fro' the factual findin6s of the Court of Appeals, the sa'e bein6 supported b- substantial evidence. A careful e@a'ination of the records of this case reveals that the totalit- of the evidence adduced b- Rodri6ue? indubitabl- prove the responsibilit- and accountabilit- of so'e respondents in 3.R. No. 1%10$ for violatin6 his ri6ht to life, libert- and securit-. a. 4he totalit- of evidence proved b- substantial evidence the responsibilit- or accountabilit- of respondents for the violation of or threat to Rodri6ue?
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2 /c' @ (c' he'ato'a sternal area left side 2 Jc' @ 1c' he'ato'a fro' epi6astric area to ant. chest left side 2 Jc' @ 1c' he'ato'a fro' epi6astric area to ant. chest ri6ht side 2 Multiple healed rashes )bro"nish discoloration* both forear' 2 Multiple healed rashes )bro"nish discoloration* 2 both le6 ar' 2 hip area>lu'bar area101 Dr. Pa'u6as perfor'ed a separate 'edical e@a'ination of Rodri6ue? on 1% epte'ber (00%, the results of "hich confir'ed that the inuries suffered b- the latter "ere inflicted throu6h torture. Dr. Pa'u6as thus issued a Medical Report dated (/ epte'ber (00%, 10( e@plicitl- statin6 that Rodri6ue? had been tortured durin6 his detention b- the 'ilitar-, to "it7 H. Interpretation of 9indin6s 4he above ph-sical and ps-cholo6ical findin6s sustained b- the subect are related to the torture and ill2 treat'ent done to hi'. 4he 'ultiple circular bro"n to dar bro"n spots found on both le6s and ar's "ere due to the insect bites that he sustained "hen he "as forced to oin t"ice in the 'ilitar- operations. 4he abrasions could also be due to the conditions related durin6 'ilitar- operations. 4he 'ultiple pin2 point blood spots found on his left ear is a result of an unno"n obect placed inside his left ear. 4he areas of tenderness he felt durin6 the ph-sical e@a'ination "ere due to the over"hel'in6 punchin6 and icin6 on his bod-. 4he occasional difficult- of sleepin6 is a s-'pto' e@perience )sic* b- the subect as a result of the ps-cholo6ical trau'a he encountered durin6 his detention. HI. Conclusions and Reco''endations 4he ph-sical inuries and ps-cholo6ical trau'a suffered b- the subect are secondar- to the torture and ill2treat'ent done to hi' "hile in detention for about 11 da-s. 4he ph-sical inuries sustained b- the subect, of "hich the a6e is co'patible "ith the alle6ed date of infliction )sic*. 10/ )E'phasis supplied.* In assessin6 the "ei6ht of the Certifications, the Court of Appeals correctl- relied on the 'edical findin6 that the inuries suffered b- Rodri6ue? 'atched his account of the 'altreat'ent inflicted on hi' b- the soldiers of the 15th Infantr- Battalion, $th Infantr- Division of the Philippine Ar'-. 9urther, the ind of inuries he sustained sho"ed that he could not have sustained the' fro' 'erel- fallin6, thus 'ain6 respondents< clai' hi6hl- i'plausible. Despite these 'edical findin6s that over"hel'in6l- supported and lent credibilit- to the alle6ations of Rodri6ue? in his inu'paan6 ala-sa-, respondents in 3.R. No. 1%10$ still stubbornl- clun6 to their ar6u'ent that he "as neither abducted nor detained. Rather, the- clai'ed that he "as a double a6ent,
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"hose relationship "ith the 'ilitar- "as at all ti'es con6enial. 4his contention cannot be sustained, as it is far re'oved fro' ordinar- hu'an e@perience. If it "ere true that Rodri6ue? 'aintained a'icable relations "ith the 'ilitar-, then he should have unhesitatin6l- assur ed his fa'il- on 15 epte'ber (00% that he "as a'on6 friends. Instead, he vi6orousl- pleaded "ith the' to 6et hi' out of the 'ilitar- facilit-. In fact, in the inu'paan6 ala-sadated # Dece'ber (00%10# &il'a e@ecuted, she 'ade the follo"in6 aver'ents7 1. Na nan6 Maita o an6 ain6 ana a- naara'da' ao sa an-a n6 a"a dahil sa 'uha s-an6 pa6od at 'alai an6 an-an6 ipina-at. 1%. Na ni-aap o s-a at sa a'in6 pa6aa-aap a- binulun6an n-a ao na "a6 o s-an6 ii"an sa lu6ar na i-on= @@@
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(/. Na sinabihan ao n6 '6a sundalo na un6 p"ede da" a- 'ai"an 'una n6 dala"an6 lin66o sa a'po ao at si Noriel para da" 'atrain pa si Noriel sa loob n6 a'po= (#. Na hindi ao pu'a-a6 na 'ai"an an6 ain6 ana= @@@
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//. Na sa asaluuhan, han66an6 n6a-on a- na62aalala pa ao sa paa )sic* sa ali6tasan n6 a'in6 buon6 pa'il-a, lalo na a- Noriel= @@@10$ Also, Rodel 'ade the follo"in6 supportin6 aver'ents in his inu'paan6 ala-sa- dated / Dece'ber (00%710J (#. Na nan6 'aita o si Noriel, hindi s-a 'aalaad n6 diretso, hinan62hina s-a, 'alai an6 ipina-at at nanlalali' an6 '6a 'ata= ($. Na nan6 'aita o an6 ain6 apatid a- naara'da' ao n6 a"a dahil nailala o s-an6 'asi6la at 'asa-ahin= (J. Na ilan6 'inuto lan6 a- binulu6an n-a ao n6 u-a, ilabas 'o ao dito, papata-in nila ao. (5. Na sinabihan a'i ni +t. Col. Mina na baa p"eden6 'ai"an pa n6 dal"an6 lin66o an6 ain6 apatid sa anila para ra" 'a2train s-a. (. Na hindi a'i pu'a-a6 n6 ain6 nana-= @@@ 105 Moreover, the Court of Appeals lie"ise aptl- pointed out the illo6ical, if not outri6htl- contradictor-, contention of respondents in 3.R. No. 1%10$ that "hile Rodri6ue? had co'plained of his e@haustion
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fro' his activities as a 'e'ber of the CPP2NPA, he nevertheless "illin6l- volunteered to return to his life in the NPA to beco'e a double2a6ent for the 'ilitar-. 4he lo"er court ruled in this 'anner7 In the Return of the &rit, respondent A9P 'e'bers alle6ed that petitioner confided to his 'ilitarhandler, Cpl. Navarro, that petitioner could no lon6er stand the hardships he e@perienced in the "ilderness, and that he "anted to beco'e an ordinar- citi?en a6ain because of the e'pt- pro'ises of the CPP2NPA. o"ever, in the sa'e Return, respondents state that petitioner a6reed to beco'e a double a6ent for the 'ilitar- and "anted to re2enter the CPP2NPA, so that he could 6et infor'ation re6ardin6 the 'ove'ent directl- fro' the source. If petitioner "as tired of life in the "ilderness and desired to beco'e an ordinar- citi?en a6ain, it defies lo6ic that he "ould a6ree to beco'e an undercover a6ent and "or alon6side soldiers10in the 'ountains or the "ilderness he dreads to locate the hideout of his alle6ed NPA co'rades. )E'phasis supplied.* 9urther'ore, the appellate court also properl- ruled that aside fro' the abduction, detention and torture of Rodri6ue?, respondents, specificall- 1st +t. Matutina, had violated and threatened the for'er
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4he Rule on the &rit of A'paro e@plicitl- states that the violation of or threat to the ri6ht to life, libert111 and securit- 'a- be caused b- either an act or an o'ission of a public official. Moreover, in the conte@t of a'paro proceedin6s, responsibilit- 'a- refer to the participation of the respondents, b- action or o'ission, in enforced disappearance.11( Accountabilit-, on the other hand, 'a- attach to respondents "ho are i'puted "ith no"led6e relatin6 to the enforced disappearance and "ho carr- the burden of disclosure= or those "ho carr-, but have failed to dischar6e, the burden of e@traordinar- dili6ence in the investi6ation of the enforced disappearance.11/ In this re6ard, "e e'phasi?e our rulin6 in ecretar- of National Defense v. Manalo 11# that the ri6ht to securit- of a person includes the positive obli6ation of the 6overn'ent to ensure the observance of the dut- to investi6ate, vi?7 4hird, the ri6ht to securit- of person is a 6uarantee of protection of oneTs ri6hts b- the 6overn'ent. In the conte@t of the "rit of Amparo, this ri6ht is built into the 6uarantees of the ri6ht to life and libertunder Article III, ection 1 of the 1%5 Constitution and the ri6ht to securit- of person )as freedo' fro' threat and 6uarantee of bodil- and ps-cholo6ical inte6rit-* under Article III, ection (. 4he ri6ht to securit- of person in this third sense is a corollar- of the polic- that the tate 6uarantees full respect for hu'an ri6hts under Article II, ection 11 of the 1%5 Constitution. As the 6overn'ent is the chief 6uarantor of order and securit-, the Constitutional 6uarantee of the ri6hts to life, libert- and securit- of person is rendered ineffective if 6overn'ent does not afford protection to these ri6hts especiall- "hen the- are under threat. Protection includes conductin6 effective investi6ations, or6ani?ation of the 6overn'ent apparatus to e@tend protection to victi's of e@trale6al illin6s or enforced disappearances )or threats thereof* and>or their fa'ilies, and brin6in6 offenders to the bar of ustice. 4he Inter2A'erican Court of u'an Ri6hts stressed the i'portance of investi6ation in the Oelas8ue? Rodri6ue? Case, vi!7 )4he dut- to investi6ate* 'ust be undertaen in a serious 'anner and not as a 'ere for'alitpreordained to be ineffective. An investi6ation 'ust have an obective and be assu'ed b- the tate as its o"n le6al dut-, not as a step taen b- private interests that depends upon the initiative of the victi' or his fa'il- or upon their offer of proof, "ithout an effective search for the truth b- the 6overn'ent. @@@
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i'ilarl-, the European Court of u'an Ri6hts )ECR* has interpreted the ri6ht to securit- not onlas prohibitin6 the tate fro' arbitraril- deprivin6 libert-, but i'posin6 a positive dut- on the tate to afford protection of the ri6ht to libert-. 4he ECR interpreted the ri6ht to securit- of person under Article $)1* of the European Convention of u'an Ri6hts in the leadin6 case on disappearance of persons, ?ur 4. Turey. In this case, the clai'ant Ts son had been arrested b- state authorities and had not been seen since. 4he fa'il-Ts re8uests for infor'ation and investi6ation re6ardin6 his "hereabouts proved futile. 4he clai'ant su66ested that this "as a violation of her sonTs ri6ht to securit- of person. 4he ECR ruled, vi!7 ... an- deprivation of libert- 'ust not onl- have been effected in confor'it- "ith the substantive and procedural rules of national la" but 'ust e8uall- be in eepin6 "ith the ver- purpose of Article $, na'el- to protect the individual fro' arbitra riness... avin6 assu'ed control over that individual it is incu'bent on the authorities to account for his or her "hereabouts. 9or this reason, Article $ 'ust be seen as reAu/r/# e auor//e o ae ee-/4e eaure o aeuar$ aa/# e r/ o
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$/a66eara#-e a#$ o -o#$u- a 6ro6 ee-/4e /#4e/a/o# /#o a# aruab5e -5a/ a a 6ero# a bee# ae# /#o -uo$y a#$ a #o bee# ee# /#-e .11$ )E'phasis supplied*
In the instant case, this Court rules that respondents in 3.R. No. 1%10$ are responsible or accountable for the violation of Rodri6ue?or relied on is superficial and one2sided. 4he records disclose that the 'ilitar-, in investi6atin6 the incident co'plained of, depended on the Co'prehensive Report of Noriel Rodri6ue? Pepito prepared b- 1+t. ohnn- Calub for the Co''andin6 !fficer of the $01st Infantr- Bri6ade, $th Infantr- Division, Philippine Ar'-. uch report, ho"ever, is 'erel- based on the narration of the 'ilitar-. No efforts "ere undertaen to solicit petitionerCupt. 4olentino, P>upt. antos, Calo6 and Palacpac. Respondent P>Cupt. 4olentino had alread- retired "hen the abduction and torture of Rodri6ue? "as perpetrated, "hile P>upt. antos had alread- been reassi6ned and transferred to the National Capital Re6ional Police !ffice si@ 'onths before the subect incident occurred. Mean"hile, no sufficient alle6ations "ere 'aintained a6ainst respondents Calo6 and Palacpac. 9ro' all the fore6oin6, "e rule that Rodri6ue? "as successful in provin6 throu6h substantial evidence that respondents 3en. Ibrado, PD3. Oer?osa, +t. 3en. Ban6it, Ma. 3en. !choa, Bri6. 3en. De Oera, 1st +t. Matutina, and +t. Col. Mina "ere responsible and accountable for the violation of Rodri6ue?
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is no lon6er an- need to issue a te'porar- protection order, as the privile6e of these "rits alread- has the effect of enoinin6 respondents in 3.R. No. 1%10$ fro' violatin6 his ri6hts to life, libert- and securit-. It is also clear fro' the above discussion that despite )a* 'aintainin6 for'er President Arro-o in the list of respondents in 3.R. No. 1%10$, and )b* allo"in6 the application of the co''and responsibilitdoctrine to a'paro and habeas data proceedin6s, Rodri6ue? failed to prove throu6h substantial evidence that for'er President Arro-o "as responsible or accountable for the violation of his ri6hts to life, libertand propert-. e lie"ise failed to prove throu6h substantial evidence the accountabilit- or responsibilit- of respondents Ma. 3en. !choa, Cru?, Pasicolan and Calla6an. &ERE9!RE, "e resolve to 3RAN4 the Petitio n for Partial Revie " in 3.R. No. 1%10$ and DENG the Petition for Revie" in 3.R. No. 1%/1J0. 4he Decision of the Court of Appeals is herebA99IRMED &I4 M!DI9ICA4I!N. 4he case is dis'issed "ith respect to respondents for'er President 3loria Macapa6al2Arro-o, P>Cupt. A'eto 3. 4olentino, and P>upt. ude &. antos, Calo6, 3eor6e Palacpac, Antonio Cru?, Ald"in Pasicolan and Oicent Calla6an for lac of 'erit. 4his Court directs the !ffice of the !'buds'an )!'buds'an* and the Depart'ent of ustice )D!* to tae the appropriate action "ith respect to an- possible liabilit- or liabilities, "ithin their respective le6al co'petence, that 'a- have been incurred b- respondents 3en. Oictor Ibrado, PD3. esus Oer?osa, +t. 3en. Delfin Ban6it, Ma. 3en. Nestor !choa, Bri6. 3en. Re'e6io De Oera, 1st +t. R-an Matutina, and +t. Col. +aurence Mina. 4he !'buds'an and the D! are ordered to sub'it to this Court the results of their action "ithin a period of si@ 'onths fro' receipt of this Decision. In the event that herein respondents no lon6er occup- their respective posts, the directives 'andated in this Decision and in the Court of Appeals are enforceable a6ainst the incu'bent officials holdin6 the relevant positions. 9ailure to co'pl- "ith the fore6oin6 shall constitute conte'pt of court. ! !RDERED. M"R" LOURDES P. ". SERENO Associate ustice
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 1890<0
De-eber 13, 2011
"RT'UR B"L"O, +NSTON B"L"O, NONETTE B"L"O, !ONL%N B"L"O&STRUG"R a#$ BE)ERL% LONGD,Petitioners, vs. GLOR" M"C"P"G"L&"RRO%O, EDU"RDO ERMT", GLBERTO TEODORO, RON"LDO PUNO, NORBERTO GON*"LES, Ge#. "LE"NDER %"NO, Ge#. !ESUS )ER*OS", Br/. Ge#. RE%N"LDO M"P"GU, L. P(D/r. EDG"RDO DOROM"L, Ma. Ge#. S"G"N C"C'UEL", Coa#$/# O/-er o e "FP&SU bae$ /# Bau/o C/y, PSS EUGENE M"RTN a#$ e4era5 !O'N DOES,Respondents.
@ 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2 2@ G.R. No. 1890<; PRESDENT GLOR" M"C"P"G"L&"RRO%O, SECRET"R% EDU"RDO ERMT", SECRET"R% GLBERTO TEODORO, SECRET"R% RON"LDO PUNO, SECRET"R% NORBERTO GON*"LES, GEN. "LE"NDER %"NO, P(DGEN. !ESUS )ER*OS", BRG GEN. RE%N"LDO M"P"GU, M"!. GEN. S"G"N C"C'UEL" "NDPOL. SR. SUPT. EUGENE M"RTN, Petitioners, vs. "RT'UR B"L"O, +NSTON B"L"O, NONETTE B"L"O, !ONL%N B"L"O&STRUG"R a#$ BE)ERL% LONGD,Respondents.
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DECII!N )LL"R"M", !R., J.:
Before us are consolidated appeals under ection 1% of the Rule on the &rit of A'paro fro' the anuar1%, (00% ud6'ent 1 of the Re6ional 4rial Court )R4C* of +a 4rinidad, Ben6uet, Branch J/, in pecial Proceedin6 No. 02AMP20001, entitled In the Matter of the Petition for Issuance of &rit of A'paro in favor of a'es Balao, Arthur Balao, et al. v. 3loria Macapa6al2Arro-o, et al. 4he R4C 6ranted the petition for the "rit of a'paro but denied the pra-er for issuance of inspection, production and "itness protection orders. 4he Antecedents !n !ctober , (00, Arthur Balao, &inston Balao, Nonette Balao and onil-n Balao2tru6ar, siblin6s of a'es Balao, and Beverl- +on6id )petitioners*, filed "ith the R4C of +a 4rinidad, Ben6uet a Petition for the Issuance of a &rit of A'paro( in favor of a'es Balao "ho "as abducted b- unidentified ar'ed 'en on epte'ber 15, (00 in 4o'a-, +a 4rinidad, Ben6uet. Na'ed respondents in the petition "ere then President 3loria Macapa6al2Arro-o, E@ecutive ecretar- Eduardo R. Er'ita, Defense ecretar3ilberto C. 4eodoro, r.,Interior and +ocal 3overn'ent ecretar- Ronaldo O. Puno, National ecuritAdviser )NA* Norberto B. 3on?ales, Ar'ed 9orces of the Philippines )A9P* Chief of taff 3en. Ale@ander B. Gano, Philippine National Police )PNP* Police Director 3eneral esus A. Oer?osa, Philippine Ar'- )PA* Chief Bri6. 3en. Re-naldo B. Mapa6u, PNP Cri'inal Investi6ation and Detection 3roup )PNP2CID3* Chief +t. P>Dir. Ed6ardo Doro'al, Northern +u?on Co''and )N!+C!M* Co''ander Ma. 3en. Isa6ani C. Cachuela, PNP2Cordillera Ad'inistrative Re6ion Re6ional Director Police enior upt. Eu6ene 3abriel Martin, the Co''andin6 !fficer of the A9P Intelli6ence ervice ;nit )A9P2I;* based in Ba6uio Cit- and several ohn Does. a'es M. Balao is a Ps-cholo6- and Econo'ics 6raduate of the ;niversit- of the Philippines2Ba6uio );P2Ba6uio*. In 1%#, he "as a'on6 those "ho founded the Cordillera Peoples Alliance )CPA*, a coalition of non26overn'ent or6ani?ations )N3!s* "orin6 for the cause of indi6enous peoples in the Cordillera Re6ion. As head of CPA
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'an poin6 their 6uns on hi'. 4he- 6rabbed and handcuffed hi'. 4he 'an "as asin6 "h- he "as bein6 apprehended. !ne of the ar'ed 'en addressed the people "itnessin6 the incident, sa-in6 the"ere police'en. Another "arned that no one should interfere because the 'an "as bein6 arrested for ille6al dru6s. 4hereafter, the- pushed the 'an inside the van. !ne of the ar'ed 'en "ent bac to the store to 6et the 'an
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'ilitar- and police facilities "hich have been previousl- reported as detention centers for activists abducted b- 'ilitar- and police operatives= )(* a production order for all docu'ents that contain evidence relevant to the petition, particularl- the !rder of Battle +ist and an- record or dossier respondents have on a'es= and )/* a "itness protection order. Petitioners si'ultaneousl- filed an ;r6ent E@2Parte Motion $ for the i''ediate issuance of a "rit of a'paro pursuant to ection J of the Rule on the &rit of A'paro. !n !ctober %, (00, the &rit of A'paro J "as issued directin6 respondents to file their verified return to6ether "ith their supportin6 affidavit "ithin five da-s fro' receipt of the "rit. Respondents in their oint Return 5 stated7 )1* that President 3loria Macapa6al2Arro-o is i''une fro' suit and should thus be dropped as part-2respondent= )(* that onl- Arthur Balao should be na'ed petitioner and the rest of the other petitioners dropped= )/* that there is no alle6ation of specific "ron6doin6 a6ainst respondents that "ould sho" their no"led6e, involve'ent or participation in the abduction of a'es= )#* that E@ec. ec. Er'ita, ec. 4eodoro, ec. Puno, ec. 3on?ales, 3en. Gano, 3en. Cachuela, 3en. Mapa6u and 3en. Oer?osa in their respective affidavits denied havin6 such participation or no"led6e of a'esinspected and docu'ents to be produced, specificall- the re8uire'ent that the pra-er for an inspection order shall be supported b- affidavits or testi'onies of "itnesses havin6 personal no"led6e of the "hereabouts of the a66rieved part-. Respondents further ar6ued that it is the PNP as the la" enforce'ent a6enc-, and not the respondent 'ilitar- and e@ecutive officials, "hich has the dut- to investi6ate cases of 'issin6 persons. At 'ost, the A9P 'a- in8uire on the 'atters bein6 alluded to the' as 'a- be ordered b- the proper superior, "hich is pri'aril- done for possible court 'artial proceedin6s. ence, their co''on denials of havin6 anno"led6e, participation or authori?ation for the alle6ed disappearance of a'es Balao. Nonetheless, respondents e@ecuted their affidavits to sho" the actions the- have taen and reports sub'itted to the' b- the proper authorities, as follo"s7 E@ecutive ecretar- Er'itastated that upon receipt of cop- of the petition for a "rit of a'paro, he
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caused the issuance of a letter addressed to the PNP Chief and A9P Chief of taff for the purpose of in8uirin6 and establishin6 the circu'stances surroundin6 the alle6ed disappearance of a'es Balao, and "hich letters also called for the sub'ission of pertinent reports on the results of the investi6ation conducted, if an-. ecretar- 4eodoro declared that soon after the pro'ul6ation b- this Court of the Rule on the &rit of A'paro, he issued Polic- Directive on the Actions and Defenses ;nder the A'paro Rule "hich instructed 'e'bers of the A9P to undertae specific 'easures even "ithout "aitin6 for the filin6 of an a'paro petition in court "henever an- 'e'ber of the A9P or an- of its co''ands or units have been reported or published as bein6 involved in the alle6ed violation of an individualco''unications to the Director 3eneral of the National Intelli6ence Coordinatin6 A6enc-, the PNP Chief and the A9P Chief of taff for the purpose of 'ain6 active in8uiries and establishin6 the circu'stances of the alle6ed disappearance insofar as the possible involve'ent of 'ilitar->police personnel is concerned. e undertoo to provide the 'aterial results of investi6ations conducted or to be conducted b- the concerned a6encies. 11 3eneral Gano narrated that prior to the receipt of a cop- of the petition, he received a 'e'orandu' fro' the Depart'ent of National Defense trans'ittin6 the letter of Ba-an Muna Representative 4eodoro A. Casi:o in8uirin6 about the alle6ed abduction of a'es Balao. !n the basis of said 'e'o, he directed bradio 'essa6e the N!+C!M Co''ander to conduct a thorou6h investi6ation on the 'atter and to sub'it the result thereof to the A9P 3eneral ead8uarters. 4his "as also done in co'pliance "ith the Polic- Directive issued b- Defense ecretar- 4eodoro. e reiterated his !ctober J, (00 directive to the PA Co''andin6 3eneral in another radio 'essa6e dated !ctober 1J, (00. e undertoo to provide the court "ith 'aterial results of the investi6ations conducted b- the concerned units as soon as the sa'e are received b- i6her ead8uarters.1( +t. 3en. Cachuela said that even prior to the receipt of a cop- of the petition, he "as alread- directed bi6her ead8uarters to conduct a thorou6h investi6ation on the alle6ed abduction of a'es Balao. Actin6 on said directive, he in turn directed the $th Infantr- Division, PA to investi6ate the 'atter since the place of the co''ission of the abduction is "ithin its area of responsibilit-. e undertoo to furnish the court "ith a cop- of the result of the investi6ation conducted or to be conducted, as soon as
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%$ N!+C!M receives the sa'e.1/ B3en. Mapa6u on his part declared that there is nothin6 in the alle6ations of the petition that "ould sho" the involve'ent of the PA in the reported disappearance of a'es Balao. e clai'ed that he i''ediatel- called the attention of the concerned staff to 6ive so'e infor'ation re6ardin6 the case and directed the' to sub'it a report if the- are able to obtain infor'ation. 1# Pol. Dir. 3eneral Oer?osa set forth the actions and steps taen b- the PNP, particularl- the PNP Re6ional !ffice2Cordillera )PR!2C!R* headed b- PCupt. Eu6ene Martin, bein6 the lead PNP unit investi6atin6 the case of a'es Balao.1$ Pol. Chief upt. Martin recounted that in the afternoon of epte'ber 15, (00, CPA Chairperson Beverl- +on6id called up and infor'ed hi' of the disappearance of a'es. !n epte'ber (0, (00, he "as infor'ed that a'es "as alle6edl- 'issin6 and i''ediatel- ordered the !ffice of the Re6ional Intelli6ence Division )RID* to send flash alar' to all lo"er units to loo for and locate a'es Balao. 4his "as follo"ed b- a Me'orandu' "ith his picture and description. ;pon his orders, Police tation 1 of the Ba6uio Cit- Police !ffice )BCP!* i''ediatel- conducted in8uiries at the boardin6 house of a'es at Baran6a- 9airvie", Ba6uio Cit-. +ie"ise, he ordered the creation of 4as 9orce Balao to fast trac the investi6ation of the case. e further instructed the RID to e@ert all efforts and supervise all lo"er units to intensif- their investi6ation and ascertain the "hereabouts and other circu'stances surroundin6 the disappearance of a'es. Results of the investi6ations conducted "ere set forth in his affidavit. e had constant coordination "ith the CPA leaders and Balao fa'il- "ho divul6ed the plate nu'bers of vehicles alle6edl- observed b- a'es prior to his disappearance as conductin6 surveillance on his person. ;pon verification "ith the +and 4ransportation !ffice, the said vehicles "ere found to be re6istered under the follo"in6 persons7 4N 55 Narciso Ma6no of V(0 Darasa, 4anauan, Batan6as= and ;C %(( 3 W 4ransport Corp. !n !ctober J, (00, he received infor'ation re6ardin6 an abduction incident in 4o'a-, +a 4rinidad "hereupon he ordered the Provincial Director of Ben6uet to conduct an in2depth investi6ation= said investi6ation disclosed that the person abducted "as indeed a'es. !n !ctober , (00, 4as 9orce Balao "ith the help of the CPA and Balao fa'il- "ere able to convince t"o "itnesses in the abduction incident in 4o'a-, +a 4rinidad, Ben6uet to shed li6ht on the incident= as a result, carto6raphic setches of the suspects "ere 'ade. In the 'ornin6 of !ctober %, (00, he presided over a dialo6ue "hich "as attended b- the 3roup Co''ander, MI31 and Co''andin6 !fficer of I;, I3 and PA, for the coordinated efforts to locate a'es. In the afternoon of the sa'e da-, he 'et "ith the fa'il- and relatives of a'es to infor' the' of initial efforts and investi6ation of the case. 4he 4as 9orce Balao "as also able to secure the affidavits of "itnesses Aniceto Da"in6 and Oic- Bonel, and invited so'e 'e'bers of the CPA "ho retrieved a'es upt. 9ortunato B. Albas to the PNP Cordillera Re6ional Director. Pertinent portions of the t"o reports read7
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@@@@ (. In8uiries conducted fro' Mr. usi'o ;narosa, a resident of Nr 1(J, Puro /, Central 9airvie", Ba6uio Cit-, clai'ed that on the 1st "ee of epte'ber (00, he fre8uentl- observed t"o )(* unidentified 'ale persons a6ed $0250 -ears old and about $<1 to $<$ in hei6ht, brin6in6 bo@es fro' the house, the contents of "hich could not be deter'ined. o"ever, averred that these t"o )(* 'ale personalities are not fa'iliar in the baran6a-. e further stated that he had never seen a van conductin6 surveillance on the house and have not heard of an- incident of idnappin6 or abduction in the co''unit-. /. MrK.L Ansel'o Alui', a nei6hbor, residin6 adacent to the house of the subect, "hen intervie"ed, averred that he observed so'e unidentified 'ale and fe'ale persons visitin6 the said house. #. Intervie" conducted on MrK.L Dann- 3riba, a resident of said baran6a- averred that a'es Balao is not a resident or occupant of the said house and clai'ed that he onl- sa" the subect last su''er and stated there are five )$* unidentified persons occup-in6 the said house. e further stated that three )/* 'ale persons a6ed #0 to $0 -ears old and a fe'ale a6ed bet"een (02/0 -ears old 6oes out durin6 dati'e "ith several bo@es and returns at about J700 PM to 5700 PM on board a ta@i cab a6ain "ith so'e bo@es of undeter'ined contents. $. MrsK.L Cora?on Addun, reside nt of Nr 11#, Puro /, Central 9airvie", Ba6uio Cit- averred that the subect is not residin6 in the said place and sa" hi' onl- once, so'eti'e on April (00. he further narrated that a certain ;ncle ohn a6ed #0 to $0 -ears old and a 'ale person a6ed (0 to /0 are a'on6 the occupants of said house. Accordin6l-, on epte'ber (1, (00, ;ncle ohn "ent to the house of Mrs. Addun and over a cup of coffee told her that he "ill be 6oin6 to a6ada, Mountain Province purposelto locate a 'issin6 collea6ue "ho "as sent there. Accordin6l-K,L he received a phone call that his 'issin6 collea6ue )a'es Balao* did not reach the 'unicipalit- and reported 'issin6. Aft er that short tal, she never sa" ;ncle ohn a6ain. Additionall-, she did not notice an- vehicle conductin6 surveillance therein and an- unusual incidents that transpired in said place. @@@@ 5. 4his office has lie"ise coordinated "ith MI321 and I;, I3, PA but both offices denied anno"led6e on the alle6ed abduction of a'es Balao. . It "as found out that it "as P!# 3enero Rosal, residin6 "ithin the vicinit-, "ho follo"ed2up the incident because it "as reported to hi' b- his nei6hbors. 4hat after he learned about Ka'es< abductionL, he contacted PDEA, +a 4rinidad P, RID ad Intel BPP! to verif- if the- had an operation in 4o'a-, +a 4rinidad but all of the' ans"ered ne6ative. @ @ @ @15 @@@@ /. A photocop- of the photo6 raph of a'es Balao "as prese nted to the "itne sses "herein the-
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confir'ed that the picture is the sa'e person "ho "as arrested and handcuffed. Another "itness divul6ed that prior to the arrest of the person in the picture>photo6raph, a red 'otorc-cle "ith t"o )(* 'ale riders alle6edl- conducted surveillance alon6 the hi6h"a- about ten )10* 'eters a"a- fro' the place "here the victi' "as piced2up. Minutes later, a "hite Mitsubishi Adventure arrived and too the victi' inside the car. 4he 'otorc-cle ridin6 in tande' follo"ed the Mitsubushi Adventure en route to Ca'p Dan6"a, +a 4rinidad, Ben6uet. Another "itness overhear d one of the abductors instructin6 the driver to 8uote pare sa Ca'p Dan6"a ta-o. #. 9ollo"K2Lup investi6ation resulted in the identification of a certain ;+!4 "ho also "itnessed the alle6ed abduction. o"ever, he "as hesitant to tal and instead pointed to the driver of the deliver- van of elen
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KsheLvisited the rented house onl- t"ice and that "as the onl- ti'e she sa" a'es Balao "ith an unidentified co'panions. 4hat she onl- discovered that a'es Balao "as 'iss in6 "hen a certain Carol infor'ed her that he "as 'issin6. KhLe further stated that she visited her house and found out that the said occupants have alread- left on epte'ber (J, (00 and discovered that all personal belon6in6s of the occupants have alread- been taen out b- the relatives. @@@@ OI. AC4I!N 4AEN7 1. 4hat a co'posite tea' 4A 9!RCE BA+A! fro' this office and the Re6ional ead8uarters headed b- KP> ;P4L 9!R4;NA4! BAC! A+BA "as for'ed. (. 4hat the co'posite tea' of investi6ators conducted ocular inspection on the area. /. !n !ctober , (00, t"o )(* "itnesses na'el-7 Marore Do'in6o ipolito and enn- +-nn Malondon Oalde? 6ave their s"orn state'ents and carto6raphic setch of one of the abductors. #. !n the 'ornin6 of !ctober %, (00, a dialo6ue "as presided b- RD, PR!2C!R and attended b- the 3roup Co''ander, MI31 and Co''andin6 !fficer of I;, 3, PA. Both co''anders denied the accusations a6ainst the'. $. In the afternoon of the sa'e da-, a 'eetin6 "ith the fa'il- and relatives of a'es Balao "as a6ain presidede b- also RD, reported PR!2C!R theofresults of t"o the initial efforts and "ere 6iven"ho to the fa'il-. the"herein surfacin6 another )(* "itnesses "hoinvesti6ation described the suspect handcuffed a'es Balao. J. PR!2Cordillera "rote a letter to the Cordillera Peoples Alliance re8uestin6 the' to present ;ncle ohn, Rene and his other co'panions "ho are then residin6 in the sa'e boardin6 house includin6 all his co'panions on epte'ber 15, (00 and prior to his disappearance. REMAR7 Case is still under follo"2up investi6ation to identif- the alle6ed abductors to deter'ine the real 'otive of the abduction and to file necessar- char6es a6ainst the' in court. 1 Durin6 the hearin6, the affidavits and testi'onies of the follo"in6 "itnesses "ere presented bpetitioners7 Aniceto Da"in6 1% testified that on epte'ber 15, (00, around 700 in the 'ornin6, "hile he "as deliverin6 bread at a-'or
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apprehended for ille6al dru6s. 4he- then let the 'ale person board the vehicle and infor'ed hi' that the- "ill proceed to Ca'p Dan6"a. Da"in6 ad'itted that he did not no" that it "as a'es "ho' he sa" that ti'e and ca'e to no" onl- of his identit- "hen he sa" a poster bearin6 a'es
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Nonette clai'ed that she beca'e "orried because a'es never s"itched off his 'obile phone and since he alread- te@ted her that he "as co'in6 ho'e, he could have te@ted a6ain if there "as a chan6e of plans. Also, a'es had told the' since April (00 that he had been under surveillance. he does not no" "h- a'es "ent to 4o'a-, +a 4rinidad. a'uel Anon6os stated in his affidavit (/ that he is a 'e'ber of the Education Co''ission of the CPA. e clai'ed that "hen the- conducted trainin6s and educational discussions on 'inin6 education in Abra, 'e'bers of the A9P harassed the co''unit- and co''itted various hu'an ri6hts violations. 4he A9P also alle6edl- held co''unit- 'eetin6s "here the- said that the CPA is part of the Ne" Peoplepolitical and. that is one of an enforced as defined under the Rule on the &rit leanin6s of A'paro In soa'es
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4he R4C lie"ise ruled that the 6overn'ent un'istaabl- violated a'es upt. 9ortunato Basco Albas, the Co''ander of 4as 9orce Balao. It further noted that respondents did not investi6ate the 'ilitar- officials believed to be behind the abduction as said 'ilitar- officials "ere 'erel- invited to a dialo6ue and there "as no investi6ation 'ade in Ca'p Dan6"a "here the abductors "ere believed to have taen a'es as narrated b- the "itnesses. Moreover, the R4C observed that despite the undertain6 of respondents to investi6ate the abduction and provide results thereof, four 'onths have passed but petitioners have not been furnished reports re6ardin6 the investi6ation. As to the denial of the interi' reliefs, the R4C stated that the strin6ent provisions of the rules "ere not co'plied "ith and 6rantin6 said reliefs 'i6ht violate respondents< constitutional ri6hts and eopardi?e tate securit-. Both parties appealed to this Court. 4he Consolidated Petitions Petitioners, in 3.R. No. 1J0$0, 8uestion the R4C
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IO 4E 4RIA+ C!;R4 C!RREC4+G DENIED PE4I4I!NER2REP!NDEN4< PRAGER 9!R 4E I;ANCE !9 AN INPEC4I!N !RDER, PR!D;C4I!N !RDER AND A &I4NE PR!4EC4I!N !RDER.( !ur Rulin6 4he Rule on the &rit of A'paro "as pro'ul6ated on !ctober (#, (005 a'idst risin6 incidence of e@trale6al illin6s and enforced disappearances. It "as for'ulated in the e@ercise of this Courtpolitical leanin6s. 4his is sho"n b- the several incidents relatin6 to harass'ents of activists as 'entioned in the unrebutted testi'on- of Beverl- +on6id and the enu'eration 'ade in par. # )a* to )cc* of the petition. 4here "ere also references in the petition
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le6al or6ani?ations under the ND9, "hich included the CPA, and their 'e'bers, as ene'ies of the state. 4he petition cited other docu'ents confir'in6 such all2out "ar polic- "hich resulted in the prevalence of e@traudicial illin6s7 na'el-, the published reports of the Melo Co''ission and the ;NRC
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co''anders for cri'es co''itted b- forces under their control. 4he countr- is, ho"ever, not -et for'all- bound b- the ter's and provisions e'bodied in this treat-2statute, since the enate has -et to e@tend concurrence in its ratification. &hile there are several pendin6 bills on co''and responsibilit-, there is still no Philippine la" that provides for cri'inal liabilit- under that doctrine. It 'a- plausibl- be contended that co''and responsibilit-, as le6al basis to hold 'ilitar->police co''anders liable for e@tra2le6al illin6s, enforced disappearances, or threats, 'a- be 'ade applicable to this urisdiction on the theor- that the co''and responsibilit- doctrine no" constitutes a principle of international la" or custo'ar- international la" in accordance "ith the incorporation clause of the Constitution. till, it "ould be inappropriate to appl- to these proceedin6s the doctrine of co''and responsibilit-, as the CA see'ed to have done, as a for' of cri'inal co'plicit- throu6h o'ission, for individual respondents< cri'inal liabilit-, if there be an-, is be-ond the reach of a'paro. In other "ords, the Court does not rule in such proceedin6s on an- issue of cri'inal culpabilit-, even if incidentall- a cri'e or an infraction of an ad'inistrative rule 'a- have been co''itted. As the Court stressed in ecretar- of National Defense v. Manalo )Manalo*, the "rit of a'paro "as conceived to provide e@peditious and effective procedural relief a6ainst violations or threats of violation of the basic ri6hts to life, libert-, and securit- of persons= the correspondin6 a'paro suit, ho"ever, is not an action to deter'ine cri'inal 6uilt re8uirin6 proof be-ond reasonable doubt @ @ @ or ad'inistrative liabilitre8uirin6 substantial evidence that "ill re8uire full and e@haustive proceedin6s. !f the sa'e tenor, and b- "a- of e@poundin6 on the nature and role of a'paro, is "hat the Court said in a!on v. "agitis7 It does not deter'ine 6uilt nor pinpoint cri'inal culpabilit- for the disappearance Kthreats thereof or e@traudicial illin6sL= it deter'ines responsibilit-, or at least accountabilit-, for the enforced disappearance Kthreats thereof or e@traudicial illin6sL for purposes of i'posin6 the appropriate re'edies to address the disappearance Kor e@traudicial illin6sL. @@@@ As the la" no" stands, e@traudicial illin6s and enforced disappearances in this urisdiction are not cri'es penali?ed separatel- fro' the co'ponent cri'inal acts undertaen to carr- out these illin6s and enforced disappearances and are no" penali?ed under the Revised Penal Code and special la"s. 4he si'ple reason is that the +e6islature has not spoen on the 'atter= the deter'ination of "hat acts are cri'inal @ @ @ are 'atters of substantive la" that onl- the +e6islature has the po"er to enact. @ @ @ /$ ubse8uentl-, "e have clarified that the inapplicabilit- of the doctrine of co''and responsibilit- in an a'paro proceedin6 does not, b- an- 'easure, preclude i'pleadin6 'ilitar- or police co''anders on the 6round that the co'plained acts in the petition "ere co''itted "ith their direct or indirect ac8uiescence. Co''anders 'a- therefore be i'pleadednot actuall- on the basis of co''and responsibilit-but rather on the 6round of their responsibilit-, or at least accountabilit-./J In Ra?on, r. v. 4a6itis,/5 the Court defined responsibilit- and accountabilit- as these ter's are applied to a'paro proceedin6s, as follo"s7
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@ @ @ Re6o#/b/5/y refers to the e@tent the actors have been established b- substantial evidence to have participated in "hatever "a-, b- action or o'ission, in an enforced disappearance, as a 'easure of the re'edies this Court shall craft, a'on6 the', the directive to file the appropriate cri'inal and civil cases a6ainst the responsible parties in the proper courts. "--ou#ab/5/y, on the other hand, refers to the 'easure of re'edies that should be addressed to those "ho e@hibited involve'ent in the enforced disappearance "ithout brin6in6 the level of their co'plicit- to the level of responsibilit- defined above= or "ho are i'puted "ith no"led6e relatin6 to the enforced disappearance and "ho carr- the burden of disclosure= or those "ho carr-, but have failed to dischar6e, the burden of e@traordinar- dili6ence in the investi6ation of the enforced disappearance. @ @ @/)E'phasis supplied.* Assessin6 the evidence on record, "e find that the participation in an- 'anner of 'ilitar- and police authorities in the abduction of a'es has not been ade8uatel- proven. 4he identities of the abductors have not been established, 'uch less their lin to an- 'ilitar- or police unit. 4here is lie"ise no concrete evidence indicatin6 that a'es is bein6 held or detained upon orders of or "ith ac8uiescence of 6overn'ent a6ents. Conse8uentl-, the trial court erred in 6rantin6 a'paro reliefs b- orderin6 the respondent officials )1* to disclose "here a'es Balao is detained or confined, )(* to release hi' fro' such detention or confine'ent, and )/* to cease and desist fro' further inflictin6 har' upon his person. uch pronounce'ent of responsibilit- on the part of public respondents cannot be 'ade 6iven the insufficienc- of evidence./% o"ever, "e a6ree "ith the trial court in findin6 that the actions taen brespondent officials are ver- li'ited, superficial and one2sided. Its candid and forthri6ht observations on the efforts e@erted b- the respondents are borne b- the evidence on record, thus7 @ @ @ the violation of the ri6ht to securit- as protection b- the 6overn'ent is un'istaable. 4he police and the 'ilitar- 'iserabl- failed in conductin6 an effective investi6ation of a'es Balao
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&e are not persuaded. 9irst, the 4as 9orce Balao had acno"led6ed the fact that Pol. Chief upt. Martin "as alread- in constant coordination "ith the Balao fa'il- and CPA, and hence the investi6ators could have readilobtained "hatever infor'ation the- needed fro' Beverl-. Pol. Chief upt. Martin even 'entioned in his affidavit that 4as 9orce Balao "as able to secure the testi'onies of t"o e-e"itnesses "ith the help of Beverl- and the Balao fa'il-, and that as a result carto6raphic setches "ere 'ade of so'e suspects. #1 Moreover, Beverl- had e@plained durin6 the cross2e@a'ination conducted b- Associate olicitor Paderan6a that she "as at the ti'e coordinatin6 "ith national and local a6encies even as the police investi6ation "as on6oin6. #( 4here is nothin6 "ron6 "ith petitioners< si'ultaneous recourse to other le6al avenues to 6ain public attention for a possible enforced disappearance case involvin6 their vero"n collea6ue. Respondent s should even co''end such initiative that "ill encoura6e those "ho 'ahave an- infor'ation on the identities and "hereabouts of a'esupt. Ro'ero and P>Insp. 3o'e?, the Court is 'ore than satisfied that the- have no direct or indirect hand in the alle6ed enforced disappearance of +ourdes and the threats a6ainst her dau6hters. As police officers, thou6h, theirs "as the dut- to thorou6hl- investi6ate the abduction of +ourdes, a dutthat "ould include looin6 into the cause, 'anner, and lie details of the disappearance= identif-in6 "itnesses and obtainin6 state'ents fro' the'= and follo"in6 evidentiar- leads, such as the 4o-ota Revo vehicle "ith plate nu'ber HRR #(, and securin6 and preservin6 evidence related to the abduction and the threats that 'a- aid in the prosecution of the person>s responsible. As "e said in Manalo, the ri6ht to securit-, as a 6uarantee of protection b- the 6overn'ent, is breached b- the superficial and one2sided hence, ineffectiveinvesti6ation b- the 'ilitar- or the police of reported cases under their urisdiction. As found b- the CA, the local police stations concerned, includin6 P>upt. Ro8uero and P>Insp. 3o'e?, did conduct a preli'inar- fact2findin6 on petitioners< co'plaint. 4he- could not, ho"ever, 'ae anhead"a-, o"in6 to "hat "as perceived to be the refusal of +ourdes, her fa'il-, and her "itnesses to cooperate. Petitioners< counsel, Att-. Re@ .M.A. 9ernande?, provided a plausible e@planation for his clients and their "itnesses< attitude, K4he-L do not trust the 6overn'ent a6encies to protect the'.4he difficult- arisin6 fro' a situation "here the part- "hose co'plicit- in e@traudicial illin6 or enforced disappearance, as the case 'a- be, is alle6ed to be the sa'e part- "ho investi6ates it is understandable, thou6h. 4he see'in6 reluctance on the part of the Rubricos or their "itnesses to cooperate ou6ht not to pose a hindrance to the police in pursuin6, on its o"n initiative, the investi6ation in 8uestion to its natural end. 4o repeat "hat the Court said in Manalo, the ri6ht to securit- of persons is a 6uarantee of the protection of one
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K4he dut- to investi6ateL 'ust be undertaen in a serious 'anner and not as a 'ere for'alitpreordained to be ineffective. An investi6ation 'ust have an obective and be assu'ed b- the tate as its o"n le6al dut-, #o a e6 ae# by 6r/4ae /#ere a $e6e#$ u6o# e /#//a/4e o e 4/-/ or his fa'il- or upon offer of proof, "ithout an effective search for the truth b- the 6overn'ent. ## )E'phasis supplied.*1avvphi1 Indeed, "h- ?ero in on a'esassets. As to the vehicles, the plate nu'bers of "hich have earlier been disclosed b- a'es to his fa'il- and the CPA as used in conductin6 surveillance on hi' prior to his abduction, the 'ilitar- 'erel- denied havin6 a vehicle "ith such plate nu'ber on their propert- list despite the fact that the sa'e plate nu'ber );C %((* "as si6hted attached to a car "hich "as pared at the PA2I; co'pound in Nav- Base, Ba6uio Cit-. As to the other plate nu'ber 6iven b- a'es )4N 55*, "hile the police investi6ators "ere able to verif- the na'e and address of the re6istered o"ner of the vehicle, there is no sho"in6 that said o"ner had been investi6ated or that efforts had been 'ade to locate the said vehicle. Respondents< insistence that the CPA produce the alle6ed co'panions of a'es in his rented residence for investi6ation b- the PNP tea', "hile eepin6 silent as to "h- the police investi6ators had not activelpursued those evidentiar- leads provided b- e-e"itnessesand the Balao fa'il-, onl- reinforce the trial court
specific presidential act or o'ission violated or threatened to violate petitioners< protected ri6hts. In order to effectivel- address thru the a'paro re'ed- the violations of the constitutional ri6hts to libert- and securit- of a'es "ho re'ains 'issin6 to date, the Court dee's it appropriate to refer this
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case bac to the trial court for further investi6ation b- the PNP and CID3 and 'onitorin6 of their investi6ative activities that co'plies "ith the standard of dili6ence re8uired b- the A'paro Rule. ection (# of Republic Act No. J%5$, other"ise no"n as the PNP +a" #5 specifies the PNP as the 6overn'ental office "ith the 'andate to KiLnvesti6ate and prevent cri'es, effect the arrest of cri'inal offenders, brin6 offenders to ustice and assist in their prosecution. 4he trial court should further validate the results of such investi6ations and actions throu6h hearin6s it 'a- dee' necessar- to conduct. +astl-, on the denial of the pra-er for interi' reliefs under the A'paro Rule. An inspection order is an interi' relief desi6ned to 6ive support or stren6then the clai' of a petitioner in an a'paro petition, in order to aid the court before 'ain6 a decision. # A basic re8uire'ent before an a'paro court 'a- 6rant an inspection order is that the place to be inspected is reasonabl- deter'inable fro' the alle6ations of the part- seein6 the order. #% In this case, the issuance of inspection order "as properl- denied since the petitioners specified several 'ilitar- and police establish'ents based 'erelon the alle6ation that the testi'onies of victi's and "itnesses in previous incidents of si'ilar abductions involvin6 activists disclosed that those pre'ises "ere used as detention centers. In the sa'e vein, the pra-er for issuance of a production order "as predicated on petitioners< bare alle6ation that it obtained confidential infor'ation fro' an unidentified 'ilitar- source, that the na'e of a'es "as included in the so2called !rder of Battle. Indeed, the trial court could not have sanctioned an- fishin6 e@pedition b- precipitate issuance of inspection and production orders on the basis of insufficient clai's of one part-. Nonetheless, the trial court is not precluded, as further evidence "arrants, to 6rant the above interi' reliefs to aid it in 'ain6 a decision upon evaluation of the actions taen b- the respondents under the nor' of e@traordinar- dili6ence. &ERE9!RE, the petitions in 3.R. Nos. 1J0$0 and 1J0$% are PAR4+G 3RAN4ED. 4he ud6'ent dated anuar- 1%, (00% of the Re6ional 4rial Court of +a 4rinidad, Ben6uet, Branch J/, in pecial Proceedin6 No. 02AMP20001 is M!DI9IED as follo"s7 1* REOERIN3 the 6rant of the privile6e of the "rit of amparo= (* A99IRMIN3 the denial of the pra-er for inspection and production orders, "ithout preudice to the subse8uent 6rant thereof, in the course of hearin6 and other develop'ents in the investi6ations b- the Philippine National Police>Philippine National Police Cri'inal Investi6ation and Detection 3roup and the Ar'ed 9orces of the Philippines= /* !RDERIN3 the incu'bent Chief of taff of the Ar'ed 9orces of the Philippines, or his successor, and the incu'bent Director 3eneral of the Philippine National Police, or his successor, to CONTNUE the investi6ations and actions alread- co''enced b- the Philippine National Police Re6ional !ffice Cordillera, Ba6uio Cit- Police, Northern +u?on Co''and, Philippine National Police>Philippine National Police Cri'inal Investi6ation and Detection 3roup, Philippine Ar'-2Intelli6ence ervice ;nit and other concerned units, and specificall- tae and continue to tae the necessar- steps7
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)a* to identif- the persons described in the carto6raphic setches sub'itted b- 4as 9orce Balao= )b* to locate and search the vehicles bearin6 the plate nu'bers sub'itted b- the petitioners and "hich a'es Balao had reported to be conductin6 survei llance on his perso n prior to his abduct ion on epte'ber 15, (00, and investi6ate the re6istered o"ners or "hoever the previous and present possessors>transferees thereof= and to pursue an- other leads relevant to the abduction of a'es Balao= 4he incu'bent Ar'ed 9orces of the Philippines Chief of taff, Philippine National Police Director 3eneral, or their successors, shall ensure that the investi6ations and actions of their respective units on the abduction of a'es Balao are pursued "ith e@traordinar- dili6ence as re8uired b- ec. 15 of the A'paro Rule. 9or purposes of these investi6ations, the Philippine National Police>Philippine National Police Cri'inal Investi6ation and Detection 3roup shall periodicall- report the detailed results of its investi6ation to the trial court for its consideration and action. !n behalf of this Court, the trial court shall pass upon the sufficienc- of their investi6ative efforts. 4he Philippine National Police and the Philippine National Police Cri'inal Investi6ation and Detection 3roup shall have si@ )J* 'onths fro' notice hereof to undertae their investi6ations. &ithin fifteen )1$* da-s after co'pletion of the investi6ations, the Chief of taff of the Ar'ed 9orces of the Philippines and the Director3eneral of the Philippine National Police shall sub'it a full report of the results of the said investi6ations to the trial court. &ithin thirt)/0* da-s thereafter, the trial court shall sub'it its full reportto this Court. 4hese directives and those of the trial court 'ade pursuant to this Decision shall be 6iven to, and shall be directl- enforceable a6ainst, "hoever 'a- be the incu'bent Ar'ed 9orces of the Philippines Chief of taff, Director 3eneral of the Philippine National Police and Chief of the Philippine National Police Cri'inal Investi6ation and Detection 3roup and other concerned units, under pain of conte'pt fro' this Court "hen the initiatives and efforts at disclosure and investi6ation constitute less than the EH4RA!RDINARG DI+I3ENCE that the A'paro Rule and the circu'stances of the case de'and= and1a%phi1 #* DR!PPIN3 for'er President 3loria Macapa6al2Arro-o as part-2respondent in the petition for "rit of a'paro= 4his case is hereb- REMANDED to the Re6ional 4rial Court of +a 4rinidad, Ben6uet, Branch J/ for continuation of proceedin6s in pecial Proceedin6 No. 02AMP20001 for the purposes of 'onitorin6 co'pliance "ith the above directives and deter'inin6 "hether, in the li6ht of an- recent reports or reco''endations, there "ould alread- be sufficient evidence to hold an- of the public respondents responsible, or, at least, accountable. After 'ain6 such deter'ination, the trial court shall sub'it its o"n report and reco''endation to this Court for final action. 4he trial court "ill continue to have urisdiction over this case in order to acco'plish its tass under this decision= Accordin6l-, the public respondents shall re'ain personall- i'pleaded in this petition to ans"er for anresponsibilities and>or accountabilities the- 'a- have incurred durin6 their incu'bencies. No pronounce'ent as to costs.
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! !RDERED. M"RTN S. )LL"R"M", !R. Associate ustice
B"L"O e a5 4. GM" G.R. No. 1890<0 De-eber 13, 2011
F"CTS7
4he siblin6s of a'es Balao, and +on6id )petitioners*, filed "ith the R4C of +a 4rinidad, Ben6uet a Petition for the Issuance of a &rit of A'paro in favor of a'es Balao "ho "as abducted b- unidentified ar'ed 'en earlier. Na'ed respondents in the petition "ere then President 3MA, E@ec ec Eduardo Er'ita, Defense ec 3ilberto 4eodoro, r., I+3 ecretar- Ronaldo Puno, National ecurit- Adviser )NA* Norberto 3on?ales, A9P Chief of taff 3en. Ale@ander . Gano, PNP Police Director 3eneral esus Oer?osa, a'on6 others. a'es M. Balao is a Ps-cholo6- and Econo'ics 6raduate of the ;P2Ba6uio. In 1%#, he "as a'on6 those "ho founded the Cordillera Peoples Alliance )CPA*, a coalition of N3!s "orin6 for the cause of indi6enous peoples in the Cordillera Re6ion. Accordin6 to "itnesses< testi'on-, a'es "as abducted b- unidentified 'en, sa-in6 the- "ere police'en and "ere arrestin6 hi' for a dru6s case and then 'ade to ride a "hite van. petitioners pra-ed for the issuance of a "rit of a'paro and lie"ise pra-ed for )1* an inspection order for the inspection of at least 11 'ilitar- and police facilities "hich have been previousl- reported as detention centers for activists abducted b- 'ilitar- and police operatives= )(* a production order for all docu'ents that contain evidence relevant to the petition, particularl- the !rder of Battle +ist and anrecord or dossier respondents have on a'es= and )/* a "itness protection order. the R4C issued the assailed ud6'ent, disposin6 as follo"s7 I;E a &rit of A'paro !rderin6 the respondents to )a* disclose "here a'es is detained or confined, )b* to release a'es considerin6 his unla"ful detention since his abduction and )c* to cease and desist fro' further inflictin6 har' upon his person= and DENG the issuance of INPEC4I!N !RDER, PR!D;C4I!N !RDER and &I4NE PR!4EC4I!N !RDER for failure of herein Petitioners to co'pl- "ith the strin6ent provisions on the Rule on the &rit of A'paro and substantiate the sa'e SSUE7
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&!N the totalit- of evidence satisfies the de6ree of proof re8uired b- the A'paro Rule to establish an enforced disappearance. 'ELD7
N!= 4he Rule on the &rit of A'paro "as pro'ul6ated on !ctober (#, (005 a'idst risin6 incidence of Xe@trale6al illin6sY and Xenforced disappearances.Y It "as for'ulated in the e@ercise of this Courtpolice co''anders liable for e@tra2le6al illin6s, enforced disappearances, or threats, 'a- be 'ade applicable to this urisdiction on the theor- that the co''and responsibilit- doctrine no" constitutes a principle of international la" or custo'ar- international la" in accordance "ith the incorporation clause of the Constitution. till, it "ould be inappropriate to appl- to these proceedin6s the doctrine of co''and responsibilit-, as the CA see'ed to have done, as a for' of cri'inal co'plicit- throu6h o'ission, for individual respondents< cri'inal liabilit-, if there be an-, is be-ond the reach of a'paro. In other "ords,
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the Court does not rule in such proceedin6s on an- issue of cri'inal culpabilit-, even if incidentall- a cri'e or an infraction of an ad'inistrative rule 'a- have been co''itted. As the Court stressed in ecretar- of National Defense v. Manalo )Manalo*, the "rit of a'paro "as conceived to provide e@peditious and effective procedural relief a6ainst violations or threats of violation of the basic ri6hts to life, libert-, and securit- of persons= the correspondin6 a'paro suit, ho"ever, Xis not an action to deter'ine cri'inal 6uilt re8uirin6 proof be-ond reasonable doubt @ @ @ or ad'inistrative liabilitre8uirin6 substantial evidence that "ill re8uire full and e@haustive proceedin6s.Y !f the sa'e tenor, and b- "a- of e@poundin6 on the nature and role of a'paro, is "hat the Court said in Ra?on v. 4a6itis7 It does not deter'ine 6uilt nor pinpoint cri'inal culpabilit- for the disappearance Kthreats thereof or e@traudicial illin6sL= it deter'ines responsibilit-, or at least accountabilit-, for the enforced disappearance Kthreats thereof or e@traudicial illin6sL for purposes of i'posin6 the appropriate re'edies to address the disappearance Kor e@traudicial illin6sL. @@@@ As the la" no" stands, e@traudicial illin6s and enforced disappearances in this urisdiction are not cri'es penali?ed separatel- fro' the co'ponent cri'inal acts undertaen to carr- out these illin6s and enforced disappearances and are no" penali?ed under the Revised Penal Code and special la"s. 4he si'ple reason is that the +e6islature has not spoen on the 'atter= the deter'ination of "hat acts are cri'inal @ @ @ are 'atters of substantive la" that onl- the +e6islature has the po"er to enact. @ @ @K Assessin6 the evidence on record, "e find that the participation in an- 'anner of 'ilitar- and police authorities in the abduction of a'es has not been ade8uatel- proven. 4he identities of the abductors have not been established, 'uch less their lin to an- 'ilitar- or police unit. 4here is lie"ise no concrete evidence indicatin6 that a'es is bein6 held or detained upon orders of or "ith ac8uiescence of 6overn'ent a6ents. Conse8uentl-, the trial court erred in 6rantin6 a'paro reliefs. uch pronounce'ent of responsibilit- on the part of public respondents cannot be 'ade 6iven the insufficienc- of evidence. o"ever, "e a6ree "ith the trial court in findin6 that the actions taen b- respondent officials are Xverli'ited, superficial and one2sided.Y Its candid and forthri6ht observations on the efforts e@erted b- the respondents are borne b- the evidence on record. ZZ An inspection order is an interi' relief desi6ned to 6ive support or stren6then the clai' of a petitioner in an a'paro petition, in order to aid the court before 'ain6 a decision. A basic re8uire'ent before an a'paro court 'a- 6rant an inspection order is that the place to be inspected is reasonabl- deter'inable fro' the alle6ations of the part- seein6 the order. In this case, the issuance of inspection order "as properl- denied since the petitioners specified several 'ilitar- and police establish'ents based 'erelon the alle6ation that the testi'onies of victi's and "itnesses in previous incidents of si'ilar abductions involvin6 activists disclosed that those pre'ises "ere used as detention centers. In the sa'e vein, the pra-er for issuance of a production order "as predicated on petitioners< bare alle6ation that it obtained confidential infor'ation fro' an unidentified 'ilitar- source, that the na'e of a'es "as included in the so2called !rder of Battle. Indeed, the trial court could not have sanctioned an- Xfishin6 e@peditionY b- precipitate issuance of inspection and production orders on the basis of insufficient clai's of one part-.
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 183<33
Se6eber 2<, 2012
N T'E M"TTER OF T'E PETTON FOR T'E +RT OF "MP"RO "ND T'E +RT OF
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'"BE"S D"T" N F")OR OF FR"NCS S"E*,Petitioner, vs. GLOR" M"C"P"G"L "RRO%O, GEN. 'ERMOGENES ESPERON, P(DR. GEN. ")ELNO R"*ON, 22ND MCO, C"PT. L"+RENCE B"N""G, SGT. C"STLLO, C"PT. ROMMEL GUTERRE*, C"PT. !"?E OBLG"DO, CPL. ROM"N TO UNT "N", P)T. !ERCO DUUL, CPL. "REL FONT"NLL", " CERT"N C"PT. "LC" %DO, " CERT"N FRST SERGE"NT, P)T. *"LD% OS5O, " CERT"N PFC. SONN%, " CERT"N CPL. !"MES, " CERT"N !OEL, RODERC? CL"N*" a#$ !EFFRE% GOME*,Respondents.
9or action b- the Court is the Motion for Reconsideration 1 dated epte'ber (J, (010 filed b- petitioner (
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9rancis ae? of our Resolution dated Au6ust /1, (010 den-in6 the Petition for Revie" he filed on ul(1, (00. 4he !ffice of the olicitor 3eneral )!3* filed its Co''ent # thereon statin6 that it does not find co6ent 6rounds to "arrant settin6 aside our decision. Antecedent 9acts !n March J, (00, the petitioner filed "ith the Court a petition to be 6ranted the privile6e of the "rits of a'paro and habeas data "ith pra-ers for te'porar- protection order, inspection of place and production of docu'ents.$In the petition, he e@pressed his fear of bein6 abducted and illed= hence, he sou6ht that he be placed in a sanctuar- appointed b- the Court. e lie"ise pra-ed for the 'ilitar- to cease fro' further conductin6 surveillance and 'onitorin6 of his activities and for his na'e to be e@cluded fro' the order of battle and other 6overn'ent records connectin6 hi' to the Co''unist Part- of the Philippines )CPP*. &ithout necessaril- 6ivin6 due course to the petition, the Court issued the "rit of a'paro co''andin6 the respondents to 'ae a verified return, and referred the case to the Court of Appeals )CA* for hearin6 and decision.4he case before the CA "as doceted as CA23.R. P No. 000(# &!A. In the Return of the &rit, J the respondents denied the assi6n'ent in the units of Captains +a"rence Banaa6 and Ro''el 3utierre? and Corporal Ariel 9ontanilla. 4he respondents also alle6ed that the na'es and descriptions of Capt. Alca-do, a certain 9irst er6eant, Cpl. a'es, Pfc. onn-, and oel "ere insufficient to properl- identif- so'e of the persons sou6ht to be included as a'on6 the respondents in the petition. !n the other hand, respondents 3eneral er'o6enes Esperon, r. )3en. Esperon*, Capt. acob 4haddeus !bli6ado, Pvt. Ri?ald- A. !sio )Pvt. !sio*, Pfc. Ro'anito C. Suintana, r. and Pfc. erico Du8uil sub'itted their affidavits. 4he CA conducted hearin6s "ith an intent to clarif- "hat actuall- transpired and to deter'ine specific acts "hich threatened the petitioner
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pandesal in the vicinit- of the petitioner
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e@i6enc- thereof "as ne6ated b- his o"n ad'ission that nothin6 happened bet"een hi' and oel after ul- (1, (005. 4he filin6 of the petition appears to have been precipitated b- his fear that so'ethin6 'i6ht happen to hi', not because of an- apparent violation or visible threat to violate his ri6ht to life, libert- or securit-. Petitioner "as, in fact, unable to establish lie"ise "ho a'on6 the respondents co''itted specific acts defined under the rules on both "rits to constitute violation or threat to violate petitioner
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A careful perusal of the subect petition sho"s that the CA correctl- found that the petition "as bereft of an- alle6ation as to "hat particular acts or o'ission of respondents violated or threatened petitioner
official duties and functions. )Citation o'itted* ence, the petitioner filed the instant 'otion for reconsideration. 1( Petitioner
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1# conte@t, it is 'ore correct to sa- that the ri6ht to securit-< is actuall- the freedo' fro' threat<. Accordin6 to the petitioner, his freedo' fro' fear "as undoubtedl- violated, hence, to hi' pertains a cause of action. Anent the 8uantu' of proof re8uired in a petition for the issuance of the "rit of a'paro, 'ere substantial evidence is sufficient. 4he petition is not an action to deter'ine cri'inal 6uilt re8uirin6 proof be-ond reasonable doubt, or liabilit- for da'a6es re8uirin6 preponderance of evidence, or ad'inistrative responsibilit- re8uirin6 substantial evidence that "ill re8uire full and e@haustive proceedin6s.1$
adl-, in the petitioner
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the order of battle, those linin6 the petitioner to the CPP and those he si6ned involuntaril-, and 'ilitarintelli6ence reports 'ain6 references to hi'. Althou6h the e@act locations and the custodians of the docu'ents "ere not identified, this does not render the petition insufficient. ection J)d* of the Rule on the &rit of abeas Data is clear that the re8uire'ent of specificit- arises onl- "hen the e@act locations and identities of the custodians are no"n. 4he A'paro Rule "as not pro'ul6ated "ith the intent to 'ae it a toen 6esture of concern for constitutional ri6hts. 1% 4hus, despite the lac of certain contents, "hich the Rules on the &rits of A'paro and abeas Data 6enerall- re8uire, for as lon6 as their absence under e@ceptional circu'stances can be reasonabl- ustified, a petition should not be susceptible to outri6ht dis'issal. 9ro' the fore6oin6, the Court holds that the alle6ations stated in the petition for the privile6e of the "rits of a'paro and habeas data filed confor' to the rules. o"ever, the- are 'ere alle6ations, "hich the Court cannot accept hoo, line and siner, so to spea, and "hether substantial evidence e@ist to "arrant the 6rantin6 of the petition is a different 'atter alto6ether. No substantial evidence e@ists to prove the petitioner
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both the Rules on the &rit of A'paro and abeas Data e@pressl- include in their covera6e even threatened violations a6ainst a person
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6overn'ental or6ani?ations and even 6overn'ent a6encies. 4he respondents also belied the petitioner
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b. the superior ne" or had reason to no" that the cri'e "as about to be or had been co''itted= and c. the superior failed to tae the necessar- and reasonable 'easures to prevent the cri'inal acts or punish the perpetrators thereof. 4he president, bein6 the co''ander2in2chief of all ar'ed forces, necessaril- possesses control over the 'ilitar- that 8ualifies hi' as a superior "ithin the purvie" of the co''and responsibilit- doctrine. !n the issue of no"led6e, it 'ust be pointed out that althou6h international tribunals appl- a strict standard of no"led6e, i.e., actual no"led6e, such 'a- nonetheless be established throu6h circu'stantial evidence. In the Philippines, a 'ore liberal vie" is adopted and superiors 'a- be char6ed "ith constructive no"led6e. 4his vie" is buttressed b- the enact'ent of E@ecutive !rder No. ((J, other"ise no"n as the Institutionali?ation of the Doctrine of Co''and Responsibilit-< in all 3overn'ent !ffices, particularl- at all +evels of Co''and in the Philippine National Police and other +a" Enforce'ent A6encies )E.!. ((J*. ;nder E.!. ((J, a 6overn'ent official 'a- be held liable for ne6lect of dut- under the doctrine of co''and responsibilitif he has no"led6e that a cri'e or offense shall be co''itted, is bein6 co''itted, or has been co''itted b- his subordinates, or b- others "ithin his area of responsibilit- and, despit e such no"led6e, he did not tae preventive or corrective action either before, durin6, or i''ediatel- after its co''ission. no"led6e of the co''ission of irre6ularities, cri'es or offenses is presu'ed "hen )a* the acts are "idespread "ithin the 6overn'ent official
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as a part- respondent "ithout an- atte'pt at all to sho" the latter
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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 1897
!u#e 1;, 2012
EDG"RDO N")",1 RUBEN DO,( a#$ "NDRE+ BUSNG, Petitioners, vs. )RGN" P"RDCO, or a#$ /# bea5 a#$ /# re6ree#a/o# o BEN'UR ). P"RDCO
Respondent. DECII!N DEL C"STLLO, J.:
9or the protective "rit of a'paro to issue in enforced disappearance cases, alle6ation and proof that the persons subect thereof are 'issin6 are not enou6h. It 'ust also be sho"n b- the re8uired 8uantu' of proof that their disappearance "as carried out b-, or "ith the authori?ation, support or ac8uiescence of, Kthe 6overn'entL or a political or6ani?ation, follo"ed b- a refusal to acno"led6e Kthe sa'e orL 6ive infor'ation on the fate or "hereabouts of Ksaid 'issin6L persons./ 4his petition for revie" on certiorari # filed in relation to ection 1% of A.M. No. 052%21(2C $ challen6es the ul- (#, (00 DecisionJ of the Re6ional 4rial Court )R4C*, Branch (0, Malolos Cit- "hich 6ranted the Petition for &rit of A'paro5 filed b- herein respondent a6ainst the petitioners. 9actual Antecedents !n March /1, (00, at around 7/0 p.'., a vehicle of Asian +and trate6ies Corporation )Asian +and*
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arrived at the house of +olita M. +apore )+olita* located at 5A +ot %, Bloc $#, 3rand Ro-ale ubdivision, Baran6a- +u6a', Malolos Cit-. 4he arrival of the vehicle a"aened +olita
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ubse8uentl-, petitioners received an invitation1$ fro' the Malolos Cit- Police tation re8uestin6 the' to appear thereat on April 15, (00 relative to the co'plaint of Oir6inia Pardico )Oir6inia* about her 'issin6 husband Ben. In co'pliance "ith the invitation, all three petitioners appeared at the Malolos Cit- Police tation. o"ever, since Oir6inia "as not present despite havin6 received the sa'e invitation, the 'eetin6 "as reset to April ((, (00.1J !n April ((, (00, Oir6inia attended the investi6ation. Petitioners infor'ed her that the- released Ben and that the- have no infor'ation as to his present "hereabouts. 15 4he- assured Oir6inia thou6h that the- "ill cooperate and help in the investi6ation of her 'issin6 husband.1 Oersion of the Respondent Accordin6 to respondent, Bon6 and Ben "ere not 'erel- invited. 4he- "ere unla"full- arrested, shoved into the Asian +and vehicle and brou6ht to the securit- office for investi6ation. ;pon seein6 Ben at the securit- office, Navia lividl- 6ru'bled Ia" na na'anQ 1% and slapped hi' "hile he "as still seated. Ben be66ed for 'erc-, but his pleas "ere 'et "ith a flurr- of punches co'in6 fro' Navia hittin6 hi' on different parts of his bod-. (0 Navia then too hold of his 6un, looed at Bon6, and said, &ala an6 naita at "ala an6 narini6, papata-in o na si Ben. (1 Bon6 ad'itted that he and Ben atte'pted to tae the la'p. e e@plained that the area "here their house is located is ver- dar and his father had lon6 been asin6 the ad'inistrator of 3rand Ro-ale ubdivision to install a la'p to illu'ine their area. But since nothin6 happened, he too it upon hi'self to tae a la'p fro' one of the posts in the subdivision and transfer it to a post near their house. o"ever, the la'p Bon6 6ot "as no lon6er "orin6. 4hus, he reinstalled it on the post fro' "hich he too it and no lon6er pursued his plan. (( +ater on, +olita "as instructed to si6n an entr- in the 6uard
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In the course of the investi6ation on Ben
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Oir6inia sub'itted the s"orn state'ents /# of +olita and Enri8ue "hich the t"o affir'ed on the "itness stand. Rulin6 of the Re6ional 4rial Court !n ul- (#, (00, the trial court issued the challen6ed Decision follo"s7
/$
6rantin6 the petition. It disposed as
&ERE9!RE, the Court hereb- 6rants the privile6e of the "rit of a'paro, and dee's it proper and appropriate, as follo"s7 )a* 4o hereb- direct the National Bureau of Investi6ation )NBI* to i''ediatel- conduct a deep and thorou6h investi6ation of the KpetitionersL Ed6ardo Navia, Ruben Dio and Andre" Buisin6 in connection "ith the circu'stances surroundin6 the disappearance of KBenhurL Pardico, utili?in6 in the process, as part of the investi6ation, the docu'ents for'in6 part of the records of this case= )b* 4o hereb- direct the NBI to e@tend to the fa'il- of KBenhurL Pardico and the "itnesses "ho testified in this case protection as it 'a- dee' necessar- to secure their safet- and securit-= and )c* 4o hereb- direct the !ffice of the Provincial Prosecutor of Bulacan to investi6ate the circu'stances concernin6 the le6alit- of the arrest of KBenhurL Pardico b- the KpetitionersL in this case, utili?in6 in the process, as part of said investi6ation, the pertinent docu'ents and ad'issions for'in6 part of the record of this case, and tae "hatever course>s of action as 'a- be "arranted. 9urnish i''ediatel- copies of this decision to the NBI, throu6h the !ffice of Director Nestor Mantarin6, and to the Provincial Prosecutor of Bulacan. ! !RDERED./J Petitioners filed a Motion for Reconsideration /5 "hich "as denied b- the trial court in an !rder / dated Au6ust (%, (00. ence, this petition raisin6 the follo"in6 issues for our consideration7 #.1. &E4ER H H H 4E !N!RAB+E 4RIA+ C!;R4 3RAOE+G ERRED IN R;+IN3 4A4 REP!NDEN4 I EN4I4+ED 4! 4E PRIOI+E3E !9 4E &RI4 !9 AMPAR!. #.1.1. &E4ER H H H REP!NDEN4 &A AB+E 4! E4AB+I 4A4 PE4I4I!NER AOE C!MMI44ED !R ARE C!MMI44IN3 AC4 IN OI!+A4I!N !9 ER ;BAND< RI34 4! +I9E, +IBER4G, !R EC;RI4G. #.1.(. &E4ER H H H REP!NDEN4 ;99ICIEN4+G E4AB+IED 4E 9AC4 !9 4E DIAPPEARANCE !9 BEN;R PARDIC!. #.1./. &E4ER H H H REP!NDEN4 &A AB+E 4! E4AB+I 4A4 4E A++E3ED
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DIAPPEARANCE PE4I4I!NER./%
!9
BEN;R
PARDIC!
&A
A4 4E
IN4ANCE
!9
EREIN
Petitioners< Ar6u'ents Petitioners essentiall- assail the sufficienc- of the a'paro petition. 4he- contend that the "rit of a'paro is available onl- in cases "here the factual and le6al bases of the violation or threatened violation of the a66rieved part-
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ri6ht to life, libert- and securit- is violated or threatened "ith violation b- an unla"ful act or o'ission of a public official or e'plo-ee, or of a private individual or entit-. 4he "rit shall cover e@trale6al illin6s and enforced disappearances or threats thereof. )E'phasis ours.* &hile ection 1 provides A.M. No. 052%21(2C
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)c* that it be follo"ed b- the tate or political or6ani?ation
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of a 'issin6 person. &ERE9!RE, the ul- (#, (00 Decision of the Re6ional 4rial Court, Branch (0, Malolos Cit-, is REOERED and E4 AIDE. 4he Petition for &rit of A'paro filed b- Oir6inia Pardico is herebDIMIED. ! !RDERED. M"R"NO C. DEL C"STLLO Associate ustice
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 103<01&03 February 17, 1;;7 LUS ". T"BUEN",petitioner, vs. 'ONOR"BLE S"NDG"NB"%"N, a#$ T'E PEOPLE OF T'E P'LPPNES, respondents. G.R. No. 103<07 February 17, 1;;7 "DOLFO M. PER"LT",petitioner, vs. 'ON. S"NDG"NB"%"N =F/r D/4//o#>, a#$ T'E PEOPLE OF T'E P'LPPNES, re6ree#e$ by e OFFCE OF T'E SPEC"L PROSECUTOR, respondents.
FR"NCSCO, J.:
4hrou6h their separate petitions for revie", 1 +uis A. 4abuena and Adolfo M. Peralta )4abuena and Peralta, for short* appeal the andi6anba-an decision dated !ctober 1(, 1%%0, 2 as "ell as the Resolution dated Dece'ber (0. 1%%1 3 den-in6 reconsideration, convictin6 the' of 'alversation under Article (15 of the Revised Penal Code. 4abuena and Peralta "ere found 6uilt- be-ond reasonable doubt !f havin6
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'alversed the total a'ount of P$$ Million of the Manila International Airport Authorit- )MIAA* funds durin6 their incu'benc- as 3eneral Mana6er and Actin6 9inance ervices Mana6er, respectivel-, of MIAA, and "ere thus 'eted the follo"in6 sentence7 )1* In Cri'inal Case No. 115$, accus ed +uis A. 4abuena is sentenced to suffer the penalt- of i'prison'ent of seventeen )15* -ears and one )1* da- of reclusion temporal as 'ini'u' to t"ent- )(0* -ears of reclusion temporal as 'a@i'u', and to pa- a fine of 4&EN4G29IOE MI++I!N PE! )P($,000,000.00*, the a'ount 'alversed. e shall also rei'burse the Manila International Airport Authorit- the su' of 4&EN4G29IOE MI++I!N PE! )P($,000,000.00*. In addition, he shall suffer the penalt- of perpetual special dis8ualification fro' public office, )(* In Cri'inal Case No. 115$%, accus ed +uis A. 4abuena is sentenced to suffer the penalt- of i'prison'ent of seventeen )15* -ears and one )1* da- of reclusion temporal as 'ini'u', and t"ent)(0* -ears of reclusion temporal as 'a@i'u', and to pa- a fine of 4&EN4G29IOE MI++I!N PE! )P($,000,000.00*, the a'ount 'alversed. e shall also rei'burse the Manila International Airport Authorit- the su' of 4&EN4G29IOE MI++I!N PE! )P($,000,000.00*. In addition, he shall suffer the penalt- of perpetual special dis8ualification fro' public office. )/* In Cri'inal Case No. 115J0, accused +uis A. 4abuena and Adolfo M. Peralta are each sentenced to suffer the penalt- of i'prison'ent of seventeen )15* -ears and one )1* da- of reclusion temporalas 'ini'u' and t"ent- )(0* -ears of reclusion temporal as 'a@i'u' and for each of the' to paseparatel- a fine of 9IOE MI++I!N PE! )P$,000,000.00* the a'ount 'alversed. 4he- shall also rei'burse ointl- and severall- the Manila International Airport Authorit- the su' of 9IOE MI++I!N PE! )P$,000,000.00*. In addition, the- shall both suffer the penalt- of perpetual special dis8ualification fro' public office. A co2accused of 4abuena and Peralta "as 3erardo 3. Dabao, then Assistant 3eneral Mana6er of MIAA, has re'ained at lar6e. 4here "ere three )/* cri'inal cases filed )nos. 115$, 115$% and 115J0* since the total a'ount of P$$ Million "as taen on three )/* separate dates of anuar-, 1%J. 4abuena appears as the principal accused he bein6 char6ed in all three )/* cases. 4he a'ended infor'ations in cri'inal case nos. 115$, 115$% and 115J0 respectivel- read7 4hat on or about the 1Jth da- of anuar-, 1%J, and for so'eti'e subse8uent thereto, in the Cit- of Pasa-, Philippines, and "ithin the urisdiction of this onorable Court, accused +uis A. 4abuena and 3erardo 3. Dabao, both public officers, bein6 then the 3eneral Mana6er and Assistant 3eneral Mana6er, respectivel-, of the Manila International Airport Authorit- )MIAA*, and accountable for public funds belon6in6 to the MIAA,tothebein6 the onl- onesconspirin6, authori?ed confederatin6 to 'ae "ithdra"als a6ainst the cash accounts of MIAA pursuant its board resolutions, and confabulatin6 "ith each other, did then and there "ilfull-, unla"full-, feloniousl-, and "ith intent to defraud the 6overn'ent, tae and 'isappropriate the a'ount of 4&EN4G 9IOE MI++I!N PE!
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)P($,000,000.00* fro' MIAA funds b- appl-in6 for the issuance of a 'ana6erTs chec for said a'ount in the na'e of accused +uis A. 4abuena char6eable a6ainst MIAATs avin6s Account No. (5#2$002/$#2 / in the PNB E@tension !ffice at the Manila International Airport in Pasa- Cit-, purportedl- as partial pa-'ent to the Philippine National Construction Corporation )PNCC*, the 'echanics of "hich said accused 4abuena "ould personall- tae care of, "hen both accused "ell ne" that there "as no outstandin6 obli6ation of MIAA in favor of PNCC, and after the issuance of the above2'entioned 'ana6erTs chec, accused +uis A. 4abuena encashed the sa'e and thereafter both accused 'isappropriated and converted the proceeds thereof to their personal use and benefit, to the da'a6e and preudice of the 6overn'ent in the aforesaid a'ount. C!N4RARG 4! +A&. @@@ @@@ @@@ 4hat on or about the 1Jth da- of anuar-, 1%J, and for so'eti'e subse8uent thereto, in the Cit- of Pasa-. Philippines and "ithin the urisdiction of this onorable Court, accused +uis A. 4abuena and 3erardo 3. Dabao, both public officers, bein6 then the 3eneral Mana6er and Assistant 3eneral Mana6er, respectivel-, of the Manila International Airport Authorit- )MIAA*, and accountable for public funds belon6in6 to the MIAA, the- bein6 the onl- ones authori?ed to 'ae "ithdra"als a6ainst the cash accounts of MIAA pursuant to its board resolutions, conspirin6, confederatin6 and confabulatin6 "ith each other, did then and there "ilfull-, unla"full-, feloniousl-, and "ith intent to defraud the 6overn'ent, tae and 'isappropriate the a'ount of 4&EN4G 9IOE MI++I!N PE! )P($,000,000.00* fro' MIAA funds b- appl-in6 for the issuance of a 'ana6er.s chec for said a'ount in the na'e of accused +uis A. 4abuena char6eable a6ainst MIAATs avin6s Account No. (5#2$002/$#2 / in the PNB E@tension !ffice at the Manila International Airport in Pasa- Cit-, purportedl- as partial pa-'ent to the Philippine National Construction Corporation )PNCC*, the 'echanics of "hich said accused 4abuena "ould personall- tae care of, "hen both accused "ell ne" that there "as no outstandin6 obli6ation of MIAA in favor of PNCC, and after the issuance of the above2'entioned 'ana6erTs chec, accused +uis A. 4abuena encashed the sa'e and thereafter both accused 'isappropriated and converted the proceeds thereof to their personal use and benefit, to the da'a6e and preudice of the 6overn'ent in the aforesaid a'ount. C!N4RARG 4! +A&. @@@ @@@ @@@ 4hat on or about the (%th da- of anuar-, 1%J, and for so'eti'e subse8uent thereto, in the Cit- of Pasa-, Philippines, and "ithin the urisdiction of this onorable Court, accused +uis A. 4abuena and Adolfo M. Peralta, both public officers, bein6 then the 3eneral Mana6er and Actin6 Mana6er, 9inancial ervices Depart'ent, respectivel-, of the Manila International Airport Authorit- )MIAA*, and accountable for public funds belon6in6 to the MIAA, the- bein6 the onl- ones authori?ed to 'ae "ithdra"als a6ainst the cash accounts of MIAA pursuant to its board resolutions, conspirin6, confederatin6 and confabulatin6 "ith each other, did then and there "ilfull-, unla"full-, feloniousl-, and "ith intent to defraud the 6overn'ent, tae and 'isappropriate the a'ount of 9IOE MI++I!N PE! )P$,000,000.00* fro' MIAA funds b- appl-in6 for the issuance of a 'ana6erTs chec for said a'ount in the na'e of accused +uis A. 4abuena char6eable a6ainst MIAATs avin6s Account No. (5#2
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$002 /$#2/ in the PNB E@tension !ffice at the Manila International Airport in Pasa- Cit-, purportedl- as partial pa-'ent to the Philippine National Construction Corporation )PNCC*, the 'echanics of "hich said accused 4abuena "ould personall- tae care of, "hen both accused "ell ne" that there "as no outstandin6 obli6ation of MIAA in favor of PNCC, and after the issuance of the above2'entioned 'ana6erTs chec, accused +uis A. 4abuena encashed the sa'e and thereafter both accused 'isappropriated and converted the proceeds thereof to their personal use and benefit, to the da'a6e and preudice of the 6overn'ent in the aforesaid a'ount. C!N4RARG 4! +A&. 3athered fro' the docu'entar- and testi'onial evidence are the follo"in6 essential antecedents7 4hen President Marcos instructed 4abuena over the phone to pa- directl- to the presidentTs office and in cash "hat the MIAA o"es the Philippine National Construction Corporation )PNCC*, to "hich 4abuena replied, 0es, sir, %ill do it . About a "ee later, 4abuena received fro' Mrs. 9e Roa23i'ene?, then private secretar- of Marcos, a Presidential Me'orandu' dated anuar- , 1%J )hereinafter referred to as MARC! Me'orandu'* reiteratin6 in blac and "hite such verbal instruction, to "it7 !ffice of the President of the Philippines Malacanan6 anuar- , 1%J MEM! 4!7 4he 3eneral Mana6er Manila International Airport AuthoritGou are hereb- directed to pa- i''ediatel- the Philippine National Construction Corporation, thru this !ffice, the su' of 9I94G 9IOE MI++I!N )P$$,000,000.00* PE! in cash as partial pa-'ent of MIAATs account "ith said Co'pan- 'entioned in a Me'orandu' of Minister Roberto !n6pin to this !ffice dated anuar- 5, 1%$ and dul- approved b- this !ffice on 9ebruar- #, 1%$. Gour i''ediate co'pliance is appreciated. )6d.* 9ERDINAND MARC!. 4he anuar- 5, 1%$ 'e'orandu' of then Minister of 4rade and Industr- Roberto !n6pin referred to in the MARC! Me'orandu', reads in full7 MEM!RAND;M 9or7 4he President 9ro'7 Minister Roberto O. !n6pin
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Date7 5 anuar- 1%$ ubect7 Approval of upple'ental Contracts and Re8uest for Partial Defer'ent of Repa-'ent of PNCCTs Advances for MIA Develop'ent *roect Ma- I re8uest -our approval of the attached reco''endations of Minister esus . ipolito for ei6ht )* supple'ental contracts pertainin6 to the MIA Develop'ent Proect )MIADP* bet"een the Bureau of Air 4ransport )BA4* and Philippine National Construction Corporation )PNCC*, for'erl- CDCP, as follo"s7 1. upple'ental Contract No. 1( Paca6e Contract No. ( P11,10J,J00.%$ (. upple'ental Contract No. 1/ $,5$,%J1.$( /. upple'ental Contract No. 1# Paca6e Contract No. ( #,$J,J10.0 #. upple'ental Contract No. 1$ 1,J%%,J(.J% $. upple'ental Contract No. 1J Paca6e Contract No. ( (//,$J1.((
J. upple'ental No. 15 Paca6e ContractContract No. ( ,(1,5/1.0 5. upple'ental Contract No. 1 Paca6e Contract No. ( J,110,11$.5$ . upple'ental Contract No. / Paca6e Contract No. II 1J,J15,J$$.#% )@ero@ copies onl-= ori6inal 'e'o "as sub'itted to the !ffice of the President on Ma- (, 1%#* In this connection, please be infor'ed that Philippine National Construction Corporation )PNCC*, for'erl- CDCP, has acco'plish'ent billin6s on the MIA Develop'ent Proect a66re6atin6 P%.# 'illion, inclusive of acco'plish'ents for the aforecited contracts. In accordance "ith contract provisions, outstandin6 advances totallin6 P%/.% 'illion are to be deducted fro' said billin6s "hich "ill leave a net a'ount due to PNCC of onl- P#.$ 'illion. At the sa'e ti'e, PNCC has potential escalation clai's a'ountin6 to P%% 'illion in the follo"in6 sta6es of approval>evaluation7
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Approved b- Price Escalation Co''ittee )PEC* but pended for lac of funds P1.% 'illion Endorsed b- proect consultants and currentl- bein6 evaluated b- PEC /0.5 'illion ub'itted b- PNCC directl- to PEC and currentl- under evaluation JJ.$ 'illion 4otal P%%.1 'illion 4here has been no fundin6 allocation for an- of the above escalation clai's due to bud6etarconstraints. 4he MIA Proect has been co'pleted and operational as far bac as 1%( and -et residual a'ounts due to PNCC have not been paid, resultin6 in undue burden to PNCC due to additional cost of 'one- to service its obli6ations for this contract. 4o allo" PNCC to collect partiall- its billin6s, and in consideration of its pendin6 escalatio n billin6s, 'a- "e re8uest for is E@cellenc-Ts approval for a defer'ent of the repa-'ent of PNCCTs advances to the e@tent of P/0 'illion correspondin6 to about /0[ of P%%.1 'illion in escalation clai's of PNCC, of "hich P/(.$ 'illion has been officiall- reco6ni?ed b- MIADP consultants but could not be paid due to lac of fundin6. !ur proposal "ill allo" BA4 to pa- PNCC the a'ount of P/#.$ 'illion out of e@istin6 MIA Proect funds. 4his a'ount represents the e@cess of the 6ross billin6s of PNCC of P%.# 'illion over the undeferred portion of the repa-'ent of advances of PJ/.% 'illion. )6d.* R!BER4! O. !N3PIN Minister <
In obedience to President MarcosT verbal instruction and 'e'orandu', 4abuena, "ith the help of Dabao and Peralta, caused the release of P$$ Million of MIAA funds b- 'eans of three )/* "ithdra"als. 4he first "ithdra"al "as 'ade on anuar- 10, 1%J for P($ Million, follo"in6 a letter of even date si6ned b- 4abuena and Dabao re8uestin6 the PNB e@tension office at the MIAA the depositorbranch of MIAA funds, to issue a 'ana6erTs chec for said a'ount pa-able to 4abuena. 4he chec "as encashed, ho"ever, at the PNB Oilla'or Branch. Dabao and the cashier of the PNB Oilla'or branch counted the 'one- after "hich, 4abuena too deliver- thereof. 4he P($ Million in cash "ere then placed in peerless bo@es and duffle ba6s, loaded on a PNB ar'ored car and delivered on the sa'e da- to the office of Mrs. 3i'ene? located at A6uado treet frontin6 Malacanan6. Mrs. 3i'ene? did not issue an- receipt for the 'one- received
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i'ilar circu'stances surrounded the second "ithdra"al>encash'ent and deliver- of another P($ Million, 'ade on anuar- 1J, 1%J. 4he third and last "ithdra"al "as 'ade on anuar- /1, 1%J for P$ Million. Peralta "as 4abuenaTs co2 si6nator- to the letter2 re8uest for a 'ana6erTs chec for this a'ount. Peralta acco'panied 4abuena to the PNB Oilla'or branch as 4abuena re8uested hi' to do the countin6 of the P$ Million. After the countin6, the 'one- "as placed in t"o )(* peerless bo@es "hich "ere loaded in the trun of 4abuenaTs car. Peralta did not 6o "ith 4abuena to deliver the 'one- to Mrs. 3i'ene?T office at A6uado treet. It "as onl- upon deliver- of the P$ Million that Mrs. 3i'ene? issued a receipt for all the a'ounts she received fro' 4abuena. 4he receipt, dated anuar- /0, 1%J, reads7 Malacanan6 Manila anuar- /0, 1%J RECEIOED 9R!M +!;IE 4AB;ENA 4E 4!4A+ AM!;N4 !9 9I94G 9IOE MI++I!N PE! )P$$,000,000.00* as of the follo"in6 dates7 an. 10 P ($,000,000.00 an. 1J ($,000,000.00 an. /0 $,000,000.00 )6d.* 9e Roa23i'ene? 4he disburse'ent of the P$$ Million "as, as described b- 4abuena and Peralta the'selves, out of the ordinar- and not based on the nor'al procedure. Not onl- "ere there no vouchers prepared to support the disburse'ent, the P$$ Million "as paid in cold cash. Also, no PNCC receipt for the P$$ Million "as presented. Defense "itness 9rancis Monera, then enior Assistant Oice President and Corporate Co'ptroller of PNCC, even affir'ed in court that there "ere no pa-'ents 'ade to PNCC bMIAA for the 'onths of anuar- to une of 1%J. 4he position of the prosecution "as that there "ere no outstandin6 obli6ations in favor of PNCC at the ti'e of the disburse'ent of the P$$ Million. !n the other hand, the defense of 4abuena and Peralta, in short, "as that the- acted in 6ood faith. 4abuena clai'ed that he "as 'erel- co'pl-in6 "ith the MARC! Me'orandu' "hich ordered hi' to for"ard i''ediatel- to the !ffice of the President P$$ Million in cash as partial pa-'ent of MIAATs obli6ations to PNCC, and that he )4abuena* "as of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the sa'e belief and so he heeded the re8uest of 4abuena, his superior, for hi' )Peralta* to help in the release of P$ Million. &ith the reection b- the andi6anba-an of their clai' of 6ood faith "hich ulti'atel- led to their 9
conviction, 4abuena Peralta no" set forth a total of ten that )10*at errors co''itted andi6anba-an for thisand CourtTs consideration. It appears, ho"ever, the core of their plea bthat the "e ac8uit the' are the follo"in67
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1* the andi6anba-an convicted the' of a cri'e not char6ed in the a'ended infor'ations, and (* the- acted in 6ood faith. Anent the first proposition, 4abuena and Peralta stress that the- "ere bein6 char6ed "ith intentional 'alversation, as the a'ended infor'ations co''onl- alle6e that7 . . . accused . . . conspirin6, confederatin6 and other, then and there "ilfull-, unla"full-, feloniousl-, and "ith intent to defraud the 6overn'ent, tae and 'isappropriated the a'ount of . . . . But it "ould appear that the- "ere convicted of 'alversation b- ne6li6ence. In this connection, the CourtTs attention is directed to p. 15 of the Dece'ber (0, 1%%1 Resolution )den-in6 4abuenaTs and PeraltaTs 'otion for reconsideration* "herein the andi6anba-an said7 @@@ @@@ @@@ !n the contrar-, "hat the evidence sho"s is that accused 4abuena delivered the P$$ Million to people "ho "ere not entitled thereto, either as representatives of MIAA or of the PNCC. It proves that 4abue na had deliberatel- consented or per'itted throu6h negligence or abandon'ent, so'e other person to tae such public funds. avin6 done so, 4abuena, b- his o"n narration, has cate6oricall- de'onstrated that he is 6uilt- of the 'isappropriation or 'alversation of P$$ Million of public funds. )E'phasis supplied.* 4o support their theor- that such variance is a reversible fla", 4abuena and Peralta ar6ue that7 1* &hile 'alversation 'a- be co''itted intentionall- or b- ne6li6ence, both 'odes cannot be co''itted at the sa'e ti'e. (* 4he andi6anba-an "as "ithout urisdiction to convict the' of 'alversation of ne6li6ence "here the a'ended infor'ations char6ed the' "ith intentional 'alversation. 7
/* 4heir conviction of a cri'e different fro' that char6ed violated their constitutional ri6ht to be infor'ed of the accusation. 8 &e do not a6ree "ith 4abuena and Peralta on this point. Illu'inative and controllin6 is Cabello v. andi6anba-an ; "here the Court passed upon si'ilar protestations raised b- therein accused2petitioner Cabello "hose conviction for the sa'e cri'e of 'alversation "as affir'ed, in this "ise7 . . . even on the putative assu'ption that the evidence a6ainst petitioner -ielded a case of 'alversation b- ne6li6ence but the infor'ation "as for intentional 'alversation, under the circu'stances of this case his conviction under the first 'ode of 'isappropriation "ould still be in order. Malversation is co''itted either intention all- or b- ne6li6ence. 4he dolo or the culpa present in the offense is onl- a
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'odalit- in the perpetration of the felon-. Even if the 'ode char6ed differs fro' the 'ode proved, the sa'e offense of 'alversation is involved and conviction thereof is proper. . . . In Samson vs . +ourt of Appeals, et . al., "e held that an accused char6ed "ith "illful or intentional falsification can validl- be convicted of falsification throu6h ne6li6ence, thus7 &hile a cri'inal ne6li6ent act is not a si'ple 'odalit- of a "illful cri'e, as "e held in 2ui!on vs.3ustice of the *eace of 4acolor. 3.R. No. +2JJ#1, ul- (, 1%%$, but a distinct cri'e in our Penal Code, desi6nated as a 8uasi offense in our Penal Code, it 'a- ho"ever be said that a conviction for the for'er can be had under an infor'ation e@clusivel- char6in6 the co''ission of a "illful offense, upon the theor- that the 6reater includes the lesser offense. 4his is the situation that obtains in the present case. Appellant "as char6ed "ith "illful falsification but fro' the evidence sub'itted b- the parties, the Court of Appeals found that in effectin6 the falsification "hich 'ade possible the cashin6 of the checs in 8uestion, appellant did not act "ith cri'inal intent but 'erel- failed to tae proper and ade8uate 'eans to assure hi'self of the identit- of the real clai'ants as an ordinar- prudent 'an "ould do. In other "ords, the infor'ation alle6es acts "hich char6e "illfu l falsification but "hich turned out to be not "illful but ne6li6ent. 4his is a case covered b- the rule "hen there is a variance bet"een the alle6ation and proof, and is si'ilar to so'e of the cases decided b- this 4ribunal. @@@ @@@ @@@ Moreover= ection $, Rule 11J, of the Rules of Court does not re8uire that all the essential ele'ents of the offense char6ed in the infor'ation be proved, it bein6 sufficient that so'e of said essential ele'ents or in6redients thereof be established to constitute the cri'e proved. . . . 4he fact that the infor'ation does not alle6e that the falsification "as co''itted "ith i'prudence is of no 'o'ent for here this deficienc- appears supplied b- the evidence sub'itted b- appellant hi'self and the result has proven beneficial to hi'. Certainl-, havin6 alle6ed that the falsification has been "illful, it "ould be incon6ruous to alle6e at the sa'e ti'e that it "as co''itted "ith i'prudence for a char6e of cri'inal intent is inco'patible "ith the concept of ne6li6ence. ubse8uentl-, "e ruled in *eople vs . +onsigna, et. al ., that the aforestated rationale and ar6u'ents also appl- to the felon- of 'alversation, that is, that an accused char6ed "ith "illful 'alversation, in an infor'ation containin6 alle6ations si'ilar to those involved in the present case, can be validl- convicted of the sa'e offense of 'alversation throu6h ne6li6ence "here the evidence sustains the latter 'ode of perpetratin6 the offense. 3oin6 no" to the defense of 6ood faith, it is settled that this is a valid defense in a prosecution for 'alversation for it "ould ne6ate cri'inal intent on the part of the accused. 4hus, in the t"o )(* vinta6e, but si6nificant'alversation cases of ; v. Catolico 10 and ; v. Elvina, 11 the Court stressed that7
4o constitute a cri'e, the act 'ust, e@cept in certain cri'es such b- statute, b- a cri'inal intent, or b- such ne6li6ence or indifference to dut-'ade or to conse8uences as,be inacco'panied la", is e8uivalent to cri'inal intent. 4he 'a@i' is actus non facit reum, nisi mens sit rea a cri'e is not co''itted if the 'ind of the person perfor'in6 the act co'plained of is innocent.
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4he rule "as reit erated in People v. Pacana, docu'ents and estafa7
12
althou6h this case involved falsification of public
!rdinaril-, evil intent 'ust unite "ith an unla"ful act for there to be a cri'e. Actus non facit reum, nisi mens sit rea. 4here can be no cri'e "hen the cri'inal 'ind is "antin6. A'erican urisprudence echoes the sa'e principle. It adheres to the vie" that cri'inal intent in e'be??le'ent is not based on technical 'istaes as to the le6al effect of a transaction honestl- entered into, and there can be no e'be??le'ent if the 'ind of the person doin6 the act is innocent or if there is no "ron6ful purpose. 13 4he accused 'a- thus al"a-s introduce evidence to sho" he acted in 6ood faith and that he had no intention to convert. 1 And this, to our 'ind, 4abuena and Peralta had 'eritoriouslsho"n. In so far as 4abuena is concerned, "ith the due presentation in evidence of the MARC! Me'orandu' "e are s"a-ed to 6ive credit to his clai' of havin6 caused the disburse'ent of the P$$ Million solel- breason of such 'e'orandu'. 9ro' this pre'ise flo"s the follo"in6 reasons and>or considerations that "ould buttress his innocence of the cri'e of 'alversation. 9irst. 4abuena had no other choice but to 'ae the "ithdra"als, for that "as "hat the MARC! Me'orandu' re8uired hi' to do. e could not be faulted if he had to obe- and strictl- co'pl- "ith the presidential directive, and to ar6ue other"ise is so'ethin6 easier said than done. Marcos "as undeniabl4abuenaTs superior the for'er bein6 then the President of the Republic "ho un8uestionabl- e@ercised control over 6overn'ent a6encies such as the MIAA and PNCC. 1< In other "ords, Marcos had a sa- in 'atters involvin6 inter26overn'ent a6enc- affairs and transactions, such as for instance, directin6 pa-'ent of liabilit- of one entit- to another and the 'anner in "hich it should be carried out. And as a recipient of such ind of a directive co'in6 fro' the hi6hest official of the land no less, 6ood faith should be read on 4abuenaTs co'pliance, "ithout hesitation nor an- 8uestion, "ith the MARC! Me'orandu'. 4abuena therefore is entitled to the ustif-in6 circu'stance of Any person %ho acts in obedience to an order issued by a superior for some la%ful purpose . 19 4he subordinate2superior relationship bet"een 4abuena and Marcos is clear. And so too, is the la"fulness of the order contained in the MARC! Me'orandu', as it has for its purpose partial pa-'ent of the liabilit- of one 6overn'ent a6enc- )MIAA* to another )PNCC*. o"ever, the unla"fulness of the MARC! Me'orandu' "as bein6 ar6ued, on the observation, for instance, that the !n6pin Me'o referred to in the presidential directive reveals a liabilit- of onl- about P/#.$ Million. 4he andi6anba-an in this connection said7 E@hibits ( and (2a )pa6es 1 and ( of the 'e'orandu' of Min. !n6pin to the President dated anuar- 5, 1%$* "ere 'ainl-7 a.* for the approval of ei6ht upple'ental Contracts= and b.* a re8uest for partial defer'ent of pa-'ent b- PNCC for advances 'ade for the MIAA Develop'ent Proect, "hile at the sa'e ti'e reco6ni?in6 so'e of the PNCCTs escalation billin6s "hich "ould result in 'ain6 pa-able to PNCC the a'ount of P/#.$ 'illion out of e@istin6 MIAA Proect funds. 4hus7
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@@@ @@@ @@@ 4o allo" PNCC to collect partiall- its billin6s, and in consideration of ifs pendin6 escalation billin 6s, may %e re$uest for is 5xcellency6s approval for a deferment of repayment of *7++6s advances to the extent of P/0 'illion correspondin6 to about /0[ of P%%.1 'illion in escalation clai's of PNCC, of "hich P/(.J 'illion has been officiall- reco6ni?ed b- MIADP consultants but could not be paid due to lac of fundin6.
/ur proposal %ill allo% 4A" to pay *7++ the amount of *89 .: million out of existing MA *roect funds. 4his a'ount represents the e@cess of the 6ross billin6s of PNCC of P%.# 'illion over the undeferred portion of the repa-'ent of advances of PJ/.% 'illion. &hile Min. !n6pin 'a- have, therefore reco6ni?ed the escalation clai's of the PNCC to MIAA to the e@tent of P%%.1 'illion )E@hibit (a*, a substantial portion thereof "as still in the sta6es of evaluation and approval, "ith onl- P/(.J 'illion havin6 been officiall- reco6ni?ed b- the MIADP consultants. If an- pa-'ents "ere, therefore, due under this 'e'o for Min. !n6pin )upon "hich President MarcosT Me'o "as based* the- "ould onl- be for a su' of up to P/#.$ 'illion. 17
@@@ @@@ @@@ O. Pres. MarcosT order to 4abuena dated anuar- , 1%J baseless.
Not onl-baseless. "as Pres. MarcosT Me'o )E@hibit 1* for 4abuena to pa- P$$ 'illion irrelevant, but it "as actuall4his is eas- to see. E@hibit 1 purports to refer itself to the !n6pin Me'orandu' )E@hibit (, (2a*= E@hibit 1, ho"ever, speas of P$$ 'illion to be paid to the PNCC "hile E@hibit ( authori?ed onl- P/#.$ 'illion. 4he order to "ithdra" the a'ount of P$$ 'illion e@ceeded the approved pa-'ent of P/#.$ 'illion bP(0.$ 'illion. Min. !n6pinTs Me'o of anuar- 5, 1%$ could not therefore serve as a basis for the PresidentTs order to "ithdra" P$$ 'illion. 18 3rantin6 this to be true, it "ill not nevertheless affect 4abuenaTs 6oad faith so as to 'ae hi' cri'inallliable. &hat is 'ore si6nificant to consider is that the MARC! Me'orandu' is patentl- le6al )for on its face it directs pa-'ent of an outstandin6 liabilit-* and that 4abuena acted under the honest belief that the P$$ 'illion "as a due and de'andable debt and that it "as ust a portion of a bi66er liabilit- to PNCC. 4his belief is supported b- defense "itness 9rancis Monera "ho, on direct e@a'ination, testified that7 A44G ANDRE
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S Can -ou please sho" us in this E@hibit 5 and 52a "here it is indicated the receivables fro' MIA as of Dece'ber /1, 1%$Q A As of Dece'ber /1, 1%$, the receivables fro' MIA is sho"n on pa6e (, 'ared as E@hibit 52a, sir, *1;<,9=:.8><.8: @@@ @@@ @@@ 1; A44G. ANDRE S Can -ou tell us, Mr. &itness, "hat these obli6ations representQ &I4NE A 4hese obli6ati ons represent receiva bles on the basis of our billin6s to MIA as contract2 o"ner of the proect that the Philippine National Construction Corporation constructed. 4hese are billin6s for escalation 'ostl-, sir. S &hat do -ou 'ean b- escalationQ A Escalation is the co'ponent of our revenue billin6s to the contract2o"ner that are supposed to tae care of price increases, sir. @@@ @@@ @@@ 20 A44G ANDRE S &hen -ou said these are accounts receivable, do I understand fro' -ou that these are due and de'andableQ A Ges, sir.21 4hus, even if the order is ille6al if it is patentl- le6al and the subordinate is not a"are of its ille6alit-, the subordinate is not liable, for then there "ould onl- be a 'istae of fact co''itted in 6ood faith. 22 uch is the rulin6 in Nassif v. People 23 the facts of "hich, in brief, are as follo"s7 Accused "as char6ed "ith falsification of co''ercial docu'ent. A 'ere e'plo-ee of R.. Ca'pos, he inserted in the co''ercial docu'ent alle6ed to have been falsified the "ord sold b- order of his principal. ad he no"n or suspected that his principal "as co''ittin6 an i'proper act of falsification, he "ould be liable either as a co2principal or as an acco'plice. o"ever, there bein6 no 'alice on his part, he "as e@e'pted fro' cri'inal liabilit- as he "as a 'ere e'plo-ee follo"in6 the orders of his principal. 2 econd. 4here is no den-in6 that the disburse'ent, "hich 4abuena ad'itted as out of the ordinar-, did
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not co'pl- "ith certain auditin6 rules and re6ulations such as those pointed out b- the andi6anba-an, to "it7 a* Ke@cept for salaries and "a6es and for co''utation of leavesL all disburse'ents above P1,000.00 should be 'ade b- chec )Basic 3uidelines for Internal Control dated anuar- /1, 1%55 issued b- C!A* b* pa-'ent of all clai's a6ainst the 6overn'ent had to be supported "ith co'plete docu'entation )ec. #, P.D. 1##$, tate Auditin6 Code of the Philippines*. In this connection, the andi6anba-an observed that7 4here "ere no vouchers to authori?e the disburse'ents in 8uestion. 4here "ere no bills to support the disburse'ent. 4here "ere no certifications as to the availabilit- of funds for an un8uestionablsta66erin6 su' of P$$ Million. 2< c* failure to protest )ec. 10J, P.D. 1##$* But this deviation "as inevitable under the circu'stances 4abuena "as in. e did not have the lu@ur- of ti'e to observe all auditi n6 procedures of disburse'ent considerin6 the fact that the MARC! Me'orandu' enoined his i''ediate co'pliance "ith the directive that he for"ard to the PresidentTs !ffice the P$$ Million in cash. Be that as it 'a-, 4abuena surel- cannot escape responsibilit- for such o'ission. But since he "as actin6 in 6ood faith, his liabilit- should onl- be ad'inistrative or civil in nature, and not cri'inal. 4his follo"s the decision in Oillacorta v. People 29 "here the Court, in ac8uittin6 therein accused 'unicipal treasurer of Pandan, Catanduanes of 'alversation after findin6 that he incurred a shorta6e in his cash accountabilit- b- reason of his pa-'ent in 6ood faith to certain 6overn'ent personnel of their le6iti'ate "a6es leave allo"ances, etc., held that7 Nor can ne6li6ence appro@i'atin6 'alice or fraud be attributed to petitioner. If he 'ade "ron6 pa-'ents, the- "ere in 3ood faith 'ainl- to 6overn'ent personnel, so'e of the' "orin6 at the provincial auditorTs and the provincial treasurerTs offices And if those pa-'ents ran counter to auditin6 rules and re6ulations, the- did not a'ount to a cri'inal offense and he should onl- be held ad'inistrativel- or civill- liable. +ie"ise controllin6 is ; v. Elvina 27 "here it "as held that pa-'ents in 6ood faith do not a'ount to cri'inal appropriation, althou6h the- "ere 'ade "ith insufficient vouchers or i'proper evidence. In fact, the Dissentin6 !pinionTs reference to certain provisions in the revised Manual on Certificate of ettle'ent and Balances apparentl- 'ade to underscore 4abuenaTs personal accountabilit-, as a6enchead, for MIAA funds "ould all the 'ore support the vie" that 4abuena is vulnerable to civil sanctions onl- ections (%.( and (%$ e@pressl- and solel- spea of civilly liable, describe the ind of sanction i'posable on a superior officer "ho perfor's his duties "ith bad faith, 'alice or 6ross ne6li6enceT and on a subordinate officer or e'plo-ee "ho co''its %illful or negligent acts . . . %hich are contrary to la%, morals, public policy and good customs even if he acted under order or instructions of his superiors. 4hird. 4he andi6anba-an 'ade the findin6 that 4abuena had alread- converted and 'isappropriated the P$$ Million "hen he delivered the sa'e to Mrs. 3i'ene? and not to the PNCC, proceedin6 fro' the
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follo"in6 definitions>concepts of conversion7 Conversion, as necessar- ele'ent of offense of e'be??le'ent, bein6 the fraudulent appropriation to oneTs o"n useT of anotherTs propert- "hich does not necessaril- 'ean to oneTs personal advanta6e but ever- atte'pt b- one person to dispose of the 6oods of another "ithout ri6ht as if the- "ere his o"n is conversion to his o"n use. )4err- v. &ater I'prove'ent Dist. No. $ of 4ulsa Count-, J# p, (d %0#, %0J, 15% !l. 10J* At p. (05, &ords and Phrases, Per'anent Edition %A. Conversion is an- interference subversive of the ri6ht of the o"ner of personal propert- to eno- and control it. 4he 6ist of conversion is the usurpation of the o"ner Ts ri6ht of propert-, and not the actual da'a6es inflicted. onest- of purpose is not a defense. )9errera v. Pars, (/ p. /, $ 1% !r. 1#1* At pa6e 1J, id. @@@ @@@ @@@ 4he "ords convert and 'isappropriate connote an act of usin6 or disposin6 of anotherTs propert- as if it "ere oneTs o"n. 4he- presuppose that the thin6 has been devoted to a purpose or use different fro' that a6reed upon. 4o appropriate to oneTs o"n use includes not onl- conversion to oneTs personal advanta6e but ever- atte'pt to dispose of the propert- of another "ithout ri6ht. People vs. &ebber, $5 !.3. p. (%//, (%/5 B- placin6 the' at the disposal of private persons "ithout due authori?ation or le6al ustification, he beca'e as 6uilt- of 'alversation as if he had personall- taen the' and converted the' to his o"n use. People vs. +untao, $0 !.3. p. 11(, 11/ 28 &e do not a6ree. It 'ust be stressed that the MARC! Me'orandu' directed 4abuena to pai''ediatel- the Philippine National Construction Corporation, thru this office the su' of 9I94G 9IOE MI++I!N. . ., and that "as "hat 4abuena precisel- did "hen he delivered the 'one- to Mrs. 3i'ene?. uch deliver-, no doubt, is in effect deliver- to the !ffice of the President inas'uch as Mrs. 3i'ene? "as MarcosT secretar- then. 9urther'ore, 4abuena had reasonable 6round to believe that the President "as entitled to receive the P$$ Million since he "as certainl- a"are that Marcos, as Chief E@ecutive, e@ercised supervision and control over 6overn'ent a6encies. And the 6ood faith of 4abuena in havin6 delivered the 'one- to the PresidentTs office )thru Mrs. 3i'ene?*, in strict co'pliance "ith the MARC! Me'orandu', "as not at all affected even if it later turned out that PNCC never received the 'one-. 4hus, it has been said that7 3ood faith in the pa-'ent of public funds relieves a public officer fro' the cri'e of 'alversation.
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@@@ @@@ @@@ Not ever- unauthori?ed pa-'ent of public funds is 'alversation. 4here is 'alversation onl- if the public officer "ho has custod- of public funds should appropriate the sa'e, or shall tae or 'isappropriate or shall consent, or throu6h abandon'ent or ne6li6ence shall per'it an- other person to tae such public funds. &here the pa-'ent of public funds has been 'ade in 6ood faith, and there is reasonable 6round to believe that the public officer to "ho' the fund had been paid "as entitled thereto, he is dee'ed to have acted in 6ood faith, there is no cri'inal intent, and the pa-'ent, if it turns out that it is unauthori?ed, renders hi' onl- civill- but not cri'inall- liable. 2; 9ourth. Even assu'in6 that the real and sole purpose behind the MARC! Me'orandu' "as to siphon2out public 'one- for the personal benefit of those then in po"er, still, no cri'inal liabilit- can be i'puted to 4abuena. 4here is no sho"in6 that 4abuena had an-thin6 to do "hatsoever "ith the e@ecution of the MARC! Me'orandu'. Nor is there proof that he profited fro' the felonious sche'e. In short, no conspirac- "as established bet"een 4abuena and the real e'be??ler>s of the P$ Million. In the cases of ; v. Acebedo 30 and An6 v. andi6anba-an, 31 both also involvin6 the cri'e of 'alversation, the accused therein "ere ac8uitted after the Court arrived at a si'ilar findin6 of non2proof of conspirac-. In Acebedo, therein accused, as 'unicipal president of Palo, +e-te, "as prosecuted for and found 6uilt- b- the lo"er court of 'alversation after bein6 unable to turn over certain a'ounts to the then ustice of the peace. It appeared, ho"ever, that said a'ounts "ere actuall- collected b- his secretar- Crisanto ;rbina. 4he Court reversed AcebedoTs conviction after findin6 that the su's "ere converted b- his secretar- ;rbina "ithout the no"led6e and participation of Acebedo. 4he Court said, "hich "e herein adopt7 No conspirac- bet"een the appellant and his secretar- has been sho"n in this case, nor did such conspirac- appear in the case a6ainst ;rbina. No 6uilt- no"led6e of the theft co''itted b- the secretar- "as sho"n on the part of the appellant in this case, nor does it appear that he in an- "aparticipated in the fruits of the cri'e. If the secretar- stole the 'one- in 8uestion "ithout the no"led6e or consent of the appellant and "ithout ne6li6ence on his part, then certainl- the latter can not be convicted of e'be??lin6 the sa'e 'one- or an- part thereof. 32 In Ang, accused2petitioner, as M& bill collector, allo"ed part of his collection to be converted into checs dra"n in the na'e of one Marshall +u, a non2custo'er of M&, but the checs "ere subse8uentl- dishonored. An6 "as ac8uitted b- this Court after 6ivin6 credence to his assertion that the conversion of his collections into checs "ere thru the 'achinations of one +a?aro 3uinto, another M& collector 'ore senior to hi'. And "e also adopt the CourtTs observation therein, that7 4he petitionerTs alle6ed ne6li6ence in allo"in6 the senior collector to convert cash collections into checs 'a- be proof of poor ud6'ent or too trustin6 a nature insofar as a superior officer is concerned but there 'ust be stron6er evidence to sho" fraud, 'alice, or other indicia of deliberateness in the conspirac- cooed up "ith Marshall +u. 4he prosecution failed to sho" that the petitioner "as priv- to the conspirational sche'e. Much less is there an- proof that he profited fro' the 8uestioned acts. Ansuspicions of conspirac-, no 'atter ho" sincerel- and stron6l- felt b- the M&, 'ust be converted into evidence before conviction be-ond reasonable doubt 'a- be i'posed. 33 4he principles underl-in6 all that has been said above in e@culpation of 4abuena e8uall- appl- to Peralta
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in relation to the P$ Million for "hich he is bein6 held accountable, i.e., he acted in 6ood faith "hen he, upon the directive of 4abuena, helped facilitate the "ithdra"al of P$ Million of the P$$ Million of the MIAA funds. 4his is not a sheer case of blind and 'is6uided obedience, but obedience in 6ood faith of a dule@ecuted order. Indeed, co'pliance to a patentl- la"ful order is rectitude far better than contu'acious disobedience. In the case at bench, the order e'anated fro' the /ffice of the *resident and bears the si6nature of the President hi'self, the hi6hest official of the land. It carries "ith it the presu'ption that it "as re6ularl- issued. And on its face, the 'e'orandu' is patentl- la"ful for no la" 'aes the pa-'ent of an obli6ation ille6al. 4his fact, coupled "ith the ur6ent tenor for its e@ecution constrains one to act s"iftl- "ithout 8uestion. /bedientia est legis essentia . Besides, the case could not be detached fro' the realities then prevailin6 As aptl- observed b- Mr ustice Cru? in his dissentin6 opinion7 &e reect histor- in arbitraril- assu'in6 that the people "ere free durin6 the era and that the udiciar"as independent and fearless. &e no" it "as not7 even the upre'e Court at that ti'e "as not free. 4his is an undeniable fact that "e can not ust blin a"a-. Insistin6 on the contrar- "ould onl- 'ae our sincerit- suspect and even provoe scorn for "hat can onl- be described as our incredible credulit-. 3 But "hat appears to be a 'ore co'pellin6 reason for their ac8uittal is the violation of the accusedTs basic constitutional ri6ht to due process. espect for the +onstitution, to borro" once a6ain Mr. ustice Cru?Ts "ords, is more important than securing a conviction based on a violation of the rights of the accused. 3< &hile 6oin6 over the records, "e "ere struc b- the "a- the andi6anba-an activel- too part in the 8uestionin6 of a defense "itness and of the accused the'selves. 4abuena and Peralta 'a- not have raised this as an error, there is nevertheless no i'pedi'ent for us to consider such 'atter as additional basis for a reversal since the settled doctrine is that an appeal thro"s the "hole case open to revie", and it beco'es the dut- of the appellate court to correct such errors as 'a- be found in the ud6'ent appealed fro' "hether the- are 'ade the subect of assi6n'ents of error or not. 39 i'pl- consider the volu'e of 8uestions hurled b- the andi6anba-an. At the tain6 of the testi'on- of 9rancis Monera. then enior Assistant Oice President and Corporate Co'ptroller of PNCC, Att-. Andres ased si@teen )1J* 8uestions on direct e@a'ination. Prosecutor Oiernes onl- ased si@ )J* 8uestions on cross2e@a'ination in the course of "hich the court interected a total of t%enty-seven ?<=@ 8uestions )'ore than four ti'es Prosecutor OiernesT 8uestions and even 'ore than the co'bined total of direct and cross2e@a'ination 8uestions ased b- the counsels* After the defense opted not to conduct an- re2direct e@a'ination, the court further ased a total of ten )10* 8uestions. 37 4he trend intensified durin6 4abuenaTs turn on the "itness stand. Suestions fro' the court after 4abuenaTs cross2e@a'ination totalled sixty-seven ?=@. 38 4his is 'ore than five ti'es Prosecutor OiernesT 8uestions on cross2e@a'ination )1#*, and 'ore than double the total of direct e@a'ination and cross2e@a'ination 8uestions "hich is thirt-2 one )/1* K15 direct e@a'ination 8uestions b- Att-. Andres plus 1# cross2e@a'ination 8uestions bProsecutor OiernesL. In PeraltaTs case, the ustices, after his cross2e@a'ination, propounded a total of fort-2one )#1* 8uestions. 3; But 'ore i'portantl-, "e note that the 8uestions of the court "ere in the nature of cross e@a'inations characteristic of confrontation, probin6 and insinuation. 0 )4he insinuatin6 t-pe "as best e@e'plified in one 8uestion addressed to Peralta, "hich "ill be underscored.* 4hus "e be6 to 8uote in len6th fro' the transcripts pertainin6 to "itness Monera, 4abuena and Peralta. )Suestions fro' the Court are 'ared
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"ith asteriss and italici?ed for e'phasis.* )M!NERA* )As a bac6round, "hat "as elicited fro' his direct e@a'ination is that the PNCC had receivables fro' MIAA totallin6 P10(,#5$,/%(./$, and althou6h such receivables "ere lar6el- billin6s for escalation, the- "ere nonetheless all due and de'andable. &hat follo"s are the cross2e@a'ination of Prosecutor Oiernes and the court 8uestions*. CR!2EHAMINA4I!N BG PR!. OIERNE S Gou ad'it that as sho"n b- these E@hibits 5 and 52 a, the ite's here represent 'ostl- escalation billin6s. &ere those escalation billin6s properl- trans'itted to MIA authoritiesQ A I donTt have the docu'ents ri6ht no" to sho" that the- "ere trans'itted, but I have a letter b- our President, Mr. !la6uer, dated ul- J, 1%, follo"in6 up for pa-'ent of the balance of our receivables fro' MIA, sir. ZA AM!RE ZS 4his 'atter of escalation costs, is it not a 'atter for a conference bet"een the MIA and the PNCC for the deter'ination as to the correct a'ountQ A I a6ree, -our onor. As far as "e are concerned, our billin6s are "hat "e dee'ed are valid receivables And, in fact, "e have been follo"in6 up for pa-'ent. ZS 4his deter'ination of the escalation costs "as it accepted as the correct fi6ure b- MIA Q A I donTt have an- docu'ent as to the acceptance b- MIA -our onor, but our co'pan- "as able to 6et a docu'ent or a letter b- Minister !n6pin to President Marcos, dated anuar- 5, 1%$, "ith a 'ar6inal note or approval b- for'er President Marcos. ZP 3ARCI4!RENA ZS Basicall-, the letter of Mr. !n6pin is to "hat effectQ A 4he subect 'atter is approval of the supple'entar- contract and re8uest for partial defer'ent of pa-'ent for MIA Develop'ent Proect, -our onor. ZS It has nothin6 to do "ith the i'ple'entation of the escalation costsQ A 4he details sho" that 'ost of the accounts refer to our escalations, -our onor. ZS Does that indicate the co'putation for escalations "ere alread- billed or -ou do not have an- proof
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of that A !ur subsidiar- led6er "as based on billin6s to MIA and this letter of Minister !n6pin appears to have confir'ed our billin6s to MIA, -our onor. ZA AM!RE ZS &ere there partial pa-'ents 'ade b- MIA an these escalation billin6sQ A Based on records available as of toda-, the P10( 'illion "as reduced to about P$J.5 'illion, if 'recollection is correct, -our onor. ZP 3ARCI4!RENA ZS &ere the pa-'ents 'ade before or after 9ebruar- 1%J, since Mr. !la6uer is a ne" entrant to -our co'pan-Q &I4NE A 4he pa-'ents "ere 'ade after Dece'ber /1, 1%$ but I thin the pa-'ents "ere 'ade before the entr- of our President, -our onor. Actuall-, the pa-'ent "as in the for' of7 assi6n'ents to tate Invest'ent of about P(/ 'illion= and then there "as P15. 'illion application a6ainst advances 'ade or for'erl- 6iven= and there "ere pa-'ents to PNCC of about P(.J 'illion and there "as a pa-'ent for application on "ithholdin6 and contractual stoc of about P1 'illion= that su''ed up to P##.# 'illion all in all. And -ou deduct that fro' the P10( 'illion, the re'ainin6 balance "ould be about P$5 'illion. ZP 3ARCI4!RENA ZS &hat -ou are sa-in6 is that, for all the pa-'ents 'ade on this P10( 'illion, onl- P( 'illion had been pa-'ents in cash Q A Ges, -our onor. ZS 4he rest had been adust'ents of accounts, assi6n'ents of accounts, or offsettin6 of accountsQ A Ges, -our onor. ZS 4his is as of Dece'ber /1, 1%$Q A 4he P10( 'illion "as as of Dece'ber /1, 1%$, -our onor, but the balances is as of Au6ust 1%5. ZS &e are talin6 no" about the P## 'illion, 'ore or less, b- "hich the basic account has been reduced. 4hese reductions, "hether b- adust'ent or assi6n'ent or actual deliver- of cash, "ere 'ade after Dece'ber /1, 1%$Q
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&I4NE A Ges, -our onor. ZS And -our records indicate "hen these adust'ents and pa-'ents "ere 'adeQ A Ges, -our onor. ZA AM!RE ZS Gou said there "ere partial pa-'ents before of these escalation billin6s. Do "e 6et it fro' -ou that there "as an ad'ission of these escalation costs as co'puted b- -ou b- MIA, since there "as alreadpartial pa-'entsQ A Ges, -our onor. ZS o" "ere these pa-'ents 'ade before 9ebruar- 1%J, in case or chec, if there "ere pa-'ents 'adeQ A 4he P## 'illion pa-'ents "as in the for' of assi6n'ents, -our onor. ZP 3ARCI4!RENA ZS 4he 8uestion of the Court is, before Dece'ber /1, 1%$, "ere there an- li8uidations 'ade b- MIA a6ainst these escalation billin6sQ A I have not revie"ed the details of the record, -our onor. But the led6er card indicates that there "ere collections on pa6e ( of the E@hibit earlier presented. It "ill indicate that there "ere collections sho"n b- credits indicated on the credit side of the led6er. ZA AM!RE ZS Gour led6er does not indicate the 'anner of 6ivin6 credit to the MIA "ith respect to the escalation billin6s. &as the pa-'ent in cash or ust credit of so'e sort before Dece'ber /1, 1%$Q A Before Dece'ber /1, 1%$, the reference of the led6er are official receipts and I suppose these "ere pa-'ents in cash, -our onor. ZS Do -ou no" ho" the 'anner of this pa-'ent in cash "as 'ade b- MIAQ
A I do not no", -our onor. ZP 3ARCI4!RENA
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ZS But -our records "ill indicate thatQ A 4he records "ill indicate that, -our onor. ZS E@cept that -ou "ere not ased to brin6 the'Q A Ges, -our onor. ZS At all events, "e are talin6 of settle'ent or partial li8uidation prior to Dece'ber /1, 1%$Q A Ges, -our onor. ZP 3ARCI4!RENA ZS ubse8uent thereto, "e are talin6 'erel- of about P## 'illionQ A Ges, -our onor, as subse8uent settle'ents. ZS After Dece'ber /1, 1%$Q A Ges, -our onor. ZS And the- have li8uidated that, as -ou described it, b- "a- of assi6n'ents, adust'ents, b- offsets and b- P( 'illion of cash pa-'entQ A Ges, -our onor. ZA AM!RE ZS Gour standard operatin6 procedure before Dece'ber /1, 1%$ in connection "ith or in case of cash pa-'ent, "as the pa-'ent in cash or checQ A I "ould venture to sa- it "as b- chec, -our onor. ZS &hich is the safest "a- to do itQ A Ges, -our onor. P 3ARCI4!RENA ZS And the business "a-Q A Ges, -our onor.
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P 3ARCI4!RENA Continue. PR! OIERNE S Gou 'entioned earlier about the letter of for'er Minister !n6pin to the for'er President Marcos, did -ou sa- that letter concurs "ith the escalation billin6s reflected in E@hibits 5 and 52aQ &I4NE A 4he Co'pan- or the 'ana6e'ent is of the opinion that this letter, a cop- of "hich "e "ere able to 6et, is a confir'ation of the acceptance of our billin6s, sir. S 4his letter of Minister !n6pin is dated anuar- 5, 1%$, "hereas the entries of escalation billin6s as appearin6 in E@hibit 5 are dated une /0, 1%$, "ould -ou still insist that the letter of anuar- 1%$ confir's the escalation billin6s as of une 1%$Q A 4he entries started une /0 in the led6er card. And as of Dece'ber /1, 1%$, it stood at P10( 'illion after pa-'ents "ere 'ade as sho"n on the credit side of the led6er. I suppose hat the earlier a'ount, before the pa-'ent "as 'ade, "as bi66er and therefore I "ould venture to sa- that the letter of anuar5, 1%$ contains an a'ount that is part of the ori6inal contract account. &hat are indicated in the led6er are escalation billin6s. ZP 3ARCI4!RENA ZS &e are talin6 about the letter of Minister !n6pinQ A 4he letter of Minister !n6pin refers to escalation billin6s, sir. ZS As of "hat dateQ A 4he letter is dated anuar- 5, 1%$, -our onor. P 3ARCI4!RENA Continue. PR!. OIERNE
S accordance "ith this 'ared E@hibit 5"ere and properl52a, there "ere to credits 'ade inoffavor in In uland Nove'ber untilletter Dece'ber 1%$. 4hese credited the account MIAQof MIA &I4NE
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A Ges, sir. S In 1%J. fro' -our records as appearin6 in E@hibit 52a, there "ere no pa-'ents 'ade to PNCC bMIA for the 'onths of anuar- to une 1%JQ A Ges, sir. S And neither "as the a'ount of P(( 'illion re'itted to PNCC b- MIAQ A Ges, sir. PR! OIERNE 4hat "ill be all, -our onor. P 3ARCI4!RENA RedirectQ A44G ANDRE No redirect, -our onor. ZP 3ARCI4!RENA Suestions fro' the Court. ZA AM!RE ZS 9ro' -our records, for the 'onth of anuar- 1%J, there "as no pa-'ent of this escalation account b- MIAQ &I4NE A Ges, -our onor. But on pa6e ( of E@hibit 5 there appears an assi6n'ent of P(/ 'illion, that "as on epte'ber ($, 1%J. ZS But that is alread- under the present ad'inistrationQ A After 9ebruar- 1%J, -our onor. ZS But before 9ebruar-, in anuar- 1%J, there "as no pa-'ent "hatsoever b- MIA to PNCCQ A Per record there is none appearin6, -our onor.
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ZP 3ARCI4!RENA ZS 4he earliest pa-'ent, "hether b- deliver- of cash e8uivalent or of adust'ent of account, or bassi6n'ent, or b- offsets, "hen did these pa-'ents be6inQ A Per led6er card, there "ere pa-'ents in 1%$, prior to Dece'ber /1, 1%$, -our onor. ZS After Dece'ber /1, 1%$Q A 4here appears also P(/ 'illion as credit, that is a for' of settle'ent, -our onor. ZS 4his is as of epte'ber ($Q A Ges, -our onor. 4here "ere subse8uent settle'ents P(/ 'illion is ust part of the P## 'illion. ZS And "hat -ou are sa-in6 is that, PNCC passed the account to tate Invest'ent. In other "ords, tate Invest'ent bou6ht the credit of MIAQ A Ges, -our onor. ZS And the a'ount of credit or receivables sold b- PNCC to tate Invest'ent is P(/ 'illionQ A Ges, -our onor. ZS Is there a pa-bac a6ree'entQ A I have a cop- of the assi6n'ent to tate Invest'ent but I have not -et revie"ed the sa'e, -our onor. ZA AM!RE ZS As of no", is this obli6ation of MIA, no" NAIA, paid to PNCCQ A 4here is still a balance of receivables fro' MIA as evidenced b- a collection letter b- our President dated ul- J, 1%, -our onor. 4he a'ount indicated in the letter is P$$ 'illion. P 3ARCI4!RENA An- clarifications -ou "ould lie to 'ae Mr. EstebalQ A44G E4EBA+ None, -our onor. P 3ARCI4!RENA
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Mr. OiernesQ PR! OIERNE No 'ore, -our onor. P 3ARCI4!RENA 4he "itness is e@cused. 4han -ou ver- 'uch Mr. Monera. . . . 1 )4AB;ENA* )In his direct e@a'ination, he testified that he caused the preparation of the checs totallin6 P$$ Million pursuant to the MARC! Me'orandu' and that he thereafter delivered said a'ount in cash on the three )/* dates as alle6ed in the infor'ation to MarcosT private secretar- Mrs. i'ene? at her office at A6uado treet, "ho thereafter issued a receipt. 4abuena also denied havin6 used the 'one- for his o"n personal use.* CR!2EHAMINA4I!N BG PR!. OIERNE S 4he a'ount of P$$ 'illion as covered b- the three )/* checs Mr. 4abuena, "ere delivered on ho" 'an- occasionsQ A 4hree ti'es, sir. S And so, on the first t"o deliveries, -ou did not as for a receipt fro' Mrs. 3i'ene?Q A Ges, sir. S It "as onl- on anuar- /0, 1%J that this receipt E@hibit / "as issued b- Mrs. 3i'ene?Q A Ges, sir. ZP 3ARCI4!RENA ZS o anuar- /0 is the date of the last deliver-Q A I re'e'ber it "as on the /1st of anuar-, -our onor &hat happened is that, I did not notice the date placed b- Mrs. 3i'ene?. S Are -ou tellin6 us that this E@hibit / "as incorrectl- dated A Ges, -our onor.
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ZS Because the third deliver- "as on anuar- /1st and -et the receipt "as dated anuar- /0Q A Ges, -our onor. ZS &hen "as E@hibit / delivered actuall- b- Mrs. 3i'ene?Q A anuar- /1st, -our onor. P 3ARCI4!RENA Continue. PR! OIERNE S Gou did not 6o to Malaca:an6 on anuar- /0, 1%JQ A Ges, sir, I did not. S Do -ou no" at "hose instance this E@hibit / "as preparedQ A I ased for it, sir. S Gou ased for it on anuar- /1, 1%J "hen -ou 'ade the last deliver-Q A Ges, sir. S Did -ou see this E@hibit / prepared in the !ffice of Mrs. 3i'ene?Q A Ges, sir. S 4his receipt "as t-pe"ritten in Malaca:an6 stationer-. Did -ou see "ho t-ped this receiptQ A No, sir. &hat happened is that, she "ent to her roo' and "hen she ca'e out she 6ave 'e that receipt. ZP 3ARCI4!RENA S &hat -ou are sa-in6 is, -ou do not no" "ho t-ped that receiptQ &I4NE A Ges, -our onor. ZS Are -ou 'ain6 an assu'ption that she t-ped that receiptQ
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A Ges, -our onor, because she no"s ho" to t-pe. ZS Gour assu'ption is that she t-ped it herselfQ A Ges, -our onor. P 3ARCI4!RENA Proceed. PR!. OIERNE S 4his receipt "as prepared on anuar- /1, althou6h it is dated anuar- /0Q A Ges, sir, because I "as there on anuar- /1st. S In "hat particular place did Mrs. 3i'ene? si6n this E@hibit /Q A In her office at A6uado, sir. S Did -ou actuall- see Mrs. 3i'ene? si6nin6 this receipt E@hibit /Q A No, sir, I did not. he "as inside her roo'. S o, she "as in her roo' and "hen she ca'e out of the roo', she handed this receipt to -ou alreadt-ped and si6nedQ A Ges, sir. ZA ERM!IIMA ZS o, ho" did -ou no" this "as the si6nature of Mrs. 3i'ene?Q &I4NE A Because I no" her si6nature, -our onor. I have been receivin6 letters fro' her also and "hen she re8uests for so'ethin6 fro' 'e. er "ritin6 is fa'iliar to 'e. o, "hen the Presidin6 ustice ased -ou as to ho" -ou ne" that this "as the si6nature of Mrs. 3i'ene? and -ou ans"ered that -ou sa" Mrs. 3i'ene? si6ned it, -ou "ere not e@actl- truthfulQ A &hat I 'ean is, I did not see her si6n because she "ent to her roo' and "hen she ca'e out, she 6ave 'e that receipt, -our onor.
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P 3ARCI4!RENA 4hat is "h- -ou have to "ait for the 8uestion to be finished and listen to it carefull-. Because "hen I ased -ou, -ou said -ou sa" her si6ned it. Be careful Mr. 4abuena. &I4NE Ges, -our onor. P 3ARCI4!RENA Continue. PR! OIERNE &as there another person inside the office of Mrs. 3i'ene? "hen she 6ave -ou this receipt E@hibit /Q A Nobod-, sir. S I noticed in this receipt that the last deliver- of the su' of P$$ 'illion "as 'ade on anuar- /0. Do "e understand fro' -ou that this date anuar- /0 is erroneousQ A Ges, sir, that anuar- /0 is erroneous. I noticed it onl- after"ards. 4his should be anuar- /1st, sir. PR! OIERNE 4hat "ill be all, -our onor. P 3ARCI4!RENA RedirectQ A44G. ANDRE No redirect, -our onor. ZP 3ARCI4!RENA Suestions fro' the Court. ZA ERM!IIMA ZS &h- did -ou not as for a receipt on the first and second deliveriesQ
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A Because I no" that the deliver- "as not co'plete -et, -our onor. ZP 3ARCI4!RENA ZS o -ou no" that the total a'ount to be delivered "as P$$ 'illionT* A Ges, -our onor. P 3ARCI4!RENA Response b- Mr. Peralta to the testi'on- of Mr. 4abuena. A44G. E4EBA+ &e are adoptin6 the testi'on- of Mr. 4abuena and "e "ill also present the accused, -our onor. ZA DE+ R!ARI! S 9ro' "ho' did -ou receive the PresidentTs 'e'orandu' 'ared E@hibit 1Q !r 'ore precisel-, "ho handed -ou this 'e'orandu'Q A Mrs. 9e Roa 3i'ene?, -our onor. S Did -ou as Mrs, 9e 3i'ene? for "hat purpose the 'one- "as bein6 asedQ A 4he 'one- "as in pa-'ent for the debt of the MIA Authorit- to PNCC, -our onor. ZS If it "as for the pa-'ent of such obli6ation "h- "as there no voucher prepared to cover such pa-'entQ In other "ords, "h- "as the deliver- of the 'one- not covered b- an- voucherQ A 4he instruction to 'e "as to 6ive it to the !ffice of the President, -our onor. ZP 3ARCI4!RENA ZS Be that as it 'a-, "h- "as there no voucher to cover this particular disburse'entQ A I "as ust told to brin6 it to the !ffice of the President, -our onor. ZA DE+ R!ARI! ZS &as that nor'al procedure for -ou to pa- in cash to the !ffice of the President for obli6ations of the MIAA in pa-'ent of its obli6ation to another entit-Q &I4NE
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A No, -our onor, I "as ust follo"in6 the !rder to 'e of the President. ZP 3ARCI4!RENA ZS o the !rder "as out of the ordinar-Q A Ges, -our onor. ZA DE+ R!ARI! Did -ou file an- "ritten protest "ith the 'anner "ith "hich such pa-'ent "as bein6 orderedQ A No, -our onor. ZS &h- notQ A Because "ith that instruction of the President to 'e, I follo"ed, -our onor. ZS Before receivin6 this 'e'orandu' E@hibit 1, did the for'er President Marcos discuss this 'aitter "ith -ouQ A Ges, -our onor. ZS &hen "as thatQ A e called 'e up earlier, a "ee before that, that he "ants to 'e pa- "hat I o"e the PNCC directl- to his office in cash, -our onor. ZP 3ARCI4!RENA ZS B- I !&E , -ou 'ean the MIAAQ &I4NE A Ges, -our onor. ZA DE+ R!ARI! ZS And "hat did -ou sa- in this discussion -ou had "ith hi'Q A I ust said, Ges, sir, I "ill do it> ZS &ere -ou the one "ho ased for a 'e'orandu' to be si6ned b- hi'Q
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A No, -our onor. ZS After receivin6 that verbal instruction for -ou to pa- MIAATs obli6ation "ith PNCC, did -ou not on -our o"n accord alread- prepare the necessar- papers and docu'ents for the pa-'ent of that obli6ationQ A e told 'e verball- in the telephone that the !rder for the pa-'ent of that obli6ation is forthco'in6, -our onor. I "ill receive it. ZS Is this the first ti'e -ou received such a 'e'orandu' fro' the PresidentQ A Ges, -our onor. ZS And "as that the last ti'e also that -ou received such a 'e'orandu'Q A Ges, -our onor. ZS Did -ou not in8uire, if not fro' the President, at least fro' Mrs. 3i'ene? "h- this procedure has to be follo"ed instead of the re6ular procedureQ A No, sir. ZA DE+ R!ARI! ZS &h- did -ou not asQ A I "as ust ordered to do this thin6, -our onor. ZA ERM!IIMA ZS Gou said there "as an I !&E G!;Q A Ges, -our onor. ZS &here is that I !&E G!; no"Q A All I no" is that "e o"e PNCC the a'ount of P%%.1 'illion, -our onor. MIAA o"es PNCC that a'ount. ZS &as this pa-'ent covered b- receipt fro' the PNCCQ A It "as not covered, -our onor. ZS o the obli6ation of MIAA to PNCC "as not, for the record, cancelled b- virtue of that pa-'entQ
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A Based on the order to 'e b- the for'er President Marcos orderin6 'e to pa- that a'ount to his office and then the 'echanics "ill co'e after, -our onor. ZS Is the PNCC a private corporation or 6overn'ent entit-Q A I thin it is partl- 6overn'ent, -our onor. ZP 3ARCI4!RENA ZS 4hat is the for'er CDCPQ A Ges, -our onor. ZA ERM!IIMA ZS &h- "ere -ou not 'ade to pa- directl-, to the PNCC considerin6 that -ou are the Mana6er of MIA at that ti'e and the PNCC is a separate corporation, not an adunct of Malaca:an6Q &I4NE A I "as ust basin6 it fro' the !rder of Malacanan6 to pa- PNCC throu6h the !ffice of the President, -our onor. ZS Do -ou no" the President or Chair'an of the Board of PNCCQ A Ges, -our onor. S o" "as the obli6ation of MIAA to PNCC incurred. &as it throu6h the President or Chair'an of the BoardQ A PNCC "as the one that constructed the MIA, -our onor. ZS &as the obli6ation incurred throu6h the President or Chair'an of the Board or President of the PNCCQ In other "ords, "ho si6ned the contract bet"een PNCC and MIAAQ A Actuall-, "e inherited this obli6ation, -our onor. 4he one "ho si6ned for this "as the for'er Director of BA4 "hich is 3eneral in6?on. 4hen "hen the MIA Authorit- "as for'ed, all the obli6ations of BA4 "ere transferred to MIAA. o the accountabilities of BA4 "ere transferred to MIAA and "e are the ones that are 6oin6 to pa-, -our onor.
ZS &h- did -ou a6ree to pa- to Malaca:an6 "hen -our obli6ation "as "ith the PNCCQ A I "as ordered b- the President to do that, -our onor.
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ZS Gou a6reed to the order of the President not"ithstandin6 the fact that this "as not the re6ular course or Malaca:an6 "as not the creditorQ A I sa" nothin6 "ron6 "ith that because that is co'in6, fro' the President, -our onor. ZS 4he a'ount "as not a oe, a'ountin6 to P$$ 'illion, and -ou a6reed to deliver 'one- in this a'ount throu6h a 'ere receipt fro' the private secretar-Q A I "as ordered b- the President, -our onor. ZP 3ARCI4!RENA ZS 4here is no 8uestion and it can be a 'atter of udicial no"led6e that -ou have been "ith the MIA for so'eti'eQ A Ges, -our onor. ZS Prior to 1%JQ A Ges, -our onor. ZS Can -ou tell us "hen -ou beca'e the Mana6er of MIAQ A I beca'e Mana6er of MIA "a- bac, late 1%J, -our onor. ZS +on6 before the MIA "as constituted as an independent authorit-Q A Ges, -our onor. ZP 3ARCI4!RENA ZS And b- 1%J, -ou have been runnin6 the MIA for 1 -earsQ &I4NE A Ges, -our onor. ZS And prior to -our oinin6 the MIA, did -ou ever "or for the 6overn'entQ A No, -our onor. ZS o, is it correct for us to sa- that -our oinin6 the MIA in 1%J as its Mana6er "as -our first e'plo-'ent ,"ith the 6overn'entQ
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A Ges, -our onor. ZS &hile -ou "ere Mana6er of MIA, did -ou have other subse8uent concurrent positions in the 6overn'ent alsoQ A I "as also the Chair'an of the 3a'es and A'use'ent Board, -our onor. ZS But -ou "ere not the e@ecutive or operatin6 officer of the 3a'es and A'use'ent BoardQ A I "as, -our onor. ZS As Chair'an -ou "ere runnin6 the 3a'es and A'use'ent BoardQ A Ges, -our onor. ZS &hat else, "hat other 6overn'ent positions did -ou occup- that ti'eQ A I "as also Co''issioner of the 3a'e 9o"l Co''ission, -our onor. ZP 3ARCI4!RENA ZS 4hat is the cocfi6htin6Q &I4NE A Ges, -our onor. ZS ere, -ou "ere ust a 'e'ber of the BoardQ A Ges, -our onor. ZS o -ou "ere not runnin6 the co''issionQ A Ges, -our onor. ZS An- other entit-Q A No 'ore, -our onor. ZS As far as -ou can recall, besides bein6 the Mana6er of the MIA and later the MIAA for appro@i'atel- 1 -ears, -ou also ran the 3a'es and A'use'ent Board as its e@ecutive officerQ A Ges, -our onor.
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ZS And -ou "ere a co''issioner onl- of the Ca'e 9o"l Co''issionQ A Ges, -our onor. ZS &ho "as runnin6 the co''ission at that ti'eQ A I for6ot his na'e, but he retired alread-, -our onor. ZS All of us "ho oined the 6overn'ent, sooner or later, 'eet "ith our Resident C!A representativeQ A Ges, -our onor. ZP 3ARCI4!RENA ZS And one of our unfortunate e@perience ) sic* is "hen the C!A Representative co'es to us and sa-s7 Chair'an or Mana6er, this cannot be. And "e learn later on that C!A has reasons for its procedure and "e learn to adopt to the'Q &I4NE A Ges, -our onor. ZS As a 'atter of fact, so'eti'es "e consider it inefficient, so'eti'es "e consider it foolish, but "e no" there is reason in this apparent 'adness of the C!A and so "e co'pl-Q A Ges, -our onor. ZS And 'ore than an-thin6 else the C!A is ever an@ious for prope r docu'entation and proper supportin6 papersQ A Ges, -our onor. ZS o'eti'es, re6ardless of the a'ountQ A Ges, -our onor. ZS No", -ou have P$$ 'illion "hich -ou "ere ordered to deliver in cash, not to the creditor of the particular credit, and to be delivered in ar'ored cars to be acno"led6ed onl- b- a receipt of a personal secretar-. After al'ost 1 -ears in the 6overn'ent service and havin6 had that 'uch ti'e in dealin6 "ith C!A people, did it not occur to -ou to call a C!A representative and sa-, &hat "ill I do hereQ A I did not, -our onor. ZP 3ARCI4!RENA
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ZS Did -ou not thin that at least out of prudence, -ou should have ased the C!A for so'e 6uidance on this 'atter so that -ou "ill do it properl-Q &I4NE A &hat I "as 6oin6 to do is, after those thin6s I "as 6oin6 to tell that deliver- ordered b- the President to the C!A, -our onor. ZS 4hat is true, but "hat happened here is that -ou and Mr. Dabao or -ou and Mr. Peralta si6ned re8uests for issuance of Mana6erTs checs and -ou "ere acco''odated b- the PNB !ffice at Nichols "ithout an- internal docu'entation to ustif- -our re8uest for Mana6erTs checsQ A Ges, -our onor. ZS !f course "e had no inti'ation at that ti'e that Mr. Marcos "ill "in the elections but even then, the Dail- E@press, "hich "as considered to be a ne"spaper friendl- to the Marcoses at that ti'e, "ould occasionall- co'e "ith so2called e@pose, is that not soQ A Ges, -our onor. ZS And "orst, -ou had the so2called 'os8uito press that "ould al"a-s co'e out "ith the real or i'a6ined scandal in the 6overn'ent and place it in the headline, do -ou recall thatQ A Ges, -our onor. ZP 3ARCI4!RENA ;nder these circu'stances, did -ou not entertain so'e apprehension that so'e dislo-al e'plo-ees 'i6ht lea -ou out and banner headline it in so'e 'os8uito publications lie the Mala-a at that ti'eQ &I4NE A No, -our onor. ZP 3ARCI4!RENA I brin6 this up because "e are tr-in6 to find out different areas of fear. &e are in the 6overn'ent and "e in the 6overn'ent fear the C!A and "e also fear the press. &e 'i6ht 6et dra66ed into press releases on the 'ost innocent thin6. Gou believe thatQ A Ges, -our onor. ZS And usuall- our best defense is that these activities are properl- docu'entedQ
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A Ges, -our onor. ZS In this particular instance, -our "itnesses have told us about three )/* different trips fro' Nichols to A6uado usuall- late in the da- al'ost in 'ovie st-le fashion. I 'ean, the 'one- bein6 loaded in the trun of -our official car and then -ou had a bac2up truc follo"in6 -our carQ A Ges, -our onor. ZS Is that not 8uite a fearful e@perience to -ou Q A I did not thin of that at that ti'e, -our onor. ZP 3ARCI4!RENA S Gou did not thin it fearful to be drivin6 alon6 Ro@as Boulevard "ith P($ 'illion in the trun of -our carQ &I4NE A &e have securit- at that ti'e -our onor. A44G. ANDRE Gour onor, the P($ 'illion "as in the ar'ored car= onl- P$ 'illion "as in the trun of his car. ZP 3ARCI4!RENA 4han -ou for the correction. Even P1 'illion onl-. o" 'uch 'ore "ith P$ 'illion inside the trun of -our car, "as that not a nervous e@perienceQ A As I have said, -our onor, I never thou6ht of that. P 3ARCI4!RENA 4han -ou ver- 'uch, Mr. 4abuena. Gou are e@cused. . . . 2 )PERA+4A* )e testified on direct e@a'ination that he co2si6ned "ith 4abuena a 'e'orandu' re8uest for the issuance of the Mana6erTs Chec for P$ Million upon order of 4abuena and that he KPeraltaL "as a"are that MIAA had an e@istin6 obli6ation "ith PNCC in the a'ount of around P(5 Million. e affir'ed havin6 acco'panied 4abuena at the PNB Oilla'or Branch to "ithdra" the P$ Million, but denied havin6 'isappropriated for his o"n benefit said a'ount or an- portion thereof.*
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CR!2EHAMINA4I!N BG PR! OIERNE S &ill -ou please tell the onorable Court "h- "as it necessar- for -ou to co2si6n "ith Mr. 4abuena the re8uest for issuance of Mana6erTs chec in the a'ount of P$ 'illionQ A At that ti'e I "as the Actin6 9inancial ervices Mana6er of MIAA, sir, and all "ithdra"als of funds should have '- si6nature because I "as one of the si6natories at that ti'e. S As Actin6 9inancial ervices Mana6er of MIAA, -ou al"a-s co2si6n "ith Mr. 4abuena in si'ilar re8uests for the issuance of Mana6erTs checs b- the PNBQ A 4hat is the onl- occasion I si6ned, sir. S Did -ou sa- -ou "ere ordered b- Mr. 4abuena to si6n the re8uestQ A Ges, sir, and I thin the order is part of the e@hibits and based on that order, I co2si6ned in the re8uest for the issuance of Mana6erTs chec in favor of Mr. +uis 4abuena. PR! OIERNE S &as there a separate "ritten order for -ou to co2si6n "ith Mr. 4abuenaQ &I4NE A Ges, sir, an order "as 6iven to 'e b- Mr. 4abuena. ZP 3ARCI4!RENA &as that 'ared in evidenceQ &I4NE Ges, -our onor. ZP 3ARCI4!RENA &hat e@hibitQ &I4NE I have here a cop-, -our onor. 4his "as the order and it "as 'ared as e@hibit N. PR! OIERNE
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It "as 'ared as E@hibit M, -our onor. S o" did -ou no" there "as an e@istin6 liabilit- of MIAA in favor of PNCC at that ti'eQ A Because prior to this 'e'orandu' of Mr. 4abuena, "e prepared the financial state'ent of MIAA as of Dece'ber /1, 1%$ and it ca'e to '- attention that there "as an e@istin6 liabilit- of around P(5,%%%,000.00, -our onor. S &hen "as that 9inancial tate'ent preparedQ A I prepared it around anuar- (( or (#, so'ethin6 lie that, of 1%J, sir. S Is it -our usual practice to prepare the 9inancial tate'ent after the end of the -ear "ithin three )/* "ees after the end of the -earQ A Ges, sir, it "as a nor'al procedure for the MIAA to prepare the 9inancial tate'ent on or before the #th 9rida- of the 'onth because there "ill be a Board of Directors Meetin6 and the 9inancial tate'ent of the prior 'onth "ill be presented and discussed durin6 the 'eetin6. ZP 3ARCI4!RENA ZS 4his 'atter of preparin6 9inancial tate'ent "as not an annual activit- but a 'onthl- activit-Q A Ges, -our onor. ZS 4his 9inancial tate'ent -ou prepared in anuar- of 1%J recapitulated the financial condition as of the end of the -earQ A Ges, -our onor. P 3ARCI4!RENA Continue. PR! OIERNE S Gou 'ade 'ention of a re8uest for Escalation Clause b- for'er Minister !n6pin. Did -ou personallsee that re8uestQ A &hen this order co'in6 fro' Mr. 4abuena "as sho"n to 'e, I "as sho"n a cop-, sir. I have no file because I ust read it. S It "as Mr. 4abuena "ho sho"ed -ou the letter of Minister !n6pinQ
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A Ges, sir. ZP 3ARCI4!RENA And that "ill be E@hibitQ A44G. ANDRE E@hibit ( and (2A, -our onor. PR! OIERNE S Gou also stated that -ou "ere "ith Mr. 4abuena "hen -ou "ithdre" the a'ount of P$ 'illion fro' the PNB E@tension !ffice at Oilla'orQ A Ges, sir. S &h- "as it necessar- for -ou to 6o "ith hi' on that occasionQ A Mr. 4abuena re8uested 'e to do the countin6 b- 'illion, sir. o "hat I did "as to bundle count the P$ 'illion and it "as placed in t"o )(* peerless bo@es. S Did -ou actuall- participate in the countin6 of the 'one- b- bundlesQ A Ges, sir. S Bundles of ho" 'uch per bundleQ A If I re'e'ber ri6ht, the bundles consisted of P100s and P$0s, sir. S No P(0s and P10sQ A Ges, sir, I thin it "as onl- P100s and P$0s. ZP 3ARCI4!RENA ZS If there "ere other deno'inations, -ou can not recallQ A Ges, -our onor. PR! OIERNE S In ho" 'an- bo@es "ere those bills placedQ
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A 4he P$ 'illion "ere placed in t"o )(* peerless bo@es, S And -ou also "ent "ith Mr. 4abuena to A6uadoQ A No, sir, I "as left behind at Nichols. After it "as placed at the trun of the car of Mr. 4abuena, I "as left behind and I "ent bac to '- office at MIA. S But the fact is that, this P$ 'illion "as "ithdra"n at passed $700 oTcloc in the afternoonQ A I started countin6 it I thin at around #7/0, sir. It "as after office hours. But then I "as there at around #700 oTcloc and "e started countin6 at around #7/0 p.'. because the- have to place it in a roo', "hich is the office of the Mana6er at that ti'e. S And Mr. 4abuena left for Malaca:an6 after $700 oTcloc in the afternoon of that dateQ A Ges, sir. After "e have counted the 'one-, it "as placed in the peerless bo@es and Mr. 4abuena left for Malacanan6. PR! OIERNE S And -ou -ourself, returned to -our office at MIAQ &I4NE A Ges, sir. S ;ntil "hat ti'e do -ou hold office at the MIAQ A ;suall- I over2sta-ed for one )1* or t"o )(* hours ust to finish the paper "ors in the office, sir. S o, even if it "as alread- after $700 oTcloc in the afternoon, -ou still "ent bac to -our office at MIAQ A Ges, sir. PR! OIERNE 4hat "ill be all, -our onor. P 3ARCI4!RENA RedirectQ A44G. E4EBA+
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No redirect, -our onor. ZP 3ARCI4!RENA Suestions fro' the Court. ZA DE+ R!ARI! ZS Did -ou not consider it as odd that -our obli6ation "ith the PNCC had to be paid in cashQ &I4NE A Based on the order of President Marcos that "e should pa- in cash, it "as not based on the nor'al procedure, -our onor. ZS And, as Actin6 9inancial ervices Mana6er, -ou "ere a"are that all disburse'ents should be covered b- vouchersQ A Ges, -our onor, the pa-'ents should be covered b- vouchers. But then, inas'uch as "hat "e did "as to prepare a re8uest to the PNB, then this can be covered b- ournal Ooucher also. ZS &as such pa-'ent of P$ 'illion covered b- a ournal OoucherQ A Ges, -our onor. ZS Did -ou present that ournal Ooucher here in CourtQ A &e have a cop-, -our onor. ZS Do -ou have a cop- or an e@cerpt of that ournal Ooucher presented in Court to sho" that pa-'entQ A &e have a cop- of the ournal Ooucher, -our onor. ZS &as this pa-'ent of P$ 'illion ever recorded in a cashboo or other accountin6 boos of MIAA Q A 4he pa-'ent of P$ 'illion "as recorded in a ournal Ooucher, -our onor. ZP 3ARCI4!RENA ZS In other "ords, the recordin6 "as 'ade directl- to the ournalQ &I4NE A Ges, -our onor.
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ZS 4here are no other separate docu'ents as part of the application for Mana6erTs ChecQ A Ges, -our onor, there "as none. ZA DE+ R!ARI! ZS After the pa-'ent "as 'ade, did -our office receive an- receipt fro' PNCCQ A I "as sho"n a receipt b- Mr. 4abuena, the receipt 6iven b- Mrs. 9e Roa 3i'ene?, -our onor. Inas'uch as the pa-'ent should be 'ade throu6h the !ffice of the president, I accepted the receipt 6iven b- Mrs. 9e 3i'ene? to Mr. 4abuena. ZS After receivin6 that receipt, did -ou prepare the necessar- supportin6 docu'ents, vouchers, and use that receipt as a supportin6 docu'ent to the voucherQ A Gour onor, a ournal Ooucher "as prepared for that. ZS o" about a disburse'ent voucherQ A Inas'uch as this "as a re8uest for Mana6erTs chec, no disburse'ent voucher "as prepared, -our onor. ZA DE+ R!ARI! ZS Since the payment %as made on 3anuary 81, >B, and that %as very close to the election held in
that year, did you not entertain any doubt that the amounts %ere being used for some other purpose Q A44G. E4EBA+ &ith due respect to the onorable ustice, "e are obectin6 to the 8uestion on the 6round that it is i'proper. ZA DE+ R!ARI! I "ill "ithdra" the 8uestion. ZP 3ARCI4!RENA &hat is the 6round for i'propriet-Q A44G. E4EBA+ 4his is not covered in the direct e@a'ination, and secondl-, I donTt thin there "as an- basis, -our onor.
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ZP 3ARCI4!RENA Considerin6 the "ithdra"al of the 8uestion, ust 'ae the obection on record. ZA ERM!IIMA ZS As a Certified Public Accountant and 9inancial Mana6er of the MIAA, did -ou not consider it proper that a chec be issued onl- after it is covered b- a disburse'ent voucher dul- approved b- the proper authorities Q A Gour onor, "hat "e did "as to send a re8uest for a Mana6erTs chec to the PNB based on the re8uest of Mr. 4abuena and the order of Mr. 4abuena "as based on the !rder of President Marcos. ZP 3ARCI4!RENA ZS In -our capacit- as 9inancial ervices Mana6er of the MIAA, did -ou not thin it proper to have this transaction covered b- a disburse'ent voucherQ &I4NE A Based on '- e@perience, pa-'ents out of cash can be 'ade throu6h cash vouchers, or even thou6h ournal Oouchers, or even throu6h credit 'e'o, -our onor. ZA ERM!IIMA ZS 4his "as an obli6ation of the MIAA to the PNCC. &h- did -ou allo" a disburse'ent b- 'eans of chec in favor of Mr. +uis 4abuena, -our o"n 'ana6erQ A &e based the pa-'ent on the order of Mr. 4abuena because that "as the order of President Marcos to pa- PNCC throu6h the !ffice of the President and it should be paid in cash, -our onor. ZS Gou are supposed to pa- onl- on le6al orders. Did -ou consider that le6alQ A44G. E4EBA+ &ith due respect to the onorable ustice, the 8uestion calls for a conclusion of the "itness. ZP 3ARCI4!RENA Considerin6 that tire "itness is an e@pert, "itness 'a- ans"er. &I4NE A 4he order of president Marcos "as le6al at that ti'e because the order "as to pa- PNCC the a'ount
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of P$ 'illion throu6h the !ffice of the President and it should be paid in cash, -our onor. And at that ti'e, I no" for a fact also that there "as an e@istin6 P.D. "herein the President of the Republic of the Philippines can transfer funds fro' one office to another and the PNCC is a 8uasi 6overn'ent entit- at that ti'e. ZA ERM!IIMA ZS Are -ou sa-in6 that this transaction "as 'ade on the basis of that P.D. "hich -ou referred toQ A I a' not a"are of the 'otive of the President, but then since he is the President of the Philippines, his order "as to pa- the PNCC throu6h the !ffice of the President, -our onor. ZS As 9inancial Mana6er, "h- did -ou allo" a pa-'ent in cash "hen ordinaril- pa-'ent of an obli6ation of MIAA is supposed to be paid in checQ A I caused the pa-'ent throu6h the na'e of Mr. 4abuena because that "as the order of Mr. 4abuena and also he received an order co'in6 fro' the President of the Philippines at that ti'e, -our onor. ZP 3ARCI4!RENA ZS Mr. Peralta, are not ournal Oouchers 'erel- entries in the ournals to correct certain state'ents of accounts earlier 'ade in the sa'e ournalQ In other "ords, reall- "hat -ou are tellin6 us is that, a ournal Ooucher is to e@plain a transaction "as other"ise not recorded. &I4NE A Ges, -our onor. ZS 4herefore, "hen -ou said that a ournal Ooucher here is proper, -ou are sa-in6 it is proper onlbecause of the e@ceptional nature of the transactionsQ A Ges, -our onor. ZS In other "ords, as an Accountant, -ou "ould not nor'all- authori?e such a 'ove'ent of 'oneunless it is properl- docu'entedQ A44G. E4EBA+ &ith due respect to the onorable Presidin6 ustice, I thin the 8uestion is 'isleadin6 because "hat the "itness stated is. . . ZP 3ARCI4!RENA
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Be careful in -our obection because the "itness understands the lan6ua6e -ou are speain6, and therefore, -ou 'i6ht be coachin6 hi'. A44G. E4EBA+ No, -our onor. I a' also an accountant that is "h- I could sa- that. . . ZP 3ARCI4!RENA Please be si'ple in -our obection. A44G. E4EBA+ 4he 8uestion is 'isleadin6 on the 6round that "hat the "itness stated earlier is that the ournal Ooucher in this particular case "as supported, -our onor. ZP 3ARCI4!RENA !verruled, 'a- ans"er. &I4NE A 4he transaction "as full- docu'ented since "e have the order of the 3eneral Mana6er at that ti'e and the order of President Marcos, -our onor. ZS Are -ou sa-in6 the !rder of the 3eneral Mana6er is an ade8uate basis for the 'ove'ent of 'one-Q A Ges, -our onor, because at that ti'e "e have also a recorded liabilit- of P(5 'illion. ZS "e are not talin6 of "hether or not there "as a liabilit-. &hat "e are sa-in6 is, is the order of the 3eneral Mana6er b- itself ade8uate "ith no other supportin6 papers, to ustif- the 'ove'ent of fundsQ A Ges, -our onor. 4he order of Mr. +uis 4abuena "as based on our e@istin6 liabilit- of P(5,%/1,000.00, inas'uch as "e have that liabilit- and I "as sho"n the order of President Marcos to pa- P$ 'illion throu6h the !ffice of the President, I considered the order of Mr. +uis 4abuena, the order of President Marcos and also the e@istin6 liabilit- of P(5 'illion sufficient to pa- the a'ount of P$ 'illion. Inas'uch as there is also an escalation clause of P%%.1 'illion, the pa-'ent of P$ 'illion is full- covered b- those e@istin6 docu'ents. ZP 3ARCI4!RENA Gou eep floodin6 us "ith details "e are not asin6 for. &e are not asin6 -ou "hether or not there "as valid obli6ation. &e are not asin6 -ou about the escalation clause. &e are asin6 -ou "hether or not this particular order of Mr. 4abuena is an ade8uate basis to ustif- the 'ove'ent of fundsQ
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&I4NE &hen "e pa-, -our onor, "e al"a-s loo for the necessar- docu'ents and at that ti'e I no" for a fact that there "as this e@istin6 liabilit-. ZP 3ARCI4!RENA &hen "e as 8uestions and "hen "e ans"er the', "e 'ust listen to the 8uestion bein6 ased and not to "hatever -ou "anted to sa-. I no" -ou are tr-in6 to protect -ourself. &e are a"are of -our state'ent that there are all of these 'e'oranda. ZS B- -our disburse'ent of such a'ount, -ou are sa-in6 that the order of Mr. 4abuena b- itself is ade8uateQ &I4NE A As far as I a' concerned, -our onor, inas'uch as "e have a liabilit- and I "as sho"n the !rder of President Marcos to pa- PNCC throu6h his office, I feel that the order of the 3eneral Mana6er, the order of President Marcos, and also the 'e'orandu' of Minister !n6pin are sufficient to cause the pa-'ent of P$ 'illion. ZP 3ARCI4!RENA ZS 4his Presidential Decree "hich authori?es the President to transfer funds fro' one depart'ent to another, is this not the one that refers to the reali6n'ent of funds insofar as the Appropriation Act is concernedQ &I4NE A Because at that ti'e, -our onor, I have no"led6e that the President is authori?ed throu6h a Presidential Decree to transfer 6overn'ent funds fro' one office to another. ZP 3ARCI4!RENA ZS ;nder the Appropriation Act. Are pa-'ents of debts of the MIAA covered b- the Appropriation ActQ A I thin the liabilit- "as dul- recorded and appropriations to pa- the a'ount is. . . . )interrupted* ZP 3ARCI4!RENA ZS 4ell 'e honestl-, is -our ans"er responsive to the 8uestion or are -ou ust thro"in6 "ords at us in the hope that "e "ill for6et "hat the 8uestion isQ A No, -our onor.
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ZS Are -ou tellin6 us that the debts incurred b- MIAA ate covered b- the Appropriations Act so that the pa-'ent of this debt "ould be in the sa'e level as the reali6n'ent of funds authori?ed the PresidentQ !r are -ou tellin6 as -ou did not read the DecreeQ A I "as a"are of that Decree, -our onor. ZP 3ARCI4!RENA Mr. Estebal, "ill -ou include in -our 'e'orandu' "hat are the Decrees authori?in6 this 'ove'ent of fundsQ A44G. E4EBA+ Ges, -our onor. ZP 3ARCI4!RENA ZS It is true that President Marcos "as the President, but he "as not an officer of the MIAA, "as heQ A No, -our onor. ZS In fact, for purposes of internal control, -ou have different officers and different officials in anco'pan- either 6overn'ent or private, "hich are supposed to chec and balance each other, is it notQ A Ges, -our onor. ZS o that "hen disburse'ents of funds are 'ade, the- are 'ade b- authorit- of not onl- one person alone so that nobod- "ill restrain hi'Q A Ges, -our onor. ZS 4hese checs and balances e@ist in an entit- so that no one person can dispose of funds in an- "ahe liesQ A Ges, -our onor. ZS And in fact, the purpose for havin6 t"o )(* si6natories to docu'ents and ne6otiable docu'ents is for the sa'e purposeQ A Ges, -our onor. ZP 3ARCI4!RENA ZS In other "ords, the co2si6natories counter chec each otherQ
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&I4NE A Ges, -our onor. ZS In -our case, -ou "ould be the counter chec for Mr. 4abuenaQ A Ges, -our onor. ZS In the other "ords, even if Mr. 4abuena is the Mana6er, -ou as 9inancial ervices Mana6er and as counter si6nator- are in a position to tell Mr. 4abuena, I a' sorr-, -ou are '- superior but this disburse'ent is not proper and, therefore, I "ill not si6n it., if in -our opinion the disburse'ent is not properQ A Ges, -our onor. ZS 4herefore, as a co2si6nator-, -ou e@pected to e@ercise -our ud6'ent as to the propriet- of a particular transactionsQ A Ges, -our onor. ZS And this is so'ethin6 -ou no" b- the nature of -our position and because -ou are a Certified Public AccountantQ A Ges, -our onor. ZA DE+ R!ARI! ZS Gou ad'it that the pa-'ent of P$ 'illion and P$0 'illion "ere unusual in the 'anner "ith "hich the- "ere disposedQ A Ges, -our onor. ZS Did -ou sub'it a "ritten protest to the 'anner in "hich such a'ount "as bein6 disposed ofQ A A "ritten protest "as not 'ade, -our onor, but I called the attention of Mr. 4abuena that since this pa-'ent "as upon the order of President Marcos, then I thin as President he can do thin6s "hich are not ordinar-. ZS If -ou did not prepare a "ritten protest, did -ou at least prepare a 'e'orandu' for the record that this "as an e@tra2ordinar- transactionQ A I called the attention of Mr. 4abuena that this "as an e@tra2ordinar- transaction and no "ritten note, -our onor.
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P 3ARCI4!RENA 4han -ou ver- 'uch Mr. Peralta, -ou are e@cused. . . .
3
4his Court has acno"led6ed the ri6ht of a trial ud6e to 8uestion "itnesses "ith a vie" to satisf-in6 his 'ind upon an- 'aterial point "hich presents itsel f durin6 the trial of a case over "hich he presides. But not onl- should his e@a'ination be li'ited to asin6 clarificatory 8uestions, < the ri6ht should be sparin6l- and udiciousl- used= for the rule is that the court should sta- out of it as 'uch as possible, neither interferin6 nor intervenin6 in the conduct of the trial. 9 ere, these li'itations "ere not observed. ardl- in fact can one avoid the i'pression that the andi6anba-an had allied itself "ith, or to be 'ore precise, had taen the cud6els for the prosecution in provin6 the case a6ainst 4abuena and Peralta "hen the ustices cross2e@a'ined the "itnesses, their cross2 e@a'inations supple'entin6 those 'ade b- Prosecutor Oiernes and far e@ceedin6 the latterTs 8uestions in len6th. 4he cold neutrality of an impartial udge re8uire'ent of due process "as certainl- denied 4abuena and Peralta "hen the court, "ith its over?ealousness, assu'ed the dual role of 'a6istrate and advocate. In this connection, the observation 'ade in the Dissentin6 !pinion to the effect that the 'aorit- of this Court "as unduldisturbed "ith the nu'ber of court 8uestions alone, is 8uite inaccurate. A substantial portion of the 4N "as incorporated in the 'aorit- opinion not to focus on nu'bers alone, but 'ore i'portantl- to sho" that the court 8uestions "ere in the interest of the prosecution and "hich thus depart fro' that co''on standard of fairness and i'partialit-. In fact, it is ver- difficult to be, upon revie" of the records, confronted "ith nu'bers "ithout necessaril- reali?in6 the partialit- of the Court. In ; v. De isto )( Cir., 1%J1, (% 9 (d //*, for e@a'ple, a ne" trial "as re8uired because the trial ud6e, as in this case, indul6ed in e@tensive 8uestionin6 of defendant and his "itnesses, and the revie"in6 court also had to a'plif- on nu'bers to bolster this. It "as pointed out in the De isto case that the ud6e ased /,11$ 8uestions of all "itnesses, the prosecutor ased but 1,/1, defense counsel /,//0. 4he ud6eTs 8uestions to the defendant De isto totalled /0J, the prosecutorTs /#5, and the defense counselTs, (01. After referrin6 to these fi6ures, the court stated7 . . . It is indeed an i'pressive proportion, but no such 'athe'atical co'putation is of itself deter'inative. o"ever, tain6 all this in conunction "ith the lon6 and vi6orous e@a'ination of the defendant hi'self b- the ud6e, and the repeated belittlin6 b- the ud6e of defendantTs efforts to establish the ti'e that 9ine left the pier, "e fear that in its ?eal for arrivin6 at the facts the court here conve-ed to the ur- too stron6 an i'pression of the courtTs belief in the defendantTs probable 6uilt to per'it the urfreel- to perfor' its o"n function of independent deter'ination of the facts. . . . 4he 'aorit- believes that the interference b- the andi6anba-an ustices "as ust too e@cessive that it cannot be ustified under the nor' applied to a ur- trial, or even under the standard e'plo-ed in a non2 ur- trial "here the ud6e is ad'ittedl- 6iven 'ore lee"a- in propoundin6 8uestions to clarif- points and to elicit additional relevant evidence. At the ris of bein6 repetitious, "e "ill a'plif- on this via so'e specific e@a'ples. Based on the evidence on record, and on the ad'ission of 4abuena hi'self, the P$$ 'illion "as delivered to the PresidentTs !ffice thru Mrs. 3i'ene?, in obedience to the Presidential directive. !ne andi6anba-an ustice, ho"ever, hurled the follo"in6 8uestions to Peralta7 A DE+ R!ARI! S7 ince the pa-'ent "as 'ade on anuar- /1, 1%J, and that "as ver- close to the election held in that
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-ear, did -ou not entertain an- doubt that the a'ounts "ere bein6 used for so'e other purposesQ A44G. E4EBA+ &ith due respect to the onorable ustice, &e are obectin6 to the 8uestion on the 6round that it is i'proper. A DE+ R!ARI! I "ill "ithdra" the 8uestion. P 3ARCI4!RENA &hat is the 6round for i'propriet-Q A44G. E4EBA+ 4his is not covered in the direct e@a'ination, and secondl-, I donTt thin there "as an- basis, Gour onor. P 3ARCI4!RENA Considerin6 the "ithdra"al of the 8uestion, ust 'ae the obection on record. Nothin6 fro' the precedin6 8uestions of counsels or of the court "ould serve as basis for this 8uestion. o" then, can this be considered even relevant Q &hat is the connection bet"een the pa-'ent 'ade to the PresidentTs office and the then forthco'in6 presidential snap electionQ In another instance, consider the follo"in6 8uestions of Presidin6 ustice 3architorena7 ZP 3ARCI4!RENA ZS Mr. Peralta, are not ournal Oouchers 'erel- entries in the ournals to correct certain state'ents of accounts earlier 'ade in the sa'e ournalQ @@@ @@@ @@@ ZS In other "ords, reall- "hat -ou are tellin6 us is that, a ournal Ooucher is to e@plain a transaction "as other"ise not recorded. @@@ @@@ @@@ ZS 4herefore, "hen -ou said that a ournal Ooucher here is proper, -ou are sa-in6 it is proper onlbecause of the e@ceptional nature of the transactionsQ
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@@@ @@@ @@@ ZS In other "ords, as an Accountant, -ou "ould not nor'all- authori?e such a 'ove'ent of 'oneunless it is properl- docu'entedQ A44G. E4EBA+ &ith due respect to the onorable Presidin6 ustice, I thin the 8uestion is 'isleadin6 because "hat the "itness stated is . . . ZP 3ARCI4!RENA Be careful in -our obection because the "itness understands the lan6ua6e -ou are speain6, and therefore, -ou 'i6ht be coachin6 hi'. A44G. E4EBA+ No, -our onor. I a' also an accountant that is "h- I could sa- that . . . ZP 3ARCI4!RENA Please be si'ple in -our obection. A44G. E4EBA+ 4he 8uestion is 'isleadin6 on the 6round that "hat the "itness stated earlier is that the ournal Ooucher in this particular case "as supported, -our onor. ZP 3ARCI4!RENA !verruled 'a- ans"er. &I4NE A 4he transaction "as full- docu'ented since "e have the order of the 3eneral Mana6er at that ti'e and the order of President Marcos, -our onor. ZS Are -ou sa-in6 the !rder of the 3eneral Mana6er is an ade8uate basis for the 'ove'ent of 'one-Q ZS &e are not talin6 of "hether or not there "as a liabilit-. &hat "e are sa-in6 is, is the order of the 3eneral Mana6er b- itself ade8uate "ith no other supportin6 papers, to ustif- the 'ove'ent of fundsQ ZP 3ARCI4!RENA
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Gou eep floodin6 us "ith details "e are not asin6 for. &e are not asin6 -ou "hether or not there "as valid obli6ation. &e are not asin6 -ou about the escalation clause. &e are asin6 -ou "hether or not this particular order of Mr. 4abuena is an ade8uate basis to ustif- the 'ove'ent of fundsQ ZP 3ARCI4!RENA &hen "e as 8uestions and "hen "e ans"er the', "e 'ust listen to the 8uestion bein6 ased and not to "hatever -ou "anted to sa-. I no" -ou are tr-in6 to protect -ourself. &e are a"are of -our state'ent that there are all of these 'e'oranda. ZS B- -our disburse'ent of such a'ount, -ou are sa-in6 that the order of Mr. 4abuena b- itself is ade8uateQ ZP 3ARCI4!RENA ZS 4his Presidential Decree "hich authori?es the President to transfer funds fro' one depart'ent to another, is this not the one that refers to the reali6n'ent of funds insofar as the Appropriation Act is concernedQ ZP 3ARCI4!RENA ZS ;nder the Appropriation Act. Are pa-'ents of debts of the MIAA covered b- the Appropriation ActQ ZP 3ARCI4!RENA ZS 4ell 'e honestl-, is -our ans"er responsive to the 8uestion or are -ou ust thro"in6 "ords at us in the hope that "e "ill for6et "hat the 8uestion isQ @@@ @@@ @@@ ZS Are -ou tellin6 us that the debts incurred b- MIAA are covered b- the Appropriations Act so that the pa-'ent of this debt "ould be in the sa'e level as the reali6n'ent of funds authori?ed the PresidentQ !r are -ou tellin6 as -ou did not read the DecreeQ ZP 3ARCI4!RENA Mr. Estebal, "ill -ou include in -our 'e'orandu' "hat are the Decrees authori?in6 this 'ove'ent of fundsQ A44G. E4EBA+ Ges, -our onor. ZP 3ARCI4!RENA
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ZS It is true that President Marcos "as the President, but he "as not an officer of the MIAA, "as heQ ZS In fact, for purposes of internal control, -ou have different in officers and different officials in anco'pan- either 6overn'ent or private, "hich are supposed to chec and balance each other, is it notQ ZS o that "hen disburse'ents of funds are 'ade, the- are 'ade b- authorit- of not onl- one person alone so that nobod- "ill restrain hi'Q ZS 4hese checs and balances e@ist in an entit- so that no one person can dispose of funds in an- "ahe liesQ ZS And in fact, the purpose for havin6 t"o )(* si6natories to docu'ents and ne6otiable docu'ents is for the sa'e purposeQ ZP 3ARCI4!RENA ZS In other "ords, the co2si6natories counter chec each otherQ ZS In -our case, -ou "ould be the counter chec for Mr. 4abuenaQ ZS In other "ords, even if Mr. 4abuena is the Mana6er, -ou as 9inancial ervices Mana6er and as counter si6nator- are in a position to tell Mr. 4abuena, I a' sorr-, -ou are '- superior but this disburse'ent is not proper and, therefore, I "ill not si6n it., if in -our opinion the disburse'ent is not properQ ZS 4herefore, as co2si6nator-, -ou are e@pected to e@ercise -our ud6'ent as to the propriet- of a particular transaction Q ZS And this is so'ethin6 -ou no" b- the nature of -our position and because -ou are a Certified Public AccountantQ 7 o" can these 8uestions be considered clarificator- "hen the- clearl- border 'ore on cross2 e@a'ination 8uestionsQ 4hus, the Dissentin6 !pinionTs focus on the distinction bet"een the t"o inds of trial to ustif- the andi6anba-anTs active participation in the e@a'ination of petitioners 4abuena and Peralta and "itness Monera, "ith due respect, appears insi6nificant to this case. +et it, therefore, be e'phasi?ed ane" that7 A trial ud6e should not participate in the e@a'ination of "itnesses as to create the i'pression that he is allied "ith the prosecution. 8 &e doubt not that the sole 'otive of the learned ud6e "as to ascertain the truth of the transaction, but it is never proper for a ud6e to dischar6e the duties of a prosecutin6 attorne-. o"ever an@ious a ud6e 'a- be for the enforce'ent of the la", he should al"a-s re'e'ber that he is as 'uch ud6e in behalf of the defendant accused of cri'e, and "hose libert- is in eopard-, as he is ud6e in behalf of the state, for the purpose of safe6uardin6 the interests of societ-. ;
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!rdinaril- it is not 6ood practice for the presidin6 ud6e hi'self to e@a'ine "itnesses at len6th. 4he circu'stances 'a- be such in a 6iven case as to ustif- the court in so doin6. . . . 4his court, ho"ever, has 'ore than once said that the e@a'ination of "itnesses is the 'ore appropriate function of counsel, and the instances are rare and the conditions e@ceptional "hich "ill ustif- the presidin6 ud6e in conductin6 an e@tensive e@a'ination. It is al"a-s e'barrassin6 for counsel to obect to "hat he 'adee' i'proper 8uestions b- the court. 4hen, in conductin6 a len6th- e@a'ination, it "ould be al'ost i'possible for the ud6e to preserve a udicial attitude. &hile he is not a 'ere fi6urehead or u'pire in a trial, and it is his dut- to see that ustice is done, he "ill usuall- not find it necessar- to conduct such e@a'inations. 4he e@tent to "hich this shall be done 'ust lar6el- be a 'atter of discretion, to be deter'ined b- the circu'stances of each particular case, but in so doin6 he 'ust not for6et the function <0
of the ud6e and assu'e that of an advocate. . . &hile it is true that the 'anner in "hich a "itness shall be e@a'ined is lar6el- in the discretion of the trial ud6e, it 'ust be understood that "e have not adopted in this countr- the practice of 'ain6 the presidin6 ud6e the chief in8uisitor. It is better to observe our ti'e2honored custo' of orderl- udicial procedure, even at the e@pense of occasional dela-s. . . . 4he ud6e is an i'portant fi6ure in the trial of a cause, and "hile he has the ri6ht, and it is often his dut-, to 8uestion "itnesses to the end that ustice shall prevail, "e can conceive of no other reason, for hi' to tae the trial of the cause out of the hands of counsel. <1 4he e@a'ination of "itnesses is the 'ore appropriate function of counsel, and it is believed the instances are rare and the conditions e@ceptional in a hi6h de6ree "hich "ill ustif- the presidin6 ud6e in enterin6 upon and conductin6 an e@tended e@a'ination of a "itness, and that the e@ercise of a sound discretion "ill seldo' dee' such action necessar- or advisable. <2 e Kthe ud6eL 'a- properl- intervene in a trial of a case to pro'ote e@pedition, and prevent unnecessar- "aste of ti'e, or to clear up so'e obscurit-, but he should bear in 'ind that his undue interference, i'patience, or participation in, the e@a'ination of "itnesses, or a severe attitude on his part to"ard "itnesses, especiall- those "ho are e@cited or terrified b- the unusual circu'sta nces of a trial, 'a- tend to prevent the proper presentation of the cause, or the ascertain'ent of the truth in respect thereto. <3 4he i'partialit- of the ud6e his avoidance of the appearance of beco'in6 the advocate of either one side or the other of the pendin6 controvers- is a funda'ental and essential rule of special i'portance in cri'inal cases. . . < !ur courts, "hile never un'indful of their pri'ar- dut- to ad'inister ustice, "ithout fear or favor, and to dispose of these cases speedil- and in as ine@pensive a 'anner as is possible for the court and the parties, should refrain fro' sho"in6 an- se'blance of one2sided or 'ore or less partial attitude in order not to create an- false i'pression in the 'inds of the liti6ants. 9or obvious reasons, it is the bounden dut- of all to strive for the preservation of the peopleTs faith in our courts. << 4i'e and a6ain this Court has declared that due process re8uires no less than the cold neutralit- of an i'partial ud6e. Bolsterin6 this re8uire'ent, "e have added that the ud6e 'ust not onl- be i'partial but 'ust also appear to be i'partial, to 6ive added assurance to the parties that his decision "ill be ust. 4he parties are entitled to no less than this, as a 'ini'u' 6uarant- of due process. <9
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&e are "ell a"are of the fear entertained b- so'e that this decision 'a- set a dan6erous precedent in that those 6uilt- of enrichin6 the'se lves at the e@pense of the public "ould be able to escape cri'inal liabilit- b- the 'ere e@pedient of invoin6 6ood faith. It 'ust never be for6otten, ho"ever, that "e render ustice on a case to case basis, al"a-s in consideration of the evidence that is presented. 4hus, "here the evidence "arrants an ac8uittal, as in this case, "e are 'andated not onl- b- the dictates of la" but lie"ise of conscience to 6rant the sa'e. !n the other hand, it does not follo" that all those si'ilarl- accused "ill necessaril- be ac8uitted upon reliance on this case as a precedent. 9or the decision in this case to be a precedent, the peculiar circu'stances and the evidence that led to the petitionerTs ac8uittal 'ust also be present in subse8uent cases. 9urther'ore, as bet"een a 'ere apprehension of a dan6erous precedent and an actual violation of constitutionall- enshrined ri6hts, it is definitel- the latter that 'erits our i''ediate attention. 9or the 'ost dan6erous precedent arises "hen "e allo" ourselves to be carried a"a- b- such fears so that it beco'es la"ful to sacrifice the ri6hts of an accused to cal' the fearful. In our ea6erness to brin6 to ustice the 'alefactors of the Marcos re6i'e, "e 'ust not succu'b to the te'ptation to co''it the 6reatest inustice of visitin6 the sins of the "ron6doers upon an innocent. &ERE9!RE, in vie" of the fore6oin6, herein petitioners +uis A. 4abuena and Adolfo M. Peralta are hereb- ACS;I44ED of the cri'e of 'alversation as defined and penali?ed under Article (15 of the Revised Penal Code. 4he andi6anba-an Decision of !ctober 1(, 1%%0 and the Resolution dated Dece'ber (0, 1%%1 are REOERED and E4 AIDE. ! !RDERED.
7arvasa, +.3., #itug, Kapunan and Mendo!a, 33., cocnur. egalado, 4ellosillo, and "orres, 3r., 33., pro hac vice. er'osisi'a, r,., ., too no part.
Se6arae O6/#/o# D")DE, !R.,J., dissentin67
+ast (0 epte'ber 1%%J in egala v. Sandiganbayan, 1 this Court erected a barrier to the constitutionall'andated tas to recover ill26otten "ealth and in the punish'ent of those "ho dirtied their hands "ith it. 4his the Court did b- i'pliedl- 6rantin6 i''unit- fro' civil suit or liabilit- under an e@panded interpretation of the la"-er2client privile6e, la"-ers "ho "ere alle6ed to have acted as co2conspirators or du''ies of certain parties in the ac8uisition of such "ealth. 4he ac8uittal decreed b- the 'aorit- in the cases under consideration places another obstacle to such recover- and punish'ent b- 6rantin6 i''unit- fro' an- cri'inal liabilit- those "ho "ere ordered bthen President Marcos to disburse 6overn'ent funds for alle6ed pa-'ent of obli6ations. 4his is the
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i''ediate i'pression an-one can 6et fro' the follo"in6 s"eepin6 pronounce'ent in the ponencia. 2 In the case at bench, the order e'anated fro' the office of the *resident and bears the si6nat ure of the President hi'self, the hi6hest official of the land. It carries "ith it the presu'ption that it "as re6ularlissued. And on its face, the 'e'orandu' is patentl- la"ful for no la" 'aes the pa-'ent of an obli6ation ille6al. 4his fact, coupled "ith the ur6ent tenor for its e@ecution constrains one to act s"iftl"ithout 8uestion. /bedientia est legis essentia . . . . &hat this su66ests is that no one could disobe- then President Marcos, a su66estion 'ade 'ore elo8uent "ith the 8uotation of the dissentin6 opinion of Mr. ustice Cru? in Development 4anC of the
*hilippines v .*undogar. 3 4hat dissent cannot be used to ustif- the petitionersT obedience, other"ise, this Court "ould thus overturn the 'aorit- opinion in the said case and adopt the dissent as the ne" rule. enceforth, all those si'ilarl- situated as the appellants or those "ho could si'pl- provide an- reason for theircompelled obedience to Mr. Marcos can 6o scot2free. 4he 'eanin6 of EDA and its 'essa6e for histor- "ould thus be obliterated. 4he ac8uittal then perpetuates a sad da- for this Court a da- of 'ournin6 for those "ho fou6ht a6ainst the dictatorship and of triu'ph and o- for the dictatorTs collaborators, no'inees, associates, and friends. I cannot oin the 'aorit- in these cases. M- anal-sis of the ponencia indicates that the ac8uittal is based on the follo"in67 1. 4he accused2appellants 'erel- acted in obedience to an order b- a superior for so'e la"ful purpose= hence, the- incur no cri'inal liabilit- pursuant to Article 11)J* of the Revised Penal Code. (. Even 6rantin6 that the order "as not for a la"ful purpose, the- acted in 6ood faith. /. 4heir basic constitutional ri6ht to due process "as violated b- the "a- the andi6anba-an activeltoo part in the 8uestionin6 of a defense "itness and of the accused the'selves. I I shall first tae up the third. 4he ponencia ad'its that the appellants did not raise as an issue the andi6anba-anTs violation of their ri6ht to due process= nevertheless, it ruled that such failure is not an i'pedi'ent to the consideration of the violation as additional basis for a reversal since the settled doctrine is that an appeal thro"s the "hole case open to revie", and it beco'es the dut- of the appellate court to correct such errors as 'abe found in the ud6'ent appealed fro' "hether the- are 'ade the subect of assi6n'ents of error or not. I be6 to disa6ree.
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9irst, there is no sho"in6 at all that the e@tensive participation b- the ustices of the andi6anba-an in 8uestionin6 the appellants and their "itness indicated preud6'ent of 6uilt, bias, hatred, or hostilita6ainst the said appellants. !n the contrar-, the 8uoted portions of the 8uestions propounded b- the ustices 'anifest nothin6 but a sincere desire to ferret out the facts to arrive at the truth "hich are crucial in the deter'ination of the innocence or 6uilt of the appellants. 4hese ustices, as trial 'a6istrates, have onl- e@ercised one of the inherent ri6hts of a ud6e in the e@ercise of udicial function. &hat this Court stated ei6ht-2three -ears a6o in nited States v. udieres < needs repeatin67 It is ver- clear, ho"ever, fro' a revie" of the "hole proceedin6s that the onl- obect of the trial ud6e in propoundin6 these 8uestions "as to endeavor as far as possible to 6et at the truth as to the facts to "hich the "itnesses "ere testif-in6. 4he ri6ht of a trial ud6e to 8uestion the "itnesses "ith a vie" to satisf-in6 his 'ind upon an- 'aterial point "hich presents itself durin6 the trial of a case over "hich he presides is too "ell established to need discussion. 4he trial ud6es in this urisdiction are ud6es of both the la" and the facts, and the- "ould be ne6li6ent in the perfor'ance of their duties if the- per'itted a 'iscarria6e of ustice as a result of a failure to propound a proper 8uestion to a "itness "hich 'i6ht develop so'e 'ater ial fact upon "hich the ud6'ent of the case should turn. o in a case "here a trial ud6e sees that the de6ree of credit "hich he is to 6ive the testi'on- of a 6iven "itness 'a- have an i'portant bearin6 upon the outco'e, there can be no 8uestion that in the e@ercise of a sound discretion he 'a- put such 8uestions to the "itness as "ill enable hi' to for'ulate a sound opinion as to the abilit- or "illin6ness of the "itness to tell the truth. 4he 8uestions ased b- the trial ud6e in the case at bar "ere in our opinion entirel- proper, their onl- purpose bein6 to clarif- certain obscure phases of the case= and "hile "e are inclined to a6ree "ith counsel that so'e of the observations of the trial ud6e in the course of his e@a'ination 'i6ht "ell have been o'itted, there is no reason "hatever to believe that the substantial ri6hts of the defendants "ere in an-"ise preudiced thereb-. 4hat the appellants the'selves did not find an- i'propriet- in the conduct of the ustices, or that if thedid the- find nothin6 therein to preudice their ri6ht to due process is best proven b- their failure to assi6n it as error. econd, even 6ran tin6 arguendo that the conduct of the ustices constituted such a violation, the appellants are forever estopped fro' raisin6 that issue on 6round of %aiver. 4his Court "ould ris an accusation of undue partialit- for the appellants "ere it to 6ive the' pre'iu' for their torpor and then re"ard the' "ith an ac8uittal. uch "aiver is conclusivel- proven in these cases. 9ro' the 8uoted portions of the testi'onies of the "itnesses for the appellants, it is clear that their counsel did not obect to, or 'anifest on record his 'is6ivin6s on, the active participation of the ustices in the e@a'ination )or cross2e@a'ination* of the "itnesses. Nothin6 could have prevented the counsel for the appellants fro' doin6 so. 4hen, too, as correctl- pointed out in the ponencia, the- 'ade no assi6n'ent of error on the 'atter. In our urisdiction, ri6hts 'a- be "aived unless the "aiver is contrar- to la", public order, public polic-, 'orals, or 6ood custo's, or is preudicial to a third person "ith a ri6ht reco6ni?ed b- la". 9 In *eople v. Donato, 7 this Court 'ade the follo"in6 state'ent on "hat ri6hts 'a- be "aived7 As to "hat ri6hts and privile6es 'a- be "aived, the authorit- is settled7
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. . . the doctrine of "aiver e@tends to ri6hts and privile6es of an- character, and, since the "ord "aiver covers ever- conceivab le ri6ht, it is the 6eneral rule that a person 'a- "aive an- 'atter "hich affects his propert-, and an- alienable ri6ht or privile6e of "hich he is the o"ner or "hich belon6s to hi' or to "hich he is le6all- entitled, "heth er secured b- contract, confer red "ith statute, or guaranteed by constitution, provided such ri6hts and privile6es rest in the individual, are intended for his sole benefit, do not infrin6e on the ri6hts of others, and further provided the "aiver of the ri6ht or privile6e is not forbidden b- la", and does not contravene public polic-= and the principle is reco6ni?ed that ever-one has a ri6ht to "aive, and a6ree to "aive, the advanta6e of a la" or rule 'ade solel- for the benefi t and protection of the individual in his private capacit-, if it can be dispensed "ith and relin8uished "ithout infrin6in6 on an- public ri6ht, and "ithout detri'ent to the co''unit- at lar6e. . . . Althou6h the 6eneral rule is that an- ri6ht or privile6e conferred b- statute or guaranteed by constitution 'a- be "aived, a "aiver in dero6ation of a statutor- ri6ht is not favored, and a "aiver "ill be inoperative and void if it infrin6es on the ri6hts of others, or "ould be a6ainst public polic- or 'orals and the public interest 'a- be "aived. &hile it has been stated 6enerall- that all personal ri6hts conferred b- statute and guaranteed by constitution 'a- be "aived, it has also been said that constitutional provisions intended to protect propert- 'a- be "aived, and even so'e of the constitutional ri6hts created to secure personal libert- are subects of "aiver. 8 In +ommon%ealth vs. *etrillo, ; it "as held7 Ri6hts 6uaranteed to one accused of a cri'e fall naturall- into t"o classes7 )a* those in "hich the state, as "ell as the accused, is interested= and )b* those "hich are personal to the accused, "hich are in the nature of personal privile6es. 4hose of the first class cannot be "aived= those of the second 'a- be. It is co'petent for a person to "aive a ri6ht 6uaranteed b- the Constitution, and to consent to action "hich "ould be invalid if taen a6ainst his "ill. 10 4his Court has reco6ni?ed "aivers of constitutional ri6hts such as, for e@a'ple, the ri6ht a6ainst unreasonable searches and sei?ures= 11 the ri6ht to counsel and to re'ain silent= 12 and the ri6ht to be heard. 13 Even the 1%5 Constitution e@pressl- reco6ni?es a "aiver of ri6hts 6uaranteed b- its Bill of Ri6hts. ection 1()1* of Article III thereof on the ri6ht to re'ain silent and to have a co'petent and independent counsel, preferabl- of his o"n choice states7 . . . 4hese ri6hts cannot be "aived e@cept in "ritin6 and in the presence of counsel. 4his provision 'erel- particulari?es the for' and 'anner of the "aiver= it, nevertheless, clearl- su66ests that the Jother ri6hts be "aived in so'e other for' or 'anner provided such "aiver "ill not offend Article of the Civil'aCode. &e hereb- rule that the ri6ht to bail is another of the constitutional ri6hts "hich can be "aived. It is a
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ri6ht "hich is personal to the accused and "hose "aiver "ould not be contrar- to la", public order, public polic-, 'orals, or 6ood custo's, or preudicial to a third person "ith a ri6ht reco6ni?ed b- la". In the cases belo", the perceived violation, if at all it e@isted, "as not of the absolute totalit- of due process, but 'ore appropriatel- of the ri6ht to an impartial trial, "hich is but an aspect of the 6uarantee of due process. 1 I sub'it that the ri6ht to an i'partial trial is "aivable. II I also disa6ree "ith the vie" of the 'aorit- that all the re8uisites of the si@th ustif-in6 circu'stance in Article 11 of the Revised Penal Code are present. I sub'it that the anuar- 1%J Me'orandu' of President Marcos can b- no 'eans be considered a la"ful order to pa- P$$ 'illion to the PNCC as alle6ed partial pa-'ent of the MIAATs account to the for'er. 4he alle6ed basis of such Me'orandu' is the 5 anuar- 1%$ Me'orandu' of 4rade and Industr- Minister Roberto !n6pin, "hich even confir's the absence of an- factual basis for the order of pa-'ent of P$$ 'illion7 In this connection, please be infor'ed that Philippine National Construction Corporation )PNCC*, for'erl- CDCP, has acco'plish'ent billin6s on the MIA Develop'ent Proect a66re6atin6 P%.# 'illion, inclusive of acco'plish'ents for the aforecited contracts. In accordance "ith contract provisions, outstandin6 advances totallin6 P%/.% 'illion are to be deducted fro' said billin6s "hich "ill leave a net a'ount due to PNCC of onl- P#.$ 'illion, thus7 At the sa'e ti'e, PNCC has potential escalation clai's a'ountin6 to P%% 'illion in the follo"in6 states of approved>evaluation7 Approved b- Price Escalation Co''ittee )PEC* but pendin6 for lac of funds P 1.% 'illion Endorsed b- proect consultants and currentl- bein6 evaluated b- PEC /0.5 'illion ub'itted b- PNCC directl- to PEC and currentl- under evaluation JJ.$ 'illion 4 o t a l P%%.1 'illion 4here has been no fundin6 allocation for an- of the above escalation clai's due to bud6etarconstraints. 4he MIA Proect has been co'pleted and operational as far bac as 1%( and -et residual a'ounts due to PNCC have not been paid, resultin6 in undue burden to PNCC due to additional cost of 'one- to service its obli6ations for this contract. 4o allo" PNCC to collect partiall- its billin6s, and in consideration of its pendin6 escalatio n billin6s, 'a- "e re8uest for is E@cellenc-Ts approval for a defer'ent of the repa-'ent of PNCCTs advances to
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the e@tent of P/0 'illion correspondin6 to about /0[ of P%%.1 'illion in escalation clai's of PNCC, of "hich P/(.$ 'illion has been officiall- reco6ni?ed b- MIADP consultants but could not be paid due to lac of fundin6s. !ur proposal "ill allo" BA4 to pa- PNCC the a'ount of P/#.$ 'illion out of e@istin6 MIA Proect funds. 4his a'ount represents the e@cess of the 6ross billin6s of PNCC of P%.# 'illion over the undeferred portion of the repa-'ent of advances of PJ/.% 'illion. If !n6pinTs 'e'orandu' is 6iven full faith, it is clear that PNCCTs acco'plish'ent billin6s for "or acco'plished, includin6 acco'plish'ents on the supple'ental contracts )"hose authorit- therefor "as ust sou6ht for*, a66re6ated to *>B.9 million. ince there "ere advances 6iven to PNCC in the total a'ount of P%/.% 'illion, the net a'ount due the PNCC "as onl- *9.: million. o"ever, in vie" of the approval b- then President Marcos of !n6pinTs re8uest for a defer'ent of the repa-'ent of PNCCTs advances to the e@tent of P/0 'illion, onl- PJ/.% 'illion of PNCCTs advances "as to be deducted fro' the acco'plish'ent billin6s of P%.# 'illion. 4he net a'ount due thus beca'e P/#.$ 'illion. ence, as pointed out b- the andi6anba-an, if an- pa-'ents "ere due under !n6pinTs Me'orandu' the- "ould onl- be for that a'ount )P/#.$ 'illion*. 4he !rder of then President Marcos to "ithdra" has, therefore, e@ceeded b- P(0.$ 'illion. Clearl-, the order of pa-'ent of P$$ 'illion had no factual and le6al basis and "as therefore unla"ful. III Not an iota of 6ood faith "as sho"n in the conduct of the appellants. Bein6 responsible accountable officers of the MIAA, the- "ere presu'ed to no" that, in li6ht of the undeferred portion of the repa-'ent of PNCCTs advances in the a'ount of PJ/.% 'illion, the MIAATs unpaid balance "as onl- P/#.$ 'illion. 4he- also ou6ht to no" the procedure to be follo"ed in the pa-'ent of contractual obli6ations. 9irst and fore'ost there "ere the sub'ission b- the PNCC of its clai's "ith the re8uired supportin6 docu'ents and the approval of the clai's b- the appropriate approvin6 authorit- of MIAA. &hen then President Marcos ordered i''ediate pa-'ent, he should not have been understood as to order suspension of the accepted bud6etin6 , accountin6, and auditin6 rules on the 'atter. Parentheticall-, it 'a- be stated here that althou6h President Marcos "as a dictator, he "as reported to be, and even proected hi'self as, a faithful advocate of the rule of la". As a 'atter of fact, he did not hesitate to issue a decree, letter of instruction, or an- presidential issuance in anticipation of an- planned actions or activities to 6ive the latter the facade or se'blance of le6alit-, "isdo', or propriet-. &hen he 'ade the order to appellant 4abuena, President Marcos 'ust onl- be understood to order e@peditious co'pliance "ith the re8uire'ents to facilitate i''ediate release of the 'one-. 4here "as no "a- for 4abuena to entertain an- fear that disobedience to the order because of its unla"fulness or dela- in the e@ecution of the order due to co'pliance "ith the re8uire'ents "ould cause his head or life. e offered no credible evidence for such fear. 4his Court should not provide one for hi'. 4hat 4abuena served Mr. Marcos until the end of the latterTs re6i'e and even be-ond onl- proved a lo-altnot based on fear but on other considerations. Moreover, the 'anner the appellant effected the "ithdra"al "as 'ost unusual, irre6ular, and ano'alous.
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e has not sho"n an- evidence that "hat he did "as the usual practice in his office. &hat happened in this case sho"ed the appellantsT co'plicit- as principals b- direct participation in the 'alversation of the MIAATs funds. 4he appellants should, therefore, be thanful to the andi6anba-an for holdin6 the' liable therefor onl- throu6h ne6li6ence. I vote then to A99IRM in toto the assailed decision.
*adilla, Melo and *anganiban, 33., concur. ROMERO, J., dissentin67
!bedience, ri6htl- directed , is a virtue "ell2"orth cultivatin6 obedience of children to their elders= obedience to la"ful authorit- b- citi?ens= obedience to the behests of "hat is hi6hest and finest in oneTs self. Mis6uided, such as indiscri'inate obeisance to 8uestionable 'andates, no 'atter if e'anatin6 fro' authoritative fi6ures "hose sli6htest "hisper and scribbled orders are la", this can lead 'an to perdition. In 6overn'ent, a pliant bureaucrac- that is disinclined to resist unethical, i''oral, even do"nri6ht ille6al directives fro' above is easil- corrupted and can onl- brin6 disrepute to the entire s-ste'. In this conte@t, can subordinate public officials lie herein petitioner escape cri'inal prosecution b- the si'ple e@pedient of clai'in6 that the- "ere 'erel- follo"in6 orders fro' a superiorQ 4his dis8uisition "ill de'onstrate that certain re8uisites are indispensable before an-one can clai' i''unit- fro' penal sanctions for see'in6l- ustifiable acts. 4his dissentin6 opinion "ill narrate the facts for the sae of accurac- for the ponencia see's to have overlooed or 6lossed over vital circu'stances "hich 'ae the conclusion e'bodied herein irresistible. Petitioners "ere char6ed "ith violation of Article (15 of the Revised Penal Code )the Code* for alle6ed 'alversation of a total of P$$ 'illion fro' the public funds of the Manila International Airport Authorit- )MIAA*. 4he infor'ations filed on three separate dates in 1%J accused the', as accountable officers, of intentionall- "ithdra"in6 said a'ount for the ostensible purpose of pa-in6 a non2e@istent obli6ation of MIAA to the Philippine National Construction Corporation )PNCC*, but "hich the'isappropriated and converted for their personal use and benefit. In their defense, petitioners clai'ed the- acted in 6ood faith and in co'pliance "ith a verbal and later, a "ritten order fro' no less than for'er President 9erdinand E. Marcos. In a Presidential Me'orandu' )the Marcos Me'orandu'* dated anuar- , 1%J, the latter alle6edl- co''anded petitioner 4abuena, in his capacit- as 3eneral Mana6er of MIAA, to pa- i''ediatel- the Philippine National Construction Corporation, thru this !ffice )!ffice of the President*, the su' of 9I94G 9IOE MI++I!N )P$$,000,000.00* PE! in cash as partial pa-'ent of MIAATs account "ith said Co'pan- 'entioned in a Me'orandu' of )4rade and Industr-* Minister Roberto !n6pin to this !ffice dated anuar- 5, 1%$ . . . . 1 )4he !n6pin Me'orandu'*. !n the assu'ption that MIAA indeed had a due and de'andable debt to PNCC for "or done on the airport, 4abuena, "ith the help of 3erardo 3. Dabao and Adolfo M.
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Peralta, MIAA Assistant 3eneral Mana6er and 9inancial ervices Depart'ent Actin6 Mana6er, respectivel-, 'ade three "ithdra"als fro' the account of MIAA "ith the Philippine National Ban first, on anuar- 10, 1%J for P($ 'illion, then on anuar- 1J, 1%J for another P($ 'illion and lastl-, on anuar- /1, 1%J for P$ 'illion. 4he three 'ana6erTs checs coverin6 the "ithdra"als "ere all applied for and issued in the na'e of 4abuena. Curiousl-, "hile the checs "ere issued b- the MIA e@tension office of PNB, the- "ere encashed at the Oilla'or Air Base branch. Each ti'e the cash "as delivered directl- to the office of MarcosT private secretar-, 9e Roa23i'ene?. 4he latter issued a receipt 2 si6ned b- her but only after the last delivery . 7o *7++ receipt %as ever given to petitioners. !n !ctober ((, 1%%0, the andi6anba-anTs 9irst Division rendered a decision findin6 petitioners 6uilt-. Petitioners raise t"o issues, na'el-, that the- "ere char6ed "ith intentional 'alversation )"hich thelabelled as 'alversation b- direct appropriation* but "ere convicted of 'alversation b- ne6li6ence, and that the- acted in 6ood faith. As re6ards the first ar6u'ent, the variance bet"een the cri'e char6ed and that proved b- the prosecution is i''aterial, as stated b- the ponente. As re6ards the second issue, it is ar6ued that 6ood faith is a valid defense in 'alversation for it ne6ates cri'inal intent. Petitioners clai' that "hen the- co''itted the acts co'plained of, the- "ere 'erelfollo"in6 then President MarcosT oral and "ritten directives. 4he- rel- on Article 11, para6raph J of the Code "hich states, inter alia7 Art. 11. 3ustifying circumstances. 4he follo"in6 do not incur an- cri'inal liabilit-7 @@@ @@@ @@@ J. An- person "ho acts in obedience to an order issued b- a superior for so'e la"ful purpose. 9or an act to be ustified under the above8uoted provision, therefore, three re8uisites 'ust concur7 )a* an order 'ust have been issued b- a superior= )b* the order 'ust be for a la"ful purpose= and )c* the 'eans used b- the subordinate in carr-in6 out such order 'ust itself be la"ful. 3 In the case at bar, 4abuena "as alle6edl- ordered b- President Marcos to pa- the PNCC fro' MIAATs fund, thus ostensibl- 'eetin6 the first re8uire'ent but not the others. 9or there is a 8ualification "hich si6nificantl- chan6es the picture. 4he pa-'ent "as to be in cash and i''ediatel- 'ade throu6h the !ffice of the President. It is to be pointed out that it is one thin6 to be ordered to pa- a due and de'andable obli6ation= it is another to 'ae such pa-'ent to so'eone other than the la"ful obli6ee and "orse, "hen the subordinate is forced to breach official channels to co'pl- "ith the order. It 'ust be stressed that 4abuena and his co2accused, Peralta and Dabao, disre6arded standard operatin6 procedures in follo"in6 the PresidentTs order. As observed b- the andi6anba-an, there "ere no vouchers to authori?e the disburse'ents in 8uestion. 4here "ere no bills to support the disburse'ent. 4here "ere no certifications as to the availabilit- of funds for an un8uestionabl- sta66erin6 su' of P$$ Million. Disburse'ent vouchers are specificall- re8uired under ec. # )$* of Presidential Decree No.
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1##$ )P.D. No. 1##$*, "hile the certificate of availabilit- of funds is needed to co'pl- "ith ec. #5, 4itle I2B, B. O of the Ad'inistrative Code of 1%5 and ec. /## of the +ocal 3overn'ent Code of 1%%1. < 4o co'pound the duplicit-, the checs, issued b- one branch of PNB "ere encashed in another all 'ade in cash instead of b- crossed chec pa-able to PNCC\ Conspicuousl-, such cash outla- "as 'ade "ithout prior approval or authorit- of the Co''ission on Audit. 9 9inall-, the last t"o pa-'ents "ere 'ade despite the non2issuance of a receipt for the first. In fact, the receipt 6iven after the deliverof the last install'ent "as not even issued b- the PNCC, the le6al obli6ee and avo"ed recipient of the 'one-. Instead it e'anated fro' the office of Roa23i'ene?, a co'plete stran6er to the alle6ed contract bet"een MIAA and PNCC, "ho did not even indicate in "hat capacit- she si6ned it. 4o co'pound the '-ster-, the 'one- "as even delivered to her office, not in Malaca:an6, but at nearb- A6uado treet.
"he entire process, done %ith haste andan %ith a total disregard of appropriate auditing re$uirements %as, in the %ords of petitioners themselves, extraordinary transaction,) 7 admittedly )out of the ordinary) 8 and )not based on normal procedure.) Disburse'ent of 6overn'ent funds, especiall- one as 6ar6antuan as the one 'ade b- petitioners, is a co'ple@ process, unlie the basic over2the2counter transaction that the- purportedl- 'ade it to appear. 9ar fro' bein6 la"ful, the pa-'ent of the alle6ed obli6ation of MIAA to PNCC throu6h the !ffice of the President 'a- at best be labelled as irre6ular. 4he ter' Tirre6ular e@penditureT si6nifies an e@penditure incurred "ithout adherin6 to established rules, re6ulations, procedural 6uidelines, policies, principles or practices that have 6ained reco6nition in la". Irre6ular e@penditures are incurred "ithout confor'in6 "ith prescribed usa6es and rules of discipline. 4here is no observance of an established pattern, course, 'ode of action, behavior, or conduct in the incurrence of an irre6ular e@penditure. . . . . ;
pecificall-, disburse'ent of public funds 'ust confor' "ith the follo"in6 principles7 )1* No 'one- shall be paid out of the 4reasur- e@cept in pursuance of an appropriation 'ade b- la".10 )(* No public 'one- or propert- shall be appropriated, applied, paid, or e'plo-ed, directl- or indirectl-, for the use, benefit, or support of an- sect, church, deno'ination, sectarian institution, or s-ste' of reli6ion, or of an- priest, preacher, 'inister, or other reli6ious teacher, or di6nitar- as such, e@cept "hen such priest, preacher, 'inister, or di6nitar- is assi6ned to the ar'ed forces, or to an- penal institution, or 6overn'ent orphana6e or leprosariu'. 11 )/* All 'one- collected on an- ta@ levied for a special purpose shall be treated as a special fund and paid out for such purpose onl-. If the purpose for "hich this special fund "as created has been fulfilled or abandoned, the balance, if an-, shall be transferred to the 6eneral funds of the 3overn'ent. 12 )#* All resources of the 6overn'ent shall be 'ana6ed, e@pended or utili?ed in accordance "ith la" and re6ulations and safe6uarded a6ainst loss or "asta6e throu6h ille6al or i'proper disposition to ensure efficienc-, econo'- and effectiveness in the operations of 6overn'ent. 4he responsibilit- to tae care such polic- is faithfull- adhered to rests directl- "ith the chief or head of the 6overn'ent a6encconcerned. 13 )$* Disburse'ent or disposition of 6overn'ent funds or propert- shall invariabl- bear the approval of
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%$ the proper officials. 1 )J* Clai's a6ainst 6overn'ent funds shall be supported "ith co'plete docu'entation. 1< )5* All la"s and re6ulations applicable to financial transactions shall be faithfull- adhered to.
19
)* 3enerall- accepted principles and practices of accountin6 as "ell as of sound 'ana6e'ent and fiscal ad'inistration shall be observed, provided that the- do not contravene e@istin6 la"s and re6ulations. 17 Assu'in6 arguendo that petitioners acted in 6ood faith in follo"in6 the PresidentTs order, undeniabl-, the- "ere ne6li6ent as found b- the trial court. 4he instructions in the PresidentTs order should have sufficed to put an- accountable head of an office, 4abuena included, on 6uard. &h- "as he bein6 re8uired to pa- MIAATs obli6ation to the PNCC, if indeed there "ere an-, and not directl- to the latter but throu6h the !ffice of the PresidentQ &h- "as the entire transaction not coursed throu6h proper channels, vi!., the accountin6 officeQ &h- "as such a hu6e disburse'ent to be 'ade in cash, instead of b- crossed chec, "hich is not onl- safer, faster, and 'ore convenient, but in accord "ith auditin6 re8uire'entsQ !bedience to a superiorTs order does not connote blind obedience. Bein6 the 6eneral 'ana6er of such a 'a''oth or6ani?ation lie the MIAA, he should, at the ver- least, have e@ercised ordinar- prudence bverif-in6 "ith the proper official under hi' "hether the a6enc- had indeed an outstandin6 indebtedness to the PNCC before orderin6 an- pa-'ent to be 'ade throu6h official channels. uch routine 'easures "ere cavalierl- disre6arded. 4he "hole process see'ed no different fro' a pett-, personal transaction. As evidence later revealed, PNCCTs receivables fro' MIAA a'ounted to P10(,#5$,/%(./$, the bul of "hich co'prised escalation char6es. 9ro' that ti'e until Cora?on C. A8uino assu'ed the Presidenc-, a total of P##.# 'illion "as paid, but onl- P( 'illion of this in cash= the rest "as set off or co'pensated a6ainst other debts, or assi6ned to other creditors. 4he financial records did not sho" that PNCC received an- su's of 'one- fro' MIAA durin6 the period anuar- to une, 1%J "hen the bloc pa-'ents "ere bein6 'ade in 8uarter 'illions. !nl- on epte'ber ($, 1%J, lon6 after President Marcos had 6one, "as an assi6n'ent of P(/ 'illion actuall- 'ade b- MIAA in favor of PNCC. 18 Even the !n6pin Me'orandu', "hich is the basis of the Marcos Me'orandu', failed to sho" "here the a'ount of P$$ 'illion cropped up. 4he for'er contai ned, inter alia, the follo"in6 'atters7 )a* it re8uested the PresidentTs approval of Minister !n6pinTs reco''endations for ei6ht )* supple'ental contracts pertainin6 to the MIA Develop'ent Proect )MIADP* bet"een the Bureau of Air 4ransport )BA4* and Philippine National Const ruction Corporation )PNCC*, for'e rl- CDCP, . . . .= 1; )b* it infor'ed the President that PNCC had collectibles fro' MIAA onl- in the a'ount of P#.$ 'illion, "hich is the difference bet"een the acco'plish'ent billin6s on the MIADP totallin6 P%.# 'illion and PNCCTs advances of P%/.% 'illion= and )c* it infor'ed the President that PNCC had potential escalation clai's a6ainst MIAA in the a'ount of P%% 'illion, potential because the- have -et to be approved bthe Price Escalation Co''ittee )PEC*. 4he onl- re'ainin6 piece of evidence "hich "ould sho" that MIAA o"ed PNCC an-thin6 as of the date of the Marcos Me'orandu' is MIAATs balance sheet, 20 "hich indicates its liabilit- to PNCC as of
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Dece'ber /1, 1%$ to be P(5,%/1,000.00. 21 o" can petitioners clai' to have acted in 6ood faith "hen the- "ithdre" the P$$ 'illion fro' MIAATs funds no"in6 full- "ell that the a'ount due PNCC "as onl- a little over half that a'ount, as sho"n b- their o"n evidenceQ 4he ponencia states that . . . . the 6ood faith of 4abuena . . . . "as not at all affected even if it later turned out that PNCC never received the 'one-. It is precisel- our thesis that 4abuena did not act in 6ood faith in co'pl-in6 "ith the PresidentTs orders because of the reasons aforesatated, su''ari?ed as follo"s7 )a* 4he PresidentTs order "as out of the ordinar- and not based on nor'al procedure, "hich "ould have entailed 'ain6 an e@traordinar- transaction, as ad'itted b- petitioners the'selves. 4his proves that the- "ere, at the ti'e the- received the order, a"are that pa-in6 MIAATs supposed P$$ 'illion obli6ation to PNCC throu6h the !ffice of the President in cash "as 8uestionable. )b* As the head of MIAA, 4abuena should have been 'ore cautious in disbursin6 the funds. e did not even stop to thin about the le6alit- of the entire process even "hen he did not receive an- ind of receipt for the first t"o deliveries of 'one- "orth P$0 'illion. &hen he did 6et a receipt, it "as not an official receipt fro' PNCC, the le6al creditor, but fro' the PresidentTs private secretar-. It 'ust also be noted that the cash "as all delivered to 3i'ene?T office at A6uado t., not to her office at Malaca:an6. )c* 4abuena breached official channels to procure the 'one-. 4here "ere no vouchers nor bills to authori?e or support the disburse'ents. 4here "as also no certificate of availabilit- of funds. 4he pa-'ent "as 'ade in cash "ithout C!ATs approval, at a ti'e "hen the ceilin6 for cash pa-'ents "as 'erel- P$,000.00 . As stated earlier, no official receipt fro' PNCC supported the pa-'ent. 4he entire process "as done "ith haste and "ith a total disre6ard of appropriate auditin6 re8uire'ents. As re6ards the pa-'ents to Roa23i'ene?, these "ere absolutel- un"arranted because "hatever authorit- she clai' ed to have e'anat ed, not fro' the creditor PNCC but fro' the President. Petitioners "ere re8uired b- la" to settle their indebtedness "ith PNCC directl-, the part- in "hose favor the obli6ation "as constituted. 22 4he onl- instance "hen such 8uestionable pa-'ent could have been valid "as if it had redounded to PNCCTs benefit, "hich "as not proved at all in this case. 23 As creditor, the PNCC "as not even bound to accept pa-'ent, if an-, fro' the PresidentTs private secretar-, the latter bein6 a third person "ho had no interest "hatsoever in the dischar6e of MIAATs obli6ation. 2 4he ponencia states that the Marcos Me'orandu' "as patentl- la"ful for no la% maCes the payment of an obligation illegal . 4his state'ent is pre'ised on the e@istence of an established creditor2debtor relationship bet"een the pa-or and the pa-ee. In this, case, ho"ever, the obli6or "as bein6 'ade to pa- to a part- other than the le6al obli6ee "hen no novation of the obli6ation has taen place. o" can such an arran6e'ent be possibl- in accord "ith la"Q 4he precedin6 established facts clearl- sho" that petitioners "ere re'iss in dischar6in6 their duties as accountable officers. As correctl- observed b- the court a $uo7
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. . .)4*he !n6pin Me'orandu' could not ustif- Pres. MarcosT 'e'orandu' of anuar- , 1%J= this in turn could not ustif- +uis 4abuenaTs pa-'ent of P$$ 'illion to 9e Roa 3i'ene?. . . . )4*he a'ount "hich could be pa-able b- 4abuena in his capacit- as head of the MIAA in anuar- of 1%J could not be in e@cess of P(5.%/1 'illion until other clai's had been dul- approved. 4his approval, on the other hand, could not co'e fro' the President but fro' the Price Escalation Co''ittee )PEC* before "hich, accordin6 to the !n6pin Me'orandu' itself, these clai's for escalation had been sub'itted for approval. 4he PEC "as not sho"n to have approved these a'ounts as of the ti'e 4abuena 'ade an- of the "ithdra"als for P$$ 'illion. @@@ @@@ @@@ 4abuena sa-s he had properl- accounted for the P$$ 'illion he had "ithdra"n fro' the MIAATs funds. B- this 4abuena 'eans he 6ave the 'one- to 9e Roa 3i'ene?, presu'abl- in representation of Pres. 9erdinand Marcos. Neither Pres. Marcos, ho"ever, nor 9e Roa 3i'ene? "as entitled to receive or issue ac8uittance for a debt in favor of the PNCC. 4abuenaTs clai', therefore, that he delivered the P$$ 'illion to her is not properl- accountin6 for P$$ 'illion. In fact, "hen "e co'e ri6ht do"n to it, nobod- has issued an ac8uittance in behalf of the PNCC for the P$$ 'illion paid b- +uis 4abuena. ince 4abuena sa-s he "as pa-in6 P$$ 'illion to the PNCC, it "as incu'bent upon hi' to sho" a receipt fro' or in behalf of the PNCC. 4abuena has sho"n no receipt. 4abuena "as not authori?ed to part "ith 6overn'ent 'one- "ithout receipt &hen 4abuena 6ave P$$ 'illion intended for the PNCC to 9e Roa 3i'ene? or to Pres. Marcos, 4abuena "as pa-in6 6overn'ent funds to persons not entitled to receive those funds. e "as, therefore, 6uilt- of 'alversation of those funds. @@@ @@@ @@@ 4abuena sa-s he has accounted for the 'one- because he has told us "here the 'one- "ent. But to account, in the 'ore proper use of the ter', inects a sense of responsibilit- for the disposition of funds for "hich one is ans"erable. o "hen one ass if 4abuena has accounted for the P$$ 'illion belon6in6 to the MIAA, the 8uestion reall- is "hether accused 4abuena disposed of the su' in a responsible 'anner consistent "ith his dut-. 4he ans"er 'ust be in the ne6ative. Pa-'ents 'ust be delivered to pa-ees. Pa-'ents intended for the PNCC 'ust be delivered to the PNCC or to so'eone authori?ed b- the PNCC to accept pa-'ents for it. Neither Pres. Marcos nor 9e Roa 3i'ene? are sho"n to have been authori?ed to accept 'one- for the PNCC nor to deliver 'one- to the
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PNCC )or to an- creditor of the MIAA for that 'atter*. In fact, thou6h Pres. Marcos 'a- have been the upre'e Ma6istrate of the land and the chief enforcer of the la", the la" neither authori?ed hi' to pay for the MIAA nor to accept money for the PNCC. Accused 4abuenaTs state'ent, therefore, that he had presented over"hel'in6 evidence of the deliver- of the P$$ 'illion to Pres. MarcosT private secretar- does not prove that he has accounted for that 'one-, that is, that he has properl- disposed of that su' accordin6 to la". !n the contrar-, "hat the evidence sho"s is that accused 4abuena delivered the P$$ 'illion to people "ho "ere not entitled thereto, either as representatives of MIAA or of the PNCC. It proves that 4abuena had deliberatel- consented or per'itted throu6h ne6li6ence or abandon'ent, so'e other person to tae such public funds. avin6 done so, 4abuena, b- his o"n narration, has cate6oricall- de'onstrated that he is 6uilt- of the 'isappropriation or 'alversation of P$$ 'illion of public funds. 2< 4i'e and a6ain, this Court has deferred to the findin6s of fact of the trial court, o"in6 to its enviable position of havin6 seen the ph-sical evidence and observed the "itnesses as the- testified. &e see no reason to depart no" fro' this polic-. 4abuena "as also personall- accountable for the funds in his custod-, bein6 the head of a 6overn'ent a6enc- such as MIAA and dischar6in6 fiscal functions as such. In this re6ard, the Manual on Certificate of ettle'ent and Balances )Rev. 1%%/* )4he Manual* states, inter alia7 4I4+E IO. ACC!;N4ABI+I4G, REP!NIBI+I4G AND +IABI+I4G 9!R 3!OERNMEN4 9;ND AND PR!PER4G 3overn'ent officials and e'plo-ees, in the dischar6e of fiscal functions, shall ensure that all 6overn'ent resources are 'ana6ed, e@pended and utili?ed in accordance %ith la%, rules and regulations and safe6uarded a6ainst loss or "asta6e thru ille6al or i'proper disposition. In the i'ple'entation of the above functions, the- shall be 6uided b- the follo"in6 provisions7 ec. (J. ACC!;N4ABI+I4G 9!R 3!OERNMEN4 9;ND AND PR!PER4G (J.1. 5very officer of any government agency %hose duties permit or re$uire the possession or custody of government funds or property shall be accountable therefor and for the safeeepin6 thereof in confor'it- "ith la". (J.( Ever- accountable officer shall be properl- bonded in accordance "ith la". ec. (5. REP!NIBI+I4G 9!R 3!OERNMEN4 9;ND AND PR!PER4G 4he head of any agency of the government is immediately and primarily responsible for all government
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funds and property pertaining to his agency. Persons entrusted "ith the possession or custod- of the funds or propert- under the a6enc- head shall be i''ediatel- responsible to hi' "ithout preudice to the liabilit- of either part- to the 6overn'ent. ec. (. ;PEROII!N !OER ACC!;N4AB+E !99ICER 4he head of an- a6enc- or instru'entalit- of the national 6overn'ent or an- 6overn'ent2o"ned or controlled corporation and an- other self26overnin6 board or co''ission of the 6overn'ent shall exercise the diligence of good father of a family in supervising the accountable officers under his
control to prevent the incurrence of loss of 6overn'ent funds or propert-, other"ise he shall be ointland severall- liable "ith the person pri'aril- accountable therefor. . . . ec. (%. +IABI+I4G !9 ACC!;N4AB+E, ;PERI!R AND ;B!RDINA4E !99ICER 9!R 3!OERNMEN4 9;ND (%.1 5very officer accountable for government funds shall be liable for alllosses resultin6 fro' the unla"ful deposit, use, or application thereof and for all losses attributable to negligence in the Ceeping of the funds. (%.( +iabilit- of uperior !fficers. A public officer shall not be civill- liable for acts done in the perfor'ance of his official duties, unless there is a clear sho%ing of bad faith, malice or gross negligence. @@@ @@@ @@@ (%.$ +iabilit- of ubordinate !fficers. No subordinate officer or e'plo-ee shall be civill- liable for acts done b- hi' in 6ood faith in the perfor'ance of his duties. o"ever, he shall be liable for %illful or negligent acts done by him %hich are contrary to la%, morals, public policy and good customs even if he acted under order or instructions of his superiors. ec. /0. +IABI+I4G 9!R ;N+A&9;+>I++E3A+ EHPENDI4;RE !R ;E !9 3!OERNMEN4 9;ND /0.1.1 E@penditures of 6overn'ent funds or uses of 6overn'ent propert- in violation of la" or re6ulations shall be a personal liability of the official or e'plo-ee found to be directl- responsible therefor. /0.1.( Ever- e@penditure or obli6ation authori?ed or incurred in violation of la" or of the annual bud6etar- 'easure shall be void. 5very payment made in violation thereof shall be illegal and every official or employee authori!ing or maCing such payment, or taCing part therein, and every person
receiving such payment shall be ointly and severally liable for the full amount so paid or received )E'phasis supplied*
.
4he ponente points out that our reference to the Manual supports the vie" that 4abuena "as onl- civill-
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liable. 4his is a 'isappreciation of the entire sense of the dissent. It 'ust be borne in 'ind that said reference "as 'ade after the conclusion "as reached that 4abuena "as indeed cri'inall- liable for his acts. It is hornboo no"led6e that cri'inal liabilit- carries "ith it the civil, speciall- "hen, as in this case, the latter arose fro' the for'er. ence, the state'ent7 4abuena "as also personall- accountable for the funds in his custod-, . . . . ections (%.( and (%.$ of the Manual, "hich the ponente uses to illustrate his point, actuall- includes e@ceptions to the 6rant of i''unit- fro' civil liabilit- of a public officer for acts done in the perfor'ance of his official duties7 )a* 4he precedin6 state'ent itself sa-s that the acts 'ust be done in the perfor'ance of his official duties= )b* ec. (%.( e@e'pts hi' fro' civil liabilit-, unless there is a clear sho%ing of bad faith, malice or gross negligence = and )c* ec. (%.$ states that he shall be liable for %illful or negligent acts done by him %hich are contrary to la%, morals, public policy and good customs even if he acted under order or instructions of his superiors . 4he 8uoted provisions have been once 'ore underscored herein. 4he ponencia futher states that )t*here is no sho"in6 that 4abuena has an-thin6 to do "hatsoever "ith the e@ecution of the MARC! Me'orandu'. But ver- clearl-, the ad'itted facts sho" that it "as precisel- 4abuena "ho i'ple'ented or e@ecuted the said Me'orandu'. 4he ponencia cites Acebedo "here the accused "as ac8uitted after it "as sho"n that it "as actuall- the latterTs secretar- "ho collected and converted the 'one-. 4abuenaTs case is starl- different, for here it "as 4abuena hi'self "ho personall- turned over the 'one- to the PresidentTs secretar-. It "as done "ith his full no"led6e and consent, the obvious irre6ularit- thereof not"ithstandin6. In petitioner PeraltaTs case, "e a6ain -ield to the factual findin6s of the trial court. It said7 . . . . 4he 8uestion is "hether or not Peralta properly si6ned the third application for the issuance of a Mana6erTs Chec dra"n a6ainst the MIAATs savin6s account "ith the Oilla'or !ffice of the Philippine National Ban. At the ti'e that accused Peralta si6ned the re8uest for the issuance of a Mana6erTs Chec, he "as the Actin6 9inancial ervices Mana6er of the MIAA and all "ithdra"als of funds re8uired is ) sic* co2 si6nature. 4he reason for the desi6nation of 'ore than one co2si6nator- is not 'erel- useless cere'on-= it is to serve as a counter chec for the propriet- of the disburse'ent. &hile, indeed, accused +uis 4abuena "as the hi6hest official in the MIAA and had authorit- to disburse its funds, this authorit- "as not absolute. It had to be for properl- subsistin6 obli6ations and the disburse'ent had to be a6ainst funds e@istin6 forofthat purpose. 4his is one reason need for supportin6 docu'entation before disburse'ents funds are authori?ed. And this isfor thethe special need for finance officers such as Adolfo Peralta, as 9inancial ervices Mana6er, to be co2si6natories ) sic*7 to ascertain the validit- of the obli6ation and, in this particular instance, the e@istence of the balance to be
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covered b- the 'ana6erTs chec the application for "hich had been presented for his co2si6nature. In this case, Adolfo Peralta speas of the e@istence of )the* P(5.% 'illion liabilit- in favor of the PNCC as ustification for his acts herein. 4rue enou6h, for that a'ount "as the liabilit- as of Dece'ber /1, 1%$. As finance officer, ho"ever, he could not clai' i6norance of the fact that as of anuar- (%, 1%J, the date of the application for a 'ana6erTs chec "hich he si6ned, t"o previous 'ana6erTs checs "orth P($ 'illion each had alread- been applied for and the total a'ount of P$0 'illion had alread- been "ithdra"n . . . . It "as onl- t"o "ees after these t"o "ithd ra"als "hen Peralta, as 9inance ervi ces Mana6er, participated in the authori?ation for the disburse'ent of another P$ 'illion. 4his last "ithdra"al brou6ht up the total of "ithdra"als to P$$ 'illion for the pa-'ent of a P(5.% 'illion obli6ation. 4hus "hile it is true, as Adolfo Peralta clai's, that there "as a liabilit- in favor of the PNCC, there "as no "a- Peralta could disclai' responsibilit- for the e@cessive "ithdra"als to the e@tent of P$ 'illion thereof alle6edl- to pa- that liabilit-. 4here "as no "a- Peralta could ustif- his co2si6nin6 the application for a 'ana6erTs chec for P$ 'illion on anuar- (%, 1%J. 4he ponente cites a dissenting opinion of us tice Isa6ani A. Cru? in Development 4anC of the *hilippines v.*andogar to uphold his ponencia. Need "e re'ind our respected collea6ue that the corroborative value of a dissentin6 opinion is 'ini'alQ Precisel-, it supports a position contrar- to, and obviousl- unacceptable to the 'aorit-. Petitioners "ere found 6uilt- of 'alversation b- ne6li6ence, "hich is possible even if the char6e "as for intentional 'alversation. 4his does not ne6ate, ho"ever, their cri'inal liabilit-= it 'erel- declares that ne6li6ence taes the place of 'alice. Article / of the Code provides the rationale "hen it e@plicitl- states that felonies are co''itted not onl- b- 'eans of deceit but also b- 'eans of fault. 4he andi6anba-anTs findin6 that petitioners converted and 'isappropriated the P$$ 'illion cannot si'pl- be brushed aside upon petitionersT clai' that the 'one- "as delivered in 6ood faith to the !ffice of the President under the 'istaen assu'ption that the President "as entitled to receive the sa'e. 4herel- on the case of *eople v . 'abian, 29 "hich declared that )6*ood faith in the pa-'ent of public funds relieves a public officer fro' the cri'e of 'alversation. But the ver- sa'e decision also cites Article (15 to the effect that 'alversation 'a- be co''itted b- an accountable public officer b- ne6li6ence if he per'its an- other person to tae the public funds or propert- in his custod-. It is i''aterial if petitioners actuall- converted or 'isappropriated MIAATs funds for their o"n benefit, for b- their verne6li6ence, the- allo"ed another person to appropriate the sa'e. 4he fact that no conspirac- "as established bet"een petitioners and the true e'be??lers of the P$$ 'illion is lie"ise of no 'o'ent. 4he cri'e of 'alversation, as defined under Article (15 of the Code, 27 "as consu''ated the 'o'ent petitioners deliberatel- turned over and allo"ed the PresidentTs private secretar- to tae custod- of public funds intended as pa-'ent of MIAATs obli6ations to the PNCC, if obli6ation there "as at all. 4hat petitioner 4abuena "ho "as then 3eneral Mana6er of MIAA personalland no"in6l- participated in the 'isfeasance co'pounds the 'aleficence of it all. Ran 'a- have its privile6es but certainl- a blatant disre6ard of la" and ad'inistrative rules is not one of the'. It 'ust be
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etched in the 'inds of public officials that the underside of privile6es is responsibilities.
As accountable officers, petitioners clearly transgressed administrative and legal bounds . 5ven on the pretext of obeying a superior6s seemingly legitimate orders, their actuations can hardly be ustified . "o rule other%ise %ould set an alarming precedent %here all that public officials %ho have unla%fully enriched themselves at the people6s expense and those accused of graft and corruption %ould have to do to exculpate themselves from any %rongdoing %ould be to invoCe Article 11, paragraph of the +ode, thus gaining instant immunity from criminal prosecution. 3overn'ent officials, particularl- heads of their a6encies "ho, b- virtue of their e@alted positions e@ude po"er and authorit- but pa- blind obeisance to orders of those hi6her up in the bureaucratic hierarchre6ardless of the ille6alit-, i'propriet- or i''oralit- of such orders, "ould do "ell to internali?e this pra-er for national leaders delivered b- for'er enate President ovito R. alon6a in Malacanan6 on Nove'ber (#, 1%%J7 @@@ @@@ @@@ &hen the- be6in to thin of ho" 'uch po"er the- possess, help the' to no" the 'an- thin6s that are be-ond their po"er the chan6e of seasons, sun and rain, 'oonli6ht and starli6ht and all the "onders of Gour creation=
Ehen they are led to believe that they are exempt from public accountability, help them to Cno% that they are ultimately accountable to 0ou, the (od of truth and ustice and mercyF @@@ @@@ @@@ 4he ponencia 'aes the final observation that the li'itations on the ri6ht of ud6es to as 8uestions durin6 the trial "ere not observed b- respondent court= that the three ustices "ho heard the testi'onies ased /5 8uestions of "itness 9rancis Monera, J5 of 4abuena, and #1 of Peralta 'ore than "hat the prosecutors and defense counsels propounded. &hile such nu'bers undul- disturbed the ponente, it cannot be 6ainsaid that such action b- the 'e'bers of the 9irst Division of respondent andi6anba-an "as, under the circu'stances, not onlnecessar- and called for, but lie"ise le6all- acceptable. In the first place, even the ponente 'aes the observation that petitioners did not raise this 'atter as error. In other "ords, the- did not feel preudiced b- the respondent courtTs actuations= nor did theconstrue the series of 8uestions ased of the' b- the ustices as indicative of an- unfairness or partialitviolative of their ri6ht to due process. 4hen, too, it 'ust be noted that there is a difference in the ri6ht of a ud6e in a non2ur- s-ste', lie that obtainin6 in the Philippines, to 8uestion "itnesses or parties the'selves, and that of a ud6e in a urtrial. 4he bul of urisprudence used in the ponencia "as decided in the ;nited tates, "here the urs-ste' is e@tensivel- utili?ed in civil as "ell as in cri'inal trials. In this re6ard, )i*t has been noted that the opinion of the ud6e, on account of his position and the respect and confidence reposed in hi' and in
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his learnin6 and assu'ed i'partialit-, is liel- to have 6reat "ei6ht "ith the ur-, and such fact of necessit- re8uires i'partial conduct on his part. 4he ud6e is a fi6ure of overpo"erin6 influence, "hose ever- chan6e in facial e@pression is noted, and "hose ever- "ord is received attentivel- and acted upon "ith alacrit- and "ithout 8uestion. 28 4hus, "hile a trial ud6e is e@pected to be circu'spect in his choice of "ords lest the- be construed as si6ns of partialit-, he is not, ho"ever, re8uired to re'ain silent and passive throu6hout a ur- trial= 2; he should, instead, conduct a trial in an orderl- "a- "ith a vie" to elicitin6 the truth and to attainin6 ustice bet"een the parties. 30 Inas'uch as it is the ur- "hich has the burden of 'etin6 out ustice, it is acceptable for a ud6e in a urtrial to as an- 8uestion "hich "ould be proper for the prosecutor or defense counsel to as so lon6 as he does not depart fro' a standard of fairness and i'partialit-. 31 Suestions desi6ned to clarif- points and to elicit additional relevant evidence, particularly in a non-ury trial, are not i'proper. 32 4he nu'er ous 8uest ions ased b- the cour t a $uo should have been scrutini?ed for an- possible influence it 'a- have had in arrivin6 at the assailed decision. 4he true test for the appropriateness or inappropriateness of court 8ueries is not their 8uantit- but their 8ualit-, that is, "hether the defendant "as preudiced b- such 8uestionin6. 334o repeat, petitioners did not feel preudiced b- the trial courtTs actions= other"ise, the- "ould have raised this issue in the instant petition. 4he ponencia states that he is "ell a"are of the fear entertained b- so'e that this decision 'a- set a dan6erous precedent in that those 6uilt- of enrichin 6 the'selves at the e@pense of the public "ould be able to escape cri'inal liabilit- b- the 'ere e@pedient of invoin6 good faith. !ur position has been either 'isinterpreted or 'isread for "e do not 'erel- spea of 6ood faith. In fact, our 'ain thrust is that such a breed of people "ho enriched the'selves at the e@pense of the public 'i6ht handil- use as an e@cuse or a ustif-in6 circu'stance to escape liabilit- their havin6 obe-ed the la"ful orders of their superior under Article 11, para6raph J of the Revised Penal Code. 4he ponente 'aes a plea to"ards the close of his decision, that "e should not act i'pulsivel- in the instant case. In our ea6erness to brin6 to ustice the 'alefactors of the Marcos re6i'e, "e 'ust not succu'b to the te'ptation to co''it the 6reatest inustice of visitin6 the sins of the "ron6doers upon an innocent. In our opinion, precisel-, 4abuena and Peralta are "ron6doers, 6uilt- of acts punishable b- la". Needless to sa-, under our s-ste' of la"s, the- 'ust be 'eted out the correspondin6 penalt-. &e dra" attention to the fact that no"here in this dissent do "e sin6le out the so2called 'alefactors of the Marcos re6i'e alone. &e addressed ourselves to all "ho co''it venalities at the e@pense of the people, as defined and punished b- la" but "ho tr- to ustif- their actions b- invoin6 the ver- la" "hich the- violated. 9or the reasons stated above, I vote to affir' petitionersT conviction b- respondent court.
*adilla, Melo and *anganiban, 33., concur.
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PUNO, J., dissentin67
I oin the Dissentin6 !pinion of Mada' ustice 9lerida Ruth Ro'ero "here I find both ri6ht and ri6hteousness happil- intersectin6 each other. I a', ho"ever, constrained to "rite this brief dissent in vie" of the i'pact of the 'aorit- decision to our cri'inal ustice s-ste' "hich 'an- perceive leaves 'uch to be desired. IIt should be i''ediatel- stressed that petitioners "ere convicted of the cri'e of 'alversation bne6li6ence. 4he felon- "as co''itted b- petitioners not b- 'eans of deceit ) dolo* but b- fault ) culpa*. Accordin6 to Article / of the Revised Penal Code, there is fault "hen the "ron6ful act results fro' i'prudence, ne6li6ence, lac of foresi6ht, or lac of sill. ustice .B.+. Re-es e@plains the difference bet"een a felon- co''itted b- deceit and that co''itted b- fault in this "ise7 . . . In intentional cri'es, the act itself is punished= in ne6li6ence or i'prudence, "hat is principall- penali?ed is the 'ental attitude or condition behind the act, the dan6erous reclessness, lac of care or foresi6ht, the i'prudencia punible. 1 In li6ht of this "ell2carved distinction, the lon6 discourse of the 'aorit- decision hailin6 petitionersT 6ood faith or lac of intent to co''it 'alversation is off2line. 4o ustif- the ac8uittal of petitioners, the 'aorit- should strive to sho" that petitioners did not co''it an- i'prudence, ne6li6ence, lac of foresi6ht or lac of sill in obe-in6 the order of for'er President Marcos. 4his is nothin6 less than a 'ission i'possible for the totalit- of the evidence proves the utter carelessness of petitioners in the dischar6e of their dut- as public officials. 4he evidence and their interstices are ade8uatel- e@a'ined in the dissent of Mada'e ustice Ro'ero and the- need not be belabored. 9or the sa'e reason, the 'aorit- cannot rel- on the doctrine of 'istae of fact as 6round to ac8uit petitioners. It found as a fact that . . . 4abuena acted under the honest belief that the P$$ 'illion "as a due and de'andable debt. . . . 4his Court has never applied the doctrine of 'istae of fact "hen ne6li6ence can be i'puted to the accused. In the old, fa'iliar case of *eople vs. Ah +hong , 2 Mr. ustice Carson e@plained that i6norance or 'istae of fact, if such i6norance or 'istae of fact is sufficient to ne6ative a particular intent "hich under the la" is a necessar- in6redient of the offense char6e ) e.g., in larcen- ani'us furendi, in 'urder, 'alice, etc.*, cancels the presu'ption of intent and "ors an ac8uittal, e@cept in those cases "here the circu'stances de'and conviction under the penal provisions touchin6 cri'inal ne6li6ence. ence, Ah Chon6 "as ac8uitted "hen he 'istoo his housebo- as a robber and the evidence sho"ed that his 'istae of fact "as not due to ne6li6ence. In the case at bar, the ne6li6ence of the petitioners screa's fro' pa6e to pa6e of the recor ds of the case. Petitioners the'selves ad'itted that the pa-'ents the- 'ade "ere out of the ordinar- and not based on nor'al procedure. As aforestated, the cornerstone of the 'aorit- decision is its findin6 of 6ood faith on the part of the petitioners. Oie"ed fro' a 'ore critical lens, ho"ever, the evidence cannot ustif- a findin6 of 6ood faith. 4he violations of auditin6 rules are too 'an- -et the 'aorit- 'erel- "ins at the' b- rulin6 that petitioner 4abuena . . . did not have the lu@ur- of ti'e to observe all auditin6 procedures of disburse'ent considerin6 the fact that the Marcos Me'orandu' enoined Ti''ediate co'plianceT "ith the directive that he for"ard to the PresidentTs !ffice the P$$ 'illion in cash. &ith due respect, I a' dis8uieted b- the 'ischiefs that "ill be 'othered b- this rulin6. 4o be6in "ith, the countr- "as no lon6er under 'artial rule in 1%J and petitioners "ere under no co'pulsion to violate our la"s. It also
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ou6ht to be obvious that the order for i''ediate co'pliance even if 'ade b- the for'er President cannot be interpreted as a 6reen si6nal b- a subordinate official to disre6ard our la"s. Indeed, no person, not even the President can order the violation of our la"s under an- e@cuse "hatsoever. 4he first and fore'ost dut- of the President is to uphold the sanctit- of our la"s. 4hus, the Constitution re8uires the President to tae an oath or affir'ation "here he 'aes the sole'n pled6e to the people7 I do sole'nls"ear )or affi r'* that I "ill faithfull- and conscientiousl- fulfill '- duties as President of the Philippines, preserve and defend its Consti tution, e@ecute its la"s, do ustice to ever- 'an, and consecrate '-self to the service of the Nation. . . . 3 4o be sure, the need for petitioners to 'ae an i''ediate pa-'ent is reall- not that i''ediate. 4he facts sho" that for'er President Marcos first called petitioner 4abuena b- telephone and ased hi' to 'ae the pa-'ent. !ne "ee after or on anuar1%J, the infor'er Presidentissued a on "ritten 'e'orandu' reite ratin6onthe order 1J, to 1%J pa-. Pa-'ents,"ere 'ade three tranches the first anuar10, 1%J, the second anuarand the third on anuar- /1, 1%J. Clearl- then, it too petitioner one 'onth to co'pl- "ith the !rder. 3iven the personnel of petitioner 4abuena in his office, one 'onth provides enou6h ti'e to co'pl- "ith the rules. In an- event, petitioners did not re8uest for'er President Marcos for additional ti'e to co'pl"ith the rules if the- felt in 6ood faith that the- needed 'ore ti'e. Petitioners short2circuited the rules b- the'selves. Nothin6 in the Marcos Me'orandu' co'pelled the' to disre6ard the rules. 4he Me'orandu' 'erel- stated Gour i''ediate co'pliance is appreciated. 4he lan6ua6e of the Me'orandu' "as as polite as it could be. I fail to discern an- duress in the re8uest as the 'aorit- did. II 4he deter'ination of the de6ree of participation that should be allo"ed to a ud6e in the 8uestionin6 of a "itness is a slipper- slope in constitutional la". 4o a certain e@tent, I a6ree "ith the 'aorit- that so'e of the 8uestions propounded b- the ustices of the respondent Court crossed the li'its of propriet-. Be that as it 'a-, I a' not prepared to conclude "ith certaint- that the te@t and tone of the 8uestions denied petitioners the ri6ht to an i'partial trial. Bias is a state of 'ind "hich easil- eludes evidence. !n the basis of the evidence before us, "e cannot hold that "e have plu'bed the depth of preudice of the ustices and have unearthed their partialit-. 4he 'ore tellin6 evidence a6ainst the petitioners are docu'entar- in nature. 4he- are not derived fro' the ans"ers elicited b- 8uestions fro' the ustices "hich the 'aorit-, sua sponte, e@a'ined and conde'ned as i'proper. III 9inall-, I can not but vie" "ith concern the probabilit- that the 'aorit- decision "ill chill co'plaints a6ainsts 6raft pendin6 before the respondent Court. 9ro' the 'aorit- decision, it is cr-stalline that petitioners blindl- obe-ed the Marcos Me'orandu' despite its fatal and facial fla"s. 4he 'aorit- even 8uotes these inculpator- ad'issions of petitioner 4abuena, vi!7 @@@ @@@ @@@ A del Rosario @@@ @@@ @@@
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S If it "as for the pa-'ent of such obli6ation "h- "as there no voucher to cover such pa-'entQ In other "ords, "h- "as the deliver- of the 'one- not covered b- an- voucherQ A 4he instruction to 'e "as to 6ive it to the !ffice of the President, -our onor. P 3architorena S Be that as it 'a-, "h- "as there no voucher to cover this particular disburse'entQ A I "as ust told to brin6 it to the !ffice of the President, -our onor. A del Rosario S &as that nor'al procedure for -ou to pa- in cash to the !ffice of the President for obli6ations of the MIAA in pa-'ent of its obli6ation to another entit-Q A No, -our onor, I "as ust follo"in6 the !rder to 'e of the President. P 3architorena S o the !rder "as out of the ordinar-Q A Ges, -our onor. A del Rosario S Did -ou file an- "ritten protest "ith the 'anner "ith "hich such pa-'ent "as bein6 orderedQ A No, -our onor. S &h- notQ A Because "ith that instruction of the President to 'e, I follo"ed -our onor. @@@ @@@ @@@ A er'osisi'a S &h- "ere -ou not 'ade to pa- directl- to the PNCC considerin6 that -ou are the 'ana6er of MIA at that ti'e and the PNCC is a separate corporation, not an adunct of Malacanan6Q A I "as ust basin6 it fro' the !rder of the Malacanan6 to pa- PNCC throu6h the !ffice of the President, -our onor.
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@@@ @@@ @@@ S Gou a6reed to the order of the President not"ithstandin6 the fact that this "as not the re6ular course or Malacanan6 "as not the creditorQ A I sa" nothin6 "ron6 "ith that because that is co'in6 fro' the President, -our onor. In effect, petitionersT shocin6 sub'ission is that the President is al"a-s ri6ht, a fri6htenin6 echo of the antedeluvian idea that the in6 can do no "ron6. B- allo"in6 the petitione rs to "al, the 'aorit- has validated petitionersT belief that the President should al"a-s be obe-ed as if the President is above and be-ond the la". I cannot accept this dan6erous rulin6 even if I loo at it throu6h the e-es of faith. !ne of the 6ospels in constitutional la" is that the President is po"erful but is not 'ore para'ount than the la". And in cri'inal la", our catechis' teaches us that it is lo-alt- to the la" that saves, not lo-alt- to an'an. +et us not bid 6oodb-e to these sacrosanct principles.
*adilla, Melo and *anganiban, 33., concur. P"NG"NB"N, J., dissentin67
In the 'ain, the 'aorit- ruled that Petitioners +uis 4abuena and Adolfo Peralta should be ac8uitted because the- "ere 'erel- obe-in6 the order of then President 9erdinand E. Marcos to deliver thru this !ffice, the su' of 9I94G 9IOE MI++I!N )P$$,000,000.00* PE! in cash as partial pa-'ent of MIAATs account "ith the Philippine National Construction Co'pan-. In their Dissentin6 !pinions, ustices Ro'ero , Davide and Puno have sho"n ho" "ea and unpersuasive this rulin6 is under applicable Philippine la"s and urisprudence. I "ill not repeat their illu'inative discussions. +et 'e ust stress three 'ore points7 )1* 4he defense of obedience to a superiorTs order is alread- obsolete. 9ift- -ears a6o, the Na?i "ar cri'inals tried to ustif- 6enocide a6ainst the e"s and their other cri'es a6ainst hu'anit- b- alle6in6 the- "ere 'erel- follo"in6 the orders of Adolf itler, their adored fuehrer. o%ever, the nternational Military "ribunal at 7uremberg in its 3udgment dated /ctober 1, 1>9, 1 forcefully debunCed this 7a!i argument and clearly ruled that )?t@he true test . . . is not the existence of the order but %hether moral choice %as in fact possible . In 1%#5, the ;nited Nations 3eneral Asse'bl- adopted a Resolution fir'l- entrenchin6 the principle of 'oral choice, inter alia, as follo"s7 2 4he fact that a person acted pursuant to an order of his 6overn'ent or of a superior does not relieve hi' fro' responsibilit- under international la", provided a 'oral choice "as in fact possible to hi'. In the Nure'ber6 trials, the defendants "ere military officers of the 4hird Reich "ho "ere duty-bound
to obey direct orders on pain of court 'art ial and death at a ti'e "hen their countr- "as at %ar. Nonetheless, the- "ere 'eted out death sentences by hanging or lon62ter' i'prison'ents. In the present case, the accused are civilian officials purportedl- co'pl-in6 "ith a 'e'orandu' of the Chief E@ecutive "hen martial la% had already been lifted and the nation "as in fact ust abou t to vote in the
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snap presidential election in 1%J. 4he andi6anba-an did not i'pose death but onl- i'prison'ent ran6in6 fro' seventeen -ears and one da- to t"ent- -ear s. +ertainly a moral choice %as not only possible. t %as in fact available to the accused. "hey could have opted to defy the illegal order, %ith no risC of court martial or death. /r they could have resigned . 4he- ne" or should have no"n that the P$$ 'illion "as to be paid for a debt that "as dubious 3 and in a 'anner that "as irre6ular. 4hat the 'one- "as to be re'itted in cold cash and delivered to the private secretar- of the President, and not bthe nor'al crossed chec to the alle6ed creditor, 6ave the' a 'oral choice to refuse. 4hat the- opted to cooperate co'pounded their 6uilt to a blatant conspirac- to defraud the public treasur-. )(* esurrecting this internationally discredited 7a!i defense %ill, respectfully submit, set a dangerous
precedent in this country. Allo%ing the petitioners to %alC deprives this +ourt of the moral authority to convict any subaltern of the martial la% dictator %ho %as merely )follo%ing orders .) 4his ludicrous defense can be invoed in all cri'inal cases pendin6 not onl- before this Court but 'ore so before inferior courts, "hich "ill have no le6al option but to follo" this CourtTs doctrine. )/* Mercy and compassion are virtues %hich are cherished in every civili!ed society. 4ut before they can be invoCed, there must first be ustice . 4he upre'e CourtTs dut- is to render ustice. 4he po"er to dispense pardon lies else"here. Oeril-, the Constitution ordains a final conviction b- the courts before the President can e@ercise his po"er to "ipe a"a- penalt-. < uch is the le6al and natural precedence and order of thin6s7 ustice first before 'erc-. And onl- he "ho sincerel- repents his sin, restitutes for it, and refor's his life deserves for6iveness and 'erc-. I therefore vote to A99IRM the assailed andi6anba-an Decision onvictin6 the petitioners of 'alversation.
*adilla, Melo and *anganiban, 33., concur. Foo#oe
1 4aen under ection 5 of P.D. 1J0J, as a'ended )the andi6anba-an +a"*, ection 1, Rule HIH of the Revised Rules of the andi6anba-an and Rule #$ of the Rules of Court. 4he petitions "ere ordered consolidated b- the Court in an 5n 4anc Resolution dated !ctober 1, 1%%(. ( Pro'ul6ated on !ctober ((, 1%%0= Rendered b- the 9irst Division then co'posed of ustices 3architorena )ponente*, er'osisi'a )no" Associate ustice of this Court* and Del Rosario. / Pro'ul6ated on anuar- 10, 1%%(. # Records, Ool. I, p. (J. $ Records, Ool. I, pp. 11%21(0. J 4abuena avers that the andi6anba-an7 A
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Erred and co''itted revie"able error in rulin6 that petitioners "ithdra"al of the P$$ Million "as not for a la"ful purpose or for a la"ful debt. In the process, the Sandiganbayan clearl- ignored several pieces or evidence sub'itted b- petitioner, and instead misapprehended the full i'port of the !n6pin Me'orandu' )E@h. (, as attach'ent of Anne@ I*, to "hich the Marcos order to pa- referred )E@h. 1, attach'ent to Anne@ I*. In so concludin6, the Sandiganbayan laid its conclusions open to revie" as its ud6'ent is in effect based on 'isapprehension of facts )Cru? vs. osin6. +2 #5$, Nove'ber (5, 1%$/*= and in i6norin6 several 'aterial pieces of evidence abused its discretion )Bu-co vs. People, $1 !3 5%(5*. B Erred and co''itted revie"able error in rulin6 that the !n6pin Me'orandu' )E@h. ( and (2A, ee Anne@ I*, and the Marcos approval thereof )E@h. 1, id.* did not support the "ithdra"al and pa-'ent of 'onies b- petitioner. In so concludin6, the Sandiganbayan a6ain clearl- 'isapprehended the !n6pin and Marcos Me'oranda, and the led6er of PNCC. C Erred and co''itted revie"able error in rulin6 that petitioner "as in bad faith "hen he co'plied "ith the presi dential order to pa-= in thus concl udin6 the Sandiganbayan indul6ed in speculations and conectures )oa8uin vs. Navarro, %/ Phil. ($5*, or other"ise "ent be-ond the issues )Evan6elista vs. Alco, +2111/%, April (/, 1%$*= the Sandiganbayan also erred in not rulin6 that petitioner is entitled to ustif-in6 circu'stance under Par. J, Art. II, and>or the e@e'ptin6 circu'stance provided under Pars. $ and J of Art. 1( of the Revised Penal Code. D Erred and co''itted revie"able error in rulin6 that petitioner "as unable to account for the 'one-. In so doin6, the Sandiganbayan contradicted the rulin6 in ;.. vs. Catolico 1 Phil. $0#. It also erred in holdin6 petitioner accoun table for acts not char6ed in the a'ended infor'ations, and in so doin6 convicted hi' "ithout urisdiction. E Erred and co''itted revie"able error in rulin6 that petitioner "as not entitled to i''unit- as provided b- ec. 15, Article OII of the 1%5/ Constitution. 4he andi6anba-an therefore had no urisdiction to trthe cases. 9 Erred and co''itted revie"able error in rulin6 that proof be-ond reasonable doubt of petitionerTs 6uilt "as sub'itted b- the prosecution. In so doin6, the andi6anba-an "ron6l- shifted the burden of proof and denied petitio ner the benefits of the presu'ption of innocence, of ecs. 1 and (, Rule 1/1, and the absence of de'and under the last para6raph of Art. (15 of the Revised Penal Code.
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Peralta for his part clai' that7 1. Respondent court 6rossl- and seriousl- erred in convictin6 herein accused despite the absence of proof that he alle6edl- converted the funds "ithdra"n to his o"n personal benefit as char6ed in the infor'ation in 6larin6 violation of his basic constitutional ri6ht to be presu'ed innocent. (. Respondent court lie"is e 6rossl- and seriousl- erred in convictin6 herein accused for a cri'e not char6ed in the infor'ation a6ain in violation of another constitutional ri6ht, that is the ri6ht to be infor'ed of the accusation or ri6ht to due process. / Respondent court also 6rossl- erred in convictin6 herein accused on the basis of 'ere assu'ptions, conectures and inferences devoid of factual basis in another serious and 6larin6 violation of his ri6ht to be presu'ed innocent until his 6uilt is established b- proof be-ond reasonable doubt. # Respondent court finall- erred in refusin6 to reco6ni?e the applicabilit- of the i''unit- provision e'bodied in the Constitution and of the ustif-in6 circu'stance of obedience to a la"ful order as valid defenses in this case. 5 +iting PNB v. 4u6ab, JJ Phil. $/ and People v. Pascua, 51 !.3. (#5#. +iting 4ubb v. People, 101 Phil. 11#. % 1%5 CRA %#. 10 1 Phil. $0#. 11 (# Phil. (/0. 1( #5 Phil. #. 1/ +e"is v. People, %% Colo. 10(, J0 Pac. K(dL 10%= +a"-er v. tate, ((1 Ind. 101, #J N.E. K(dL $%(= tare v. ch'idt, 5( N. Da. 51%, 10 N.&. K(dL J. ;nderhillTs Cri'inal Evidence, $th Ed., Boo /, p. 1#(1. 1# 9ederal +ind6ren v. ;nited tates, (J0 9ed. 55(. ;nderhill. ibid. 1$ ection , Article OII of the 1%5/ Constitution provides7 4he President shall have control of all 'inistries. 1J No. J, Article II, Revised Penal Code. 15 andi6anba-an Decision, pp. /52/.
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1 andi6anba-an Decision, p. #1. 1% 4N, March 15, 1%%, p. 5= Ool. III, Records, p. #0%. (0 4N, March 15, 1%%, p. = Ool. III, Records, p. #10. (1 4N, March 15, 1%%, p. 10= Ool. III, Records. p. #1(. (( 3re6orio, 9unda'entals of Cri'inal +a", 1% th Ed., p. $%. (/ 5 Phil. J5. (# Padilla, Revised Penal Code, Boo !ne, Ool. I, 5th Ed. 1%5#., p. (#. ee also7 A8uino, 4he Revised Penal Code, Ool. I, 1%5 Ed., p. (05. In the ver- "ords of the Court in the NassifT case7 El 'ero acto de escribir un e'pleado de la cate6oria del recurrente, en el E@hibit B, la palabra sold, por orden de su principal one le pa6a el sueldo, sin prueba al6una de dole o 'alicia de su parte. no crea por si solo nin6una responsabilidad. i antes de insertar dicha palabra en el referido docu'ento, o al tie'po de hacerlo, el recurrente hubiese sabido o sospechado de al6una 'anera 8ue era para ustificar un acto I'propio de su principal, cosa one, por cierto, no se ha probado, ni puede desprenderse de la decision i'pu6nada, indudable'ente podria hacersele responsable a dicho recurrente, de la falsificacion co'etida, si no co'e coautor, por lo 'enos co'e co'plice. 4odo esto - la circunstancia ustificativa invocada por el recurrente, e@i'en a este de toda responsabilidad. ($ Decision, p. #$. (J 1#$ CRA #/$. (5 Supra. ( andi6anba-an Decision, p. $0. (% People v. 9abian, No. 105%02CR, March 1(, 1%5/. J% !.3. 1(1$0, No. $/. /0 1 Phil. #(. /1 1%5 CRA (J(.
/( Supra, p. #/1. // Supra, p. (5/.
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/# Develop'ent Ban of the Philippines v. Pundo6ar, (1 CRA 11. 1J/. /$ People v. E@ala, Dissentin6 !pinion, ((1 CRA #%#, $0/ /J People v. !lfindo, #5 Phil. 1, citing ;.. v. Abian. 1 Phil. /= People v. Borbano, 5J Phil. 50/= Pere? v. Court of Appeals, 1(5 CRA J/J. /5 See 4N of March 15, 1%%, Records, Ool. III, pp. #02#(/. / See pp. 12(5 4N of Ma- (, 1%%0, Records, Ool. III, pp. #/%2#J$. /% See pp. /(2$/ of 4N, of Ma- (, 1%%0, Records, Ool. III, pp. #502#%0. #0 +onfrontation. Confrontation consists of confrontin6 the "itness "ith da'a6in6 facts "hich he cannot den- and "hich are inconsistent "ith his evidence. It is a destructive techni8ue, but "hen it fails to destro- it 'a- still succeed in "eaenin6.
*robing. G Probin6 consists of in8uirin6 thorou6hl- into the details of the stor- to discover the fla"s. nsinuation. Insinuation consists of leadin6 or forcin6 the "itness b- addin6 facts at one point and 'odif-in6 details at another, to 6ive a version of his evidence "hich is 'ore favorable to the other side. "he "echni$ue of Advocacy, by 3ohn . MunCman, on, -=F p. =:= pp. >1-><. #1 4N, March 15, 1%%, pp. 112(1= Records. Ool. III, pp. #1/2#(/. #( 4N, Ma- (, 1%%0, pp 112(5= Records, Ool. III. pp. ##%2#J$. #/ 4N, Ma- (, 1%%0, pp. /$2$/= Records, Ool. III, pp. #5/2#%0. ## ; v. udieres, (5 Phil. #$= ; v. +i' ui, /$ Phil. $0#= ; v. Bina-ao, /$ Phil. (/. #$ People v. !pida, 1#( CRA (%$. #J Gor v. ; (%% 9ed. 55. #5 4N, Ma- (, 1%%0, pp. /$2$/= Records, Ool. III, pp. #5/2#%0. # People v. !pida, supra. #% Murph- v. tate, 1/ 3a. App. #/1, 5% .E. ((. $0 People v. Bernstein, ($0 Ill. J/, %$ N.E. $0. $1 Dre-er v. Ersho"s-, 1$J App. Div. (5, 1#0 N.G. upp. 1%.
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$( Dunn v. People, 15( III. $(, $0 N.E. 1/5. $/ Co'. v. M-'a, (5 Pa. $0$, 1(/ Atl. 5J. $# Adler v. ;, 10# C.C.A. J0, 10 9ed. #J#. $$ Ca'paner v. Alano, CA23.R. No. ($$2R, Dece'ber 1$, 1%#. $J People v. !pida, supra. DAOIDE, R., ., dissentin67 1 3.R. No. 10$%/. ( Pa6e (J. / (1 CRA 11, 1J/ K1%%/L. # +iting People v. !lfindo, #5 Phil. 1 K1%(#L, citing ;.. vs. Abian, 1 Phil. / K1%0(L= People v. Borbano, 5J Phil. 50/ K1%#JL= Pere? v. Court of Appeals, 1(5 CRA J/J K1%#L. $ (5 Phil. #$, #52# K1%1#L. J Article J, Civil Code. 5 1% CRA 1/0, 1$#21$$ K1%%1L. +iting %( C..., 10JJ210J )italics supplied for e'phasis*. % +iting 1J A. (d $0, $5, /#0 Pa. //, cited in note 51 C..., 10J. 10 +iting AR4;R! M. 4!+EN4IN!, Civil Code of the Philippines, vol. 1, 1%$ ed., /12/(, citing &a@'an v. ;nited tates, 1( 9ed. (nd, 55$. 11 +iting People v. Malasu6ui, J/ Phil. ((1 K1%/JL= de 3arcia v. +ocsin, J$ Phil. J% K1%/L. 1( +iting People v. Ro-o, 11# CRA /0# K1%(L= Morales v. Enrile, 1(1 CRA $/ K1%/L= People v. Colana, 1(J CRA (/ K1%/L= People v. anche?, 1/( CRA 10/ K1%#L= People v. 3alit, 1/$ CRA #J$ K1%$L= People v. Sui?on, 1#( CRA /J( K1%JL. 1/ +iting Abriol v. o'eres, # Phil. $($ K1%#%L= People v. Dichoso, %J CRA %$5 K1%0L. 1# !AS;IN 3. BERNA, 4he Constitution of the Republic of the Philippines, vol. 1 K1%5L, /5.
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R!MER!, ., dissentin67 1 E@h. 1, ollo, p. (/1. ( E@h. /, ibid., p. (/#. / Re-es, 4he Revised Penal Code, I, 1%%/, pp. (0/2(0#= apunan and 9a-lona, Cri'inal +a", 1%%/, p. (. # ec. J05, Chapter (J, 4itle OII, 4he Ad'inistrative Code. $ A ne" provision "hich "as not in Batas Pa'bansa Bl6. //5 )4he +ocal 3overn'ent Code of 1%/*. J C!A Circular No. %12/$0 dated March #, 1%%1, increased the ceilin6 for cash pa-'ents fro' P$,000.00 to P10,000.00. 4he Basic 3uidelines for Internal Control, issued b- the C!A on anuar- /1, 1%55, set the ceilin6 even lo"er at P1,000.00. 5 4N, Ma- (, 1%%0, p. $/. bid., p. 15. % C!A Circular No. $2$$2A, epte'ber , 1%$. 10 ec. (% )1*, Art. OI, 1%5 Constitution )ec. 1 K1L, Art. OIII, 1%5/ Constitution*. 11 ection (% )(*, ibid. )ection 1 K(L, ibid.*. 1( ection (% )/*, ibid. )ne" provision*. 1/ ection 1, Chapter I, 4itle I2B, B. O, 4he Ad'inistrative Code of 1%5 )ne"*. 1# ection # )$*, P.D. 1##$= ection /##, 1%%1 +ocal 3overn'ent Code )ne"*. 1$ ection # )J* and ection $$ )#*, ibid.= C!A Circular 52#, Au6ust 1, 1%5= C!A Circular 121$$. 1J ection # )5* and ection $$ )(*, ibid. 15 ection # )*, ibid. 1 4N, March 15, 1%%, pp. 52(0. 1% E@hibit (, ollo, p. (/(. (0 E@hibit #, ibid., p. (/$.
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(1 E@hibit #2a, id. (( Art. 1(#0, Civil Code of the Philippines. (/ Art. 1(#1, par. (, ibid. (# Art. 1(#J, par. 1, id. ($ ollo, pp. /$2/5. (J Supra. (5 Art. (15. Malversation of public funds or propert-. Presu'ption of 'alversation. An- public officer "ho, b- reason of the duties of his office, is accountable for public funds or propert-, shall appropriate the sa'e, or shall tae or 'isappropriate or shall consent, or through abandonment or negligence, shall permit any other person to taCe such public funds or property, %holly or partially , or shall other"ise be 6uilt- of the 'isappropriation or 'alversation of such funds or propert-, . . . . )E'phasis supplied* ( 5$ A' ur (d, 4rial, ec. (5(, citing ;.. v. Candelaria23on?ale? )CA$ 4e@* $#5 9(d (%1. (% bid. /0 d., citing ;.. v. lone )CAJ -* // 9(d $%$, (# 9ed Rules Evid erv //%. /1 d., citing ohnston v. Bir'in6ha' )Ala App* // o (d 5. /( d., citing E66ert v. Mosler afe Co. )Colo App* 5/0 P(d %$= +a" !ffices of +a"rence tocler, PC v. Rose, 15# Mich App 1#, #/J N&(d 50, app den #/# Mich J(, reconsideration den )Mich* 1%%0 Mich +EHI %J(, and reconsideration den )Mich* 1%%0 Mich +EHI %J/. // d., citing ;.. v. ell- )CA/ N* /(% 9(d /1#= &oodrin6 v. ;.. )CA Mo* /11 9(d #15, cert den /5/ ; %1/, 10 + Ed (d #1#, / Ct 1/0#. P;N!, ., dissentin67 1 A8uino, 4he Revised Penal Code, Ool. I, 1%5J ed., p. J0. ( 1$ Phil. #, #%/.
/ ection $, Article OII of the Constitution. # See pp. #12#$ of 'aorit- decision.
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PAN3ANIBAN, ., dissentin67 1 #1 AI+ 15(, ((1 )1%#5*. ( 9or the full te@t of the Resolution, please see alon6a and Gap, Public International +a", 4hird Edition, p. (/$2(/J. / ub'itted before the andi6anba-an "as a Me'orandu' of then Minister of 4rade Roberto !n6pin dated anuar- 5, 1%$, statin6 that the MIAA had a total account of P%.# 'illion due the PNCC. ubtractin6 ho"ever the outstandin6 advances totallin6 P%/.% . . . "ill leave a net a'ount due to PNCC of onl- P#.$ 'illion, e@plained Mr. !n6pin. Even if the P/0 'illion advances "hich Pres. Marcos is clai'ed to have authori?ed PNCC to retain, is added to this net a'ount due of P#.$ 'illion, the total "ould run up to onl- P/#.$ 'illion still P(0.$ 'illion sh- of the P$$ 'illion actuall- disbursed. # In 4- vs. 4ra'pe, ($0 CRA $00, $(1, Dece'ber 1, 1%%$, ud6es "ere ad'onished to follo" established la"s, doctrines and precedents. ence, once a case has been decided one "a-, then another case involvin6 e@actl- the sa'e point at issue should be decided in the sa'e 'anner. 4a- Chun u- vs. Court of Appeals, ((% CRA 1$1, 1J/, anuar- 5, 1%%#. $ In People vs. alle, r. , ($0 CRA $1, Dece'ber #, 1%%$ this Court e@pressl - held that ection 1%, Article OII of the present Constitution prohibits the presidential 6rant of pardon unless there is conviction b- final ud6'ent of the accused.
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Republic of the COURT Philippines SUPREME Manila EN BANC G.R. No. 17019<
"uu 1<, 2009
B(GEN. =RET.> FR"NCSCO ). GUD"N "ND LT. COL. "LE"NDER F. B"LUT"N Petitioners, vs. LT.(GEN. GENEROSO S. SENG" CORON", "S C'EF OF ST"FF OF T'E C"RPO& MOR"LES, "RMED FORCES OF T'E C"LLE!O, SR., P'LPPNES, COL. GLBERTO "*CUN", !OSE C. RO" "S T'E PRE&TR"L TNG", N)ESTG"TNG OFFCER, T'E C'CO&N"*"RO, PRO)OST M"RS'"LL GENER"L G"RC", a#$ OF T'E "RMED Respondents. FORCES OF T'E P'LPPNES "ND T'E GENER"L COURT&M"RT"L,
DECII!N TNG", J.:
A 'ost dan6erous 6eneral proposition is foisted on the Court that soldiers "ho def- orders of their superior officers are e@e'pt fro' the strictures of 'ilitar- la" and discipline if such defiance is predicated on an act other"ise valid under civilian la". !bedience and deference to the 'ilitar- chain of co''and and the President as co''ander2in2chief are the cornerstones of a professional 'ilitar- in the fir' cusp of civilian control. 4hese values of obedience and deference e@pected of 'ilitar- officers are content2neutral, be-ond the s"a- of the officer
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for possible court2'artial proceedin6s, initiated "ithin the 'ilitar- ustice s-ste' in connection "ith petitioners< violation of the afore'entioned directive. 4he Court is co6ni?ant that petitioners, in their defense, invoe "ei6ht- constitutional principles that center on funda'ental freedo's enshrined in the Bill of Ri6hts. Althou6h these concerns "ill not be addressed to the satisfaction of petitioners, the Court reco6ni?es these values as of para'ount i'portance to our civil societ-, even if not deter'inative of the resolution of this petition. ad the relevant issue before us been the ri6ht of the enate to co'pel the testi'on- of petitioners, the constitutional 8uestions raised b- the' "ould have co'e to fore. uch a scenario could have ver- "ell been presented to the Court in such 'anner, "ithout the petitioners havin6 had to violate a direct order fro' their co''andin6 officer. Instead, the Court has to resolve "hether petitioners 'a- be subected to 'ilitar- discipline on account of their defiance of a direct order of the A9P Chief of taff. 4he solicited "rits of certiorari and prohibition do not avail= the petition 'ust be denied.
. 4he petitioners are hi6h2ranin6 officers of the Ar'ed 9orces of the Philippines )A9P*. Both petitioners, Bri6adier 3eneral 9rancisco 3udani )3en. 3udani* and +ieutenant Colonel Ale@ander Balutan )Col. Balutan*, belon6ed to the Philippine Marines. At the ti'e of the subect incidents, both 3en. 3udani and Col. Balutan "ere assi6ned to the Philippine Militar- Acade'- )PMA* in Ba6uio Cit-, the for'er as the PMA Assistant uperintendent, and the latter as the Assistant Co''andant of Cadets.( !n (( epte'ber (00$, enator Rodolfo Bia?on )en. Bia?on* invited several senior officers of the A9P to appear at a public hearin6 before the enate Co''ittee on National Defense and ecurit- )enate Co''ittee* scheduled on ( epte'ber (00$. 4he hearin6 "as scheduled after topics concernin6 the conduct of the (00# elections e'er6ed in the public e-e, particularl- alle6ations of 'assive cheatin6 and the surfacin6 of copies of an audio e@cerpt purportedl- of a phone conversation bet"een President 3loria Macapa6al Arro-o and an official of the Co''ission on Elections )C!ME+EC* "idel- reputed as then C!ME+EC Co''issioner Oir6ilio 3arcillano. At the ti'e of the (00# elections, 3en. 3udani had been desi6nated as co''ander, and Col. Balutan a 'e'ber, of oint 4as 9orce Ranao b- the A9P outhern Co''and. oint 4as 9orce Ranao "as tased "ith the 'aintenance of peace and order durin6 the (00# elections in the provinces of +anao del Norte and +anao del ur./ ] 3en. 3udani, Col. Balutan, and A9P Chief of taff +ieutenant 3eneral 3eneroso en6a )3en. en6a* "ere a'on6 the several A9P officers "ho received a letter invitation fro' en. Bia?on to attend the ( epte'ber (00$ hearin6. !n (/ epte'ber (00$, 3en. en6a replied throu6h a letter to en. Bia?on that he "ould be unable to attend the hearin6 due to a previous co''it'ent in Brunei, but he nonetheless directed other officers fro' the A9P "ho "ere invited to attend the hearin6.#
!n (J epte'ber (00$, !ffice of Cristolito the Chief of taff of the A9P issued aItMe'orandu' the uperintendent of thethe PMA 3en. P. Baloin6 )3en. Baloin6*. "as si6ned b-addressed +t. Col. to ernando DCA Iriberri in behalf of 3en. en6a. $ Notin6 that 3en. 3udani and Col. Balutan had been invited to attend the enate Co''ittee hearin6 on ( epte'ber (00$, the Me'orandu' directed the
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t"o officers to attend the hearin6. JConfor'abl-, 3en. 3udani and Col. Balutan filed their respective re8uests for travel authorit- addressed to the PMA uperintendent. !n (5 epte'ber (00$, 3en. en6a "rote a letter to en. Bia?on, re8uestin6 the postpone'ent of the hearin6 scheduled for the follo"in6 da-, since the A9P Chief of taff "as hi'self unable to attend said hearin6, and that so'e of the invited officers also could not attend as the- "ere attendin6 to other ur6ent operational 'atters. B- this ti'e, both 3en. 3udani and Col. Balutan had alread- departed Ba6uio for Manila to attend the hearin6. 4hen on the evenin6 of (5 epte'ber (00$, at around 10710 p.'., a 'essa6e "as trans'itted to the PMA uperintendent fro' the office of 3en. en6a, statin6 as follo"s7 PER IN4R;C4I!N !9 ER EHCE++ENCG P3MA, N! A9P PER!NNE+ A++ APPEAR BE9!RE ANG C!N3REI!NA+ !R ENA4E EARIN3 &I4!;4 ER APPR!OA+. IN9!RM B3EN 9RANCIC! 9 3;DANI A9P AND +4C A+EHANDER BA+;4AN PA )3C* ACC!RDIN3+G.5 4he follo"in6 da-, 3en. en6a sent another letter to en. Bia?on, this ti'e infor'in6 the senator that no approval has been 6ranted b- the President to an- A9P officer to appear before the hearin6 scheduled on that da-. Nonetheless, both 3en. 3udani and Col. Balutan "ere present as the hearin6 started, and the- both testified as to the conduct of the (00# elections. 4he !ffice of the olicitor 3eneral )!3*, representin6 the respondents before this Court, has offered additional infor'ation surroundin6 the testi'on- of 3en. 3udani and Col. Balutan. 4he !3 'anifests that the couriers of the A9P Co''and Center had atte'pted to deliver the radio 'essa6e to 3en. 3udani
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depart'ent includin6 the 'ilitar- establish'ent fro' appearin6 in an- le6islative in8uir- "ithout her approval.10 4his Court subse8uentl- ruled on the constitutionalit- of the said e@ecutive order in Senate v. 5rmita.11 4he relevance of E.!. #J# andSenate to the present petition shall be discussed forth"ith. In the 'eanti'e, on /0 epte'ber (00$, petitioners "ere directed b- 3eneral en6a, throu6h Col. enr- A. 3alarpe of the A9P Provost Marshal 3eneral, to appear before the !ffice of the Provost Marshal 3eneral )!PM3* on / !ctober (00$ for investi6ation. Durin6 their appearance before Col. 3alarpe, both petitioners invoed their ri6ht to re'ain silent. 1( 4he follo"in6 da-, 3en. 3udani "as co'pulsoril- retired fro' 'ilitar- service, havin6 reached the a6e of $J.1/ In an Investi6ation Report dated J !ctober (00$, the !PM3 reco''ended that petitioners be char6ed "ith violation of Article of &ar J$, on "illfull- disobe-in6 a superior officer, in relation to Article of &ar %5, on conduct preudicial to the 6ood order and 'ilitar- discipline. 1# As reco''ended, the case "as referred to a Pre24rial Investi6ation !fficer )P4I!* preparator- to trial b- the 3eneral Court Martial )3CM*.1$ Conse8uentl-, on (# !ctober (00$, petitioners "ere separatel- served "ith !rders respectivel- addressed to the' and si6ned b- respondent Col. 3ilbert ose C. Roa, the Pre24rial Investi6atin6 !fficer of the P4I!. 4he !rders directed petitioners to appear in person before Col. Roa at the Pre24rial Investi6ation of the Char6es for violation of Articles J$ 1J and %5 15 of Co''on"ealth Act No. #0,1 and to sub'it their counter2affidavits and affidavits of "itnesses at the !ffice of the ud6e Advocate 3eneral. 1% 4he !rders "ere acco'panied b- respective char6e sheets a6ainst petitioners, accusin6 the' of violatin6 Articles of &ar J$ and %5. It "as fro' these pre'ises that the present petition for certiorari and prohibition "as filed, particularlseein6 that )1* the order of President Arro-o coursed throu6h 3en. en6a preventin6 petitioners fro' testif-in6 before Con6ress "ithout her prior approval be declared unconstitutional= )(* the char6es stated in the char6e sheets a6ainst petitioners be 8uashed= and )/* 3en. en6a, Col. 3alarpe, Col. Roa, and their successors2in2interest or persons actin6 for and on their behalf or orders, be per'anentl- enoined fro' proceedin6 a6ainst petitione rs, as a conse8uence of their havin6 testif ied before the enate on ( epte'ber (00$.(0 Petitioners characteri?e the directive fro' President Arro-o re8uirin6 her prior approval before an- A9P personnel appear before Con6ress as a 6a6 order, "hich violates the principle of separation of po"ers in 6overn'ent as it interferes "ith the investi6ation of the enate Co''ittee conducted in aid of le6islation. 4he- also e8uate the 6a6 order "ith culpable violation of the Constitution, particularl- in relation to the public
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. &e first proceed to define the proper liti6able issues. Notabl-, the 6uilt or innocence of petitioners in violatin6 Articles J$ and %5 of the Articles of &ar is not an issue before this Court, especiallconsiderin6 that per records, petitioners have not -et been subected to court 'artial proceedin6s. !"in6 to the absence of such proceedin6s, the correct in8uir- should be li'ited to "hether respondents could properl- initiate such proceedin6s preparator- to a for'al court2'artial, such as the afore'entioned preli'inar- investi6ation, on the basis of petitioners< acts surroundin6 their testi'on- before the enate on ( epte'ber (00$. Get this Court, consistent "ith the principle that it is not a trier of facts at first instance,(1 is averse to 'ain6 an- authoritative findin6s of fact, for that function is first for the court2 'artial court to fulfill. 4hus, "e li'it ourselves to those facts that are not controverted before the Court , havin6 been co''onl- alle6ed b- petitioners and the !3 )for respondents*. Petitioners "ere called b- the enate Co''ittee to testif- in its ( epte'ber (00$ hearin6. Petitioners attended such hearin6 and testified before the Co''ittee, despite the fact that the da- before, there "as an order fro' 3en. en6a )"hich in turn "as sourced per instruction fro' President Arro-o* prohibitin6 the' fro' testif-in6 "ithout the prior approval of the President. Petitioners do not precisel- ad'it before this Court that the- had learned of such order prior to their testi'on-, althou6h the !3 asserts that at the ver- least, 3en. 3udani alread- ne" of such order before he testified. (( Get "hile this fact 'a- be ulti'atel- 'aterial in the court2'artial proceedin6s, it is not deter'inative of this petition, "hich as stated earlier, does not proffer as an issue "hether petitioners are 6uilt- of violatin6 the Articles of &ar. &hat the Court has to consider thou6h is "hether the violation of the afore'entioned order of 3en. en6a, "hich e'anated fro' the President, could lead to an- investi6ation for court2'artial of petitioners. It has to be acno"led6ed as a 6eneral principle (/ that A9P personnel of "hatever ran are liable under 'ilitar- la" for violatin6 a direct order of an officer superior in ran. &hether petitioners did violate such an order is not for the Court to decide, but it "ill be necessar- to assu'e, for the purposes of this petition, that petitioners did so.
. Preli'inaril-, "e 'ust discuss the effect of E.!. #J# and the Court
Senate turned on the nature of e@ecutive privile6e, a presidential prero6ative "hich is encu'bered b-
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si6nificant li'itations. Insofar as E.!. #J# co'pelled officials of the e@ecutive branch to see prior presidential approval before appearin6 before Con6ress, the notion of e@ecutive control also co'es into consideration.($ o"ever, the abilit- of the President to re8uire a 'ilitar- official to secure prior consent before appearin6 before Con6ress pertains to a "holl- different and independent specie of presidential authorit-the co''ander2in2chief po"ers of the President. B- tradition and urisprudence, the co''ander2in2chief po"ers of the President are not encu'bered b- the sa'e de6ree of restriction as that "hich 'a- attach to e@ecutive privile6e or e@ecutive control. Durin6 the deliberations in Senate, the Court "as ver- "ell a"are of the pendenc- of this petition as "ell as the issues raised herein. 4he decision in Senate "as rende red "ith the co'fort that the nullification of portions of E.!. #J# "ould bear no i'pact on the present petition since petitioners herein "ere not called to tas for violatin6 the e@ecutive order. Moreover, the Court "as then co6ni?ant that Senate and this case "ould ulti'atel- hin6e on disparate le6al issues. Relevantl-, Senate purposeldid not touch upon or rule on the facult- of the President, under the ae6is of the co''ander2in2chief po"ers(J to re8uire 'ilitar- officials fro' securin6 prior consent before appearin6 before Con6ress. 4he pertinent factors in considerin6 that 8uestion are 'aredl- outside of those "hich did beco'e relevant in adudicatin6 the issues raised in Senate. It is in this petition that those factors co'e into pla-. At this point, "e "ish to dispose of another peripheral issue before "e strie at the heart of the 'atter. 3eneral 3udani ar6ues that he can no lon6er fall "ithin the urisdiction of the court2'artial, considerin6 his retire'ent last # !ctober (00$. e cites Article (, 4itle I of Co''on"ealth Act No. #0, "hich defines persons subect to 'ilitar- la" as, a'on6 others, all officers and soldiers in the active service of the KA9PL, and points out that he is no lon6er in the active service. 4his point "as settled a6ainst 3en. 3udani
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interests of discipline clearl- forbid that the offender should 6o unpunished. / e5$ ereore a / beore e $ay o# /- / er4/-e 5ea55y er/#ae a#$ / r/ o a $/-are / -o65ee, 6ro-ee$/# / a 4/e o r/a5 are -oe#-e$ aa/# / a by arre or e er4/-e o -are, e /5/ary ur/$/-/o# /55 u55y aa- a#$ o#-e aa-e$ ay be -o#/#ue$ by a r/a5 by -our&ar/a5 or$ere$ a#$ e5$ aer e e#$ o e er o e e#5/e# o e a--ue$ (% 4hus, 'ilitar- urisdiction has full- attached to 3en. 3udani inas'uch as both the acts co'plained of and the initiation of the proceedin6s a6ainst hi' occurred before he co'pulsoril- retired on # !ctober (00$. &e see no reason to unsettle the Abadilla doctrine. 4he !3 also points out that under ection ( of Presidential Decree No. 1J/, as a'ended, KaLn officer or enlisted 'an carried in /0 the retired list Kof the Ar'ed 9orces of the PhilippinesL shall be subect to the Articles of &ar @ @ @ 4o this citation, petitioners do not offer an- response, and in fact have e@cluded the 'atter of 3en. 3udani
#. &e no" turn to the central issues. Petitioners "ish to see annulled the 6a6 order that re8uired the' to secure presidential consent prior to their appearance before the enate, clai'in6 that it violates the constitutional ri6ht to infor'ation and transparenc- in 'atters of public concern= or if not, is tanta'ount at least to the cri'inal acts of obstruction of ustice and 6rave coercion. o"ever, the proper perspective fro' "hich to consider this issue entails the e@a'ination of the basis and authorit- of the President to issue such an order in the first place to 'e'bers of the A9P and the deter'ination of "hether such an order is subect to anli'itations. 4he vitalit- of the tenet that the President is the co''ander2in2chief of the Ar'ed 9orces is 'ost crucial to the de'ocratic "a- of life, to civilian supre'ac- over the 'ilitar-, and to the 6eneral stabilit- of our representative s-ste' of 6overn'ent. 4he Constitution reposes final authorit-, control and supervision of the A9P to the President, a civilian "ho is not a 'e'ber of the ar'ed forces, and "hose duties as co''ander2in2chief represent onl- a part of the or6anic duties i'posed upon the office, the other functions bein6 clearl- civil in nature. /1 Civilian supre'ac- over the 'ilitar- also counter'ands the notion that the 'ilit ar- 'a- b-pass civilian authorities, such as civil courts, on 'atters such as conductin6 "arrantless searches and sei?ures./( Pursuant to the 'aintenance of civilian supre'ac- over the 'ilitar-, the Constitution has allocated specific roles to the le6islative and e@ecutive branches of 6overn'ent in relation to 'ilitar- affairs. Militar- appropriations, as "ith all other appropriations, are deter'ined b- Con6ress, as is the po"er to declare the e@istence of a state of "ar.// Con6ress is also e'po"ered to revoe a procla'ation of 'artial la" or the suspension of the "rit of habeas corpus./# 4he approval of the Co''ission on Appoint'ents is also re8uired before the President can pro'ote 'ilitar- officers fro' the ran of colonel or naval captain./$ !ther"ise, on the particulars of civilian do'inance and ad'inistration over the 'ilitar-, the Constitution is silent, e@cept for the co''ander2in2chief clause "hich is fertile in 'eanin6 and
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i'plication as to "hatever inherent 'artial authorit- the President 'a- possess./J 4he co''ander2in2chief provision in the Constitution is deno'inated as ection 1, Article OII, "hich be6ins "ith the si'ple declaration that KtLhe President shall be the Co''ander2in2Chief of all ar'ed forces of the Philippines @ @ @ /5 !utside e@plicit constitutional li'itations, such as those found in ection $, Article HOI, the co''ander2in2chief clause vests on the President, as co''ander2in2chief, absolute authorit- over the persons and actions of the 'e'bers of the ar'ed forces. uch authoritincludes the abilit- of the President to restrict the travel, 'ove'ent and speech of 'ilitar- officers, activities "hich 'a- other"ise be sanctioned under civilian la". /
Reference to Kapunan, 3r. v. De #illa is useful in this re6ard. +t. Col. apunan "as ordered confined under house arrest b- then Chief of taff )later President* 3en. 9idel Ra'os. apunan "as also ordered, as a condition for his house arrest, that he 'a- not issue an- press state'ents or 6ive an- press conference durin6 his period of detention. 4he Court unani'ousl- upheld such restrictions, notin67 K4Lhe Court is of the vie" that such is ustified b- the re8uire'ents of 'ilitar- discipline. -a##o be a/#a/$ a -era/# 5/ber/e o 6ero# /# e /5/ary er4/-e, /#-5u$/# e ree$o o 6ee-, ay be -/r-u-r/be$ by ru5e o /5/ary $/-/65/#e. Tu, o a -era/# $eree, /#$/4/$ua5 r/ ay be -ura/5e$, be-aue e ee-/4e#e o e /5/ary /# u5/55/# / $u/e u#$er e 5a $e6e#$ o a 5are ee# o# e a/#e#a#-e o $/-/65/#e //# / ra#. 'e#-e, 5au5 or$er u be o55oe$ /ou Aue/o# a#$ ru5e u be a/u55y -o65/e$ /, /rre6e-/4e o a o5$/erH 6ero#a5 4/e o# e aer. It is fro' this vie"point that the restrictions i'posed on petitioner apunan, an officer in the A9P, have to be considered./% An- 6ood soldier, or indeed an- R!4C cadet, can attest to the fact that the 'ilitar- "a- of life circu'scribes several of the cherished freedo's of civilian life. It is part and parcel of the 'ilitarpaca6e. 4hose "ho cannot abide b- these li'itations nor'all- do not pursue a 'ilitar- career and instead find satisfaction in other fields= and in fact 'an- of those dischar6ed fro' the service are inspired in their later careers precisel- b- their rebellion a6ainst the re6i'entation of 'ilitar- life. Inabilit- or un"illin6ness to cope "ith 'ilitar- discipline is not a stain on character, for the 'ilitar'ode is a hi6hl- idios-ncratic path "hich persons are not 6enerall- conscripted into, but volunteer the'selves to be part of. But for those "ho do 'ae the choice to be a soldier, si6nificant concessions to personal freedo's are e@pected. After all, if need be, the 'en and "o'en of the ar'ed forces 'a- be co''anded upon to die for countr-, even a6ainst their personal inclinations. It 'a- be so that 'ilitar- culture is a re'nant of a less de'ocratic era, -et it has been full- inte6rated into the de'ocratic s-ste' of 6overnance. 4he constitutional role of the ar'ed forces is as protector of the people and of the tate. #0 4o"ards this end, the 'ilitar- 'ust insist upon a respect for dut- and a discipline "ithout counterpart in civilian life. #1 4he la"s and traditions 6overnin6 that discipline have a lon6 histor-= but the- are founded on uni8ue 'ilitar- e@i6encies as po"erful no" as in the past. #( In the end, it 'ust be borne in 'ind that the ar'ed forces has a distinct subculture "ith uni8ue needs, a speciali?ed societ- separate fro' civilian societ-. #/ In the ele6ant prose of the e'inent British 'ilitarhistorian, ohn ee6an7 K&arriors "ho fi6ht "ars haveL values and sills K"hichL are not those of politicians and diplo'ats. 4he- are those of a "orld apart, a ver- ancient "orld, "hich e@ists in parallel "ith the ever-da- "orld
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but does not belon6 to it. Both "orlds chan6e over ti'e, and the "arrior "orld adopts in step to the civilian. It follo"s it, ho"ever, at a distance. 4he distance can never be closed, for the culture of the "arrior can never be that of civili?ation itself. ## Critical to 'ilitar- discipline is obeisance to the 'ilitar- chain of co''and. &illful disobedience of a superior officer is punishable b- court2'artial under Article J$ of the Articles of &ar. #$ An individual soldier is not free to i6nore the la"ful orders or duties assi6ned b- his i''ediate superiors. 9or there "ould be an end of all discipline if the sea'an and 'arines on board a ship of "ar Kor soldiers deplo-ed in the fieldL, on a distant service, "ere per'itted to act upon their o"n opinion of their ri6hts Kor their opinion of the Presidenther co''and "ill be accorded deference, "ith 'ini'al re6ard if at all to the reason for such restraint. It is inte6ral to 'ilitar- discipline that the soldier
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necessar- restriction on 'e'bers of the 'ilitar-. A soldier cannot leave his>her post "ithout the consent of the co''andin6 officer. 4he reasons are self2evident. 4he co''andin6 officer has to be a"are at all ti'es of the location of the troops under co''and, so as to be able to appropriatel- respond to ane@i6encies. 9or the sa'e reason, co''andin6 officers have to be able to restrict the 'ove'ent or travel of their soldiers, if in their ud6'ent, their presence at place of call of dut- is necessar-. At ti'es, this 'a- lead to unsenti'ental, painful conse8uences, such as a soldier bein6 denied per'ission to "itness the birth of his first2born, or to attend the funeral of a parent. Get a6ain, 'ilitar- life calls for considerable personal sacrifices durin6 the period of conscription, "herein the hi6her dut- is not to self but to countr-. Indeed, the 'ilitar- practice is to re8uire a soldier to obtain per'ission fro' the co''andin6 officer before he>she 'a- leave his destination. A soldier "ho 6oes fro' the properl- appointed place of dut- or absents fro' his>her co''and, 6uard, 8uarters, station, or ca'p "ithout proper leave is subect to punish'ent b- court2'artial. # It is even clear fro' the record that petitioners had actuall- re8uested for travel authorit- fro' the PMA in Ba6uio Cit- to Manila, to attend the enate earin6. #% Even petitioners are "ell a"are that it "as necessar- for the' to obtain per'ission fro' their superiors before the- could travel to Manila to attend the enate earin6. It is clear that the basic position of petitioners i'pin6es on these funda'ental principles "e have discussed. 4he- see to be e@e'pted fro' 'ilitar- ustice for havin6 traveled to the enate to testifbefore the enate Co''ittee a6ainst the e@press orders of 3en. en6a, the A9P Chief of taff. If petitioners< position is affir'ed, a considerable e@ception "ould be carved fro' the uni'peachable ri6ht of 'ilitar- officers to restrict the speech and 'ove'ent of their uniors. 4he ruinous conse8uences to the chain of co''and and 'ilitar- discipline si'pl- cannot "arrant the Court
#. till, it "ould be hi6hl- '-opic on our part to resolve the issue solel- on 6eneralities surroundin6 'ilitar- discipline. After all, petitioners see to i'press on us that their acts are ustified as the- "ere respondin6 to an invitation fro' the Philippine enate, a co'ponent of the le6islative branch of 6overn'ent. At the sa'e ti'e, the order for the' not to testif- ulti'atel- ca'e fro' the President, the head of the e@ecutive branch of 6overn'ent and the co''ander2in2chief of the ar'ed forces. 4hus, "e have to consider the 8uestion7 'a- the President prevent a 'e'ber of the ar'ed forces fro' testif-in6 before a le6islative in8uir-Q &e hold that the President has constitutional authorit- to do so, b- virtue of her po"er as co''ander2in2chief, and that as a conse8uence a 'ilitar- officer "ho defies such inunction is liable under 'ilitar- ustice. At the sa'e ti'e, "e also hold that an- cha'ber of Con6ress "hich sees the appearance before it of a 'ilitar- officer a6ainst the consent of the President has ade8uate re'edies under la" to co'pel such attendance. An- 'ilitar- official "ho' Con6ress su''ons to testif- before it 'a- be co'pelled to do so b- the President. If the President is not so inclined, the President 'a- be co''anded b- udicial order to co'pel the attendance of the 'ilitarofficer. 9inal udicial orders have the force of the la" of the land "hich the President has the dut- to faithfull- e@ecute.$0 E@plication of these principles is in order.
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As earlier noted, "e ruled in Senate that the President 'a- not issue a blanet re8uire'ent of prior consent on e@ecutive officials su''oned b- the le6islature to attend a con6ressional hearin6. In doin6 so, the Court reco6ni?ed the considerable li'itations on e@ecutive privile6e, and affir'ed that the privile6e 'ust be for'all- invoed on specified 6rounds. 'oe4er, e ab/5/y o e Pre/$e# o 6re4e# /5/ary o/-er ro e/y/# beore Co#re $oe #o ur# o# ee-u/4e 6r/4/5ee, bu o# e C/e Ee-u/4eI 6oer a -oa#$er&/#&-/e o -o#ro5 e a-/o# a#$ 6ee- o eber o e are$ or-e. Te Pre/$e#I 6reroa/4e a -oa#$er&/#&-/e are #o a6ere$ by e ae 5//a/o# a /# ee-u/4e 6r/4/5ee. !ur rulin6 that the President could, as a 6eneral rule, re8uire 'ilitar- officers to see presidential approval before appearin6 before Con6ress is based fore'ost on the notion that a contrar- rule unduldi'inishes the prero6atives of the President as co''ander2in2chief. Con6ress holds si6nificant control over the ar'ed forces in 'atters such as bud6et appropriations and the approval of hi6her2ran pro'otions,$1 -et it is on the President that the Constitution vests the title as co''ander2in2chief and all the prero6atives and functions appertainin6 to the position. A6ain, the e@i6encies of 'ilitar- discipline and the chain of co''and 'andate that the President
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the Court has not shired fro' revie"in6 the e@ercise b- Con6ress of its po"er of le6islative in8uir-. $J Arnaultreco6ni?ed that the le6islative po"er of in8uir- and the process to enforce it, is an essential and appropriate au@iliar- to the le6islative function. $5 !n the othe r hand, 4eng!on acno"led6ed that the po"er of both houses of Con6ress to conduct in8uiries in aid of le6islation is not absolute or unli'ited, and its e@ercise is circu'scribed b- ection (1, Article OI of the Constitution. $ 9ro' these pre'ises, the Court enoined the enate Blue Ribbon Co''ittee fro' re8uirin6 the petitioners in 4eng!on fro' testif-in6 and producin6 evidence before the co''ittee, holdin6 that the in8uir- in 8uestion did not involve an- intended le6islation.
Senate affir'ed both the Arnault and 4eng!on rulin6s. It elucidated on the constitutional scope and li'itations on the constitutional po"er of con6ressional in8uir-. 4hus7 As discussed in Arnault, the po"er of in8uir-, "ith process to enforce it, is 6rounded on the necessitof infor'ation in the le6islative process. If the infor'ation possessed b- e@ecutive officials on the operation of their offices is necessar- for "ise le6islation on that subect, b- parit- of reasonin6, Con6ress has the ri6ht to that infor'ation and the po"er to co'pel the disclosure thereof. As evidenced b- the A'erican e@perience durin6 the so2called McCarth- era, ho"ever, the ri6ht of Con6ress to conduct in8uirites in aid of le6islation is, in theor-, no less susceptible to abuse than e@ecutive or udicial po"er. It 'a- thus be subected to udicial revie" pursuant to the Court
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In Senate, the Court ruled that the President could not i'pose a blanet prohibition barrin6 e@ecutive officials fro' testif-in6 before Con6ress "ithout the President
Petitioners have presented several issues relatin6 to the tenabilit- or "isdo' of the President
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Petitioners 'a- have been of the honest belief that the- "ere def-in6 a direct order of their Co''ander2 in2Chief and Co''andin6 3eneral in obeisance to a para'ount idea for'ed "ithin their consciences, "hich could not be li6htl- i6nored. till, the Court, in turn, is 6uided b- the superlative principle that is the Constitution, the e'bodi'ent of the national conscience . 4he Constitution si'pl- does not per'it the infraction "hich petitioners have alle6edl- co''itted, and 'oreover, provides for an orderl'anner b- "hich the sa'e result could have been achieved "ithout offendin6 constitutional principles. &ERE9!RE, the petition is DENIED. No pronounce'ent as to costs. ! !RDERED. D"NTE O. TNG" Associate ustice
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