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LEGAL NOTE 0106: ON VAT (VALUE ADDED TAX)/ E-VAT.

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January 10, 2012

LEGAL NOTE 0106: ON VAT (VALUE ADDED TAX)/ E-VAT.

CASE 2011-0229: LVM CONSTRUCTION CORPORATION, REPRESENTED BY ITS MANAGING DIRECTOR, ANDRES CHUA LAO VS. F.T. SANCHEZ/SOCOR/KIMWA (JOINT VENTURE), F.T. SANCHEZ CONSTRUCTION CORPORATION, SOCOR CONSTRUCTION CORPORATION AND KIMWA CONSTRUCTION AND DEVELOPMENT CORPORATION ALL REPRESENTED BY FORTUNATO O. SANCHEZ, JR (G.R. NO. 181961, 05 DECEMBER 2011, PEREZ J.) SUBJECTS: CONTRACTS; VAT/E-VAT. (BRIEF TITLE: LVM CONSTRUCTION VS. F.T. SANCHEZ)

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DISPOSITIVE:

WHEREFORE, premises considered, the petition is DENIED for lack of merit and the CA’s 28 September 2007 Decision is, accordingly, AFFIRMED in toto.

SO ORDERED.

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SUBJECTS/DOCTRINES/DIGEST:

LVM CONSTRUCTION WAS CONTRACTED BY DPWH TO CONSTRUCT ROADS IN LEYTE. LVM SUBCONTRACTEDTHE WORKS TO SEVERAL ENTITIES DUBBED AS JOINT VENTURE REPRESENTED BY SANCHEZ CONSTRUCTION. THE SUBCONTRACT AGREEMENT PROVIDES THAT THE JOINT VENTURE SHALL ISSUE BIR-REGISTERED ORS. IT ALSO ALLOWS LVM TO WITHOLD RETENTION AMOUNT OF 10%. WHEN THE JOINT VENTURE ASKED FOR THE 10% RETAINED AMOUNT, LVM REFUSED TO PAY BECAUSE PER ITS AUDITORS THE VAT PAID BY LVM SHOULD HAVE BEEN DEDUCTED FROM THE PAYMENTS MADE TO THE JOINT VENTURE. IS LVM CORRECT?

LVM CANNOT DEDUCT THE VAT FROM THE RETENTION AMOUNT DUE THE JOINT VENTURE BECAUSE THERE WAS NO SUCH PROVISION IN THE SUB-CONTRACT AGREEMENT. SUCH AGREEMENT CONSTITUTES THE LAW BETWEEN THE PARTIES WHO ARE BOUND BY ITS STIPULATIONS.

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HOW SHALL STIPULATIONS IN THE CONTRACT BE APPLIED?

IF THE STIPULATIONS ARE COUCHED IN CLEAR AND PLAIN LANGUAGE, THEY SHALL BE APPLIED ACCORDING TO THEIR LITERAL TENOR.

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WHAT ARE OTHER PROOFS WHICH SHOW THAT INDEED THERE WAS NO AGREEMENT FOR DEDUCTING EVAT FROM PAYMENTS TO THE JOINT VENTURE?

THE CONTEMPORANEOUS AND SUBSEQUENT ACTS OF LVM. THE RECORD SHOWS THAT, EXCEPT FOR DEDUCTING SUMS CORRESPONDING TO THE 10% RETENTION AGREED UPON, 9% AS CONTINGENCY ON SUB-CONTRACT, 1% WITHHOLDING TAX AND SUCH OTHER ITEMIZED MISCELLANEOUS EXPENSES, LVM SETTLED THE JOINT VENTURE’S BILLING NOS. 1 TO 26 WITHOUT ANY MENTION OF DEDUCTIONS FOR THE E-VAT PAYMENTS IT CLAIMS TO HAVE ADVANCED.^{^[1]}^[27] IT WAS, IN FACT, ONLY ON 16 MAY 2001 THAT LVM’S MANAGING DIRECTOR, ANDRES C. LAO, APPRISED THE JOINT VENTURE IN WRITING OF ITS INTENTION TO DEDUCT SAID PAYMENTS.

For lack of any stipulation regarding the same in the parties’ Sub-Contract Agreement, we find that the CA correctly brushed aside LVM’s insistence on deducting its supposed E-VAT payments from the retention money demanded by the Joint Venture. Indeed, a contract constitutes the law between the parties who are, therefore, bound by its stipulations^{^[2]}^[24] which, when couched in clear and plain language, should be applied according to their literal tenor.^{^[3]}^[25] That there was no agreement regarding the offsetting urged by LVM may likewise be readily gleaned from the parties’ contemporaneous and subsequent acts which are given primordial consideration in determining their intention.^{^[4]}^[26] The record shows that, except for deducting sums corresponding to the 10% retention agreed upon, 9% as contingency on sub-contract, 1% withholding tax and such other itemized miscellaneous expenses, LVM settled the Joint Venture’s Billing Nos. 1 to 26 without any mention of deductions for the E-VAT payments it claims to have advanced.^{^[5]}^[27] It was, in fact, only on 16 May 2001 that LVM’s Managing Director, Andres C. Lao, apprised the Joint Venture in writing of its intention to deduct said payments,^{^[6]}^[28] to wit:

If you would recall, during our last meeting with Deputy Project Manager of the DPWH-PJHL, Eng. Jimmy T. Chan, last March 2001 at the PJHL Office in Palo, Leyte, our company made a commitment to pay up to 99% accomplishment and release the retention money up to the 23^rd partial billing after receipt by our company of the 27^th partial billing from JBIC and GOP relative to the above mentioned project.

Much as our company wants to comply with said commitment, our auditors recently discovered that all payments made by us to your Joint Venture, relative to the above mentioned project were made without the corresponding deduction of the E-VAT of 8.50% x 10/11, which your Joint Venture should have paid to the BIR. Records would show that from billing number 1 up to 26, no deductions for E-VAT were made. As a matter of fact, our company was the one who shouldered all payments due for the E-VAT which should have been deducted from the payments made by us to your Joint Venture. Copy of the payments made by our company to the BIR relative to the E-VAT is hereto attached as Annex “1” for your perusal and ready reference.

This being the case and to offset the advances made by our company, we would like to inform you that our company would deduct the payments made for E-VAT to the amount due to your Joint Venture. Only by doing so, would our advances be settled and liquidated. We hope that our auditor and your auditor can discuss this matter to avoid any possible conflict regarding this matter.

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WHAT IS THE DUTY OF THE COURTS IN CONNECTION WITH CONTRACTS?

TO GIVE EFFECT TO THE CONTRACT AND TO ENFORCE IT TO THE LETTER. THE RULE IS SETTLED THAT THEY HAVE NO AUTHORITY TO ALTER A CONTRACT BY CONSTRUCTION OR TO MAKE A NEW CONTRACT FOR THE PARTIES; THEIR DUTY IS CONFINED TO THE INTERPRETATION OF THE ONE WHICH THE PARTIES HAVE MADE FOR THEMSELVES, WITHOUT REGARD TO ITS WISDOM OR FOLLY. COURTS CANNOT SUPPLY MATERIAL STIPULATIONS, READ INTO THE CONTRACT WORDS IT DOES NOT CONTAIN^{^[7]}^[31] OR, FOR THAT MATTER, READ INTO IT ANY OTHER INTENTION THAT WOULD CONTRADICT ITS PLAIN IMPORT.^{^[8]}^[32]

From the foregoing letter, it is evident that LVM unilaterally broached its intention of deducting the subject E-VAT payments only on 15 May 2001 or long after the project’s completion on 9 July 1999.^{^[9]}^[29] In the absence of any stipulation thereon, however, the CA correctly disallowed the offsetting of said sums from the retention money undoubtedly due the Joint Venture. Courts are obliged to give effect to the parties’ agreement and enforce the contract to the letter.^{^[10]}^[30] The rule is settled that they have no authority to alter a contract by construction or to make a new contract for the parties; their duty is confined to the interpretation of the one which the parties have made for themselves, without regard to its wisdom or folly. Courts cannot supply material stipulations, read into the contract words it does not contain^{^[11]}^[31] or, for that matter, read into it any other intention that would contradict its plain import.^{^[12]}^[32] This is particularly true in this case where, in addition to the dearth of a meeting of minds between the parties, their contemporaneous and subsequent acts fail to yield any intention to offset the said E-VAT payments from the retention money still in LVM’s possession.

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LVM ARGUES THAT SINCE THE JOINT VENTURE IS THE ONE WHO ACTUALLY RENDERED SERVICES THEN IT IS THE ONE OBLIGED TO PAY EVAT NOT LVM WHO JUST PAID THE JOINT VENTURE. IS LVM’S CONTENTION CORRECT?

NO. VAT IS IS A TAX ON TRANSACTIONS, IMPOSED AT EVERY STAGE OF THE DISTRIBUTION PROCESS ON THE SALE, BARTER, EXCHANGE OF GOODS OR PROPERTY, AND ON THE PERFORMANCE OF SERVICES, EVEN IN THE ABSENCE OF PROFIT ATTRIBUTABLE THERETO. IT IS PAID BY LVM WHEN IT RECEIVED PAYMENT FROM DPWH. LIKEWISE IT IS PAID BY THE JOINT VENTURE WHEN IT RECEIVED MONEY FROM LVM.

In taking exception to the CA’s affirmance of the CIAC’s rejection of its position for lack of contractual basis, LVM argues that the Joint Venture’s liability for E-VAT as an entity that renders services in the course of trade or business need not be stated in the Sub-Contract Agreement considering that it is an obligation imposed by law which forms part of, and is read into, every contract.^{^[13]}^[33] As correctly argued by the Joint Venture, however, there are two (2) contracts under the factual milieu of the case: the main contract DPWH entered into with LVM for the construction of the Arterial Road Link Development Project in Southern Leyte and the Sub-Contract Agreement the latter in turn concluded with the Joint Venture over 30% of said project’s contract amount. As the entity which directly dealt with the government insofar as the main contract was concerned, LVM was itself required by law to pay the 8.5% VAT which was withheld by the DPWH in accordance with Republic Act No. 8424^{^[14]}^[34] or the Tax Reform Act of 1997 as well as the National Internal Revenue Code of 1997 (NIRC). Section 114 (C) of said law provides as follows:

“Section 114. Return and Payment of Value-Added Tax. –

x x x x

(C) Withholding of Creditable Value-added Tax. – The Government or any of its political subdivisions, instrumentalities or agencies, including government-owned or -controlled corporations (GOCCs) shall, before making payment on account of each purchase of goods from sellers and services rendered by contractors which are subject to the value-added tax imposed in Sections 106 and 108 of this Code, deduct and withhold the value-added tax due at the rate of three percent (3%) of the gross payment for the purchase of goods and six percent (6%) on gross receipts for services rendered by contractors on every sale or installment payment which shall be creditable against the value-added tax liability of the seller or contractor: Provided, however, That in the case of government public works contractors, the withholding rate shall be eight and one-half percent (8.5%): Provided, further, That the payment for lease or use of properties or property rights to nonresident owners shall be subject to ten percent (10%) withholding tax at the time of payment. For this purpose, the payor or person in control of the payment shall be considered as the withholding agent.”

For the Sub-Contract Agreement, on the other hand, respondent F. Sanchez Construction, acting on behalf of the Joint Venture, issued BIR-registered receipts for the sums paid by LVM for Billing Nos. 1 to 26, indicating the total amount paid by the latter, the retention fee deducted therefrom and the tax due thereon.^{^[15]}^[35] These were in consonance with paragraph 3 of the Sub-Contract Agreement which, after stating that LVM’s payment shall “be on item of work accomplished in the sub-contracted portion of the project awarded unit cost of the project less NINE PERCENT (9%),” simply provided, that “(t)he SUB-CONTRACTOR shall issue a BIR registered receipt to the CONTRACTOR.”^{^[16]}^[36] As the VAT-registered person, on the other hand, Fortunato T. Sanchez, Sr.^{^[17]}^[37] also filed the corresponding Monthly VAT Declarations^{^[18]}^[38] with the BIR which, by themselves, are evidence of the Joint Venture’s VAT liability for LVM’s payments on its billings. In fixing the base of the tax, the first paragraph A Section 108 of the NIRC provides that “(t)here shall be levied assessed and collected, a value-added tax equivalent to ten percent (10%) of gross receipts derived from the sale or exchange of services, including the use or lease of properties.”

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WHAT IS VAT?

VAT IS A UNIFORM TAX LEVIED ON EVERY IMPORTATION OF GOODS, WHETHER OR NOT IN THE COURSE OF TRADE OR BUSINESS, OR IMPOSED ON EACH SALE, BARTER, EXCHANGE OR LEASE OF GOODS OR PROPERTIES OR ON EACH RENDITION OF SERVICES IN THE COURSE OF TRADE OR BUSINESS.^{^[19]}^[39] IT IS A TAX ON TRANSACTIONS, IMPOSED AT EVERY STAGE OF THE DISTRIBUTION PROCESS ON THE SALE, BARTER, EXCHANGE OF GOODS OR PROPERTY, AND ON THE PERFORMANCE OF SERVICES, EVEN IN THE ABSENCE OF PROFIT ATTRIBUTABLE THERETO.^{^[20]}^[40] AS AN INDIRECT TAX THAT MAY BE SHIFTED OR PASSED ON TO THE BUYER, TRANSFEREE OR LESSEE OF THE GOODS, PROPERTIES OR SERVICES, VAT SHOULD BE UNDERSTOOD NOT IN THE CONTEXT OF THE PERSON OR ENTITY THAT IS PRIMARILY, DIRECTLY AND LEGALLY LIABLE FOR ITS PAYMENT, BUT IN TERMS OF ITS NATURE AS A TAX ON CONSUMPTION.^{^[21]}^[41]

In the absence of any stipulation regarding the Joint Venture’s sharing in the VAT deducted and withheld by the DPWH from its payment on the main contract, the CIAC and the CA correctly ruled that LVM has no basis in offsetting the amounts of said tax from the retention still in its possession. VAT is a uniform tax levied on every importation of goods, whether or not in the course of trade or business, or imposed on each sale, barter, exchange or lease of goods or properties or on each rendition of services in the course of trade or business.^{^[22]}^[39] It is a tax on transactions, imposed at every stage of the distribution process on the sale, barter, exchange of goods or property, and on the performance of services, even in the absence of profit attributable thereto.^{^[23]}^[40] As an indirect tax that may be shifted or passed on to the buyer, transferee or lessee of the goods, properties or services, VAT should be understood not in the context of the person or entity that is primarily, directly and legally liable for its payment, but in terms of its nature as a tax on consumption.^{^[24]}^[41]

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LVM ARGUES THAT THE JOINT VENTURE ACTUALLY DID NOT PAY THE VAT BECAUSE THEY USED THE ORS OF SANCHEZ. NEITHER WAS THE JOINT VENTURE REGISTERED WITH SEC. NOR HAS IT A BUSINESS PERMIT. IS LVM CORRECT?

NO. LVM WAS INFORMED ABOUT SUCH SCHEME. LVM ACCEPTED THE ORS OF SANCHEZ. ASIDE FROM BEING INDICATIVE OF ITS KNOWLEDGE OF THE FOREGOING CIRCUMSTANCES, LVM’S PREVIOUS UNQUALIFIED ACCEPTANCE OF SAID OFFICIAL RECEIPTS SHOULD, CLEARLY, BAR THE BELATED EXCEPTIONS IT NOW TAKES WITH RESPECT THERETO. A PARTY, HAVING PERFORMED AFFIRMATIVE ACTS UPON WHICH ANOTHER PERSON BASED HIS SUBSEQUENT ACTIONS, CANNOT THEREAFTER REFUTE HIS ACTS OR RENEGE ON THE EFFECTS OF THE SAME, TO THE PREJUDICE OF THE LATTER.^{^[25]}^[43]

Neither do we find merit in LVM’s harping over the lack of showing in the record that the Joint Venture has actually paid its liability for VAT. For this purpose, LVM insists that the Official Receipts for its payments on the Joint Venture’s billing were issued by respondent F. Sanchez Construction and that the Monthly VAT Declarations were, in fact, filed by Fortunato Sanchez, Sr. However, the evidence on record is to the effect that, failing to register with the Securities and Exchange Commission (SEC) and to obtain a Mayor’s Permit and authorization from the BIR to print its official receipts, the Joint Venture apprised LVM of its intention to use respondent F. Sanchez Construction’s BIR-registered receipts.^{^[26]}^[42] Aside from being indicative of its knowledge of the foregoing circumstances, LVM’s previous unqualified acceptance of said official receipts should, clearly, bar the belated exceptions it now takes with respect thereto. A party, having performed affirmative acts upon which another person based his subsequent actions, cannot thereafter refute his acts or renege on the effects of the same, to the prejudice of the latter.^{^[27]}^[43]

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WHO MUST PAY THE VAT? THE SELLER OR THE CONSUMER?

ALTHOUGH THE BURDEN TO PAY AN INDIRECT TAX LIKE VAT CAN, ADMITTEDLY, BE PASSED ON TO THE PURCHASER OF THE GOODS OR SERVICES, IT BEARS EMPHASIZING THAT THE LIABILITY TO PAY THE SAME REMAINS WITH THE MANUFACTURER OR SELLER

To recapitulate, LVM, as Contractor for the Project, was liable for the 8.5% VAT which was withheld by the DPWH from its payments, pursuant to Section 114 (C) of the NIRC. Absent any agreement to that effect, LVM cannot deduct the amounts thus withheld from the sums it still owed the Joint Venture which, as Sub-Contractor of 30% of the Project, had its own liability for 10% VAT insofar as the sums paid for the sub-contracted works were concerned. Although the burden to pay an indirect tax like VAT can, admittedly, be passed on to the purchaser of the goods or services, it bears emphasizing that the liability to pay the same remains with the manufacturer or seller like LVM and the Joint Venture. In the same manner that LVM is liable for the VAT due on the payments made by the DPWH pursuant to the contract on the Project, the Joint Venture is, consequently, liable for the VAT due on the payments made by LVM pursuant to the parties’ Sub-Contract.

SECOND DIVISION

LVM CONSTRUCTION CORPORATION, represented by its Managing Director, ANDRES CHUA LAO,

Petitioner,

– versus –

F.T. SANCHEZ/SOCOR/KIMWA (JOINT VENTURE), F.T. SANCHEZ CONSTRUCTION CORPORATION, SOCOR CONSTRUCTION CORPORATION AND KIMWA CONSTRUCTION AND DEVELOPMENT CORPORATION all represented by FORTUNATO O. SANCHEZ, JR.,

Respondents.

G.R. No. 181961

Present:

CARPIO, J.,

Chairperson,

BRION,

PEREZ,

SERENO, and

REYES, JJ.

Promulgated:

December 5, 2011

x – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -x

D E C I S I O N

PEREZ, J.:

Filed pursuant to Rule 45 of the 1997 Rules of Civil Procedure, the petition for review on certiorari at bench seeks the reversal of the 28 September 2007 Decision^{^[28]}^[1] rendered by the then Thirteenth Division of the Court of Appeals (CA) in CA-G.R. SP No. 94849,^{^[29]}^[2] the decretal portion of which states:

WHEREFORE, premises considered, the assailed Decision dated April 26, 2006 of the Construction Industry Arbitration Commission in CIAC Case No. 25-2005 is hereby AFFIRMED.

SO ORDERED.^{^[30]}^[3]

The Facts

Petitioner LVM Construction Corporation (LVM) is a duly licensed construction firm primarily engaged in the construction of roads and bridges for the Department of Public Works and Highways (DPWH). Awarded the construction of the Arterial Road Link Development Project in Southern Leyte (the Project), LVM sub-contracted approximately 30% of the contract amount with the Joint Venture composed of respondents F.T. Sanchez Corporation (FTSC), Socor Construction Corporation (SCC) and Kimwa Construction Development Corporation (KCDC). For the contract price of P90,061,917.25 which was later on reduced to P86,318,478.38,^{^[31]}^[4] the Joint Venture agreed to undertake construction of the portion of the Project starting from Sta. 154 + 210.20 to Sta. 160 + 480.00. With LVM as the Contractor and the Joint Venture as Sub-Contractor, the 27 November 1996 Sub-Contract Agreement^{^[32]}^[5] executed by the parties pertinently provided as follows:

3) That payment to the SUB-CONTRACTOR shall be on item of work accomplished in the sub-contracted portion of the project at awarded unit cost of the project less NINE PERCENT (9%). The SUB-CONTRACTOR shall issue a BIR registered receipt to the CONTRACTOR.

4) Ten percent (10%) retention to be deducted for every billing of sub-contractor as prescribed under the Tender Documents.

x x x x

13) The payment to the SUB-CONTRACTOR shall be made within seven (7) days after the check issued by DPWH to CONTRACTOR has already been made good.^{^[33]}^[6]

For work rendered in the premises, there is no dispute regarding the fact that the Joint Venture sent LVM a total of 27 Billings. For Billing Nos. 1 to 26, LVM paid the Joint Venture the total sum of P80,414,697.12 and retained the sum of P8,041,469.79 by way of the 10% retention stipulated in the Sub-Contract Agreement.^{^[34]}^[7] For Billing No. 27 in the sum of P5,903,780.96, on the other hand, LVM paid the Joint Venture the partial sum of P2,544,934.99 on 31 May 2001,^{^[35]}^[8] claiming that it had not yet been fully paid by the DPWH.^{^[36]}^[9] Having completed the sub-contracted works, the Joint Venture subsequently demanded from LVM the settlement of its unpaid claims as well as the release of money retained by the latter in accordance with the Sub-Contract Agreement. In a letter dated 16 May 2001, however, LVM apprised the Joint Venture of the fact that its auditors have belatedly discovered that no deductions for E-VAT had been made from its payments on Billing Nos. 1 to 26 and that it was, as a consequence, going to deduct the 8.5% payments for said tax from the amount still due in the premises.^{^[37]}^[10] In its 14 June 2001 Reply, the Joint Venture claimed that, having issued Official Receipts for every payment it received, it was liable to pay 10% VAT thereon and that LVM can, in turn, claim therefrom an equivalent input tax of 10%.^{^[38]}^[11]

With its claims still unpaid despite the lapse of more than four (4) years from the completion of the sub-contracted works, the Joint Venture, thru its Managing Director, Fortunato O. Sanchez, Jr., filed against LVM the 30 June 2005 complaint for sum of money and damages which was docketed before the Construction Industry Arbitration Commission (CIAC) as CIAC Case No. 25-2005.^{^[39]}^[12] Having submitted a Bill of Particulars in response to LVM’s motion therefor,^{^[40]}^[13] the Joint Venture went on to file an Amended Complaint dated 23 December 2005 specifying its claims as follows: (a) P8,041,469.73 as retention monies for Billing Nos. 1 to 26; (b) P3,358,845.97 as unpaid balance on Billing No. 27; (c) P6,186,570.71 as interest on unpaid retention money computed at 12% per annum reckoned from 6 August 1999 up to 1 January 2006; and (d) P5,365,677.70 as interest at 12% per annum on delayed payment of monies collected from DPWH on Billing Nos. 1 to 26. In addition, the Joint Venture sought indemnity for attorney’s fees equivalent to 10% of the amount collected and/or in a sum not less than P1,000,000.00.^{^[41]}^[14]

In its 21 October 2005 Answer with Compulsory Counterclaim, LVM maintained that it did not release the 10% retention for Billing Nos. 1 to 26 on the ground that it had yet to make the corresponding 8.5% deductions for E-VAT which the Joint Venture should have paid to the Bureau of Internal Revenue (BIR) and that there is, as a consequence, a need to offset the sums corresponding thereto from the retention money still in its possession. Moreover, LVM alleged that the Joint Venture’s claims failed to take into consideration its own outstanding obligation in the total amount of P21,737,094.05, representing the liquidated damages it incurred as a consequence of its delays in the completion of the project. In addition to said liquidated damages, LVM prayed for the grant of its counterclaims for exemplary damages and attorney’s fees.^{^[42]}^[15] In its 2 January 2006 supplemental answer, LVM likewise argued that the Joint Venture’s prayer for imposition of 12% interest on the retention money and the balance of Billing No. 27 is bereft of factual and legal bases since no interest was stipulated in the parties’ agreement and it was justified in refusing the release of said sums claimed.^{^[43]}^[16]

With the parties’ assent to the 19 December 2005 Terms of Reference which identified, among other matters, the issues to be resolved in the case,^{^[44]}^[17] the CIAC proceeded to receive the parties’ evidence in support of their respective causes. On 26 April 2006, the CIAC rendered its decision granting the Joint Venture’s claims for the payment of the retention money for Billing Nos. 1 to 26 as well as the interest thereon and the unpaid balance billing from 6 August 1999 to 1 January 2006 in the aggregate sum of P11,307,646.68. Discounting the contractual and legal bases for LVM’s claim that it had the right to offset its E-VAT payments from the retention money still in its possession, the CIAC ruled that the VAT deductions the DPWH made from its payments to LVM were for the whole project and already included all its supplies and subcontractors. Instead of withholding said retention money, LVM was determined to have – to its credit and for its use – the input VAT corresponding to the 10% equivalent VAT paid by the Joint Venture based on the BIR-registered official receipts it issued. Finding that the delays incurred by the Joint Venture were justified, the CIAC likewise denied LVM’s counterclaim for liquidated damages for lack of contractual basis.^{^[45]}^[18]

Elevated by LVM to the CA through a petition for review filed pursuant to Rule 43 of the 1997 Rules of Civil Procedure,^{^[46]}^[19] the CIAC’s decision was affirmed in toto in the herein assailed Decision dated 28 September 2007 rendered by said court’s Thirteenth Division in CA-G.R. SP No. 94849.^{^[47]}^[20] In upholding the CIAC’s rejection of LVM’s insistence on the offsetting of E-VAT payments from the retention money, the CA ruled as follows:

Clearly, there was no provision in the Sub-Contract Agreement that would hold Sanchez liable for EVAT on the amounts paid to it by LVM. As pointed out by the CIAC in its Award, ‘the contract documents provide only for the payment of the awarded cost of the project less 9%. Any other deduction must be clearly stated in the provisions of the contract or upon agreement of the parties. xxx The tribunal finds no provision that EVAT will be deducted from the sub-contractor. xxx If [the Joint Venture] should pay or share in the payment of the EVAT, it must be clearly defined in the sub-contract agreement.’

Elucidating further, CIAC pointed out that Sanchez, under the contract was required to issue official receipts registered with the BIR for every payment LVM makes for the progress billings, which it did. For these official receipts issued by Sanchez to LVM, Sanchez already paid 10% VAT to the BIR, thus: ‘The VAT Law is very clear. Everyone must pay 10% VAT based on their issued official receipts. These receipts must be official receipts and registered with the BIR. Respondent (LVM) must pay its output Vat based on its receipts. Complainant (Sanchez) must also pay output VAT based on its receipts. The law however allow each entity to deduct the input VAT based on the official receipts issued to it. Clearly, therefore, respondent [LVM], has to its credit the 10% output VAT paid by claimant [Joint Venture] based on the official receipts issued to it. Respondent [LVM] can use this input VAT to offset any output VAT respondent [LVM] must pay for any of its other projects.”^{^[48]}^[21]

LVM’s motion for reconsideration of the foregoing decision was denied for lack of merit in the CA’s 26 February 2008 Resolution,^{^[49]}^[22] hence, this Rule 45 petition for review on certiorari.

The Issues

LVM urges the grant of its petition for review upon the following errors imputed against the CA, to wit:

CONTRARY TO THE FINDING OF THE COURT OF APPEALS, RESPONDENTS’ LIABILITY TO PAY VALUE ADDED TAX NEED NOT BE STATED IN THE SUB-CONTRACT AGREEMENT DATED 27 NOVEMBER 1996 AS THE PROVISIONS OF REPUBLIC ACT 8424, OTHERWISE KNOWN AS THE NATIONAL INTERNAL REVENUE CODE OF THE PHILIPPINES, FORM PART OF, AND ARE DEEMED INCORPORATED AND READ INTO SAID AGREEMENT.

THE COURT OF APPEALS ERRED WHEN IT RULED THAT RESPONDENTS ARE DEEMED TO HAVE ALREADY PAID VALUE ADDED TAX MERELY BECAUSE RESPONDENTS HAD ALLEGEDLY ISSUED RECEIPTS FOR SERVICES RENDERED.^{^[50]}^[23]

The Court’s Ruling

The petition is bereft of merit.

For lack of any stipulation regarding the same in the parties’ Sub-Contract Agreement, we find that the CA correctly brushed aside LVM’s insistence on deducting its supposed E-VAT payments from the retention money demanded by the Joint Venture. Indeed, a contract constitutes the law between the parties who are, therefore, bound by its stipulations^{^[51]}^[24] which, when couched in clear and plain language, should be applied according to their literal tenor.^{^[52]}^[25] That there was no agreement regarding the offsetting urged by LVM may likewise be readily gleaned from the parties’ contemporaneous and subsequent acts which are given primordial consideration in determining their intention.^{^[53]}^[26] The record shows that, except for deducting sums corresponding to the 10% retention agreed upon, 9% as contingency on sub-contract, 1% withholding tax and such other itemized miscellaneous expenses, LVM settled the Joint Venture’s Billing Nos. 1 to 26 without any mention of deductions for the E-VAT payments it claims to have advanced.^{^[54]}^[27] It was, in fact, only on 16 May 2001 that LVM’s Managing Director, Andres C. Lao, apprised the Joint Venture in writing of its intention to deduct said payments,^{^[55]}^[28] to wit:

From the foregoing letter, it is evident that LVM unilaterally broached its intention of deducting the subject E-VAT payments only on 15 May 2001 or long after the project’s completion on 9 July 1999.^{^[56]}^[29] In the absence of any stipulation thereon, however, the CA correctly disallowed the offsetting of said sums from the retention money undoubtedly due the Joint Venture. Courts are obliged to give effect to the parties’ agreement and enforce the contract to the letter.^{^[57]}^[30] The rule is settled that they have no authority to alter a contract by construction or to make a new contract for the parties; their duty is confined to the interpretation of the one which the parties have made for themselves, without regard to its wisdom or folly. Courts cannot supply material stipulations, read into the contract words it does not contain^{^[58]}^[31] or, for that matter, read into it any other intention that would contradict its plain import.^{^[59]}^[32] This is particularly true in this case where, in addition to the dearth of a meeting of minds between the parties, their contemporaneous and subsequent acts fail to yield any intention to offset the said E-VAT payments from the retention money still in LVM’s possession.

In taking exception to the CA’s affirmance of the CIAC’s rejection of its position for lack of contractual basis, LVM argues that the Joint Venture’s liability for E-VAT as an entity that renders services in the course of trade or business need not be stated in the Sub-Contract Agreement considering that it is an obligation imposed by law which forms part of, and is read into, every contract.^{^[60]}^[33] As correctly argued by the Joint Venture, however, there are two (2) contracts under the factual milieu of the case: the main contract DPWH entered into with LVM for the construction of the Arterial Road Link Development Project in Southern Leyte and the Sub-Contract Agreement the latter in turn concluded with the Joint Venture over 30% of said project’s contract amount. As the entity which directly dealt with the government insofar as the main contract was concerned, LVM was itself required by law to pay the 8.5% VAT which was withheld by the DPWH in accordance with Republic Act No. 8424^{^[61]}^[34] or the Tax Reform Act of 1997 as well as the National Internal Revenue Code of 1997 (NIRC). Section 114 (C) of said law provides as follows:

“Section 114. Return and Payment of Value-Added Tax. –

x x x x

For the Sub-Contract Agreement, on the other hand, respondent F. Sanchez Construction, acting on behalf of the Joint Venture, issued BIR-registered receipts for the sums paid by LVM for Billing Nos. 1 to 26, indicating the total amount paid by the latter, the retention fee deducted therefrom and the tax due thereon.^{^[62]}^[35] These were in consonance with paragraph 3 of the Sub-Contract Agreement which, after stating that LVM’s payment shall “be on item of work accomplished in the sub-contracted portion of the project awarded unit cost of the project less NINE PERCENT (9%),” simply provided, that “(t)he SUB-CONTRACTOR shall issue a BIR registered receipt to the CONTRACTOR.”^{^[63]}^[36] As the VAT-registered person, on the other hand, Fortunato T. Sanchez, Sr.^{^[64]}^[37] also filed the corresponding Monthly VAT Declarations^{^[65]}^[38] with the BIR which, by themselves, are evidence of the Joint Venture’s VAT liability for LVM’s payments on its billings. In fixing the base of the tax, the first paragraph A Section 108 of the NIRC provides that “(t)here shall be levied assessed and collected, a value-added tax equivalent to ten percent (10%) of gross receipts derived from the sale or exchange of services, including the use or lease of properties.”

In the absence of any stipulation regarding the Joint Venture’s sharing in the VAT deducted and withheld by the DPWH from its payment on the main contract, the CIAC and the CA correctly ruled that LVM has no basis in offsetting the amounts of said tax from the retention still in its possession. VAT is a uniform tax levied on every importation of goods, whether or not in the course of trade or business, or imposed on each sale, barter, exchange or lease of goods or properties or on each rendition of services in the course of trade or business.^{^[66]}^[39] It is a tax on transactions, imposed at every stage of the distribution process on the sale, barter, exchange of goods or property, and on the performance of services, even in the absence of profit attributable thereto.^{^[67]}^[40] As an indirect tax that may be shifted or passed on to the buyer, transferee or lessee of the goods, properties or services, VAT should be understood not in the context of the person or entity that is primarily, directly and legally liable for its payment, but in terms of its nature as a tax on consumption.^{^[68]}^[41]

Neither do we find merit in LVM’s harping over the lack of showing in the record that the Joint Venture has actually paid its liability for VAT. For this purpose, LVM insists that the Official Receipts for its payments on the Joint Venture’s billing were issued by respondent F. Sanchez Construction and that the Monthly VAT Declarations were, in fact, filed by Fortunato Sanchez, Sr. However, the evidence on record is to the effect that, failing to register with the Securities and Exchange Commission (SEC) and to obtain a Mayor’s Permit and authorization from the BIR to print its official receipts, the Joint Venture apprised LVM of its intention to use respondent F. Sanchez Construction’s BIR-registered receipts.^{^[69]}^[42] Aside from being indicative of its knowledge of the foregoing circumstances, LVM’s previous unqualified acceptance of said official receipts should, clearly, bar the belated exceptions it now takes with respect thereto. A party, having performed affirmative acts upon which another person based his subsequent actions, cannot thereafter refute his acts or renege on the effects of the same, to the prejudice of the latter.^{^[70]}^[43]

WHEREFORE, premises considered, the petition is DENIED for lack of merit and the CA’s 28 September 2007 Decision is, accordingly, AFFIRMED in toto.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

ARTURO D. BRION MARIA LOURDES P. A. SERENO Associate Justice Associate Justice

BIENVENIDO L. REYES

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

Chief Justice

[1][27] Rollo, pp. 303-353.

[2][24] R&M General Merchandise, Inc. v. Court of Appeals, G.R. No. 144189, 5 October 419 Phil. 131, 142 (2001).

[3][25] Antipolo Properties, Inc. v. Nuyda, G.R. No. 171832, 12 October 2009, 603 SCRA 376, 381.

[4][26] Lorenzo Shipping Corporation v. BJ Marthel International, Inc., 485 Phil. 546, 557 (2004).

[5][27] Rollo, pp. 303-353.

[6][28] Id. at 113-114.

[7][31] Sps. Barrera v. Sps. Lorenzo, 438 Phil. 42, 49 (2002).

[8][32] German Marine Agencies, Inc. v. NLRC, 403 Phil. 572, 589 (2001).

[9][29] Id. at 178.

[10][30] National Power Corporation v. Premier Shipping Lines, Inc., G.R. Nos. 179103, 180209, 17 September 2009, 600 SCRA 153, 176.

[11][31] Sps. Barrera v. Sps. Lorenzo, 438 Phil. 42, 49 (2002).

[12][32] German Marine Agencies, Inc. v. NLRC, 403 Phil. 572, 589 (2001).

[13][33] Rollo, pp. 49-52

[14][34] An Act Amending the National Internal Revenue Code, As Amended And For Other Purposes, dated 11 December 1997.

[15][35] Exhibits “V-4,” “V-7,” “V-10,” “V-13,” “V-16,” “V-20,” “V-21,” “V-26,” “V-28,” “V-31,” “V-32,” “V-35,” “V-37,” “V-40,” “V-43,” “V-45,” “V-48,” “V-50,” “V-53,” “V-58,” “V-61,“V-64,” “V-66,” “V-68,” “V-71,” “V-74,” “V-77” and “V-80.” Rollo, pp. 406; 409; 412; 415; 416; 421; 422; 427; 429; 432-433; 436; 438; 441; 444; 446; 449; 451; 455-457; 460; 468; 467; 469; 471; 474; 477; 480.

[16][36] Id. at 88.

[17][37] Id. at 363.

[18][38] Exhibits “V-3,” “V-6,” “V-9,” “V-12,” “V-15,” “V-19,” “V-25,” “V-30,” “V-34,” “V-39,” “V-42,” “V-47,” “V-52,” “V-57,” “V-60,” “V-63,” “V-70,” “V-73,” “V-76” and “V-79,” id. at 405; 408; 411; 414; 417; 420; 426; 431; 435; 440; 443; 448; 453; 459; 462; 465; 470; 473; 479.

[19][39] Commissioner of Internal Revenue v. Seagate Technology (Phils.), 491 Phil. 317, 331-332 (2005).

[20][40] Commissioner of Internal Revenue v. Court of Appeals, 385 Phil. 875, 884 (2000).

[21][41] Commissioner of Internal Revenue v. Seagate Technology (Philippines), supra at 332.

[22][39] Commissioner of Internal Revenue v. Seagate Technology (Phils.), 491 Phil. 317, 331-332 (2005).

[23][40] Commissioner of Internal Revenue v. Court of Appeals, 385 Phil. 875, 884 (2000).

[24][41] Commissioner of Internal Revenue v. Seagate Technology (Philippines), supra at 332.

[25][43] Mesina v. Garcia, G.R. No. 168035, 30 November, 2006, 509 SCRA 431, 440 citing Ducat v. Court of Appeals, 379 Phil. 753, 769 (2000).

[26][42] Rollo, pp. 650-651.

[27][43] Mesina v. Garcia, G.R. No. 168035, 30 November, 2006, 509 SCRA 431, 440 citing Ducat v. Court of Appeals, 379 Phil. 753, 769 (2000).

[28][1] Penned by Associate Justice Marlene Gonzales-Sison and concurred in by Associate Justices Juan Q. Enriquez, Jr. and Vicente S.E. Veloso.

[29][2] Rollo,CA’s 28 September 2007 Decision in CA-G.R. No. 94849, pp. 65-76.

[30][3] Id. at. 75.

[31][4] Id. at 204.

[32][5] Parties’ 27 November 1996, id. at 88-96.

[33][6] Id. at 88-89.

[34][7] Table Showing Amounts Due and Retentions, id. at 117.

[35][8] Cash Voucher and Check issued by LVM, id. at 139.

[36][9] LVM Managing Director Andres C. Lao’s 16 January 2006 Affidavit, id. at 212.

[37][10] LVM’s 16 May 2001 Letter, id. at 113-114.

[38][11] Joint Venture’s 14 June 2001 Letter, id. at 118-129.

[39][12] Joint Venture’s 30 June 2005 Complaint, id. at 101-107.

[40][13] LVM’s 28 September 2005 Motion for Bill of Particulars and the Joint Venture’s Bill of Particulars, id. at 131-135; 136-137.

[41][14] Joint Venture’s 23 December 2005 Amended Complaint, id. at 186-194.

[42][15] LVM’s 21 October 2005 Answer with Compulsory Counterclaim, id. at 140-151.

[43][16] LVM’s 2 January 2006 Supplemental Answer, id. at 196-202.

[44][17] Terms of Reference, 19 December 2005, id. at 203-208.

[45][18] CIAC’s 26 April 2006 Decision, id. at 577-595.

[46][19] LVM’s 1 3 June 2006 Petition for Review, id. at 596-634.

[47][20] CA’s 28 September 2007 Decision, id. at 65-76.

[48][21] Id. at 72-73.

[49][22] CA’s 26 February 2008 Resolution, id. at 78-80.

[50][23] Id. at 49.

[51][24] R&M General Merchandise, Inc. v. Court of Appeals, G.R. No. 144189, 5 October 419 Phil. 131, 142 (2001).

[52][25] Antipolo Properties, Inc. v. Nuyda, G.R. No. 171832, 12 October 2009, 603 SCRA 376, 381.

[53][26] Lorenzo Shipping Corporation v. BJ Marthel International, Inc., 485 Phil. 546, 557 (2004).

[54][27] Rollo, pp. 303-353.

[55][28] Id. at 113-114.

[56][29] Id. at 178.

[57][30] National Power Corporation v. Premier Shipping Lines, Inc., G.R. Nos. 179103, 180209, 17 September 2009, 600 SCRA 153, 176.

[58][31] Sps. Barrera v. Sps. Lorenzo, 438 Phil. 42, 49 (2002).

[59][32] German Marine Agencies, Inc. v. NLRC, 403 Phil. 572, 589 (2001).

[60][33] Rollo, pp. 49-52

[61][34] An Act Amending the National Internal Revenue Code, As Amended And For Other Purposes, dated 11 December 1997.

[62][35] Exhibits “V-4,” “V-7,” “V-10,” “V-13,” “V-16,” “V-20,” “V-21,” “V-26,” “V-28,” “V-31,” “V-32,” “V-35,” “V-37,” “V-40,” “V-43,” “V-45,” “V-48,” “V-50,” “V-53,” “V-58,” “V-61,“V-64,” “V-66,” “V-68,” “V-71,” “V-74,” “V-77” and “V-80.” Rollo, pp. 406; 409; 412; 415; 416; 421; 422; 427; 429; 432-433; 436; 438; 441; 444; 446; 449; 451; 455-457; 460; 468; 467; 469; 471; 474; 477; 480.

[63][36] Id. at 88.

[64][37] Id. at 363.

[65][38] Exhibits “V-3,” “V-6,” “V-9,” “V-12,” “V-15,” “V-19,” “V-25,” “V-30,” “V-34,” “V-39,” “V-42,” “V-47,” “V-52,” “V-57,” “V-60,” “V-63,” “V-70,” “V-73,” “V-76” and “V-79,” id. at 405; 408; 411; 414; 417; 420; 426; 431; 435; 440; 443; 448; 453; 459; 462; 465; 470; 473; 479.

[66][39] Commissioner of Internal Revenue v. Seagate Technology (Phils.), 491 Phil. 317, 331-332 (2005).

[67][40] Commissioner of Internal Revenue v. Court of Appeals, 385 Phil. 875, 884 (2000).

[68][41] Commissioner of Internal Revenue v. Seagate Technology (Philippines), supra at 332.

[69][42] Rollo, pp. 650-651.

[70][43] Mesina v. Garcia, G.R. No. 168035, 30 November, 2006, 509 SCRA 431, 440 citing Ducat v. Court of Appeals, 379 Phil. 753, 769 (2000).

Comment

LEGAL NOTE 0105: WHAT IS THE DIFFERENCE BETWEEN A SPECIAL PROCEEDING AND AN ORDINARY CIVIL ACTION?

Filed under: LEGAL NOTES — Leave a comment

December 22, 2011

LEGAL NOTE 0105: WHAT IS THE DIFFERENCE BETWEEN A SPECIAL PROCEEDING AND AN ORDINARY CIVIL ACTION?

SOURCE: RAMON S. CHING AND PO WING PROPERTIES, INC. VS. HON. JANSEN R. RODRIGUEZ, IN HIS CAPACITY AS PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF MANILA, BRANCH 6, JOSEPH CHENG, JAIME CHENG, MERCEDES IGNE AND LUCINA SANTOS, SUBSTITUTED BY HER SON, EDUARDO S. BALAJADIA (G.R. NO. 192828, 28 NOVEMBER 2011, REYES) (SUBJECTS: WHAT DETERMINES WHETHER A CASE FALLS WITHIN PROBATE OR INTESTATE PROCEEDINGS; DISINHERITANCE; MOTION TO DISMISS. (BRIEF TITLE: RAMON CHING ET AL VS. JUDGE RODRIGUEZ).

=================

SUBJECTS/DOCTRINES/DIGEST:

IN 1996 ANTONIO CHING WAS STABBED TO DEATH. THE SUSPECT WAS RAMON CHING, HIS ALLEGED SON. CRIMINAL CASE WAS FILED AGAINST RAMON, WHO REMAINED AT LARGE. ANTONIO’S TWO COMMON LAW WIVES AND 2 CHILDREN OF ONE OF THE COMMON LAW WIFE FILED A CASE AGAINST RAMON ALLEGING THAT RAMON BY FRAUD TRANSFERRED PROPERTIES OF ANTONIO CHING TO HIS NAME AND PRAYED FOR RECONVEYANCE AND ANNULMENT OF TITLES WITH DAMAGES AND THAT RAMON BE DISINHERITED AND PREVENTED FROM ACQUIRING OTHER PROPERTIES OF THE LATE ANTONIO. LATER THEY AMENDED THEIR COMPLAINT IMPLEADING METROBANK.

SPOUSE OF RAMON FILED A MOTION TO DISMISS ON THE GROUND THAT THE RTC HANDLING THE CASE HAS NO JURISDICTION BECAUSE THE ISSUES RAISED CAN ONLY BE RESOLVED IN A SPECIAL PROCEEDING AND NOT IN AN ORDINARY CIVIL ACTION. SOME ISSUES RAISED ARE: (a) filiations with Antonio of Ramon, Jaime and Joseph; (b) rights of common-law wives, Lucina and Mercedes, to be considered as heirs of Antonio; AND (c) determination of the extent of Antonio’s estate.

RTC DENIED THE MOTION. C.A. AFFIRMED RTC RULING. DOES RTC HAVE JURISDICTION?

YES. RTC AND CA RULINGS ARE CORRECT. AN ACTION FOR RECONVEYANCE AND ANNULMENT OF TITLE WITH DAMAGES IS A CIVIL ACTION.

XXXXXXXXXXXXXXX

WHAT IS A SPECIAL PROCEEDING?

IT IS A REMEDY BY WHICH A PARTY SEEKS TO ESTABLISH A STATUS, A RIGHT, OR A PARTICULAR FACT. EXAMPLE: IT CONCERNS MATTERS RELATING TO THE SETTLEMENT OF THE ESTATE OF A DECEASED PERSON. IT REQUIRES THE APPLICATION OF SPECIFIC RULES AS PROVIDED FOR IN THE RULES OF COURT.

XXXXXXXXXXXXXXXXXXXXX

HOW IS A SPECIAL PROCEEDING DISTINGUISHED FROM AN ORDINARY CIVIL ACTION?

IN AN ORDINARY CIVIL ACTION, A PARTY SUES ANOTHER FOR THE ENFORCEMENT OR PROTECTION OF A RIGHT, OR THE PREVENTION OR REDRESS OF A WRONG. IN A SPECIAL PROCEEDING THE PARTY SEEKS TO ESTABLISH A STATUS, RIGHT OR A PARTICULAR FACT. TO INITIATE A SPECIAL PROCEEDING, A PETITION AND NOT A COMPLAINT SHOULD BE FILED.

An action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court.^{^[1]}^[32] A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.^{^[2]}^[33] It is distinguished from an ordinary civil action where a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.^{^[3]}^[34] To initiate a special proceeding, a petition and not a complaint should be filed.

XXXXXXXXXXXXXXXXX

THE COMPLAINT SOUGHT THE DISINHERITANCE OF RAMON. DOES THIS NOT MAKE THE COMPLAINT FALL UNDER SPECIAL PROCEEDINGS?

NO. BECAUSE NO WILL OR ANY INSTRUMENT SUPPOSEDLY EFFECTING THE DISPOSITION OF ANTONIO’S ESTATE WAS EVEN MENTIONED.

Under Article 916 of the NCC, disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. This Court agrees with the RTC and the CA that while the respondents in their Complaint and Amended Complaint sought the disinheritance of Ramon, no will or any instrument supposedly effecting the disposition of Antonio’s estate was ever mentioned. Hence, despite the prayer for Ramon’s disinheritance, Civil Case No. 02-105251 does not partake of the nature of a special proceeding and does not call for the probate court’s exercise of its limited jurisdiction.

XXXXXXXXXXXXXXXXX

PETITIONER RAMON ARGUES THAT THE AMENDED COMPLAINT SEEKS THE RELEASE OF CERTAIN DEPOSITS AT METRO BANK IN FAVOR OF MERCEDES. THIS REQUIRES DETERMINATION OF THE STATUS OF MERCEDES AS ANTONIO’S HEIR AND THEREFORE PROPER SUBJECT OF A SPECIAL PROCEEDINGS. IS RAMON CORRECT?

NO. AT ISSUE IS THE SIGNING BY MERCEDES OF AN AGREEMENT AND WAIVER OVER THE DEPOSITS IN FAVOR OF RAMON. SHE SAID SHE WAS DECEIVED BY RAMON. THEREFORE THE PRAYER FOR THE RELEASE OF DEPOSITS WAS BASED ON MERCEDES’ PRIOR POSESSION OF THE DEPOSITS. IT IS NOT NECESSARY TO FIRST DECLARE HER AS HEIR.

XXXXXXXXXXXXXXX

RAMON ARGUES THAT IN HIS ANSWER HE STATED THAT RESPONDENT’S ALLEGATION THAT AN EXTRA-JUDICIAL SETTLEMENT OF ANTONIO’S ESTATE EXECUTED BY RAMON AS WELL AS THE TCT’S ISSUED ARE NULL AND VOID REQUIRES THE DETERMINATION FIRST OF WHO ARE THE HEIRS OF ANTONIO. SUCH ALLEGATION BY HIM IN HIS ANSWER MAKES THE COMPLAINT ONE OF SPECIAL PROCEEDINGS. IS RAMON CORRECT?

NO. IT IS COMPLAINANT’S AVERMENTS AND NOT DEFENDANT’S AVERMENTS THAT DETERMINE JURISDICTION. OTHERWISE, JURISDICTION WOULD DEPEND ON THE WHIM OF DEFENDANT. RAMON’S AVERMENT THAT A RESOLUTION OF THE ISSUES RAISED SHALL FIRST REQUIRE A DECLARATION OF THE RESPONDENTS’ STATUS AS HEIRS IS A MERE DEFENSE WHICH IS NOT DETERMINATIVE OF WHICH COURT SHALL PROPERLY EXERCISE JURISDICTION.

The petitioners also argue that the prayers in the Amended Complaint, seeking the release in favor of the respondents of the CPPA under Metrobank’s custody and the nullification of the instruments subject of the complaint, necessarily require the determination of the respondents’ status as Antonio’s heirs.

It bears stressing that what the respondents prayed for was that they be declared as the rightful owners of the CPPA which was in Mercedes’ possession prior to the execution of the Agreement and Waiver. The respondents also prayed for the alternative relief of securing the issuance by the RTC of a hold order relative to the CPPA to preserve Antonio’s deposits with Metrobank during the pendency of the case. It can thus be said that the respondents’ prayer relative to the CPPA was premised on Mercedes’ prior possession of and their alleged collective ownership of the same, and not on the declaration of their status as Antonio’s heirs. Further, it also has to be emphasized that the respondents were parties to the execution of the Agreement^{^[4]}^[35] and Waiver^{^[5]}^[36] prayed to be nullified. Hence, even without the necessity of being declared as heirs of Antonio, the respondents have the standing to seek for the nullification of the instruments in the light of their claims that there was no consideration for their execution, and that Ramon exercised undue influence and committed fraud against them. Consequently, the respondents then claimed that the Affidavit of Extra-Judicial Settlement of Antonio’s estate executed by Ramon, and the TCTs issued upon the authority of the said affidavit, are null and void as well. Ramon’s averment that a resolution of the issues raised shall first require a declaration of the respondents’ status as heirs is a mere defense which is not determinative of which court shall properly exercise jurisdiction.

In Marjorie Cadimas v. Marites Carrion and Gemma Hugo,^{^[6]}^[37] the Court declared:

It is an elementary rule of procedural law that jurisdiction of the court over the subject matter is determined by the allegations of the complaint irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein. As a necessary consequence, the jurisdiction of the court cannot be made to depend upon the defenses set up in the answer or upon the motion to dismiss, for otherwise, the question of jurisdiction would almost entirely depend upon the defendant. What determines the jurisdiction of the court is the nature of the action pleaded as appearing from the allegations in the complaint. The averments in the complaint and the character of the relief sought are the matters to be consulted.

XXXXXXXXXXXX

IS THE STRATEGY OF THE HEIRS SOUND?

NO BECAUSE A SETTLEMENT PROCEEDING SHOULD STILL FOLLOW. BUT THE RTC CANNOT BE RESTRAINED FROM TAKING COGNIZANCE OF THE COMPLAINT AND AMENDED COMPLAINT.

The respondents’ resort to an ordinary civil action before the RTC may not be strategically sound, because a settlement proceeding should thereafter still follow, if their intent is to recover from Ramon the properties alleged to have been illegally transferred in his name. Be that as it may, the RTC, in the exercise of its general jurisdiction, cannot be restrained from taking cognizance of respondents’ Complaint and Amended Complaint as the issues raised and the prayers indicated therein are matters which need not be threshed out in a special proceeding.

=====================

Republic of the Philippines

Supreme Court

Manila

SECOND DIVISION

RAMON S. CHING AND PO WING PROPERTIES, INC.,

Petitioners,

– versus –

HON. JANSEN R. RODRIGUEZ, in his capacity as Presiding Judge of the Regional Trial Court of Manila, Branch 6, JOSEPH CHENG, JAIME CHENG, MERCEDES IGNE AND LUCINA SANTOS, substituted by her son, EDUARDO S. BALAJADIA,

Respondents.

G.R. No. 192828

Present:

CARPIO, J.,

Chairperson,

BRION,

PEREZ,

ARANAL-SERENO, and

REYES, JJ.

Promulgated:

November 28, 2011

x————————————————————————————x

RESOLUTION

REYES, J.:

The Case

Before us is a Petition for Review on Certiorari^{^[7]}^[1] under Rule 45 of the Rules of Court assailing the December 14, 2009 Decision^{^[8]}^[2] and July 8, 2010 Resolution^{^[9]}^[3] of the Court of Appeals (CA) in CA-G.R. SP No. 99856. The dispositive portion of the assailed Decision reads:

WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered by us DENYING the petition filed in this case and AFFIRMING the assailed Orders dated March 15, 2007 and May 16, 2007 issued by the respondent Judge of the Regional Trial Court (RTC), Branch 6, in Manila in Civil Case No. 02-105251.^{^[10]}^[4]

The assailed Resolution denied the petitioners’ Motion for Reconsideration.

The Factual Antecedents

Sometime between November 25, 2002 and December 3, 2002,^{^[11]}^[5] the respondents filed a Complaint^{^[12]}^[6] against the petitioners and Stronghold Insurance Company, Global Business Bank, Inc. (formerly PhilBank), Elena Tiu Del Pilar, Asia Atlantic Resources Ventures, Inc., Registers of Deeds of Manila and Malabon, and all persons claiming rights or titles from Ramon Ching (Ramon) and his successors-in-interest.

The Complaint, captioned as one for “Disinheritance, Declaration of Nullity of Agreement and Waiver, Affidavit of Extra-Judicial Settlement, Deed of Absolute Sale, Transfer Certificates of Title with Prayer for [the] Issuance of [a] Temporary Restraining Order and [a] Writ of Preliminary Injunction,” was docketed as Civil Case No. 02-105251 and raffled to Branch 8 of the Regional Trial Court of Manila (RTC).

In the Complaint, the respondents alleged the following as causes of action:

First Cause of Action. They are the heirs of Lim San, also known as Antonio Ching / Tiong Cheng / Ching Cheng Suy (Antonio). Respondents Joseph Cheng (Joseph) and Jaime Cheng (Jaime) are allegedly the children of Antonio with his common-law wife, respondent Mercedes Igne (Mercedes). Respondent Lucina Santos (Lucina) claimed that she was also a common-law wife of Antonio. The respondents averred that Ramon misrepresented himself as Antonio’s and Lucina’s son when in truth and in fact, he was adopted and his birth certificate was merely simulated. On July 18, 1996, Antonio died of a stab wound. Police investigators identified Ramon as the prime suspect and he now stands as the lone accused in a criminal case for murder filed against him. Warrants of arrest issued against him have remained unserved as he is at large. From the foregoing circumstances and upon the authority of Article 919^{^[13]}^[7] of the New Civil Code (NCC), the respondents concluded that Ramon can be legally disinherited, hence, prohibited from receiving any share from the estate of Antonio.

Second Cause of Action. On August 26, 1996, prior to the conclusion of the police investigations tagging Ramon as the prime suspect in the murder of Antonio, the former made an inventory of the latter’s estate. Ramon misrepresented that there were only six real estate properties left by Antonio. The respondents alleged that Ramon had illegally transferred to his name the titles to the said properties. Further, there are two other parcels of land, cash and jewelries, plus properties in Hongkong, which were in Ramon’s possession.

Third Cause of Action. Mercedes, being of low educational attainment, was sweet-talked by Ramon into surrendering to him a Global Business Bank, Inc. (Global Bank) Certificate of Time Deposit of P4,000,000.00 in the name of Antonio, and the certificates of title covering two condominium units in Binondo which were purchased by Antonio using his own money but which were registered in Ramon’s name. Ramon also fraudulently misrepresented to Joseph, Jaime and Mercedes that they will promptly receive their complete shares, exclusive of the stocks in Po Wing Properties, Inc. (Po Wing), from the estate of Antonio. Exerting undue influence, Ramon had convinced them to execute an Agreement^{^[14]}^[8] and a Waiver^{^[15]}^[9] on August 20, 1996. The terms and conditions stipulated in the Agreement and Waiver, specifically, on the payment by Ramon to Joseph, Jaime and Mercedes of the amount of P22,000,000.00, were not complied with. Further, Lucina was not informed of the execution of the said instruments and had not received any amount from Ramon. Hence, the instruments are null and void.

Fourth Cause of Action. Antonio’s 40,000 shares in Po Wing, which constitute 60% of the latter’s total capital stock, were illegally transferred by Ramon to his own name through a forged document of sale executed after Antonio died. Po Wing owns a ten-storey building in Binondo. Ramon’s claim that he bought the stocks from Antonio before the latter died is baseless. Further, Lucina’s shares in Po Wing had also banished into thin air through Ramon’s machinations.

Fifth Cause of Action. On October 29, 1996, Ramon executed an Affidavit of Extra-Judicial Settlement of Estate^{^[16]}^[10] adjudicating solely to himself Antonio’s entire estate to the prejudice of the respondents. By virtue of the said instrument, new Transfer Certificates of Title (TCTs) covering eight real properties owned by Antonio were issued in Ramon’s name. Relative to the Po Wing shares, the Register of Deeds of Manila had required Ramon to post a Surety Bond conditioned to answer for whatever claims which may eventually surface in connection with the said stocks. Co-defendant Stronghold Insurance Company issued the bond in Ramon’s behalf.

Sixth Cause of Action. Ramon sold Antonio’s two parcels of land in Navotas to co-defendant Asia Atlantic Business Ventures, Inc. Another parcel of land, which was part of Antonio’s estate, was sold by Ramon to co-defendant Elena Tiu Del Pilar at an unreasonably low price. By reason of Ramon’s lack of authority to dispose of any part of Antonio’s estate, the conveyances are null and void ab initio.

Since Ramon is at large, his wife, Belen Dy Tan Ching, now manages Antonio’s estate. She has no intent to convey to the respondents their shares in the estate of Antonio.

The respondents thus prayed for the following in their Complaint:

1. x x x a temporary restraining order be issued restraining the defendant RAMON CHING and/or his attorney-in-fact Belen Dy Tan Ching from disposing, selling or alienating any property that belongs to the estate of the deceased ANTONIO CHING;

x x x

4. x x x

a.) Declaring that the defendant RAMON CHING who murdered his father ANTONIO CHING disqualified as heir and from inheriting to (sic) the estate of his father;

b.) Declaring the nullity of the defendant RAMON CHING transfer (sic) of the six [6] parcels of land from the name of his father ANTONIO CHING to his name covered by TCT No. x x x;

c.) Declaring the nullity of the AGREEMENT and WAIVER executed by plaintiffs x x x in favor of x x x RAMON CHING for being patently immoral, invalid, illegal, simulated and (sic) sham;

d.) Declaring the nullity of the transfer of the shares of stocks at (sic) PO WING from the names of ANTONIO CHING and LUCINA SANTOS to the defendant ANTONIO CHING’s name for having been illegally procured through the falsification of their signatures in the document purporting the transfer thereof;

e.) Declaring the nullity and to have no force and effect the AFFIDAVIT OF SETTLEMENT OF ESTATE executed by x x x RAMON CHING for being contrary to law and existing jurisprudence;

f.) Declaring the nullity of the DEED OF SALES (sic) executed by x x x RAMON CHING (i) over two (2) parcels of land x x x to defendant ASIA ATLANTIC BUSINESS VENTURES, Inc.; and (ii) one (1) parcel of land x x x sold to x x x ELENA TIU DEL PILAR for having illegally procured the ownership and titles of the above properties;

x x x.^{^[17]}^[11]

The petitioners filed with the RTC a Motion to Dismiss^{^[18]}^[12] alleging forum shopping, litis pendentia, res judicata and the respondents as not being the real parties in interest.

On July 30, 2004, the RTC issued an Omnibus Order^{^[19]}^[13] denying the petitioners’ Motion to Dismiss.

The respondents filed an Amended Complaint^{^[20]}^[14] dated April 7, 2005 impleading Metrobank as the successor-in-interest of co-defendant Global Bank. The Amended Complaint also added a seventh cause of action relative to the existence of a Certificate of Premium Plus Acquisition (CPPA) in the amount of P4,000,000.00 originally issued by PhilBank to Antonio. The respondents prayed that they be declared as the rightful owners of the CPPA and that it be immediately released to them. Alternatively, the respondents prayed for the issuance of a hold order relative to the CPPA to preserve it during the pendency of the case.

On April 22, 2005, the petitioners filed their Consolidated Answer with Counterclaim.^{^[21]}^[15]

On October 28, 2005, the RTC issued an Order^{^[22]}^[16] admitting the respondents’ Amended Complaint. The RTC stressed that Metrobank had already filed Manifestations admitting that as successor-in-interest of Global Bank, it now possesses custody of Antonio’s deposits. Metrobank expressed willingness to abide by any court order as regards the disposition of Antonio’s deposits. The petitioners’ Motion for Reconsideration filed to assail the aforecited Order was denied by the RTC on May 3, 2006.

On May 29, 2006, the petitioners filed their Consolidated Answer with Counterclaim to the respondents’ Amended Complaint.

On August 11, 2006, the RTC issued a pre-trial order.^{^[23]}^[17]

On January 18, 2007, the petitioners filed a Motion to Dismiss^{^[24]}^[18] the respondents’ Amended Complaint on the alleged ground of the RTC’s lack of jurisdiction over the subject matter of the Complaint. The petitioners argued that since the Amended Complaint sought the release of the CPPA to the respondents, the latter’s declaration as heirs of Antonio, and the propriety of Ramon’s disinheritance, the suit partakes of the nature of a special proceeding and not an ordinary action for declaration of nullity. Hence, jurisdiction pertains to a probate or intestate court and not to the RTC acting as an ordinary court.

On March 15, 2007, the RTC issued an Order^{^[25]}^[19] denying the petitioners’ Motion to Dismiss on grounds:

In the case at bar, an examination of the Complaint would disclose that the action delves mainly on the question of ownership of the properties described in the Complaint which can be properly settled in an ordinary civil action. And as pointed out by the defendants, the action seeks to declare the nullity of the Agreement, Waiver, Affidavit of Extra-Judicial Settlement, Deed of Absolute Sale, Transfer Certificates of Title, which were all allegedly executed by defendant Ramon Ching to defraud the plaintiffs. The relief of establishing the status of the plaintiffs which could have translated this action into a special proceeding was nowhere stated in the Amended Complaint. With regard [to] the prayer to declare the plaintiffs as the rightful owner[s] of the CPPA and that the same be immediately released to them, in itself poses an issue of ownership which must be proved by plaintiffs by substantial evidence. And as emphasized by the plaintiffs, the Amended Complaint was intended to implead Metrobank as a co-defendant.

As regards the issue of disinheritance, the court notes that during the Pre-trial of this case, one of the issues raised by the defendants Ramon Ching and Po Wing Properties is: Whether or not there can be disinheritance in intestate succession? Whether or not defendant Ramon Ching can be legally disinherited from the estate of his father? To the mind of the Court, the issue of disinheritance, which is one of the causes of action in the Complaint, can be fully settled after a trial on the merits. And at this stage, it has not been sufficiently established whether or not there is a will.^{^[26]}^[20] (Emphasis supplied.)

The above Order, and a subsequent Order dated May 16, 2007 denying the petitioners’ Motion for Reconsideration, became the subjects of a petition for certiorari filed with the CA. The petition, docketed as CA-G.R. SP No. 99856, raised the issue of whether or not the RTC gravely abused its discretion when it denied the petitioners’ Motion to Dismiss despite the fact that the Amended Complaint sought to establish the status or rights of the respondents which subjects are within the ambit of a special proceeding.

On December 14, 2009, the CA rendered the now assailed Decision^{^[27]}^[21] denying the petition for certiorari on grounds:

Our in-depth assessment of the condensed allegations supporting the causes of action of the amended complaint induced us to infer that nothing in the said complaint shows that the action of the private respondents should be threshed out in a special proceeding, it appearing that their allegations were substantially for the enforcement of their rights against the alleged fraudulent acts committed by the petitioner Ramon Ching. The private respondents also instituted the said amended complaint in order to protect them from the consequence of the fraudulent acts of Ramon Ching by seeking to disqualify Ramon Ching from inheriting from Antonio Ching as well as to enjoin him from disposing or alienating the subject properties, including the P4 Million deposit with Metrobank. The intestate or probate court has no jurisdiction to adjudicate such issues, which must be submitted to the court in the exercise of its general jurisdiction as a regional trial court. Furthermore, we agree with the trial court that the probate court could not take cognizance of the prayer to disinherit Ramon Ching, given the undisputed fact that there was no will to be contested in a probate court.

The petition at bench apparently cavils the subject amended complaint and complicates the issue of jurisdiction by reiterating the grounds or defenses set up in the petitioners’ earlier pleadings. Notwithstanding, the jurisdiction of the court over the subject matter is determined by the allegations of the complaint without regard to whether or not the private respondents (plaintiffs) are entitled to recover upon all or some of the causes of action asserted therein. In this regard, the jurisdiction of the court does not depend upon the defenses pleaded in the answer or in the motion to dismiss, lest the question of jurisdiction would almost entirely depend upon the petitioners (defendants).^{^[28]}^[22] Hence, we focus our resolution on the issue of jurisdiction on the allegations in the amended complaint and not on the defenses pleaded in the motion to dismiss or in the subsequent pleadings of the petitioners.

In fine, under the circumstances of the present case, there being no compelling reason to still subject the action of the petitioners in a special proceeding since the nullification of the subject documents could be achieved in the civil case, the lower court should proceed to evaluate the evidence of the parties and render a decision thereon upon the issues that it defined during the pre-trial in Civil Case No. 02-105251.^{^[29]}^[23] (emphasis supplied)

The petitioners’ Motion for Reconsideration was denied by the CA through a Resolution^{^[30]}^[24] issued on July 8, 2010.

The Issue

The instant Petition for Review on Certiorari^{^[31]}^[25] is anchored on the issue of:

Whether or not the RTC should have granted the Motion to Dismiss filed by the PETITIONERS on the alleged ground of the RTC’s lack of jurisdiction over the subject matter of the Amended Complaint, to wit, (a) filiations with Antonio of Ramon, Jaime and Joseph; (b) rights of common-law wives, Lucina and Mercedes, to be considered as heirs of Antonio; (c) determination of the extent of Antonio’s estate; and (d) other matters which can only be resolved in a special proceeding and not in an ordinary civil action.

The petitioners argue that only a probate court has the authority to determine (a) who are the heirs of a decedent; (b) the validity of a waiver of hereditary rights; (c) the status of each heir; and (d) whether the property in the inventory is conjugal or the exclusive property of the deceased spouse.^{^[32]}^[26] Further, the extent of Antonio’s estate, the status of the contending parties and the respondents’ alleged entitlement as heirs to receive the proceeds of Antonio’s CPPA now in Metrobank’s custody are matters which are more appropriately the subjects of a special proceeding and not of an ordinary civil action.

The respondents opposed^{^[33]}^[27] the instant petition claiming that the petitioners are engaged in forum shopping. Specifically, G.R. Nos. 175507^{^[34]}^[28] and 183840,^{^[35]}^[29] both involving the contending parties in the instant petition were filed by the petitioners and are currently pending before this Court. Further, in Mendoza v. Hon. Teh,^{^[36]}^[30] the SC declared that whether a particular matter should be resolved by the RTC in the exercise of its general jurisdiction or its limited probate jurisdiction, is not a jurisdictional issue but a mere question of procedure. Besides, the petitioners, having validly submitted themselves to the jurisdiction of the RTC and having actively participated in the trial of the case, are already estopped from challenging the RTC’s jurisdiction over the respondents’ Complaint and Amended Complaint.^{^[37]}^[31]

The Court’s Ruling

We resolve to deny the instant petition.

The petitioners failed to comply with a lawful order of this Court directing them to file their reply to the respondents’ Comment/Opposition to the instant Petition. While the prescribed period to comply expired on March 15, 2011, the petitioners filed their Manifestation that they will no longer file a reply only on October 10, 2011 or after the lapse of almost seven months.

Further, no reversible errors were committed by the RTC and the CA when they both ruled that the denial of the petitioners’ second motion to dismiss Civil Case No. 02-105251 was proper.

Even without delving into the procedural allegations of the respondents that the petitioners engaged in forum shopping and are already estopped from questioning the RTC’s jurisdiction after having validly submitted to it when the latter participated in the proceedings, the denial of the instant Petition is still in order. Although the respondents’ Complaint and Amended Complaint sought, among others, the disinheritance of Ramon and the release in favor of the respondents of the CPPA now under Metrobank’s custody, Civil Case No. 02-105251 remains to be an ordinary civil action, and not a special proceeding pertaining to a settlement court.

An action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court.^{^[38]}^[32] A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.^{^[39]}^[33] It is distinguished from an ordinary civil action where a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.^{^[40]}^[34] To initiate a special proceeding, a petition and not a complaint should be filed.

It bears stressing that what the respondents prayed for was that they be declared as the rightful owners of the CPPA which was in Mercedes’ possession prior to the execution of the Agreement and Waiver. The respondents also prayed for the alternative relief of securing the issuance by the RTC of a hold order relative to the CPPA to preserve Antonio’s deposits with Metrobank during the pendency of the case. It can thus be said that the respondents’ prayer relative to the CPPA was premised on Mercedes’ prior possession of and their alleged collective ownership of the same, and not on the declaration of their status as Antonio’s heirs. Further, it also has to be emphasized that the respondents were parties to the execution of the Agreement^{^[41]}^[35] and Waiver^{^[42]}^[36] prayed to be nullified. Hence, even without the necessity of being declared as heirs of Antonio, the respondents have the standing to seek for the nullification of the instruments in the light of their claims that there was no consideration for their execution, and that Ramon exercised undue influence and committed fraud against them. Consequently, the respondents then claimed that the Affidavit of Extra-Judicial Settlement of Antonio’s estate executed by Ramon, and the TCTs issued upon the authority of the said affidavit, are null and void as well. Ramon’s averment that a resolution of the issues raised shall first require a declaration of the respondents’ status as heirs is a mere defense which is not determinative of which court shall properly exercise jurisdiction.

In Marjorie Cadimas v. Marites Carrion and Gemma Hugo,^{^[43]}^[37] the Court declared:

In sum, this Court agrees with the CA that the nullification of the documents subject of Civil Case No. 02-105251 could be achieved in an ordinary civil action, which in this specific case was instituted to protect the respondents from the supposedly fraudulent acts of Ramon. In the event that the RTC will find grounds to grant the reliefs prayed for by the respondents, the only consequence will be the reversion of the properties subject of the dispute to the estate of Antonio. Civil Case No. 02-105251 was not instituted to conclusively resolve the issues relating to the administration, liquidation and distribution of Antonio’s estate, hence, not the proper subject of a special proceeding for the settlement of the estate of a deceased person under Rules 73-91 of the Rules of Court.

WHEREFORE, the instant petition is DENIED. The petitioners’ (a) Opposition to the respondents’ Motion to Admit Substitution of Party;^{^[44]}^[38] and (b) Manifestation^{^[45]}^[39] through counsel that they will no longer file a reply to the respondents’ Comment/Opposition to the instant petition are NOTED.

SO ORDERED.

BIENVENIDO L. REYES

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

ARTURO D. BRION

Associate Justice

JOSE P. PEREZ

Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson, Second Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

Chief Justice

[1][32] Natcher v. Court of Appeals, et al., 418 Phil 669, 677 (2001).

[2][33] Rules of Court, Rule 1, Section 3.

[3][34] Reyes v. Enriquez, G.R. No. 162956, April 10, 2008, 551 SCRA 86, 92.

[4][35] Supra note 8.

[5][36] Supra note 9.

[6][37] G.R. No. 180394, September 29, 2008, 567 SCRA 101, 116, citing Serdoncillo v. Spouses Benolirao, 358 Phil. 83, 94-95 (1998).

[7][1] Rollo, pp. 12-57.

[8][2] Penned by Associate Justice Isaias Dicdican, with Associate Justices Remedios A. Salazar-Fernando and Romeo F. Barza, concurring; id. at 59-70.

[9][3] Id. at 72-73.

[10][4] Id. at 69.

[11][5] The copy of the Complaint filed with this Court was dated November 25, 2002 and stamped as received by the RTC on December 3, 2002. However, the copy does not indicate if the Complaint was filed personally or by registered mail.

[12][6] Rollo, pp. 110-126.

[13][7] Art. 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

x x x

(6) Maltreatment of the testator by word or deed, by the child or descendant;

x x x.

[14][8] Rollo, p. 615.

[15][9] Id. at 616.

[16][10] Id. at 617-620.

[17][11] Id. at 122-123.

[18][12] Id. at 127-136.

[19][13] Id. at 137-143.

[20][14] Id. at 242-259.

[21][15] Id. at 191-229.

[22][16] Id. at 271-272.

[23][17] Id. at 327-339.

[24][18] Id. at 348-356.

[25][19] Id. at 414-419.

[26][20] Id. at 418-419.

[27][21] Id. at 59-70.

[28][22] Fort Bonifacio Development Corp. v. Hon. Edwin D. Sorongon, G.R. No. 176709, May 8, 2009, 587 SCRA 613, 619-620, citing Caparros v. Court of Appeals, G.R. No. 56803, February 28, 1989, 170 SCRA 758, 761.

[29][23] Rollo, pp. 67-68.

[30][24] Id. at 72-73.

[31][25] Id. at 12-57.

[32][26] Citing Associate Justice Florenz Regalado, Remedial Law Compendium, Vol. 2, 9^th Revised Ed., p. 11.

[33][27] Please see Comment/Opposition to the Petition for Certiorari, rollo, pp. 499-535. Lucina died on October 20, 2010, hence, substituted by Eduardo Santos Balajadia who claims to be her son.

[34][28] Id. at 536-570. G.R. No. 175507 originated from the RTC Order (Id. at 632) issued on November 22, 2002 dismissing Civil Case No. 02-103319 without prejudice. On the other hand, the petition now under this Court’s consideration originated from Civil Case No. 02-105251.

[35][29] Id. at 571-612. Although G.R. No. 183840 involves the same parties, it originated from the RTC Omnibus Order issued on July 30, 2004 denying the petitioners’ first motion to dismiss. The RTC Order issued on March 15, 2007 denying the petitioners’ second motion to dismiss is the origin of the instant petition now under this Court’s consideration.

[36][30] 336 Phil 735, 740 (1997).

[37][31] Citing Tijam, et al. v. Sibonghanoy, et al., 131 Phil 556 (1968), Melendres, Jr. v. COMELEC, 377 Phil 275 (1999), Antiporda v. Garchitorena, 378 Phil 1166, 1174 (1999).

[38][32] Natcher v. Court of Appeals, et al., 418 Phil 669, 677 (2001).

[39][33] Rules of Court, Rule 1, Section 3.

[40][34] Reyes v. Enriquez, G.R. No. 162956, April 10, 2008, 551 SCRA 86, 92.

[41][35] Supra note 8.

[42][36] Supra note 9.

[43][37] G.R. No. 180394, September 29, 2008, 567 SCRA 101, 116, citing Serdoncillo v. Spouses Benolirao, 358 Phil. 83, 94-95 (1998).

[44][38] Rollo, pp. 670-675.

[45][39] Id. at 676-680.

Comment

LEGAL NOTE 0104: WHAT IS WRIT OF AMPARO? WHAT IS WRIT OF HABEAS DATA?

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December 12, 2011

LEGAL NOTE 0104: WHAT IS WRIT OF AMPARO? WHAT IS WRIT OF HABEAS DATA?

SOURCE: IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ.

NORIEL H. RODRIGUEZ VS. GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, AN OFFICER NAMED MATUTINA, LT. COL. MINA, CALOG, GEORGE PALACPAC UNDER THE NAME “HARRY,” ANTONIO CRUZ, ALDWIN “BONG” PASICOLAN AND VINCENT CALLAGAN ( G.R. NO. G.R. NO. 191805, 15 NOVEMBER 2011, SERENO, J.).

POLICE DIR. GEN. JESUS A. VERSOZA, P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M. DE VERA, 1^ST LT. RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA, ANTONIO C. CRUZ, ALDWIN C. PASICOLAN AND VICENTE A. CALLAGAN VS. NORIEL H. RODRIGUEZ (G.R. NO. G.R. NO. 193160) SUBJECTS: WRIT OF AMPARO; WRIT OF HABEAS DATA. (BRIEF TITLE: RODRIGUEZ VS. ARROYO)

==========================

DISPOSITIVE:

WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R. No. 191805 and DENY the Petition for Review in G.R. No. 193160. The Decision of the Court of Appeals is hereby AFFIRMED WITH MODIFICATION.

The case is dismissed with respect to respondents former President Gloria Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino, and P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio Cruz, Aldwin Pasicolan and Vicent Callagan for lack of merit.

This Court directs the Office of the Ombudsman (Ombudsman) and the Department of Justice (DOJ) to take the appropriate action with respect to any possible liability or liabilities, within their respective legal competence, that may have been incurred by respondents Gen. Victor Ibrado, PDG. Jesus Verzosa, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera, 1^st Lt. Ryan Matutina, and Lt. Col. Laurence Mina. The Ombudsman and the DOJ are ordered to submit to this Court the results of their action within a period of six months from receipt of this Decision.

In the event that herein respondents no longer occupy their respective posts, the directives mandated in this Decision and in the Court of Appeals are enforceable against the incumbent officials holding the relevant positions. Failure to comply with the foregoing shall constitute contempt of court.

SO ORDERED.

==========================

SUBJECTS/ DOCTRINES/ DIGEST:

WHY WERE THE WRITS OF AMPARO AND HABEAS DATA PROMULGATED?

TO ENSURE THE PROTECTION OF THE PEOPLE’S RIGHTS TO LIFE, LIBERTY AND SECURITY.^{^[1]}^[57]THE RULES ON THESE WRITS WERE ISSUED IN LIGHT OF THE ALARMING PREVALENCE OF EXTRAJUDICIAL KILLINGS AND ENFORCED DISAPPEARANCES.^{^[2]}^[58]

^{XXXXXXXXXXXXXXXXXXXXXXXXXXXX}

WHEN DID THE WRIT OF AMPARO TOOK EFFECT?

24 OCTOBER 2007

WHEN DID THE WRIT OF HABEAS DATA TOOK EFFECT?

2 FEBRUARY 2008.^{^[3]}^[60]

XXXXXXXXXXXXXXXXXX

WHAT IS THE WRIT OF AMPARO?

THE WRIT OF AMPARO IS AN EXTRAORDINARY AND INDEPENDENT REMEDY THAT PROVIDES RAPID JUDICIAL RELIEF, AS IT PARTAKES OF A SUMMARY PROCEEDING THAT REQUIRES ONLY SUBSTANTIAL EVIDENCE TO MAKE THE APPROPRIATE INTERIM AND PERMANENT RELIEFS AVAILABLE TO THE PETITIONER.^{^[4]}^[61] IT IS NOT AN ACTION TO DETERMINE CRIMINAL GUILT REQUIRING PROOF BEYOND REASONABLE DOUBT, OR LIABILITY FOR DAMAGES REQUIRING PREPONDERANCE OF EVIDENCE, OR ADMINISTRATIVE RESPONSIBILITY REQUIRING SUBSTANTIAL EVIDENCE THAT WILL REQUIRE FULL AND EXHAUSTIVE PROCEEDINGS.^{^[5]}^[62] RATHER, IT SERVES BOTH PREVENTIVE AND CURATIVE ROLES IN ADDRESSING THE PROBLEM OF EXTRAJUDICIAL KILLINGS AND ENFORCED DISAPPEARANCES.^{^[6]}^[63] IT IS PREVENTIVE IN THAT IT BREAKS THE EXPECTATION OF IMPUNITY IN THE COMMISSION OF THESE OFFENSES, AND IT IS CURATIVE IN THAT IT FACILITATES THE SUBSEQUENT PUNISHMENT OF PERPETRATORS BY INEVITABLY LEADING TO SUBSEQUENT INVESTIGATION AND ACTION.^{^[7]}^[64]

XXXXXXXXXXXXXXXXXXXXX

WHAT IS THE WRIT OF HABEAS DATA?

MEANWHILE, THE WRIT OF HABEAS DATA PROVIDES A JUDICIAL REMEDY TO PROTECT A PERSON’S RIGHT TO CONTROL INFORMATION REGARDING ONESELF, PARTICULARLY IN INSTANCES WHERE SUCH INFORMATION IS BEING COLLECTED THROUGH UNLAWFUL MEANS IN ORDER TO ACHIEVE UNLAWFUL ENDS.^{^[8]}^[65] AS AN INDEPENDENT AND SUMMARY REMEDY TO PROTECT THE RIGHT TO PRIVACY – ESPECIALLY THE RIGHT TO INFORMATIONAL PRIVACY^{^[9]}^[66] – THE PROCEEDINGS FOR THE ISSUANCE OF THE WRIT OF HABEAS DATA DOES NOT ENTAIL ANY FINDING OF CRIMINAL, CIVIL OR ADMINISTRATIVE CULPABILITY. IF THE ALLEGATIONS IN THE PETITION ARE PROVEN THROUGH SUBSTANTIAL EVIDENCE, THEN THE COURT MAY (A) GRANT ACCESS TO THE DATABASE OR INFORMATION; (B) ENJOIN THE ACT COMPLAINED OF; OR (C) IN CASE THE DATABASE OR INFORMATION CONTAINS ERRONEOUS DATA OR INFORMATION, ORDER ITS DELETION, DESTRUCTION OR RECTIFICATION.^{^[10]}^[67]

^{XXXXXXXXXXXXXXXXXXXXXXXXXX}

At the outset, it must be emphasized that the writs of amparo and habeas data were promulgated to ensure the protection of the people’s rights to life, liberty and security.^{^[11]}^[57] The rules on these writs were issued in light of the alarming prevalence of extrajudicial killings and enforced disappearances.^{^[12]}^[58] The Rule on the Writ of Amparo took effect on 24 October 2007,^{^[13]}^[59] and the Rule on the Writ of Habeas Data on 2 February 2008.^{^[14]}^[60]

The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner.^{^[15]}^[61] It is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.^{^[16]}^[62] Rather, it serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances.^{^[17]}^[63] It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.^{^[18]}^[64]

Meanwhile, the writ of habeas data provides a judicial remedy to protect a person’s right to control information regarding oneself, particularly in instances where such information is being collected through unlawful means in order to achieve unlawful ends.^{^[19]}^[65] As an independent and summary remedy to protect the right to privacy – especially the right to informational privacy^{^[20]}^[66] – the proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (c) in case the database or information contains erroneous data or information, order its deletion, destruction or rectification.^{^[21]}^[67]

==========================

Republic of the Philippines
Supreme Court
Manila

EN BANC

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ,

NORIEL H. RODRIGUEZ,

Petitioner,

– versus –

GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE PALACPAC under the name “HARRY,” ANTONIO CRUZ, ALDWIN “BONG” PASICOLAN and VINCENT CALLAGAN,

Respondents.

G.R. No. 191805

x – – – – – – – – – – – – – – – – – – – – – – – – -x

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ,

POLICE DIR. GEN. JESUS A. VERSOZA, P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M. DE VERA, 1^ST LT. RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA, ANTONIO C. CRUZ, ALDWIN C. PASICOLAN and VICENTE A. CALLAGAN,

Petitioners,

– versus –

NORIEL H. RODRIGUEZ,

Respondent.

G.R. No. 193160

Present:

CORONA, C.J.,

CARPIO,

VELASCO, JR.,

LEONARDO-DE CASTRO,^*

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,*

ABAD,

VILLARAMA, JR.,

PEREZ,

MENDOZA,

SERENO,

REYES, and

PERLAS-BERNABE, JJ.

Promulgated:

November 15, 2011

x – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – -x

D E C I S I O N

SERENO, J.:

Before this Court are two consolidated cases, namely, (1) Petition for Partial Review on Certiorari dated 20 April 2010 (G.R. No. 191805), and (2) Petition for Review on Certiorari dated 19 August 2010 (G.R. No. 193160).^{^[22]}^[1] Both Petitions assail the 12 April 2010 Decision of the Court of Appeals, the dispositive portion of which reads:

WHEREFORE, the petition for writ of amparo and writ of habeas data is GRANTED.

Respondents Gen. Victor S. Ibrado, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Z. Ochoa, PCSupt. Ameto G. Tolentino, PSSupt. Jude W. Santos, Col. Remigio M. De Vera, Lt. Col. Laurence E. Mina and 1Lt. Ryan S. Matutina, or their replacements in their official posts if they have already vacated the same, are ORDERED to furnish this Court within five (5) days from notice of this decision, official or unofficial reports pertaining to petitioner – covering but not limited to intelligence reports, operation reports and provost marshal reports prior to, during and subsequent to September 6, 2009 – made by the 5^th Infantry Division, Philippine Army, its branches and subsidiaries, including the 17^th Infantry Battalion, Philippine Army.

The above-named respondents are also DIRECTED to refrain from using the said reports in any transaction or operation of the military. Necessarily, the afore-named respondents are ORDERED to expunge from the records of the military all documents having any reference to petitioner.

Likewise, the afore-named respondents, as well as respondents Police Director General Jesus Ame Versoza, Antonio Cruz, Aldwin Pasicolan and Vicente Callagan are DIRECTED to ensure that no further violation of petitioner’s rights to life, liberty and security is committed against the latter or any member of his family.

The petition is DISMISSED with respect to President Gloria Macapagal-Arroyo on account of her presidential immunity from suit. Similarly, the petition is DISMISSED with respect to respondents Calog and George Palacpac or Harry for lack of merit.

Petitioner’s prayer for issuance of a temporary protection order and inspection order is DENIED.

Noriel Rodriguez (Rodriguez) is petitioner in G.R. No. 191805 and respondent in G.R. No. 193160. He is a member of Alyansa Dagiti Mannalon Iti Cagayan (Kagimungan), a peasant organization affiliated with Kilusang Magbubukid ng Pilipinas (KMP).

On the other hand, Gloria Macapagal-Arroyo (former President Arroyo), Police Director General (PDG.) Jesus A. Verzosa, Police Senior Superintendent (P/SSupt.) Jude W. Santos, Brigadier General (Brig. Gen.) Remegio M. De Vera, First Lieutenant (1^st Lt.) Ryan S. Matutina, Lieutenant Colonel (Lt. Col.) Laurence E. Mina, Antonio C. Cruz (Cruz), Aldwin C. Pasicolan (Pasicolan) and Vicente A. Callagan (Callagan) are respondents in G.R. No. 191805 and petitioners in G.R. No. 193160. At the time the events relevant to the present Petitions occurred, former President Arroyo was the President of the Philippines. PDG. Verzosa, P/SSupt. Santos, Brig. Gen. De Vera, 1^st Lt. Matutina and Lt. Col. Mina were officers of the Philippine National Police (PNP). Cruz, Pasicolan and Callagan were Special Investigators of the Commission on Human Rights (CHR) in Region II.

Antecedent Facts

Rodriguez claims that the military tagged KMP as an enemy of the State under the Oplan Bantay Laya, making its members targets of extrajudicial killings and enforced disappearances.^{^[23]}^[2]

On 6 September 2009, at 5:00 p.m., Rodriguez had just reached Barangay Tapel, Cagayan onboard a tricycle driven by Hermie Antonio Carlos (Carlos), when four men forcibly took him and forced him into a car. Inside the vehicle were several men in civilian clothes, one of whom was holding a .45 caliber pistol. Subsequently, three more persons arrived, and one of them carried a gun at his side. Two men boarded the car, while the others rode on the tricycle.^{^[24]}^[3]

The men tied the hands of Rodriguez, ordered him to lie on his stomach, sat on his back and started punching him. The car travelled towards the direction of Sta. Teresita-Mission and moved around the area until about 2:00 a.m. During the drive, the men forced Rodriguez to confess to being a member of the New People’s Army (NPA), but he remained silent. The car then entered a place that appeared to be a military camp. There were soldiers all over the area, and there was a banner with the word “Bravo” written on it. Rodriguez later on learned that the camp belonged to the 17^th Infantry Battalion of the Philippine Army.^{^[25]}^[4]

Rodriguez was brought to a canteen, where six men confronted him, ordering him to confess to his membership in the NPA. Due to his exhaustion, he unintentionally fell asleep. As a result, the men hit him on the head to wake him up. After the interrogation, two of the men guarded him, but did not allow him to sleep.^{^[26]}^[5]

In the morning of 7 September 2009, the men tied the hands of Rodriguez, blindfolded him and made him board a vehicle. While they were in transit, the soldiers repeatedly hit him in the head and threatened to kill him. When the car stopped after about ten minutes, the soldiers brought him to a room, removed his blindfold, and forced him to confess to being a member of the NPA. During the interrogation, the soldiers repeatedly hit him on the head. Thereafter, he was detained inside the room for the entire day. The soldiers tied his stomach to a papag, and gave him rice and viand. Fearing that the food might be poisoned, he refused to eat anything. He slept on the papag while being tied to it at the waist.^{^[27]}^[6]

On 8 September 2009, the men forced Rodriguez into a vehicle, which brought them to Bugey and Mission. While passing houses along the way, the men asked him if his contacts lived in those houses. When he failed to answer, a soldier pointed a gun to his head and threatened to kill him and his family. Because he remained silent, the soldiers beat him and tied him up. The vehicle returned to the military camp at past 1:00 p.m., where he was again subjected to tactical interrogation about the location of an NPA camp and his alleged NPA comrades. He suffered incessant mauling every time he failed to answer.^{^[28]}^[7]

At dawn on 9 September 2009, soldiers armed with rifles took Rodriguez and made him their guide on their way to an NPA camp in Birao. Accompanying them was a man named Harry, who, according to the soldiers, was an NPA member who had surrendered to the military. Harry pointed to Rodriguez and called him a member of the NPA. He also heard Harry tell the soldiers that the latter knew the area well and was acquainted with a man named Elvis. The soldiers loaded Rodriguez into a military truck and drove to Tabbak, Bugey. While he was walking with the soldiers, he noticed a soldier with the name tag “Matutina,” who appeared to be an official because the other soldiers addressed him as “sir.”^{^[29]}^[8]

Upon reaching Birao on foot, the soldiers looked for and was able to locate a certain Elvis and told him that Rodriguez had identified his whereabouts location. The soldiers forced Rodriguez to convince Elvis to disclose the location of the NPA camp. They brought the two to the mountains, where both were threatened with death. When the soldiers punched Elvis, Rodriguez told them that he would reveal the location of the NPA camp if they let Elvis go home. They finally released Elvis around 3:00 p.m. that day. The soldiers and Rodriguez spent the next three nights in the mountains.^{^[30]}^[9]

On 12 September 2009, the soldiers again hit Rodriguez and forced him to identify the location of the NPA camp. He was blindfolded and warned to get ready because they would beat him up again in the military camp. Upon arrival therein, they brought him to the same room where he had first been detained, and two soldiers mauled him again. They repeatedly punched and kicked him. In the afternoon, they let him rest and gave him an Alaxan tablet. Thereafter, he fell asleep due to over-fatigue and extreme body pain. The soldiers, however, hit him again. After giving him a pen and a piece of paper, they ordered him to write down his request for rice from the people. When he refused, the soldiers maltreated him once more.^{^[31]}^[10]

On 13 September 2009, the soldiers forced Rodriguez to sign documents declaring that he had surrendered in an encounter in Cumao, and that the soldiers did not shoot him because he became a military asset in May. When he refused to sign the document, he received another beating. Thus, he was compelled to sign, but did so using a different signature to show that he was merely coerced.^{^[32]}^[11]

The soldiers showed Rodriguez photographs of different persons and asked him if he knew the men appearing therein. When he told them that he did not recognize the individuals on the photos, the soldiers instructed him to write down the name of his school and organization, but he declined. The soldiers then wrote something on the paper, making it appear that he was the one who had written it, and forced him to sign the document. The soldiers took photographs of him while he was signing. Afterwards, the soldiers forced him down, held his hands, and sat on his feet. He did not only receive another beating, but was also electrocuted. The torture lasted for about an hour.^{^[33]}^[12]

At 11:00 p.m. on 15 September 2009, the soldiers brought Rodriguez to a military operation in the mountains, where he saw Matutina again. They all spent the night there.^{^[34]}^[13]

In the morning of 16 September 2009, the soldiers and Rodriguez started their descent. When they stopped, the soldiers took his photograph and asked him to name the location of the NPA camp. Thereafter, they all returned to the military camp. The soldiers asked him to take a bath and wear a white polo shirt handed to him. He was then brought to the EnrileMedicalCenter, where Dr. Juliet Ramil (Dr. Ramil) examined him.^{^[35]}^[14] When the doctor asked him why he had bruises and contusions, he lied and told her that he sustained them when he slipped, as he noticed a soldier observing him. Dr. Ramil’s medical certificate indicated that he suffered from four hematomas in the epigastric area, chest and sternum.^{^[36]}^[15]

Back at the camp, the soldiers let Rodriguez eat with several military officials and took pictures of him while he was eating with them. They also asked him to point to a map in front of him and again took his photograph. Later, they told him that he would finally see his mother. ^{^[37]}^[16]

Rodriguez was brought to another military camp, where he was ordered to sign a piece of paper stating that he was a surrenderee and was never beaten up. Scared and desperate to end his ordeal, he signed the paper and was warned not to report anything to the media.^{^[38]}^[17]

Around 6:00 a.m. on 17 September 2009, the soldiers instructed petitioner to take a bath. They gave him a pair of jeans and perfume. While he was having breakfast, the two soldiers guarding him repeatedly reminded him not to disclose to the media his experience in the camp and to say instead that he had surrendered to the military.^{^[39]}^[18]

At 9:00 a.m. on the same day, the mother and the brother of Rodriguez arrived surrounded by several men. His mother, Wilma Rodriguez (Wilma), talked to Lt. Col. Mina. Rodriguez heard one of the soldiers tell Wilma that he had surrendered to the military and had long been its asset. His brother, Rodel Rodriguez (Rodel), informed him that the men accompanying them were from the CHR, namely, Pasicolan, Cruz and Callagan. Upon seeing Rodriguez, Cruz instructed him to lift up his shirt, and one of the CHR employees took photographs of his bruises.^{^[40]}^[19]

A soldier tried to convince Wilma to let Rodriguez stay in the camp for another two weeks to supposedly prevent the NPA from taking revenge on him. Respondent Calog also approached Rodriguez and Rodel and asked them to become military assets. Rodel refused and insisted that they take Rodriguez home to Manila. Again, the soldiers reminded them to refrain from facing the media. The soldiers also told them that the latter will be taken to the TuguegaraoAirportand guarded until they reached home.^{^[41]}^[20]

Rodriguez and his family missed their flight. Subsequently, the soldiers accompanied them to the CHR office, where Rodriguez was made to sign an affidavit stating that he was neither abducted nor tortured. Afraid and desperate to return home, he was forced to sign the document. Cruz advised him not to file a case against his abductors because they had already freed him. The CHR personnel then led him and his family to the CHR Toyota Tamaraw FX service vehicle. He noticed that a vehicle with soldiers on board followed them.^{^[42]}^[21]

The Tamaraw FX pulled over and respondent 1^st Lt. Matutina boarded the vehicle. Upon reaching a mall in Isabela, Rodriguez, his family, Callagan, 1^st Lt. Matutina and two other soldiers transferred to an orange Toyota Revo with plate number WTG 579. Upon reaching the boundary of Nueva Ecija and Nueva Viscaya, 1^st Lt. Matutina alighted and called Rodriguez to a diner. A certain Alan approached Rodriguez and handed him a cellphone with a SIM card. The latter and his family then left and resumed their journey back home.^{^[43]}^[22]

Rodriguez reached his house in Sta. Ana, Manilaat 3:00 a.m. on 18 September 2010. Callagan and two soldiers went inside the house, and took photographs and a video footage thereof. The soldiers explained that the photos and videos would serve as evidence of the fact that Rodriguez and his family were able to arrive home safely. Despite Rodriguez’s efforts to confront the soldiers about their acts, they still continued and only left thirty minutes later.^{^[44]}^[23]

On 19 September 2009, Dr. Reginaldo Pamugas, a physician trained by the International Committee on Torture and Rehabilitation, examined Rodriguez and issued a Medical Certificate stating that the latter had been a victim of torture.^{^[45]}^[24]

Around 7:00 a.m. on 3 November 2010, Rodriguez and his girlfriend, Aileen Hazel Robles, noticed that several suspicious-looking men followed them at the Metro Rail Transit (MRT), in the streets and on a jeepney.^{^[46]}^[25]

On 7 December 2009, Rodriguez filed before this Court a Petition for the Writ of Amparo and Petition for the Writ of Habeas Data with Prayers for Protection Orders, Inspection of Place, and Production of Documents and Personal Properties dated 2 December 2009.^{^[47]}^[26] The petition was filed against former President Arroyo, Gen. Ibrado, PDG. Versoza, Lt. Gen. Bangit, Major General (Maj. Gen.) Nestor Z. Ochoa, P/CSupt. Tolentino, P/SSupt. Santos, Col. De Vera, 1^st Lt. Matutina, Calog, George Palacpac (Palacpac), Cruz, Pasicolan and Callagan. The petition prayed for the following reliefs:

The issuance of the writ of amparo ordering respondents to desist from violating Rodriguez’s right to life, liberty and security.
The issuance of an order to enjoin respondents from doing harm to or approaching Rodriguez, his family and his witnesses.
Allowing the inspection of the detention areas of the Headquarters of Bravo Co., 5^th Infantry Division, Maguing, Gonzaga, Cagayan and another place near where Rodriguez was brought.
Ordering respondents to produce documents submitted to them regarding any report on Rodriguez, including operation reports and provost marshallreports of the 5^th Infantry Division, the Special Operations Group of the Armed Forces of the Philippines (AFP), prior to, on and subsequent to 6 September 2009.
Ordering records pertinent or in any way connected to Rodriguez, which are in the custody of respondents, to be expunged, disabused, and forever barred from being used.^{^[48]}^[27]

On 15 December 2009, we granted the respective writs after finding that the petition sufficiently alleged that Rodriguez had been abducted, tortured and later released by members of the 17^th Infantry Battalion of the Philippine Army.^{^[49]}^[28] We likewise ordered respondents therein to file a verified return on the writs on or before 22 December 2009 and to comment on the petition on or before 4 January 2010.^{^[50]}^[29] Finally, we directed the Court of Appeals to hear the petition on 4 January 2010 and decide on the case within 10 days after its submission for decision.^{^[51]}^[30]

During the initial hearing on 4 January 2010, the Court of Appeals required the parties to submit affidavits and other pieces of evidence at the next scheduled hearing on 27 January 2010.^{^[52]}^[31]

On 8 January 2010, respondents therein, through the Office of the Solicitor General (OSG), filed their Return of the Writ, which was likewise considered as their comment on the petition.^{^[53]}^[32] In their Return, respondents therein alleged that Rodriguez had surrendered to the military on 28 May 2009 after he had been put under surveillance and identified as “Ka Pepito” by former rebels.^{^[54]}^[33] According to his military handlers, Corporal (Cpl.) Rodel B. Cabaccan and Cpl. Julius P. Navarro, Rodriguez was a former member of the NPA operating in Cagayan Valley.^{^[55]}^[34] Wanting to bolt from the NPA, he told Cpl. Cabaccan and Cpl. Navarro that he would help the military in exchange for his protection.^{^[56]}^[35]

Upon his voluntary surrender on 28 May 2009, Rodriguez was made to sign an Oath of Loyalty and an Agent’s Agreement/Contract, showing his willingness to return to society and become a military asset.^{^[57]}^[36] Since then, he acted as a double agent, returning to the NPA to gather information.^{^[58]}^[37] However, he feared that his NPA comrades were beginning to suspect him of being an infiltrator.^{^[59]}^[38] Thus, with his knowledge and consent, the soldiers planned to stage a sham abduction to erase any suspicion about him being a double agent.^{^[60]}^[39] Hence, the abduction subject of the instant petition was conducted.^{^[61]}^[40]

Meanwhile, Cruz, Pasicolan and Callagan filed a Consolidated Return of the Writ dated 15 January 2010,^{^[62]}^[41] alleging that they had exercised extraordinary diligence in locating Rodriguez, facilitating his safe turnover to his family and securing their journey back home to Manila. More specifically, they alleged that, on 16 September 2009, after Wilma sought their assistance in ascertaining the whereabouts of her son, Cruz made phone calls to the military and law enforcement agencies to determine his location.^{^[63]}^[42] Cruz was able to speak with Lt. Col. Mina, who confirmed that Rodriguez was in their custody.^{^[64]}^[43] This information was transmitted to CHR Regional Director Atty. Jimmy P. Baliga. He, in turn, ordered Cruz, Pasicolan and Callagan to accompany Wilma to the 17^th Infantry Division.^{^[65]}^[44]

When the CHR officers, along with Wilma and Rodel, arrived at the 17^th Infantry Battalion at Masin, Alcala, Cagayan, Brigade Commander Col. de Vera and Battalion Commander Lt. Col. Mina alleged that Rodriguez had become one of their assets, as evidenced by the Summary on the Surrender of Noriel Rodriguez and the latter’s Contract as Agent.^{^[66]}^[45] The CHR officers observed his casual and cordial demeanor with the soldiers.^{^[67]}^[46] In any case, Cruz asked him to raise his shirt to see if he had been subjected to any maltreatment. Cruz and Pasicolan did not see any traces of torture. Thereafter, Rodriguez was released to his family, and they were made to sign a certification to this effect. During the signing of the document, herein CHR officers did not witness any threat, intimidation or force employed against Rodriguez or his family.^{^[68]}^[47]

During their journey back to the home of Rodriguez, the CHR officers observed that he was very much at ease with his military escorts, especially with 1^st Lt. Matutina.^{^[69]}^[48] Neither was there any force or intimidation when the soldiers took pictures of his house, as the taking of photographs was performed with Wilma’s consent.^{^[70]}^[49]

During the hearing on 27 January 2010, the parties agreed to file additional affidavits and position papers and to have the case considered submitted for decision after the filing of these pleadings.^{^[71]}^[50]

On 12 April 2010, the Court of Appeals rendered its assailed Decision.^{^[72]}^[51] Subsequently, on 28 April 2010, respondents therein filed their Motion for Reconsideration.^{^[73]}^[52] Before the Court of Appeals could resolve this Motion for Reconsideration, Rodriguez filed the instant Petition for Partial Review on Certiorari (G.R. No. 191805), raising the following assignment of errors:

The Court of Appeals erred in not granting the Interim Relief for temporary protection order.

The Court of Appeals erred in saying: “(H)owever, given the nature of the writ of amparo, which has the effect of enjoining the commission by respondents of violation to petitioner’s right to life, liberty and security, the safety of petitioner is ensured with the issuance of the writ, even in the absence of an order preventing respondent from approaching petitioner.”

The Court of Appeals erred in not finding that respondent Gloria Macapagal Arroyo had command responsibility.^{^[74]}^[53]

On the other hand, respondents therein, in their Comment dated 30 July 2010, averred:

The Court of Appeals properly dropped then President Gloria Macapagal Arroyo as a party-respondent, as she may not be sued in any case during her tenure of office or actual incumbency.

Petitioner had not presented any adequate and competent evidence, much less substantial evidence, to establish his claim that public respondents had violated, were violating or threatening to violate his rights to life, liberty and security, as well as his right to privacy. Hence, he was not entitled to the privilege of the writs of amparo and habeas data or to the corresponding interim reliefs (i.e. inspection order, production order and temporary protection order) provided under the rule on the writ of amparo and the rule on the writ of habeas data.^{^[75]}^[54]

On 19 August 2010, PDG. Verzosa, P/SSupt. Santos, BGen. De Vera, 1^st Lt. Matutina, Lt. Col. Mina, Cruz, Pasicolan and Callagan filed a Petition for Review on Certiorari, seeking the reversal of the 12 April 2010 Decision of the Court of Appeals.^{^[76]}^[55] They alleged that Rodriguez –

Has not presented any adequate and competent evidence, must less substantial evidence, to establish his claim that petitioners have violated, are violating or threatening with violation his rights to life, liberty and security, as well as his right to privacy; hence, he is not entitled to the privilege of the writs of amparo and habeas data and their corresponding interim reliefs (i.e., inspection order, production order and temporary protection order) provided under the Rule on the Writ of Amparo and the Rule on the Writ of Habeas Data.^{^[77]}^[56]

In ascertaining whether the Court of Appeals committed reversible error in issuing its assailed Decision and Resolution, the following issues must be resolved:

Whether the interim reliefs prayed for by Rodriguez may be granted after the writs of amparo and habeas data have already been issued in his favor.
Whether former President Arroyo should be dropped as a respondent on the basis of the presidential immunity from suit.
Whether the doctrine of command responsibility can be used in amparo and habeas data cases.
Whether the rights to life, liberty and property of Rodriguez were violated or threatened by respondents in G.R. No. 191805.

At the outset, it must be emphasized that the writs of amparo and habeas data were promulgated to ensure the protection of the people’s rights to life, liberty and security.^{^[78]}^[57] The rules on these writs were issued in light of the alarming prevalence of extrajudicial killings and enforced disappearances.^{^[79]}^[58] The Rule on the Writ of Amparo took effect on 24 October 2007,^{^[80]}^[59] and the Rule on the Writ of Habeas Data on 2 February 2008.^{^[81]}^[60]

The writ of amparo is an extraordinary and independent remedy that provides rapid judicial relief, as it partakes of a summary proceeding that requires only substantial evidence to make the appropriate interim and permanent reliefs available to the petitioner.^{^[82]}^[61] It is not an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.^{^[83]}^[62] Rather, it serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances.^{^[84]}^[63] It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.^{^[85]}^[64]

Meanwhile, the writ of habeas data provides a judicial remedy to protect a person’s right to control information regarding oneself, particularly in instances where such information is being collected through unlawful means in order to achieve unlawful ends.^{^[86]}^[65] As an independent and summary remedy to protect the right to privacy – especially the right to informational privacy^{^[87]}^[66] – the proceedings for the issuance of the writ of habeas data does not entail any finding of criminal, civil or administrative culpability. If the allegations in the petition are proven through substantial evidence, then the Court may (a) grant access to the database or information; (b) enjoin the act complained of; or (c) in case the database or information contains erroneous data or information, order its deletion, destruction or rectification.^{^[88]}^[67]

First issue: Grant of interim reliefs

In the petition in G.R. No. 191805, Rodriguez prays for the issuance of a temporary protection order. It must be underscored that this interim relief is only available before final judgment. Section 14 of the Rule on the Writ of Amparo clearly provides:

Interim Reliefs. – Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs:

Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved.

The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue.

The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge.

(a) Inspection Order. – The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons.

(b) Production Order. – The court, justice, or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.

(c) Witness Protection Order. – The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.

The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. (Emphasis supplied)

We held in Yano v. Sanchez^{^[89]}^[68] that “[t]hese provisional reliefs are intended to assist the court before it arrives at a judicious determination of the amparo petition.” Being interim reliefs, they can only be granted before a final adjudication of the case is made. In any case, it must be underscored that the privilege of the writ of amparo, once granted, necessarily entails the protection of the aggrieved party. Thus, since we grant petitioner the privilege of the writ of amparo, there is no need to issue a temporary protection order independently of the former. The order restricting respondents from going near Rodriguez is subsumed under the privilege of the writ.

Second issue: Presidential immunity from suit

It bears stressing that since there is no determination of administrative, civil or criminal liability in amparo and habeas data proceedings, courts can only go as far as ascertaining responsibility or accountability for the enforced disappearance or extrajudicial killing. As we held in Razon v. Tagitis:^{^[90]}^[69]

It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance. Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, on the other hand, refers to the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty and security are restored.^{^[91]}^[70] (Emphasis supplied.)

Thus, in the case at bar, the Court of Appeals, in its Decision^{^[92]}^[71] found respondents in G.R. No. 191805 – with the exception of Calog, Palacpac or Harry – to be accountable for the violations of Rodriguez’s right to life, liberty and security committed by the 17^th Infantry Battalion, 5^th Infantry Division of the Philippine Army.^{^[93]}^[72] The Court of Appeals dismissed the petition with respect to former President Arroyo on account of her presidential immunity from suit. Rodriguez contends, though, that she should remain a respondent in this case to enable the courts to determine whether she is responsible or accountable therefor. In this regard, it must be clarified that the Court of Appeals’ rationale for dropping her from the list of respondents no longer stands since her presidential immunity is limited only to her incumbency.

In Estrada v. Desierto,^{^[94]}^[73] we clarified the doctrine that a non-sitting President does not enjoy immunity from suit, even for acts committed during the latter’s tenure. We emphasize our ruling therein that courts should look with disfavor upon the presidential privilege of immunity, especially when it impedes the search for truth or impairs the vindication of a right, to wit:

We reject [Estrada’s] argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 “Recognizing that the Impeachment Courtis Functus Officio.” Since the Impeachment Courtis now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz:

“xxx xxx xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgment of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts.”

This is in accord with our ruling in In Re: Saturnino Bermudez that “incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure” but not beyond. xxx

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser.

Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. Nixon, US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixon’s associates were facing charges of conspiracy to obstruct justice and other offenses which were committed in a burglary of the Democratic National Headquarters in Washington’s Watergate Hotel during the 1972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that “when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court further held that the immunity of the President from civil damages covers only “official acts.” Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones where it held that the US President’s immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.^{^[95]}^[74] (Emphasis supplied)

Further, in our Resolution in Estrada v. Desierto,^{^[96]}^[75] we reiterated that the presidential immunity from suit exists only in concurrence with the president’s incumbency:

Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His arguments are merely recycled and we need not prolong the longevity of the debate on the subject. In our Decision, we exhaustively traced the origin of executive immunity in our jurisdiction and its bends and turns up to the present time. We held that given the intent of the 1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner, as a non-sitting President, cannot claim executive immunity for his alleged criminal acts committed while a sitting President. Petitioner’s rehashed arguments including their thinly disguised new spins are based on the rejected contention that he is still President, albeit, a President on leave. His stance that his immunity covers his entire term of office or until June 30, 2004 disregards the reality that he has relinquished the presidency and there is now a new de jure President.

Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from suit during his term of office. He buttresses his position with the deliberations of the Constitutional Commission, viz:

“Mr. Suarez. Thank you.

The last question is with reference to the Committee’s omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the president shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas:

The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit.

Mr. Suarez:

So there is no need to express it here.

Fr. Bernas:

There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things.

Mr. Suarez:

On the understanding, I will not press for any more query, madam President.

I thank the Commissioner for the clarification.”

Petitioner, however, fails to distinguish between term and tenure. The term means the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds office. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. From the deliberations, the intent of the framers is clear that the immunity of the president from suit is concurrent only with his tenure and not his term.^{^[97]}^[76] (Emphasis supplied)

Applying the foregoing rationale to the case at bar, it is clear that former President Arroyo cannot use the presidential immunity from suit to shield herself from judicial scrutiny that would assess whether, within the context of amparo proceedings, she was responsible or accountable for the abduction of Rodriguez.

Third issue: Command responsibility in amparo proceedings

To attribute responsibility or accountability to former President Arroyo, Rodriguez contends that the doctrine of command responsibility may be applied. As we explained in Rubrico v. Arroyo,^{^[98]}^[77] command responsibility pertains to the “responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict.”^{^[99]}^[78] Although originally used for ascertaining criminal complicity, the command responsibility doctrine has also found application in civil cases for human rights abuses.^{^[100]}^[79] In the United States, for example, command responsibility was used in Ford v. Garcia and Romagoza v. Garcia – civil actions filed under the Alien Tort Claims Act and the Torture Victim Protection Act.^{^[101]}^[80] This development in the use of command responsibility in civil proceedings shows that the application of this doctrine has been liberally extended even to cases not criminal in nature. Thus, it is our view that command responsibility may likewise find application in proceedings seeking the privilege of the writ of amparo. As we held in Rubrico:

It may plausibly be contended that command responsibility, as legal basis to hold military/police commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of international law or customary international law in accordance with the incorporation clause of the Constitution.

… … …

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative issuances, if there be any.^{^[102]}^[81] (Emphasis supplied.)

Precisely in the case at bar, the doctrine of command responsibility may be used to determine whether respondents are accountable for and have the duty to address the abduction of Rodriguez in order to enable the courts to devise remedial measures to protect his rights. Clearly, nothing precludes this Court from applying the doctrine of command responsibility in amparo proceedings to ascertain responsibility and accountability in extrajudicial killings and enforced disappearances. In this regard, the Separate Opinion of Justice Conchita Carpio-Morales in Rubrico is worth noting, thus:

That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or administrative liability should not abate the applicability of the doctrine of command responsibility. Taking Secretary of National Defense v. Manaloand Razon v. Tagitis in proper context, they do not preclude the application of the doctrine of command responsibility to Amparo cases.

Manalo was actually emphatic on the importance of the right to security of person and its contemporary signification as a guarantee of protection of one’s rights by the government. It further stated that protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances, or threats thereof, and/or their families, and bringing offenders to the bar of justice.

Tagitis, on the other hand, cannot be more categorical on the application, at least in principle, of the doctrine of command responsibility:

Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extraordinary diligence that the Amparo Rule requires. We hold these organizations accountable through their incumbent Chiefs who, under this Decision, shall carry the personal responsibility of seeing to it that extraordinary diligence, in the manner the Amparo Rule requires, is applied in addressing the enforced disappearance of Tagitis.

Neither does Republic Act No. 9851 emasculate the applicability of the command responsibility doctrine to Amparo cases. The short title of the law is the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.” Obviously, it should, as it did, only treat of superior responsibility as a ground for criminal responsibility for the crimes covered. Such limited treatment, however, is merely in keeping with the statute’s purpose and not intended to rule out the application of the doctrine of command responsibility to other appropriate cases.

Indeed, one can imagine the innumerable dangers of insulating high-ranking military and police officers from the coverage of reliefs available under the Rule on the Writ of Amparo. The explicit adoption of the doctrine of command responsibility in the present case will only bring Manalo and Tagitis to their logical conclusion.

In fine, I submit that the Court should take this opportunity to state what the law ought to be if it truly wants to make the Writ of Amparo an effective remedy for victims of extralegal killings and enforced disappearances or threats thereof. While there is a genuine dearth of evidence to hold respondents Gen. Hermogenes Esperon and P/Dir. Gen. Avelino Razon accountable under the command responsibility doctrine, the ponencia’s hesitant application of the doctrine itself is replete with implications abhorrent to the rationale behind the Rule on the Writ of Amparo.^{^[103]}^[82] (Emphasis supplied.)

This Separate Opinion was reiterated in the recently decided case of Boac v. Cadapan,^{^[104]}^[83] likewise penned by Justice Carpio-Morales, wherein this Court ruled:

Rubrico categorically denies the application of command responsibility in amparo cases to determine criminal liability. The Court maintains its adherence to this pronouncement as far as amparo cases are concerned.

Rubrico, however, recognizes a preliminary yet limited application of command responsibility in amparo cases to instances of determining the responsible or accountable individuals or entities that are duty-bound to abate any transgression on the life, liberty or security of the aggrieved party.

In other words, command responsibility may be loosely applied in amparo cases in order to identify those accountable individuals that have the power to effectively implement whatever processes an amparo court would issue. In such application, the amparo court does not impute criminal responsibility but merely pinpoint the superiors it considers to be in the best position to protect the rights of the aggrieved party.

Such identification of the responsible and accountable superiors may well be a preliminary determination of criminal liability which, of course, is still subject to further investigation by the appropriate government agency. (Emphasis supplied.)

As earlier pointed out, amparo proceedings determine (a) responsibility, or the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, and (b) accountability, or the measure of remedies that should be addressed to those (i) who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or (ii) who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or (iii) those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. Thus, although there is no determination of criminal, civil or administrative liabilities, the doctrine of command responsibility may nevertheless be applied to ascertain responsibility and accountability within these foregoing definitions.

a. Command responsibility of the President

Having established the applicability of the doctrine of command responsibility in amparo proceedings, it must now be resolved whether the president, as commander-in-chief of the military, can be held responsible or accountable for extrajudicial killings and enforced disappearances. We rule in the affirmative.

To hold someone liable under the doctrine of command responsibility, the following elements must obtain:

the existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate;
the superior knew or had reason to know that the crime was about to be or had been committed; and
the superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators thereof.^{^[105]}^[84]

The president, being the commander-in-chief of all armed forces,^{^[106]}^[85] necessarily possesses control over the military that qualifies him as a
superior within the purview of the command responsibility doctrine.^{^[107]}^[86]

On the issue of knowledge, it must be pointed out that although international tribunals apply a strict standard of knowledge, i.e., actual knowledge, such may nonetheless be established through circumstantial evidence.^{^[108]}^[87] In the Philippines, a more liberal view is adopted and superiors may be charged with constructive knowledge. This view is buttressed by the enactment of Executive Order No. 226, otherwise known as the Institutionalization of the Doctrine of ‘Command Responsibility’ in all Government Offices, particularly at all Levels of Command in the Philippine National Police and other Law Enforcement Agencies (E.O. 226).^{^[109]}^[88] Under E.O. 226, a government official may be held liable for neglect of duty under the doctrine of command responsibility if he has knowledge that a crime or offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before, during, or immediately after its commission.^{^[110]}^[89] Knowledge of the commission of irregularities, crimes or offenses is presumed when (a) the acts are widespread within the government official’s area of jurisdiction; (b) the acts have been repeatedly or regularly committed within his area of responsibility; or (c) members of his immediate staff or office personnel are involved.^{^[111]}^[90]

Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief of the armed forces, the president has the power to effectively command, control and discipline the military.^{^[112]}^[91]

b. Responsibility or accountability of former President Arroyo

The next question that must be tackled is whether Rodriguez has proven through substantial evidence that former President Arroyo is responsible or accountable for his abduction. We rule in the negative.

Rodriguez anchors his argument on a general allegation that on the basis of the “Melo Commission” and the “Alston Report,” respondents in G.R. No. 191805 already had knowledge of and information on, and should have known that a climate of enforced disappearances had been perpetrated on members of the NPA.^{^[113]}^[92] Without even attaching, or at the very least, quoting these reports, Rodriguez contends that the Melo Report points to rogue military men as the perpetrators. While the Alston Report states that there is a policy allowing enforced disappearances and pins the blame on the President, we do not automatically impute responsibility to former President Arroyo for each and every count of forcible disappearance.^{^[114]}^[93] Aside from Rodriguez’s general averments, there is no piece of evidence that could establish her responsibility or accountability for his abduction. Neither was there even a clear attempt to show that she should have known about the violation of his right to life, liberty or security, or that she had failed to investigate, punish or prevent it.

Fourth issue: Responsibility or accountability of respondents in G.R. No. 191805

The doctrine of totality of evidence in amparo cases was first laid down in this Court’s ruling in Razon,^{^[115]}^[94] to wit:

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.^{^[116]}^[95] (Emphasis supplied.)

In the case at bar, we find no reason to depart from the factual findings of the Court of Appeals, the same being supported by substantial evidence. A careful examination of the records of this case reveals that the totality of the evidence adduced by Rodriguez indubitably prove the responsibility and accountability of some respondents in G.R. No. 191805 for violating his right to life, liberty and security.

a. The totality of evidence proved by substantial evidence the responsibility or accountability of respondents for the violation of or threat to Rodriguez’s right to life, liberty and security.

After a careful examination of the records of these cases, we are convinced that the Court of Appeals correctly found sufficient evidence proving that the soldiers of the 17^th Infantry Battalion, 5^th Infantry Division of the military abducted Rodriguez on 6 September 2009, and detained and tortured him until 17 September 2009.

Rodriguez’s Sinumpaang Salaysay dated 4 December 2009 was a meticulous and straightforward account of his horrific ordeal with the military, detailing the manner in which he was captured and maltreated on account of his suspected membership in the NPA.^{^[117]}^[96] His narration of his suffering included an exhaustive description of his physical surroundings, personal circumstances and perceived observations. He likewise positively identified respondents 1^st Lt. Matutina and Lt. Col. Mina to be present during his abduction, detention and torture,^{^[118]}^[97] and respondents Cruz, Pasicolan and Callagan as the CHR representatives who appeared during his release.^{^[119]}^[98]

More particularly, the fact of Rodriguez’s abduction was corroborated by Carlos in his Sinumpaang Salaysay dated 16 September 2009,^{^[120]}^[99] wherein he recounted in detail the circumstances surrounding the victim’s capture.

As regards the allegation of torture, the respective Certifications of Dr. Ramil and Dr. Pamugas validate the physical maltreatment Rodriguez suffered in the hands of the soldiers of the 17^th Infantry Battalion, 5^th Infantry Division. According to the Certification dated 12 October 2009 executed by Dr. Ramil,^{^[121]}^[100] she examined Rodriguez in theAlfonsoPonceEnrileMemorialDistrictHospital on 16 September 2009 and arrived at the following findings:

FACE

– 10cm healed scar face right side

– 2cm healed scar right eyebrow (lateral area)

– 2cm healed scar right eye brow (median area)

– 4cm x 2cm hematoma anterior chest at the sternal area right side

– 3cm x 2cm hematoma sternal area left side

– 6cm x 1cm hematoma from epigastric area to ant. chest left side

– 6cm x 1cm hematoma from epigastric area to ant. chest right side

– Multiple healed rashes (brownish discoloration) both forearm

– Multiple healed rashes (brownish discoloration)

– both leg arm

– hip area/lumbar area^{^[122]}^[101]

Dr. Pamugas performed a separate medical examination of Rodriguez on 19 September 2009, the results of which confirmed that the injuries suffered by the latter were inflicted through torture. Dr. Pamugas thus issued a Medical Report dated 23 September 2009,^{^[123]}^[102] explicitly stating that Rodriguez had been tortured during his detention by the military, to wit:

X. Interpretation of Findings

The above physical and psychological findings sustained by the subject are related to the torture and ill-treatment done to him. The multiple circular brown to dark brown spots found on both legs and arms were due to the insect bites that he sustained when he was forced to join twice in the military operations. The abrasions could also be due to the conditions related during military operations. The multiple pin-point blood spots found on his left ear is a result of an unknown object placed inside his left ear. The areas of tenderness he felt during the physical examination were due to the overwhelming punching and kicking on his body. The occasional difficulty of sleeping is a symptom experience (sic) by the subject as a result of the psychological trauma he encountered during his detention.

XI. Conclusions and Recommendations

The physical injuries and psychological trauma suffered by the subject are secondary to the torture and ill-treatment done to him while in detention for about 11 days. The physical injuries sustained by the subject, of which the age is compatible with the alleged date of infliction (sic).^{^[124]}^[103] (Emphasis supplied.)

In assessing the weight of the Certifications, the Court of Appeals correctly relied on the medical finding that the injuries suffered by Rodriguez matched his account of the maltreatment inflicted on him by the soldiers of the 17^th Infantry Battalion, 5^th Infantry Division of the Philippine Army. Further, the kind of injuries he sustained showed that he could not have sustained them from merely falling, thus making respondents’ claim highly implausible.

Despite these medical findings that overwhelmingly supported and lent credibility to the allegations of Rodriguez in his Sinumpaang Salaysay, respondents in G.R. No. 191805 still stubbornly clung to their argument that he was neither abducted nor detained. Rather, they claimed that he was a double agent, whose relationship with the military was at all times congenial. This contention cannot be sustained, as it is far removed from ordinary human experience.

If it were true that Rodriguez maintained amicable relations with the military, then he should have unhesitatingly assured his family on 17 September 2009 that he was among friends. Instead, he vigorously pleaded with them to get him out of the military facility. In fact, in the Sinumpaang Salaysay dated 4 December 2009^{^[125]}^[104] Wilma executed, she made the following averments:

18. Na nang Makita ko ang aking anak ay nakaramdam ako sa kanya ng awa dahil sa mukha syang pagod at malaki ang kanyang ipinayat.

19. Na niyakap ko sya at sa aming pagkakayakap ay binulungan nya ako na wag ko syang iiwan sa lugar na iyon;

xxx xxx xxx

23. Na sinabihan ako ng mga sundalo na kung pwede daw ay maiwan muna ng dalawang linggo sa kampo ako at si Noriel para daw matrain pa si Noriel sa loob ng kampo;

24. Na hindi ako pumayag na maiwan ang aking anak;

xxx xxx xxx

33. Na sa kasalukuhan, hanggang ngayon ay nag-aalala pa ako sa paa (sic) sa kaligtasan ng aming buong pamilya, lalo na kay Noriel; xxx^{^[126]}^[105]

Also, Rodel made the following supporting averments in his Sinumpaang Salaysay dated 3 December 2009:^{^[127]}^[106]

24. Na nang makita ko si Noriel, hindi sya makalakad ng diretso, hinang-hina sya, malaki ang ipinayat at nanlalalim ang mga mata;

25. Na nang makita ko ang aking kapatid ay nakaramdam ako ng awa dahil nakilala ko syang masigla at masayahin;

26. Na ilang minuto lang ay binulugan nya ako ng “Kuya, ilabas mo ako dito, papatayin nila ako.”

27. Na sinabihan kami ni Lt. Col. Mina na baka pwedeng maiwan pa ng dalwang linggo ang aking kapatid sa kanila para raw ma-train sya.

28. Na hindi kami pumayag ng aking nanay; xxx^{^[128]}^[107]

Moreover, the Court of Appeals likewise aptly pointed out the illogical, if not outrightly contradictory, contention of respondents in G.R. No. 191805 that while Rodriguez had complained of his exhaustion from his activities as a member of the CPP-NPA, he nevertheless willingly volunteered to return to his life in the NPA to become a double-agent for the military. The lower court ruled in this manner:

In the Return of the Writ, respondent AFP members alleged that petitioner confided to his military handler, Cpl. Navarro, that petitioner could no longer stand the hardships he experienced in the wilderness, and that he wanted to become an ordinary citizen again because of the empty promises of the CPP-NPA. However, in the same Return, respondents state that petitioner agreed to become a double agent for the military and wanted to re-enter the CPP-NPA, so that he could get information regarding the movement directly from the source. If petitioner was tired of life in the wilderness and desired to become an ordinary citizen again, it defies logic that he would agree to become an undercover agent and work alongside soldiers in the mountains – or the wilderness he dreads – to locate the hideout of his alleged NPA comrades.^{^[129]}^[108] (Emphasis supplied.)

Furthermore, the appellate court also properly ruled that aside from the abduction, detention and torture of Rodriguez, respondents, specifically 1^st Lt. Matutina, had violated and threatened the former’s right to security when they made a visual recording of his house, as well as the photos of his relatives, to wit:

In the videos taken by the soldiers – one of whom was respondent Matutina – in the house of petitioner on September 18, 2009, the soldiers even went as far as taking videos of the photos of petitioner’s relatives hung on the wall of the house, as well as videos of the innermost part of the house. This Court notes that 1Lt. Matutina, by taking the said videos, did not merely intend to make proofs of the safe arrival of petitioner and his family in their home. 1Lt. Matutina also desired to instill fear in the minds of petitioner and his family by showing them that the sanctity of their home, from then on, will not be free from the watchful eyes of the military, permanently captured through the medium of a seemingly innocuous cellhpone video camera. The Court cannot – and will not – condone such act, as it intrudes into the very core of petitioner’s right to security guaranteed by the fundamental law.^{^[130]}^[109] (Emphasis supplied.)

Taken in their totality, the pieces of evidence adduced by Rodriguez, as well as the contradictory defenses presented by respondents in G.R. No. 191805, give credence to his claim that he had been abducted, detained and tortured by soldiers belonging to the 17^th Infantry Battalion, 5^th Infantry Division of the military.

It must be pointed out, however, that as to respondents Cruz, Pasicolan and Callagan, there was no substantial evidence to show that they violated, or threatened with violation, Rodriguez’s right to life, liberty and security. Despite the dearth of evidence to show the CHR officers’ responsibility or accountability, this Court nonetheless emphasizes its criticism as regards their capacity to recognize torture or any similar form of abuse. The CHR, being constitutionally mandated to protect human rights and investigate violations thereof,^{^[131]}^[110] should ensure that its officers are well-equipped to respond effectively to and address human rights violations. The actuations of respondents unmistakably showed their insufficient competence in facilitating and ensuring the safe release of Rodriguez after his ordeal.

b. The failure to conduct a fair and effect investigation amounted to a violation of or threat to Rodriguez’s rights to life, liberty and security.

The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life, liberty and security may be caused by either an act or an omission of a public official.^{^[132]}^[111] Moreover, in the context of amparo
proceedings, responsibility may refer to the participation of the respondents, by action or omission, in enforced disappearance.^{^[133]}^[112] Accountability, on the other hand, may attach to respondents who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance.^{^[134]}^[113]

In this regard, we emphasize our ruling in Secretary of National Defense v. Manalo^{^[135]}^[114] that the right to security of a person includes the positive obligation of the government to ensure the observance of the duty to investigate, viz:

Third, the right to security of person is a guarantee of protection of one’s rights by the government. In the context of the writ of Amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State “guarantees full respect for human rights” under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case, viz:

(The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.

xxx xxx xxx

Similarly, the European Court of Human Rights (ECHR) has interpreted the “right to security” not only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to liberty. The ECHR interpreted the “right to security of person” under Article 5(1) of the European Convention of Human Rights in the leading case on disappearance of persons, Kurt v. Turkey. In this case, the claimant’s son had been arrested by state authorities and had not been seen since. The family’s requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son’s right to security of person. The ECHR ruled, viz:

… any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness… Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.^{^[136]}^[115] (Emphasis supplied)

In the instant case, this Court rules that respondents in G.R. No. 191805 are responsible or accountable for the violation of Rodriguez’s right to life, liberty and security on account of their abject failure to conduct a fair and effective official investigation of his ordeal in the hands of the military. Respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt. Col. Mina only conducted a perfunctory investigation, exerting no efforts to take Ramirez’s account of the events into consideration. Rather, these respondents solely relied on the reports and narration of the military. The ruling of the appellate court must be emphasized:

In this case, respondents Ibrado, Verzosa, Bangit, Tolentino, Santos, De Vera, and Mina are accountable, for while they were charged with the investigation of the subject incident, the investigation they conducted and/or relied on is superficial and one-sided. The records disclose that the military, in investigating the incident complained of, depended on the Comprehensive Report of Noriel Rodriguez @Pepito prepared by 1Lt. Johnny Calub for the Commanding Officer of the 501^st Infantry Brigade, 5^th Infantry Division, Philippine Army. Such report, however, is merely based on the narration of the military. No efforts were undertaken to solicit petitioner’s version of the subject incident and no witnesses were questioned regarding the alleged abduction of petitioner.

Respondent PDG Verzosa, as Chief of the PNP, is accountable because Section 24 of Republic Act No. 6975, otherwise known as the “PNP Law,” specifies the PNP as the governmental office with the mandate “to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution.” In this case, PDG Verzosa failed to order the police to conduct the necessary investigation to unmask the mystery surrounding petitioner’s abduction and disappearance. Instead, PDG Verzosa disclaims accountability by merely stating that petitioner has no cause of action against him. Palpable, however, is the lack of any effort on the part of PDG Verzosa to effectively and aggressively investigate the violations of petitioner’s right to life, liberty and security by members of the 17^th Infantry Battalion, 17^th Infantry Division, Philippine Army.^{^[137]}^[116] (Emphasis supplied.)

Clearly, the absence of a fair and effective official investigation into the claims of Rodriguez violated his right to security, for which respondents in G.R. No. 191805 must be held responsible or accountable.

Nevertheless, it must be clarified that Rodriguez was unable to establish any responsibility or accountability on the part of respondents P/CSupt. Tolentino, P/SSupt.Santos, Calog and Palacpac. Respondent P/CSupt. Tolentino had already retired when the abduction and torture of Rodriguez was perpetrated, while P/SSupt.Santoshad already been reassigned and transferred to the National Capital Regional Police Office six months before the subject incident occurred. Meanwhile, no sufficient allegations were maintained against respondents Calog and Palacpac.

From all the foregoing, we rule that Rodriguez was successful in proving through substantial evidence that respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Brig. Gen. De Vera, 1^st Lt. Matutina, and Lt. Col. Mina were responsible and accountable for the violation of Rodriguez’s rights to life, liberty and security on the basis of (a) his abduction, detention and torture from 6 September to 17 September 2009, and (b) the lack of any fair and effective official investigation as to his allegations. Thus, the privilege of the writs of amparo and habeas data must be granted in his favor. As a result, there is no longer any need to issue a temporary protection order, as the privilege of these writs already has the effect of enjoining respondents in G.R. No. 191805 from violating his rights to life, liberty and security.

It is also clear from the above discussion that despite (a) maintaining former President Arroyo in the list of respondents in G.R. No. 191805, and (b) allowing the application of the command responsibility doctrine to amparo and habeas data proceedings, Rodriguez failed to prove through substantial evidence that former President Arroyo was responsible or accountable for the violation of his rights to life, liberty and property. He likewise failed to prove through substantial evidence the accountability or responsibility of respondents Maj. Gen. Ochoa, Cruz, Pasicolan and Callagan.

WHEREFORE, we resolve to GRANT the Petition for Partial Review in G.R. No. 191805 and DENY the Petition for Review in G.R. No. 193160. The Decision of the Court of Appeals is hereby AFFIRMED WITH MODIFICATION.

This Court directs the Office of the Ombudsman (Ombudsman) and the Department of Justice (DOJ) to take the appropriate action with respect to any possible liability or liabilities, within their respective legal competence, that may have been incurred by respondents Gen. Victor Ibrado, PDG. Jesus Verzosa, Lt. Gen. Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De Vera, 1^st Lt. Ryan Matutina, and Lt. Col. Laurence Mina. The Ombudsman and the DOJ are ordered to submit to this Court the results of their action within a period of six months from receipt of this Decision.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR. Associate Justice Associate Justice

On official leave

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION