REPUBLIC OF THE PHILIPPINES
SUPREME COURT
MANILA
EDITA T. BURGOS,
Petitioner,
- versus -
President Gloria Macapagal –
Arroyo, et al.
Respondents.
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EDITA T. BURGOS,
Petitioner,
- versus -
President Gloria Macapagal –
Arroyo, et al.
Respondents.
x ------------------------------
EDITA T. BURGOS,
Petitioner,
- versus -
Chief of Staff of the Armed Forces of the Philippines, GEN. HERMOGENES ESPERON, JR. et al.;
Respondents.
x-----------------------------
EX ABUNDANTI CAUTELA
Petitioner, by undersigned counsel, respectfully moves this Honorable Court to refer back these cases to the Court of Appeals for further hearing of newly discovered evidence and in support thereof, respectfully states:
1. The Court of Appeals on March 18, 2013 promulgated its decision the dispositive portion of which states:
“WHEREFORE, in view of the above premises, the court hereby renders a Decision:
1) RECOGNIZING the abduction of Jonas Burgos as an enforced disappearance covered by the Rule on the Writ of Amparo;
2) With regard to authorship,
a.) DECLARING Maj. Harry A. Baliaga, Jr. RESPONSIBLE for the enforced disappearance of Jonas Burgos; and
b.) DECLARING the Armed Forces of the Philippines and elements of the Armed Forces of the Philippines, particularly the Philippine Army, ACCOUNTABLE for the enforced disappearance of Jonas Burgos;
3) DECLARING the Philippine National Police ACCOUNTABLE for the conduct of an exhaustive investigation of the enforced disappearance of Jonas Burgos. To this end, the PNP through its investigative arm, the PNP-CIDG, is directed to exercise extraordinary diligence to identify and locate the abductors of Jonas Burgos who are still at large and to establish the link between the abductors of Jonas Burgos and those involved in the ERAP 5 incident.
4) DIRECTING the incumbent Chief of Staff of the Armed Forces of the Philippines and the Director General of the Philippine National Police, and their successors, to ensure the continuance of their respective investigation and coordination on the enforced disappearance of Jonas Burgos until the persons found responsible therefor are brought before the bar of justice;
5) DIRECTING the Commission on Human Rights to continue with its own independent investigation on the enforced disappearance of Jonas Burgos with the same degree of diligence required under the Rule on the Writ of Amparo; and
6) DIRECTING the Armed Forces of the Philippines and the Philippine National Policy to extend full assistance to the Commission on Human Rights in the conduct of the latter’s investigation.
The Chief of Staff, Armed Forces of the Philippines, the Director General, Philippine National Police and the Chairman, Commission on Human Rights are hereby DIRECTED to submit a quarterly report to this Court on the results of their respective investigation.
The filing of petitioner’s Affidavit-Complaint against Maj. Harry A. Baliaga, Jr., et al. before the Department of Justice on June 9, 2011 isNOTED. Petitioner is DIRECTED to immediately inform this Court of any development regarding the outcome of that case.
The Petition for Writ of Habeas Corpus is DISMISSED.
SO ORDERED.”
2. To recall, this Honorable Supreme Court has promulgated 2 Resolutions in these cases: 1. Dated June 22, 2010 the dispositive portion of which states:
“WHEREFORE, in the interest of justice and for the foregoing reasons, the Court RESOLVES to:
(1) DIRECT the Commission on Human Rights to conduct appropriate investigative proceedings, including field investigations – acting as the Court’s directly commissioned agency for purposes of the Rule on the Writ of Amparo - with the tasks of: (a) ascertaining the identities of the cartographic sketches of two of the abductors as well as their whereabouts; (b) determining based on records, past and present, the identities and locations of the persons identified by State Prosecutor Velasco alleged to be involved in the abduction of Jonas namely: T/Sgt. Jason Roxas (Philippine Army), Cpl. Maria Joana Francisco (Philippine Air Force), M/Sgt. Aron Arroyo (Philippine Air Force), and an alias T.L., all reportedly assigned with Military Intelligence Group 15 of Intelligence Service of the Armed Forces of the Philippines; further proceedings and investigations, as may be necessary, should be made to pursue the lead allegedly provided by State Prosecutor Velasco on the identities of the possible abductors; (c) inquiring into the veracity of Lipio’s and Manuel’s claims that Jonas was abducted by a certain @KA DANTE and @KA ENSO of the CPP/NPA guerilla unit RYG; (d) determining based on records, past and present, as well as further investigation, the identities and whereabouts of @KA DANTE and @KA ENSO; and (e) undertaking all measures, in the investigation of the Burgos abduction, that may be necessary to live up to the extraordinary measures we require in addressing an enforced disappearance under the Rule on the Writ of Amparo;
(2) REQUIRE the incumbent Chiefs of the Armed Forces of the Philippines and the Philippine National Police to make available and to provide copies, to the Commission on Human Rights, of all documents and records in their possession and as the Commission on Human Rights may require, relevant to the case of Jonas Joseph T. Burgos, subject to reasonable regulations consistent with the Constitution and existing laws;
(3) DIRECT the PNP-CIDG and its incumbent Chief to submit to the Commission on Human Rights the records and results of the investigation the PNP-CIDG claimed to have forwarded to the Department of Justice, which were not included in their previous submissions to the Commission on Human Rights, including such records as the Commission on Human Rights may require, pursuant to the authority granted under this Resolution;
(4) Further DIRECT the PNP-CIDG to provide direct investigative assistance to the Commission on Human Rights as it may require, pursuant to the authority granted under this Resolution;
(5) AUTHORIZE the Commission on Human Rights to conduct a comprehensive and exhaustive investigation that extends to all aspects of the case (not limited to the specific directives as outlined above), as the extraordinary measures the case may require under the Rule on the Writ of Amparo; and
(6) REQUIRE the Commission on Human Rights to submit to this Court a Report with its recommendations, copy furnished the petitioner, the incumbent Chiefs of the AFP, the PNP and the PNP-CIDG, and all the respondents, within ninety (90) days from receipt of this Resolution.
In light of the retirement of Lt. General Alexander Yano and the reassignment of the other respondents who have all been impleaded in their official capacities, all subsequent resolutions and actions from this Court shall also be served on, and be directly enforceable by, the incumbents of the impleaded offices/units whose official action is necessary. The present respondents shall continue to be personally impleaded for purposes of the responsibilities and accountabilities they may have incurred during their incumbencies.
The dismissal of the petitions for Contempt and for the Issuance of a Writ of Amparo with respect to President Gloria Macapagal-Arroyo is hereby AFFIRMED.
SO ORDERED”;
and, 2. Dated July 5, 2011, the dispositive portion of which states:
“WHEREFORE, in the interest of justice and for the foregoing reasons, we RESOLVE to:
I. IN G.R. NO. 183711 (HABEAS CORPUS PETITION, CA-G.R. SP No. 99839)
a. ISSUE a Writ of Habeas Corpus anew, returnable to the Presiding Justice of the Court of Appeals who shall immediately refer the writ to the same Division that decided the habeas corpus petition;
b. ORDER Lt. Harry A. Baliaga, Jr. impleaded in CA-G.R. SP No. 99839 and G.R. No. 183711, and REQUIRE him, together with the incumbent Chief of Staff, Armed Forces of the Philippines; the incumbent Commanding General, Philippine Army; and the Commanding Officer of the 56th IB, 7th Infantry Division, Philippine Army at the time of the disappearance of Jonas Joseph T. Burgos, Lt. Col. Melquiades Feliciano, to produce the person of Jonas Joseph T. Burgos under the terms the Court of Appeals shall prescribe, and to show cause why Jonas Joseph T. burgos should not be released from detention;
c. REFER back the petition for habeas corpus to the same Division of the Court of Appeals which shall continue to hear this case after the required Returns shall have been filed and render a new decision within thirty (30) days after the case is submitted for decision; and
d. ORDER the Chief of Staff of the Armed Forces of the Philippines and the Commanding General of the Philippine Army to be impleaded as parties, separate from the original respondents impleaded in the petition, and the dropping or deletion of President Gloria Macapagal-Arroyo as party-respondent.
II. IN G.R. NO. 183712 (CONTEMPT OF COURT CHARGE, CA-G.R. SP No. 100230)
e. AFFIRM the dismissal of the petitioner’s petition for contempt in CA-G.R. SP No. 100230, without prejudice to the re-filing of the contempt charge as may be warranted by the results of the subsequent CHR investigation this Court has ordered; and
f. ORDER the dropping or deletion of former President Gloria Macapagal-Arroyo as party-respondent, in light of the unconditional dismissal of the contempt charge against her.
III. IN G.R. NO. 183713 (WRIT OF AMPARO PETITION, CA-G.R. SP No. 00008-WA)
g. ORDER Lt. Harry A. Baliaga, Jr., impleaded in CA-G.R. SP No. 00008-WA and G.R. No. 183713, without prejudice to similar directives we may issue with respect to others whose identities and participation may be disclosed in future investigations and proceedings.
h. DIRECT Lt. Harry A. Baliaga, Jr., and the present Amparo respondents to file their Comments on the CHR report with the Court of Appeals, within a non-extendible period of fifteen (15) days from receipt of this Resolution.
i. REQUIRE General Roa of the Office of the Judge Advocate General, AFP; the Deputy Chief of Staff for Personnel, JI, AFP, at the time of our June 22, 2010 Resolution; and then Chief of Staff, AFP, Gen. Ricardo David, (a) to show cause and explain to this Court, within a non-extendible period of fifteen (15) days from receipt of this Resolution, why they should not be held in contempt of this Court for their defiance of our June 22, 2010 Resolution; and (b) to submit to this Court, within a non-extendible period of fifteen (15) days from receipt of this Resolution, a copy of the documents requested by the CHR, particularly:
1) The profile and Summary of Information and pictures of T/Sgt. Jason Roxas (Philippine Army); Cpl. Maria Joana Francisco (Philippine Air Force); M/Sgt. Aron Arroyo (Philippine Air Force); an alias T.L. – all reportedly assigned with Military Intelligence Group 15 of Intelligence Service of the Armed Forces of the Philippines – and 2Lt. Fernando, a lady officer involved in the counter-insurgency operations of the 56th IB in 2006 to 2007;
2) Copies of the records of the 2007 ERAP 5 incident in Kamuning Quezon City and the complete list of the intelligence operatives involved in that said covert military operation, including their respective Summary of Information and individual pictures; and
3) Complete list of the officers, women and men assigned at the 56th and 69th Infantry Battalion and the 7th Infantry Division from January 1, 2004 to June 30, 2007 with their respective profiles, Summary of Information and pictures; including the list of captured rebels and rebels who surrendered to the said camps and their corresponding pictures and copies of their Tactical Interrogation Reports and the cases filed against them, if any.
These documents shall be released exclusively to this Court for our examination to determine their relevance to the present case and the advisability of their public disclosure.
j. ORDER the Chief of Staff of the Armed Forces of the Philippines and the Commanding General of the Philippine Army to be impleaded as parties, in representation of their respective organizations, separately from the original respondents impleaded in the petition; and the dropping of President Gloria Macapagal-Arroyo as party-respondent;
k. REFER witnesses Jeffrey T. Cabintoy and Elsa B. Agasang to the Department of Justice for admission to the Witness Protection Security and Benefit Program, subject to the requirements of Republic Act No. 6981; and
l. NOTE the criminal complaint filed by the petitioner with the DOJ which the latter may investigate and act upon on its own pursuant to Section 21 of the Rule on the Writ of Amparo.
SO ORDERED.”
3. Recently, the petitioner received from a source who has requested to remain anonymous at this point documentary evidence that would prove that an intelligence unit of the 7th Infantry Division of the Philippine Army and the 56th Infantry Battalion operating together captured Jonas Burgos on April 28, 2007 at the Ever Gotesco Mall, Commonwealth Avenue, Quezon City.
4. The documentary evidence consists of: a. After Apprehension Report; b. Psycho Social Processing Report; and, c. Autobiography of Jonas Burgos. They are all copies of “confidential” official reports on file with the Philippine Army.
5. Petitioner is concerned about her own personal security and would avoid any premature leak of this information. The petitioner with utmost abundant caution without prior leave of this Honorable Supreme Court had taken the liberty to cause her newly discovered evidence to be sealed attached to this motion to be opened by this Honorable Supreme Court or only upon its orders. This move by the petitioner was influenced by the order of this Honorable Supreme Court in its Resolution dated July 5, 2011 requiring the submission of the complete list of the officers and men of the 56th IB, 69th IB and 7th Infantry Division from June 2004 to June 2007 to this Honorable Supreme Court “exclusively”. The names in this new discovered evidence can be cross checked and validated with the list already submitted to this Honorable Supreme Court.
6. The newly discovered evidence will prove that the officers and enlisted personnel of the particular unit of the 7th ID and the 56th IB are responsible for the enforced disappearance of Jonas Burgos; that these units captured and interrogated him and based on the same evidence, could probably continue to detain him or God forbid, had disposed of him in the manner that only they could explain.
7. In the Resolution of this Honorable Supreme Court dated July 5, 2011, it was decided to “ORDER Lt. Harry A. Baliaga Jr., impleaded in a CA-G.R. SP No. 00008-WA and G.R. No. 183713, without prejudice to similar directiv4es we may issue with respect to others whose identities and participation may be disclosed in future investigations and proceedings.” Wherefore, petitioner prays for this Honorable Supreme Court to order the persons named in the sealed documents impleaded in CA-G.R. SP 00008-WA and G.R. No.183713, and to issue a writ of amparo on the same persons and refer back the cases to the same division of the Court of Appeals for further hearing and/or to issue such other orders in the interest of justice would be appropriate.
8. WHEREFORE petitioner prays of this Honorable Supreme Court to refer back the cases to the same Division of the Court of Appeals for further hearing of the newly discovered evidence and/or, to issue such other orders in the interest of justice would be appropriate.
Makati City for Manila, March 27, 2012.
Fernandez & Olivas-Gallo
3/F Savana Market, 1203 P. Ocampo Ext.
Makati City, 1205
Tel No. 897-1374; Fax: 897-1375
By:
RICARDO N. FERNANDEZ, JR.
Roll No: 28449
IBP No. 923559;1/09/2013/Cavite
PTR No.3671373; 1/02/2013; Makati
MCLE III Compliance; 3.23.2013;
UP Law Center
ROSARIO OLIVAS-GALLO
Roll No: 35188
IBP No. 923558;1/09/2013/Cavite
PTR No.3671384; 1/02/2013; Makati
MCLE III Compliance No. 0016440; 5.13.2010
NOTICE
THE CLERK OF COURT
Greetings.
Please submit the foregoing Motion for the consideration of the Honorable Court immediately upon receipt thereof without further arguments.
I, EDITA T. BURGOS, of legal age, Filipino, with address at c/o Fernandez & Olivas-Gallo, 3/F Savana Market, Vito Cruz Extension, Makati City, after having been duly sworn, hereby depose and state that:
1. I am the Petitioner in the above-captioned cases;
2. I have caused the preparation of the foregoing URGENT EX PARTE MOTION EX ABUNDANTI CAUTELA and that the allegations contained therein are true and correct based on my own personal knowledge.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 1st day of April 2013, at Makati.
SUBSCRIBED AND SWORN to before me this 1st day of April 2013, at Makati, affiant showing to me her valid Senior Citizen ID No. 73078 issued on February 12, 2008 at Quezon City.
Doc. No. ______
Page No. _____
Book No. _____
Series of 2013.
