FREE JONAS BURGOS: Mrs. B

Monday, February 8, 2010

Mrs. B

After a successful run last Feb. 5 & 6, "Mrs. B" will run dates yet again on Feb. 12 &13 at the Bantayog ng Mga Bayani. Please join us either at 3 pm or at 6 pm on those dates. To those who already watched the play, our sincerest gratitude.

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Edith Burgos petition

republic of the philippines
supreme court
manila

EditA T. Burgos,
Petitioner,

- versus - CASE NO. __________________

pRESIDENT gLORIA mACAPAGAL-aRROYO, Gen. Hermogenes Esperon, Jr., Lt. Gen. Romeo p. Tolentino, maj. gen. juanito gomez, MAJ. GEN. DELFIN BANGIT, Lt. col. Noel Clement, lt. col. melquiades feliciano, director general oscar calderon,
Respondents.
x ------------------------------------------------- x

PETITION
Petitioner, by her counsels, respectfully states:

Prefatory Statement

The petitioner has filed this petition to plead this Honorable Court to order the respondents to produce her son or release him from arbitrary detention. Should the respondents be unable to produce or release him, it is prayed that this Honorable Court will order respondents to find out who caused the enforced disappearance of her son, who ordered his abduction, to bring to justice those responsible for such crime. It is the hope of the petitioner that this Honorable Court will “promulgate rules concerning the protection and enforcement of constitutional rights” (Constitution, Article VIII, Section 5 (5)] and thereby enable State institutions to enforce human rights more effectively and to prevent enforced disappearances of activists and other forms of gross violations of human rights.

The Parties

1. Petitioner is of legal age, Filipino, with postal address c/o Fernandez & Kasilag –Villanueva Law Offices, 3/F Savana Market, Pablo Ocampo Street, Makati. She is the mother of Jonas Joseph T. Burgos. Jonas is a farmer; he manages the family farm in Bulacan. He is a member of a peasant organization in Bulacan, Alyansang Magbubukid ng Bulacan.

2. Respondents are:

a. President Gloria Macapagal-Arroyo, in her capacity as Commander-in-Chief of all armed forces in the Philippines, holding office at and may be served with summons at Malacanang, Manila;
b. General Hermogenes Esperon, Jr., Chief of Staff of the Armed Forces of the Philippines holding office and may be served with summons at the General Headquarters of the AFP, Camp Aguinaldo, Quezon City;
c. Lt. Gen. Romeo P. Tolentino, Commanding General, Philippine Army, holding office and may be served with summons at Fort Bonifacio, Taguig;
d. Maj. Gen. Juanito Gomez, commanding officer, 7th Infantry Division, holding office and may be served with summons at Fort Magsaysay, Nueva Ecija;
e. Maj. Gen. Delfin N. Bangit, commanding officer, Intelligence Service of the Armed Forces of the Philippines (ISAFP), holding office and may be served with summons at ISAFP, Camp Aguinaldo, Quezon City.
f. Lt. Col. Noel Clement, commanding officer of, holding office and may be served with summons at the Security and Escort Battalion Fort Bonifacio Taguig;
g. Lt. Col. Melquiades Feliciano, former commanding officer of the 56th Infantry Battalion, Philippine Army, present assignment unknown but may be served with summons through the Commanding General of the Philippine Army at Fort Bonifacio, Taguig.
h. Director General Oscar Calderon, Philippine National Police, holding office and may be served with summons at PNP headquarters, Camp Crame Quezon City.
The Facts

3. Jonas, according to witnesses (Elsa Agasang and Larry Marquez), was forcibly taken by a group of 6 males and 1 female who identified themselves to be “PULIS” while he was having lunch at the Hapag Kainan Restaurant in Ever Gotesco Mall, Commonwealth Avenue, Quezon City, on April 28, 2007 at about 1.30 p.m. As he was being forcibly taken, he was shouting “Aktibista lang po ako!”
4. Petitioner realized that Jonas could be missing when he did not come home that night of April 28th. Jonas is still missing and petitioner believes that respondents are detaining him. Jonas is but the latest of hundreds of victims of enforced disappearances or desaparecidos. According to KARAPATAN, a human rights organization, there have been 180 recorded cases of desaparecidos from 2001-2007.
5. The following morning of April 29th, petitioner received a text message from Jonas which states: “Pasensiya na ligo lang ako”; this was followed by another text: “Sige bukas pag-usapan natin”. Petitioner tried calling his phone but could not get an answer until it could no longer be reached.
6. On April 30th, petitioner called for a press conference and announced that Jonas has been missing since April 28th.
7. As a result of that press conference, petitioner received information that a security guard (Larry Marquez) at the Ever Gotesco Mall saw Jonas forced by persons who identified themselves to be “PULIS” into a vehicle with plate no. TAB 194.
8. That plate number TAB 194 was traced to a vehicle registered in the name of Mauro Mudlong. Mr. Mudlong and his vehicle were apprehended on June 24, 2006 by PFC Jose Villena and CPL Castro Bugallon of the 56th Infantry Battalion of the Philippine Army (56th IB) based in Barangay San Mateo, Norzagaray Bulacan for violation of Section 68 of PD 705 or “Transporting of Timber Without a Permit” (filed with the Prosecutor of Bulacan at Malolos; IS No. 06-09-4287). Said vehicle with plate no. TAB 194 and its cargo were taken to the headquarters of the 56th IB at Norzagaray Bulacan.
9. Police investigators took the statements of witnesses Larry Marquez (security guard) and Elsa Agasang (restaurant employee), both of whom witnessed the abduction. Attached hereto are copies of the Sinumpaang Salaysay marked as Annex A and B and made integral parts hereof.
10. Police investigators reported that they took the statements of 5 army officers, namely: LTC Melquiades L. Feliciano, commanding officer 56th IB; LTC Noel S. Clement, commanding officer Security and Escort Battalion based in Fort Bonifacio; LTC Edison Caga, commanding officer 69th IB stationed in Pampanga; CPL Castro Bugalan and PFC Jose Villena III both assigned at the 56th IB. All 5 army officers denied any involvement or participation in the enforced disappearance of Jonas.
11. The police also made cartographic sketches of the abductors as described by witnesses copies of which are attached to the police report. Attached hereto is a copy of the report of the police marked as Annex C and made an integral part hereof.
12. On May 8th, petitioner met with the Chief of the Intelligence Service of the Armed Forces of the Philippines (ISAFP), Maj. Gen. Delfin N. Bangit who denied that his unit has custody of Jonas or that they abducted him. However, on July 6th, the Philippine Daily Inquirer reported that it was a unit of ISAFP which abducted Jonas.
13. Media reported that Armed Forces Chief of Staff, Gen. Hermogenes Esperon, Jr. has ordered the Army Provost Marshal and the Inspector General to investigate the involvement of the above named 5 army officers in the enforced disappearance of Jonas.
14. On May 21, 2007, petitioner through her lawyer wrote to Gen. Esperon to request for a copy of the “report of the Provost Marshal and the Inspector General on the involvement of the 56th Infantry Battalion on [Jonas’] disappearance”. This matter was followed up by another letter sent on May 29, 2007.
15. Petitioner met with Executive Secretary Eduardo Ermita on May 29th to seek his help in finding Jonas or any information he can provide about what has happened to him. Secretary Ermita responded by arranging a meeting between petitioner and General Esperon on June 6, 2007 at 10 a.m.
16. President Gloria Macapagal Arroyo phoned the petitioner on June 2nd to express her concern about Jonas and reminded her that it was important that she go see Gen. Esperon on the appointed date because it will help speed up the investigation of the enforced disappearance of Jonas.
17. Petitioner’s lawyer together with her brother, Jimmy Tronqued (petitioner had vertigo attack and could not leave the house) went to Gen. Esperon’s office at the appointed time, June 6, 2007 at 10 a.m. However, they were met by 2 officers, LTC. Jose and LTC Lucero and not Gen. Esperon, who, according to the 2 officers, had left for another meeting.
18. On June 21st, petitioner received a letter from the Judge Advocate General, Brig. Gen. Nemesio I. Dabal, writing for Gen. Esperon. The letter said that a copy of the report of the Provost Marshal and the Inspector General could not be released because of two restraints: a) it is “a classified matter, the unauthorized disclosure of which, while not endangering national security, may cause unwarranted injury to an individual. Under pertinent rules, this category of classified matter expressly includes investigation and document of a personal and disciplinary nature which we are bound to secure for administrative purposes and further to safeguard the identity of personnel being investigated for an anomaly prior to the filing of appropriate charges”; b) the “restraint is a necessary measure in order not to preempt the final outcome of the case being investigated through the premature disclosure of an initial investigation result which is taking its course under the military justice system. This is with a view to further elevation of the matter to an appropriate body for proper disposition, including its possible referral with a view to trial by court martial against erring personnel involved, if circumstances warrant”. Copy of the letter of the Judge Advocate General marked as Annex D is attached.
19. In other words, Gen. Esperon turned down petitioner’s request because he was concerned that her reading of the report of the Provost Marshal and the Inspector General “may” cause some unwarranted injury to someone (whom he has not named) and because he does not want that the “initial investigation result” of the investigation may preempt or displace the final outcome of the case being investigated.
20. On June 27th, on the 59th day of the enforced disappearance of Jonas, the petitioner held a press conference and she announced:
“Based on the evidence so far gathered: a) the testimony of the witness security guard that he saw Jonas forced into the vehicle with plate no. TAB 194; b) plate no. TAB 194 has been traced to be in the custody of the 56th IB since June 2006, I accuse the Army of having forcibly abducted my son Jonas on April 28, 2007 at the Ever Gotesco Mall in Quezon City. I strongly suspect that either or both of its former commanding officers, Lt. Col. Clement and Lt. Col. Feliciano participated in the enforced disappearance of Jonas.
The conduct of Gen. Esperon tells me that the Army is hiding from me information of vital investigative value in the Jonas case. First, he refused to see me and my representatives despite the fact that Executive Secretary Eduardo Ermita had arranged the meeting and President Gloria Macapagal Arroyo encouraged me to see him. And then he turns down my request for a copy of the report of the Provost Marshal and the Inspector General.
Gen. Esperon’s conduct or rather, misconduct, only reinforces my belief that the Army abducted Jonas and Gen. Esperon is covering up for the Army”.
21. On June 15th, petitioner attended the public hearing on the enforced disappearance of Jonas (case no. NCR 2007-058) called by the Commission on Human Rights wherein it was announced that CHR had concluded the public hearing and will be issuing its report in two weeks. In a letter to CHR, petitioner requested for a copy of the report and also, copies of the following documents:

a. Progress Report submitted by the police investigators;

b. Progress Report submitted by the army investigators;

c. Statements of the army officers, namely: LTC Melquiades Feliciano; LTC Noel Clement; LTC Edison Caga; PFC Jose Villena; CPL Castro Bugallon;
d. Transcript of stenographic notes (TSN) of the testimonies of LTC Clement, LTC Feliciano, LTC Caga, Gen. Delfin Bangit, PFC Villena, and CPL Bugallon;
e. Report of the Provost Marshal and the Inspector General.

22. On July 9th, Petitioner received a letter from CHR Chair Quisumbing stating that :
“ With reference to your letter dated June 20, 2007, please be informed that the Commission will provide you with the pertinent documents in the subject case, together with the official findings of the Commission, once the investigation is completed and the corresponding en banc resolution promulgated.
While the Commission is now evaluating the documents/evidence on hand, it has also considered taking the testimony of additional witnesses/ resource persons which could help shed light on the abduction of Jonas”.
23. Petitioner has met with Director Geary Barias of Task Force Usig of the Philippine National Police. She requested from him for a copy of its progress report on its investigation but he turned down the request and instead, directed her to get a copy from CHR.
24. Petitioner has not heard from the police ever since. The police investigation has not progressed from the discovery of the fact that plate no. TAB 194 identified by the security guard witness was under the custody of the 56th Infantry Battalion and the statements of the witnesses, sketches of the suspects, statements of the army officers. The police have not asked the AFP for the summary of information of the 3 colonels – their personal circumstances, service records, their assignments before and after 56th IB. They have not lined up the members of the 56th IB for possible identification of the eye witnesses. The police investigators and the army officers to be investigated are all alumni of the Philippine Military Academy and their strong sense of brotherhood restrains the police from conducting a more thorough and impartial investigation of their fellow PMA alumni in the army.
25. The petitioner has exhausted all the remedies available in the democratic institutions of the State mandated to uphold the rule of law and protect human rights but she still has not found Jonas. She has gone to ISAFP and the Chief of Staff of the AFP but they deny that they have Jonas. She reported the crime committed against Jonas to the Philippine National Police but the police have almost stopped its investigation because they have lost the initiative or the army is not cooperating or both. She sought the help of the Office of the President and the Executive Secretary has arranged for her to meet the Chief of Staff and the President has encouraged her to meet with him but still the Chief of Staff would not meet with her nor give her a copy of the report of the Provost Marshal. She has attended the public hearing of the CHR and requested for a copy of its report but she is still waiting for that report.
26. Her last resort is the constitutional branch vested with judicial power, this Honorable Supreme Court.
Human Rights of Jonas Violated

27. Jonas was born and raised in, and is a citizen of this country. His right to life and liberty is guaranteed by the Constitution. (Article III, Section 1) Those rights are sacred and are inviolable.
28. Jonas’ human rights were violated when he was abducted by suspected agents of the State on April 28th. The evidence to prove that the abductors were agents of the State are:
a. The statement of witness: Elsa Agasang, restaurant employee at Hapag Kainan Ever Gotesco Mall Quezon City, who said that Jonas was forcibly taken while having his meal by 4 men and a woman who identified themselves to be police;
b. The statement of witness: Security Guard Larry Marquez, who saw Jonas forced into a vehicle he described as a “Toyota Revo” with plate no. TAB 194;
c. Verification by the Land Transportation Office that motor vehicle (Isuzu utility vehicle) with plate no. TAB 194 is registered to Mauro B. Mudlong of Norzagaray, Bulacan;
d. Police Report of Superintendent Jonnel Estomo that: “Further interview (of Mrs. Mudlong) conducted about the plate number of the vehicle disclosed that sometime on June 24, 2006 her husband was arrested by PFC Jose Villena and CPL Castro Bugalan both personnel of 56th Infantry Battalion , 7th ID Philippine Army stationed upper Bigte, Brgy. San Mateo, Norzagaray, Bulacan for Violations of Sec. 68 of PD 705 as amended “Transporting of Timber without permit”. Said case was filed at the Bulacan Prosecutor’s Office in Malolos Bulacan docketed under IS. No. 06-09-4287. Mrs. Mudlong further averred that the apprehending Officers mentioned above took possession and control of the [vehicle] allegedly used to transport illegal logs and it was impounded at 56th IB headquarters and still remain in their custody since seized”; and
e. The refusal of Gen. Esperon to disclose the findings of the Provost Marshal and Inspector General.
State Obligations to Jonas
29. The “State values the dignity of every human person and guarantees full respect for human rights”. (Constitution, Article II, Section 11)
30. The commitment by the State to respect and protect the human rights of Jonas is not only between the State and Jonas as a citizen pursuant to the Constitution, but also a commitment by the State or the Republic of the Philippines to other State signatories to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
31. “The Armed Forces of the Philippines is the protector of the people and the State”. (Constitution, Article II, Section 3)
32. “The prime duty of the Government is to serve and protect the people”. (Ibid., Section 4)
33. “The State shall take appropriate measures to investigate enforced disappearance cases committed by persons or groups of persons acting without the authorization, support or acquiescence of the State and to bring those responsible to justice.”
34. “The State shall ensure in particular that persons suspected of having committed an offense of enforced disappearance are not in a position to influence the progress of the investigations by means of pressure or acts of intimidation or reprisal aimed at the complainant, witnesses, relatives of the disappeared person or their defense counsel, or at persons participating in the investigation.”
Respondents Accountable for the Enforced Disappearance of Jonas Burgos

35. At the time of the enforced disappearance of Jonas, plate no. TAB 194 was under the custody of the 56th Infantry Battalion. When that plate was impounded together with the vehicle in June 2006, the commanding officer of the 56th IB was LTC Noel Clement. When that plate was seen by Security Guard Marquez on April 28th, the commanding officer of the 56th IB was LTC Melquiades Feliciano. Either Col. Clement took the plate with him when he was reassigned or Col. Feliciano had authorized its use in the vehicle used in the enforced disappearance of Jonas. The Provost Marshal investigated the incident and the former commanding officers of the 56th but the Chief of Staff has refused to make public the findings. These are the facts and reasonable grounds which make petitioner believe that the army in general and Colonels Clement and/or Feliciano in particular have abducted Jonas.
36. General Esperon, Maj. Gen. Bangit, Lt. Col Clement and Lt. Col Feliciano have all denied that they abducted Jonas, that they knew who abducted Jonas, or that they ordered the abduction of Jonas, or that Jonas is detained by them.
37. The police have been investigating the disappearance of Jonas but have not progressed from the discovery of the fact that plate no. TAB 194 identified by the security guard witness was under the custody of the 56th Infantry Battalion and the statements of the witnesses, sketches of the suspects, statements of the army officers. They have not been given a copy of the report of the Provost Marshal and Inspector General. The police have not asked the AFP for the summary of information of Lt. Col. Clement and Lt. Col. Feliciano– their personal circumstances, service records, their assignments before and after 56th IB. The police have not lined up the officers and men of the 56th IB for possible identification by the eye witnesses. The police investigators and the army officers to be investigated are all alumni of the Philippine Military Academy and their strong sense of brotherhood (but often misplaced as demonstrated in the investigation of the Jonas case) inhibits the police from conducting a more thorough and impartial investigation of their fellow PMA alumni in the army.
38. The report of the Provost Marshal and the Inspector General is important to determine the participation of Lt. Col. Clement and Lt. Col. Feliciano in the crime committed against Jonas and the responsibility of their superiors, Maj. Gen. Juanito Gomez of the 7th Infantry Division and Lt. Gen. Romeo Tolentino, if any, in the commission of the offense. But Gen. Esperon has prohibited its disclosure to the petitioner.
39. Agents of ISAFP headed by Maj. Gen. Bangit were reported in the PDI July 6, 2007 issue to have abducted Jonas. A copy of the PDI report is attached, marked as Annex E and made an integral part hereof.
40. The President and Commander in Chief of the Armed Forces of the Philippines has the duty to investigate who among the respondents have command responsibility for the enforced disappearance of Jonas Joseph T. Burgos.
41. There is no doubt that Respondents should be held accountable for the enforced disappearance of Jonas Burgos.
42. Respondent President Arroyo, in her capacity as Commander-in-Chief of the AFP, and having absolute authority over the persons and actions of the members of the Armed Forces (Gudani et al. v. Senga et al., 475 SCRA 671), should be held responsible for the disappearance of Jonas Burgos, considering that:
a. Long before the case of Jonas Burgos, a number of enforced disappearance and extra-judicial execution of political activists and militants, have been perpetrated by the military (Please see Melo Commission Report, dated January 22, 2007);
b. These killings have been reported almost daily in newspapers of general circulation more than two years before the enforced disappearance of Burgos;
c. In February, 2007, the United Nations Special Rapporteur for Human Rights came to Manila to investigate the reported summary executions of activists and journalists, and he rendered a report concluding that soldiers were responsible for the extra-judicial killings, and he chastised the AFP top brass for its state of denial about the military involvement in these crimes;
d. Likewise, more recently, a team of crime experts from the European Union also came to Manila to look into these executions, and it criticized the government for the extremely poor rate of convictions in extra-judicial killings;
e. The President has not publicly condemned the enforced disappearance of Jonas; her manifest reticence is as eloquent as her praise for General Palparan at her State of the Nation address which strongly suggests her mailed fist policy against her political enemies with no regard to human rights.
43. The failure of Respondents to act to prevent summary executions of activists, students and journalists and to provide measures likely to prevent or deter extra-judicial killings as well as their failure to prosecute perpetrators of these crimes make them liable under the doctrine of “command responsibility” as defined in international and domestic law, and even under Executive Order No. 226 dated February 25, 1995 and under the Revised Administrative Code of 1987.
Prayer

WHEREFORE, it is respectfully prayed that an order be issued to:

a. Gen. Hermogenes Esperon, Jr., Lt. Gen. Romeo P. Tolentino, Maj. Gen. Juanito Gomez, Maj. Gen. Delfin Bangit, Lt. Col. Noel Clement, Lt. Col. Melquiades Feliciano to produce Jonas Joseph T. Burgos and to release him from detention;
b. Director General Oscar Calderon to continue with the investigation of the enforced disappearance of Jonas Burgos but with vigor, diligence, thoroughness and impartiality to find Jonas, who abducted him, who ordered his abduction and to file the appropriate case or cases against the persons responsible with the proper prosecutor;
c. Gen. Esperon, Lt. Gen. Tolentino, Maj. Gen. Gomez, Maj. Gen. Bangit, Lt. Col. Clement, Lt. Col. Feliciano to make themselves available to the police for the investigation, to allow access by the police of documents, including report of the Provost Marshal and Inspector General, detention facilities and personnel relevant or required in the investigation;
d. President Gloria Macapagal-Arroyo as Commander-in-Chief to investigate who among the other respondents have command responsibility for the enforced disappearance of Jonas Joseph T. Burgos.

Petitioner prays for such other relief as may be just and equitable in the premises.

July 11, 2007 ; Makati City

PACIFICO AGABIN
IBP Life No. 251
PTR No. 0385207; 1/31/07; Makati
26/F, Pacific Star Bldg.
Gil Puyat cor. Makati Ave., Makati City

Fernandez & Kasilag-Villanueva
3/F Savana Market, 1203 P. Ocampo Ext.
(formerly Vito Cruz Ext.), Makati City, 1205
Tel No. 897-1374; Fax: 897-1375

By:

RICARDO N. FERNANDEZ
Roll No. 28449
IBP No. 698564; 01-05-07; Cavite
PTR No. 0300629; 01-05-07; Makati

&

MA. VERENA KASILAG-VILLANUEVA
Roll No. 39833
IBP No. 698565; 01-05-07; Manila 2
PTR No. 0300628; 01-05-07; Makati

VERIFICATION
CERTIFICATION OF NON-FORUM SHOPPING

REPUBLIC OF THE PHILIPPINES)
CITY OF MAKATI ) S.S.

I, EDITA T. BURGOS, of legal age, Filipino, with postal address c/o Fernandez & Kasilag –Villanueva Law Offices, 3/F Savana Market, Pablo Ocampo Street, Makati, after having been sworn to in accordance with law, hereby depose and state that:

1. I am the Petitioner in the above-captioned case;
2. I have caused the preparation of the foregoing Petition and that the allegations contained therein are true and correct based on my own personal knowledge and on authentic records.
3. I have not heretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of my knowledge, no other action or claim is pending in such other court, tribunal or quasi-judicial agency; and
4. If I should learn that the same or similar action or claim has been filed or is pending, I shall report this fact within five (5) days therefrom to this Honorable Court.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ____ day of July 2007, at Makati City.

EDITA T. BURGOS

SUBSCRIBED AND SWORN to before me this ____ day of July, 2007, at Makati, affiant showing to me her CTC. No 20070425864 issued on June 21, 2007 at Quezon City.

Notary Public

Doc. No. ______
Page No. _____
Book No. _____
Series of 2007.

COPY FURNISHED:
(BY REGISTERED MAIL)

President Gloria Macapagal-Arroyo
Malacanang, Manila

General Hermogenes Esperon, Jr.
General Headquarters of the AFP
Camp Aguinaldo, Quezon City

Lt. Gen. Romeo P. Tolentino
Philippine Army,
Fort Bonifacio, Taguig

Maj. Gen. Juanito Gomez
7th Infantry Division, Fort Magsaysay
Nueva Ecija

Maj. Gen. Delfin N. Bangit
Commanding Officer
Intelligence Service of the Armed Forces of the Philippines (ISAFP)
Camp Aguinaldo, Quezon City

Lt. Col. Noel Clement
Commanding Officer, Security and Escort Battalion
Fort Bonifacio Taguig

Lt. Col. Melquiades Feliciano
Former commanding officer of the 56th Infantry Battalion, Philippine Army
C/o Commanding General
Philippine Army
Fort Bonifacio, Taguig

EXPLANATION

Copies of the foregoing Petition filed with this Honorable Court were not served personally to the respondents because the law firm does not have sufficient personnel to personally deliver said copy.

RICARDO N. FERNANDEZ

ETB vs GMA petition contempt

REPUBLIC OF THE PHILIPPINES
COURT OF APPEALS
MANILA

EDITA T. BURGOS,
Petitioner,

- versus - CA GR No. ___________

PRESIDENT GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, JR., LT. GEN. ROMEO P. TOLENTINO, MAJ. GEN. JUANITO GOMEZ, LT. COL. MELQUIADES FELICIANO, LT. COL. NOEL CLEMENT ,
Respondents.
x-----------------------------------------------x

PETITION
(TO DECLARE IN CONTEMPT RESPONDENTS)

Petitioner, by undersigned counsels and before this Honorable Court respectfully alleges:

The Parties

1. Petitioner is of legal age, Filipino, with postal address c/o Fernandez & Kasilag –Villanueva Law Offices, 3/F Savana Market, Pablo Ocampo Street, Makati. She is the mother of Jonas Joseph T. Burgos. Jonas is a farmer; he manages the family farm in Bulacan. He is a member of a peasant organization in Bulacan, Alyansang Magbubukid ng Bulacan.

2. Respondents are:

a. President Gloria Macapagal-Arroyo, in her capacity as Commander-in-Chief of the Armed Forces of the Philippines, holding office at and may be served with summons at Malacanang, Manila;
b. General Hermogenes Esperon, Jr., Chief of Staff of the Armed Forces of the Philippines holding office and may be served with summons at the General Headquarters of the AFP, Camp Aguinaldo, Quezon City;
c. Lt. Gen. Romeo P. Tolentino, Commanding General, Philippine Army, holding office and may be served with summons at Fort Bonifacio, Taguig;
d. Maj. Gen. Juanito Gomez, commanding officer, 7th Infantry Division, holding office and may be served with summons at Fort Magsaysay, Nueva Ecija;
e. Lt. Col. Noel Clement, commanding officer of, holding office and may be served with summons at the Security and Escort Battalion Fort Bonifacio Taguig;
f. Lt. Col. Melquiades Feliciano, former commanding officer of the 56th Infantry Battalion, Philippine Army, present assignment unknown but may be served with summons through the Commanding General of the Philippine Army at Fort Bonifacio, Taguig.

Statement of the Case

3. Petitioner initiates this petition pursuant to Rule 71 Section 4 (a new rule in the 1997 Rules of Civil Procedure). According to said rule:

“Proceedings for indirect contempt may be initiated motu propio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt.

In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision”.

4. In the principal action filed by the petitioner at the Supreme Court (G.R.No. 178497/CA-G.R. SP No. 99839), a writ of habeas corpus was issued by the Supreme Court returnable to this Honorable Court of Appeals ordering herein respondents, among others, to have Jonas Joseph T. Burgos brought at the hearing held on July 27, 2007. At that hearing, herein respondents filed a common return denying that they have custody of Jonas Joseph T. Burgos. The return of respondents is false because they stated under oath in their return that they do not HAVE Jonas in their custody when in truth and in fact they HAD custody of Jonas. They had Jonas under their power when on April 28, 2007 Jonas was forced into a vehicle with plate no. TAB 194 which registration plate herein respondents admit in their return was in the custody of the 56th Infantry Battalion. Given the fact that registration plate no. TAB 194 was admitted to be in the custody of the 56th Infantry Battalion, it is reasonably presumed that the vehicle seen with the same plate is also a vehicle in the custody of the 56th Infantry Battalion.
5. Although the former commanding officers of the 56th IB, Lt. Cols. Feliciano and Clement, claim that registration plate no. TAB 194 was lost, they offered no proof of the lost – no document of loss; no explanation when it was lost, how it was lost, who lost it, where it was lost. At best, the claim of loss is self-serving and should not overcome the presumption that the vehicle seen with plate no. TAB 194 into which Jonas was forced and the persons who took him and boarded the same vehicle are connected with the 56th IB. On this basis, 56th IB of the Philippine Army HAD custody of Jonas.
6. At issue is the standard by which a return of a writ of habeas corpus is to be accepted by the court as a valid return or a false return. Is it enough for the respondents to say that they do not have custody of the person being sought? Or must the respondents state in their return that they do not have custody and have never had custody? The latter has been established as the standard by Supreme Court in the case of Martinez v Mendoza (August 17, 2006; G.R. No. 153795) cited also by the respondents in their return: “When respondents making the return of the writ state that they HAVE NEVER HAD CUSTODY over the person who is the subject of the writ, the petition must be dismissed, in the absence of definite evidence, to the contrary”. Not only must the respondents deny that they do not have custody but they must deny that they have never had custody.
7. In this case, the respondents merely stated in their return that THEY DO NOT HAVE CUSTODY of Jonas; they did not state that they have never had custody. Further, the competent and convincing evidence submitted and admitted traverse their return – the respondents HAD custody of Jonas at least when he was abducted on April 28, 2007.
8. President Arroyo did not verify the return. According to Rule 102 Section 11, the return “shall be signed by the person who makes it; and shall also be sworn to by him if the prisoner is not produced”.
9. According to Rule 102 Section 16, making or filing of a false return is punishable by contempt. President Arroyo committed contempt when she did not verify the return. The rest of the respondents committed contempt when they stated in the return that they do not HAVE custody but in truth and in fact they HAD custody of Jonas.

Statement of Facts

10. On July 11, 2007, Mrs. Edita T. Burgos filed with the Honorable Supreme Court a Petition, praying for, among others, the issuance of a writ of habeas corpus against herein named respondents.
11. On July 16, 2007 the Supreme Court resolved:

a. to ISSUE the Writ of Habeas Corpus prayed for, returnable to the Presiding Justice of Court of Appeals, Ma. Orosa, Manila, who shall IMMEDIATELY RAFFLE the case among the Justices of said Court and the Division where the Justice to whom the case is assigned shall SET the case for HEARING on 27 July 2007 at 10:00 a.m.;

b. to REQUIRE the respondents to PRODUCE the person of Jonas Joseph T. Burgos during the hearing of this case and to SHOW CAUSE why Jonas Joseph T. Burgos should not be immediately released from detention.

12. On 27 July 2007, at the scheduled hearing of the above-entitled case before the Eighth Division of the Court of Appeals, counsels for respondents appeared. None of the respondents produced Jonas Joseph T. Burgos in Court.
13. During the hearing, respondent Major General Delfin N. Bangit (Chief, ISAFP), through counsel, filed a Return to the Writ to the Court of Appeals.
14. After the hearing was adjourned that same morning of 27 July 2007, the rest of the respondents, through the Office of the Solicitor General, filed their Return to the writ to the Court of Appeals
15. The Return filed by Major General Bangit states, among others, that:
a. “Jonas Burgos was not arrested, abducted or detained by the Intelligence Service, Armed Forces of the Philippines (page 2, paragraph 2);

b. “he (Gen. Bangit) and ISAFP have no knowledge about the missing Jonas Burgos” ; and that “he (Gen. Bangit) has no personal knowledge about the alleged abduction of her son, Jonas.” (page 3, par. 4);

c. “JONAS BURGOS was neither arrested/abducted nor detained by Respondent MGEN BANGIT or ISAFP… and MGEN BANGIT and ISAFP simply do not know where Jonas Burgos may be found.” (page 5, par. 6)

16. On the other hand, the Return (not verified by President Arroyo) filed by the rest of the respondents states, among others, that:
a. “JONAS JOSEPH T. BURGOS, the person in whose behalf the present petition for habeas corpus has been filed IS NOT IN THE CUSTODY of the military or Armed Forces of the Philippines (AFP) and the police or the Philippine National Police (PNP). None of the respondents had any involvement, direct or otherwise, in his alleged abduction or disappearance. (page 3, par. 7);
b. “respondents have nothing to do with the alleged abduction/disappearance of JONAS JOSEPH T. BURGOS. Said person is NOT IN THEIR CUSTODY.” (page 8, par. 12.2);
c. “As repeatedly stated above, JONAS JOSEPH T. BURGOS is NOT IN THE CUSTODY OF THE RESPONDENTS.” (PAGE 8, PAR. 13);
d. “Respondents DO NOT HAVE IN THEIR CUSTODY JONAS JOSEPH T. BURGOS…” (page 17, par. 17)

17. Petitioner in her principal action alleged that she “received information that a security guard (Larry Marquez) at the Ever Gotesco Mall saw Jonas forced by persons who identified themselves to be “PULIS” into a vehicle with plate no. TAB 194; That plate number TAB 194 was traced to a vehicle registered in the name of Mauro Mudlong. Mr. Mudlong and his vehicle were apprehended on June 24, 2006 by PFC Jose Villena and CPL Castro Bugallon of the 56th Infantry Battalion of the Philippine Army (56th IB) based in Barangay San Mateo, Norzagaray Bulacan for violation of Section 68 of PD 705 or “Transporting of Timber Without a Permit” (filed with the Prosecutor of Bulacan at Malolos; IS No. 06-09-4287). Said vehicle with plate no. TAB 194 and its cargo were taken to the headquarters of the 56th IB at Norzagaray Bulacan.” (paragraphs 7 & 8).
18. In the affidavit of Lt. Col. Noel S. Clement attached as Annex B to the Return, he said: “2. I read in the newspapers and watched the news on TV that a certain Jonas Joseph Burgos was illegally abducted using a Toyota Revo vehicle with plate number TAB 194; 3. Sometime in June 2006, my men in the 56th IB were able to apprehend a vehicle with the same plate number that was being used in illegal logging activities. The vehicle was in our custody because, per agreement, joint operations conducted by the PA and the Department of Environment and Natural Resources (DENR) regarding illegal logging activities falling within its jurisdiction will be housed in the PA during the pendency of the case involving the same vehicle”.
19. Respondents admit that registration plate number TAB 194 was in their custody. It is the same registration plate number which eye witness Larry Marquez saw attached to the vehicle into which Jonas was forced into when he was abducted at the Ever Gotesco Mall on April 28, 2007. So when Jonas was forced into the vehicle with plate number TAB 194, admitted to be in the custody of the 56th IB, it is presumed that the respondents who are all officers of the Philippine Army HAD custody of Jonas.
20. Respondents claim that they HAVE no custody of Jonas. They do not claim in their return that they HAD custody of Jonas. They could not deny that they HAD custody of Jonas because the evidence shows that they HAD custody. The Returns filed by the respondents are FALSE RETURNS, allegations therein being manifest lies, contrary to fact and evidence.
21. The respondents having executed and submitted before the Court manifestly false returns, they are in contempt of court and must be penalized for such contemptuous acts.

DISCUSSION

22. According to Rule 102 Section 16 of the Revised Rules of Court:

“Sec. 16. Penalty for refusing to issue writ, or for disobeying the same. – A clerk of court who refuses to issue the writ after allowance thereof and demand therefor, or a person to whom a writ is directed, who neglects or refuses to obey or make return of the same according to command thereof, or makes false return thereof, or who, upon demand made by or on behalf of a prisoner, refuses to deliver to the person demanding, within six (6) hours after the demand therefor, a true copy of the warrant or order of commitment, shall forfeit to the party aggrieved the sum of one thousand pesos, to be recovered in a proper action and may also be punished by the court of judge as for contempt. (emphasis supplied)

23. In reference to the foregoing, Section 7, Rule 71 of the Revised Rules of Court penalizes indirect contempt as follows:

“Sec. 7. Punishment for indirect contempt -- If the respondent is adjudged guilty of indirect committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both. If he is adjudged guilty of contempt committed against a lower court, he may be punished by a fine not exceeding five thousand pesos or imprisonment not exceeding one (1) month, or both. If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved.

The writ of execution, as in ordinary civil actions, shall issue for the enforcement of a judgment imposing a fine unless the court otherwise provides.” (emphasis supplied)

24. In the case at bar, the competent and convincing evidence to prove that the respondents abducted Jonas are:

a. the statement of Elsa Agasang, restaurant employee at Hapag Kainan Ever Gotesco Mall Quezon City, who said that Jonas was forcibly taken while having is meal by 4 men and a woman who identified themselves to be police;
b. the statement of Security Guard Larry Marquez, who saw Jonas forced into a vehicle he described as a “Toyota Revo” with plate no. TAB 194;
c. Verification by the Land Transportation Office that motor vehicle (Isuzu utility vehicle) with plate no. TAB 194 is registered to Mauro B. Mudlong of Norzagaray, Bulacan;
d. Police Report of Superintendent Jonnel Stomo that: “Further interview (of Mrs. Mudlong) conducted about the plate number of the vehicle disclosed that sometime on June 24, 2006 her husband was arrested by PFC Jose Villena and CPL Castro Bugalan both personnel of 56th Infantry Battalion, 7th ID Philippine Army stationed upper Bigte, Brgy. San Mateo, Norzagaray, Bulacan for Violations of Sec. 68 of PD 705 as amended “Transporting of Timber without permit”. Said case was filed at the Bulacan Prosecutor’s Office in Malolos Bulacan docketed under IS. No. 06-09-4287. Mrs. Mudlong further averred that the apprehending Officers mentioned above took possession and control of the [vehicle] allegedly used to transport illegal logs and it was impounded at 56th IB headquarters and still remain in their custody since seized”;
e. the refusal of Gen. Esperon to disclose the findings of the Provost Marshal.
f. The letter of Gen. Esperon to the Commission on Human Rights dated May 14, 2007, with the attached Special Report on Jonas Joseph Burgos
g. The admissions in the affidavits of LTC Feliciano and LTC Clement that license plate no. TAB 194 was in the custody of the 56th IB.

Attached hereto are copies of the foregoing documents, marked as Annexes “A” to “G” and made integral part hereof.
25. Evidence point to the fact that at one time or another, the respondents HAD custody of Jonas. The fact that the registration plate no. TAB 194 has been established to have been in the custody of the 56th IB – under LTC Clement and LTC Feliciano – creates a direct link between the abductors and the Philippine Army.
26. The issuance by General Hermogenes Esperon, Jr. of the AFP’s Special Report on Jonas Burgos proves that the military has tagged Jonas as a member of the CPP-NPA, and thus establishes the motive for the abduction.
27. The refusal of Gen. Esperon to allow the submission of the Provost Marshal Report to this Honorable Court further proves that they are in possession of information vital to the family’s determination of the whereabouts of Jonas. The declarations of innocence (or ignorance?) before the Honorable Court as to the custody of Jonas directly impede, obstruct and degrade the administration of justice.

28. “In whatever context it may arise, contempt of court involves the doing of an act, or the failure to do an act, in such a manner as to create an affront to the court and the sovereign dignity with which it is clothed.” (San Luis v. Court of Appeals, 365 SCRA 279, 287 [September 13, 2001] citing People v. Godoy, 243 SCRA 64 [1995].

PRAYER

WHEREFORE premises considered, it is respectfully prayed of this Honorable Court that the Return to the Writ filed by the respondents be declared as FALSE RETURNS; the respondents be cited in contempt of court.
Other just and equitable reliefs are also prayed for.
Makati City for Manila, August 13, 2007

PACIFICO AGABIN
IBP Life No. 251
PTR No. 0385207; 1/31/07; Makati
26/F, Pacific Star Bldg.
Gil Puyat cor. Makati Ave., Makati City

Fernandez & Kasilag-Villanueva
3/F Savana Market, 1203 P. Ocampo Ext.
(formerly Vito Cruz Ext.), Makati City, 1205
Tel No. 897-1374; Fax: 897-1375

By:

RICARDO N. FERNANDEZ
Roll No. 28449
IBP No. 698564; 01-05-07; Cavite
PTR No. 0300629; 01-05-07; Makati

&

MA. VERENA KASILAG-VILLANUEVA
Roll No. 39833
IBP No. 698565; 01-05-07; Manila 2
PTR No. 0300628; 01-05-07; Makati

VERIFICATION
CERTIFICATION OF NON-FORUM SHOPPING

REPUBLIC OF THE PHILIPPINES)
CITY OF MAKATI ) S.S.

I, EDITA T. BURGOS, of legal age, Filipino, with postal address c/o Fernandez & Kasilag –Villanueva Law Offices, 3/F Savana Market, Pablo Ocampo Street, Makati, after having been sworn to in accordance with law, hereby depose and state that:

1. I am the Petitioner in the above-captioned case;
2. I have caused the preparation of the foregoing Petition and that the allegations contained therein are true and correct based on my own personal knowledge and on authentic records.
3. I have filed a Petition before the Supreme Court, docketed as GR. No. 178497, currently being heard by the 7th Division of the Court of Appeals under CA.G.R. SP No. 99839 involving the same personalities and issues. Aside from said case, I have not heretofore commenced any action or filed any other claim involving the same issues in any other courts, tribunals or quasi-judicial agencies and, to the best of my knowledge, no other action or claim is pending in such other court, tribunal or quasi-judicial agency; and
4. If I should learn that the same or similar action or claim has been filed or is pending, I shall report this fact within five (5) days therefrom to this Honorable Court.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ____ day of August 2007, at Makati City.

EDITA T. BURGOS

SUBSCRIBED AND SWORN to before me this ____ day of August, 2007, at Makati, affiant showing to me her CTC. No 20070425864 issued on June 21, 2007 at Quezon City.

Notary Public

Doc. No. ______
Page No. _____
Book No. _____
Series of 2007.

COPY FURNISHED:

President Gloria Macapagal-Arroyo
Malacanang, Manila

General Hermogenes Esperon, Jr.
Chief of Staff of the Armed Forces of the Philippines
General Headquarters of the AFP
Camp Aguinaldo, Quezon City

Lt. Gen. Romeo P. Tolentino
Commanding General, Philippine Army
Fort Bonifacio, Taguig

Maj. Gen. Juanito Gomez
Commanding Officer, 7th Infantry Division
Fort Magsaysay, Nueva Ecija

Lt. Col. Noel Clement
Commanding Officer
Security and Escort Battalion
Fort Bonifacio Taguig

Lt. Col. Melquiades Feliciano
(former Commanding Officer of the 56th Infantry Battalion,
Philippine Army)
Commanding General, Philippine Army
Fort Bonifacio, Taguig

OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo Street, Legaspi Village
Makati City

Explanation
Copies of this pleading were served by registered mail only as personal service is rendered difficult due to time constraints and for lack of sufficient personnel to cause personal delivery of all the firm’s pleadings.

RICARDO N. FERNANDEZ

Monday, February 8, 2010

Mrs. B

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