Thursday, July 14, 2011

Supreme Court Resolution (July 5, 2011)

Republic of the Philippines
Supreme Court
Manila

EN BANC

EDITA T. BURGOS,
Petitioner,

- versus -

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
EDITA T. BURGOS,
Petitioner,

- versus -

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
EDITA T. BURGOS,
Petitioner,

- versus -

CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, GEN. HERMOGENES ESPERON, JR., Commanding General of the Philippine Army, LT. GEN. ALEXANDER YANO; Chief of the Philippine National Police, DIRECTOR GENERAL AVELINO RAZON, JR.,
Respondents.
G.R. No. 183711
G.R. No. 183712
G.R. No. 183713

Present:

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,*
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

Promulgated:

July 5, 2011
x-----------------------------------------------------------------------------------------x

R E S O L U T I O N

BRION, J.:

We review,[1] in light of the latest developments in this case, the decision[2] dated July 17, 2008 of the Court of Appeals (CA) in the consolidated petitions for Habeas Corpus,[3] Contempt[4] and Writ of Amparo[5] filed by Edita T. Burgos (petitioner). The assailed CA decision dismissed the petition for the issuance of the Writ of Habeas Corpus; denied the petitioner’s motion to declare the respondents in Contempt; and partially granted the privilege of the Writ of Amparo.[6]
On June 22, 2010, we issued a Resolution[7] referring the present case to the Commission on Human Rights (CHR), as the Court’s directly commissioned agency tasked with the continuation of the investigation of Jonas Joseph T. Burgos’ abduction and the gathering of evidence, with the obligation to report its factual findings and recommendations to this Court. We found the referral necessary as the investigation by the PNP-CIDG, by the AFP Provost Marshal, and even by the CHR had been less than complete; for one, there were very significant lapses in the handling of the investigation. In particular, we highlighted the PNP-CIDG’s failure to identify the cartographic sketches of two (one male and one female) of the five abductors of Jonas, based on their interview of eyewitnesses to the abduction.[8] We held:

Considering the findings of the CA and our review of the records of the present case, we conclude that the PNP and the AFP have so far failed to conduct an exhaustive and meaningful investigation into the disappearance of Jonas Burgos, and to exercise the extraordinary diligence (in the performance of their duties) that the Rule on the Writ of Amparo requires. Because of these investigative shortcomings, we cannot rule on the case until a more meaningful investigation, using extraordinary diligence, is undertaken.

From the records, we note that there are very significant lapses in the handling of the investigation - among them the PNP-CIDG’s failure to identify the cartographic sketches of two (one male and one female) of the five abductors of Jonas based on their interview of eyewitnesses to the abduction. This lapse is based on the information provided to the petitioner by no less than State Prosecutor Emmanuel Velasco of the DOJ who identified the persons who were possibly involved in the abduction, 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 AFP. No search and certification were ever made on whether these persons were AFP personnel or in other branches of the service, such as the Philippine Air Force. As testified to by the petitioner, no significant follow through was also made by the PNP-CIDG in ascertaining the identities of the cartographic sketches of two of the abductors despite the evidentiary leads provided by State Prosecutor Velasco of the DOJ. Notably, the PNP-CIDG, as the lead investigating agency in the present case, did not appear to have lifted a finger to pursue these aspects of the case.

We note, too, that no independent investigation appeared to have been made by the PNP-CIDG to inquire into the veracity of Lipio’s and Manuel’s claims that Jonas was abducted by a certain @KA DANTE and a certain @KA ENSO of the CPP/NPA guerilla unit RYG. The records do not indicate whether the PNP-CIDG conducted a follow-up investigation to determine the identities and whereabouts of @KA Dante and @KA ENSO. These omissions were aggravated by the CA finding that the PNP has yet to refer any case for preliminary investigation to the DOJ despite its representation before the CA that it had forwarded all pertinent and relevant documents to the DOJ for the filing of appropriate charges against @KA DANTE and @KA ENSO.

…While significant leads have been provided to investigators, the investigations by the PNP-CIDG, the AFP Provost Marshal, and even the Commission on Human Rights (CHR) have been less than complete. The PNP-CIDG’s investigation particularly leaves much to be desired in terms of the extraordinary diligence that the Rule on the Writ of Amparo requires.

Following the CHR’s legal mandate, we gave the Commission the following specific directives:[9]

(a) ascertaining the identities of the persons appearing in the cartographic sketches of the two alleged 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 AFP; 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.

In this same Resolution, we also affirmed the CA’s dismissal of the petitions for Contempt and for the issuance of a Writ of Amparo with respect to President Macapagal-Arroyo, as she is entitled as President to immunity from suit.[10]

On March 15, 2011, the CHR submitted to the Court its Investigation Report on the Enforced Disappearance of Jonas Burgos (CHR Report), in compliance with our June 22, 2010 Resolution.[11] In this Report, the CHR recounted the investigations undertaken, whose pertinent details we quote below:

On June 26, 2010, the CHR issued Resolution CHR IV No. A2010-100 to intensify the investigation of the case of the Burgos enforced disappearance; and for this purpose, created a Special Investigation Team…headed by Commissioner Jose Manuel S. Mamauag.

xxx

In compliance with the directive mentioned in the above-quoted En Banc Resolution of the Supreme Court, the Team conducted field investigations by: (1) interviewing a) civilian authorities involved in the first investigation of the instant case; b) military men under detention for alleged violations of Articles of War; c) Security Officers of Ever Gotesco Mall, Commonwealth Avenue, Quezon City; d) two (2) of the three (3) CIDG witnesses; e) two (2) eyewitnesses who described to the police sketch artist two (2) faces of a male and female abductors of Jonas Burgos; f) Rebel-Returnees (RRs); g) officers and men in the military and police service; h) local officials and other government functionaries; and i) ordinary citizens; (2) inquiring into the veracity of CIDG witnesses 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; (3) securing case records from the prosecution service and courts of law; (4) visiting military and police units. Offices, camps, detention centers, and jails and requesting copies of documents and records in their possession that are relevant to the instant case; (5) searching for and interviewing witnesses and informants; and (6) pursuing leads provided by them.

S. Email’s “Star-Struck”

38. Pursuing the lead mentioned in the anonymous e-mail, which was attached to the Burgos petition as Exhibit “J”, “that the team leader (T.L.) in the Jonas Burgos abduction was a certain Army Captain, (promotable to Major), a good looking guy (tisoy), and a potential showbiz personality known otherwise as Captain Star-struck,” the Team requested the CHR Clearance Section, Legal Division for any information leading to T.L. or to all Philippine Army applicants for CHR clearance whose ranks are Captains or Majors promoted during the years 2007 to 2009.

39. Sometime in November 2010, the Team was able to track down one CHR clearance-applicant who most likely possesses and/or matches the information provided in the said lead. But when his photo/picture was presented to the eyewitnesses, they failed to identify him.

40. Undaunted with the negative identification, the Team suspected that the “team leader” might not have participated in the actual abduction inside Hapag Kainan Restaurant, the scene of the crime, but most probably was in one of the “three cars” allegedly used during the operation while giving orders or commanding the actual abductors.

41. In relation to the above suspicion, the Team has theorized that officers below the rank of Captain might have perpetrated the actual abduction.

42. The Team explored this possibility and focused its attention on the officers of the 7th ID, PA, namely: Lt. Vicente O. Dagdag, Jr., the S-4 of 65 IB who executed an affidavit relative to the alleged stolen Plate No. TAB-194; 2Lt. Rey B. Dequito of 56th IB, the witness against Edmond Dag-Uamn for the alleged crime of murder; and 1Lt. Usmalik Tayaban, the Team Leader with the 56th IB who issued a Custody Receipt in connection with the Petition for Habeas Corpusfiled in Angeles City relative to the 2006 Emerito Lipio abduction case against the police and military personnel.

T. Face-book account

43. Google search of the names of the above mentioned individuals yielded negative result except for 1Lt. Usmalik Tayaban, whose name was connected to a social networking site, the Face-book account of PMA BATCH SANGHAYA 2000.

44. In the Facebook account Sanghaya, the contents of which is categorized as “PUBLIC” or open to public viewing, it appears that “Malik” Tayaban is a graduate of the Philippine Military Academy (PMA) Batch Sanghaya of 2000. Other leads were also discovered, such as the following: vernacular description of “tisoy” which was mentioned by one of the users in the “comment portion” of the account which incidentally was also mentioned in the anonymous e-mail as the “team leader” (T.L.); the picture of a man sporting a “back-pack”, which was also mentioned by witness Elsa. Per Elsa’s account, the person in the cartographic sketch was wearing a “back-pack.”

45. Aware of the intricacies of the above-mentioned leads, the Team caused the reproduction of all pictures in the Facebook account for future reference; and requested the NBI (Burgos) Team for a copy of the PMA Sanghaya Batch 2000 Year Book, also for future reference.

U. The PMA Year Book

46. Through the efforts of the NBI (Burgos) Team, the Team was able to get the PMA Year Book of Sanghaya Batch 2000 and the location of one important eyewitness in the abduction.

V. JEFFREY CABINTOY

47. On December 1, 2010, the Team together with the NBI Team were able to locate Jeffrey Cabintoy (Jeffrey), one of the two (2) eyewitnesses who provided the police cartographic artist with the description of two (2) principal abductors of Jonas Burgos. Jeffrey narrated in details (sic) the circumstances that happened before and during the abduction.

48. On December 7, 2010, the Team and Jeffrey went to the place of incident at Ever Gotesco Mall, Quezon City to refresh his memory and re-enact what transpired. In the afternoon of the same date, the Team invited Jeffrey to the CHR Central Office in Quezon City, where he was shown for identification twenty (20) copies of colored photographs/pictures of men and the almost two hundred forty-four (244) photographs/pictures stored in the computer and lifted from the profiles of the Philippine Military Academy Year Book of Batch Sanghaya 2000.

49. Jeffrey pointed to a man in the two (2) colored group pictures/photographs, that he identified as among the 8-man group who abducted Jonas Burgos. For record and identification purposes, the Team encircled the face that Jeffrey identified in the two pictures; then he affixed his signature on each picture. Also, while leafing through the pictures of the PMA graduates in the Year Book of Sanghaya 2000 Batch, the witness identified a picture, with a bold and all-capitalized name HARRY AGAGEN BALIAGA JR and the words Agawa, Besao, Mt. Province printed there under the capitalized words PHILIPPINE ARMY written on the upper portion, as the same person he pointed out in the two group pictures just mentioned above. Immediately thereafter, the Team caused the production of the photo identified by Jeffrey and asked him to affix his signature, which he also did.

50. After examining each of these pictures, Jeffrey declared that it dawned on him that based on his recollection of faces involved in the abduction of Jonas Burgos, he now remembers the face of a man, other than the two (2) faces whose description he already provided before to a police sketch artist, who was part of the 8-man group of abductors. And he also confirms it now that the person he is referring to was indeed seen by him as one of those who abducted Jonas Burgos at Hapag Kainan Restaurant of Ever Gotesco Mall, Commonwealth Avenue, Quezon City.

51. When asked how certain he was of the person he identified, considering that the printed copy of the photo lifted from the Face-book Sanghaya Account was taken sometime in the year 2010; while the picture appearing in the computer was lifted from the PMA Sanghaya 2000 Batch Year Book, Jeffrey replied “Ang taong ito ay aking natatandaan sa kadahilanan na nuong una siya ay nakaupo na katabi sa bandang kaliwa nang taong dumukot at natapos silang mag usap lumapit sa akin at pilit akong pinipigilan na wag daw makialam at ang sabi nya sa akin ay “WAG KA DITONG MAKIALAM KASI ANG TAONG ITO AY MATAGAL NA NAMING SINUSUBAYBAYAN DAHIL SA DROGA” kahit pa halos nagmamakaawa na nang tulong ang taong dinukot; at matapos nuon ay sapilitan na nilang binitbit sa labas ang biktima.” ( I remember this man for the reason that at first he was seated at the left side of the person abducted; and after they talked, he approached me and was preventing me forcefully saying not to interfere and he said to me: “DON’T YOU INTERFERE HERE SINCE WE HAVE BEEN DOING SOME SURVEILLANCE ON THIS MAN FOR SOME TIME ALREADY BECAUSE OF DRUGS” despite that the man was already pleading for help, and after that, they forcibly dragged the victim outside.)

52. When asked if he could identify the picture of Jonas Burgos, Jeffrey affirmed that the person in the picture is the person referred to by him as the victim of abduction and his name is Jonas Burgos. He further stated that he learned of the victim’s name when he saw his picture flashed on TV and hear his name. When asked if he is willing to execute an affidavit on the facts that he has just provided, he answered yes and at that juncture the Team assisted him in the preparation of his “Sinumpaang Salaysay” based on his personal knowledge and in a language known to him. After which, the Team asked Jeffrey to read, examine and determine whether all the information he just provided are reflected in his “Sinumpaang Salaysay” and Jeffrey answered yes. Thereafter, Jeffrey affixed his signature after being sworn to before a lady CHR lawyer and a duly commissioned Notary Public for and in Quezon City.

W. Daguman confirmed Tayaban’s and Baliaga’s actual affiliation with the military and their assignment at the 56th Infantry Battalion, 7th ID

53. On December 10, 2010, the Team went to the Bulacan Provincial Jail to visit Edmond Dag-Uman and asked him to identify his former Company Commander at the 56th IB, 71 ID, Lt. Usmalik Tayaban and to identify the pictures.

54. Edmond Dag-uman identified the encircled in the picture as LT. HARRY A. BALIAGA, JR., and the man with a receding hair as LT. USMALIK TAYABAN, his former Company Commander.

55. When asked if he was willing to reduce in writing his precious statements and those that just mentioned, he replied “BAKA MAPAHAMAK AKO NYAN! (That might endanger me!). Following a lengthy discussion on the pros and cons of executing a sworn statement and the assurance of the Team to exclude his statements that are critical to the military establishment, it dawned on Dag-uman that his statement would be of help to the Commission in bringing his case to the proper authorities for review and appropriate action, that he eventually expressed his willingness to do so.

56. After which the Team immediately went to a “Computer Café” nearby to encode the “Salaysay”, then the printed copy was presented to him for his determination whether he is in full accord with the contents therein. Edmond spent about thirty (30) minutes reading it and changed the word “Charlie” to “Bravo” and then affixed his initial on it. He also signed the “Sinumpaang Salaysay” after being sworn to before a team member authorized to administer oath.

X. Second visit to ELSA AGASANG and her Supplemental Sworn Statement

57. On January 26, 2011, the Team along with witness Jeffrey went to Bicol to meet witness Elsa. The aim was to help Elsa recall the faces of those she saw in the abduction by showing to her recently-acquired pictures of suspects.

58. For the first time they would re-unite, after almost four years since that fateful day of April 28, 2007, when both of them had the experience of witnessing an abduction incident, which rendered them jobless and unsafe.

59. The Team told Jeffrey to sit in front of Elsa without introducing him to her. After about half an hour into the conversation, she expressed disbelief when she realized that she was facing in person he co-worker that she knew very well.

60. On January 29, 2011, Elsa executed her Karagdagang Sinumpaang Salaysay affirming her Salaysay given before PCI Lino DL Banaag at the CIDU, Quezon City Police District Office, Camp Karingal, Quezon City; and corroborating the material allegations contained in the Sinumpaang Salaysay of Jeffrey.

On the basis of the evidence it had gathered, the CHR submitted the following findings:[12]

Based on the facts developed by evidence obtaining in this case, the CHR finds that the enforced disappearance of Jonas Joseph T. Burgos had transpired; and that his constitutional rights to life liberty and security were violated by the Government have been fully determined.

Jeffrey Cabintoy and Elsa Agasang have witnessed on that fateful day of April 28, 2007 the forcible abduction of Jonas Burgos by a group of about seven (7) men and a woman from the extension portion of Hapag Kainan Restaurant, located at the ground floor of Ever Gotesco Mall, Commonwealth Avenue, Quezon City.

xxxx

The eyewitnesses mentioned above were Jeffrey Cabintoy (Jeffrey) and Elsa Agasang (Elsa), who at the time of the abduction were working as busboyand Trainee-Supervisor, respectively, at Hapag Kainan Restaurant.

In his Sinumpaang Salaysay, Jeffrey had a clear recollection of the face of HARRY AGAGEN BALIAGA, JR. as one of the principal abductors, apart from the faces of the two abductors in the cartographic sketches that he described to the police, after he was shown by the Team the pictures in the PMA Year Book of Batch Sanghaya 2000 and group pictures of men taken some years thereafter.

The same group of pictures were shown to detained former 56th IB Army trooper Edmond M. Dag-uman (Dag-uman), who also positively identified Lt. Harry Baliaga, Jr. Daguman’s Sinumpaang Salaysay states that he came to know Lt. Baliaga as a Company Commander in the 56thIB while he was still in the military service (with Serial No. 800693, from 1997 to 2002) also with the 56th IB but under 1Lt. Usmalik Tayaban, the Commander of Bravo Company. When he was arrested and brought to the 56th IB Camp in April 2005, he did not see Lt. Baliaga anymore at the said camp. The similar reaction that the pictures elicited from both Jeffrey and Daguman did not pass unnoticed by the Team. Both men always look pensive, probably because of the pathetic plight they are in right now. It came as a surprise therefore to the Team when they could hardly hide their smile upon seeing the face of Baliaga, as if they know the man very well.

Moreover, when the Team asked how Jeffrey how certain was he that it was indeed Baliaga that he saw as among those who actually participated in Jonas’ abduction, Jeffrey was able to give a graphic description and spontaneously, to boot, the blow by blow account of the incident, including the initial positioning of the actors, specially Baliaga, who even approached, talked to, and prevented him from interfering in their criminal act.

A Rebel-returnee (RR) named Maria Vita Lozada y Villegas @KA MY, has identified the face of the female in the cartographic sketch as a certain Lt. Fernando. While Lozada refuses to include her identification of Lt. Fernando in her Sinumpaang Salaysay for fear of a backlash, she told the Team that she was certain it was Lt. Fernando in the cartographic sketch since both of them were involved in counter-insurgency operations at the 56th IB, while she was under the care of the battalion from March 2006 until she left the 56th IB Headquarters in October 2007. Lozada’s involvement in counter-insurgency operations together with Lt. Fernando was among the facts gathered by the CHR Regional Office 3 Investigators, whose investigation into the enforced disappearance of Jonas Joseph Burgos was documented by way of an After Mission Report dated August 13, 2008.

Most if not all the actual abductors would have been identified had it not been for what is otherwise called as evidentiary difficultiesshamelessly put up by some police and military elites. The deliberate refusal of TJAG Roa to provide the CHR with the requested documents does not only defy the Supreme Court directive to the AFP but ipso facto created a disputable presumption that AFP personnel were responsible for the abduction and that their superiors would be found accountable, if not responsible, for the crime committed. This observation finds support in the disputable presumption “That evidence willfully suppressed would be adverse if produced.” (Paragraph (e), Section 3, Rule 131 on Burden of Proof and Presumptions, Revised Rules on Evidence of the Rules of Court of the Philippines).

In saying that the requested document is irrelevant, the Team has deemed that the requested documents and profiles would help ascertain the true identities of the cartographic sketches of two abductors because a certain Virgilio Eustaquio has claimed that one of the intelligence operatives involved in the 2007 ERAP 5 case fits the description of his abductor.

As regards the PNP CIDG, the positive identification of former 56th IB officer Lt. HARRY A. BALIAGA, JR. as one of the principal abductors has effectively crushed the theory of the CIDG witnesses that the NPAs abducted Jonas. Baliaga’s true identity and affiliation with the military have been established by overwhelming evidence corroborated by detained former Army trooper Dag-uman.

For lack of material time, the Commission will continue to investigate the enforced disappearance of Jonas Burgos as an independent body and pursuant to its mandate under the 1987 Constitution. Of particular importance are the identities and locations of the persons appearing in the cartographic sketches; the allegations that CIDG Witnesses Emerito G. Lipio and Meliza Concepcion-Reyes are AFP enlisted personnel and the alleged participation of Delfin De Guzman @ Ka Baste in the abduction of Jonas Burgos whose case for Murder and Attempted Murder was dismissed by the court for failure of the lone witness, an army man of the 56th IB to testify against him.

Interview with Virgilio Eustaquio, Chairman of the Union Masses for Democracy and Justice (UMDJ), revealed that the male abductor of Jonas Burgos appearing in the cartographic sketch was among the raiders who abducted him and four others, identified as Jim Cabauatan, Jose Curament, Ruben Dionisio and Dennis Ibona otherwise known as ERAP FIVE.
Unfortunately, and as already pointed out above, The Judge Advocate General (TJAG) turned down the request of the Team for a profile of the operatives in the so-called “Erap 5” abduction on the ground of relevancy and branded the request as a fishing expedition per its Disposition Form dated September 21, 2010.

Efforts to contact Virgilio Eustaquio to secure his affidavit proved futile, as his present whereabouts cannot be determined. And due to lack of material time, the Commission decided to pursue the same and determine the whereabouts of the other members of the “Erap 5” on its own time and authority as an independent body.

Based on the above-cited findings, the CHR submitted the following recommendations for the Court’s consideration, viz:[13]

i. To DIRECT the Department of Justice (DOJ), subject to certain requirements, to immediately admit witnesses Jeffrey T. Cabintoy and Elsa B. Agasang to the Witness Protection, Security and Benefit Program under Republic Act No. 6981;

ii. To DIRECT the Department of Justice (DOJ) to commence the filing of Criminal Charges for Kidnapping/Enforced Disappearance and/or Arbitrary Detention against 1LT. HARRY AGAGEN BALIAGA, JR. of the Philippine Army, as Principal by Direct Participation in the abduction of Jonas Joseph T. Burgos on April 28, 2007 from Ever Gotesco Mall, Commonwealth Avenue, Quezon City;

iii. To DIRECT the Department of Justice to cause the filing of Obstruction of Justice against Emerito Lipio y Gonzales; Marlon Manuel y de Leon; and Meliza Concepcion-Reyes for giving false or fabricated information to the CIDG and for their willful refusal to cooperate with the CHR Team in the investigation of the herein enforced disappearance;

iv. To DIRECT Cavite Provincial Prosecutor Emmanuel Velasco to appear before the Supreme Court and to divulge his source/informant as the same does not fall under the privilege communication rule;

v. To DIRECT the PNP-CIDG RC, NCRCIDU, Atty. Joel Napoleon M. Coronel, to explain his Memorandum to the CIDG-CIDD stating that “the witnesses were reportedly turned over by the Bulacan PPO and Philippine Army to the CIDG for investigation…,” considering that said witnesses were not under police or military custody at the time of the supposed turn-over in the evening of August 22, 2007 and to identify the PNP officer who directed the CIDG operatives to fetch Emerito G. Lipio in Bulacan and the two other CIDG witnesses for tactical interrogation;

vi. To REQUIRE General Roa of the Judge Advocate General Office, AFP, and the Deputy Chief of Staff for Personnel, JI, AFP, to explain their failure and/or refusal to provide the CHR with copies of documents relevant to the case of Jonas T. Burgos, particularly the following: (a) Profile and Summary of Information and pictures of T/Sgt. Jason Roxas (Philippine Army) and three (3) other enlisted personnel mentioned in paragraph (1) of the dispositive portion of the Supreme Court En Banc Resolution issued on 22 June 2010 in the instant consolidated cases, including a certain 2Lt. Fernando, a lady officer involved in the counter-insurgency operations of the 56th IB in 2006 to 2007; (b) 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 (c)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;

vii. To DIRECT the PNP-CIDG to comply with its mandate under paragraph (3) of the dispositive portion of the Supreme Court En Banc Resolution promulgated on 22 June 2010 in the instant consolidated cases;

viii. To DIRECT Harry A. Baliaga, Jr., the Philippine Army’s 56th Infantry Battalion in Bulacan and 7th Infantry Division at Fort Magsaysay in Laur, Nueva Ecija to produce the living body of the victim Jonas Joseph T. Burgos before this Court;

ix. To DIRECT the Department of Justice to review and determine the probable liability/accountability of the officers and enlisted personnel concerned of the Philippine Army’s 56th IB and the 7th ID, relative to the torture and/or other forms of ill-treatment of Edmond M. Dag-uman, while he was in detention at Fort Magsaysay sometime in October 2005, as part of the collateral discoveries in the conduct of this investigation;

x. To DIRECT the Department of Justice to review the case filed against Edmond Dag-uman alias DELFIN DE GUZMAN with the Regional Trial Court Branch 10 in Malolos City docketed as Criminal Case Nos. 1844-M-2005 and 186-M-2006; and the legal basis, if any, for his continued detention at the Bulacan Provincial Jail in Malolos City; and

xi. To DIRECT the Department of Interior and Local Government (DILG) to study the probable liability of Adelio A. Asuncion, former Jail Warden of Bulacan Provincial Jail for his failure to account the records of the inmates more specifically the records of turn-over Edmond Dag-uman from the 7th ID.

Pursuant to our June 22, 2010, the CHR furnished the petitioner with the copy of its report, which the petitioner apparently relied upon in filing a criminal complaint against Lt. Harry A. Baliaga, Jr. and other members of the military.[14]

OUR RULING

A. Amparo

After reviewing the evidence in the present case, the CA findings and our findings in our June 22, 2010 Resolution heretofore mentioned, including the recent CHR findings that Lt. Harry A. Baliaga, Jr., (Lt. Baliaga) of the 56th Infantry Battalion, 7th Infantry Division, Philippine Army is one of the abductors of Jonas, we resolve to hold in abeyance our ruling on the merits in the Amparo aspect of the present case and refer this case back to the CA in order to allow Lt. Baliaga and the present Amparo respondents to file their respective Comments on the CHR Report within a non-extendible period of fifteen (15) days from receipt of this Resolution. The CA shall continue with the hearing of the Amparo petition in light of the evidence previously submitted, the proceedings it already conducted and the subsequent developments in this case, particularly the CHR Report. Thereafter, the CA shall rule on the merits of the Amparo petition. For this purpose, we order that Lt. Baliaga be impleaded as a party to the Amparopetition (CA-G.R. SP No. 00008-WA). This directive to implead Lt. Baliaga is without prejudice to similar directives we may issue with respect to others whose identities and participation may be disclosed in future investigations.

We also note that Office of the Judge Advocate General (TJAG) failed and/or refused to provide the CHR with copies of documents relevant to the case of Jonas, and thereby disobeyed our June 22, 2010 Resolution. To recall, we issued a Resolution declaring the CHR as the Court’s directly commissioned agency tasked with the continuation of the investigation of Jonas’ abduction and the gathering of evidence, with the obligation to report its factual findings and recommendations to this Court. In this same Resolution, we required the then incumbent Chiefs of the AFP and the PNP to make available and to provide copies to the CHR, of all documents and records in their possession and as the CHR may require, relevant to the case of Jonas, subject to reasonable regulations consistent with the Constitution and existing laws.

In its March 15, 2011 Report, the CHR recommended, for the Court’s consideration:[15]

vi. To REQUIRE General Roa of the Judge Advocate General Office, AFP, and the Deputy Chief of Staff for Personnel, JI, AFP, to explain their failure and/or refusal to provide the CHR with copies of documents relevant to the case of Jonas T. Burgos, particularly the following: (a) Profile and Summary of Information and pictures of T/Sgt. Jason Roxas (Philippine Army) and three (3) other enlisted personnel mentioned in paragraph (1) of the dispositive portion of the Supreme Court En Banc Resolution issued on 22 June 2010 in the instant consolidated cases, including a certain 2Lt. Fernando, a lady officer involved in the counter-insurgency operations of the 56th IB in 2006 to 2007; (b) 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 (c) 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.

Section 16 of the Rule on the Writ of Amparo provides that any person who otherwise disobeys or resists a lawful process or order of the court may be punished for contempt, viz:

SEC. 16. Contempt. – The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine
Acting on the CHR’s recommendation and based on the above considerations, we resolve to require General Roa of TJAG, AFP, and the Deputy Chief of Staff for Personnel, JI, AFP, at the time of our June 22, 2010 Resolution, and then incumbent Chief of Staff, AFP,[16] to show cause and explain, 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 defying our June 22, 2010 Resolution.

B. Habeas Corpus

In light of the new evidence obtained by the CHR, particularly the Cabintoy evidence that positively identified Lt. Baliaga as one of the direct perpetrators in the abduction of Jonas and in the interest of justice, we resolve to set aside the CA’s dismissal of the habeas corpus petition and issue anew the writ of habeas corpus returnable to the Presiding Justice of the CA who shall immediately refer the writ to the same CA division that decided the habeas corpus petition (CA-GR SP No. 99839).

For this purpose, we also order that Lt. Baliaga be impleaded as a party to the habeas corpus petition and require him – together with the incumbent Chief of Staff, AFP; the incumbent Commanding General, Philippine Army; and the Commanding Officer of the 56th IB at the time of the disappearance of Jonas, Lt. Col. Feliciano – to produce the person of Jonas and to show cause why he should not be released from detention.

The CA shall rule on the merits of the habeas corpus petition in light of the evidence previously submitted to it, the proceedings already conducted, and the subsequent developments in this case (particularly the CHR report) as proven by evidence properly adduced before it. The Court of Appeals and the parties may require Prosecutor Emmanuel Velasco, Jeffrey Cabintoy, Edmund Dag-uman, Melissa Concepcion Reyes, Emerito Lipio and Marlon Manuel to testify in this case.
C. Petition for Contempt

In dismissing the petition, the CA held:[17]

Undoubtedly, the accusation against respondents is criminal in nature. In view thereof, the rules in criminal prosecution and corollary recognition of respondents’ constitutional rights inevitably come into play. As held in People v. Godoy:

In proceedings for criminal contempt, the defendant is presumed innocent and the burden is on the prosecution to prove the charges beyond reasonable doubt.

Hence, assuming that there is circumstantial evidence to support petitioner’s allegations, said circumstantial evidence falls short of the quantum of evidence that is required to establish the guilt of an accused in a criminal proceeding, which is proof beyond reasonable doubt.

The pertinent provision of the Rules of Court on contempt, in relation to a Habeas Corpus proceeding, is Section 16, Rule 102, which provides:

Sec. 16. Penalty for refusing to issue writ, or for disobeying the same. - A clerk of a 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 the command thereof, or makes false return thereof, or who, upon demand made by or on behalf of the 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 or judge as for contempt. [emphasis supplied]

In Montenegro v. Montenegro,[18] we explained the types and nature of contempt, as follows:
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. It is defined as "disobedience to the court by acting in opposition to its authority, justice and dignity."7 The power to punish contempt is inherent in all courts, because it is essential to the preservation of order in judicial proceedings, and to the enforcement of judgments, orders and mandates of the courts; and, consequently, to the due administration of justice.
x x x
Contempt, whether direct or indirect, may be civil or criminal depending on the nature and effect of the contemptuous act. Criminal contempt is "conduct directed against the authority and dignity of the court or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect." On the other hand, civil contempt is the failure to do something ordered to be done by a court or a judge for the benefit of the opposing party therein and is therefore, an offense against the party in whose behalf the violated order was made. If the purpose is to punish, then it is criminal in nature; but if to compensate, then it is civil. [emphasis supplied]

We agree with the CA that indirect contempt is the appropriate characterization of the charge filed by the petitioner against the respondents and that the charge is criminal in nature. Evidently, the charge of filing a false return constitutes improper conduct that serves no other purpose but to mislead, impede and obstruct the administration of justice by the Court. In People v. Godoy,[19] which the CA cited, we specifically held that under paragraph (d) of Section 3, Rule 71 of the Rules of Court, any improper conduct tending, directly or indirectly, to impede, obstruct or degrade the administration of justice constitutes criminal contempt.

A criminal contempt proceeding has been characterized as sui generis as it partakes some of the elements of both a civil and criminal proceeding, without completely falling under either proceeding. Its identification with a criminal proceeding is in the use of the principles and rules applicable to criminal cases, to the extent that criminal procedure is consistent with the summary nature of a contempt proceeding. We have consistently held and established that the strict rules that govern criminal prosecutions apply to a prosecution for criminal contempt; that the accused is afforded many of the protections provided in regular criminal cases; and that proceedings under statutes governing them are to be strictly construed.[20]

Contempt, too, is not presumed. In proceedings for criminal contempt, the defendant is presumed innocent and the burden is on the prosecution to prove the charges beyond reasonable doubt.[21] The presumption of innocence can be overcome only by proof of guilt beyond reasonable doubt, which means proof to the satisfaction of the court and keeping in mind the presumption of innocence that precludes every reasonable hypothesis except that for which it is given. It is not sufficient for the proof to establish a probability, even though strong, that the fact charged is more likely true than the contrary. It must establish the truth of the fact to a reasonable certainty and moral certainty – a certainty that convinces and satisfies the reason and conscience of those who are to act upon it.[22]

For the petitioner to succeed in her petition to declare the respondents in contempt for filing false returns in the habeas corpus proceedings before the CA, she has the burden of proving beyond reasonable doubt that the respondents had custody of Jonas. As the CA did, we find that the pieces of evidence on record as of the time of the CA proceedings were merely circumstantial and did not provide a direct link between the respondents and the abduction of Jonas; the evidence did not prove beyond reasonable doubt that the respondents had a hand in the abduction of Jonas, and consequently, had custody of him at the time they filed their returns to the Writ of habeas corpus denying custody of Jonas.

However, the subsequent developments in this case, specifically, the investigative findings presented to us by the CHR pointing to Lt. Baliaga as one of the abductors of Jonas, have given a twist to our otherwise clear conclusion. Investigations will continue, consistent with the nature of Amparoproceedings to be alive until a definitive result is achieved, and these investigations may yet yield additional evidence affecting the conclusion the CA made. For this reason, we can only conclude that the CA’s dismissal of the contempt charge should be provisional, i.e., without prejudice to the re-filing of the charge in the future should the petitioner find this step warranted by the evidence in the proceedings related to Jonas’s disappearance, including the criminal prosecutions that may transpire.

To adjust to the extraordinary nature of Amparo and habeas corpus proceedings and to directly identify the parties bound by these proceedings who have the continuing obligation to comply with our directives, the AFP Chief of Staff, the Commanding General of the Philippine Army, the Director General of the PNP, the Chief of the PNP-CIDG and the TJAG shall be named as parties to this case without need of naming their current incumbents, separately from the then incumbent officials that the petitioner named in her original Amparo and habeas corpus petitions, for possible responsibility and accountability.

In light of the dismissal of the petitions against President Gloria Macapagal-Arroyo who is no the longer the President of the Republic of thePhilippines, she should now be dropped as a party-respondent in these petitions.

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.

ARTURO D. BRION
Associate Justice

WE CONCUR:

RENATO C. CORONA
Chief Justice

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

(ON WELLNESS LEAVE)
TERESITA J. LEONARDO-DE CASTRO DIOSDADO M. PERALTA
Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO
Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA
Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified 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.

RENATO C. CORONA
Chief Justice

* On Wellness Leave
[1] Pursuant to Rule 45 of the Rules of Court.
[2] Penned by Associate Justice Rosalinda Asuncion-Vicente and with Associate Justices Remedios A. Salazar-Fernando and Myrna Dimaranan Vidal, concurring; rollo, pp. 72-119.
[3] CA-G.R. SP No. 99839.
[4] CA-G.R. SP No. 100230.
[5] CA-G.R. SP No. 00008-WA.
[6] The dispositive portion of the CA decision reads:
WHEREFORE, based on all of the foregoing premises, judgment is hereby rendered as follows:

1. The Petition for Habeas Corpus in CA-G.R. SP No. 99839 and the Petition for Contempt in CA-G.R. SP No. 100230 are both DISMISSED.

2. The Petition for Amparo in CA-G.R. SP No. 00008-WA is PARTIALLY GRANTED. The privilege of the writ of amparo is granted as hereunder specified, viz:

1. Respondents Lt. Gen. Alexander Yano and Dir. Gen. Avelino Razon, Jr., are hereby ORDERED to make available, and provide copies to petitioner, all documents and records in their possession relevant to the case of Jonas Joseph Burgos, subject to reasonable regulations consistent with the Constitution and existing laws;

2. Respondent Commission on Human Rights, through its Chairperson, is DIRECTED to furnish petitioner documents not yet on file with this Court, pursuant to its undertaking before this Court during the hearing held on January 21, 2008;

3. Respondent Dir. Gen. Avelino Razon, Jr. is hereby DIRECTED to continue with, and conduct, a full and thorough investigation of the case of Jonas Joseph Burgos and to cause the immediate filing of the appropriate charges against all those who may be found responsible therefor with the Department of Justice;

4. Respondent Lt. Gen. Alexander Yano is likewise hereby DIRECTED conduct a thorough investigation of the circumstances surrounding the loss of license plate no. TAB 194 and the possible involvement of any AFP personnel in the alleged abduction of Jonas Joseph Burgos;

5. Respondents Lt. Gen. Yano and Dir. Gen. Razon are hereby REQUIRED to submit a compliance report to this Court, copy furnished the petitioner, within ten (10) days after completion of their respective organization.

Petitioner’s Motion to Declare Respondents in Contempt is DENIED admission and ordered expunged from the records of this case.

Respondents’ Manifestation and Motion dated July 1, 2008 is NOTED.

SO ORDERED.
[7] Supra note 14.
[8] Id. at 493-495.
[9] Id. at 496-498.
[10] Id. at 498.
[11]Rollo, pp. 769-897.
[12] Id. at 808-812.
[13] Id. at 812-815.
[14] On June 9, 2011, Edita Burgos filed a criminal complaint before the Department of Justice against Major Harry Baliaga Jr., Lieutenant Colonel Melquaides Feliciano, Col. Eduardo Ano and several unidentified soldiers (http://newsinfo.inquirer.net/13553/burgos%E2%80%99-mom-supporters-file-criminal-raps-vs-military-officers).
[15] Rollo, pp. 813-814.
[16] Gen. Hermogenes Esperon retired on February 9, 2008; Gen. Ricardo David was the incumbent Chief of Staff, AFP at the time we issued our June 22, 2010 Resolution.
[17] Rollo, pp. 104-106.
[18] G.R. No. 156829, June 8, 2004, 431 SCRA 415, 423-425.
[19] G.R. Nos. 115908-09, March 29, 1995, 243 SCRA 64, 80.
[20] Id. at 78-79.
[21] Id. at 80.
[22] People v. Castillo, G.R. No. 132895, March 10, 2004, 425 SCRA 136, 166, citing United States v. Reyes, 3 Phil. 6 (1903).

No comments:

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

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

Urgent Exparte Motion

REPUBLIC OF THE PHILIPPINES

SUPREME COURT

MANILA

EDITA T. BURGOS,

Petitioner,

- versus - G.R. No. 183711

President Gloria Macapagal –

Arroyo, et al.

Respondents.

x ----------------------------------------------- x

EDITA T. BURGOS,

Petitioner,

- versus - G.R. No. 183712

President Gloria Macapagal –

Arroyo, et al.

Respondents.

x ----------------------------------------------- x

EDITA T. BURGOS,

Petitioner,

- versus - G.R. No. 183713

Chief of Staff of the Armed Forces of the Philippines, GEN. HERMOGENES ESPERON, JR. et al.;

Respondents.

x---------------------------------------------------x

URGENT

EX PARTE MOTION

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 56^th IB, 7^th 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 56^th 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 56^th and 69^th Infantry Battalion and the 7^th 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 7^th Infantry Division of the Philippine Army and the 56^th 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 56^th IB, 69^th IB and 7^th 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 7^th ID and the 56^th 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.

RICARDO N. FERNANDEZ, JR.

VERIFICATION

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 1^st day of April 2013, at Makati.

EDITA T. BURGOS

Affiant

SUBSCRIBED AND SWORN to before me this 1^st 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.