law

WRIT OF AMPARO

Sec. of DND et. al. vs. Raymond Manalo et. al.

GR No. 180906

October 7, 2008

FACTS:

Brothers Raymond and Reynaldo Manalo were abducted by military men belonging to the CAFGU on the suspicion that they were members and supporters of the NPA. After 18 months of detention and torture, the brothers escaped on August 13, 2007. 

Ten days after their escape, they filed a Petition for Prohibition, Injunction, and Temporary Restraining Order to stop the military officers and agents from depriving them of their right to liberty and other basic rights. While the said case was pending, the Rule on the Writ of Amparo took effect on October 24, 2007. The Manalos subsequently filed a manifestation and omnibus motion to treat their existing petition as amparo petition.

On December 26, 2007, the Court of Appeals granted the privilege of the writ of amparo. The CA ordered the Secretary of National Defense and the Chief of Staff of the AFP to furnish the Manalos and the court with all official and unofficial investigation reports as to the Manalos’ custody, confirm the present places of official assignment of two military officials involved, and produce all medical reports and records of the Manalo brothers while under military custody. The Secretary of National Defense and the Chief of Staff of the AFP appealed to the SC seeking to reverse and set aside the decision promulgated by the CA.

HELD:

In upholding the CA decision, the Supreme Court ruled that there is a continuing violation of the Manalos right to security. xxx The Writ of Amparo is the most potent remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission by public officials or employees and by private individuals or entities. xxx Understandably, since their escape, the Manalos have been under concealment and protection by private citizens because of the threat to their life, liberty, and security. The circumstances of respondents’ abduction, detention, torture and escape reasonably support a conclusion that there is an apparent threat that they will again be abducted, tortured, and this time, even executed. These constitute threats to their liberty, security, and life, actionable through a petition for a writ of amparo,” the Court explained. (GR No. 180906, The Secretary of National Defense v. Manalo, October 7, 2008)

Distinguish the production order under the Rule on the Writ of Amparo from a

search warrant.

SUGGESTED ANSWER:

The production order under the Rule on the Writ of Amparo should not be confused with a search warrant for law enforcement under Art. III, sec. 2 of the 1987 Constitution. It said that the production order should be likened to the production of documents or things under sec. 1, Rule 27 of the Rules of Civil Procedure which states that “upon motion of any party showing good cause therefor, the court in which an action is pending may (a) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books of accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control.” (GR No. 180906, The Secretary of National Defense v. Manalo, October 7, 2008)

G.R. No. 182161               December 3, 2009

Reverend Father ROBERT P. REYES, Petitioner, vs.RAUL M. GONZALEZ, in his capacity as the secretary of the COURT OF APPEALS, secretary DEPARTMENT OF JUSTICE, AND COMMISSIONER MARCELINO C. LIBANAN, IN HIS CAPACITY AS THE COMMISSIONER OF THE BUREAU OF IMMIGRATION, Respondents.

D E C I S I O N

LEONARDO-DE CASTRO, J.:

For resolution is the petition for review under Rule 45 of the Rules of Court, assailing the February 4, 2008 Decision1 of the Court of Appeals (CA) in CA-G.R. No. 00011 which dismissed the petition for the issuance of the writ of amparo under A.M. No. 07-9-12-SC, as amended. It also assails the CA’s Resolution dated March 25, 2008, denying petitioner’s motion for reconsideration of the aforesaid February 4, 2008 Decision.

The undisputed facts as found by the CA are as follows:

Petitioner was among those arrested in the Manila Peninsula Hotel siege on November 30, 2007. In the morning of November 30, 2007, petitioner together with fifty (50) others, were brought to Camp Crame to await inquest proceedings. In the evening of the same day, the Department of Justice (DOJ) Panel of Prosecutors, composed of Emmanuel Y. Velasco, Phillip L. Dela Cruz and Aristotle M. Reyes, conducted inquest proceedings to ascertain whether or not there was probable cause to hold petitioner and the others for trial on charges of Rebellion and/or Inciting to Rebellion.

On December 1, 2007, upon the request of the Department of Interior and Local Government (DILG), respondent DOJ Secretary Raul Gonzales issued Hold Departure Order (HDO) No. 45 ordering respondent Commissioner of Immigration to include in the Hold Departure List of the Bureau of Immigration and Deportation (BID) the name of petitioner and 49 others relative to the aforementioned case in the interest of national security and public safety.

On December 2, 2007, after finding probable cause against petitioner and 36 others for the crime of Rebellion under Article 134 of the Revised Penal Code, the DOJ Panel of Prosecutors filed an Information docketed as I.S. No. 2007-1045 before the Regional Trial Court, Branch 150 of Makati City.

On December 7, 2007, petitioner filed a Motion for Judicial Determination of Probable Cause and Release of the Accused Fr. Reyes Upon Recognizance asserting that the DOJ panel failed to produce any evidence indicating his specific participation in the crime charged; and that under the Constitution, the determination of probable cause must be made personally by a judge.

On December 13, 2007, the RTC issued an Order dismissing the charge for Rebellion against petitioner and 17 others for lack of probable cause. The trial court ratiocinated that the evidence submitted by the DOJ Panel of Investigating Prosecutors failed to show that petitioner and the other accused-civilians conspired and confederated with the accused-soldiers in taking arms against the government; that petitioner and other accused-civilians were arrested because they ignored the call of the police despite the deadline given to them to come out from the 2nd Floor of the Hotel and submit themselves to the police authorities; that mere presence at the scene of the crime and expressing one’s sentiments on electoral and political reforms did not make them conspirators absent concrete evidence that the accused-civilians knew beforehand the intent of the accused-soldiers to commit rebellion; and that the cooperation which the law penalizes must be one that is knowingly and intentionally rendered.

On December 18, 2007, petitioner’s counsel Atty. Francisco L. Chavez wrote the DOJ Secretary requesting the lifting of HDO No. 45 in view of the dismissal of Criminal Case No. 07-3126.

On even date, Secretary Gonzales replied to petitioner’s letter stating that the DOJ could not act on petitioner’s request until Atty. Chavez’s right to represent petitioner is settled in view of the fact that a certain Atty. J. V. Bautista representing himself as counsel of petitioner had also written a letter to the DOJ.

On January 3, 2008, petitioner filed the instant petition claiming that despite the dismissal of the rebellion case against petitioner, HDO No. 45 still subsists; that on December 19, 2007, petitioner was held by BID officials at the NAIA as his name is included in the Hold Departure List; that had it not been for the timely intervention of petitioner’s counsel, petitioner would not have been able to take his scheduled flight to Hong Kong; that on December 26, 2007, petitioner was able to fly back to the Philippines from Hong Kong but

every time petitioner would present himself at the NAIA for his flights abroad, he stands to be detained and interrogated by BID officers because of the continued inclusion of his name in the Hold Departure List; and that the Secretary of Justice has not acted on his request for the lifting of HDO No. 45. Petitioner further maintained that immediate recourse to the Supreme Court for the availment of the writ is exigent as the continued restraint on petitioner’s right to travel is illegal.

On January 24, 2008, respondents represented by the Office of the Solicitor General (OSG) filed the Return of the Writ raising the following affirmative defenses: 1) that the Secretary of Justice is authorized to issue Hold Departure Orders under the DOJ Circulars No. 17, Series of 19982 and No. 18 Series of 20073 pursuant to his mandate under the Administrative Code of 1987 as ahead of the principal law agency of the government; 2) that HDO No. 45 dated December 1, 2007 was issued by the Sec. Gonzales in the course of the preliminary investigation of the case against herein petitioner upon the request of the DILG; 3) that the lifting of HDO No. 45 is premature in view of public respondent’s pending Motion for Reconsideration dated January 3, 2008 filed by the respondents of the Order dated December 13, 2007 of the RTC dismissing Criminal Case No. 07-3126 for Rebellion for lack of probable cause; 4) that petitioner failed to exhaust administrative remedies by filing a motion to lift HDO No. 45 before the DOJ; and 5) that the constitutionality of Circulars No. 17 and 18 can not be attacked collaterally in an amparo proceeding.

During the hearing on January 25, 2008 at 10:00 a.m. at the Paras Hall of the Court of Appeals, counsels for both parties appeared. Petitioner’s counsel Atty. Francisco Chavez manifested that petitioner is currently in Hong Kong; that every time petitioner would leave and return to the country, the immigration officers at the NAIA detain and interrogate him for several minutes because of the existing HDO; that the power of the DOJ Secretary to issue HDO has no legal basis; and that petitioner did not file a motion to lift the HDO before the RTC nor the DOJ because to do so would be tantamount to recognizing the power of the DOJ Secretary to issue HDO.

For respondents’ part, the Office of the Solicitor-General (OSG) maintained that the Secretary of the DOJ’s power to issue HDO springs from its mandate under the Administrative Code to investigate and prosecute offenders as the principal law agency of the government; that in its ten-year existence, the constitutionality of DOJ Circular No. 17 has not been challenged except now; and that on January 3, 2008, the DOJ Panel of Investigating Prosecutors had filed a Motion for Reconsideration of the Order of Dismissal of the trial court.

On February 1, 2008, petitioner filed a Manifestation attaching thereto a copy of the Order dated January 31, 2008 of the trial court denying respondent DOJ’s Motion for Reconsideration for utter lack of merit. The trial court also observed that the said Motion should be dismissed outright for being filed out of time. 4

The petition for a writ of amparo is anchored on the ground that respondents violated petitioner’s constitutional right to travel. Petitioner argues that the DOJ Secretary has no

power to issue a Hold Departure Order (HDO) and the subject HDO No. 45 has no legal basis since Criminal Case No. 07-3126 has already been dismissed.

On February 4, 2008, the CA rendered the assailed Decision dismissing the petition and denying the privilege of the writ of amparo.

Petitioner’s Motion for Reconsideration5 thereon was also denied in the assailed Resolution6 dated March 25, 2008.

Hence, the present petition which is based on the following grounds:

I.

THE DOJ SECRETARY’S ARROGATION OF POWER AND USURPATION OF AUTHORITY TO ISSUE A HOLD DEPARTURE ORDER CANNOT BE JUSTIFIED THROUGH A RATIONALE THAT IT HAS SUPPOSEDLY BEEN "REGULARLY EXERCISED IN THE PAST" OR HAS "NEVER BEEN QUESTIONED (IN THE PAST).

II.

THE DOJ HAS CLAIMED A POWER TO ISSUE AN HDO INDEPENDENT OF THAT OF THE REGIONAL TRIAL COURTS, HENCE, PETITIONER CANNOT MERELY RELY ON THE RESIDUAL POWER OF THE RTC MAKATI IN CRIMINAL CASE NO. 07-3126 TO ASSAIL SUCH CLAIMED POWER.

III.

THE UTMOST EXIGENCY OF THE PETITION IS EXEMPLIFIED BY THE CONTINUING ACTUAL RESTRAINT ON PETITIONER’S RIGHT TO TRAVEL THROUGH THE MAINTENANCE OF HIS NAME IN THE HDO LIST AND DOES NOT SIMPLY HINGE ON THE QUESTION OF WHETHER OR NOT PETITIONER WAS ABLE TO TRAVEL DESPITE SUCH A RESTRAINT.

IV.

DOJ CIRCULAR 17 SERIES OF 1998 PROVIDES NO STATUTORY BASIS FOR THE DOJ SECRETARY’S CLAIMED POWER TO ISSUE AN HDO FOR IT IS NOT A STATUTE. THE CIRCULAR ITSELF APPEARS NOT TO BE BASED ON ANY STATUTE, HENCE, IT DOES NOT HAVE THE FORCE OF LAW AND NEED NOT BE ATTACKED IN A DIRECT PROCEEDING.7

Petitioner maintains that the writ of amparo does not only exclusively apply to situations of extrajudicial killings and enforced disappearances but encompasses the whole gamut of liberties protected by the Constitution. Petitioner argues that "[liberty] includes the right to exist and the right to be free from arbitrary personal restraint or servitude and includes the right of the citizens to be free to use his faculties in all lawful ways." Part of the right to liberty guaranteed by the Constitution is the right of a person to travel.

In their Comment,8 both respondents Secretary Gonzalez and Commissioner Libanan argue that: 1) HDO No. 45 was validly issued by the Secretary of Justice in accordance with

Department of Justice Circular No. 17, Series of 1998,9 and Circular No. 18, Series of 2007,10 which were issued pursuant to said Secretary’s mandate under the Administrative Code of 1987, as head of the principal law agency of the government, to investigate the commission of crimes, prosecute offenders, and provide immigration regulatory services; and; 2) the issue of the constitutionality of the DOJ Secretary’s authority to issue hold departure orders under DOJ Circulars Nos. 17 and 18 is not within the ambit of a writ of amparo.

The case hinges on the issue as to whether or not petitioner’s right to liberty has been violated or threatened with violation by the issuance of the subject HDO, which would entitle him to the privilege of the writ of amparo.

The petition must fail.

Section 1 of the Rule on the Writ of Amparo provides:

Section 1. Petition. – The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.

The Court, in Secretary of National Defense et al. v. Manalo et al.,11 made a categorical pronouncement that the Amparo Rule in its present form is confined to these two instances of "extralegal killings" and "enforced disappearances," or to threats thereof, thus:

x x x As the Amparo Rule was intended to address the intractable problem of "extralegal killings" and "enforced disappearances," its coverage, in its present form, is confined to these two instances or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e., without legal safeguards or judicial proceedings." On the other hand, "enforced disappearances" are "attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law."12

In Tapuz v. Del Rosario,13 the Court laid down the basic principle regarding the rule on the writ of amparo as follows:

To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous

and uncertain grounds. Consequently, the Rule on the Writ of Amparo – in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands – requires that every petition for the issuance of the writ must be supported by justifying allegations of fact, to wit:

"(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs."14

The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed. (Emphasis supplied)

Here, petitioner invokes this extraordinary remedy of the writ of amparo for the protection of his right to travel. He insists that he is entitled to the protection covered by the Rule on the Writ of Amparo because the HDO is a continuing actual restraint on his right to travel. The Court is thus called upon to rule whether or not the right to travel is covered by the Rule on the Writ of Amparo.

The rights that fall within the protective mantle of the Writ of Amparo under Section 1 of the Rules thereon are the following: (1) right to life; (2) right to liberty; and (3) right to security.

In Secretary of National Defense et al. v. Manalo et al.,15 the Court explained the concept of right to life in this wise:

While the right to life under Article III, Section 1 guarantees essentially the right to be alive- upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life, viz: "The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of his person and property. The ideal of security in life and property… pervades the whole history of man. It touches every aspect of man’s existence." In a broad sense, the right to security of person "emanates in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual."16

The right to liberty, on the other hand, was defined in the City of Manila, et al. v. Hon. Laguio, Jr.,17 in this manner:

Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as are necessary for the common welfare." x x x

Secretary of National Defense et al. v. Manalo et al.18 thoroughly expounded on the import of the right to security, thus:

A closer look at the right to security of person would yield various permutations of the exercise of this right.

First, the right to security of person is "freedom from fear." In its "whereas" clauses, the Universal Declaration of Human Rights (UDHR) enunciates that "a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people." (emphasis supplied) Some scholars postulate that "freedom from fear" is not only an aspirational principle, but essentially an individual international human right. It is the "right to security of person" as the word "security" itself means "freedom from fear." Article 3 of the UDHR provides, viz:

Everyone has the right to life, liberty and security of person.

x x x

The Philippines is a signatory to both the UDHR and the ICCPR.

In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can

range from being baseless to well-founded as people react differently. The degree of fear can vary from one person to another with the variation of the prolificacy of their imagination, strength of character or past experience with the stimulus. Thus, in the amparo context, it is more correct to say that the "right to security" is actually the "freedom from threat." Viewed in this light, the "threatened with violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision.

Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one’s body cannot be searched or invaded without a search warrant. Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person.

x x x

Third, the right to security of person is a guarantee of protection of one’s rights by the government. In the context of the writ of amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State "guarantees full respect for human rights" under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. x x x (emphasis supplied) 19

The right to travel refers to the right to move from one place to another.20 As we have stated in Marcos v. Sandiganbayan,21 "xxx a person’s right to travel is subject to the usual constraints imposed by the very necessity of safeguarding the system of justice. In such cases, whether the accused should be permitted to leave the jurisdiction for humanitarian reasons is a matter of the court’s sound discretion." 22

Here, the restriction on petitioner’s right to travel as a consequence of the pendency of the criminal case filed against him was not unlawful. Petitioner has also failed to establish that his right to travel was impaired in the manner and to the extent that it amounted to a serious violation of his right to life, liberty and security, for which there exists no readily available legal recourse or remedy.

In Canlas et al. v. Napico Homeowners Association I – XIII, Inc. et al.,23 this Court ruled that:

This new remedy of writ of amparo which is made available by this Court is intended for the protection of the highest possible rights of any person, which is his or her right to life, liberty and security. The Court will not spare any time or effort on its part in order to give priority to petitions of this nature. However, the Court will also not waste its precious time and effort on matters not covered by the writ.

We find the direct recourse to this Court inappropriate, considering the provision of Section 22 of the Rule on the Writ of Amparo which reads:

Section 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case.1avvphi1

The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

Pursuant to the aforementioned Section 22, petitioner should have filed with the RTC-Makati a motion to lift HDO No. 45 in Criminal Case No. 07-3126. Petitioner, however, did not file in the RTC-Makati a motion to lift the DOJ’s HDO, as his co-accused did in the same criminal case. Petitioner argues that it was not the RTC-Makati but the DOJ that issued the said HDO, and that it is his intention not to limit his remedy to the lifting of the HDO but also to question before this Court the constitutionality of the power of the DOJ Secretary to issue an HDO.24 We quote with approval the CA’s ruling on this matter:

The said provision [Section 22] is an affirmation by the Supreme Court of its pronouncement in Crespo v. Mogul25that once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court. Despite the denial of respondent’s MR of the dismissal of the case against petitioner, the trial court has not lost control over Criminal Case No. 07-3126 which is still pending before it. By virtue of its residual power, the court a quo retains the authority to entertain incidents in the instant case to the exclusion of even this Court. The relief petitioner seeks which is the lifting of the HDO was and is available by motion in the criminal case. (Sec. 22, Rule on the Writ of amparo, supra).26

Even in civil cases pending before the trial courts, the Court has no authority to separately and directly intervene through the writ of amparo, as elucidated in Tapuz v. Del Rosario,27 thus:

Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and the reported acts of violence and harassment, we see no point in separately and directly intervening through a writ of amparo in the absence of any clear prima facie showing that the right to life, liberty or securitythe personal concern that the writ is intended to protectis immediately in danger or threatened, or that the danger or threat is continuing. We see no legal bar, however, to an application for the issuance of the writ, in a proper case, by motion in a pending case on appeal or on certiorari, applying by analogy the provisions on the co-existence of the writ with a separately filed criminal case.

Additionally, petitioner is seeking the extraordinary writ of amparo due to his apprehension that the DOJ may deny his motion to lift the HDO.28 Petitioner’s apprehension is at best merely speculative. Thus, he has failed to show any clear threat to his right to liberty actionable through a petition for a writ of amparo. The absence of an actual controversy also renders it unnecessary for us on this occasion to pass upon the constitutionality of DOJ Circular No. 17, Series of 1998 (Prescribing Rules and Regulations Governing the Issuance of Hold Departure Orders); and Circular No. 18, Series of 2007 (Prescribing Rules and Regulations Governing the Issuance and Implementation of Watchlist Orders and for Other Purposes).

WHEREFORE, the petition is DISMISSED. The assailed Decision of the CA dated February 4, 2008 in CA-G.R. No. 00011 is hereby AFFIRMED.

SO ORDERED.

PRIVACY OF COMMUNICATIONS

Felipe Navarro vs. CA

This is a petition for review on certiorari seeking the reversal of the decision * dated March 25, 1991 as well as the resolution dated March 28, 1991 of the respondent Court of Appeals in CA-G.R. CV No. 17476 entitled "Marcelo Yadno, Filmore Laoyan v. Director of Lands and Michael Amos which affirmed the decision ** dated August 26, 1987 of the Regional Trial Court of Baguio and Benguet in joint trial of Land Registration Case No. 135 entitled "Marcelo Yadno v. Director of Lands, et al." and Land Registration Case No. 283 entitled "Filmore Laoyan v. Director of Land, et al." dismissing, among others, the application for registration of certain parcels of land of Yadno and Laoyan.

The facts of this case are as follows:

On the two separate dates of September 10, 1964 and September 17, 1968, applicants Marcelo Yadno (now deceased) and Filmore Laoyan, respectively, sought to register certain parcels of land (Original Records. Vol. I, pp. 1-4; Vol. III, pp. 1-4). In LRC No. N-135, Marcelo Yadno seeks to register a parcel of land situated at Barrio Pico. Municipality of La Trinidad, Province of Benguet, which is embraced in survey plan PSU-204731 approved by the Director of Lands on May 19, 1964. In Land Registration Case No, N-283. Filmore Laoyan applied for the registration of a parcel of land situated at Sitio Longlong, Barrio Pico. Municipality of La Trinidad. Province of Benguet, embraced in survey plan PSU-225299 approved by the Director of Lands on July 27. 1966 (Rollo, p. 35).

The notice of initial hearing in LRC No. N-135 was published in the Official Gazette in its issues on April 5 and 12, 1965 (Orig. Records, Vol. 1, p. 55) and posted by Deputy Sheriff Emilio Dacanay in the Municipality of La Trinidad. Benguet, Mt. Province on 7th and 8th day of June, 1965 (Ibid., p. 63). In LRC Case No. 283, the notice of initial hearing was also published in the Official Gazette in its issues an November 25 and December 2, 1968 (Vol. III. p. 26) and posted by the same Deputy Sheriff on December 12, 1968 in the Municipality of La Trinidad, Baguio City (Ibid., p. 20).

To the aforesaid applications. the Director of Lands and Director of Forestry seasonably filed an opposition on the ground that neither the applicants nor their predecessor-in-interest possesses sufficient title to acquire ownership in fee simple of the parcels of land applied for: that they have not been in open, continuous, exclusive and notorious possession and occupation of the lands in question for at least 30 years immediately preceding the filing of the present application; that these parcels of land are portions of the Public domain belonging to the Republic of the Philippines not subject to appropriation and that the parcels of land applied for are within the unclassified public forest land (Orig. Records, Vol. I, pp. 78-79; Vol. III. pp. 40; 46-47). Aside from the opposition filed by the government, private persons also opposed said applications. In LRC No. N-135, the Heirs of Gaogao Tinuan, Michael Amos, Isabelo Akiapat, Luiz Lorenzo and Corona Vda. de Jimenez and children registered their opposition to Yadno's application. In LRC No. N-283, on the other hand, Corona Vda. de Jimenez and Marcelo Yadno also opposed the application of Laoyan.

At the hearing on September 13, 1965 of LRC No. N-135, the Court issued an order of general default with the exception of the Director of Lands, Reforestation Administration. Michael Amos, Julian Amos and Tiotioen (Orig. Records, Vol. 1. p. 75). An order of general default was also issued by the same court on March 13, 1969 in LRC No. N-283 with the exception of the Director of Lands, Director of Forestry and the Reforestation Administration: Michael Amos, Ezra Nabus and Corona Vda. de Jimenez (Ibid., Vol. III, p. 36).

On July 10, 1969, the lower court ordered that LRC No. N-283 and LRC No. N-135 be tried together. (Ibid., p. 76) Consequently, joint trial then ensued.

In order to establish thirty (30) years of open and continuous possession over the subject property, applicant Filmore Laoyan, among other things. presented the testimonies of Arsenio Espiritu, Herminio Arenas and the applicant himself Filmore Laoyan.

Filmore Laoyan claimed that the land applied for. consisting of Lots 1 and 3, containing an area of 4 hectares, was first in the possession of his grandfather in 1918. The possession was then taken over by his father, who paid the land taxes (Exhs. J, J-1 to J-12) and used it for grazing and planted it with coffee. Then in 1949, he took over from his father and cultivated it. He registered Lots 1 and 3 in his name for tax purposes (Exhs. G and G-1) and paid the land taxes (Exhs. H and H-1). He fenced the Property and also planted it with coffee and camotes. Exhibit G is Tax Declaration 7113, describing "lot 1" PSU 225299 as "uncult. agric. land". containing an area of 2.7685 hectares. Exhibit G-1 is Tax Declaration 7112. describing "lot 3" PSU 225299 as "uncult. agric land". containing an area of 2.9719 hectares. Exhibits H and H-1 are official receipts No. 0919364-65 both dated September 30, 1968. evidencing the payment of the land tax for lots 1 and 2, for the years "1965, 1966, 1967, 1968". Also offered as documentary evidence are Exhibits I and I-1. official receipts evidencing payment of real property tax covered by Tax Declaration No. 222: Exhibits I-2 to I-8 are also official receipts evidencing payment of real property tax covered by Tax Declaration Nos. 222 and 500: Exhibits 1-9 to 1-12 are likewise official receipt evidencing, payment of real property tax covered by Tax Declarations 222. 500 and 906; and Exhibit I-

13. is an official receipt evidencing payment of property tax without specification as to which property the tax was paid: Exhibit J is a Homestead Application. filed with the Bureau of Lands on April 24, 1961, signed by a certain "Belen B. Espiritu" over a "five (5) hectares" tract of land " . . . covered by my Tree Farm Lease application dated April 10, 1987." There is a certification in this exhibit tending to show that "I (Filmore Laoyan) granted permission to herein applicant . . . to occupy and improve the land . . ., which . . . is a portion of the property I inherited from my ancestors." And. finally. there is Exhibit J-3. an official receipt evidencing payment of "HA Fee." (Rollo, pp, 16-17)

Arsenio G. Espiritu in his testimony also stated that he knows the property being applied for registration because he used to occupy a portion of the same; that on April 10, 1957. he applied for a tree farm lease with the Bureau of Forestry and a license to cut pine trees which was granted; that on May 4, 1961, applicant Laoyan informed him that he was encroaching upon his property and likewise confirmed the testimony of the applicant that there were coffee plants and camote patches in the area which were however destroyed during a big forest fire in the area in 1967; that he did not pursue his homestead application when he was informed by the applicant about his application for registration. but nevertheless, was employed by the applicant as the surveyor.

Herminio Arenas merely corroborated the fact that the applicant was in open. adverse, public and in continuous possession of the property being applied for (Rollo, pp. 12-13).

In the case of Marcelo Yadno, he identified his signature in his application for registration (Exhs. A, A-1, A-2) and in his affidavit dated January 21, 1958 (Exh. B). which states among other thongs, that he is the owner of "Pico, La Trinidad with an area of 0.0799 square meters" (TSN, March 7, 1985, pp. 16-22). He also offered a technical description (Exh. B), surveyor's certificate (Exh. C). Treasurer's Certificate dated September 8, 1964 (Exhs. D, D-1), Survey Plan. PSU 204731 (Exh. B) and Transmittal letter of October 20, 1964 (Exh. E) (Rollo, p. 16).

On the other hand. oppositor Michael Amos presented the testimonies of Evaristo Tiotioen, Atty. Crisogono Bartolo. Jr., Engineer Edilberto Quiaoit Matias Camolo, Generoso Javier, Luis Dawayan and the oppositor himself Michael Amos, to support his application for registration.

The testimonial and documentary evidence of Michael Amos showed that Amos, since 1937, by himself and thru his predecessors-in-interest has been in open, continuous and notorious possession of the land applied for up to the present. The late Tulingan Pulot, and his widow, Singao Pul-ot, possessed the land applied for, located at Bo. Pico, La Trinidad, Benguet, Mountain Province, since 1932. They declared the land before the Second World War for tax purposes under Tax Declaration No. 209. Then, Singao Pul-ot, because of old age, relinquished her rights thereto in favor of Evaristo Tiotioen. Evaristo declared that the spouses occupied the property as early as 1932. After the Second World War, the property was occupied by Michael Amos, after acquiring the same from him (Tiotioen) who received as consideration for the transfer "cash" "some seedlings", and also "helped me in my survey."

Evaristo Tiotioen, a former clerk of the Municipal Treasurer's Office of La Trinidad, Benguet testified that during the time the tax receipts were issued to the Laoyan family, they were paying taxes but on another land and not the one applied for by them (Exhibits "I" to "I-13"), (t.s.n,. Hearing of March 17, 1983, pp. 17 to 21).

Atty. Crisogono S. Bartolo, Jr. of the Bureau of Lands also stated in his testimony that he had made an inspection of the land in question that the applications of Marcelo Yadno and Filmore Laoyan overlapped the area surveyed by Michael Amos. He also found out that Michael Amos has made permanent improvements on the land while applicants Yadno and Laoyan did not introduce any (Exhibits "11" and "12"); (t.s.n., Hearing of February 2, 1584, pp. 6-9).

Engineer Edilberto Quiaoit, a surveyor of the Bureau of Lands testified about the possibility that Yadno and Laoyan only copied the survey plan of Michael Amos (t.s.n., Hearing of August 18, 1983, pp. 4-7, 9-11). Another witness in the person of Matias Camolo also stated that he was with the surveyor of Marcelo Yadno when he conducted the survey and they just relied on the existing corners contained in the survey plan of Michael Amos and Isabelo Akiapat.

It was also noted by the Court during the ocular inspection conducted on the land in question that the applicants Yadno and Laoyan were not able to show any improvements made by them, whereas, Amos was able to show houses, dirt roads, fences, plants and canals. The existence of these improvements was also corroborated by Generoso Javier,. a forester of the Bureau of Forestry (Exhibits "1" "2" to "2-C"). Another witness who confirmed the introduction of the improvements on the land by Amos was Luis Dawayan (Rollo, pp. 13-14).

On August 26, 1987, the trial court rendered judgment, the dispositive portion of which reads:

WHEREFORE, IN VIEW OF THE FOREGOING, the Court renders judgment dismissing the applications of Marcelo Yadno and Filmore Laoyan, and awarding the parcel of land under PSU-198528 to oppositor Michael Amos as the true and lawful owner and ordering the registration of the same in his name, without prejudice to the deed of quitclaim executed by Michael Amos in favor of Damian L. Jimenez, and ordering the former to segregate the portion subject matter of said quitclaim.

SO ORDERED. (Orig. Records, Vol. III. pp. 501-504)

Appeal was interposed by Marcelo Yadno with the Court of Appeals but during the pendency of the appeal Marcelo Yadno died (Rollo, p. 22). The Office of the Solicitor General. on the other hand, was excused from filing the brief for the public oppositors (Ibid., p 15).

On March 25, 1991, the respondent Court of Appeals affirmed the disputed decision of the trial court (Ibid., pp. 10-19).

Subsequently, Atty. Jose Edward Navarro filed a pleading denominated as a notice of substitution and motion for reconsideration. It prayed. among others, that Atty. Felipe Navarro, the counsel of the late Marcelo Yadno. take the place of Marcelo Yadno as a substitute (Ibid., pp. 20-21).

On May 28. 1991, the Court of Appeals denied said motion for reconsideration.

Hence. this petition.

Petitioner assigns the following errors, to wit:

1. Respondent Court of Appeals erred in holding that: "Applicant Marcelo Yadno did not present any competent evidence either through his witnesses or documentary to support his application for registration."

2. Respondent Court of Appeals erred in admitting the opposition of respondent Michael Amos filed on July 11, 1966.

3. Respondent Court of Appeals erred in holding that: "Applicant Marcelo Yadno failed to establish that he was in actual and physical possession of the land applied for by him for more than 30 years, and have introduced permanent improvements thereon to be able to comply with the provisions of Act 496 and R.A. 1942 amending Sec. 48 (h) and (c) of C.A. 141."

4. Respondent Court of Appeals erred in denying the application of Marcelo Yadno and awarding title to the land to oppositor Michael Amos who was never an applicant to any of the lands in Baguio and Benguet and consequently erred in not confirming title to applicant Marcelo Yadno, his kinsmen. And the tribe pursuant to law as embodied in the contract of legal services in lieu for attorney's fees of Atty. Felipe C. Navarro as admitted by the respondent Court of Appeals in its November 2. 1989 resolution.

The immediate issue in this case is whether or not Atty. Felipe C. Navarro, the petitioner, is the proper party to represent Marcelo Yadno the deceased.

Petitioner. Atty. Felipe Navarro, as invoking the contract of legal services he entered with has former client Marcelo Yadno and others as his authority to take the place of Yadno in case of the latter's death. Hence, when the supervening event of death came during the pendency of Yadno's appeal to the Court of Appeals, petitioner Navarro simply filed a notice of substitution and a motion for reconsideration rolled into one and upon receipt of an adverse decision, he is now before this Court pursuing the case in lieu of the late Marcelo Yadno.

Private respondent counters that the "contract of legal services" could not have transmitted any right to Atty. Navarro to succeed the late Marcelo Yadno considering that the alleged document is neither a substitution of heirs nor transmittal of rights on the land in litigation in the case at bar. He avers that the title of the contract itself states that it is a

contract for legal services and its contents which states ". . . our rights shall only be transmitted to our heirs . . ." meaning the legal heirs could not have possibly made Atty. Navarro as heir of Marcelo Yadno.

The contention of the private respondent is well taken.

Section 17, Rule 3 of the Rules of Court sets the rule on substitution of parties in case of death of any of the parties. Under the Rule it is the court that is called upon after notice of a party's death and the claim is not thereby extinguished to order upon proper notice the legal representative of the deceased to appear within a period of thirty (30) days or such time as it may grant.

Section 16 of Rule 3 provides:

Whenever a party to a pending case dies . . . it shall be the duty of his attorney to inform the court promptly of such death . . . and to give the name and residence of the executor, administrator, guardian or other legal representative of the deceased.

In the case at bar. petitioner Navarro did not give any explanation why he failed to give the name and residence of the executor, administrator or guardian of the deceased, if there was any, and in their absence at least the name and residence of the heirs of Yadno who shall take the place of the deceased (Evangelista v. Soriano, No. L-4625, 92 Phil. 190 [1952]).

Clearly, priority is given to the legal representative of the deceased, that is, the executor or administrator of his estate. It is only in cases of unreasonable delay in the appointment of an executor or administrator, or in cases where the heirs resort to an extrajudicial settlement of the estate. that the court may adopt the alternative of allowing the heirs of the deceased to he substituted for the deceased (Liwas v. Court of Appeals, G.R. No. L-45809. December 12, 1986, 146 SCRA 171).

Petitioner Navarro took the short cut route of making himself the legal representative of Yadno on the basis of the contract of legal services. This mode resorted to by Navarro is clearly without any legal basis. Even at this point in time, the record is bereft of any evidence that would grant herein petitioner Navarro any authority to represent the late Marcelo Yadno. In the same vein, there is also no showing of any evidence granted to herein counsel Jose Edward Navarro to file and prosecute the case and any other incidental cases for and in behalf of Yadno's heirs.

On the basis of the foregoing alone the petition should be dismissed.

And even assuming that Atty. Navarro may represent Yadno, the petition itself is bereft of merit.

It must be emphasized that it is the burden of the applicant to prove its positive averments, not for the Government or the private oppositors to establish a negative proposition insofar as the applicant's specific lots are concerned (Gutierrez Hermanos v. C.A., G.R. Nos.

54472-77, September 28, 1989, 178 SCRA 37). Applying this rule to the instant case, the conclusions reached by the court a quo and respondent Court of Appeals that the petitioner through his predecessors-in-interest has not been in open, continuous, exclusive and notorious possession of the subject land under a bona fide claim of ownership are binding on this Court. Indeed the jurisdiction of this Court in cases brought to it from the Court of Appeals is limited to reviewing and revising errors of law imputed to the latter, its findings of facts being conclusive generally. (Andres V. Manufacturer Hanover and Trust Corp., G.R. No. 82670, September 15, 1989, 117 SCRA 618; Lauron v. CA G.R. No. 62021, April 6, 1990, 184 SCRA 215).

Prescinding therefrom, this Court finds no reason to disturb the conclusion of the Court of Appeals when it ruled that:

The exhibits presented by the late Marcelo Yadno, to wit: application for registration (Exh. A), technical description (Exh. B), surveyor's certificate (Exh. C), Treasurer's Certificate (Exh. D, Survey Plan. PSU 204731 (Exh. E) and Transmittal Letter dated October 20. 1964 (Exh F) and their submarkings are part of the case records and of themselves do not prove that he had been in open, continuous and notorious possession of the property for thirty (30) years. He did not even offer a tracing cloth plan, the primary purpose of which is to fix the exact location and definitive Identity of the land, as shown in the survey plan and technical description. He has not offered evidence that he has declared the land for tax purposes in his name. and/or that he had paid the land taxes thereon.

This Court has ruled that although tax receipts are not incontrovertible evidence of ownership, they constitute at least proof that the holder had a claim of title over the property (Director of Lands v. Reyes, G.R. No. L-27594, November 28, 1975, 68 SCRA 177; Director of Lands v. Santiago, G.R. No. L-41278, April 15, 1988, 160 SCRA 186).

In the case of Filmore Laoyan, the findings of the respondent appellate court is also noteworthy:

The testimony of Laoyan that he inherited Lots 1 and 3 from his father, who, in turn, also inherited it from his father is not borne out in Exhibits I to I-12. The land described are covered by Tax Declaration Nos. 222, 500 and 906, while Lots 1 and 3 are covered by Exhs. G and G-1, "New" Tax Declaration Nos. 7112 and 7113, which begun only in 1965, or after these cases were filed in court. Tiotioen, a clerk of the Municipal Treasurer's Office of La Trinidad, Benguet, testified that Exhibits I to I-13 were in payment of another land which is different from and not Lots 1 and 3. Like Yadno, Laoyan did not also present a tracing cloth plan of the property sought to be registered, which would pinpoint the exact location and definitive identity of the land as shown in the survey plan and technical description. Indeed, Felicitacion Roxas, of the Commission on the Settlement of Land Problems. Department of Justice, stationed in Baguio City, and formerly Legal Officer IV of the

Bureau of Lands, Baguio City, testified that she, together with the applicants and the District Land officer. Bureau of Lands, conducted several ocular inspections of the lands applied for, and found that both appellants have not introduced permanent improvements on the lands in question.

That applicant Laoyan has paid the corresponding taxes starting in the year 1965 is of no moment because the important thing to consider is the compliance of his predecessors-in-interest with the 30-year period which he failed to substantiate.

Inevitably, the applicants (Yadno and Laoyan) have failed to submit convincing proof of their predecessors-in-interest actual, peaceful and adverse possession in the concept of owner of the lots in question during the period required by law. This is especially true in view of the basic presumption that lands of whatever classification belong to the State and evidence of a land grant must be "well-nigh incontrovertible" (Santiago v. Delos Santos, G.R. No. L-20241, November 22, 1974, 61 SCRA 146; Director of Lands v. Reyes, G.R. No. L-27594, supra).

On the other hand, this convincing proof of compliance with the 30-year period has been met by herein private respondent Michael Amos. The decision of the Court of Appeals on this point is hereby quoted to wit:

The evidence presented by oppositor-appellee Michael Amos consisting of his testimony and that of Evaristo Tiotioen, Atty. Crisogono Bartolo, Jr. and Engr. Edilberto Quiaoit, as well as Exhibits 1 to 16 established that Michael Amos, since 1937, by himself and thru his predecessor-in-interest have been in open, continuous and notorious possession of the land applied for up to the present.

The late Tulinga Pul-ot, and his widow Signao Pul-ot, possessed the land applied for located at Bo. Pico, La Trinidad, Benguet, Mountain Province, since 1932. They declared the land before the Second World War for tax purposes under Tax Declaration No. 209. Then, Signao Pul-ot, because of old age, relinquished her rights thereto in favor of Evaristo Tiotioen. Evaristo declared that the spouses occupied the property as early as 1932. After the Second World War, the property was occupied by Michael Amos after acquiring the same form him (Tiotioen) who received as consideration for the transfer "cash", "some seedlings", and also "helped me in my survey." That Amos has made permanent improvements on the land, is borne out by testimony of Atty. Crisogono S. Bartolo, Jr., of the Bureau of Lands, corroborated by Generoso Javier, a forester of the Bureau of Forestry (Exhs. 1, 2, 2-A, 2-B and 2-C), and by Luis Dawayan. (Rollo, p. 18)

The foregoing being conclusions of fact of the Court of Appeals, this Court finds them to be final and binding (Lauron v. CA, supra). It is not the function of this Court to re-examine all over again the oral and documentary evidence submitted by the parties unless the findings of facts of the Court of Appeals is not supported by the evidence on record or the judgment

is based on misapprehension of facts (Remalante v. Tibe, et al., G.R. No. L-59514, February 25, 1988, 158 SCRA 138) which is not so in the case at bar.

PREMISES CONSIDERED, the decision appealed from is AFFIRMED.

SO ORDERED.

HELD:

Indeed, Jalbuena’s testimony is confirmed by the voice recording he had made. It may be asked whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. The law provides: SECTION 1. It shall he unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof whether complete or partial, to any other person: Provided ,That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this prohibition . . . SEC. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. Thus, the law prohibits the overhearing, intercepting, or recording of private communications. Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited.

RAMIREZ V CA

7 NOV

G.R. No. 93833   | September 28, 1995 | J. Katipunan

Facts:

A civil case damages was filed by petitioner Socorro Ramirez in the Quezon City RTC alleging that the private respondent, Ester Garcia, in a confrontation in the latter’s office, allegedly vexed, insulted and humiliated her in a “hostile and furious mood” and in a

manner offensive to petitioner’s dignity and personality,” contrary to morals, good customs and public policy.”

In support of her claim, petitioner produced a verbatim transcript of the event and sought damages. The transcript on which the civil case was based was culled from a tape recording of the confrontation made by petitioner.

As a result of petitioner’s recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed a criminal case before the Pasay RTC for violation of Republic Act 4200, entitled “An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes.”

Petitioner filed a Motion to Quash the Information, which the RTC later on granted, on the ground that the facts charged do not constitute an offense, particularly a violation of R.A. 4200.

The CA declared the RTC’s decision null and void and denied the petitioner’s MR, hence the instant petition.

Issue:

W/N the Anti-Wiretapping Act applies in recordings by one of the parties in the conversation

Held:

Yes.  Section 1 of R.A. 4200 entitled, ” An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other Purposes,” provides:

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute’s intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier “any”. Consequently, as respondent Court of Appeals correctly concluded, “even a (person)

privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator” under this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court’s conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications taken either by the parties themselves or by third persons.

The nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: “Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed.”

Petitioner’s contention that the phrase “private communication” in Section 1 of R.A. 4200 does not include “private conversations” narrows the ordinary meaning of the word “communication” to a point of absurdity. The word communicate comes from the latin word communicare, meaning “to share or to impart.” In its ordinary signification, communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in a conversation,  or signifies the “process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)”

These definitions are broad enough to include verbal or non-verbal, written or expressive communications of “meanings or thoughts” which are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter’s office. Any doubts about the legislative body’s meaning of the phrase “private communication” are, furthermore, put to rest by the fact that the terms “conversation” and “communication” were interchangeably used by Senator Tañada in his Explanatory Note to the Bill.

ZULUETA VS. COURT OF APPEALS

G.R. No. 107383, February 20, 1996

FACTS:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondent's secretary, forcibly opened the drawers and cabinet in her husband's clinic and took 157 documents consisting of private

correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents and papers were seized for use in evidence in a case for legal separation and for disqualification from the practice of medicine which petitioner had filed against her husband.

Issue:

(1) Whether or not the documents and papers in question are inadmissible in evidence;

Held:

(1) No.  Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring "the privacy of communication and correspondence [to be] inviolable" is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law."  Any violation of this provision renders the evidence obtained inadmissible "for any purpose in any proceeding."

The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists.  Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions.  But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other.

The review for petition is DENIED for lack of merit.  

WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and ANTONIA MELODIA CATOLICO, respondents.

D E C I S I O N

DAVIDE, JR. J.:

“Nor is he a true Servant [who] buys dear to share in the Profit with the Seller.”[1]

This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private respondent Antonia Melodia Catolico (hereafter Catolico) not a “true Servant,” thereby assailing the 30 September 1993 decision[2] and 2 December 1993 Resolution[3] of the National Labor Relations Commission (NLRC) in NLRC-NCR CA No. 005160-93, which sustained the reinstatement and monetary awards in favor of private respondent[4] and denied the petitioners’ motion for reconsideration.[5]

The facts are as follows:

Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter WATEROUS) on 15 August 1988.

On 31 July 1989, Catolico received a memorandum[6] from WATEROUS Vice President-General Manager Emma R. Co warning her not to dispense medicine to employees chargeable to the latter’s accounts because the same was a prohibited practice.  On the same date, Co issued another memorandum[7] to Catolico warning her not to negotiate with suppliers of medicine without consulting the Purchasing Department, as this would impair the company’s control of purchases and, besides she was not authorized to deal directly with the suppliers.

As regards the first memorandum, Catolico did not deny her responsibility but explained that her act was “due to negligence,” since fellow employee Irene Soliven “obtained the medicines in bad faith and through misrepresentation when she claimed that she was given a charge slip by the Admitting Dept.”  Catolico then asked the company to look into the fraudulent activities of Soliven.[8]

In a memorandum[9] dated 21 November 1989, WATEROUS Supervisor Luzviminda E. Bautro warned Catolico against the “rush delivery of medicines without the proper documents.”

On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he noticed an irregularity involving Catolico and Yung Shin Pharmaceuticals, Inc. (hereafter YSP), which he described as follows:

… A case in point is medicine purchased under our Purchase Order (P.O.) No. 19045 with YSP Sales Invoice No. 266 representing purchase of ten (10) bottles of Voren tablets at P384.00 per unit. Previous P.O.s issued to YSP, Inc. showed that the price per bottle

is P320.00 while P.O. No. 19045 is priced at P384.00 or an over price of P64.00 per bottle (or total of P640.00).  WDRC paid the amount of P3,840.00 thru MBTC Check No. 222832 dated December 15, 1988. Verification was made to YSP, Inc. to determine the discrepancy and it was found that the cost per bottle was indeed overpriced. YSP, Inc. Accounting Department (Ms. Estelita Reyes) confirmed that the difference represents refund of jack-up price of ten bottles of Voren tablets per sales invoice no. 266 as per their check voucher no. 629552 (shown to the undersigned), which was  paid to Ms. Catolico through China Bank check no. 892068 dated November 9, 1989....

The undersigned talked to Ms. Catolico regarding the check but she denied having received it and that she is unaware of the overprice. However, upon conversation with Ms. Saldana, EDRC Espana Pharmacy Clerk, she confirmed that the check amounting to P640.00 was actually received by Ms. Catolico.  As a matter of fact, Ms. Catolico even asked Ms. Saldana if she opened the envelope containing the check but Ms. Saldana answered her “talagang ganyan, bukas.”  It appears that the amount in question (P640.00) had been pocketed by Ms. Catolico.[10]

Forthwith,  in her memorandum[11] dated 31 January 1990, Co asked Catolico to explain, within twenty-four hours, her side of the reported irregularity.  Catolico asked for additional time to give her explanation,[12] and she was granted a 48-hour extension from 1 to 3 February 1990.  However, on 2 February 1990, she was informed that effective 6 February 1990 to 7 March 1990, she would be placed on preventive suspension to protect the interests of the company.[13]

In a letter dated 2 February 1990, Catolico requested access to the file containing Sales Invoice No. 266 for her to be able to make a satisfactory explanation.  In said letter she protested Saldaña’s invasion of her privacy when Saldaña opened an envelope addressed to Catolico.[14]

In a letter[15] to Co dated 10 February 1990, Catolico, through her counsel, explained that the check she received from YSP was a Christmas gift and not a “refund of overprice.”  She also averred that the preventive suspension was ill-motivated, as it sprang from an earlier incident between her and Co’s secretary, Irene Soliven.

On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a memorandum[16] notifying Catolico of her termination; thus:

We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990 and Feb. 10, 1990 respectively regarding our imposition of preventive suspension on you for acts of dishonesty.  However, said letters failed to rebut the evidences [sic] in our possession which clearly shows that as a Pharmacist stationed at Espana Branch, you actually made Purchase Orders at YSP Phils., Inc. for 10 bottles of Voren tablets at P384.00/bottle with previous price of P320.00/bottle only. A check which you received in the amount of P640.00 actually represents the refund of over price of said medicines and this was confirmed by Ms. Estelita Reyes, YSP Phils., Inc. Accounting Department.

Your actuation constitutes an act of dishonesty detrimental to the interest of the company.  Accordingly, you are hereby terminated effective March 8, 1990.

On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for unfair labor practice, illegal dismissal, and illegal suspension.[17]

In his decision[18] of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of unfair labor practice against petitioners.  Nevertheless, he decided in favor of Catolico because petitioners failed to “prove what [they] alleged as complainant’s dishonesty,” and to show that any investigation was conducted.  Hence, the dismissal was without just cause and due process. He thus declared the dismissal and suspension illegal but disallowed reinstatement, as it would not be to the best interest of the parties.  Accordingly, he awarded separation pay to Catolico computed at one-half month’s pay for every year of service; back wages for one year; and the additional sum of P2,000.00 for illegal suspension “representing 30 days work.”  Arbiter Lopez computed the award in favor of Catolico as follows:

30 days Preventive Suspension                           P 2,000.00

Backwages                                                             26,858.50

1/12 of P26,858.50                                                   2,238.21

Separation pay (3 years)                                             4,305.15

                                      TOTAL AWARD:           P 35,401.86

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside because the Labor Arbiter erred in finding that Catolico was denied due process and that there was no just cause to terminate her services.

In its decision[19] of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter on the ground that petitioners were not able to prove a just cause for Catolico’s dismissal from her employment.  It found that petitioner’s evidence consisted only of the check of P640.00 drawn by YSP in favor of complainant, which her co-employee saw when the latter opened the envelope.  But, it declared that the check was inadmissible in evidence pursuant to Sections 2 and 3(1 and 2) of Article III of the Constitution.[20] It concluded:

With the smoking gun evidence of respondents being rendered inadmissible, by virtue of the constitutional right invoked by complainants, respondents’ case falls apart as it is bereft of evidence which cannot be used as a legal basis for complainant’s dismissal.

The NLRC then dismissed the appeal for lack of merit, but modified the dispositive portion of the appealed decision by deleting the award for illegal suspension as the same was already included in the computation of the aggregate of the awards in the amount of P35,401.86.

Their motion for reconsideration having been denied, petitioners filed this special civil action for certiorari, which is anchored on the following grounds:

I.  Public respondent committed grave abuse of discretion in its findings of facts.

II.  Due process was duly accorded to private respondent.

III.  Public respondent gravely erred in applying Section 3, Article III of the 1987 Constitution.

As to the first and second grounds, petitioners insist that Catolico had been receiving “commissions” from YSP, or probably from other suppliers, and that the check issued to her on 9 November 1989 was not the first or the last.  They also maintained that Catolico occupied a confidential position and that Catolico’s receipt of YSP’s check, aggravated by her “propensity to violate company rules,” constituted breach of confidence.  And contrary to the findings of NLRC, Catolico was given ample opportunity to explain her side of the controversy.

Anent the third ground, petitioners submit that, in light of the decision in the People v. Marti,[21] the constitutional protection against unreasonable searches and seizures refers to the immunity of one’s person from interference by government and cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG) disagreed with the NLRC's decision, as it was of the persuasion that (a) the conclusions reached by public respondent are inconsistent with its findings of fact; and (b) the incident involving the opening of envelope addressed to private respondent does not warrant the application of the constitutional provisions.  It observed that Catolico was given “several opportunities” to explain her side of the check controversy, and concluded that the opportunities granted her and her subsequent explanation “satisfy the requirements of just cause and due process.”  The OSG was also convinced that Catolico’s dismissal was based on just cause and that Catolico’s admission of the existence of the check, as well as her “lame excuse” that it was a Christmas gift from YSP, constituted substantial evidence of dishonesty.  Finally, the OSG echoed petitioners’ argument that there was no violation of the right of privacy of communication in this case,[22] adding that petitioner WATEROUS was justified in opening an envelope from one of its regular suppliers as it could assume that the letter was a business communication in which it had an interest.

In its Comment which we required to be filed in view of the adverse stand of the OSG, the NLRC contends that petitioners miserably failed to prove their claim that it committed grave abuse of discretion in its findings of fact.  It then prays that we dismiss this petition.

In her Comment, Catolico asserts that petitioners’ evidence is too “flimsy” to justify her dismissal.  The check in issue was given to her, and she had no duty to turn it over to her employer. Company rules do not prohibit an employee from accepting gifts from clients, and there is no indication in the contentious check that it was meant as a refund for

overpriced medicines.  Besides, the check was discovered in violation of the constitutional provision on the right to privacy and communication;  hence, as correctly held by the NLRC, it was inadmissible in evidence.

Catolico likewise disputes petitioners’ claim that the audit report and her initial response that she never received a check were sufficient to justify her dismissal.  When she denied having received a check from YSP, she meant that she did not receive any refund of overprice, consistent with her position that what she received was a token gift.  All that can be gathered from the audit report is that there was apparently an overcharge, with no basis to conclude that Catolico pocketed the amount in collusion with YSP.  She thus concluded that her dismissal was based on a mere suspicion.

Finally,  Catolico insists that she could not have breached the trust and confidence of WATEROUS because, being merely a pharmacist, she did not handle “confidential information or sensitive properties.”  She was doing the task of a saleslady: selling drugs and making requisitions when supplies were low.

A thorough review of the record leads us to no other conclusion than that, except as to the third ground, the instant petition must fail.

Concededly, Catolico was denied due process.  Procedural due process requires that an employee be apprised of the charge against him, given reasonable time to answer the charge, allowed ample opportunity to be heard and defend himself, and assisted by a representative if the employee so desires.[23] Ample opportunity connotes every kind of assistance that management must accord the employee to enable him to prepare adequately for his defense, including legal representation.[24]

In the case at bar, although Catolico was given an opportunity to explain her side, she was dismissed from the service in the memorandum of 5 March 1990 issued by her Supervisor after receipt of her letter and that of her counsel.  No hearing was ever conducted after the issues were joined through said letters.  The Supervisor’s memorandum spoke of “evidences [sic] in [WATEROUS] possession,” which were not, however, submitted.  What the “evidences” [sic] other than the sales invoice and the check were, only the Supervisor knew.

Catolico was also unjustly dismissed.  It is settled that the burden is on the employer to prove just and valid cause for dismissing an employee, and its failure to discharge that burden would result in a finding that the dismissal is unjustified.[25] Here, WATEROUS proved unequal to the task.

It is evident from the Supervisor’s memorandum that Catolico was dismissed because of an alleged anomalous transaction with YSP. Unfortunately for petitioners, their evidence does not establish that there was an overcharge.  Control Clerk Eugenio C. Valdez, who claims to have discovered Catolico’s inappropriate transaction, stated in his affidavit:[26]

4.  My findings revealed that on or before the month of July 31, 1989, Ms. Catolico in violation of the [company] procedure, made an under the table deal with YSP Phils.

to supply WDRC needed medicines like Voren tablets at a jack-up price of P384.00 per bottle of 50 mg. which has a previous price of only P320.00;

5.  I verified the matter to YSP Phils. to determine the discrepancy and I found out that the cost per bottle was indeed overpriced. The Accounting Department of YSP Phils. through Ms. Estelita Reyes confirmed that there was really an overprice and she said that the difference was refunded through their check voucher no. 629552 which was shown to me and the payee is Melodia Catolico, through a China Bank Check No. 892068 dated November 9, 1989.

It clearly appears then that Catolico’s dismissal was based on hearsay  information.  Estelita Reyes never testified nor executed an affidavit relative to this case; thus, we have to reject the statements attributed to her by Valdez.  Hearsay evidence carries no probative value.[27]

Besides, it was never shown that petitioners paid for the Voren tablets.  While Valdez informed Co, through the former’s memorandum[28] of 29 January 1990, that WATEROUS paid YSPP3,840.00 “thru MBTC Check No. 222832,” the said check was never presented in evidence, nor was any receipt from YSP offered by petitioners.

Moreover, the two purchase orders for Voren tablets presented by petitioners do not indicate an overcharge.  The purchase order dated 16 August 1989[29] stated that the Voren tablets costP320.00 per box, while the purchase order dated 5 October 1989[30] priced the Voren tablets at P384.00 per bottle.  The difference in price may then be attributed to the different packaging used in each purchase order.

Assuming that there was an overcharge, the two purchase orders for the Voren tablets were recommended by Director-MMG Mario R. Panuncio, verified by AVP-MNG Noli M. Lopez and approved by Vice President-General Manager Emma R. Co.  The purchase orders were silent as to Catolico’s participation in the purchase. If the price increase was objectionable to petitioners, they or their officers should have disapproved the transaction.  Consequently, petitioners had no one to blame for their predicament but themselves. This set of facts emphasizes the exceedingly incredible situation proposed by petitioners.  Despite the memorandum warning Catolico not to negotiate with suppliers of medicine, there was no proof that she ever transacted, or that she had the opportunity to transact, with the said suppliers.  Again, as the purchase orders indicate, Catolico was not at all involved in the sale of the Voren tablets.  There was no occasion for Catolico to initiate, much less benefit from, what Valdez called  an “under the table deal” with YSP.

Catolico’s dismissal then was obviously grounded on mere suspicion, which in no case can justify an employee’s dismissal.  Suspicion is not among the valid causes provided by the Labor Code for the termination of employment;[31] and even the dismissal of an employee for loss of trust and confidence must rest on substantial grounds and not on the employer’s arbitrariness, whims, caprices, or suspicion.[32] Besides, Catolico was not shown to be a managerial employee, to which class of employees the term “trust and confidence” is restricted.[33]

As regards the constitutional violation upon which the NLRC anchored its decision, we find no reason to revise the doctrine laid down in People vs. Marti[34] that the Bill of Rights does not protect citizens from unreasonable searches and seizures perpetrated by private individuals.  It is not true, as counsel for Catolico claims, that the citizens have no recourse against such assaults. On the contrary, and as said counsel admits, such an invasion gives rise to both criminal and civil liabilities.

Finally, since it has been determined by the Labor Arbiter that Catolico’s reinstatement would not be to the best interest of the parties, he correctly awarded separation pay to Catolico. Separation pay in lieu of reinstatement is computed at one month’s salary for every year of service.[35] In this case, however, Labor Arbiter Lopez computed the separation pay at one-half month’s salary for every year of service. Catolico did not oppose or raise an objection.  As such, we will uphold the award of separation pay as fixed by the Labor Arbiter.

WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and resolution of the National Labor Relations Commission dated 30 September 1993 and 2 December 1993, respectively, in NLRC-NCR CA No. 005160-93 are AFFIRMED, except as to its reason for upholding the Labor Arbiter’s decision, viz., that the evidence against private respondent was inadmissible for having been obtained in violation of her constitutional rights of privacy of communication and against unreasonable searches and seizures which is hereby set aside.

Costs against petitioners.

SO ORDERED.

LOURDES T. MARQUEZ vs. HON. ANIANO A. DESIERTO, et al.

G.R. No. 135882

June 27, 2001

En banc

FACTS:

In May 1998, petitioner Marquez received an Order from the Ombudsman Aniano A. Desierto dated April 29, 1998, to produce several bank documents for purposes of inspection in camera relative to various accounts maintained at Union Bank of the Philippines (UBP) Julia Vargas Branch where petitioner was the branch manager.  The accounts to be inspected were involved in a case pending with the Ombudsman entitled, Fact-Finding and Intelligence Bureau (FFIB) v. Amado Lagdameo, et. al, for violation of RA 3019 Sec. 3 (e) and (g) relative to the Joint Venture Agreement between the Public Estates Authority and AMARI. The Order was grounded on Section 15 of RA 6770 (Ombudsman Act of 1989) which provides, among others, the following powers, functions and duties of the Ombudsman, to wit:

(8)  Administer oaths, issue subpoena and subpoena duces tecum and take testimony in any investigation or inquiry, including the power to examine and have access to bank accounts and records;

(9)  Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties provided therein.

Clearly, the specific provision of R.A. 6770, a later legislation, modifies the law on the Secrecy of Bank Deposits (R.A. 1405) and places the office of the Ombudsman in the same footing as the courts of law in this regard.”

The basis of the Ombudsman in ordering an in camera inspection of the accounts was a trail of managers checks (MCs) purchased by one George Trivinio, a respondent in OMB-0-97-0411, pending with the office of the Ombudsman. It appeared that Trivinio purchased on May 2 and 3, 1995, 51 MCs for a total amount of P272.1 Million at Traders Royal Bank (TRB) UN Ave. Branch.  Out of the 51 MCs, eleven 11 MCs in the amount of P70.6M were deposited and credited to an account maintained at the UBP.

On May 26, 1998, the FFIB panel met with petitioner Marquez and Atty. Fe B. Macalino at the bank’s main office in Makati City, for the purpose of allowing petitioner and Atty. Macalino to view the checks furnished by TRB. After convincing themselves of the veracity of the checks, Atty. Macalino advised Ms. Marquez to comply with the order of the Ombudsman. Petitioner agreed to an in camera inspection set on June 3, 1998.  However, on June 4, 1998, Marquez wrote the Ombudsman that the accounts in question could not readily be identified since the checks were issued in cash or bearer, and asked for time to respond to the order. Marquez surmised that these accounts had long been dormant, hence were not covered by the new account number generated by the UB system, thus sought to verify from the Interbank records archives for the whereabouts of these accounts.

The Ombudsman, responding to the request of Marquez for time to comply with the order, stated that UBP-Julia Vargas, not Interbank, was the depositary bank of the subject TRB MCs as shown at its dorsal portion and as cleared by the Philippine Clearing House.  Notwithstanding the fact that the checks were payable to cash or bearer, the name of the depositor(s) could easily be identified since the account numbers where said checks were deposited were identified in the order.

Even assuming that the accounts were already classified as dormant accounts, the bank was still required to preserve the records pertaining to the accounts within a certain period of time as required by existing banking rules and regulations.

On June 16, 1998, the Ombudsman issued an order directing Marquez to produce the bank documents relative to the accounts in issue, stating that her persistent refusal to comply with the order is unjustified, was merely intended to delay the investigation of the case, constitutes disobedience of or resistance to a lawful order issued by the office and is punishable as Indirect Contempt under Section 3(b) of R.A. 6770.

On July 10, 1998, Marquez together with UBP filed a petition for declaratory relief, prohibition and injunction with the Makati RTC against the Ombudsman allegedly because the Ombudsman and other persons acting under his authority were continuously harassing her to produce the bank documents relative to the accounts in question. Moreover, on June 16, 1998, the Ombudsman issued another order stating that unless she appeared before the FFIB with the documents requested, Marquez would be charged with indirect contempt and obstruction of justice.

The lower court denied petitioner’s prayer for a temporary restraining order stating that since petitioner failed to show prima facie evidence that the subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman, no writ of injunction may be issued by the RTC to delay the investigation pursuant to Section 14 of the Ombudsman Act of 1989.

Petitioner filed a motion for reconsideration but was denied.

On August 21, 1998, petitioner received a copy of the motion to cite her for contempt. On August 31, 1998, petitioner filed with the Ombudsman an opposition to the motion to cite her in contempt on the ground that the filing thereof was premature due to the petition pending in the lower court. Petitioner likewise reiterated that she had no intention to disobey the orders of the Ombudsman. However, she wanted to be clarified as to how she would comply with the orders without her breaking any law, particularly RA 1405.

ISSUES:

1. Whether or not Marquez may be cited for indirect contempt for her failure to produce the documents requested by the Ombudsman.

2. Whether or not the order of the Ombudsman to have an in camera inspection of the questioned account is allowed as an exception to the law on secrecy of bank deposits (RA 1405).

HELD:

An examination of the secrecy of bank deposits law (RA 1405) would reveal the following exceptions:

1.  Where the depositor consents in writing;

2.  Impeachment case;

3.  By court order in bribery or dereliction of duty cases against public officials;

4.  Deposit is subject of litigation;

5.  Sec. 8, R. A. No. 3019, in cases of unexplained wealth as held in the case of PNB vs. Gancayco

We rule that before an in camera inspection may be allowed, there must be a pending case before a court of competent jurisdiction. Further, the account must be clearly identified, the inspection limited to the subject matter of the pending case before the court of competent jurisdiction.  The bank personnel and the account holder must be notified to be present during the inspection, and such inspection may cover only the account identified in the pending case.

In Union Bank of the Philippines v. Court of Appeals, we held that “Section 2 of the Law on Secrecy of Bank Deposits, as amended, declares bank deposits to be “absolutely confidential” except:

(1) In an examination made in the course of a special or general examination of a bank that is specifically authorized by the Monetary Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregularity has been or is being committed and that it is necessary to look into the deposit to establish such fraud or irregularity,

(2) In an examination made by an independent auditor hired by the bank to conduct its regular audit provided that the examination is for audit purposes only and the results thereof shall be for the exclusive use of the bank,

(3) Upon written permission of the depositor,

(4) In cases of impeachment,

(5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials, or

(6) In cases where the money deposited or invested is the subject matter of the litigation”

In the case at bar, there is yet no pending litigation before any court of competent authority. What is existing is an investigation by the office of the Ombudsman. In short, what the Office of the Ombudsman would wish to do is to fish for additional evidence to formally charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly, there was no pending case in court which would warrant the opening of the bank account for inspection.

Zones of privacy are recognized and protected in our laws.  The Civil Code provides that “every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons” and punishes as actionable torts several acts for meddling and prying into the privacy of another.  It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications.  The Revised Penal Code makes a crime of the violation of secrets by an officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act, and the Intellectual Property Code.

Ombudsman is ordered to cease and desist from requiring Union Bank Manager Lourdes T. Marquez, or anyone in her place to comply with the order dated October 14, 1998, and similar orders.

BLAS F. OPLE, vs. RUBEN D. TORRES et al

EN BANC

[G.R. No. 127685, July 23, 1998]

FACTS OF THE CASE:

• President Fidel V. Ramos issued Administrative Order (A.O.) 308 on December 12, 1996 entiltled “Adoption of NationalComputerized Identification Reference System” or commonly known as “Natioanal ID System”.

• Senator Blas F. Ople filed a petition before the Supreme Court questioning the constitutionality of the said executive issuance on two important grounds, viz: one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenry's protected zone of privacy. We grant the petition for the rights sought to be vindicated by the petitioner need stronger barriers against further erosion.

ISSUE: DOES A.0 308 VIOLATE THE RIGHT TO PRIVACY?

SUPREME COURT:

Yes. Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as an administrative legislation because facially it violates the right to privacy. A.O. 308 is so vague. The vagueness, the overbreadth of A.O. No. 308 which if implemented will put our people's right to privacy in clear and present danger. There are no vital safeguards.

A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding of data is limited to biological information alone for identification purposes. In fact, the Solicitor General claims that the adoption of the Identification Reference System will contribute to the "generation of population data for development planning." 54 This is an admission that the Population Reference Number (PRN) will not be used solely for identification but for the generation of other data with remote relation to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government the roving authority to store and retrieve information for a purpose other than the identification of the individual through his PRN .

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed as the dissenters do. Pursuant to said administrative order, an individual must present his PRN everytime he deals with a government agency to avail of basic services and security. His transactions with the government agency will necessarily be recorded -- whether it be in the computer or in the documentary file of the agency. The individual's file may include his transactions for loan availments, income tax returns, statement of assets and liabilities, reimbursements for medication, hospitalization, etc. The more frequent the use of the PRN, the better the chance of building a huge and formidable information base through the electronic linkage of the files.

The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist. We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic personal information about the individual. Even that hospitable assumption will not save A.O. No. 308 from constitutional infirmity for again said order does not tell us in clear and categorical terms how these information gathered shall be handled. It does not provide who shall control and access the data, under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. Well to note, the computer linkage gives other government agencies access to the information. Yet, there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system. It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes. The lack of proper safeguards in this regard of A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against selfincrimination; it may pave the way for "fishing expeditions" by government authorities and evade the right against unreasonable searches and seizures. The possibilities of abuse and misuse of the PRN, biometrics and computer technology are accentuated when we consider that the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded. They threaten the very abuses that the Bill of Rights seeks to prevent.