G.R. No.

178497, February 04, 2014 –

EDITA T. BURGOS, Petitioner, v. GEN. HERMOGENES ESPERON, JR.,

BRION, J.:

FACTUAL ANTECEDENTS

A. The Court’s June 22, 2010 Resolution

These incidents stemmed from our June 22, 2010 Resolution referring the present case to the
Commission on Human Rights (CHR) as the Court’s directly commissioned agency, tasked with the
continuation of the investigation of Jonas Joseph T. Burgos’ abduction with the obligation to report its
factual findings and recommendations to this Court. This referral was necessary as the investigation by
the Philippine National Police–Criminal Investigation and Detection Group (PNP–CIDG), by the Armed
Forces of the Philippines (AFP) Provost Marshal, and even the initial CHR investigation had been less
than complete. In all of them, there were significant lapses in the handling of the investigation. In
particular, we highlighted the PNP–CIDG’s failure to identify the cartographic sketches of two (one male
and one female) of the five abductors of Jonas, based on their interview with the eyewitnesses to the
abduction.

In this same Resolution, we also affirmed the CA’s dismissal of the petitions for Contempt and issuance
of a Writ of Amparo with respect to President Macapagal–Arroyo who was then entitled, as President,
to immunity from suit.

The March 15, 2011 CHR Report

On March 15, 2011, the CHR submitted to the Court its Investigation Report on the Enforced
Disappearance of Jonas Burgos (CHR Report), in compliance with our June 22, 2010 Resolution. On the
basis of the gathered evidence, the CHR submitted the following findings:

Based on the facts developed by evidence obtaining in this case, the CHR finds that the enforced
disappearance of Jonas Joseph T. Burgos had transpired; and that his constitutional rights to life liberty
and security were violated by the Government have been fully determined.
Jeffrey Cabintoy and Elsa Agasang have witnessed on that fateful day of April 28, 2007 the forcible
abduction of Jonas Burgos by a group of about seven (7) men and a woman from the extension portion
of Hapag Kainan Restaurant, located at the ground floor of Ever Gotesco Mall, Commonwealth Avenue,
Quezon City.

xxx

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

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

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

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

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

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

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

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

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

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

Efforts to contact Virgilio Eustaquio to secure his affidavit proved futile, as his present whereabouts
cannot be determined. And due to lack of material time, the Commission decided to pursue the same
and determine the whereabouts of the other members of the “Erap 5” on its own time and authority as
an independent body.2ChanRoblesVirtualawlibrary

B. The Court’s July 5, 2011 Resolution

On July 5, 2011, in light of the new evidence and leads the CHR uncovered, we issued a Resolution: (1)
issuing anew a Writ of Habeas Corpus and referring the habeas corpus petition to the CA; (2) holding in
abeyance our ruling on the merits of the Amparo aspect of the case; referring back the same to the CA
in order to allow Lt. Harry A. Baliaga, Jr. and the present Amparo respondents to file their Comments on
the CHR Report; and ordering Lt. Baliaga to be impleaded as a party to the Amparo petition; and (3)
affirming the dismissal of the petitioner’s petition for Contempt, without prejudice to the re–filing of the
contempt charge as may be warranted by the results of the subsequent CHR investigation. To quote the
exact wording of our Resolution:

WHEREFORE, in the interest of justice and for the foregoing reasons, we RESOLVE
to:chanRoblesvirtualLawlibrary

IN G.R. NO. 183711 (HABEAS CORPUS PETITION, CA–G.R. SP No. 99839)

ISSUE a Writ of Habeas Corpus anew, returnable to the Presiding Justice of the Court of Appeals who
shall immediately refer the writ to the same Division that decided the habeas corpus petition;

ORDER Lt. Harry A. Baliaga, Jr. impleaded in CA–G.R. SP No. 99839 and G.R. No. 183711, and REQUIRE
him, together with the incumbent Chief of Staff, Armed Forces of the Philippines; the incumbent
Commanding General, Philippine Army; and the Commanding Officer of the 56th IB, 7th Infantry
Division, Philippine Army at the time of the disappearance of Jonas Joseph T. Burgos, Lt. Col. Melquiades
Feliciano, to produce the person of Jonas Joseph T. Burgos under the terms the Court of Appeals shall
prescribe, and to show cause why Jonas Joseph T. Burgos should not be released from detention;

REFER back the petition for habeas corpus to the same Division of the Court of Appeals which shall
continue to hear this case after the required Returns shall have been filed and render a new decision
within thirty (30) days after the case is submitted for decision; and
ORDER the Chief of Staff of the Armed Forces of the Philippines and the Commanding General of the
Philippine Army to be impleaded as parties, separate from the original respondents impleaded in the
petition, and the dropping or deletion of President Gloria Macapagal–Arroyo as party–respondent.

IN G.R. NO. 183712 (CONTEMPT OF COURT CHARGE, CA–G.R. SP No. 100230)

e. AFFIRM the dismissal of the petitioner’s petition for Contempt in CA–G.R. SP No. 100230, without
prejudice to the re–filing of the contempt charge as may be warranted by the results of the subsequent
CHR investigation this Court has ordered; and

f. ORDER the dropping or deletion of former President Gloria Macapagal–Arroyo as party–respondent, in

light of the unconditional dismissal of the contempt charge against her.

IN G.R. NO. 183713 (WRIT OF AMPARO PETITION, CA–G.R. SP No. 00008–WA)

g. ORDER Lt. Harry A. Baliaga, Jr., impleaded in CA–G.R. SP No. 00008–WA and G.R. No. 183713, without
prejudice to similar directives we may issue with respect to others whose identities and participation
may be disclosed in future investigations and proceedings;

h. DIRECT Lt. Harry A. Baliaga, Jr., and the present Amparo respondents to file their Comments on the
CHR report with the Court of Appeals, within a non–extendible period of fifteen (15) days from receipt
of this Resolution.

i. REQUIRE General Roa of the Office of the Judge Advocate General, AFP; the Deputy Chief of Staff for
Personnel, JI, AFP, at the time of our June 22, 2010 Resolution; and then Chief of Staff, AFP, Gen. Ricardo
David, (a) to show cause and explain to this Court, within a non–extendible period of fifteen (15) days
from receipt of this Resolution, why they should not be held in contempt of this Court for their defiance
of our June 22, 2010 Resolution; and (b) to submit to this Court, within a non–extendible period of
fifteen (15) days from receipt of this Resolution, a copy of the documents requested by the CHR,
particularly:

1)

The profile and Summary of Information and pictures of T/Sgt. Jason Roxas (Philippine Army); Cpl. Maria
Joana Francisco (Philippine Air Force); M/Sgt. Aron Arroyo (Philippine Air Force); an alias T.L. – all
reportedly assigned with Military Intelligence Group 15 of Intelligence Service of the Armed Forces of
the Philippines – and 2Lt. Fernando, a lady officer involved in the counter–insurgency operations of the
56th IB in 2006 to 2007;

2)

Copies of the records of the 2007 ERAP 5 incident in Kamuning, Quezon City and the complete list of the
intelligence operatives involved in that said covert military operation, including their respective
Summary of Information and individual pictures; and

3)

Complete list of the officers, women and men assigned at the 56th and 69th Infantry Battalion and the
7th Infantry Division from January 1, 2004 to June 30, 2007 with their respective profiles, Summary of
Information and pictures; including the list of captured rebels and rebels who surrendered to the said
camps and their corresponding pictures and copies of their Tactical Interrogation Reports and the cases
filed against them, if any.

These documents shall be released exclusively to this Court for our examination to determine their
relevance to the present case and the advisability of their public disclosure.

j. ORDER the Chief of Staff of the Armed Forces of the Philippines and the Commanding General of the
Philippine Army to be impleaded as parties, in representation of their respective organizations,
separately from the original respondents impleaded in the petition; and the dropping of President Gloria
Macapagal–Arroyo as party–respondent;

k. REFER witnesses Jeffrey T. Cabintoy and Elsa B. Agasang to the Department of Justice for admission to
the Witness Protection Security and Benefit Program, subject to the requirements of Republic Act No.
6981; and

l. NOTE the criminal complaint filed by the petitioner with the DOJ which the latter may investigate and
act upon on its own pursuant to Section 21 of the Rule on the Writ of Amparo.3

C. The Court’s August 23, 2011 Resolution

On August 23, 2011, we issued a Resolution resolving among others:

(a)
to NOTE the Explanation separately filed by Brigadier Gen. Gilberto Jose C. Roa, Armed Forces of the
Philippines (AFP), General Ricardo A. David, Jr., AFP (ret.), and Rear Admiral Cornelio A. dela Cruz, Jr.,
AFP;

xxx

(c)

to LIMIT the documents to be submitted to this Court to those assigned at the 56th Infantry Battalion
(IB) from January 1, 2004 to June 30, 2007, and to SUBMIT these materials within ten (10) days from
notice of this Resolution, without prejudice to the submission of the other documents required under
the Court’s July 5, 2011 Resolution, pertaining to those assigned at the other units of the AFP, should the
relevance of these documents be established during the Court of Appeal’s hearing;

(d)

to REQUIRE the submission, within ten (10) days from notice of this Resolution, of the Summary of
Information and individual pictures of the intelligence operatives involved in the ERAP 5 incident, in
compliance with the Court’s July 5, 2011 Resolution;

(e)

to REQUIRE the submission, within ten (10) days from notice of this Resolution, of the profile and
Summary of Information and pictures of an alias T.L., reportedly assigned with Military Intelligence
Group 15 of the Intelligence Service of the AFP and of a 2Lt. Fernando, a lady officer in the counter–
insurgency operations of the 56th IB in 2006 to 2007, in compliance with the Court’s July 5, 2011
Resolution.4

The Respondents’ September 23, 2011 Manifestation and Motion

On September 23, 2011, the respondents submitted a Manifestation and Motion in compliance with the
Court’s August 23, 2011 Resolution. Attached to this Manifestation and Motion are the following
documents:chanRoblesvirtualLawlibrary

The Summary of Information (SOI) of the officers and enlisted personnel of the 56th IB, 7th ID from
January 1, 2004 to June 30, 2007;

The Summary of Information (SOI) of the intelligence operatives who were involved in the ERAP 5
incident; and
The Summary of Information (SOI) of 2Lt. Fernando, who was a member of the 56th IB, 7th ID.5

D. The Court’s September 6, 2011 Resolution

On August 19, 2011, the petitioner filed a Manifestation and a Motion for Clarificatory Order praying
among others that she be allowed to examine the documents submitted to the Court pursuant to
paragraph III (i) of the Court’s July 5, 2011 Resolution. In our September 6, 2011 Resolution, we
resolved, among others, to:chanRoblesvirtualLawlibrary

(3)

DENY the petitioner’s request to be allowed to examine the documents submitted to this Court per
paragraph (i) of the fallo of our July 5, 2011 Resolution, without prejudice to our later determination of
the relevance and of the advisability of public disclosure of those documents/materials;6

E. The Court’s October 11, 2011 Resolution

On October 11, 2011, we issued a Resolution requiring the CHR to secure Virgilio Eustaquio’s affidavit,
and to submit a report of its ongoing investigation of Jonas’ abduction, viz:

(1)

REQUIRE the Commission on Human Rights to undertake all available measures to obtain the affidavit of
witness Virgilio Eustaquio in connection with his allegation that one of the male abductors of Jonas
Joseph T. Burgos, appearing in the cartographic sketch, was among the “raiders” who abducted him and
four others, identified as Jim Cabauatan, Jose Curament, Ruben Dionisio and Dennis Ibona (otherwise
known as the “ERAP FIVE”);

(2)

DIRECT the Commission on Human Rights to submit to this Court, within thirty (30) days from receipt of
this Resolution, a Report, with its recommendations of its ongoing investigation of Burgos’ abduction,
and the affidavit of Virgilio Eustaquio, if any, copy furnished the petitioner, the Court of Appeals, the
incumbent Chiefs of the AFP, the PNP and the PNP–CIDG, and all the present respondents before the
Court of Appeals.7

F. The Court’s November 29, 2011 Resolution

On November 2, 2011, we received a letter dated October 28, 2011 from Commissioner Jose Manuel S.
Mamauag, Team Leader, CHR Special Investigation Team, requesting photocopies of the following
documents:chanRoblesvirtualLawlibrary

SOI of the officers and enlisted personnel of the 56th IB, 7th ID from January 1, 2004 to June 30, 2007;
SOI of the intelligence operatives who were involved in the ERAP 5 incident; and

SOI of 2Lt. Fernando who was a member of the 56th IB, 7th ID.8

In our November 29, 2011 Resolution, we denied the CHR’s request considering the confidential nature
of the requested documents and because the relevance of these documents to the present case had not
been established. We referred the CHR to our July 5, 2011 Resolution where we pointedly stated that
these documents shall be “released exclusively to this Court for our examination to determine their
relevance to the present case and the advisability of their public disclosure.”9

We held that “[w]e see no reason at this time to release these confidential documents since their
relevance to the present case has not been established to our satisfaction. It is precisely for this reason
that we issued our October 24, 2011 Resolution and directed the CHR to submit to this Court, within
thirty (30) days from receipt of the Resolution, a Report with its recommendations of its ongoing
investigation of Jonas Burgos’ abduction, and the affidavit of Virgilio Eustaquio, if any. Simply stated, it is
only after the CHR’s faithful compliance with our October 24, 2011 Resolution that we will be able to
determine the relevance of the requested documents to the present case.”10

G. The March 20, 2012 CHR Progress Report and Eustaquio’s Affidavit

On March 20, 2012, the CHR submitted its Progress Report detailing its efforts to secure the affidavit of
witness Eustaquio in relation with his allegation that one of the male abductors of Jonas, appearing in
the cartographic sketch, was among the raiders who abducted him and four others, identified as Jim
Cabauatan, Jose Curament, Ruben Dionisio and Dennis Ibona (otherwise known as the “ERAP FIVE”).
Attached to this Report is Eustaquio’s sworn affidavit dated March 16, 2012, which pertinently stated:

I was one of the victims in the abduction incident on May 22, 2006 otherwise known as ERAP 5 and
because of that, we filed a case with the Ombudsman against Commodore Leonardo Calderon, et al., all
then ISAFP elements, docketed as OMB–P–C–06–04050–E for Arbitrary Detention, Unlawful Arrest,
Maltreatment of Prisoners, Grave Threats, Incriminatory Machination, and Robbery.

On March 16, 2012, I was approached again by the CHR Special Investigation Team regarding the
information I have previously relayed to them sometime in September 2010 as to the resemblance of
the cartographic sketch of the man as described by the two eyewitnesses Elsa Agasang and Jeffrey
Cabintoy in the abduction case of Jonas Burgos;

I can say that the male abductor of Jonas Burgos appearing in the cartographic sketch is among the
raiders who abducted me and my four other companions because the cartographic sketch almost
exactly matched and/or resembled to the cartographic sketch that I also provided and described in
relation to the said incident at my rented house in Kamuning, Quezon City on May 22, 2006.
I am executing this affidavit voluntarily, freely and attest to the truth of the foregoing.11cralawred

H. The March 18, 2013 CA Decision

On March 18, 2013, the CA issued its decision pursuant to the Court’s July 5, 2011 Resolution referring
the Amparo and Habeas Corpus aspects of the case to the CA for appropriate hearings and ruling on the
merits of the petitions.

Petition for Habeas Corpus

The CA held that the issue in the petition for habeas corpus is not the illegal confinement or detention of
Jonas, but his enforced disappearance. Considering that Jonas was a victim of enforced disappearance,
the present case is beyond the ambit of a petition for habeas corpus.

Petition for the Writ of Amparo

Based on its finding that Jonas was a victim of enforced disappearance, the CA concluded that the
present case falls within the ambit of the Writ of Amparo. The CA found that the totality of the evidence
supports the petitioner’s allegation that the military was involved in the enforced disappearance of
Jonas. The CA took note of Jeffrey Cabintoy’s positive identification of Lt. Baliaga as one of the abductors
who approached him and told him not to interfere because the man being arrested had been under
surveillance for drugs; he also remembered the face of Lt. Baliaga – the face he identified in the pictures
because he resembles his friend Raven. The CA also held that Lt. Baliaga’s alibi and corroborative
evidence cannot prevail over Cabintoy’s positive identification, considering especially the absence of any
indication that he was impelled by hatred or any improper motive to testify against Lt. Baliaga. Thus, the
CA held that Lt. Baliaga was responsible and the AFP and the PNP were accountable for the enforced
disappearance of Jonas.

Based on these considerations, the CA resolved to:

1)

RECOGNIZING the abduction of Jonas Burgos as an enforced disappearance covered by the Rule on the
Writ of Amparo;
2)

With regard to authorship,

a)

DECLARING Maj. Harry A. Baliaga, Jr. RESPONSIBLE for the enforced disappearance of Jonas Burgos; and

b)

DECLARING the Armed Forces of the Philippines and elements of the Armed Forces of the Philippines,
particularly the Philippine Army, ACCOUNTABLE for the enforced disappearance of Jonas Burgos;

3)

DECLARING the Philippine National Police ACCOUNTABLE for the conduct of an exhaustive investigation
of the enforced disappearance of Jonas Burgos. To this end, the PNP through its investigative arm, the
PNP–CIDG, is directed to exercise extraordinary diligence to identify and locate the abductors of Jonas
Burgos who are still at large and to establish the link between the abductors of Jonas Burgos and those
involved in the ERAP 5 incident.

(4)

DIRECTING the incumbent Chief of Staff of the Armed Forces of the Philippines and the Director General
of the Philippine National Police, and their successors, to ensure the continuance of their investigation
and coordination on the enforced disappearance of Jonas Burgos until the persons found responsible
are brought before the bar of justice;

(5)

DIRECTING the Commission on Human Rights to continue with its own independent investigation on the
enforced disappearance of Jonas Burgos with the same degree of diligence required under the Rule on
the Writ of Amparo; and

(6)

DIRECTING the Armed Forces of the Philippines and the Philippine National Police to extend full
assistance to the Commission on Human Rights in the conduct of the latter’s investigation.
The Chief of Staff, Armed Forces of the Philippines, the Director General, Philippine National Police and
the Chairman, Commission on Human Rights are hereby DIRECTED to submit a quarterly report to this
Court on the results of their respective investigation.

The filing of petitioner’s Affidavit–Complaint against Maj. Harry A. Baliaga, Jr., et al. before the
Department of Justice on June 9, 2011 is NOTED. Petitioner is DIRECTED to immediately inform this
Court of any development regarding the outcome of the case.12

The Respondent’s April 3, 2013 Motion for Partial Reconsideration

The Solicitor General, in behalf of the public respondents (the AFP Chief of Staff and the PNP Director
General), filed a motion for partial reconsideration of the March 18, 2013 CA decision. The motion made
the following submissions:

5. x x x[T]he Director General, PNP, respectfully takes exception to the Honorable Court’s findings that
the PNP, specifically the CIDG, “failed to exercise extraordinary diligence in the conduct of its
investigation.” x x x [T]hat this Honorable Court arrived at a conclusion different from that of the CIDG,
or accorded different credence to the statements of the witnesses presented by the parties, does not
necessarily translate to the CIDG’s failure to exercise extraordinary diligence.

6. The Chief of Staff, AFP also takes exception to the Honorable Court’s findings that the “Chief of Staff
of the Armed Forces of the Philippines and the Commanding General should be held accountable for
Jonas Burgos disappearance for failing to exercise extraordinary diligence in conducting an internal
investigation on the matter. The unwillingness of the respondent officers of the 56th IB to cooperate in
the investigation conducted by the CHR is a persuasive proof of the alleged cover up of the military’s
involvement in the enforced disappearance of Jonas Burgos.”

The AFP and the Philippine Army conducted a thorough investigation to determine the veracity of the
allegations implicating some of its officers and personnel. After the conduct of the same, it is the
conclusion of the Armed Forces of the Philippines and the Philippine Army, based on the evidence they
obtained, that Jonas Burgos has never been in custody.

7. The Chief of Staff, AFP, also respectfully takes exception to the finding of the Honorable Court
“recognizing the abduction of Jonas Burgos as an enforced disappearance.”

xxx
That the Honorable Court found a member of the Philippine Army or even a group of military men to be
responsible for the abduction of Jonas Burgos, does not necessarily make the same a case of “enforced
disappearance” involving the State. There is dearth of evidence to show that the government is
involved. Respondent Baliaga’s alleged participation in the abduction and his previous membership in
the 56th Infantry Battalion of the Philippine Army, by themselves, do not prove the participation or
acquiescence of the State.13ChanRoblesVirtualawlibrary

I. The CA Resolution dated May 23, 2013

On May 23, 2013, the CA issued its resolution denying the respondents’ motion for partial
reconsideration. The CA ruled that as far as the PNP was concerned, its failure to elicit leads and
information from Cabintoy who witnessed Jonas’ abduction is eloquent proof of its failure to exercise
extraordinary diligence in the conduct of its investigation. As far as the AFP was concerned, the CA held
that the fact that Lt. Baliaga of the Philippine Army was positively identified as one of the abductors of
Jonas, coupled with the AFP’s lack of serious effort to conduct further investigation, spoke loudly of the
AFP leadership’s accountability.

To date, the respondents have not appealed to this Court, as provided under Section 19 of the Rule on
the Writ of Amparo.14

J. The Petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela dated April 1, 2013

On April 1, 2013, the petitioner filed an Ex Parte Motion Ex Abundanti Cautela asking the Court to: (1)
order the persons named in the sealed documents to be impleaded in CA–G.R. SP No. 00008–WA and
G.R. No. 183713; (2) issue a writ of Amparo on the basis of the newly discovered evidence (the sealed
attachment to the motion); and (3) refer the cases to the CA for further hearing on the newly discovered
evidence.

The petitioner alleged that she received from a source (who requested to remain anonymous)
documentary evidence proving that an intelligence unit of the 7th Infantry Division of the Philippine
Army and 56th Infantry Battalion, operating together, captured Jonas on April 28, 2007 at Ever Gotesco
Mall, Commonwealth Avenue, Quezon City. This documentary evidence consists of: (1) After
Apprehension Report dated April 30, 2007; (2) Psycho Social Processing Report dated April 28, 2007; and
(3) Autobiography of Jonas. The petitioner also claimed that these are copies of confidential official
reports on file with the Philippine Army.

i. After Apprehension Report dated April 30, 2007

This report is a photocopy consisting six pages dated April 30, 2007, addressed to the Commanding
Officer, 7MIB, 7ID, LA, Fort Magsaysay, NE. The report detailed the planning and the objective of
apprehending target communist leaders, among them, one alias “Ramon” who was captured at Ever
Gotesco Mall, Commonwealth, Quezon City on April 28, 2007 by joint elements of the 72 MICO and S2,
56th IB. This report also listed the names of the military personnel belonging to task organization 72
MICO and 56th IB who conducted the operation.

ii. Psycho Social Processing Report dated April 28, 2007

This report details Jonas’ abduction and “neutralization”; the results of his interrogation and the
intelligence gathered on his significant involvements/activities within the CPP/NPA/NDF organization.

iii. Undated Autobiography

This autobiography narrates how Jonas started as a student activist, his recruitment and eventual ascent
in the CPP/NPA as an intelligence officer.

K. The Court’s April 11, 2013 Resolution

In our April 11, 2013 Resolution, the Court resolved to require the respondents to Comment on the
petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela and its attachments, within ten (10) days from
receipt of the Resolution. In the same Resolution, the Court:chanRoblesvirtualLawlibrary

(1)

required BGen. Roa and Lt. Gen. Emmanuel T. Bautista to fully comply with the terms of Section III (i) of
the dispositive portion of our July 5, 2011 Resolution within fifteen (15) days from receipt of the
resolution;

(2)

required Lt. Gen. Emmanuel T. Bautista to submit a written assurance within fifteen (15) days from
receipt of the Resolution that the military personnel listed in the submitted After Apprehension Report
can be located and be served with the processes that the Court may serve;
(3)

issued a Temporary Protection Order in favor of the petitioner and all the members of her immediate
family;

(4)

directed the DOJ and the NBI to provide security and protection to the petitioner and her immediate
family and to submit a confidential memorandum on the security arrangements made;

(5)

directed the NBI to coordinate and provide direct investigative assistance to the CHR as it may require
pursuant to the authority granted under the Court’s June 22, 2010 Resolution.15

i. The respondents’ Comment from the petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela dated
June 6, 2013

On June 6, 2013, the respondents, through the Office of the Solicitor General, filed their comments on
the petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela.

First, the respondents alleged that the documents submitted by the petitioner do not exist in the
concerned military units’ respective records, nor are they in the custody or possession of their
respective units. To support their allegations, the respondents submitted the following:

Certification dated May 29, 2013 from Maj. Gen. Gregorio Pio P. Catapang, Jr. Commander, 7th Infantry
Division, Philippine Army stating that the documents16 submitted by the petitioner “do not exist nor in
the possession/custody of this Headquarters.”

Certification dated May 29, 2013, from Lt. Col. Louie D.S. Villanueva, Assistant Chief of Staff, Office of
the Assistant Chief of Staff for Personnel, G1, 7th Infantry Division, Philippine Army stating that the
documents submitted by the petitioner “could not be found nor do they exist in the records of this
Command.”

Certification dated May 24, 2013 from Lt. Col. Bernardo M. Ona, Commanding Officer, 56th Infantry
Battalion, 7th Infantry Division, Philippine Army stating that the documents submitted by the petitioner
“do not exist at this unit.”
Certification dated May 24, 2013 from 1Lt. Donal S. Frias, Acting Commanding Officer, 72nd Military
Intelligence Company, 7th Military Intelligence Battalion, 7th Infantry Division, Philippine Army stating
that the documents submitted by the petitioner “do not exist at the records or in the possession of this
unit.”17

The respondents also submitted the affidavits of Lt. Col. Melquiades Feliciano, Maj. Allan M. Margarata
and Cpl. Ruby Benedicto, viz:

a. In his June 3, 2013 Affidavit, Col. Feliciano stated:

That I was assigned as Battalion Commander of 56th Infantry Division, 7th Infantry Division, PA last 17
January 2007 to 17 August 2007.

That I was showed a photocopy of the After Apprehension Report dated 30 April 2007 wherein
members of 56th IB, 7ID, PA were included therein.

I vehemently oppose to (sic) the existence of the said document and the participation of my men listed
thereat. There were no military operations that I have authorized or approved regarding Jonas Burgos.
The contents thereof are false and utter fabrication of facts.

b. In his May 31, 2013 Affidavit, Maj. Margarata stated:

That I was assigned at 72nd Military Intelligence Company (72MICO), 7th Infantry Division, PA from 01
July 2006 to 01 July 2008.

That I was showed a photocopy of the Psycho–Social Processing Report dated 28 April 2007 and After
Apprehension Report dated 30 April 2007, both of which purportedly came from 72MICO, 7th Infantry
Division, Philippine Army and that on the last page of the Pyscho–Social Processing Report appears my
name therein.

I vehemently oppose to (sic) the existence of the said documents and the implication of my name in the
said documents. The contents thereof are purely a product of wild imagination. I have never seen such
document until now.

I can only surmise that these are plainly a fishing expedition on the part of Mrs. Edita Burgos. A ploy to
implicate any military personnel especially those belonging to the 7th Infantry Division, Philippine Army.

c. In her May 31, 2013 Affidavit, Cpl. Benedicto stated:

That I was never assigned at 72nd Military Intelligence Company, 7th Infantry Division, PA.
That I was showed a photocopy of the Psycho–Social Processing Report dated 28 April 2007 and After
Apprehension Report dated 30 April 2007, both of which purportedly came from 72MICO, 7th Infantry
Division, Philippine Army and that on the last page of the Psycho–Social Processing Report appears my
name therein.

I vehemently oppose to (sic) the existence of the said documents and the implication of my name in the
said documents. The contents thereof are false and utter fabrication of facts. How can I ever be at
72MICO if I was never assigned thereat.

I have never been an interrogator in my entire military service. I have never been a member of any
operation which involves the name of Jonas Burgos or any other military operation for that matter. I
have never seen such document until now.

Furthermore, I have never worked with Maj. Allan Margarata or of his unit, 72MICO.18

Second, the respondents note that none of the documents submitted by the petitioner were signed; a
writ of Amparo cannot be issued and the investigation cannot progress on the basis of false documents
and false information.

Lastly, the respondents argue that since the National Bureau of Investigation (NBI) and CHR are
conducting their own investigations of the case, the petitioner’s motion at this point is premature; the
proceedings to be conducted by the CA will be at the very least redundant.

ii. The Respondents’ Compliance dated June 7, 2013

On June 7, 2013, the respondents, through the Office of Judge Advocate General, complied with our
April 11, 2013 Resolution by submitting the following documents:

Profile/Summary of Information (SOI) with pictures of the personnel of 56th Infantry Battalion (IB), 69th
IB, and 7th Infantry Division, Philippine Army (PA). These documents were submitted by the 7th ID in
sealed nine (9) small and three (3) big boxes (total of twelve (12) sealed boxes);

Investigation Report of the Intelligence Service, Armed Forces of the Philippines (ISAFP) on the 2007
“ERAP 5” incident in Kamuning, Quezon City; Profile/Summary of Information (SOI) with pictures of the
Intel Operatives involved in the “ERAP 5” incident; and certification issued by the Command Adjutant of
ISAFP concerning T/Sgt. Jason Roxas (Philippine Army), Cpl. Maria Joana Francisco (Philippine Air Force),
M/Sgt. Aron Arroyo (Philippine Air Force), an alias T.L., all reportedly assigned with the Military
Intelligence Group 15 of the Intelligence Service, AFP (MIG 15, ISAFP). These documents were submitted
by ISAFP in a sealed envelope;

Profile/Summary of Information (SOI) with a picture of 2LT Fernando PA. This document was submitted
by Deputy Chief of Staff for Personnel, G1, PA in a sealed envelope;

A certification issued by 56IB and 69IB, 7ID, PA concerning captured/surrendered rebels;

A certification stating the present location and whereabouts of military personnel listed in the submitted
After Apprehension Report, dated April 30, 2007, allegedly identified as members of the Task
Organization –72 MICO and 56th IB with the inclusion of four (4) separate certifications from
Commander, 7ID, PA, Office of the Assistant Chief of Staff for Personnel, G1, 7ID, PA, Commanding
Officer, 72 MICO, and 56Ib, 71ID, PA, respectively, stating the non–existence of the following
documents: Psycho–Social Processing Report dated 28 April 2007; After–Apprehension Report dated 30
April 2007; Autobiography of Jonas Burgos; and Picture of Jonas Burgos;

Affidavit of Compliance of General Emmanuel T. Bautista, AFP, the Chief of Staff, assuring that the active
military personnel mentioned in the purported apprehension report can be located at their given
locations and be served with the processes that may be issued by the Honorable Court.19

OUR RULING

A. On the relevancy and disclosure of the documents submitted to this Court per paragraph III(i) of the
fallo of our July 5, 2011 Resolution

The directive for the submission of the above–mentioned documents arose from our determination in
our June 22, 2010 Resolution that the PNP–CIDG failed to identify the cartographic sketches of two (one
male and one female) of the five abductors of Jonas, based on their interview with eyewitnesses to the
abduction. For this reason, the Court directly commissioned the CHR to continue the investigation of
Jonas’ abduction and the gathering of evidence.

Based on its March 15, 2011 Report, the CHR uncovered a lead – a claim made by Eustaquio, Chairman
of the Union Masses for Democracy and Justice, that the male abductor of Jonas appearing in the
cartographic sketch was among the raiders who abducted him and four others, known as the “ERAP
FIVE.”
This prompted the CHR to request copies of the documents embodied in par. III(i) of the fallo of the
Court’s July 5, 2011 Resolution from General Gilberto Jose C. Roa of the Office of the Judge Advocate
General, AFP. Gen. Roa initially denied this request but eventually complied with the Court’s directive of
July 5, 2011 to submit the documents via the September 23, 2011 Manifestation and Motion and the
June 7, 2013 Compliance. In the same July 5, 2011 Resolution, the Court made it plain that these
documents shall be released exclusively to the Court for its examination to determine their relevance to
the present case and the advisability of their public disclosure.

Pursuant to the Court’s October 11, 2011 Resolution, the CHR submitted its March 20, 2012 Progress
Report on its continuing investigation of Jonas’ abduction. Attached to this Progress Report was Virgilio
Eustaquio’s sworn affidavit stating that: (1) he was one of the victims of the abduction incident on May
22, 2006, otherwise known as the “ERAP FIVE” incident; (2) as a result of this incident, they filed a case
with the Ombudsman against Commodore Leonardo Calderon and other members of the Intelligence
Service, AFP (ISAFP) for arbitrary detention, unlawful arrest, maltreatment of prisoners, grave threats,
incriminatory machination and robbery; and (3) the male abductor of Jonas appearing in the
cartographic sketch shown to him by the CHR was among the raiders who abducted him and his four
companions because it resembled the cartographic sketch he described in relation to the ERAP FIVE
incident on May 22, 2006.

After reviewing the submissions of both the respondents20 and the CHR21 pursuant to the Court’s July
5, 2011, August 23, 2011 and October 11, 2011 Resolutions, we resolve to grant the CHR access to these
requested documents to allow them the opportunity to ascertain the true identities of the persons
depicted in the cartographic sketches.

At this point, we emphasize that the sworn affidavit of Eustaquio (that attests to the resemblance of one
of Jonas’ abductors to the abductors of the ERAP FIVE) constitutes the sought–after missing link that
establishes the relevance of the requested documents to the present case. We note that this lead may
help the CHR ascertain the identities of those depicted in the cartographic sketches as two of Jonas’
abductors (one male and one female) who, to this day, remain unidentified.

In view of the sensitive and confidential nature of the requested documents, we direct the Clerk of
Court of the Supreme Court to allow the duly–authorized representatives of the CHR to inspect the
requested documents in camera within five (5) days from receipt of this Resolution. The documents shall
be examined and compared with the cartographic sketches of the two abductors of Jonas, without
copying and without bringing the documents outside the premises of the Office of the Clerk of Court of
the Supreme Court. The inspection of the documents shall be within office hours and for a reasonable
period of time sufficient to allow the CHR to comprehensively investigate the lead provided by
Eustaquio.
To fully fulfill the objective of the Rule on the Writ of Amparo, further investigation using the standard
of extraordinary diligence should be undertaken by the CHR to pursue the lead provided by Eustaquio.
We take judicial notice of the ongoing investigation being conducted by the Department of Justice (DOJ),
through the NBI, on the disappearance of Jonas.22 In this regard, we direct the NBI to coordinate and
provide direct investigative assistance to the CHR as the latter may require, pursuant to the authority
granted under the Court’s June 22, 2010 Resolution.

For this purpose, we require the CHR to submit a supplemental investigation report to the DOJ, copy
furnished the petitioner, the NBI, the incumbent Chiefs of the AFP, the PNP and the PNP–CIDG, and all
the respondents within sixty days (60) days from receipt of this Resolution.

B. On the Urgent Ex Parte Motion Ex Abundanti Cautela

After reviewing the newly discovered evidence submitted by the petitioner and considering all the
developments of the case, including the March 18, 2013 CA decision that confirmed the validity of the
issuance of the Writ of Amparo in the present case, we resolve to deny the petitioner’s Urgent Ex Parte
Motion Ex Abundanti Cautela.

We note and conclude, based on the developments highlighted above, that the beneficial purpose of
the Writ of Amparo has been served in the present case. As we held in Razon, Jr. v. Tagitis,23 the writ
merely embodies the Court’s directives to police agencies to undertake specified courses of action to
address the enforced disappearance of an individual. The Writ of Amparo serves both a preventive and a
curative role. It is curative as it facilitates the subsequent punishment of perpetrators through the
investigation and remedial action that it directs.24 The focus is on procedural curative remedies rather
than on the tracking of a specific criminal or the resolution of administrative liabilities. The unique
nature of Amparo proceedings has led us to define terms or concepts specific to what the proceedings
seek to achieve. In Razon Jr., v. Tagitis,25 we defined what the terms “responsibility” and
“accountability” signify in an Amparo case. We said:

Responsibility refers to the extent the actors have been established by substantial evidence to have
participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases
against the responsible parties in the proper courts. Accountability, on the other hand, refers to the
measure of remedies that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of responsibility defined above;
or who are imputed with knowledge relating to the enforced disappearance and who carry the burden
of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in
the investigation of the enforced disappearance.26ChanRoblesVirtualawlibrary

In the present case, while Jonas remains missing, the series of calculated directives issued by the Court
outlined above and the extraordinary diligence the CHR demonstrated in its investigations resulted in
the criminal prosecution of Lt. Baliaga. We take judicial notice of the fact that the Regional Trial Court,
Quezon City, Branch 216, has already found probable cause for arbitrary detention against Lt. Baliaga
and has ordered his arrest in connection with Jonas’ disappearance.27

We also emphasize that the CA in its March 18, 2013 decision already ruled with finality on the entities
responsible and accountable (as these terms are defined in Razon, Jr. v. Tagitis) for the enforced
disappearance of Jonas. In its March 18, 2013 decision, the CA found, by substantial evidence, that Lt.
Baliaga participated in the abduction on the basis of Cabintoy’s positive identification that he was one of
the abductors of Jonas who told him not to interfere because the latter had been under surveillance for
drugs. In the same Decision, the CA also held the AFP and the PNP accountable for having failed to
discharge the burden of extraordinary diligence in the investigation of the enforced disappearance of
Jonas. Thus, the CA issued the following directives to address the enforced disappearance of Jonas:

(1)

DIRECT the PNP through its investigative arm, the PNP–CIDG, to identify and locate the abductors of
Jonas Burgos who are still at large and to establish the link between the abductors of Jonas Burgos and
those involved in the ERAP 5 incident;

(2)

DIRECT the incumbent Chief of Staff of the Armed Forces of the Philippines and the Director General of
the Philippines National Police, and their successors, to ensure the continuance of their investigation
and coordination on the enforced disappearance of Jonas Burgos until the persons found responsible
are brought before the bar of justice;

(3)

DIRECT the Commission on Human Rights to continue with its own independent investigation on the
enforced disappearance of Jonas Burgos with the same degree of diligence required under the Rule on
the Writ of Amparo;

(4)

DIRECT the Armed Forces of the Philippines and the Philippine National Police to extend full assistance
to the Commission on Human Rights in the conduct of the latter’s investigation; and

(5)
DIRECT the Chief of Staff, Armed Forces of the Philippines, the Director General, Philippine National
Police and the Chairman, Commission on Human Rights to submit a quarterly report to the Court on the
results of their respective investigation.28

We note that the respondents did not appeal the March 18, 2013 CA decision and the May 23, 2013 CA
resolution denying their motion for partial reconsideration.

Based on the above considerations, in particular, the final ruling of the CA that confirmed the validity of
the issuance of the Writ of Amparo and its determination of the entities responsible for the enforced
disappearance of Jonas, we resolve to deny the petitioner’s prayer to issue the writ of Amparo anew and
to refer the case to the CA based on the newly discovered evidence. We so conclude as the petitioner’s
request for the reissuance of the writ and for the rehearing of the case by the CA would be redundant
and superfluous in light of: (1) the ongoing investigation being conducted by the DOJ through the NBI;
(2) the CHR investigation directed by the Court in this Resolution; and (3) the continuing investigation
directed by the CA in its March 18, 2013 decision.

We emphasize that while the Rule on the Writ of Amparo accords the Court a wide latitude in crafting
remedies to address an enforced disappearance, it cannot (without violating the nature of the writ of
Amparo as a summary remedy that provides rapid judicial relief) grant remedies that would complicate
and prolong rather than expedite the investigations already ongoing. Note that the CA has already
determined with finality that Jonas was a victim of enforced disappearance.

We clarify that by denying the petitioner’s motion, we do not thereby rule on the admissibility or the
merits of the newly discovered evidence submitted by the petitioner. We likewise do not foreclose any
investigation by the proper investigative and prosecutory agencies of the other entities whose identities
and participation in the enforced disappearance of Jonas may be disclosed in future investigations and
proceedings. Considering that the present case has already reached the prosecution stage, the
petitioner’s motion should have been filed with the proper investigative and prosecutory agencies of the
government.

To expedite proceedings, we refer the petitioner’s motion, this Resolution and its covered cases to the
DOJ for investigation, for the purpose of filing the appropriate criminal charges in the proper courts
against the proper parties, if warranted, based on the gathered evidence. For this purpose, we direct the
petitioner to furnish the DOJ and the NBI copies of her Urgent Ex Parte Motion Ex Abundanti Cautela,
together with the sealed attachments to the Motion, within five (5) days from receipt of this Resolution.

As mentioned, we take judicial notice of the ongoing investigation by the DOJ, through the NBI, of the
disappearance of Jonas. This DOJ investigation is without prejudice to the Office of the Ombudsman’s
exercise of its primary jurisdiction over the investigation of the criminal aspect of this case should the
case be determined to be cognizable by the Sandiganbayan.29

As we direct below, further investigation for purposes of the present proceedings shall continue to be
undertaken by the CHR, in close coordination with the NBI, for the completion of the investigation under
the terms of our June 22, 2010 Resolution and the additional directives under the present Resolution.

As a final note, we emphasize that our ROLE in a writ of Amparo proceeding is merely to determine
whether an enforced disappearance has taken place; to determine who is responsible or accountable;
and to define and impose the appropriate remedies to address the disappearance.

As shown above, the beneficial purpose of the Writ of Amparo has been served in the present case with
the CA’s final determination of the persons responsible and accountable for the enforced disappearance
of Jonas and the commencement of criminal action against Lt. Baliaga. At this stage, criminal,
investigation and prosecution proceedings are already beyond the reach of the Writ of Amparo
proceeding now before us.

Based on the above developments, we now hold that the full extent of the remedies envisioned by the
Rule on the Writ of Amparo has been served and exhausted.Considering the foregoing, the
CourtRESOLVES to:

(1)

DENY petitioner Edita Burgos’ Urgent Ex Parte Motion Ex Abundanti Cautela;

(2)

REFER the petitioner’s Urgent Ex Parte Motion Ex Abundanti Cautela, this Resolution and its covered
cases to the Department of Justice for investigation for the purpose of filing the appropriate criminal
charges in the proper courts against the proper parties if such action is warranted by the gathered
evidence. The referral to the Department of Justice is without prejudice to the Office of the
Ombudsman’s exercise of its primary jurisdiction over the investigation should the case be determined
to be cognizable by the Sandiganbayan;

(3)
DIRECT the petitioner to furnish the Department of Justice and the National Bureau of Investigation
copies of her Urgent Ex Parte Motion Ex Abundanti Cautela, together with the sealed attachments to the
Motion, within five (5) days from receipt of this Resolution;

(4)

DIRECT the Clerk of Court of the Supreme Court to allow the duly–authorized representatives of the
Commission on Human Rights to inspect the requested documents in camera within five (5) days from
receipt of this Resolution. For this purpose, the documents shall be examined and compared with the
cartographic sketches of the two abductors of Jonas Burgos without copying and bringing the
documents outside the premises of the Office of the Clerk of Court of the Supreme Court. The inspection
of the documents shall be conducted within office hours and for a reasonable period of time that would
allow the Commission on Human Rights to comprehensively investigate the lead provided by Virgilio
Eustaquio;

(5)

DIRECT the National Bureau of Investigation to coordinate and provide direct investigative assistance to
the Commission on Human Rights as the latter may require, pursuant to the authority granted under the
Court’s June 22, 2010 Resolution.

(6)

REQUIRE the Commission on Human Rights to submit a supplemental investigation report to the
Department of Justice, copy furnished the petitioner, the National Bureau of Investigation, the
incumbent Chiefs of the Armed Forces of the Philippines, the Philippine National Police and the
Philippine National Police–Criminal Investigation and Detection Group, and all the respondents, within
sixty (60) days from receipt of this Resolution.

(7)

DECLARE this Writ of Amparo proceeding closed and terminated, without prejudice to the concerned
parties’ compliance with the above directives and subject to the Court’s continuing jurisdiction to
enforce compliance with this Resolution.

SO ORDERED.