1. In the late afternoon of January 23, 2008, a query was received by the Office regarding the procedure in filing a petition for a Writ of Amparo. We gave the information that the established procedure is to assign cases to the different branches by raffling or in urgent cases, by a special raffle upon proper motions. But since the office has not received any case of that nature yet, and as the schedule of raffling will still be in the afternoon of the next day, it will be referred to the Executive Judge for instruction and or appropriate action;
2. That since the Executive Judge was on leave, I went to consult the 1st Vice Executive Judge Evelyn Gamotin Nery. Since Judge Nery was busy at that time, I went to see 2nd Vice Executive Judge Ma. Anita Esguerra-Lucagbo;
3. That I clarified from Judge Lucagbo the procedure to be adopted under the Rule on the Writ of Amparo (A.M. No. 07-9-12-SC);
4. That the issue if any judge can immediately act on the petition was not clearly stated in the Rule but if the case will be referred to her as the 2nd Vice Executive Judge, she will be willing to look at the petition;
5. That when I went back at the Office at a little past 5:00 P.M. already, direct from the chamber of Judge Lucagbo, I found out that a Petition for Writ of Amparo was filed at around 4:45 P.M. as stamped in the petition;
6. That since I was out of the office, the Docket Clerk in charge, Mr. Rudy Exclamador, referred the case to the Administrative Officer Mary Lyn Charisse Lagamon;
7. That thinking I was no longer around as the personnel to whom I left the information that I was going to the sala of 1st Vice Executive Judge Nery was not able to inform the Admin. Officer of my whereabouts, Mr. Exclamador was instructed by her to refer the case to you [referring to the respondent judge];
8. That upon learning of the fact, I immediately called Mr. Exclamador and Ms. Lagamon to explain why they referred the case to your sala without any instruction from me;
9. That they said that they are of the honest belief that I was no longer around; that the lawyer was insisting to refer the case immediately to a judge since it is already 5:00 P.M. and considering the novelty, urgency and importance of the case, and fearing that no judge will be left to act on the petition if they still discuss what to do, Mr. Exclamador, with the concurrence of Admin. Officer Lagamon, referred the case to you since your sala was the nearest to our office, it being adjacent to your court;
10. That there is nobody from this Office who brought the handwritten petition to Judge Lucagbo nor was there any instruction from her to any of the personnel to have the petition conform to a form acceptable to the court, such fact was confirmed by Judge Lucagbo;
11. That the office only acted what it deemed best under the circumstances and was not motivated by any ill motive or malice.2
(a) [W]hen he received the petition from the Office of the Clerk of Court, he had no option but to exercise his judicial duty without any bias or partiality, nor did he consider that the petitioner's counsel is a fraternal brother (Mason); (b) [A]lthough the petition is for the issuance of both writ of amparo and writ of habeas corpus, he deemed it more in consonance with the [Rule on the Writ of Amparo]; (c) [I]t was not improper even if the x x x petition was not raffled, and was immediately assigned to his sala by the Office of the Clerk of Court, since Par. 2, Sec. 3 of A.M. No. 07-9-12-SC states that any judge of a Regional Trial Court (RTC) can issue a writ and the said Sec. 3 further states that it can be filed on any day and at any time; (d) [T]he person who filed the petition is the sister of Mr. Tanmalack who was detained at the Agora Police Station, Cagayan de Oro City; that the issuance of the writ was a matter of great urgency because the alleged illegal deprivation of liberty was made in the late afternoon of January 23, 2008, which was a Friday, and that if the Court would not act on the petition, the detainee would certainly spend the night in jail; (e) [T]he petition, although in handwritten form, is not improper because Section 5 of the SC Circular (on the Writ of Amparo) only requires that the same be signed and verified; that he found the petition sufficient in form and in substance; (f) [A]lthough the Amparo rules mandate that a judge shall immediately order the issuance of the writ if on its face it ought to issue, he propounded clarificatory questions on the petitioner's representative and their counsel, thus, the following information were elicited: 1) That the property of petitioner's family, which is under their possession and Tanmalack registered under TCT No. T-1627491, was intruded by some persons who wanted to fence the area and put up improvements by constructing "shanties" thereon; 2) That when petitioner Mr. Tanmalack prevented the intrusion it resulted to heated arguments and altercations which prompted him to go to the police station to report the incident and be blottered; 3) That when Mr. Tanmalack arrived at the police station in the late afternoon of January 23, 2008 in order to air his complaint, the intruders came and introduced themselves as the owners of the property; 4) That when Police Officer Rojo (Rojo) heard the version of these intruders and despite the protestations of petitioner and his relatives, the police did not anymore allow Mr. Tanmalack to leave the police station; and, 5) That petitioner's counsel called up Rojo to secure the immediate release of his client from police custody but to no avail; (g) [A]fter he assiduously evaluated the aforestated facts, as well as the allegations in the petition, respondent Judge, in the exercise of his judicial function, found that the same warranted the issuance of the writ; the arrest of Mr. Tanmalack was unlawful because Rojo was not present in the area where the alleged incident happened, so that the statements of the complainants (Salcedo, Lumbay and Roa) would be hearsay; (h) [I]n the Writ of Amparo the respondents were directed to file a verified return pursuant to the rules; during the summary hearing of the petition on 25 January 2008, it was only Rojo who appeared, the alleged complainants (Salcedo, Lumbay and Roa) who caused the detention of the petitioner were absent; P/Insp. Rojo, when asked by the Court, gave the following answers: 1) That he would no longer file his Answer (which should be a verified return) on the complaint considering that the petitioner was already released; 2) That he confirmed that it was the petitioner who came first to the police station to complain, followed by the person who wanted to fence the property; the conflict between the petitioner and the other persons is on a property dispute, of which it was petitioner who is in possession; and 3) That he denied that he had arrested the petitioner and neither did he detain him but only he could not release the petitioner because of the complaint and for further evaluation. (i) [H]e noted that the police blotter did not state that petitioner brought heavily armed men with him when he allegedly harassed the complainant.
[(j) That in the summary hearing on January 25, 2008, the petitioner as well as the respondent Rojo have arrived into an agreement that the writ be considered permanent.]
EVALUATION: The complaint is bereft of merit.
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, as in the instant case, or of a private individual or entity. Whereas in other jurisdictions the writ covers only actual violations, the Philippine version is more protective of the right to life, liberty and security because it covers both actual and threatened violations of such rights.
Nowhere in the records of the instant complaint that the issuance of the writ of amparo was attended by irregularities. The detainee's sister who filed the petition is allowed under Section 2(b) of the Rule on the Writ of Amparo (SC A.M. No. 07-9-12-SC). Also, the petition was properly filed with the Regional Trial Court "where the act or omission was committed or where any of its elements occurred."
Respondent Judge, in whose sala the said petition was assigned is deemed to have complied with his oath and judicial duty when he ordered the issuance of the writ of amparo upon determination that the right to liberty of Mr. Tanmalack was being violated or threatened to be violated. These is no showing that respondent Judge, in granting the petition for a writ of amparo was motivated by bad faith, ignominy or ill will, thus, herein complainant's allegation that respondent Judge's act was tainted with grave abuse of discretion and authority, bias and partiality, and grave disregard of the rules, deserves scant consideration.
This Office agrees with respondent Judge's observation that "Rojo's declaration not anymore to contest the petition and that he (Rojo) did not arrest nor detain petitioner, but admitted that he could not release the latter for further evaluation because of the complaint is an admission that he deprived [or threatened to deprive] Jose [Dy Tanmalack] of his liberty."
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."
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.
As everyone knows, the law provides ample judicial remedies against errors or irregularities being committed by a Trial Court in the exercise of its jurisdiction. The ordinary remedies against errors or irregularities which may be regarded as normal in nature (i.e., error in appreciation or admission of evidence, or in construction or application of procedural or substantive law or legal principle) include a motion for reconsideration (or after rendition of a judgment or final order, a motion for new trial), and appeal. The extraordinary remedies against error or irregularities which may be deemed extraordinary in character (i.e., whimsical, capricious, despotic exercise of power or neglect of duty, etc.) are, inter alia the special civil actions of certiorari, prohibition or mandamus, or a motion for inhibition, a petition for change of venue, as the case may be.
Now, the established doctrine and policy is that disciplinary proceedings and criminal actions against Judges are not complementary or suppletory of, nor a substitute for, these judicial remedies, whether ordinary or extraordinary. Resort to and exhaustion of these judicial remedies, as well as the entry of judgment in the corresponding action or proceeding, are pre-requisites for the taking of other measures against the persons of the judges concerned, whether of civil, administrative, or criminal nature. It is only after the available judicial remedies have been exhausted and the appellate tribunals have spoken with finality, that the door to an inquiry into his criminal, civil, or administrative liability may be said to have opened, or closed.
Flores resorted to administrative prosecution (or institution of criminal actions) as a substitute for or supplement to the specific modes of appeal or review provided by law from court judgments or orders, on the theory that the Judges' orders had caused him "undue injury." This is impermissible, as this Court has already more than once ruled. Law and logic decree that "administrative or criminal remedies are neither alternative nor cumulative to judicial review where such review is available, and must wait on the result thereof." Indeed, since judges must be free to judge, without pressure or influence from external forces or factors, they should not be subject to intimidation, the fear of civil, criminal or administrative sanctions for acts they may do and dispositions they may make in the performance of their duties and functions; and it is sound rule, which must be recognized independently of statute, that judges are not generally liable for acts done within the scope of their jurisdiction and in good faith; and that exceptionally, prosecution of the judge can be had only if "there be a final declaration by a competent court in some appropriate proceeding of the manifestly unjust character of the challenged judgment or order, and ** also evidence of malice or bad faith, ignorance or inexcusable negligence, on the part of the judge in rendering said judgment or order" or under the stringent circumstances set out in Article 32 of the Civil Code.10
* Designated additional Member of the Third Division effective May 17, 2010, per Special Order No. 843 dated May 17, 2010.
1 The petition states in full:
June 23, 2008
Hon. Judge Gil Bollozos or the Hon. Executive Judge
Jose Escobido or the Vice Exec. Judge in his absence
Petition for Writ of Habeas Corpus
Petition for Writ of Amparo
Jose Tan Malack Jr., is presently detained at the Agora police precinct No. 3, under the command of Insp. Wylen Rojo.
Jose was "held in custody" because he exercised self-help in preventing squatters from putting up improvements inside their titled property in the name of his sister. Property is titled under TCT No. T-162749.
1) The petitioner is Filipino and a resident of c/o Jocelyn TM Tan at Capitol Subd., Osmeña Ave., Cag. De Oro City.
2) The police officers under officer Rojo are the respondents, as well as the alleged squatters.
The petitioner is under threat of deprivation of liberty with the police stating that he is not arrested but merely "in custody."
Wherefore, the prayer is to ask the Court to issue a writ of Amparo or habeas corpus to direct his immediate release.
JAN. 23, 2008. Cagayan de Oro City.
Jocelyn Tan Malack Tan
I Jocelyn TM Tan, hereby certify that the above statements are true and correct of my own personal knowledge and based on true records.
I have also not commenced any similar action in any body and I endeavor to inform the Court immediately w/in 5 days if I know of such an action exists. That I have not forum-shopped.
JAN. 23, 2008. Cagayan de Oro City.
Doc. No. 14 ATTY. FRANCIS U. KU
Page No. 3 Notary Public
Book No. 54 Until December 31, 2009
Series of 2008 IBP Lifetime No. 00548
PTR No. 1653333; 3 Jan, 2008
Roll No. 36666
Cagayan de Oro City
2 Comment of Judge Gil G. Bollozos, March 30, 2009, pp. 1-2.
3 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. [Emphasis supplied]
4 Tapuz v. Del Rosario, G.R. No. 182484, June 17, 2008, 554 SCRA 768.
5 Id., at 784-785.
6 Supra note 1.
7 Planas v. Reyes, A.M. No. RTJ-05-1905,February 23, 2005, 452 SCRA 146, 155.
8 A.M. No. MTJ-00-1311, October 3, 2003, 412 SCRA 573, 578.
9 A.M. No. SC-96-1, July 10, 1997, 275 SCRA 302.
10 Id. at 316-317.
11 Supra note 7, p. 159.
12 Benito v. Balindong, A.M. No. RTJ-08-2103 (Formerly OCA I.P.I. No. 07-2664-RTJ), February 23, 2009, 580 SCRA 41.
13 Visbal v. Vanilla, A.M. No. MTJ-06-1651 (Formerly OCA I.P.I. No. 04-1576-MTJ), April 7, 2009, 584 SCRA 11.
15 Licudine v. Saquilayan, A.M. No. P-02-1618, February 14, 2003, 396 SCRA 650, 656; Montes v. Bugtas, A.M. No. RTJ-01-1627, April 17, 2001, 356 SCRA 539, 545; Barbers v. Laguio, Jr., A.M. No. RTJ-00-1568, February 15, 2001, 351 SCRA 606, 634.
16 Supra note 7, p. 161.