Lozada v.

Macapagal-Arroyo
G.R. No. 184379-80 April 24, 2012 Sereno, J. Tan de Guzman
petitioners RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO LOZADA
respondents PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO ERMITA, AVELINO RAZON,
ANGEL ATUTUBO and SPO4 ROGER VALEROSO
summary Lozada was issued a subpoena by Senate with regards to the NBN-ZTE scandal. He did
not appear during the hearing and instead flew to London on ‘official business’. Upon his
return, he was escorted by several men and was told by Sec. Atienza that Atienza was
talking to ES and Ma’m, whom Lozada assumed to be ES Recto and the President. Lozada
was brought to LSGH where he was purportedly harassed and threatened by the police.
His brother filed for a writ of amparo. The court held that the Writ of Amparo was
properly denied by the CA because the petitioners failed to meet the threshold of
substantial evidence and that they failed to prove the existence of a continuing threat.

facts of the case

The instant Petition stems from the alleged corruption scandal precipitated by a transaction between the
Philippine government, represented by the National Broadband Network (NBN), and ZTE Corporation, a
Chinese manufacturer of telecommunications equipment. Former NEDA Secretary Neri sought the services of
Lozada as an unofficial consultant in the ZTE-NBN deal. The latter avers that during the course of his
engagement, he discovered several anomalies in the said transaction involving certain public officials. These
events impelled the Senate of the Philippines Blue Ribbon Committee to conduct an investigation thereon, for
which it issued a subpoena directing Lozada to appear and testify on 30 January 2008.
Lozada did not appear at the Blue Ribbon Committee. DENR Sec. Atienza announced that Lozada was in
an official trip to London. Because of this, Senate issued an order (1) citing Lozada in contempt; (2) ordering
his arrest and detention; (3) directing the sergeant-at-arms to implement such order and make a return.
Lozada asked Sec. Atienza if he can go back to the Philippines. Upon approval, he informed his family that
he would be arriving in Manila, Feb 5 at 4 pm.
In his petition, Lozada claims that upon disembarking, several men held his arms and took his bag. He
allegedly insisted on joining his family but realized that it would be wiser to go with the men when he heard
them say in their handheld radio ‘[H]wag kayong dumaan diyan sir nandyan ang mga taga senado.’
Lozada asked to go to the comfort room and while there, called his brother, Arturo and informed him of
his situation. He observed that there were several cars tailing their car. Sec. Atienza called him and assured
him that he was with government people and that Sec. Atienza would confer with ES and Ma’m. Lozada
surmised them to be ES Ermita and the President. He was also told to pacify his wife, Violeta, who was
making public statements asking for her husband’s return. Along the way, the men asked Lozada to draft an
antedated letter requesting police protection. Lozada asked to be brought to his home in Pasig, but was
refused due to security risks. They stopped at Outback restaurant to meet with Atty. Antonio Bautista and
Col. Mascarinas, Lozada claimed that he was made to fill in the blanks of an affidavit. He was then brought to
LSGH per his request. He observed that policemen, purportedly restraining his liberty and threatening the
security of his, his family and the LS brothers, guarded the perimeter of LSGH.
On Feb 6, Col. Mascarinas supposedly brought Lozada to the office of Atty. Bautista to finalize and sign an
affidavit. On the same day his wife petitioned for Habeas Corpus and his brother petitioned for a Writ of
Amparo with the Supreme Court, and prayed for the issuance of (a) the writ of amparo; (b) a Temporary
Protection Order (TPO); and (c) Inspection and Production Orders as regards documents related to the
authority ordering custody over Lozada, as well as any other document that would show responsibility for his
alleged abduction.

1
 Lozada alleged that he was made to sign a letter requesting police protection. On 7 February 2008, Lozada
decided to hold a press conference and contact the Senate Sergeant-at-Arms, who served the warrant of arrest
on him. He claimed that after his press conference and testimony in the Senate, he and his family were since
then harassed, stalked and threatened.
Respondents: Lozada had knowledge and control of what happened from the time of his arrival, he
voluntarily entrusted himself to their company and was never deprived of his liberty and that since Feb 8,
Lozada has been in the custody of the Senate.
CA’s decisions:
1. Habeas Corpus case moot.
2. Denied issuance of Subpoena Ad Testificandum and Presentation of Hostile Witnesses and Adverse
Parties – irrelevant to Amparo Case, to require them to testify would be a fishing expedition.
3. Dropped Pres. Arroyo as a respondent because she enjoys immunity from suit as president.
4. Dismissed Writ of Amparo. – Petitioners unable to prove through substantial evidence that respondents
violated Lozada’s right to life, liberty and security.

issue
Whether circumstances are adequately alleged and proven by petitioner Lozada to entitle him to the protection
of the writ of amparo? NO.

ratio

Definition: Writ of Amparo (court’s lecture)

The writ of amparo is an independent and summary remedy that provides rapid judicial relief to
protect the people’s right to life, liberty and security. Having been originally intended as a response to the
alarming cases of extrajudicial killings and enforced disappearances in the country, it serves both preventive
and curative roles to address the said human rights violations. It is preventive in that it breaks the expectation
of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent
punishment of perpetrators by inevitably leading to subsequent investigation and action.
As it stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced
disappearances, or to threats thereof. Considering that this remedy is aimed at addressing these serious
violations of or threats to the right to life, liberty and security, it cannot be issued on amorphous and uncertain
grounds, or in cases where the alleged threat has ceased and is no longer imminent or continuing. Instead, it
must be granted judiciously so as not to dilute the extraordinary and remedial character of the writ, thus: The
privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and
security of persons, free from fears and threats that vitiate the quality of this life. It is an extraordinary writ
conceptualized and adopted in light of and in response to the prevalence of extra-legal killings and enforced
disappearances. Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought
by the Amparo Rule be diluted and undermined by the indiscriminate filing of amparo petitions for purposes
less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations.

Writ of Amparo Denied

In cases where the violation of the right to life, liberty or security has already ceased, it is necessary for the
petitioner in an amparo action to prove the existence of a continuing threat.
In the present case, the totality of the evidence adduced by petitioners failed to meet the threshold of
substantial evidence. Sifting through all the evidence and allegations presented, the crux of the case boils
down to assessing the veracity and credibility of the parties’ diverging claims as to what actually transpired on
5-6 February 2008. In this regard, this Court is in agreement with the factual findings of the CA to the extent
that Lozada was not illegally deprived of his liberty from the point when he disembarked from the aircraft up
to the time he was led to the departure area of the airport, as he voluntarily submitted himself to the custody
of respondents.
 He was able to go to the men’s bathroom and call his brother

2
  He was avoiding the people from the Office of the Senate Sergeant-at-Arms, detour appears to explain
why they did not get out at the arrival area, where [Lozada] could have passed through immigration so
that his passport could be properly stamped
 No evidence on record that Lozada struggled or made an outcry for help
 He testified that nobody held, shouted, or was hostile to him
 He knew and agreed with the plan that he would be fetched at the airport because at that time, it was
his decision not to testify before the Senate
 it must be emphasized that if Lozada had in fact been illegally restrained, so much so that his right to
liberty and security had been violated, the acts that manifested this restraint had already ceased and
has consequently rendered the grant of the privilege of the writ ofamparo moot.
 The supposed announcement of General Razon over the radio that [Lozada] was in the custody of the
PNP can neither be construed as a threat to [Lozada’s] life, liberty and security. Certainly, no person in
his right mind would make that kind of media announcement if his intent was indeed to threaten
somebody’s life, liberty and security
 Presence of armed men riding in motorcycle passing outside the LSGH premises where he and his
family are staying and by alleged threats of armed men around him at places where he went to. Again,
these alleged threats were not proven by any evidence at all, as having originated from any of the
respondents
 Installation of the surveillance camera at the De La Salle and at St. Scholastica as indirect threat to his
right to life, liberty and security. He claims that these are spy cameras. However, save for [Lozada’s]
self-serving claim, he simply failed to prove that they were installed or ordered installed by the
respondents for the purpose of threatening his right to life, liberty and security
 No evidence on record that the bomb threats were made by the respondents or done upon their
instigation.
 He did not ascertain from the Bureau of Immigration whether his name was actually in the official
watch list of the Bureau
 [Lozada] himself testified that he does not know whether the respondents or any of the respondents
ordered the filing of these ‘frivolous’ cases against him. In any event, said purported cases are to be
determined based on their own merits and are clearly beyond the realm of the instant amparo petition
filed against the respondents
 The failure to establish that the public official observed extraordinary diligence in the performance of
duty does not result in the automatic grant of the privilege of the amparo writ. It does not relieve the
petitioner from establishing his or her claim by substantial evidence (Yano v. Sanchez)

Sec. 22 of the Amparo Rule proscribes the filing of an amparo petition should a criminal action have, in the
meanwhile, been commenced.
Sec. 23, on the other hand, provides that when the criminal suit is filed subsequent to a petition for amparo,
the petition shall be consolidated with the criminal action where the Amparo Rule shall nonetheless
govern the disposition of the relief under the Rule.

In Rubrico v. Arroyo the Court interprets the above sections as follows: (1) the consolidation of the probe and
fact-finding aspects of the instant petition with the investigation of the criminal complaint before the OMB;
and (2) the incorporation in the same criminal complaint of the allegations in this petition bearing on the
threats to the right to security. Withal, the OMB should be furnished copies of the investigation reports to aid
that body in its own investigation and eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be
given easy access to all pertinent documents and evidence, if any, adduced before the CA. Necessarily,
Lourdes, as complainant in OMB-P-C-O7-0602-E, should be allowed, if so minded, to amend her basic criminal
complaint if the consolidation of cases is to be fully effective.

APPLIED: if the Complaint filed before the DOJ had already progressed into a criminal case, then the latter
action can more adequately dispose of the allegations made by petitioners. After all, one of the ultimate
3
objectives of the writ of amparo as a curative remedy is to facilitate the subsequent punishment of
perpetrators. On the other hand, if there is no actual criminal case lodged before the courts, then the denial of
the Petition is without prejudice to the filing of the appropriate administrative, civil or criminal case, if
applicable, against those individuals whom Lozada deems to have unduly restrained his liberty.

No basis for interim reliefs since writ of amparo denied

In Yano v. Sanchez, this court declined to grant the prayer for the issuance of a TPO, as well as Inspection and
Production Orders, upon a finding that the implicated public officials were not accountable for the
disappearance subject of that case. Analogously, it would be incongruous to grant herein petitioners’ prayer
for a TPO and Inspection and Production Orders and at the same time rule that there no longer exists any
imminent or continuing threat to Lozada’s right to life, liberty and security. Thus, there is no basis on which a
prayer for the issuance of these interim reliefs can be anchored.

Denial of the issuance of a subpoena ad testificandum proper - for a subpoena to issue, it must first appear that
the person or documents sought to be presented are prima facie relevant to the issue subject of the controversy
CA correctly denied petitioners’ Motion for the Issuance of Subpoena Ad Testificandum on the ground that the
testimonies of the witnesses sought to be presented during trial were prima facie irrelevant to the issues of the
case. The court has repeatedly reminded the parties, in the course of the proceedings, that the instant Amparo
Petition does not involve the investigation of the ZTE-NBN contract.

President Arroyo was not proven to be involved in the alleged violation of life, liberty and security of Lozada
President Arroyo’s term as president has ended, therefore she no longer enjoys immunity, but an examination
of Petitioner’s evidence reveals their failure to sufficiently establish any unlawful act or omission on her part
that violated, or threatened with violation, the right to life, liberty and security of Lozada. Except for the bare
claims that: (a) Sec. Atienza mentioned a certain “Ma’[a]m,” whom Lozada speculated to have referred to her,
and (b) Sec. Defensor told Lozada that “the President was ‘hurting’ from all the media frenzy,” there is nothing
in the records that would sufficiently establish the link of former President Arroyo to the events that
transpired on 5-6 February 2010, as well as to the subsequent threats that Lozada and his family purportedly
received.
Second issue: Denial of the issuance of a subpoena ad testificandum
This Court, in Roco v. Contreras,[72] ruled that for a subpoena to issue, it must first appear
that the person or documents sought to be presented are prima facie relevant to the issue subject
of the controversy, to wit:
A subpoena is a process directed to a person requiring him to attend and to testify at the hearing or trial of
an action or at any investigation conducted under the laws of the Philippines, or for the taking of his deposition.
In this jurisdiction, there are two (2) kinds of subpoena, to wit: subpoena ad testificandum and
subpoena duces tecum. The first is used to compel a person to testify, while the second is used to compel the
production of books, records, things or documents therein specified. As characterized in H.C. Liebenow vs. The
Philippine Vegetable Oil Company:

The subpoena duces tecum is, in all respects, like the ordinary subpoena ad testificandum with the
exception that it concludes with an injunction that the witness shall bring with him and produce at the examination
the books, documents, or things described in the subpoena.

Well-settled is the rule that before a subpoena duces tecum may issue, the court must first be satisfied that
the following requisites are present: (1) the books, documents or other things requested must appear prima
facie relevant to the issue subject of the controversy (test of relevancy); and (2) such books must be reasonably
described by the parties to be readily identified (test of definiteness).[73] (Emphasis supplied.)

4
 In the present case, the CA correctly denied petitioners’ Motion for the Issuance of
Subpoena Ad Testificandum on the ground that the testimonies of the witnesses sought to be
presented during trial were prima facie irrelevant to the issues of the case. The court a quo aptly
ruled in this manner:
The alleged acts and statements attributed by the petitioner to Neri and Abalos are not relevant to the
instant Amparo Petition where the issue involved is whether or not Lozada’s right to life, liberty and security was
threatened or continues to be threatened with violation by the unlawful act/s of the respondents. Evidence, to be
relevant, must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. Further,
Neri, Abalos and a certain driver “Jaime” are not respondents in this AmparoPetition and the vague allegations
averred in the Motion with respect to them do not pass the test of relevancy. To Our mind, petitioner appears to
be embarking on a “fishing expedition”. Petitioner should present the aggrieved party [Lozada], who has been
regularly attending the hearings, to prove the allegations in the Amparo Petition, instead of dragging the names
of other people into the picture. We have repeatedly reminded the parties, in the course of the proceedings,
that the instant Amparo Petition does not involve the investigation of the ZTE-[NBN] contract. Petitioner
should focus on the fact in issue and not embroil this Court into said ZTE-NBN contract, which is now being
investigated by the Senate Blue Ribbon Committee and the Office of the Ombudsman.[74](Emphasis supplied.)
All the references of petitioners to either Sec. Neri or Abalos were solely with respect to
the ZTE-NBN deal, and not to the events that transpired on 5-6 February 2008, or to the ensuing
threats that petitioners purportedly received. Although the present action is rooted from the
involvement of Lozada in the said government transaction, the testimonies of Sec. Neri or Abalos
are nevertheless not prima facie relevant to the main issue of whether there was an unlawful act
or omission on the part of respondents that violated the right to life, liberty and security of Lozada.
Thus, the CA did not commit any reversible error in denying the Motion for the Issuance of
Subpoena Ad Testificandum.