Republic of the
SUPREME COURT
EN BANC
|
Petitioners,
- versus - GLORIA
MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, MAJ.
DARWIN SY a.k.a. DARWIN REYES, JIMMY SANTANA, RUBEN ALFARO, CAPT. ANGELO
CUARESMA, a certain JONATHAN, P/SUPT. EDGAR B. ROQUERO, ARSENIO C. GOMEZ, and
OFFICE OF THE OMBUDSMAN, Respondents. |
|
G.R. No. 183871 Present: PUNO, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA,* BERSAMIN, ABAD, VILLARAMA, JR., PEREZ, and MENDOZA, JJ. Promulgated: February
18, 2010 |
D E C I S I O N
VELASCO, JR., J.:
In this petition for review under Rule 45 of the Rules
of Court in relation to Section 19[1]
of the Rule on the Writ of Amparo[2]
(Amparo Rule), Lourdes D. Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico
Carbonel assail and seek to set aside the Decision[3] of
the Court of Appeals (CA) dated July 31, 2008 in CA-G.R. SP No. 00003, a
petition commenced under the Amparo Rule.
The petition for the writ of amparo dated October 25, 2007 was originally
filed before this Court. After issuing the desired writ and directing the
respondents to file a verified written return, the Court referred the petition
to the CA for summary hearing and appropriate action. The petition and its
attachments contained, in substance, the following allegations:
1. On April 3, 2007, armed men belonging to the 301st Air Intelligence and Security Squadron (AISS, for short) based in Fernando Air Base in Lipa City abducted Lourdes D. Rubrico (Lourdes), then attending a Lenten pabasa in Bagong Bayan, Dasmariñas, Cavite, and brought to, and detained at, the air base without charges. Following a week of relentless interrogation - conducted alternately by hooded individuals - and what amounts to verbal abuse and mental harassment, Lourdes, chair of the Ugnayan ng Maralita para sa Gawa Adhikan, was released at Dasmariñas, Cavite, her hometown, but only after being made to sign a statement that she would be a military asset.
After Lourdes’ release, the harassment, coming in the form of being tailed on at least two occasions at different places, i.e., Dasmariñas, Cavite and Baclaran in Pasay City, by motorcycle-riding men in bonnets, continued;
2. During the time Lourdes was
missing, P/Sr. Insp. Arsenio Gomez (P/Insp. Gomez), then sub-station commander
of Bagong Bayan, Dasmariñas, Cavite, kept sending text messages to Lourdes’
daughter, Mary Joy R. Carbonel (Mary Joy),
bringing her to beaches and asking her questions about Karapatan,
an alliance of human rights organizations. He, however, failed to make an
investigation even after
3. A week after
4. Lourdes has filed with the Office of the Ombudsman a criminal complaint for kidnapping and arbitrary detention and administrative complaint for gross abuse of authority and grave misconduct against Capt. Angelo Cuaresma (Cuaresma), Ruben Alfaro (Alfaro), Jimmy Santana (Santana) and a certain Jonathan, c/o Headquarters 301st AISS, Fernando Air Base and Maj. Sy/Reyes with address at No. 09 Amsterdam Ext., Merville Subd., Parañaque City, but nothing has happened; and the threats and harassment incidents have been reported to the Dasmariñas municipal and Cavite provincial police stations, but nothing eventful resulted from their respective investigations.
Two of the four witnesses to
5. Karapatan conducted an investigation on the incidents. The investigation would indicate that men belonging to the Armed Forces of the Philippines (AFP), namely Capt. Cuaresma of the Philippine Air Force (PAF), Alfaro, Santana, Jonathan and Maj. Darwin Sy/Reyes, led the abduction of Lourdes; that unknown to the abductors, Lourdes was able to pilfer a “mission order” which was addressed to CA Ruben Alfaro and signed by Capt. Cuaresma of the PAF.
The petition prayed that a writ of amparo issue, ordering the individual
respondents to desist from performing any threatening act against the security
of the petitioners and for the Office of the Ombudsman (OMB) to immediately
file an information for kidnapping qualified with the aggravating circumstance
of gender of the offended party. It also prayed for damages and for respondents
to produce documents submitted to any of them on the case of
Before the CA, respondents President Gloria Macapagal-Arroyo, Gen.
Hermogenes Esperon, then Armed Forces of the Philippines (AFP) Chief of Staff,
Police Director-General (P/Dir. Gen.) Avelino Razon, then Philippine National
Police (PNP) Chief, Police Superintendent (P/Supt.) Roquero of the Cavite
Police Provincial Office, Police Inspector (P/Insp.) Gomez, now retired, and
the OMB (answering respondents, collectively) filed, through the Office of the
Solicitor General (OSG), a joint return
on the writ specifically denying the material inculpatory averments
against them. The OSG also denied the allegations against the following
impleaded persons, namely: Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes,
for lack of knowledge or information sufficient to form a belief as to the allegations’
truth. And by way of general affirmative defenses, answering respondents
interposed the following defenses: (1) the President may not be sued during her
incumbency; and (2) the petition is incomplete, as it fails to indicate the
matters required by Sec. 5(d) and (e) of the Amparo Rule.[4]
Attached to the return were the affidavits of the following, among other
public officials, containing their respective affirmative defenses and/or
statements of what they had undertaken or committed to undertake regarding the
claimed disappearance of
1. Gen. Esperon – attested that, pursuant to a directive of then
Secretary of National Defense (SND) Gilberto C. Teodoro, Jr., he ordered the
Commanding General of the PAF, with information to all concerned units, to
conduct an investigation to establish the circumstances behind the
disappearance and the reappearance of
Gen. Esperon manifested his resolve to provide the CA with material results of the investigation; to continue with the probe on the alleged abduction of Lourdes and to bring those responsible, including military personnel, to the bar of justice when warranted by the findings and the competent evidence that may be gathered in the investigation process by those mandated to look into the matter;[5]
2. P/Dir. Gen. Razon - stated that an investigation he immediately ordered upon receiving a copy of the petition is on-going vis-à-vis Lourdes’ abduction, and that a background verification with the PNP Personnel Accounting and Information System disclosed that the names Santana, Alfaro, Cuaresma and one Jonathan do not appear in the police personnel records, although the PNP files carry the name of Darwin Reyes Y. Muga.
Per the initial investigation report
of the Dasmariñas municipal police station, P/Dir. Gen. Razon disclosed,
Lourdes was abducted by six armed men in the afternoon of April 3, 2007 and
dragged aboard a Toyota Revo with plate number XRR 428, which plate was issued
for a Mitsubishi van to AK Cottage Industry with address at 9 Amsterdam St.,
Merville Subd., Parañaque City. The person residing in the apartment on that
given address is one Darius/Erwin See @ Darius Reyes allegedly working, per the
latter’s house helper, in
P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico never contacted nor coordinated with the local police or other investigating units of the PNP after her release, although she is in the best position to establish the identity of her abductors and/or provide positive description through composite sketching. Nonetheless, he manifested that the PNP is ready to assist and protect the petitioners and the key witnesses from threats, harassments and intimidation from whatever source and, at the same time, to assist the Court in the implementation of its orders.[6]
3. P/Supt. Roquero – stated conducting, upon receipt of Lourdes’ complaint, an investigation and submitting the corresponding report to the PNP Calabarzon, observing that neither Lourdes nor her relatives provided the police with relevant information;
4. P/Insp. Gomez –
alleged that
5. Overall Deputy Ombudsman Orlando Casimiro - alleged that cases for violation of Articles 267 and 124, or kidnapping and arbitrary detention, respectively, have been filed with, and are under preliminary investigation by the OMB against those believed to be involved in Lourdes’ kidnapping; that upon receipt of the petition for a writ of amparo, proper coordination was made with the Office of the Deputy Ombudsman for the Military and other Law Enforcement Offices (MOLEO) where the subject criminal and administrative complaints were filed.
Commenting on the return, petitioners
pointed out that the return was no more than a general denial of averments in
the petition. They, thus, pleaded to be allowed to present evidence ex parte
against the President, Santana, Alfaro, Capt. Cuaresma, Darwin Sy, and
Jonathan. And with leave of court, they also asked to serve notice of the
petition through publication, owing to their failure to secure the current
address of the latter five and thus submit, as the CA required, proof of service
of the petition on them.
The hearing
started on November 13, 2007.[7] In
that setting, petitioners’ counsel prayed for the issuance of a temporary
protection order (TPO) against the answering respondents on the basis of the
allegations in the petition. At the hearing of November 20, 2007, the CA
granted petitioners’ motion that the petition and writ be served by the court’s
process server on Darwin Sy/Reyes, Santana, Alfaro, Capt. Cuaresma, and
Jonathan.
The legal skirmishes that followed
over the propriety of excluding President Arroyo from the petition,
petitioners’ motions for service by publication, and the issuance of a TPO are
not of decisive pertinence in this recital. The bottom line is that, by
separate resolutions, the CA dropped the President as respondent in the case;
denied the motion for a TPO for the court’s want of authority to issue it in
the tenor sought by petitioners; and effectively denied the motion for notice
by publication owing to petitioners’ failure to submit the affidavit required
under Sec. 17, Rule 14 of the Rules of Court.[8]
After due proceedings, the CA
rendered, on July 31, 2008, its partial judgment, subject of this review,
disposing of the petition but only insofar as the answering respondents were
concerned. The fallo of the CA decision reads as follows:
WHEREFORE, premises considered, partial judgment is hereby rendered DISMISSING the instant petition with respect to respondent Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B. Roquero, P/Sr. Insp. Arsenio C. Gomez (ret.) and the Office of the Ombudsman.
Nevertheless, in order that petitioners’ complaint will not
end up as another unsolved case, the heads of the Armed Forces of the
SO ORDERED.
In this recourse, petitioners
formulate the issue for resolution in the following wise:
WHETHER OR NOT the [CA] committed reversible error in dismissing [their] Petition and dropping President Gloria Macapagal Arroyo as party respondent.
Petitioners first take issue on the
President’s purported lack of immunity from suit during her term of office. The
1987 Constitution, so they claim, has removed such immunity heretofore enjoyed
by the chief executive under the 1935 and 1973 Constitutions.
Petitioners are mistaken. The presidential immunity from suit
remains preserved under our system of government, albeit not expressly reserved
in the present constitution. Addressing a concern of his co-members in the 1986
Constitutional Commission on the absence of an express provision on the matter,
Fr. Joaquin Bernas, S.J. observed that it was already understood in
jurisprudence that the President may not be sued during his or her tenure.[9] The Court subsequently made it abundantly
clear in David v. Macapagal-Arroyo, a case likewise resolved under the
umbrella of the 1987 Constitution, that indeed the President enjoys immunity
during her incumbency, and why this must be so:
Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government.[10] x x x
And lest it be overlooked, the petition is simply bereft of
any allegation as to what specific presidential act or omission violated or
threatened to violate petitioners’ protected rights.
This brings
us to the correctness of the assailed dismissal of the petition with respect to
Gen. Esperon, P/Dir. Gen. Razon, P/Supt. Roquero, P/Insp. Gomez, and the OMB.
None
of the four individual respondents immediately referred to above has been
implicated as being connected to, let alone as being behind, the alleged
abduction and harassment of petitioner
As explained
by the CA, Gen. Esperon and P/Dir. Gen. Razon were included in the case on the
theory that they, as commanders, were responsible for the unlawful acts
allegedly committed by their subordinates against petitioners. To the appellate
court, “the privilege of the writ of amparo
must be denied as against Gen. Esperon and P/Dir. Gen. Razon for the simple
reason that petitioners have not presented evidence showing that those who
allegedly abducted and illegally detained Lourdes and later threatened her and
her family were, in fact, members of the military or the police force.” The two
generals, the CA’s holding broadly hinted, would have been accountable for the
abduction and threats if the actual malefactors were members of the AFP or PNP.
As regards
the three other answering respondents, they were impleaded because they
allegedly had not exerted the required extraordinary diligence in investigating
and satisfactorily resolving
While
in a qualified sense tenable, the dismissal by the CA of the case as against
Gen. Esperon and P/Dir. Gen. Razon is incorrect if viewed against the backdrop
of the stated rationale underpinning the assailed decision vis-à-vis the two
generals, i.e., command
responsibility. The Court assumes the latter stance owing to the fact that
command responsibility, as a concept defined, developed, and applied under
international law, has little, if at all, bearing in amparo proceedings.
The
evolution of the command responsibility doctrine finds its context in the
development of laws of war and armed combats. According to Fr. Bernas, “command
responsibility,” in its simplest terms, means the “responsibility of commanders
for crimes committed by subordinate members of the armed forces or other
persons subject to their control in international wars or domestic conflict.”[14]
In this sense, command responsibility is properly a form of criminal
complicity. The Hague Conventions of 1907 adopted the doctrine of command
responsibility,[15] foreshadowing the
present-day precept of holding a superior accountable for the atrocities
committed by his subordinates should he be remiss in his duty of control over
them. As then formulated, command responsibility is “an omission mode of individual criminal liability,” whereby the superior is made
responsible for crimes committed
by his subordinates for failing to prevent or punish the perpetrators[16]
(as opposed to crimes he ordered).
The doctrine
has recently been codified in the Rome Statute[17]
of the International Criminal Court (ICC) to which the
While there
are several pending bills on command responsibility,[19]
there is still no Philippine law that provides for criminal liability under
that doctrine.[20]
It may
plausibly be contended that command responsibility, as legal basis to hold
military/police commanders liable for extra-legal killings, enforced
disappearances, or threats, may be made applicable to this jurisdiction on the
theory that the command responsibility doctrine now constitutes a principle of
international law or customary international law in accordance with the
incorporation clause of the Constitution.[21] Still, it would be inappropriate to apply to
these proceedings the doctrine of command responsibility, as the CA seemed to
have done, as a form of criminal complicity through omission, for individual
respondents’ criminal liability, if there be any, is beyond the reach of amparo. In other words, the Court
does not rule in such proceedings on any issue of criminal culpability, even if
incidentally a crime or an infraction of an administrative rule may have been
committed. As the Court stressed in Secretary
of National Defense v. Manalo (Manalo),[22]
the writ of amparo was conceived to provide expeditious and effective
procedural relief against violations or threats of violation of the basic rights
to life, liberty, and security of persons; the corresponding amparo suit,
however, “is not an action to determine criminal guilt requiring proof beyond
reasonable doubt x x x or administrative liability requiring substantial
evidence that will require full and exhaustive proceedings.”[23]
Of the same tenor, and by way of expounding on the nature and role of amparo, is what the Court said in Razon
v. Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or extra-judicial killings]; it determines responsibility, or at least accountability, for the enforced disappearance [threats thereof or extra-judicial killings] for purposes of imposing the appropriate remedies to address the disappearance [or extra-judicial killings].
x x x x
As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws. The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal x x x are matters of substantive law that only the Legislature has the power to enact.[24] x x x
If command
responsibility were to be invoked and applied to these proceedings, it should,
at most, be only to determine the author who, at the first instance, is
accountable for, and has the duty to address, the disappearance and harassments
complained of, so as to enable the Court to devise remedial measures that may
be appropriate under the premises to
protect rights covered by the writ of amparo. As intimated earlier, however, the determination should
not be pursued to fix criminal liability on respondents preparatory to criminal
prosecution, or as a prelude to administrative disciplinary proceedings under
existing administrative issuances, if there be any.
Petitioners,
as the CA has declared, have not adduced substantial evidence pointing to
government involvement in the disappearance of
Still and
all, the identities and links to the AFP or the PNP of the alleged abductors,
namely Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, have yet to be established.
Based on the separate sworn statements
of Maj. Paul Ciano[26]
and Technical Sergeant John N. Romano,[27]
officer-in-charge and a staff of the 301st AISS, respectively, none
of the alleged abductors of
Petitioners,
to be sure, have not successfully controverted answering respondents’
documentary evidence, adduced to debunk the former’s allegations directly
linking
Sec. 17, as
complemented by Sec. 18 of the Amparo Rule, expressly prescribes the minimum
evidentiary substantiation requirement and norm to support a cause of action
under the Rule, thus:
Sec. 17. Burden of Proof and Standard of Diligence Required.—The parties shall establish their claims by substantial evidence.
x x x x
Sec. 18. Judgment.—x x x If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (Emphasis added.)
Substantial
evidence is more than a mere imputation of wrongdoing or violation that would
warrant a finding of liability against the person charged;[31]
it is more than a scintilla of evidence. It means such amount of relevant
evidence which a reasonable mind might accept as adequate to support a
conclusion, even if other equally reasonable minds might opine otherwise.[32]
Per the CA’s evaluation of their evidence, consisting of the testimonies and
affidavits of the three Rubrico women and five other individuals, petitioners
have not satisfactorily hurdled the evidentiary bar required of and assigned to
them under the Amparo Rule. In
a very real sense, the burden of evidence never even shifted to answering
respondents. The Court finds no compelling reason to disturb the
appellate court’s determination of the answering respondents’ role in the
alleged enforced disappearance of petitioner
Notwithstanding the foregoing findings, the
Court notes that both Gen. Esperon and P/Dir. Gen. Razon, per their separate
affidavits, lost no time, upon their receipt of the order to make a return on
the writ, in issuing directives to the concerned units in their respective
commands for a thorough probe of the case and in providing the investigators
the necessary support. As of this date, however, the investigations have yet to
be concluded with some definite findings and recommendation.
As regards
P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied that they
have no direct or indirect hand in the alleged enforced disappearance of
The seeming
reluctance on the part of the Rubricos or their witnesses to cooperate ought
not to pose a hindrance to the police in pursuing, on its own initiative, the
investigation in question to its natural end. To repeat what the Court said in Manalo,
the right to security of persons is a guarantee of the protection of one’s
right by the government. And this protection includes conducting effective
investigations of extra-legal killings, enforced disappearances, or threats of
the same kind. The nature and importance of an investigation are captured in
the Velasquez Rodriguez case,[35]
in which the Inter-American Court of Human Rights pronounced:
[The duty to investigate] must be undertaken in a serious manner and
not as a mere formality preordained to be ineffective. An investigation must
have an objective and be assumed by the State as its own legal duty, not a step taken by private interests
that depends upon the initiative of the victim or his family or upon
offer of proof, without an effective search for the truth by the government.
(Emphasis added.)
This brings
us to Mary Joy’s charge of having been harassed by respondent P/Insp. Gomez.
With the view we take of this incident, there is nothing concrete to support
the charge, save for Mary Joy’s bare allegations of harassment. We cite with
approval the following self-explanatory excerpt from the appealed CA decision:
In fact, during her cross-examination, when asked what specific act or threat P/Sr. Gomez (ret) committed against her or her mother and sister, Mary Joy replied “None …”[36]
Similarly, there appears to be no basis for petitioners’
allegations about the OMB failing to act on their complaint against those who
allegedly abducted and illegally detained
The privilege
of the writ of amparo, to reiterate, is a remedy available to victims of
extra-judicial killings and enforced disappearances or threats of similar nature,
regardless of whether the perpetrator of the unlawful act or omission is a
public official or employee or a private individual.
At
this juncture, it bears to state that petitioners have not provided the CA with
the correct addresses of respondents Cuaresma, Alfaro, Santana, Jonathan, and
Sy/Reyes. The mailed envelopes containing the petition for a writ of amparo
individually addressed to each of them have all been returned unopened. And
petitioners’ motion interposed before the appellate court for notice or service
via publication has not been
accompanied by supporting affidavits as required by the Rules of Court. Accordingly, the appealed CA partial
judgment––disposing of the underlying petition for a writ of amparo without (1) pronouncement as
to the accountability, or lack of it, of the four non-answering respondents or
(2) outright dismissal of the same petition as to them––hews to the
prescription of Sec. 20 of the Amparo
Rule on archiving and reviving cases.[41]
Parenthetically, petitioners have also not furnished this Court with sufficient
data as to where the afore-named respondents may be served a copy of their
petition for review.
Apart
from the foregoing considerations, the petition did not allege ultimate facts
as would link the OMB in any manner to the violation or threat of violation of
the petitioners’ rights to life, liberty, or personal security.
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.[42]
It is an extraordinary writ conceptualized and adopted in light of and in
response to the prevalence of extra-legal killings and enforced disappearances.[43]
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.
In their
petition for a writ of amparo, petitioners asked, as their main prayer, that
the Court order the impleaded respondents “to immediately desist from doing any
acts that would threaten or seem to threaten the security of the Petitioners
and to desist from approaching Petitioners, x x x their residences and offices
where they are working under pain of contempt of [this] Court.” Petitioners,
however, failed to adduce the threshold substantive evidence to establish the
predicate facts to support their cause of action, i.e., the adverted
harassments and threats to their life, liberty, or security, against responding
respondents, as responsible for the disappearance and harassments complained
of. This is not to say, however, that
petitioners’ allegation on the fact of the abduction incident or harassment is
necessarily contrived. The reality on the ground, however, is that the military
or police connection has not been adequately proved either by identifying the
malefactors as components of the AFP or PNP; or in case identification is not
possible, by showing that they acted with the direct or indirect acquiescence
of the government. For this reason, the Court is unable to ascribe the authorship
of and responsibility for the alleged enforced disappearance of
Prescinding
from the above considerations, the Court distinctly notes that the appealed
decision veritably extended the privilege of the writ of amparo to petitioners when it granted
what to us are amparo reliefs. Consider: the appellate court decreed, and rightly
so, that the police and the military take specific measures for the protection
of petitioners’ right or threatened right to liberty or security. The
protection came in the form of directives specifically to Gen. Esperon and
P/Dir. Gen. Razon, requiring each of them (1) to ensure that the investigations
already commenced by the AFP and PNP units, respectively, under them on the
complaints of Lourdes and her daughters are being pursued with urgency to bring
to justice the perpetrators of the acts complained of; and (2) to submit to the
CA, copy furnished the petitioners, a regular report on the progress and status
of the investigations. The directives
obviously go to Gen. Esperon in his capacity as head of the AFP and, in a
sense, chief guarantor of order and security in the country. On the other hand,
P/Dir. Gen. Razon is called upon to perform a duty pertaining to the PNP, a
crime-preventing, investigatory, and arresting institution.
As the CA,
however, formulated its directives, no definitive time frame was set in its
decision for the completion of the investigation and the reportorial
requirements. It also failed to consider Gen. Esperon and P/Dir. Gen. Razon’s
imminent compulsory retirement from the military and police services,
respectively. Accordingly, the CA directives, as hereinafter redefined and
amplified to fully enforce the amparo remedies, are hereby given to, and shall
be directly enforceable against, whoever sits as the commanding general of the
AFP and the PNP.
At this
stage, two postulates and their implications need highlighting for a proper
disposition of this case.
First, a criminal complaint for kidnapping and, alternatively, for
arbitrary detention rooted in the same acts and incidents leading to the filing
of the subject amparo petition has been instituted with the OMB, docketed as
OMB-P-C-O7-0602-E. The usual initial steps to determine the existence of a prima
facie case against the five (5) impleaded individuals suspected to be
actually involved in the detention of
Second,
Sec. 22[45]
of the Amparo Rule proscribes the filing of an amparo petition should a
criminal action have, in the meanwhile, been commenced. The succeeding Sec. 23,[46]
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. Under the
terms of said Sec. 22, the present petition ought to have been dismissed at the
outset. But as things stand, the outright dismissal of the petition by force of
that section is no longer technically feasible in light of the interplay of the
following factual mix: (1) the Court has, pursuant to Sec. 6[47]
of the Rule, already issued ex parte the
writ of amparo; (2) the CA, after a summary hearing, has dismissed the
petition, but not on the basis of Sec. 22; and (3) the complaint in
OMB-P-C-O7-0602-E named as respondents only those believed to be the actual
abductors of Lourdes, while the instant petition impleaded, in addition, those
tasked to investigate the kidnapping and detention incidents and their
superiors at the top. Yet, the acts and/or omissions subject of the criminal
complaint and the amparo petition are so linked as to call for the
consolidation of both proceedings to obviate the mischief inherent in a
multiplicity-of-suits situation.
Given the above
perspective and to fully apply the beneficial nature of the writ of amparo as
an inexpensive and effective tool to protect certain rights violated or
threatened to be violated, the Court hereby adjusts to a degree the literal
application of Secs. 22 and 23 of the Amparo Rule to fittingly address the
situation obtaining under the premises. [48]
Towards this end, two things are at once indicated: (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.
WHEREFORE, the Court PARTIALLY GRANTS this
petition for review and makes a decision:
(1) Affirming the dropping of
President Gloria Macapagal-Arroyo from the petition for a writ of amparo;
(2) Affirming the dismissal of the amparo case as against Gen. Hermogenes
Esperon, and P/Dir. Gen. Avelino Razon, insofar as it tended, under the command
responsibility principle, to attach accountability and responsibility to them,
as then AFP Chief of Staff and then PNP Chief, for the alleged enforced
disappearance of Lourdes and the ensuing harassments allegedly committed
against petitioners. The dismissal of the petition with respect to the OMB is
also affirmed for failure of the petition to allege ultimate facts as to make
out a case against that body for the enforced disappearance of Lourdes and the
threats and harassment that followed; and
(3) Directing the incumbent Chief of
Staff, AFP, or his successor, and the incumbent Director-General of the PNP, or
his successor, to ensure that the investigations already commenced by their
respective units on the alleged abduction of Lourdes Rubrico and the alleged
harassments and threats she and her daughters were made to endure are pursued
with extraordinary diligence as required by Sec. 17[49]
of the Amparo Rule. They shall order their subordinate officials,
in particular, to do the following:
(a) Determine based on records, past and
present, the identities and locations of respondents Maj. Darwin Sy, a.k.a.
Darwin Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and one
Jonathan; and submit certifications of this determination to the OMB with copy
furnished to petitioners, the CA, and this Court;
(b)
Pursue with extraordinary diligence the evidentiary leads relating to Maj.
Darwin Sy and the Toyota Revo vehicle with Plate No. XRR 428; and
(c) Prepare, with the assistance of petitioners
and/or witnesses, cartographic sketches of respondents Maj. Sy/Reyes, Jimmy
Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and a certain Jonathan to aid in
positively identifying and locating them.
The investigations shall be completed
not later than six (6) months from
receipt of this Decision; and within thirty (30) days after completion of the
investigations, the Chief of Staff of the AFP and the Director-General of the
PNP shall submit a full report of the results of the investigations to the
Court, the CA, the OMB, and petitioners.
This case is accordingly
referred back to the CA for the purpose of monitoring the investigations and
the actions of the AFP and the PNP.
Subject to the foregoing modifications, the Court AFFIRMS the partial judgment dated July 31, 2008 of the CA.
SO ORDERED.
PRESBITERO
J. VELASCO, JR.
Associate Justice
WE
CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO RENATO C. CORONA
Associate Justice Associate Justice
CONCHITA CARPIO MORALES ANTONIO EDUARDO B. NACHURA
Associate Justice Associate
Justice
TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice
DIOSDADO M. PERALTA LUCAS P. BERSAMIN
Associate Justice Associate Justice
MARIANO C.
Associate Justice Associate Justice
MARTIN S. VILLARAMA, JR.
JOSE
Associate
Justice Associate Justice
JOSE CATRAL
Associate Justice
C E R T I F I C A T I O N
Pursuant
to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.
REYNATO
S. PUNO
Chief Justice
[1] SEC. 19. Appeal. – Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. x x x
[3] Penned by Associate Justice Edgardo P. Cruz (now retired) and concurred in by Associate Justices Fernanda Lampas-Peralta and Normandie Pizarro.
[4] Sec. 5. Contents of the Petition.––The petition x x x shall allege the following: x x x d) The investigation conducted, if any, specifying the names and 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.
[5] Rollo, pp. 196-198.
[6]
[7]
[8] Sec. 17. Leave of Court. – Any application to the court under this Rule for leave to effect service in any manner which leave of court is necessary shall be made by motion in writing, supported by an affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application.
[9] Bernas, The Constitution of the Republic of the Philippines 738 (1996); citing Soliven v. Makasiar, Nos. L-82585, L-82827 & L-83979, November 14, 1988, 167 SCRA 393.
[10] G.R. No. 171396, May 3, 2006, 489 SCRA 160, 224-225.
[14] J.G. Bernas, S.J., Command Responsibility, February 5, 2007 <http://sc.judiciary.gov.ph/publications/summit/Summit%20Papers/Bernas%20-%20Command%20Responsibility.pdf>.
[15] Eugenia Levine, Command
Responsibility, The Mens Rea Requirement, Global Policy Forum, February 2005
<www.globalpolicy.org.>. As stated in Kuroda
v. Jalandoni, 83 Phil. 171 (1949), the
[16] Iavor Rangelov and Jovan Nicic, “Command Responsibility: The Contemporary Law,” <http://www.hlc-rdc.org/uploads/editor/Command%20Responsibility.pdf> (visited September 9, 2009).
[17] Adopted by 120 members of
the UN on July 17, 1998 and entered into force on July 1, 2002
<http://www.un.org/News/facts/iccfact.htm> (visited November 26, 2009).
[18] Pimentel v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 622.
[19] S. Bill 1900: DEFINING THE LIABILITY OF HEADS OF DEPARTMENTS CONCERNED FOR GROSS VIOLATIONS OF HUMAN RIGHTS COMMITTED BY MEMBERS OF THE [PNP] OR OTHER LAW ENFORCEMENT AGENCIES.
S. Bill 1427: PUNISHING GOVERNMENT OFFICIALS OR SUPERIORS FOR CRIMES OR OFFENSES COMMITTED BY THEIR SUBORDINATES UNDER THE PRINCIPLE OF COMMAND RESPONSIBILITY.
S. Bill 2159: AN ACT
ADOPTING THE DOCTRINE OF “
[20] The
attempt of the 1986 Constitutional Commission to incorporate said doctrine in
the Bill of Rights that would have obliged the State to compensate victims of
abuses committed against the right to life by government forces was shot down,
on the ground that the proposal would violate a fundamental principle of
criminal liability under the Penal Code upholding the tenet nullum
crimen, nulla poena sine lege (there is no crime when there is no
law punishing it). I Record of the 1986 Constitutional Commission, pp. 753-54.
[21] The incorporation clause (Art. II, Sec. 2) of the
Constitution states that the
[22] G.R. No. 180906, October 7, 2008, 568 SCRA 1.
[23]
[24] G.R. No. 182498, December 3, 2009.
[25] Supra note 6.
[32] Bautista v. Sula, A.M. No. P-04-1920, August 17, 2007, 530 SCRA 406; Portuguez v. GSIS Family Bank (Comsavings Bank), G.R. No. 169570, March 2, 2007, 517 SCRA 309.
[35] I/A Court, H.R. Velasquez Rodriguez Case, Judgment of July 29, 1988, Series C No. 4; cited in Secretary of National Defense v. Manalo, supra.
[41] SEC. 20. Archiving and Revival of Cases. – The [amparo] court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of the petitioner or witnesses to appear due to threats on their lives.
A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice, upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case.
[44] Sometime in April 2007.
[45] Sec. 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition [for a writ of amparo] shall be filed. The reliefs under the writ shall be available by motion in the criminal case.
The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.
[46] SEC. 23. Consolidation. – When a criminal action is filed subsequent to the filing for the writ, the latter shall be consolidated with the criminal action. x x x
After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.
[47] SEC. 6. Issuance of the Writ. – Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue.
[48] As held in Razon v. Tagitis, supra note 24, “the unique situations that call for the issuance of the writ [of amparo] as well as the considerations and measures necessary to address the situations, may not at all be the same as the standard measures and procedures in ordinary court actions and proceedings.”