G.R. No. 183871

G.R. No. 183871 – LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and MARY JOY RUBRICO CARBONEL, 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, ARESENIO C. GOMEZ, and OFFICE OF THE OMBUDSMAN, respondents.

Promulgated: February 18, 2010

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SEPARATE OPINION

BRION, J.:

I CONCUR with the ponencia and its results but am compelled to write this Separate Opinion to elaborate on some of the ponencia’s points and to express my own approach to the case, specifically, an “alternative approach” in resolving the case that the ponencia only partially reflects. On this point, I still believe that my “alternative approach” would be more effective in achieving the objectives of a Writ of Amparo.

For the record, I wish at the outset to draw attention to the recent enactment on December 11, 2009 of Republic Act No. 9851 (RA 9851), otherwise known as “An Act Defining and Penalizing Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity, Organizing Jurisdiction, Designating Special Courts, and for Related Purposes.” Two aspects relevant to the present case have been touched upon by this law, namely, the definition of enforced or involuntary disappearance, and liability under the doctrine of command responsibility. Under Section 3(g) of the law, “enforced or involuntary disappearance” is now defined as follows:

(g) “Enforced or involuntary disappearance of persons” means the arrest, detention, or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons with the intention of removing from the protection of the law for a prolonged period of time.[1]

With this law, the Rule on the Writ of Amparo is now a procedural law anchored, not only on the constitutional rights to the rights to life, liberty and security, but on a concrete statutory definition as well of what an “enforced or involuntary disappearance” is. This new law renders academic and brings to a close the search for a definition that we undertook in Razon v. Tagitis[2] to look for a firm anchor in applying the Rule on the Writ of Amparo procedures.

I shall discuss RA 9851’s effect on doctrine of command responsibility under the appropriate topic below.

Background

By way of background, the petition for the Writ of Amparo dated October 25, 2007 alleged that petitioner Lourdes Rubrico (Lourdes) was kidnapped and detained without any basis in law on April 3, 2007, but was subsequently released by her captors. Soon after her release on April 10, 2007, Lourdes and her children Jean Rubrico Apruebo and Joy Rubrico Carbonel (collectively, the petitioners) filed with the Ombudsman their complaint (dated April 19, 2007) against respondents Capt. Angelo Cuaresma, Ruben Alfaro, Jimmy Santana, a certain Jonathan and Darwin Sy or Darwin Reyes. The Ombudsman complaint was for violation of Articles 124 and 267 of the Revised Penal Code, and of Section 4, Rep. Act No. 7438, paragraphs (a) and (b).

During Lourdes’ detention and after her release, her children (who initially looked for her and subsequently followed up the investigation of the reported detention with the police), and even Lourdes herself, alleged that they were harassed by unknown persons they presumed to be military or police personnel.

On October 25, 2007, the petitioners filed the present petition regarding: (1) the failure of the respondents to properly investigate the alleged kidnapping; and (2) the acts of harassment the petitioners suffered during the search for Lourdes and after her release. The petition also alleged that the Ombudsman violated Lourdes’ right to the speedy disposition of her case, and placed her and her witnesses in danger because of its inaction.

Re: Respondent President Macapagal-Arroyo

The ponencia correctly ruled that the dismissal of the petition as against the President is proper because of her immunity from suit during her term.[3] The more basic but unstated reason is that the petitioners did not even specifically state the act or omission by which the President violated their right as required by Section 2, Rule 2 of the Rules of Court, and therefore, failed to prove it. Thus, I fully concur with the dismissal the ponencia directed.

Re: The Ombudsman

I likewise agree with the ponencia’s conclusion that the petition against the Ombudsman should be dismissed for the reason discussed below.

The petitioner simply alleged that the Ombudsman violated her right to speedy disposition of the criminal complaint, with the passing claim that the delay has placed her life and that of her witnesses in danger. She failed to aver the fact of delay; the dilatory acts of the Ombudsman, if any; and manner and kind of danger the delay caused her.

Thus, the petition did not allege anything that would place it within the ambit of the Rule on the Writ of Amparo (the Amparo Rule) with respect to the Ombudsman; it did not involve any violation by the Ombudsman relating to any disappearance, extrajudicial killing or any violation or threat of violation of the petitioners’ constitutional rights to life, liberty or security.

For this reason, the petition stated no cause of action against the Ombudsman under the Amparo Rule, contrary to Section 2, Rule 2 of the Rules of Court, in relation with Section 5 of the Amparo Rule. I thus join the ponencia in dismissing the case against the Ombudsman.

Re: The Command Responsibility Ruling

On the command responsibility issue, the CA held in its decision that:

The doctrine of command responsibility holds military commanders and other persons occupying positions of superior authority criminally responsible for the unlawful conduct of their subordinates. For the doctrine to apply, the following elements must be shown to exist: (i) the existence of a superior-subordinate relationship; (ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and (iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator (Joaquin Bernas, S.J. Command Responsibility, February 7, 2007).

Since petitioners failed to establish by substantial evidence the first element of command responsibility, i.e., that the perpetrators of the acts complained of are subordinates of Gen. Esperon and P/Dir. Gen Razon, we cannot hold the two officials liable under a writ of amparo.

Under these terms, the CA effectively ruled that the doctrine of command responsibility applies in an Amparo case, but could not be applied in this case for lack of proof that the alleged perpetrators were military or police personnel.

The ponencia rejects the CA’s approach and conclusion and holds that command responsibility is not an appropriate consideration in an Amparo proceeding, except for purposes specific and directly relevant to these proceedings. I fully concur with this conclusion.

The doctrine of command responsibility is a substantive rule that establishes criminal or administrative liability that is different from the purpose and approach of the Amparo Rule. As we have painstakingly explained in Secretary of Defense v. Manalo[4] and Razon v. Tagitis,[5] the Amparo Rule merely provides for a procedural protective remedy against violations or threats of violations of the constitutional rights to life, liberty and security. It does not address criminal, civil or administrative liability as these are matters determined from the application of substantive law.

As heretofore mentioned, a new law – RA 9851 – has recently been passed relating to enforced disappearance and command responsibility. Section 10 of this law explicitly makes superiors criminally liable under the doctrine of command responsibility, as follows:[6]

Section 10. Responsibility of Superiors. – In addition to other grounds of criminal responsibility for crimes defined and penalized under this Act, a superior shall be criminally responsible as a principal for such crimes committed by subordinates under his/her effective command and control, or effective authority and control as the case may be, as a result of his/her failure to properly exercise control over such subordinates, where:

(a) That superior either knew or, owing to the circumstances at the time, should have known that the subordinates were committing or about to commit such crimes;

(b) That superior, failed to take all necessary and reasonable measures within his/her power to prevent or repress their commissio0n or to submit the matter to the competent authorities for investigation and prosecution.

Thus, liability under the doctrine of command responsibility is no longer simply administrative (based on neglect of duty),[7] but is now criminal. This new development all the more stresses that the doctrine of command responsibility has limited application to the Rule on the Writ of Amparo whose concern is the protection of constitutional rights through procedural remedies.

The factual issue an Amparo case directly confronts is whether there has been a disappearance or an extrajudicial killing or threats to the constitutional rights to life, liberty and security. If at all possible, a preliminary determination can be made on who could have perpetrated the acts complained of, but only for the purpose of pointing the way to the remedies that should be undertaken. On the basis of a positive finding, the case proceeds to its main objective of defining and directing the appropriate procedural remedies to address the threat, disappearance or killing.[8] In meeting these issues, the Amparo Rule specifies the standard of diligence that responsible public officials carry in the performance of their duties. Expressly,[9] one duty the Amparo Rule commands is the investigation of a reported crime that, by law,[10] the police is generally duty bound to address.

To the extent of (1) answering the question of whether an enforced disappearance, an extrajudicial killing or threats thereof have taken place and who could have been the perpetrators of these deeds; (2) determining who has the immediate duty to address the threat, disappearance, extrajudicial killing or violation of constitutional right; and in (2) determining the remedial measures that need to be undertaken – the doctrine of command responsibility may find some relevance to the present petition.

This linkage, however, does not go all the way to a definitive determination of criminal or administrative liability, or non-liability, for the act of a subordinate or for neglect of duty. This question is far from what the CA or this Court can definitively answer in an Amparo petition and is certainly an improper one to answer in an Amparo proceeding. It has never been the intention of the Amparo Rule to determine liability, whether criminal or administrative; the Court, under the Amparo Rule, can only direct that procedural remedies be undertaken for the protection of constitutional rights to life, liberty and security.

In Tagitis, we pointedly stated that while the Court can preliminarily determine responsibility in terms of authorship (not liability), this is only “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.” In doing this, we gave “responsibility” a peculiar meaning in an Amparo proceeding. (We did the same with the term “accountability.”)[11] It is only in this same sense that the CA can hold respondents Gen. Esperon and P/Dir. Gen. Razon not liable under the doctrine of command responsibility.

Re: Respondents P/Dir. Gen. Razon and Gen. Esperon

Subject to the above observations and for the reasons discussed below, I concur in dismissing the petition against the respondents P/Dir. Gen. Razon and Gen. Esperon who were impleaded in their capacities as Philippine National Police (PNP) Chief and Armed Forces of the Philippines (AFP) Chief of Staff, respectively. As a matter of judicial notice, they are no longer the incumbents of the abovementioned positions and cannot therefore act to address the concerns of a Writ of Amparo. In their places should be the incumbent PNP Chief and AFP Chief of Staff to whom the concerns of and the responsibilities under the petition and the Amparo Rule should be addressed. Unless otherwise directed by the Court, these incumbent officials shall assume direct responsibility for what their respective offices and their subordinate officials should undertake in Amparo petitions. This is in line with what we did in Tagitis where, as appropriate remedy, we applied the broadest brush by holding the highest PNP officials tasked by law to investigate, to be accountable for the conduct of further investigation based on our finding that no extraordinary diligence had been applied to the investigation of the case.

Consistent with this position, the petition should likewise be dismissed as against respondents Edgar B. Roquero (Roquero) and Arsenio C. Gomez (Gomez), except to the extent that Gomez may be charged with harassment and oppression before the Ombudsman[12] as these are substantive liability matters that are not laid to rest under an Amparo petition.

Re: Consideration of the Evidence and the Remedy

I acknowledge that the police at the municipal and provincial levels conducted investigations that unfortunately did not produce concrete results because of, among others, the lack of cooperation from the petitioners at some point during the investigation. No amount of extraordinary diligence indeed can produce results if the very persons seeking the investigation would not cooperate.

I do not read this intervening development, however, to be indicative of lack of interest in the case, given the efforts on record exerted by the petitioners to follow up the case at every level of police investigation. Moreover, the petitioners still pursued their petition and relied on this Court, in the hope that we can remedy what they perceive to be inadequate police investigative response.

In my view, the perceived lack of cooperation resulted more from frustration with police processes rather than from the outright refusal to cooperate. As we discussed in Tagitis, this is precisely the type of situation that a Writ of Amparo addresses – a situation where the petitioners swim against the current in a river strewn with investigative and evidentiary difficulties.

From the records, I note that very significant gaps exist in the handling of the investigation – among them, the failure to identify and locate the respondents Major Darwin Reyes/Sy, Jimmy Santana, Ruben Alfaro, Captain Angelo Cuaresma and a certain Jonathan – to the point that the petition was not even served on these respondents. This gap occurred despite evidence that the respondents are military or police personnel and that the address of Darwin Reyes/Sy had apparently been located and he had been identified to be connected with the military. A major problem, as the petition pointed out, is that the AFP itself certified that these respondents are not in the roster of Philippine Air Force personnel; no search and certification was ever made on whether they are AFP personnel or in other branches of the service. No significant follow through was also made in locating and properly placing Darwin Reyes/Sy within the jurisdiction of the court despite the evidentiary leads provided. These constitute major gaps in the investigation that became the stumbling blocks to its progress, both with the CA and the Ombudsman. Both bodies failed to make any headway because only the investigating respondents who are not alleged participants in the kidnapping showed up while the alleged perpetrators did not. This Court will never know unless further investigation is conducted whether this happened by design or by accident.

Based on this view, I agree with the ponencia that further investigation and monitoring should be undertaken. While past investigations may have been conducted, no extraordinary diligence had been applied to critical aspects of the case that are outside the petitioners’ capability to act upon and which therefore have not been affected by the petitioners’ lack of cooperation, even assuming this to be true. Because of this investigative shortcoming, we do not have sufficient factual findings that would give us the chance to fashion commensurate remedies. Otherwise stated, we cannot rule on the case until a more meaningful investigation using extraordinary diligence is undertaken.

The ponencia holds that the needed additional actions should be undertaken by the CA. I concur with this ruling as it is legally correct; the CA started the fact-finding on the case and has adequate powers and capability to pursue it. I wish to reiterate in this Separate Opinion, however, that an alternative way exists that is more direct and more efficient in achieving the goals of the Rule on the Writ of Amparo – i.e. the full and complete investigation with the observance of extraordinary diligence, and the recommendation for the prosecution of the parties who appear to be responsible for the violation of the constitutional rights to life, liberty and security. This alternative is based on the relevant provisions of the Amparo Rule, particularly Sections 20 to 23 which provide:

SECTION 20. Archiving and Revival of Cases. — The 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 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.

The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule not later than the first week of January of every year.

SECTION 21. Institution of Separate Actions. — This Rule shall not preclude the filing of separate criminal, civil or administrative actions.

SECTION 22. Effect of Filing of a Criminal Action – When a criminal action has been commenced, no separate petition 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.

SECTION 23. Consolidation. — When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of Amparo, the latter shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

SECTION 26. Applicability to Pending Cases. — This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts.

Section 22 of the Amparo Rule would be the closest provision to apply to the present case since a criminal action has been commenced before the Ombudsman (on April 19, 2007) before the present petition was filed on October 25, 2007. Under Section 22, no petition for the Writ of Amparo can technically be filed because of the previous commencement of criminal action before the Ombudsman. In the regular course, the present petition should have been dismissed outright at the first instance.

Yet, as the case developed, the Court issued the Writ of Amparo and the CA denied the petition on other grounds. As things now stand, it appears late in the day to dismiss the petition on the basis of Section 22. We should consider, too, that the present petition came under a unique non-repeatable circumstance – the Ombudsman complaint was filed before the Amparo Rule took effect; thus, the petitioners did not really have a choice of remedies when they filed the criminal complaint before the Ombudsman. There is likewise the consideration that the Ombudsman complaint was only against the perceived perpetrators of the kidnapping, whereas the present petition impleaded even those who had the duty to investigate or could effectively direct investigation of the case. The kidnapping and the threats that resulted, too, are inextricably linked and should not separately and independently be considered under prevailing procedural rules.[13]

Under the circumstances, I believe that the best approach is to simply avail of the possibilities that the combined application of the above-quoted provisions offer, appropriately modified to fit the current situation. Thus, this Court can simply consolidate the investigative and fact-finding aspects of the present petition with the investigation of the criminal complaint before the Ombudsman, directing in the process that the threats to the right to security aired in the present petition be incorporated in the Ombudsman complaint. Necessarily, all the records and evidence so far adduced before the CA should likewise be turned over and be made available to the Ombudsman in its investigation, in accordance with the dispositions made in this Decision. For purposes of its delegated investigative and fact-finding authority, the Ombudsman should be granted the complete investigative power available under the Amparo Rule.

The petitioners should be allowed, as they see fit, to amend their Ombudsman complaint to give full effect to this consolidation.

In the above manner, the Court continues to exercise jurisdiction over the Amparo petition and any interim relief issue that may arise, taking into account the Ombudsman’s investigative and fact-finding recommendations.

The Ombudsman, for its part, shall rule on the complaint before it in accordance with its authority under Republic Act 6770 and its implementing rules and regulations, and report to the Court its investigative and fact-finding recommendations on the Amparo petition within one year from the promulgation of this Decision.

The incumbent Chiefs of the AFP and the PNP and their successors shall remain parties to the Ombudsman case and to the present petition in light of and under the terms of the consolidation, and can be directed to act, as the ponencia does direct them to act.

Now that the case has been remanded for further investigation and monitoring to the Court of Appeals, the investigation using the standards of extraordinary diligence now rests with that court to enforce, using all the powers and authority that this Court can grant under the Rule on the Writ of Amparo. The Ombudsman, for its part, has been duly enlightened by the ponencia and by this Separate Opinion on the directions it should take to effectively discharge its tasks in handling the complaint before it. The petitioners, too, have their share of the burden in pushing their case to a meaningful conclusion and cannot just wait for the other dramatis personae to act. With the Court’s Decision, action has again shifted to the lower levels and the Court now simply waits to see if the appellate court, the Ombudsman and the parties, acting on their own and collectively, can be equal to the tasks before them.

ARTURO D. BRION

Associate Justice

[1] Under Section 6 of RA 9851, enforced or involuntary disappearance is penalized under the concept of “other crimes against humanity” when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

[3] Under Section 9 of RA 9851, the Philippine constitutional standard of presidential immunity from suit is also made an exception to the higher international criminal law standard of non-immunity of heads of state for the most serious crimes of concern to the international community as a whole – namely, war crimes, genocide, and crimes against humanity. Thus, Section 9 states:

Section 9. Irrelevance of Official Capacity. - This Act shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Act, nor shall it, in and of itself, constitute a ground for reduction of sentence. However:

(a) Immunities or special procedural rules that may be attached to the official capacity of a person under Philippine law other than the established constitutional immunity from suit of the Philippine President during his/her tenure, shall not bar the court from exercising jurisdiction over such a person; and

(b) Immunities that may be attached to the official capacity of a person under international law may limit the application of this Act, nut only within the bounds established under international law. [emphasis supplied]

[4] G.R. No. 180906, Oct. 7, 2008, 568 SCRA 1, 57-58.

[6] Similarly, Section 13 of Republic Act No. 9745, otherwise known as the “Anti-Torture Act of 2009” makes “[t]he immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies criminally liable as a principal to the crime of torture or other cruel or inhuman and degrading treatment or punishment “[i]f he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence shall also be liable as principals.”

[7] As provided under Executive Order No. 226 for the Philippine National Police and Circular No. 28, Series of 1956 of the Armed Forces of the Philippines.

[9] Rule on the Writ of Amparo, Sections 5, 9 and 17.

[11] In Tagitis, we defined the concept of responsibility and accountability for Writ of Amparo cases as follows: “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 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 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.”

[12] See Prudencio M. Reyes, Jr. v. Simplicio C. Belisario, G.R. No. 154652, August 15, 2009.

[13] See Philippine National Bank v. Gotesco Tyan Ming Development, Inc., G.R. No. 183211, June 5, 2009, where the Court held that “[t]he rule allowing consolidation is designed to avoid multiplicity of suits, to guard against oppression or abuse, to prevent delays, to clear congested dockets, and to simplify the work of the [courts]; in short, the attainment of justice with the least expense and vexation to the parties-litigants.” See also Teston v. Development Bank of the Philippines, G.R. No. 144374, November 11, 2005, 474 SCRA 597, 605.