G.R. No. 186050

EN BANC

G.R. No. 186050 ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN BALAO-STRUGAR and BEVERLY LONGID, Petitioners, v. GLORIA MACAPAGAL-ARROYO, EDUARDO ERMITA, GILBERTO TEODORO, RONALDO PUNO, NORBERTO GONZALES, Gen. ALEXANDER YANO, Gen. JESUS VERSOZA, Brig. Gen. REYNALDO MAPAGU, Lt. P/Dir. EDGARDO DOROMAL, Maj. Gen. ISAGANI CACHUELA, Commanding Officer of the AFP-ISU based in Baguio City, PSS EUGENE MARTIN, and several JOHN DOES, Respondents.

G.R. No. 186059 PRESIDENT GLORIA MACAPAGAL-ARROYO, SECRETARY EDUARDO ERMITA, SECRETARY GILBERTO TEODORO, SECRETARY RONALDO PUNO, SECRETARY NORBERTO GONZALES, GEN. ALEXANDER YANO, P/DGEN. JESUS VERSOZA, BRIG. GEN. REYNALDO MAPAGU, MAJ. GEN. ISAGANI CACHUELA, POL. SR. SUPT. EUGENE MARTIN, Petitioners, v. ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN BALAO-STRUGAR and BEVERLY LONGID, Respondents.

Promulgated:

December 13, 2011

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DISSENTING OPINION

SERENO, J.:

The majority Decision precariously steers budding Philippine jurisprudence on the writ of amparo to a course that threatens to diminish the preventive and curative functions of this judicial relief. As this Court emphasized in the landmark case of Secretary of National Defense v. Manalo,[1] the writ of amparo serves both preventive and curative roles in addressing the problem of extrajudicial killings and enforced disappearances.[2] 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.[3]

In the instant case, the ponencia denies the grant of the privilege of the writ of amparo on the ground that the totality of evidence presented by petitioners in G.R. No. 186060 does not satisfy the degree of proof required by the Rule on the Writ of Amparo to establish that James Balao (Balao) was a victim of enforced disappearance, and that respondents in G.R. No. 186059 were accountable or responsible therefor. In examining this Decision, five issues ought to be considered.

A. Similarity between past abductions and the present case of enforced disappearance

The majority is of the view that the documented practice of targeting activists in the militarys counter-insurgency program by itself does not fulfill the evidentiary standards provided in the Amparo Rule xxx. [4] Although I understand that the import of this statement is to the effect that establishing the existence of this practice should not be made the sole basis of determining responsibility or accountability in amparo caes, this ruling must nevertheless be clarified.

Section 17 of the Rule on the Writ of Amparo[5] prescribes the threshold of substantial evidence as necessary for establishing the claims of petitioners in G.R. No. 186050. While the substantial evidence rule remains the standard in amparo proceedings, flexibility should be observed. Courts must consider evidence adduced in its totality, including that which would otherwise be deemed inadmissible if consistent with the admissible evidence adduced.[6]

The ruling of the Inter-American Court of Human Rights in Velasquez Rodriguez v. Honduras[7] is worth noting. In that case, the tribunal found that once a pattern or practice of enforced disappearances supported or tolerated by the government is established, a present case of disappearance may be linked to that practice and proven through circumstantial evidence or logical inference, viz:

124. The Commission's argument relies upon the proposition that the policy of disappearances, supported or tolerated by the Government, is designed to conceal and destroy evidence of disappearances. When the existence of such a policy or practice has been shown, the disappearance of a particular individual may be proved through circumstantial or indirect evidence or by logical inference. Otherwise, it would be impossible to prove that an individual has been disappeared.

. . . . . . . . .

126. The Court finds no reason to consider the Commission's argument inadmissible. If it can be shown that there was an official practice of disappearances in Honduras, carried out by the Government or at least tolerated by it, and if the disappearance of Manfredo Velsquez can be linked to that practice, the Commission's allegations will have been proven to the Court's satisfaction, so long as the evidence presented on both points meets the standard of proof required in cases such as this. (Emphasis supplied.)

Following Velasquez Rodriguez, it may be established that enforced disappearances or extrajudicial killings naturally follow after a groups political classification and/or vilification as communist. In the case at bar, the majority opinion already took judicial notice that once the military perceives an organization to be a communist front, the latter will automatically be considered as an enemy of the State and, therefore, a target for liquidation. Despite this finding, the majority refused to even examine how the present case fits this pattern or practice, and simply dismissed the allegations of petitioners in G.R. No. 186050 by saying that the existence of similarities between previous and present circumstances of abduction do not necessarily meet the standards under the Rule on the Writ of Amparo.

B. Command Responsibility

The ponencia rejects the use of command responsibility in amparo proceedings on the ground that the manner of impleading commanders must be on the basis of their responsibility or accountability. It must be pointed out that the doctrine of command responsibility is not mutually exclusive with the standard of responsibility and accountability in amparo cases.

Boac v. Cadapan[8] gives guidance as to how the ostensible difference between command responsibility, on the one hand, and responsibility and accountability, on the other, can be reconciled as follows:

[C]ommand responsibility may be loosely applied in amparo cases in order to identify those accountable individuals that have the power to effectively implement whatever processes an amparo court would issue. In such application, the amparo court does not impute criminal responsibility but merely pinpoint the superiors it considers to be in the best position to protect the rights of the aggrieved party.

Such identification of the responsible and accountable superiors may well be a preliminary determination of criminal liability which, of course, is still subject to further investigation by the appropriate government agency. (Emphasis supplied.)

Further, in Noriel Rodriguez v. Arroyo,[9] this Court unanimously ruled in this manner:

Although originally used for ascertaining criminal complicity, the command responsibility doctrine has also found application in civil cases for human rights abuses. In the United States, for example, command responsibility was used in Ford v. Garcia and Romagoza v. Garcia civil actions filed under the Alien Tort Claims Act and the Torture Victim Protection Act. This development in the use of command responsibility in civil proceedings shows that the application of this doctrine has been liberally extended even to cases not criminal in nature. Thus, it is our view that command responsibility may likewise find application in proceedings seeking the privilege of the writ of amparo. As we held in Rubrico:

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.

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. (Emphasis supplied.)

Precisely in the case at bar, the doctrine of command responsibility may be used to determine whether respondents are accountable for and have the duty to address the abduction of Rodriguez in order to enable the courts to devise remedial measures to protect his rights. Clearly, nothing precludes this Court from applying the doctrine of command responsibility in amparo proceedings to ascertain responsibility and accountability in extrajudicial killings and enforced disappearances.

As earlier pointed out, amparo proceedings determine (a) responsibility, or the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, and (b) accountability, or the measure of remedies that should be addressed to those (i) who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or (ii) who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or (iii) those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. Thus, although there is no determination of criminal, civil or administrative liabilities, the doctrine of command responsibility may nevertheless be applied to ascertain responsibility and accountability within these foregoing definitions.

Thus, the doctrine of command responsibility may be used in amparo proceedings to the extent of identifying the superiors accountable for the enforced disappearance or extrajudicial killing, and those who may be directed to implement the processes and reliefs in the amparo case.

C. Limited, superficial and one-sided investigation

The ponencia admits that the commanders and military officers impleaded as respondents in G.R. No. 186050 have taken very limited, superficial and one-sided actions and have clearly failed to discharge their burden of extraordinary diligence in the investigation.[10] Notwithstanding this explicit finding, the majority still refused the grant of the privilege of the writ. A faithful interpretation of the Rule on the Writ of Amparo, as well as existing jurisprudence, supports the contention that the failure to conduct an effective official investigation is precisely the reason why respondents in G.R. No. 1860589 should be held responsible or accountable for the enforced disappearance of Balao.

Section 1 of the Rule on the Writ of Amparo is clear that a violation of or threat to the right to life, liberty and security may be caused by either an act or an omission of a public official. In our jurisprudence on the writ of amparo, responsibility may refer to respondents participation by action or omission in enforced disappearance, while accountability may attach to respondents 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.

Squarely passed upon in this Courts ruling in Rodriguez[11] was the issue of whether the failure to conduct fair and effective investigation amounts to a violation of or threat to the right to life, liberty and security, viz:

The Rule on the Writ of Amparo explicitly states that the violation of or threat to the right to life, liberty and security may be caused by either an act or an omission of a public official. Moreover, in the context of amparo proceedings, responsibility may refer to the participation of the respondents, by action or omission, in enforced disappearance. Accountability, on the other hand, may attach to respondents 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.

In this regard, we emphasize our ruling in Secretary of National Defense v. Manalo that the right to security of a person includes the positive obligation of the government to ensure the observance of the duty to investigate, viz:

Third, the right to security of person is a guarantee of protection of one's rights by the government. In the context of the writ of Amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State guarantees full respect for human rights under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case, viz:

(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 as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.

Similarly, the European Court of Human Rights (ECHR) has interpreted the right to security not only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to liberty. The ECHR interpreted the right to security of person under Article 5(1) of the European Convention of Human Rights in the leading case on disappearance of persons, Kurt v. Turkey. In this case, the claimant's son had been arrested by state authorities and had not been seen since. The family's requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son's right to security of person. The ECHR ruled, viz:

... any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.

In the instant case, this Court rules that respondents in G.R. No. 191805 are responsible or accountable for the violation of Rodriguezs right to life, liberty and security on account of their abject failure to conduct a fair and effective official investigation of his ordeal in the hands of the military. Respondents Gen. Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt. Col. Mina only conducted a perfunctory investigation, exerting no efforts to take Ramirezs account of the events into consideration. Rather, these respondents solely relied on the reports and narration of the military. The ruling of the appellate court must be emphasized:

In this case, respondents Ibrado, Verzosa, Bangit, Tolentino, Santos, De Vera, and Mina are accountable, for while they were charged with the investigation of the subject incident, the investigation they conducted and/or relied on is superficial and one-sided. The records disclose that the military, in investigating the incident complained of, depended on the Comprehensive Report of Noriel Rodriguez @Pepito prepared by 1Lt. Johnny Calub for the Commanding Officer of the 501^st Infantry Brigade, 5^th Infantry Division, Philippine Army. Such report, however, is merely based on the narration of the military. No efforts were undertaken to solicit petitioners version of the subject incident and no witnesses were questioned regarding the alleged abduction of petitioner.

Clearly, the absence of a fair and effective official investigation into the claims of Rodriguez violated his right to security, for which respondents in G.R. No. 191805 must be held responsible or accountable. (Emphasis supplied.)

Following the ruling in Rodriguez, an explicit finding by the majority that respondents conducted a superficial and ineffective investigation should be enough basis to hold them responsible or accountable for the disappearance of Balao under the Rule on the Writ of Amparo.

D. Presidential immunity from suit

The majority Decision states that former President Gloria Macapagal-Arroyo (former President Arroyo) should have been accorded presidential immunity, as she was the incumbent President when the present Petitions were filed. This position is not in accord with the ruling of this Court in Estrada v. Desierto,[12] in which it was explicitly held that a non-sitting President does not enjoy immunity from suit even for acts committed during the latters tenure, viz:

We reject [Estradas] argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 Recognizing that the Impeachment Court is Functus Officio. Since the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz:

. . . . . . . . .

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgment of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts.

This is in accord with our ruling in In Re: Saturnino Bermudez that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure but not beyond.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser.

Indeed, a critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. Nixon, US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to obstruct justice and other offenses which were committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the 1972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. In the 1982 case of Nixon v. Fitzgerald, the US Supreme Court further held that the immunity of the President from civil damages covers only official acts. Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones where it held that the US President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct.[13] (Emphasis supplied.)

In this Courts Resolution in Estrada v. Desierto,[14] it was emphasized that presidential immunity from suit exists only in concurrence with the Presidents incumbency:

Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His arguments are merely recycled and we need not prolong the longevity of the debate on the subject. In our Decision, we exhaustively traced the origin of executive immunity in our jurisdiction and its bends and turns up to the present time. We held that given the intent of the 1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner, as a non-sitting President, cannot claim executive immunity for his alleged criminal acts committed while a sitting President. Petitioner's rehashed arguments including their thinly disguised new spins are based on the rejected contention that he is still President, albeit, a President on leave. His stance that his immunity covers his entire term of office or until June 30, 2004 disregards the reality that he has relinquished the presidency and there is now a new de jure President.

Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from suit during his term of office. He buttresses his position with the deliberations of the Constitutional Commission, viz:

Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out this second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the president shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigations, as the President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas:

The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit.

Mr. Suarez:

So there is no need to express it here.

Fr. Bernas:

There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things.

Mr. Suarez:

On the understanding, I will not press for any more query, madam President.

I thank the Commissioner for the clarification.

Petitioner, however, fails to distinguish between term and tenure. The term means the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds office. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent. From the deliberations, the intent of the framers is clear that the immunity of the president from suit is concurrent only with his tenure and not his term.[15] (Emphasis supplied.)

In the present case, the filing of the Petitions during the incumbency of former President Arroyo should not be a reason for according her presidential immunity. Thus, it would be legally imprecise to dismiss the present case as against former President Arroyo on account of presidential immunity from suit. Rather, the dismissal should be on a finding that petitioners in G.R. No. 186050 failed to make allegations or adduce evidence to show her responsibility or accountability for violation of or threat to Balaos right to life, liberty and security.

E. Referral to the trial court for further investigation by the Philippine National Police (PNP) and the Criminal Investigation and Detection Group (CIDG)

The ponencia orders the referral of this case back to the trial court for further investigation by the PNP and CIDG. As previously discussed, an explicit finding of absence of a fair and effective investigation should have been sufficient to grant the privilege of the writ of amparo. After all, there is no finding of criminal, civil or administrative liability in amparo proceedings. In fact, granting the privilege of the writ may include an order instructing respondents to conduct further investigation, if such a directive is deemed as an appropriate remedial measure under the premises to protect the rights under the writ.

In closing, it is worthy to consider that in disposing of cases involving extrajudicial killings and enforced disappearances for which the writ of amparo is sought, this Court must always go back to its pronouncement in Secretary of National Defense emphasizing the twin roles of the writ of amparo. This judicial relief, far from pinning administrative, civil or criminal culpability on respondents, was crafted to serve as a preventive and curative tool to address these human rights violations. Unfortunately, by refusing the maximize the possible measure of remedies allowed under the Rule on the Writ of Amparo and enunciated in domestic and international jurisprudence, the majority Decision ultimately dilutes the power of the writ.

MARIA LOURDES P. A. SERENO

Associate Justice

[1] G..R. No. 180906, 7 October 2008, 568 SCRA 1.

[6] Razon v. Tagitis, G.R. No. 182498, 3 December 2009, 606 SCRA 598; Resolution, 16 February 2010, 612 SCRA 685.

[7] Judgment of 29 July 1988, Inter-Am.Ct.H.R. (Sec. C) No. 4 (1988).

[12] G.R. Nos. 146710-15, 146738, 2 March 2001, 353 SCRA 452.

[14] Resolution in G.R. Nos. 146710-15, 146738, 3 April 2001, 356 SCRA 108.