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Republic of the Philippines EN BANC G.R. No. 183871 : February 18, 2010 LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and MARY JOY RUBRICO CARBONEL, Petitioners, v. 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. 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 191cralaw of the Rule on the Writ of Amparo2cralaw (Amparo Rule), Lourdes D. Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel assail and seek to set aside the Decision3cralaw 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:
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 Lourdes. 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.4cralaw 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 Lourdes and the harassments made to bear on her and her daughters:
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, 2007.7cralaw 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.8cralaw 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 DISMISSINGthe 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 Philippines and the Philippine National Police are directed to ensure that the investigations already commenced are diligently pursued to bring the perpetrators to justice. The Chief of Staff of the Armed Forces of the Philippines and P/Dir. Gen. Avelino Razon are directed to regularly update petitioners and this Court on the status of their investigation. 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.9cralaw 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.10cralaw 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 Lourdes. Their names were not even mentioned in Lourdes Sinumpaang Salaysay 11cralaw of April 2007. The same goes for the respective Sinumpaang Salaysay and/or Karagdagang Sinumpaang Salaysay of Jean12cralaw and Mary Joy.13cralaw 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 Lourdes disappearance or bringing to justice the actual perpetrators of what amounted to a criminal act, albeit there were allegations against P/Insp. Gomez of acts constituting threats against Mary Joy. 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."14cralaw In this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility,15cralaw 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 committedby his subordinates for failing to prevent or punish the perpetrators16cralaw (as opposed to crimes he ordered). The doctrine has recently been codified in the Rome Statute17cralaw of the International Criminal Court (ICC) to which the Philippines is signatory. Sec. 28 of the Statute imposes individual responsibility on military commanders for crimes committed by forces under their control. The country is, however, not yet formally bound by the terms and provisions embodied in this treaty-statute, since the Senate has yet to extend concurrence in its ratification.18cralaw While there are several pending bills on command responsibility,19cralaw there is still no Philippine law that provides for criminal liability under that doctrine.20cralaw 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.21cralaw 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),22cralaw 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."23cralaw 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.24cralaw 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 Lourdes. To a concrete point, petitioners have not shown that the actual perpetrators of the abduction and the harassments that followed formally or informally formed part of either the military or the police chain of command. A preliminary police investigation report, however, would tend to show a link, however hazy, between the license plate (XRR 428) of the vehicle allegedly used in the abduction of Lourdes and the address of Darwin Reyes/Sy, who was alleged to be working in Camp Aguinaldo.25cralaw Then, too, there were affidavits and testimonies on events that transpired which, if taken together, logically point to military involvement in the alleged disappearance of Lourdes, such as, but not limited to, her abduction in broad daylight, her being forcibly dragged to a vehicle blindfolded and then being brought to a place where the sounds of planes taking off and landing could be heard. Mention may also be made of the fact that Lourdes was asked about her membership in the Communist Party and of being released when she agreed to become an "asset." 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 Ciano26cralaw and Technical Sergeant John N. Romano,27cralaw officer-in-charge and a staff of the 301st AISS, respectively, none of the alleged abductors of Lourdes belonged to the 301st AISS based in San Fernando Air Base. Neither were they members of any unit of the Philippine Air Force, per the certification28cralaw of Col. Raul Dimatactac, Air Force Adjutant. And as stated in the challenged CA decision, a verification with the Personnel Accounting and Information System of the PNP yielded the information that, except for a certain Darwin Reyes y Muga, the other alleged abductors, i.e., Cuaresma, Alfaro, Santana and Jonathan, were not members of the PNP. Petitioners, when given the opportunity to identify Police Officer 1 Darwin Reyes y Muga, made no effort to confirm if he was the same Maj. Darwin Reyes a.k.a. Darwin Sy they were implicating in Lourdes abduction. Petitioners, to be sure, have not successfully controverted answering respondents documentary evidence, adduced to debunk the former's allegations directly linking Lourdes abductors and tormentors to the military or the police establishment. We note, in fact, that Lourdes, when queried on cross-examination, expressed the belief that Sy/Reyes was an NBI agent.29cralaw The Court is, of course, aware of what was referred to in Razon30cralaw as the "evidentiary difficulties" presented by the nature of, and encountered by petitioners in, enforced disappearance cases. But it is precisely for this reason that the Court should take care too that no wrong message is sent, lest one conclude that any kind or degree of evidence, even the outlandish, would suffice to secure amparo remedies and protection. 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;31cralaw 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.32cralaw 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 Lourdes and the threats to her family's security. 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 Lourdes and the threats against her daughters. As police officers, though, theirs was the duty to thoroughly investigate the abduction of Lourdes, a duty that would include looking into the cause, manner, and like details of the disappearance; identifying witnesses and obtaining statements from them; and following evidentiary leads, such as the Toyota Revo vehicle with plate number XRR 428, and securing and preserving evidence related to the abduction and the threats that may aid in the prosecution of the person/s responsible. As we said in Manalo ,33cralaw the right to security, as a guarantee of protection by the government, is breached by the superficial and one-sidedhence, ineffectiveinvestigation by the military or the police of reported cases under their jurisdiction. As found by the CA, the local police stations concerned, including P/Supt. Roquero and P/Insp. Gomez, did conduct a preliminary fact-finding on petitioners complaint. They could not, however, make any headway, owing to what was perceived to be the refusal of Lourdes, her family, and her witnesses to cooperate. Petitioners counsel, Atty. Rex J.M.A. Fernandez, provided a plausible explanation for his clients and their witnesses attitude, "[They] do not trust the government agencies to protect them."34cralaw The difficulty arising from a situation where the party whose complicity in extra-judicial killing or enforced disappearance, as the case may be, is alleged to be the same party who investigates it is understandable, though. 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,35cralaw 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 victimor 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 "36cralaw 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 Lourdes. Contrary to petitioners contention, the OMB has taken the necessary appropriate action on said complaint. As culled from the affidavit37cralaw of the Deputy Overall Ombudsman and the joint affidavits38cralaw of the designated investigators, all dated November 7, 2007, the OMB had, on the basis of said complaint, commenced criminal39cralaw and administrative40cralaw proceedings, docketed as OMB-P-C-07-0602-E and OMB-P-A 07-567-E, respectively, against Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The requisite orders for the submission of counter-affidavits and verified position papers had been sent out. 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 judgmentdisposing 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 themhews to the prescription of Sec. 20 of the Amparo Rule on archiving and reviving cases.41cralaw 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.42cralaw It is an extraordinary writ conceptualized and adopted in light of and in response to the prevalence of extra-legal killings and enforced disappearances.43cralaw 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 Lourdes and the harassment and threats on her daughters to individual respondents. To this extent, the dismissal of the case against them is correct and must, accordingly, be sustained. 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 Lourdes have been set in motion. It must be pointed out, though, that the filing44cralaw of the OMB complaint came before the effectivity of the Amparo Rule on October 24, 2007. Second, Sec. 2245cralaw of the Amparo Rule proscribes the filing of an amparo petition should a criminal action have, in the meanwhile, been commenced. The succeeding Sec. 23,46cralaw 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. 647cralaw 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. 48cralaw 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:
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. WE CONCUR: REYNATO S. PUNO
JOSE CATRAL MENDOZA 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 Endnotes:
SEPARATE OPINION CARPIO MORALES, J.: I concur with the ponencia in all respects, except its treatment of the doctrine of command responsibility. The ponencia's ambivalence on the applicability of the doctrine of command responsibility overlooks its general acceptance in public international law, which warrants its incorporation into Philippine law viatheincorporationclauseoftheConstitution. Under Article II, Section 2 of the Constitution, the Philippines adopts the generally accepted principles of international law as part of the law of the land. Based on the clarification provided by then Commissioner Adolfo Azcuna, now a retired member of this Court, during the deliberations of the Constitutional Commission, the import of this provision is that the incorporatedlawwouldhavetheforceofastatute.1cralaw The most authoritative enumeration of the sources of international law, Article 38 of the Statute of the International Court of Justice (ICJ Statute),2cralaw does not specifically include "generally accepted principles of international law." To be sure, it is not quite the same as the "general principles of law" recognized under Article 38(1)(c) of the ICJ Statute. Renowned publicist Ian Brownlie suggested, however, that "general principles of international law" may refer to rules of customary law, to general principles of law as in Article 38(1)(c), or to logical propositions resulting from judicial reasoning on the basis of existing international law and municipal analogies.3cralaw Indeed, judicialreasoninghasbeenthebedrockofPhilippinejurisprudenceonthedeterminationofgenerallyacceptedprinciplesofinternationallawandconsequentapplicationoftheincorporationclause. In Kuroda v. Jalandoni,4cralaw the Court held that while the Philippines was not a signatory to the Hague Convention and became a signatory to the Geneva Convention only in 1947, a Philippine Military Commission had jurisdiction over war crimes committed in violation of the two conventions before 1947. The Court reasoned that the rules and regulations of the Hague and Geneva Conventions formed part of generally accepted principles of international law. Kuroda thus recognized that principles of customary international law do not cease to be so, and are in fact reinforced, when codified in multilateral treaties. In International School Alliance of Educators v. Quisumbing,5cralaw the Court invalidated as discriminatory the practice of International School, Inc. of according foreign hires higher salaries than local hires. The Court found that, among other things, there was a general principle against discrimination evidenced by a number of international conventions proscribing it, which had been incorporated as part of national laws through the Constitution. The Court thus subsumes within the rubric of "generally accepted principles of international law" both "international custom" and "general principles of law," two distinct sources of international law recognized by the ICJ Statute. Respecting the doctrine of command responsibility, a careful scrutiny of its origin and development shows that it is a widely accepted general principle of law if not, also, an international custom. The doctrine of command responsibility traces its roots to the laws of war and armed combat espoused by ancient civilizations. In a 1439 declaration of Charles VII of Orleans, for instance, he proclaimed in his Ordinances for the Armies: [T] he King orders each captain or lieutenant be held responsible for the abuses, ills, and offences committed by members of his company, and that as soon as he receives any complaint concerning any such misdeed or abuse, he bring the offender to justice so that the said offender be punished in a manner commensurate with his offence, according to these Ordinances. Ifhefailstodosoorcoversupthemisdeedor delays taking action, or if, because of his negligence or otherwise, the offender escapes and thus evades punishment, the captain shall be deemed responsible for the offence, as if he has committed itx x x .6cralaw (underscoring supplied.) The first treaty codification of the doctrine of command responsibility was in the Hague Convention IV of 1907.7cralaw A provision therein held belligerent nations responsible for the acts of their armed forces,8cralaw prefiguring the modern precept of holding superiors accountable for the crimes of subordinates if they fail in their duties of control, which is anchored firmly in customary international law.9cralaw The development of the command responsibility doctrine is largely attributable to the cases related to World War II and subsequent events. One prominent case is the German High Command Case10cralaw tried by the Nuremberg Tribunal, wherein German officers were indicted for atrocities allegedly committed in the European war. Among the accused was General Wilhelm Von Leeb, who was charged with implementing Hitler's Commissar and Barbarossa Orders, which respectively directed the murder of Russian political officers and maltreatment of Russian civilians. Rejecting the thesis that a superior is automatically responsible for atrocities perpetrated by his subordinates, the tribunal acquitted Von Leeb. It acknowledged, however, that a superior's negligence may provide a proper basis for his accountability even absent direct participation in the commission of the crimes. Thus: [C] riminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutescriminal negligenceon his part. (underscoring supplied.) In In re Yamashita,11cralaw the issue was framed in this wise: The question then is whether the law of war imposes on an army commander a dutyto take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified actswhich are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result. (emphasis, underscoring and italics supplied.) Resolving the issue in the affirmative, the Court found General Tomoyuki Yamashita guilty of failing to control the members of his command who committed war crimes, even without any direct evidence of instruction or knowledge on his part. The post-World War II formulation of the doctrine of command responsibility then came in Protocol I of 1977, Additional Protocol to the Geneva Conventions12cralaw of 1949, Article 86 of which provides:
The doctrine of command responsibility has since been invariably applied by ad hoc tribunals created by the United Nations for the prosecution of international crimes, and it remains codified in the statutes of all major international tribunals.14cralaw From the foregoing, it is abundantly clear that there is a long-standing adherence by the international community to the doctrine of command responsibility, which makes it a general principle of law recognized by civilized nations. As such, it should be incorporated into Philippine law as a generally accepted principle of international law. While the exact formulation of the doctrine of command responsibility varies in different international legal instruments, the variance is more apparent than real. The Court should take judicial notice of the core element that permeates these formulations a commander's negligence in preventing or repressing his subordinates commission of the crime, or in bringing them to justice thereafter. Such judicial notice is but a necessary consequence of the application of the incorporation clause vis-à-vis the rule on mandatory judicial notice of international law.15cralaw That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or administrative liability should not abate the applicability of the doctrine of command responsibility. Taking Secretary of National Defense v. Manalo16cralaw and Razon v. Tagitis17cralaw in proper context, they do not preclude the application of the doctrine of command responsibility to Amparo cases. Manalo was actually emphatic on the importance of the right to security of person and its contemporary signification as a guarantee of protection of one's rights by the government. It further stated that 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.18cralaw Tagitis, on the other hand, cannot be more categorical on the application, at least in principle, of the doctrine of command responsibility: Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extraordinary diligence that the Amparo Rule requires. We hold these organizations accountable through their incumbent Chiefs who, under this Decision, shall carry the personal responsibility of seeing to it that extraordinary diligence, in the manner the Amparo Rule requires, is applied in addressing the enforced disappearanceof Tagitis. (emphasis and underscoring supplied.) Neither does Republic Act No. 985119cralaw emasculate the applicability of the command responsibility doctrine to Amparo cases. The short title of the law is the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity." Obviously, it should, as it did, only treat of superior responsibility as a ground for criminal responsibility for the crimes covered.20cralaw Such limited treatment, however, is merely in keeping with the statute's purpose and not intended to rule out the application of the doctrine of command responsibility to other appropriate cases. Indeed, one can imagine the innumerable dangers of insulating high-ranking military and police officers from the coverage of reliefs available under the Rule on the Writ of Amparo. The explicit adoption of the doctrine of command responsibility in the present case will only bring Manalo and Tagitis to their logical conclusion. In fine, I submit that the Court should take this opportunity to state what the law ought to be if it truly wants to make the Writ of Amparo an effective remedy for victims of extralegal killings and enforced disappearances or threats thereof. While there is a genuine dearth of evidence to hold respondents Gen. Hermogenes Esperon and P/Dir. Gen. Avelino Razon accountable under the command responsibility doctrine, the ponencia's hesitant application of the doctrine itself is replete with implications abhorrent to the rationale behind the Rule on the Writ of Amparo. CONCHITA CARPIO MORALES Endnotes:
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