Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 186050 December 13, 2011
ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN BALAO-STRUGAR and BEVERLY LONGID, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, EDUARDO ERMITA, GILBERTO TEODORO, RONALDO PUNO, NORBERTO GONZALES, Gen. ALEXANDER YANO, Gen. JESUS VERZOSA, 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.
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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 VERZOSA, BRIG GEN. REYNALDO MAPAGU, MAJ. GEN. ISAGANI CACHUELA ANDPOL. SR. SUPT. EUGENE MARTIN, Petitioners,
vs.
ARTHUR BALAO, WINSTON BALAO, NONETTE BALAO, JONILYN BALAO-STRUGAR and BEVERLY LONGID, Respondents.
D E C I S I O N
VILLARAMA, JR., J.:
Before us are consolidated appeals under Section 19 of the Rule on the Writ of Amparofrom the January 19, 2009 Judgment1 of the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 63, in Special Proceeding No. 08-AMP-0001, entitled "In the Matter of the Petition for Issuance of Writ of Amparo in favor of James Balao, Arthur Balao, et al. v. Gloria Macapagal-Arroyo, et al." The RTC granted the petition for the writ of amparo but denied the prayer for issuance of inspection, production and witness protection orders.
The Antecedents
On October 8, 2008, Arthur Balao, Winston Balao, Nonette Balao and Jonilyn Balao-Strugar, siblings of James Balao, and Beverly Longid (petitioners), filed with the RTC of La Trinidad, Benguet a Petition for the Issuance of a Writ of Amparo2 in favor of James Balao who was abducted by unidentified armed men on September 17, 2008 in Tomay, La Trinidad, Benguet. Named respondents in the petition were then President Gloria Macapagal-Arroyo, Executive Secretary Eduardo R. Ermita, Defense Secretary Gilberto C. Teodoro, Jr.,Interior and Local Government Secretary Ronaldo V. Puno, National Security Adviser (NSA) Norberto B. Gonzales, Armed Forces of the Philippines (AFP) Chief of Staff Gen. Alexander B. Yano, Philippine National Police (PNP) Police Director General Jesus A. Verzosa, Philippine Army (PA) Chief Brig. Gen. Reynaldo B. Mapagu, PNP Criminal Investigation and Detection Group (PNP-CIDG) Chief Lt. P/Dir. Edgardo Doromal, Northern Luzon Command (NOLCOM) Commander Maj. Gen. Isagani C. Cachuela, PNP-Cordillera Administrative Region Regional Director Police Senior Supt. Eugene Gabriel Martin, the Commanding Officer of the AFP Intelligence Service Unit (AFP-ISU) based in Baguio City and several John Does.
James M. Balao is a Psychology and Economics graduate of the University of the Philippines-Baguio (UP-Baguio). In 1984, he was among those who founded the Cordillera Peoples Alliance (CPA), a coalition of non-government organizations (NGOs) working for the cause of indigenous peoples in the Cordillera Region. As head of CPA’s education and research committee, James actively helped in the training and organization of farmers. He was also the President of Oclupan Clan Association which undertakes the registration and documentation of clan properties to protect their rights over ancestral lands. In 1988, while working for the CPA, he was arrested on the charge of violation of the Anti-Subversion Law but the case was eventually dismissed for lack of evidence.
The testimonies and statements of eyewitnesses established the following circumstances surrounding James’s disappearance:
On September 17, 2008, at around 8:30 in the morning, a man clad in black jacket, black shirt, black visor and gray pants was standing infront of Saymor’s3 Store at Tomay, La Trinidad, Benguet. He had a belt bag and a travelling bag which was placed on a bench. Vicky Bonel was at the time attending to the said store owned by her brother-in-law while Aniceto G. Dawing, Jr. and his co-employee were delivering bakery products thereat. A white van then arrived and stopped infront of the store. Five men in civilian clothes who were carrying firearms alighted from the van and immediately approached the man poking their guns on him. They grabbed and handcuffed him. The man was asking why he was being apprehended. One of the armed men addressed the people witnessing the incident, saying they were policemen. Another warned that no one should interfere because the man was being arrested for illegal drugs. Thereafter, they pushed the man inside the van. One of the armed men went back to the store to get the man’s travelling bag. Before leaving the place, one of the armed men was also heard telling the driver of the van that they are going to proceed to Camp Dangwa (PNP Provincial Headquarters in La Trinidad, Benguet). The van headed towards the direction of La Trinidad town proper. The witnesses later identified the man as James Balao after seeing his photograph which appeared in posters announcing him as missing.
The petition alleged that in May 2008, James reported surveillances on his person to his family, particularly to his sister Nonette Balao (Nonette), and to CPA Chairperson Beverly Longid (Beverly). James supposedly observed certain vehicles tailing him and suspiciously parked outside his residence, one of which was a van with plate number USC 922. He also claimed to have received calls and messages through his mobile phone informing him that he was under surveillance by the PNP Regional Office and the AFP-ISU. To prove the surveillance, the informer gave the exact dates he visited his family, clothes he wore, and dates and times he goes home or visits friends and relatives. Attached to the petition were the affidavits4 of Nonette and Beverly attesting to James’s reports of surveillance to his family and to the CPA.
It was further alleged that on September 17, 2008, around 7:00 in the morning, James sent a text message to Nonette informing her that he was about to leave his rented house in Fairview Central, Baguio City and that he was going to their ancestral residence in Pico, La Trinidad, Benguet to do his laundry. The travel time from Fairview, Baguio City to Pico usually takes only 20 to 45 minutes. Around 8:00 a.m., Nonette, after discovering that James never reached their parents’ house at Pico, started contacting their friends and relatives to ask about James’s whereabouts. No one, however, had any idea where he was.
Thus, the Balao family, with the assistance of the CPA and other NGOs, tried to locate James. Teams were formed to follow James’s route from Fairview, Baguio City to Pico, La Trinidad and people along the way were asked if they happened to see him. These searches, however, yielded negative results. One of the teams also went to the office of the AFP-ISU (PA-ISU) in Navy Base and the office of the Military Intelligence Group in Camp Allen, both in Baguio City, but the personnel in said offices denied any knowledge on James’s whereabouts. The family likewise went to Baguio Police Station 7 to report James’s disappearance. The report was duly entered on the blotter but there have been no developments as of the filing of the petition. They also sought the help of the media to announce James’s disappearance and wrote several government agencies to inform them of his disappearance and enlist their help in locating him.
Petitioners, moreover, enumerated in their petition several incidents of harassments and human rights violations against CPA officers, staff and members.
Contending that there is no plain, speedy or adequate remedy for them to protect James’s life, liberty and security, petitioners prayed for the issuance of a writ of amparo ordering the respondents to disclose where James is detained or confined, to release James, and to cease and desist from further inflicting harm upon his person. They likewise prayed for (1) an inspection order for the inspection of at least 11 military and police facilities which have been previously reported as detention centers for activists abducted by military and police operatives; (2) a production order for all documents that contain evidence relevant to the petition, particularly the Order of Battle List and any record or dossier respondents have on James; and (3) a witness protection order.
Petitioners simultaneously filed an Urgent Ex-Parte Motion5 for the immediate issuance of a writ of amparo pursuant to Section 6 of the Rule on the Writ of Amparo.
On October 9, 2008, the Writ of Amparo6 was issued directing respondents to file their verified return together with their supporting affidavit within five days from receipt of the writ.
Respondents in their Joint Return7 stated: (1) that President Gloria Macapagal-Arroyo is immune from suit and should thus be dropped as party-respondent; (2) that only Arthur Balao should be named petitioner and the rest of the other petitioners dropped; (3) that there is no allegation of specific wrongdoing against respondents that would show their knowledge, involvement or participation in the abduction of James; (4) that Exec. Sec. Ermita, Sec. Teodoro, Sec. Puno, Sec. Gonzales, Gen. Yano, Gen. Cachuela, Gen. Mapagu and Gen. Verzosa in their respective affidavits denied having such participation or knowledge of James’s abduction, set forth their actions taken in investigating the matter and undertaking to continue exerting extraordinary diligence in securing the liberty of James and bring all those responsible for his disappearance to the bar of justice, including military or police personnel when warranted by the findings of the investigations; (5) that Supt. Martin already ordered an investigation, came up with interviews of several witnesses, and held a dialogue with the Commander of the Military Intelligence Group I (MIG1) and the Commanding Officer of the Internal Service Unit-Internal Security Group, Philippine Army;and (6) that petitioners themselves did not cooperate with police authorities in the investigation and neither did they ask the National Bureau of Investigation to locate James.
Respondents contended that the petition failed to meet the requirement in the Rule on the Writ of Amparo that claims must be established by substantial evidence considering that: (1) petitioners’ allegations do not mention in anyway the manner, whether directly or indirectly, the alleged participation of respondents in the purported abduction of James; (2) Nonette and Beverly do not have personal knowledge of the circumstances surrounding the abduction of James, hence, their statements are hearsay with no probative value; and (3) the allegations in the petition do not show the materiality and relevance of the places sought to be searched/inspected and documents to be produced, specifically the requirement that the prayer for an inspection order shall be supported by affidavits or testimonies of witnesses having personal knowledge of the whereabouts of the aggrieved party.
Respondents further argued that it is the PNP as the law enforcement agency, and not the respondent military and executive officials, which has the duty to investigate cases of missing persons. At most, the AFP may inquire on the matters being alluded to them as may be ordered by the proper superior, which is primarily done for possible court martial proceedings. Hence, their common denials of having any knowledge, participation or authorization for the alleged disappearance of James Balao. Nonetheless, respondents executed their affidavits to show the actions they have taken and reports submitted to them by the proper authorities, as follows:
Executive Secretary Ermitastated that upon receipt of copy of the petition for a writ of amparo, he caused the issuance of a letter addressed to the PNP Chief and AFP Chief of Staff for the purpose of inquiring and establishing the circumstances surrounding the alleged disappearance of James Balao, and which letters also called for the submission of pertinent reports on the results of the investigation conducted, if any.8
Secretary Teodoro declared that soon after the promulgation by this Court of the Rule on the Writ of Amparo, he issued "Policy Directive on the Actions and Defenses Under the Amparo Rule" which instructed members of the AFP to undertake specific measures even without waiting for the filing of an amparo petition in court whenever any member of the AFP or any of its commands or units have been reported or published as being involved in the alleged violation of an individual’s right to life, liberty and security or threat thereof, as a preparatory step in the filing of a verified return as required by A.M. No. 07-9-12-SC. The AFP was therein also directed to immediately coordinate with the PNP, NBI, DOJ and other government agencies in the attainment of the desired actions in the event a petition is filed. Said policy directive was contained in his Memorandum dated October 31, 2007 to the Chief of Staff, AFP, and there is no reason for him to doubt that the AFP will comply with it insofar as the present petition for writ of amparo is concerned.9
Secretary Puno confirmed receipt of a copy of the petition and said he will write to the PNP Chief to call for pertinent reports relative to the circumstances of the alleged "taking" of the person in whose favor the writ of amparo was sought. He undertook to make available any report he will receive from the PNP on the matter.10
NSA Gonzales asserted that as a public officer, he is presumed to have performed his duties in accordance with law, which presumption remains undisturbed amid gratuitous assumptions and conclusions in the petition devoid of factual and legal basis. Upon receipt of a copy of the petition, he caused to be issued letters/communications to the Director General of the National Intelligence Coordinating Agency, the PNP Chief and the AFP Chief of Staff for the purpose of making active inquiries and establishing the circumstances of the alleged disappearance insofar as the possible involvement of military/police personnel is concerned. He undertook to provide the material results of investigations conducted or to be conducted by the concerned agencies.11
General Yano narrated that prior to the receipt of a copy of the petition, he received a memorandum from the Department of National Defense transmitting the letter of Bayan Muna Representative Teodoro A. Casiño inquiring about the alleged abduction of James Balao. On the basis of said memo, he directed by radio message the NOLCOM Commander to conduct a thorough investigation on the matter and to submit the result thereof to the AFP General Headquarters. This was also done in compliance with the Policy Directive issued by Defense Secretary Teodoro. He reiterated his October 6, 2008 directive to the PA Commanding General in another radio message dated October 16, 2008. He undertook to provide the court with material results of the investigations conducted by the concerned units as soon as the same are received by Higher Headquarters.12
Lt. Gen. Cachuela said that even prior to the receipt of a copy of the petition, he was already directed by Higher Headquarters to conduct a thorough investigation on the alleged abduction of James Balao. Acting on said directive, he in turn directed the 5th Infantry Division, PA to investigate the matter since the place of the commission of the abduction is within its area of responsibility. He undertook to furnish the court with a copy of the result of the investigation conducted or to be conducted, as soon as NOLCOM receives the same.13
BGen. Mapagu on his part declared that there is nothing in the allegations of the petition that would show the involvement of the PA in the reported disappearance of James Balao. He claimed that he immediately called the attention of the "concerned staff" to give some information regarding the case and directed them to submit a report if they are able to obtain information.14
Pol. Dir. General Verzosa set forth the actions and steps taken by the PNP, particularly the PNP Regional Office-Cordillera (PRO-COR) headed by PCSupt. Eugene Martin, being the lead PNP unit investigating the case of James Balao.15
Pol. Chief Supt. Martin recounted that in the afternoon of September 17, 2008, CPA Chairperson Beverly Longid called up and informed him of the disappearance of James. On September 20, 2008, he was informed that James was allegedly missing and immediately ordered the Office of the Regional Intelligence Division (RID) to send flash alarm to all lower units to look for and locate James Balao. This was followed by a Memorandum with his picture and description. Upon his orders, Police Station 1 of the Baguio City Police Office (BCPO) immediately conducted inquiries at the boarding house of James at Barangay Fairview, Baguio City. Likewise, he ordered the creation of Task Force Balao to fast track the investigation of the case. He further instructed the RID to exert all efforts and supervise all lower units to intensify their investigation and ascertain the whereabouts and other circumstances surrounding the disappearance of James. Results of the investigations conducted were set forth in his affidavit. He had constant coordination with the CPA leaders and Balao family who divulged the plate numbers of vehicles allegedly observed by James prior to his disappearance as conducting surveillance on his person. Upon verification with the Land Transportation Office, the said vehicles were found to be registered under the following persons: TNH 787 – Narciso Magno of #20 Darasa, Tanauan, Batangas; and USC 922 – G & S Transport Corp. On October 6, 2008, he received information regarding an abduction incident in Tomay, La Trinidad whereupon he ordered the Provincial Director of Benguet to conduct an in-depth investigation; said investigation disclosed that the person abducted was indeed James. On October 8, 2008, Task Force Balao with the help of the CPA and Balao family were able to convince two witnesses in the abduction incident in Tomay, La Trinidad, Benguet to shed light on the incident; as a result, cartographic sketches of the suspects were made. In the morning of October 9, 2008, he presided over a dialogue which was attended by the Group Commander, MIG1 and Commanding Officer of ISU, ISG and PA, for the coordinated efforts to locate James. In the afternoon of the same day, he met with the family and relatives of James to inform them of initial efforts and investigation of the case. The Task Force Balao was also able to secure the affidavits of witnesses Aniceto Dawing and Vicky Bonel, and invited some members of the CPA who retrieved James’s personal belongings in Fairview, Baguio City and his companions prior to his disappearance on September 17, 2008 to appear before the Task Force Balao for some clarifications but none of them appeared. The case is still under follow-up and continuing investigation to know what really happened, identify the abductors, determine the real motive for the abduction and file the necessary charges in court against those responsible.16
Also attached to the Return are the more detailed reports (with attached affidavits of other witnesses) dated October 14, 2008 and October 6, 2008 submitted by Task Force Balao Commander P/S Supt. Fortunato B. Albas to the PNP Cordillera Regional Director. Pertinent portions of the two reports read:
x x x x
2. Inquiries conducted from Mr. Zusimo Unarosa, a resident of Nr 126, Purok 3, Central Fairview, Baguio City, claimed that on the 1st week of September 2008, he frequently observed two (2) unidentified male persons aged 50-70 years old and about 5’1" to 5’5" in height, bringing boxes from the house, the contents of which could not be determined. However, averred that these two (2) male personalities are not familiar in the barangay. He further stated that he had never seen a van conducting surveillance on the house and have not heard of any incident of kidnapping or abduction in the community.
3. Mr[.] Anselmo Alukim, a neighbor, residing adjacent to the house of the subject, when interviewed, averred that he observed some unidentified male and female persons visiting the said house.
4. Interview conducted on Mr[.] Danny Griba, a resident of said barangay averred that James Balao is not a resident or occupant of the said house and claimed that he only saw the subject last summer and stated there are five (5) unidentified persons occupying the said house. He further stated that three (3) male persons aged 40 to 50 years old and a female aged between 20-30 years old goes out during day time with several boxes and returns at about 6:00 PM to 7:00 PM on board a taxi cab again with some boxes of undetermined contents.
5. Mrs[.] Corazon Addun, resident of Nr 114, Purok 3, Central Fairview, Baguio City averred that the subject is not residing in the said place and saw him only once, sometime on April 2008. She further narrated that a certain Uncle John aged 40 to 50 years old and a male person aged 20 to 30 are among the occupants of said house. Accordingly, on September 21, 2008, Uncle John went to the house of Mrs. Addun and over a cup of coffee told her that he will be going to Sagada, Mountain Province purposely to locate a missing colleague who was sent there. Accordingly[,] he received a phone call that his missing colleague (James Balao) did not reach the municipality and reported missing. After that short talk, she never saw Uncle John again. Additionally, she did not notice any vehicle conducting surveillance therein and any unusual incidents that transpired in said place.
x x x x
7. This office has likewise coordinated with MIG-1 and ISU, ISG, PA but both offices denied any knowledge on the alleged abduction of James Balao.
8. It was found out that it was SPO4 Genero Rosal, residing within the vicinity, who followed-up the incident because it was reported to him by his neighbors. That after he learned about [James’ abduction], he contacted PDEA, La Trinidad PS, RID ad Intel BPPO to verify if they had an operation in Tomay, La Trinidad but all of them answered negative.
x x x x17
x x x x
3. A photocopy of the photograph of James Balao was presented to the witnesses wherein they confirmed that the picture is the same person who was arrested and handcuffed. Another witness divulged that prior to the arrest of the person in the picture/photograph, a red motorcycle with two (2) male riders allegedly conducted surveillance along the highway about ten (10) meters away from the place where the victim was picked-up. Minutes later, a white Mitsubishi Adventure arrived and took the victim inside the car. The motorcycle riding in tandem followed the Mitsubushi Adventure en route to Camp Dangwa, La Trinidad, Benguet. Another witness overheard one of the abductors instructing the driver to quote "pare sa Camp Dangwa tayo."
4. Follow[-]up investigation resulted in the identification of a certain "KULOT" who also witnessed the alleged abduction. However, he was hesitant to talk and instead pointed to the driver of the delivery van of Helen’s Bread. At about 8:30 AM of October 9, 2008, Aniceto Dawing Jr[.] y Gano, the driver of the delivery van of Helen’s Bread, surfaced and gave his statements on what he witnessed on the alleged abduction.
5. On October 12, 2008, one Vicky Bonel y Felipe, 19 years old, single, native of Atok, Benguet, resident of Tomay, LTB and store keeper of Saymor[’s] Store appeared before the office of Benguet PPO and gave her sworn statement on the alleged abduction. A cartographic sketch was made on the person who identified himself as policeman. She further stated that it was when while she was tending her brother-in-law’s store, gun-wielding men, of about six or more, handcuffed and shove the victim inside their vehicle. She recalled that she can recognize the abductors if she can see them again.
6. Another witness stated that she was preparing her merchandise in the waiting shed of Lower Tomay when she noticed a parked motorcycle beside the elementary school at about 7:00 AM of September 17, 2008. The rider of the bike was suspiciously scouring the area and kept on calling someone from his cellular phone before the abduction was made.
7. Baguio City Police Office conducted follow-up investigation and were able to secure affidavit of Florence Luken y Mayames, 47 years old, married, and a resident of 135 Central Fairview averred that James Balao together with a certain Uncle John about 65-75 years old, about 5’4" in height and a certain Rene about 30-35 years old and stands 5’5", were her neighbors for almost one year. She further stated that James Balao and company do not mingle with their neighbors and only one person is usually left behind while James and Rene goes out at 6:00 or 7:00 AM and goes back at around 6:00 or 7:00 PM.
She further averred that she did not notice any van or any kind of vehicle parked along the roadside infront of any residence not his neighbors nor any person or persons observing the occupants of the said house. Accordingly, at around 1:00 PM of September 26, 2008, a closed van (Ca[n]ter) with unknown plate number was seen parked infront of the said house and more or less (10) unidentified male person[s] aging from 20-23 and an unidentified female entered the alleged rented house of James Balao and took some table, chairs and cabinets then left immediately to unknown destination.
8. Mrs[.] Mina Cabati Serdan the owner of the house being rented by James Balao averred that sometime May of 2007, a certain Mr[.] June, a realtor agent, recommended to her that a certain James Balao will rent the house for one (1) year term with an agreed monthly rent of fifteen thousand pesos (P15,000.00). She stated that James Balao had extended his stay for almost 4 months. On the last week of August 2008, Mrs[.] Serdan called up James Balao through phone to inform him that she will terminate his stay at the rented house on September 30, 2008. Mrs[.] Serdan further stated that [she]visited the rented house only twice and that was the only time she saw James Balao with an unidentified companions.
That she only discovered that James Balao was missing when a certain Carol informed her that he was missing. [Sh]e further stated that she visited her house and found out that the said occupants have already left on September 26, 2008 and discovered that all personal belongings of the occupants have already been taken out by the relatives.
x x x x
VI. ACTIONS TAKEN:
1. That a composite team "TASK FORCE BALAO" from this office and the Regional Headquarters headed by [P/S SUPT] FORTUNATO BASCO ALBAS was formed.
2. That the composite team of investigators conducted ocular inspection on the area.
3. On October 8, 2008, two (2) witnesses namely: Marjore Domingo Hipolito and Jenny Lynn Malondon Valdez gave their sworn statements and cartographic sketch of one of the abductors.
4. On the morning of October 9, 2008, a dialogue was presided by RD, PRO-COR and attended by the Group Commander, MIG1 and Commanding Officer of ISU, SG, PA. Both commanders denied the accusations against them.
5. In the afternoon of the same day, a meeting with the family and relatives of James Balao was again presided by RD, PRO-COR wherein the results of the initial efforts and investigation were given to the family. He also reported the surfacing of another two (2) witnesses who described the suspect who handcuffed James Balao.
6. PRO-Cordillera wrote a letter to the Cordillera Peoples Alliance requesting them to present Uncle John, Rene and his other companions who are then residing in the same boarding house including all his companions on September 17, 2008 and prior to his disappearance.
REMARKS:
Case is still under follow-up investigation to identify the alleged abductors to determine the real motive of the abduction and to file necessary charges against them in court.18
During the hearing, the affidavits and testimonies of the following witnesses were presented by petitioners:
Aniceto Dawing19 testified that on September 17, 2008, around 8:00 in the morning, while he was delivering bread at Saymor’s Store in Tomay, La Trinidad, Benguet, a white van stopped infront of them and five armed men alighted. The armed men, who introduced themselves as policemen in Filipino, held and pointed a gun at one male person. The armed men told the male person that he was being apprehended for illegal drugs. They then let the male person board the vehicle and informed him that they will proceed to Camp Dangwa. Dawing admitted that he did not know that it was James whom he saw that time and came to know only of his identity when he saw a poster bearing James’s photograph. On cross-examination, he stated that the white van did not have any markings that it was a police vehicle and that the armed men were in civilian clothes and did not wear any police badges or identification cards. He just assumed that they were policemen because of their posture and haircut and because they introduced themselves as such.
Anvil Lumbag stated in his affidavit20 that he was also at Saymor’s Store in the morning of September 17, 2008 to buy chicken. He said that a ToyotaRevo stopped infront of the store from where four men alighted. The men handcuffed a man who was standing infront of the store and uttered "Walang makikialam, drugs kaso nito" while pointing a gun at the said man. Then, they forced the man to board the Revo. Before the Revo fled, Lumbag heard one of the men say that they will be going to Camp Dangwa. Lumbag’s affidavit, however, did not mention if it was James who was forcibly taken by the armed men.
Beverly Longid21 testified that she got to know James when she was a member of the CPA youth organization in her student days. Every time James will have an activity that is CPA-related, he would coordinate with Beverly, she being the CPA chair. She also testified that prior to his disappearance, the last time she talked with James was in July or August of 2008 when he reported surveillances on his person by the PNP and the AFP. In her affidavit, she alleged that James reported to her several vehicles tailing him, one of which was a green van with plate number USC 922, the same plate number she had seen at the Intelligence Security Unit in Navy Base, Baguio City, and which was attached to a silver grey van.
Beverly admitted that at the time of the alleged abduction, she was in Baguio City, at the Office of the Cordillera People’s Legal Center and that she only came to know that James was missing in the afternoon of September 18, 2008. She also confirmed that they met with Pol. Supt. Martin to seek assistance regarding James’s disappearance.
Nonette Balao22 testified that she was at her bakeshop located in Km. 4, La Trinidad, Benguet in the morning of September 17, 2008. At around 6:30 a.m., she received a text message from James saying that he will be going home to their ancestral home to do some laundry. Thirty minutes later, she received another text message from James saying that he was already leaving his place in Fairview, Baguio City. When around 8:00 a.m. James had not yet arrived at their ancestral home, she got worried. She texted him but failed to get a reply, so she tried to call him. His phone, however, had already been turned off. She then called the CPA office to check if James was there. She was told that he was not there so she went to James’s house in Fairview at around 9:00 a.m. James’s housemates, however, told her that he left at 7:00 a.m.
Nonette also testified that they only reported James’s disappearance to the police on September 20, 2008 because they thought that it was necessary that a person be missing for at least 48 hours before the disappearance could be reported. They went to Sub-Station Police Precinct No. 1 in Baguio and to the police precinct in La Trinidad to report the matter. They also went to Camp Dangwa to see if James was there.
Nonette claimed that she became worried because James never switched off his mobile phone and since he already texted her that he was coming home, he could have texted again if there was a change of plans. Also, James had told them since April 2008 that he had been under surveillance. She does not know why James went to Tomay, La Trinidad.
Samuel Anongos stated in his affidavit23 that he is a member of the Education Commission of the CPA. He claimed that when they conducted trainings and educational discussions on mining education in Abra, members of the AFP harassed the community and committed various human rights violations. The AFP also allegedly held community meetings where they said that the CPA is part of the New People’s Army. Attached to Anongos’s affidavit is a copy of a paper that the AFP was allegedly distributing. It shows the organizational structure of the Communist Party of the Philippines-New People’s Army (CPP-NPA) wherein CPA was identified as one of the organizations under the National Democratic Front (NDF).24
RTC Ruling
On January 19, 2009, the RTC issued the assailed judgment, disposing as follows:
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered:
ISSUE a Writ of Amparo Ordering the respondents to (a) disclose where James Balao is detained or confined, (b) to release James Balao considering his unlawful detention since his abduction and (c) to cease and desist from further inflicting harm upon his person; and
DENY the issuance of INSPECTION ORDER, PRODUCTION ORDER and WITNESS PROTECTION ORDER for failure of herein Petitioners to comply with the stringent provisions on the Rule on the Writ of Amparo and substantiate the same.25
In denying respondents’ prayer that President Arroyo be dropped as party-respondent, the RTC held that a petition for a writ of amparo is not "by any stretch of imagination a niggling[,] vexing or annoying court case"26 from which she should be shielded. The RTC ruled that said petition is nothing more than a tool to aid the president to guarantee that laws on human rights are devotedly and staunchly carried out. It added that those who complain against naming the president as party-respondent are only those who "either do not understand what the Writ of Amparo is all about or who do not want to aid Her Excellency in her duty to supervise and control the machinery of government."27
In upholding the standing of James’s siblings and Beverly to file the petition, the RTC held that what Section 2 of the Rule on the Writ of Amparorules out is the right to file similar petitions, meaning there could be no successive petitions for the issuance of a writ of amparo for the same party.
The RTC further held that "more likely than not," the motive for James’s disappearance is his activist/political leanings and that James’s case is one of an enforced disappearance as defined under the Rule on the Writ of Amparo. In so ruling, the RTC considered (1) the several incidents of harassment mentioned in Beverly’s testimony and enumerated in the petition; and (2) the references in the petition to the CPA as a front for the CPP-NPA.
The RTC likewise ruled that the government unmistakably violated James’s right to security of person. It found the investigation conducted by respondents as very limited, superficial and one-sided. The police and military thus miserably failed to conduct an effective investigation of James’s abduction as revealed by the investigation report of respondents’ own witnesses, Supt. Martin and P/S Supt. Fortunato Basco Albas, the Commander of Task Force Balao. It further noted that respondents did not investigate the military officials believed to be behind the abduction as said military officials were merely invited to a dialogue and there was no investigation made in Camp Dangwa where the abductors were believed to have taken James as narrated by the witnesses. Moreover, the RTC observed that despite the undertaking of respondents to investigate the abduction and provide results thereof, four months have passed but petitioners have not been furnished reports regarding the investigation.
As to the denial of the interim reliefs, the RTC stated that the stringent provisions of the rules were not complied with and granting said reliefs might violate respondents’ constitutional rights and jeopardize State security.
Both parties appealed to this Court.
The Consolidated Petitions
Petitioners, in G.R. No. 186050, question the RTC’s denial of the interim reliefs.
Respondents, on the other hand, assail in their petition in G.R. No. 186059, the issuance of the writ of amparo. They raise the following arguments:
I
THE TRIAL COURT’S JUDGMENT ORDERING RESPONDENT-PETITIONERS TO: (A) DISCLOSE WHERE JAMES BALAO IS DETAINED AND CONFINED; (B) TO RELEASE JAMES BALAO CONSIDERING HIS UNLAWFUL DETENTION SINCE HIS "ABDUCTION" AND (C) TO CEASE AND DESIST FROM FURTHER INFLICTING HARM UPON HIS PERSON IS BASED PURELY ON CONJECTURES, SURMISES AND HEARSAY EVIDENCE; HENCE, IT MUST BE SET ASIDE.
II
RESPONDENT-PETITIONERS HAD PROVEN THAT THEY OBSERVED EXTRAORDINARY DILIGENCE AS REQUIRED BY APPLICABLE LAWS, RULES AND REGULATIONS IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES.
III
THE FACTUAL CIRCUMSTANCES AND THE EVIDENCE PRESENTED IN THE MANALO CASE ARE TOTALLY DIFFERENT FROM THE CASE AT BAR; HENCE, THE TRIAL COURT GROSSLY ERRED IN APPLYING THE RULING THEREIN TO THE CASE AT BAR.
IV
THE TRIAL COURT CORRECTLY DENIED PETITIONER-RESPONDENTS’ PRAYER FOR THE ISSUANCE OF AN INSPECTION ORDER, PRODUCTION ORDER AND A WITNESS PROTECTION ORDER.28
Our Ruling
The Rule on the Writ of Amparo was promulgated on October 24, 2007 amidst rising incidence of "extralegal killings" and "enforced disappearances." It was formulated in the exercise of this Court’s expanded rule-making power for the protection and enforcement of constitutional rights enshrined in the 1987 Constitution, albeit limited to these two situations. "Extralegal killings" refer to killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.29 On the other hand, "enforced disappearances" are attended by the following characteristics: an arrest, detention, or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such person outside the protection of law.30
Section 18 of the Amparo Rule provides:
SEC. 18. Judgment. - The court shall render judgment within ten (10) days from the time the petition is submitted for decision. 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 supplied.)
The threshold issue in this case is whether the totality of evidence satisfies the degree of proof required by the Amparo Rule to establish an enforced disappearance.
In granting the privilege of the writ of amparo, the trial court ratiocinated:
On record is evidence pointing to the more likely than not motive for James Balao’s disappearance – his activist/political leanings. This is shown by the several incidents relating to harassments of activists as mentioned in the unrebutted testimony of Beverly Longid and the enumeration made in par. 48 (a) to (cc) of the petition. There were also references in the petition’s pars. 52 et. seq. to the CPA (of which James Balao was an active staff) as a front organization of the Communist Party of the Philippines-New People’s Army. More likely than not he was not taken to parts unknown for reasons other than his involvement in the CPA, that is, politically-motivated. The Court considers these facts enough circumstances to establish substantial evidence of an enforced disappearance as defined under the Rule on the Writ of Amparo. For after all, substantial evidence requires nothing greater than "more likely than not" degree of proof.31 (Emphasis supplied.)
The trial court gave considerable weight to the discussion in the petition of briefing papers supposedly obtained from the AFP (Oplan Bantay-Laya implemented since 2001) indicating that the anti-insurgency campaign of the military under the administration of President Arroyo included targeting of identified legal organizations under the NDF, which included the CPA, and their members, as "enemies of the state." The petition cited other documents confirming such "all-out war" policy which resulted in the prevalence of extrajudicial killings: namely, the published reports of the Melo Commission and the UNHRC’s Special Rapporteur on Extrajudicial Summary or Arbitrary Executions, Mr. Philip Alston. The petition also enumerated previously documented cases of extralegal killings of activists belonging to militant groups, including CPA leaders and workers, almost all of which have been preceded by surveillance by military or police agents and acts of harassment. Consequently, petitioners postulated that the surveillance on James and his subsequent abduction are interconnected with the harassments, surveillance, threats and political assassination of other members and officers of CPA which is his organization.
We hold that such documented practice of targeting activists in the military’s counter-insurgency program by itself does not fulfill the evidentiary standard provided in the Amparo Rule to establish an enforced disappearance.
In the case of Roxas v. Macapagal-Arroyo,32 the Court noted that the similarity between the circumstances attending a particular case of abduction with those surrounding previous instances of enforced disappearances does not, necessarily, carry sufficient weight to prove that the government orchestrated such abduction. Accordingly, the trial court in this case cannot simply infer government involvement in the abduction of James from past similar incidents in which the victims also worked or affiliated with the CPA and other left-leaning groups.
The petition further premised government complicity in the abduction of James on the very positions held by the respondents, stating that --
The abduction of James Balao can only be attributed to the Respondents who have command responsibility of all the actions of their subordinates and who are the primary persons in the implementation of the government’s all out war policy.33 (Emphasis supplied.)
The Court in Rubrico v. Macapagal-Arroyo34 had the occasion to expound on the doctrine of command responsibility and why it has little bearing, if at all, 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." In this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility, foreshadowing the present-day precept of holding a superior accountable for the atrocities committed by his subordinates should he be remiss in his duty of control over them. As then formulated, command responsibility is "an omission mode of individual criminal liability," whereby the superior is made responsible for crimes committed by his subordinates for failing to prevent or punish the perpetrators (as opposed to crimes he ordered).
The doctrine has recently been codified in the Rome Statute 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.
While there are several pending bills on command responsibility, there is still no Philippine law that provides for criminal liability under that doctrine.
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. 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), 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." 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 extrajudicial killings]; it determines responsibility, or at least accountability, for the enforced disappearance [threats thereof or extrajudicial killings] for purposes of imposing the appropriate remedies to address the disappearance [or extrajudicial killings].
x x x x
As the law now stands, extrajudicial 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. x x x35
Subsequently, we have clarified that the inapplicability of the doctrine of command responsibility in an amparo proceeding does not, by any measure, preclude impleading military or police commanders on the ground that the complained acts in the petition were committed with their direct or indirect acquiescence. Commanders may therefore be impleaded—not actually on the basis of command responsibility—but rather on the ground of their responsibility, or at least accountability.36
In Razon, Jr. v. Tagitis,37 the Court defined responsibility and accountability as these terms are applied to amparo proceedings, as follows:
x x x 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 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. Accountability, on the other hand, 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. x x x38 (Emphasis supplied.)
Assessing the evidence on record, we find that the participation in any manner of military and police authorities in the abduction of James has not been adequately proven. The identities of the abductors have not been established, much less their link to any military or police unit. There is likewise no concrete evidence indicating that James is being held or detained upon orders of or with acquiescence of government agents. Consequently, the trial court erred in granting amparo reliefs by ordering the respondent officials (1) to disclose where James Balao is detained or confined, (2) to release him from such detention or confinement, and (3) to cease and desist from further inflicting harm upon his person. Such pronouncement of responsibility on the part of public respondents cannot be made given the insufficiency of evidence.39 However, we agree with the trial court in finding that the actions taken by respondent officials are "very limited, superficial and one-sided." Its candid and forthright observations on the efforts exerted by the respondents are borne by the evidence on record, thus:
x x x the violation of the right to security as protection by the government is unmistakable. The police and the military miserably failed in conducting an effective investigation of James Balao’s abduction as revealed by the investigation report of respondent’s own witnesses Honorable Chief Superintendent Eugene Martin and Honorable Senior Superintendent Fortunato Albas. The investigation was – to use the words in The Secretary of National Defense, et. al., v. Manalo et. al. – "verylimited, superficial and one-sided."
The actions taken were simply these: (a) organization of the "Task Force Balao"; (b) conduct of ocular inspection at the place of abduction; (c) taking of sworn statements of civilian witnesses, whose testimonies did not prove much as shown by the continued disappearance of James Balao; (d) dialogue with implicated military officials as well as family members and friends of James Balao; and (e) writing of letter to the CPA. The Court does not want to second-guess police protocols in investigation but surely some things are amiss where the investigation DID NOT INVESTIGATE the military officials believed to be behind the abduction as they were merely invited to a dialogue and where the investigation DID NOT LEAD to Camp Dangwa where the abductors were supposed to have proceeded as narrated by the witnesses. To the mind of this Court, there is a seeming prejudice in the process of investigation to pin suspects who are not connected with the military establishments. By any measure, this cannot be a thorough and good faith investigation but one that falls short of that required by the Writ of Amparo.40
Respondents reiterate that they did their job the best they could and fault the petitioners instead for their non-cooperation which caused delay in the investigation. They particularly blamed Beverly who failed to attend the October 15, 2008 invitation to appear before the investigators and shed light on James’s disappearance.
We are not persuaded.
First, the Task Force Balao had acknowledged the fact that Pol. Chief Supt. Martin was already in constant coordination with the Balao family and CPA, and hence the investigators could have readily obtained whatever information they needed from Beverly. Pol. Chief Supt. Martin even mentioned in his affidavit that Task Force Balao was able to secure the testimonies of two eyewitnesses with the help of Beverly and the Balao family, and that as a result cartographic sketches were made of some suspects.41 Moreover, Beverly had explained during the cross-examination conducted by Associate Solicitor Paderanga that she was at the time coordinating with national and local agencies even as the police investigation was ongoing.42 There is nothing wrong with petitioners’ simultaneous recourse to other legal avenues to gain public attention for a possible enforced disappearance case involving their very own colleague. Respondents should even commend such initiative that will encourage those who may have any information on the identities and whereabouts of James’s abductors to help the PNP in its investigation.
Assuming there was reluctance on the part of the Balao family and CPA to submit James’s relatives or colleagues for questioning by agents of the PNP and AFP, they cannot be faulted for such stance owing to the military’s perception of their organization as a communist front: ergo, enemies of the State who may be targeted for liquidation. But more important, such non-cooperation provides no excuse for respondents’ incomplete and one-sided investigations. As we held in Rubrico v. Macapagal-Arroyo43 :
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, the right to security, as a guarantee of protection by the government, is breached by the superficial and one-sided––hence, ineffective––investigation 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.The difficulty arising from a situation where the party whose complicity in extrajudicial 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, in which the Inter-American Court of Human Rights pronounced:
"[The duty to investigate] must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not a step taken by private interests that depends upon the initiative of the victim or his family or upon offer of proof, without an effective search for the truth by the government."44 (Emphasis supplied.)1avvphi1
Indeed, why zero in on James’s own kin and colleagues when independent eyewitnesses already provided firsthand accounts of the incident, as well as descriptions of the abductors? With the cartographic sketches having been made from interviews and statements of witnesses, the police investigators could have taken proper steps to establish the personal identities of said suspects and yet this was not done, the police investigators not even lifting a finger to ascertain whether the cartographic sketches would match with any enlisted personnel of AFP and PNP, or their civilian agents/assets. As to the vehicles, the plate numbers of which have earlier been disclosed by James to his family and the CPA as used in conducting surveillance on him prior to his abduction, the military merely denied having a vehicle with such plate number on their property list despite the fact that the same plate number (USC 922) was sighted attached to a car which was parked at the PA-ISU compound in Navy Base, Baguio City. As to the other plate number given by James (TNH 787), while the police investigators were able to verify the name and address of the registered owner of the vehicle, there is no showing that said owner had been investigated or that efforts had been made to locate the said vehicle. Respondents’ insistence that the CPA produce the alleged companions of James in his rented residence for investigation by the PNP team, while keeping silent as to why the police investigators had not actively pursued those evidentiary leads provided by eyewitnessesand the Balao family, only reinforce the trial court’s observation that the investigators are seemingly intent on building up a case against other persons so as to deflect any suspicion of military or police involvement in James Balao’s disappearance.
In view of the foregoing evidentiary gaps, respondents clearly failed to discharge their burden of extraordinary diligence in the investigation of James’s abduction. Such ineffective investigation extant in the records of this case prevents us from completely exonerating the respondents from allegations of accountability for James’ disappearance. The reports submitted by the PNP Regional Office, Task Force Balao and Baguio City Police Station do not contain meaningful results or details on the depth and extent of the investigation made. In Razon, Jr. v. Tagitis, the Court observed that such reports of top police officials indicating the personnel and units they directed to investigate can never constitute exhaustive and meaningful investigation, or equal detailed investigative reports of the activities undertaken to search for the victim.45 In the same case we stressed that the standard of diligence required – the duty of public officials and employees to observe extraordinary diligence – called for extraordinary measures expected in the protection of constitutional rights and in the consequent handling and investigation of extra-judicial killings and enforced disappearance cases.
As to the matter of dropping President Arroyo as party-respondent, though not raised in the petitions, we hold that the trial court clearly erred in holding that presidential immunity cannot be properly invoked in an amparo proceeding. As president, then President Arroyo was enjoying immunity from suit when the petition for a writ of amparo was filed. Moreover, the petition is bereft of any allegation as to what specific presidential act or omission violated or threatened to violate petitioners’ protected rights.46
In order to effectively address thru the amparo remedy the violations of the constitutional rights to liberty and security of James who remains missing to date, the Court deems it appropriate to refer this case back to the trial court for further investigation by the PNP and CIDG and monitoring of their investigative activities that complies with the standard of diligence required by the Amparo Rule. Section 24 of Republic Act No. 6975, otherwise known as the "PNP Law"47 specifies the PNP as the governmental office with the mandate to "[i]nvestigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution." The trial court should further validate the results of such investigations and actions through hearings it may deem necessary to conduct.
Lastly, on the denial of the prayer for interim reliefs under the Amparo Rule.
An inspection order is an interim relief designed to give support or strengthen the claim of a petitioner in an amparo petition, in order to aid the court before making a decision.48 A basic requirement before an amparo court may grant an inspection order is that the place to be inspected is reasonably determinable from the allegations of the party seeking the order.49 In this case, the issuance of inspection order was properly denied since the petitioners specified several military and police establishments based merely on the allegation that the testimonies of victims and witnesses in previous incidents of similar abductions involving activists disclosed that those premises were used as detention centers. In the same vein, the prayer for issuance of a production order was predicated on petitioners’ bare allegation that it obtained confidential information from an unidentified military source, that the name of James was included in the so-called Order of Battle. Indeed, the trial court could not have sanctioned any "fishing expedition" by precipitate issuance of inspection and production orders on the basis of insufficient claims of one party.
Nonetheless, the trial court is not precluded, as further evidence warrants, to grant the above interim reliefs to aid it in making a decision upon evaluation of the actions taken by the respondents under the norm of extraordinary diligence.
WHEREFORE, the petitions in G.R. Nos. 186050 and 186059 are PARTLY GRANTED. The Judgment dated January 19, 2009 of the Regional Trial Court of La Trinidad, Benguet, Branch 63, in Special Proceeding No. 08-AMP-0001 is MODIFIED as follows:
1) REVERSING the grant of the privilege of the writ of amparo;
2) AFFIRMING the denial of the prayer for inspection and production orders, without prejudice to the subsequent grant thereof, in the course of hearing and other developments in the investigations by the Philippine National Police/Philippine National Police Criminal Investigation and Detection Group and the Armed Forces of the Philippines;
3) ORDERING the incumbent Chief of Staff of the Armed Forces of the Philippines, or his successor, and the incumbent Director General of the Philippine National Police, or his successor, to CONTINUE the investigations and actions already commenced by the Philippine National Police Regional Office–Cordillera, Baguio City Police, Northern Luzon Command, Philippine National Police/Philippine National Police Criminal Investigation and Detection Group, Philippine Army-Intelligence Service Unit and other concerned units, and specifically take and continue to take the necessary steps:
(a) to identify the persons described in the cartographic sketches submitted by Task Force Balao;
(b) to locate and search the vehicles bearing the plate numbers submitted by the petitioners and which James Balao had reported to be conducting surveillance on his person prior to his abduction on September 17, 2008, and investigate the registered owners or whoever the previous and present possessors/transferees thereof; and to pursue any other leads relevant to the abduction of James Balao;
The incumbent Armed Forces of the Philippines Chief of Staff, Philippine National Police Director General, or their successors, shall ensure that the investigations and actions of their respective units on the abduction of James Balao are pursued with extraordinary diligence as required by Sec. 17 of the Amparo Rule.
For purposes of these investigations, the Philippine National Police/Philippine National Police Criminal Investigation and Detection Group shall periodically report the detailed results of its investigation to the trial court for its consideration and action. On behalf of this Court, the trial court shall pass upon the sufficiency of their investigative efforts. The Philippine National Police and the Philippine National Police Criminal Investigation and Detection Group shall have six (6) months from notice hereof to undertake their investigations. Within fifteen (15) days after completion of the investigations, the Chief of Staff of the Armed Forces of the Philippines and the DirectorGeneral of the Philippine National Police shall submit a full report of the results of the said investigations to the trial court. Within thirty (30) days thereafter, the trial court shall submit its full reportto this Court.
These directives and those of the trial court made pursuant to this Decision shall be given to, and shall be directly enforceable against, whoever may be the incumbent Armed Forces of the Philippines Chief of Staff, Director General of the Philippine National Police and Chief of the Philippine National Police Criminal Investigation and Detection Group and other concerned units, under pain of contempt from this Court when the initiatives and efforts at disclosure and investigation constitute less than the EXTRAORDINARY DILIGENCE that the Amparo Rule and the circumstances of the case demand; and1awphi1
4) DROPPING former President Gloria Macapagal-Arroyo as party-respondent in the petition for writ of amparo;
This case is hereby REMANDED to the Regional Trial Court of La Trinidad, Benguet, Branch 63 for continuation of proceedings in Special Proceeding No. 08-AMP-0001 for the purposes of monitoring compliance with the above directives and determining whether, in the light of any recent reports or recommendations, there would already be sufficient evidence to hold any of the public respondents responsible, or, at least, accountable. After making such determination, the trial court shall submit its own report and recommendation to this Court for final action. The trial court will continue to have jurisdiction over this case in order to accomplish its tasks under this decision;
Accordingly, the public respondents shall remain personally impleaded in this petition to answer for any responsibilities and/or accountabilities they may have incurred during their incumbencies.
No pronouncement as to costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO
Associate Justice |
PRESBITERO J. VELASCO, JR.
Associate Justice |
TERESITA J. LEONARDO-DE CASTRO
Associate Justice |
ARTURO D. BRION
Associate Justice |
DIOSDADO M. PERALTA
Associate Justice |
LUCAS P. BERSAMIN
Associate Justice |
MARIANO C. DEL CASTILLO
Associate Justice |
ROBERTO A. ABAD
Associate Justice |
JOSE PORTUGAL PEREZ
Associate Justice |
JOSE CATRAL MENDOZA
Associate Justice |
MARIA LOURDES P. A. SERENO
Associate Justice |
BIENVENIDO L. REYES
Associate Justice |
ESTELA M. PERLAS-BERNABE
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify 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.
RENATO C. CORONA
Chief Justice
Footnotes
1 Rollo (G.R. No. 186050), Vol. I, pp. 26-38. Penned by Judge Benigno M. Galacgac.
2 Records, Vol. I, pp. 1-33.
3 Referred to as Seymor’s, Saymor, Saymore and Seymour’s elsewhere in the records.
4 Records, Vol. I, pp. 56-64.
5 Id. at 138-140.
6 Id. at 141-142.
7 Id. at 196-240.
8 Id. at 327-328.
9 Id. at 340-344.
10 Id. at 345-346.
11 Id. at 347-351.
12 Id. at 352-358.
13 Id. at 359-365.
14 Id. at 366.
15 Id. at 367-372.
16 Id. at 248-250.
17 Id. at 259-260.
18 Id. at 251-254.
19 TSN, October 23, 2008, pp. 20-36.
20 Records, Vol. I, pp. 454-455.
21 TSN, October 30, 2008, pp. 3-32.
22 Id. at 32-56.
23 Records, Vol. I, p. 456.
24 Id. at 457.
25 Supra note 1 at 38.
26 Id. at 30.
27 Id. at 31.
28 Rollo (G.R. No. 186059), Vol. II, pp. 1062-1063.
29 As the term is used in United Nations Instruments, A.M. No. 07-9-12-SC, The Rule on the Writ of Amparo Resolution (Booklet), p. 50.
30 As defined in the Declaration on the Protection of All Persons from Enforced Disappearances, id. at 50-51.
31 Rollo (G.R. No. 186050), Vol. I, p. 35.
32 G.R. No. 189155, September 7, 2010, 630 SCRA 211, 233.
33 Records, Vol. I, p. 30.
34 G.R. No. 183871, February 18, 2010, 613 SCRA 233.
35 Id. at 251-254.
36 Roxas v. Macapagal-Arroyo, supra note 32 at 232.
37 G.R. No. 182498, December 3,2009, 606 SCRA 598.
38 Id. at 620-621.
39 Roxas v. Macapagal-Arroyo, supra note 32 at 235.
40 Rollo (G.R. No. 186050), Vol. I, p. 36.
41 Records, Vol. I, p. 249.
42 TSN, October 30, 2008, p. 27.
43 Supra note 34.
44 Id. at 257-259.
45 Supra note 37 at 707.
46 Rubrico v. Macapagal-Arroyo, supra note 34 at 249.
47 An Act Establishing The Philippine National Police Under a Reorganized Department of the Interior and Local Government, and for Other Purposes.
48 Roxas v. Macapagal-Arroyo, supra note 32 at 237, citing Yano v. Sanchez, G.R. No. 186640, February 11, 2010, 612 SCRA 342, 362.
49 Id.
The Lawphil Project - Arellano Law Foundation
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 military’s 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 Amparo5 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. Honduras7 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.
x x x x x x x x x
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 Velásquez 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 group’s 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. Cadapan8 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.
x x x x x x 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. (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.
x x x x x x x x x
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 Court’s ruling in Rodriguez11 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.
x x x x x x x x x
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 Rodriguez’s 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 Ramirez’s 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 501st Infantry Brigade, 5th Infantry Division, Philippine Army. Such report, however, is merely based on the narration of the military. No efforts were undertaken to solicit petitioner’s version of the subject incident and no witnesses were questioned regarding the alleged abduction of petitioner.
x x x x x x x x x
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 latter’s tenure, viz:
We reject [Estrada’s] 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:
x x x x x x x x x
"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.
x x x x x x x x x
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 Court’s Resolution in Estrada v. Desierto,14 it was emphasized that presidential immunity from suit exists only in concurrence with the President’s 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 Balao’s 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
Footnotes
1 G..R. No. 180906, 7 October 2008, 568 SCRA 1.
2 Id at 43.
3 Id.
4 Majority Decision, p. 22.
5 A.M. No. 07-9-12-SC.
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).
8 G.R. Nos. 184461-2, 31 May 2011.
9 G.R. No. 191805, 15 November 2011.
10 Majority Decision, pp. 25 and 28.
11 Supra note 9.
12 G.R. Nos. 146710-15, 146738, 2 March 2001, 353 SCRA 452.
13 Id. at 521-523.
14 Resolution in G.R. Nos. 146710-15, 146738, 3 April 2001, 356 SCRA 108.
15 Id. at 149-150.
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