DISSENTING OPINION http://elibrary.judiciary.gov.ph/decisions.php?doctype=Decisions%20/%20Signed%20Resolutions&docid=13266737331586112301SERENO, 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 disappearanceThe
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
Amparo[5]
prescribes the threshold of substantial evidence as necessary for
establishing the claims of petitioners in G.R. No. 186050. While the
substantial evidence rule remains the standard in amparo proceedings,
flexibility should be observed. Courts must consider evidence adduced in
its totality, including that which would otherwise be deemed
inadmissible if consistent with the admissible evidence adduced.
[6]The ruling of the Inter-American Court of Human Rights in
Velasquez Rodriguez v. Honduras[7]
is worth noting. In that case, the tribunal found that once a pattern
or practice of enforced disappearances supported or tolerated by the
government is established, a present case of disappearance may be linked
to that practice and proven through circumstantial evidence or logical
inference,
viz:
124. The Commission's argument relies upon the proposition that the
policy of disappearances, supported or tolerated by the Government, is
designed to conceal and destroy evidence of disappearances. When the
existence of such a policy or practice has been shown, the disappearance
of a particular individual may be proved through circumstantial or
indirect evidence or by logical inference. Otherwise, it would be impossible to prove that an individual has been disappeared.
. . . . . . . . .
126. The Court finds no reason to consider the Commission's argument inadmissible. If
it can be shown that there was an official practice of disappearances
in Honduras, carried out by the Government or at least tolerated by it,
and if the disappearance of Manfredo 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. Cadapan[8]
gives guidance as to how the ostensible difference between command
responsibility, on the one hand, and responsibility and accountability,
on the other, can be reconciled as follows:
[C]ommand responsibility may be loosely applied in amparo cases in order to identify
those accountable individuals that have the power to effectively
implement whatever processes an amparo court would issue. In such application, the amparo court does not impute criminal responsibility but merely pinpoint the superiors it considers to be in the best position to protect the rights of the aggrieved party.
Such
identification of the responsible and accountable superiors may well be
a preliminary determination of criminal liability which, of course, is
still subject to further investigation by the appropriate government
agency. (Emphasis supplied.)
Further, in
Noriel Rodriguez v. Arroyo,[9] this Court unanimously ruled in this manner:
Although
originally used for ascertaining criminal complicity, the command
responsibility doctrine has also found application in civil cases for
human rights abuses. In the United States, for example, command
responsibility was used in Ford v. Garcia and Romagoza v. Garcia – civil
actions filed under the Alien Tort Claims Act and the Torture Victim
Protection Act. This development in the use of command responsibility in
civil proceedings shows that the application of this doctrine has been
liberally extended even to cases not criminal in nature. Thus, it is our
view that command responsibility may likewise find application in
proceedings seeking the privilege of the writ of amparo. As we held in
Rubrico:
It may plausibly be contended that command
responsibility, as legal basis to hold military/police commanders liable
for extra-legal killings, enforced disappearances, or threats, may
be made applicable to this
jurisdiction on the theory that the
command responsibility doctrine now constitutes a principle of
international law or customary international law in accordance with the
incorporation clause of the Constitution.
… … …
If
command responsibility were to be invoked and applied to these
proceedings, it should, at most, be only to determine the author who, at
the first instance, is accountable for, and has the duty to address,
the disappearance and harassments complained of, so as to enable the
Court to devise remedial measures that may be appropriate under the
premises to protect rights covered by the writ of amparo. As intimated
earlier, however, the determination should not be pursued to fix
criminal liability on respondents preparatory to criminal prosecution,
or as a prelude to administrative disciplinary proceedings under
existing administrative issuances, if there be any. (Emphasis supplied.)
Precisely
in the case at bar, the doctrine of command responsibility may be used
to determine whether respondents are accountable for and have the duty
to address the abduction of Rodriguez in order to enable the courts to
devise remedial measures to protect his rights. Clearly, nothing
precludes this Court from applying the doctrine of command
responsibility in amparo proceedings to ascertain responsibility and
accountability in extrajudicial killings and enforced disappearances.
… … …
As earlier pointed out, amparo
proceedings determine (a) responsibility, or the extent the actors have
been established by substantial evidence to have participated in
whatever way, by action or omission, in an enforced disappearance, and
(b) accountability, or the measure of remedies that should be addressed
to those (i) who exhibited involvement in the enforced disappearance
without bringing the level of their complicity to the level of
responsibility defined above; or (ii) who are imputed with knowledge
relating to the enforced disappearance and who carry the burden of
disclosure; or (iii) those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the enforced
disappearance. Thus, although there is no determination of criminal,
civil or administrative liabilities, the doctrine of command
responsibility may nevertheless be applied to ascertain responsibility
and accountability within these foregoing definitions.
Thus,
the doctrine of command responsibility may be used in amparo
proceedings to the extent of identifying the superiors accountable for
the enforced disappearance or extrajudicial killing, and those who may
be directed to implement the processes and reliefs in the
amparo case.
C. Limited, superficial and one-sided investigationThe
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
Rodriguez[11]
was the issue of whether the failure to conduct fair and effective
investigation amounts to a violation of or threat to the right to life,
liberty and security,
viz:
The Rule on the Writ of Amparo
explicitly states that the violation of or threat to the right to life,
liberty and security may be caused by either an act or an omission of a
public official. Moreover, in the context of amparo proceedings,
responsibility may refer to the participation of the respondents, by
action or omission, in enforced disappearance. Accountability, on the
other hand, may attach to respondents who are imputed with knowledge
relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden
of extraordinary diligence in the investigation of the enforced
disappearance.
In this regard, we emphasize our ruling in Secretary of National Defense v. Manalo
that the right to security of a person includes the positive obligation
of the government to ensure the observance of the duty to investigate, viz:
Third,
the right to security of person is a guarantee of protection of one's
rights by the government. In the context of the writ of Amparo, this
right is built into the guarantees of the right to life and liberty
under Article III, Section 1 of the 1987 Constitution and the right to
security of person (as freedom from threat and guarantee of bodily and
psychological integrity) under Article III, Section 2. The right to
security of person in this third sense is a corollary of the policy that
the State “guarantees full respect for human rights” under Article II,
Section 11 of the 1987 Constitution. As the government is the chief
guarantor of order and security, the Constitutional guarantee of the
rights to life, liberty and security of person is rendered ineffective
if government does not afford protection to these rights especially when
they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances
(or threats thereof) and/or their families, and bringing offenders to
the bar of justice. The Inter-American Court of Human Rights stressed
the importance of investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be ineffective. An
investigation must have an objective and be assumed by the State as its
own legal duty, not as a step taken by private interests that depends
upon the initiative of the victim or his family or upon their offer of
proof, without an effective search for the truth by the government.
… … …
Similarly,
the European Court of Human Rights (ECHR) has interpreted the “right to
security” not only as prohibiting the State from arbitrarily depriving
liberty, but imposing a positive duty on the State to afford protection
of the right to liberty. The ECHR interpreted the “right to security of
person” under Article 5(1) of the European Convention of Human Rights in
the leading case on disappearance of persons, Kurt v. Turkey. In this
case, the claimant's son had been arrested by state authorities and had
not been seen since. The family's requests for information and
investigation regarding his whereabouts proved futile. The claimant
suggested that this was a violation of her son's right to security of
person. The ECHR ruled, viz:
... any deprivation
of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in
keeping with the very purpose of Article 5, namely to protect the
individual from arbitrariness... Having assumed control over that
individual it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the
authorities to take effective measures to safeguard against the risk of
disappearance and to conduct a prompt effective investigation into an
arguable claim that a person has been taken into custody and has not
been seen since.
In the instant case, this Court rules that respondents
in G.R. No. 191805 are responsible or accountable for the violation of
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.
… … …
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 suitThe
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:
. . . . . . . . .
“Mr.
Aquino. On another point, if an impeachment proceeding has been filed
against the President, for example, and the President resigns before
judgment of conviction has been rendered by the impeachment court or by
the body, how does it affect the impeachment proceeding? Will it be
necessarily dropped?
Mr. Romulo. If we decide the purpose of
impeachment to remove one from office, then his resignation would render
the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts.”
This
is in accord with our ruling in In Re: Saturnino Bermudez that
“incumbent Presidents are immune from suit or from being brought to
court during the period of their incumbency and tenure” but not beyond.
… … …
We
now come to the scope of immunity that can be claimed by petitioner as a
non-sitting President. The cases filed against petitioner Estrada are
criminal in character. They involve plunder, bribery and graft and
corruption. By no stretch of the imagination can these crimes,
especially plunder which carries the death penalty, be covered by the
alleged mantle of immunity of a non-sitting president. Petitioner cannot
cite any decision of this Court licensing the President to commit
criminal acts and wrapping him with post-tenure immunity from liability.
It will be anomalous to hold that immunity is an inoculation from
liability for unlawful acts and omissions. The rule is that unlawful
acts of public officials are not acts of the State and the officer who
acts illegally is not acting as such but stands in the same footing as
any other trespasser.
Indeed, a critical reading of current literature on executive immunity will reveal a
judicial disinclination to expand the privilege especially when it
impedes the search for truth or impairs the vindication of a right.
In the 1974 case of US v. Nixon, US President Richard Nixon, a sitting
President, was subpoenaed to produce certain recordings and documents
relating to his conversations with aids and advisers. Seven advisers of
President Nixon's associates were facing charges of conspiracy to
obstruct justice and other offenses which were committed in a burglary
of the Democratic National Headquarters in Washington's Watergate Hotel
during the 1972 presidential campaign. President Nixon himself was named
an unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not subject
to judicial process and that he should first be impeached and removed
from office before he could be made amenable to judicial proceedings.
The claim was rejected by the US Supreme Court. It concluded that “when
the ground for asserting privilege as to subpoenaed materials sought for
use in a criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands of due
process of law in the fair administration of criminal justice.” In the
1982 case of Nixon v. Fitzgerald, the US Supreme Court further held that
the immunity of the President from civil damages covers only “official
acts.” Recently, the US Supreme Court had the occasion to reiterate this
doctrine in the case of Clinton v. Jones where it held that the US
President's immunity from suits for money damages arising out of their
official acts is inapplicable to unofficial conduct.[13] (Emphasis supplied.)
In this 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.
[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.
It
was a splendor to watch the sun set – with the sun fading into the horizon into
a ball of orange, illuminating the graying sky with a bright auburn hue, and be
lost in the flow of tourists and locals relishing the blissful afternoon mood.
Galle
Face was now teeming with families, lovers, tourists and traders. The long
stretch of lawn was full with children (and adults) flying their kites, playing
ball, and vendors selling colorful toys. Parents sat leisurely watching their
children as lovers cuddled and whispered, or promenaded, creating a world of
their own from the otherwise exultant and noisy crowd.
Along
the beach, children and adults frolicked excitedly as the waves caressed the
shore with big splashes of cool water. Some were ecstatic, some were
frightened, and some were just dipping their feet in the water. Most of them
though were dressed from head to toe.
