Republic of the Philippines

SUPREME COURT

Manila

 

 

EN BANC

 

 

LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, and MARY JOY RUBRICO CARBONEL,

Petitioners,

 

 

- versus -

 

 

GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, MAJ. DARWIN SY a.k.a. DARWIN REYES, JIMMY SANTANA, RUBEN ALFARO, CAPT. ANGELO CUARESMA, a certain JONATHAN, P/SUPT. EDGAR B. ROQUERO, ARSENIO C. GOMEZ, and OFFICE OF THE OMBUDSMAN,

Respondents.

 

 

G.R. No. 183871

 

Present:

 

PUNO, C.J.,

CARPIO,

CORONA,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,*

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ, and

MENDOZA, JJ.

 

Promulgated:

 

February 18, 2010

x-----------------------------------------------------------------------------------------x

 

D E C I S I O N

VELASCO, JR., J.:

 

In this petition for review under Rule 45 of the Rules of Court in relation to Section 19[1] of the Rule on the Writ of Amparo[2] (Amparo Rule), Lourdes D. Rubrico, Jean Rubrico Apruebo, and Mary Joy Rubrico Carbonel assail and seek to set aside the Decision[3] of the Court of Appeals (CA) dated July 31, 2008 in CA-G.R. SP No. 00003, a petition commenced under the Amparo Rule.

 

The petition for the writ of amparo dated October 25, 2007 was originally filed before this Court. After issuing the desired writ and directing the respondents to file a verified written return, the Court referred the petition to the CA for summary hearing and appropriate action. The petition and its attachments contained, in substance, the following allegations:

1. On April 3, 2007, armed men belonging to the 301st Air Intelligence and Security Squadron (AISS, for short) based in Fernando Air Base in Lipa City abducted Lourdes D. Rubrico (Lourdes), then attending a Lenten pabasa in Bagong Bayan, Dasmarias, Cavite, and brought to, and detained at, the air base without charges. Following a week of relentless interrogation - conducted alternately by hooded individuals - and what amounts to verbal abuse and mental harassment, Lourdes, chair of the Ugnayan ng Maralita para sa Gawa Adhikan, was released at Dasmarias, Cavite, her hometown, but only after being made to sign a statement that she would be a military asset.

 

After Lourdes release, the harassment, coming in the form of being tailed on at least two occasions at different places, i.e., Dasmarias, Cavite and Baclaran in Pasay City, by motorcycle-riding men in bonnets, continued;

 

2. During the time Lourdes was missing, P/Sr. Insp. Arsenio Gomez (P/Insp. Gomez), then sub-station commander of Bagong Bayan, Dasmarias, Cavite, kept sending text messages to Lourdes daughter, Mary Joy R. Carbonel (Mary Joy), bringing her to beaches and asking her questions about Karapatan, an alliance of human rights organizations. He, however, failed to make an investigation even after Lourdes disappearance had been made known to him;

 

3. A week after Lourdes release, another daughter, Jean R. Apruebo (Jean), was constrained to leave their house because of the presence of men watching them;

 

4. Lourdes has filed with the Office of the Ombudsman a criminal complaint for kidnapping and arbitrary detention and administrative complaint for gross abuse of authority and grave misconduct against Capt. Angelo Cuaresma (Cuaresma), Ruben Alfaro (Alfaro), Jimmy Santana (Santana) and a certain Jonathan, c/o Headquarters 301st AISS, Fernando Air Base and Maj. Sy/Reyes with address at No. 09 Amsterdam Ext., Merville Subd., Paraaque City, but nothing has happened; and the threats and harassment incidents have been reported to the Dasmarias municipal and Cavite provincial police stations, but nothing eventful resulted from their respective investigations.

 

Two of the four witnesses to Lourdes abduction went into hiding after being visited by government agents in civilian clothes; and

 

5. Karapatan conducted an investigation on the incidents. The investigation would indicate that men belonging to the Armed Forces of the Philippines (AFP), namely Capt. Cuaresma of the Philippine Air Force (PAF), Alfaro, Santana, Jonathan and Maj. Darwin Sy/Reyes, led the abduction of Lourdes; that unknown to the abductors, Lourdes was able to pilfer a mission order which was addressed to CA Ruben Alfaro and signed by Capt. Cuaresma of the PAF.

 

The petition prayed that a writ of amparo issue, ordering the individual respondents to desist from performing any threatening act against the security of the petitioners and for the Office of the Ombudsman (OMB) to immediately file an information for kidnapping qualified with the aggravating circumstance of gender of the offended party. It also prayed for damages and for respondents to produce documents submitted to any of them on the case of Lourdes.

 

Before the CA, respondents President Gloria Macapagal-Arroyo, Gen. Hermogenes Esperon, then Armed Forces of the Philippines (AFP) Chief of Staff, Police Director-General (P/Dir. Gen.) Avelino Razon, then Philippine National Police (PNP) Chief, Police Superintendent (P/Supt.) Roquero of the Cavite Police Provincial Office, Police Inspector (P/Insp.) Gomez, now retired, and the OMB (answering respondents, collectively) filed, through the Office of the Solicitor General (OSG), a joint return on the writ specifically denying the material inculpatory averments against them. The OSG also denied the allegations against the following impleaded persons, namely: Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, for lack of knowledge or information sufficient to form a belief as to the allegations truth. And by way of general affirmative defenses, answering respondents interposed the following defenses: (1) the President may not be sued during her incumbency; and (2) the petition is incomplete, as it fails to indicate the matters required by Sec. 5(d) and (e) of the Amparo Rule.[4]

 

Attached to the return were the affidavits of the following, among other public officials, containing their respective affirmative defenses and/or statements of what they had undertaken or committed to undertake regarding the claimed disappearance of Lourdes and the harassments made to bear on her and her daughters:

 

1. Gen. Esperon attested that, pursuant to a directive of then Secretary of National Defense (SND) Gilberto C. Teodoro, Jr., he ordered the Commanding General of the PAF, with information to all concerned units, to conduct an investigation to establish the circumstances behind the disappearance and the reappearance of Lourdes insofar as the involvement of alleged personnel/unit is concerned. The Provost Marshall General and the Office of the Judge Advocate General (JAGO), AFP, also undertook a parallel action.

 

Gen. Esperon manifested his resolve to provide the CA with material results of the investigation; to continue with the probe on the alleged abduction of Lourdes and to bring those responsible, including military personnel, to the bar of justice when warranted by the findings and the competent evidence that may be gathered in the investigation process by those mandated to look into the matter;[5]

 

2. P/Dir. Gen. Razon - stated that an investigation he immediately ordered upon receiving a copy of the petition is on-going vis--vis Lourdes abduction, and that a background verification with the PNP Personnel Accounting and Information System disclosed that the names Santana, Alfaro, Cuaresma and one Jonathan do not appear in the police personnel records, although the PNP files carry the name of Darwin Reyes Y. Muga.

 

Per the initial investigation report of the Dasmarias municipal police station, P/Dir. Gen. Razon disclosed, Lourdes was abducted by six armed men in the afternoon of April 3, 2007 and dragged aboard a Toyota Revo with plate number XRR 428, which plate was issued for a Mitsubishi van to AK Cottage Industry with address at 9 Amsterdam St., Merville Subd., Paraaque City. The person residing in the apartment on that given address is one Darius/Erwin See @ Darius Reyes allegedly working, per the latters house helper, in Camp Aguinaldo.

 

P/Dir. Gen. Razon, however, bemoaned the fact that Mrs. Rubrico never contacted nor coordinated with the local police or other investigating units of the PNP after her release, although she is in the best position to establish the identity of her abductors and/or provide positive description through composite sketching. Nonetheless, he manifested that the PNP is ready to assist and protect the petitioners and the key witnesses from threats, harassments and intimidation from whatever source and, at the same time, to assist the Court in the implementation of its orders.[6]

 

3. P/Supt. Roquero stated conducting, upon receipt of Lourdes complaint, an investigation and submitting the corresponding report to the PNP Calabarzon, observing that neither Lourdes nor her relatives provided the police with relevant information;

 

4. P/Insp. Gomez alleged that Lourdes, her kin and witnesses refused to cooperate with the investigating Cavite PNP; and

 

5. Overall Deputy Ombudsman Orlando Casimiro - alleged that cases for violation of Articles 267 and 124, or kidnapping and arbitrary detention, respectively, have been filed with, and are under preliminary investigation by the OMB against those believed to be involved in Lourdes kidnapping; that upon receipt of the petition for a writ of amparo, proper coordination was made with the Office of the Deputy Ombudsman for the Military and other Law Enforcement Offices (MOLEO) where the subject criminal and administrative complaints were filed.

 

 

Commenting on the return, petitioners pointed out that the return was no more than a general denial of averments in the petition. They, thus, pleaded to be allowed to present evidence ex parte against the President, Santana, Alfaro, Capt. Cuaresma, Darwin Sy, and Jonathan. And with leave of court, they also asked to serve notice of the petition through publication, owing to their failure to secure the current address of the latter five and thus submit, as the CA required, proof of service of the petition on them.

 

The hearing started on November 13, 2007.[7] In that setting, petitioners counsel prayed for the issuance of a temporary protection order (TPO) against the answering respondents on the basis of the allegations in the petition. At the hearing of November 20, 2007, the CA granted petitioners motion that the petition and writ be served by the courts process server on Darwin Sy/Reyes, Santana, Alfaro, Capt. Cuaresma, and Jonathan.

 

The legal skirmishes that followed over the propriety of excluding President Arroyo from the petition, petitioners motions for service by publication, and the issuance of a TPO are not of decisive pertinence in this recital. The bottom line is that, by separate resolutions, the CA dropped the President as respondent in the case; denied the motion for a TPO for the courts want of authority to issue it in the tenor sought by petitioners; and effectively denied the motion for notice by publication owing to petitioners failure to submit the affidavit required under Sec. 17, Rule 14 of the Rules of Court.[8]

 

After due proceedings, the CA rendered, on July 31, 2008, its partial judgment, subject of this review, disposing of the petition but only insofar as the answering respondents were concerned. The fallo of the CA decision reads as follows:

 

WHEREFORE, premises considered, partial judgment is hereby rendered DISMISSING the instant petition with respect to respondent Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Supt. Edgar B. Roquero, P/Sr. Insp. Arsenio C. Gomez (ret.) and the Office of the Ombudsman.

 

Nevertheless, in order that petitioners complaint will not end up as another unsolved case, the heads of the Armed Forces of the Philippines and the Philippine National Police are directed to ensure that the investigations already commenced are diligently pursued to bring the perpetrators to justice. The Chief of Staff of the Armed Forces of the Philippines and P/Dir. Gen. Avelino Razon are directed to regularly update petitioners and this Court on the status of their investigation.

 

SO ORDERED.

 

 

In this recourse, petitioners formulate the issue for resolution in the following wise:

 

WHETHER OR NOT the [CA] committed reversible error in dismissing [their] Petition and dropping President Gloria Macapagal Arroyo as party respondent.

 

 

 

Petitioners first take issue on the Presidents purported lack of immunity from suit during her term of office. The 1987 Constitution, so they claim, has removed such immunity heretofore enjoyed by the chief executive under the 1935 and 1973 Constitutions.

 

Petitioners are mistaken. The presidential immunity from suit remains preserved under our system of government, albeit not expressly reserved in the present constitution. Addressing a concern of his co-members in the 1986 Constitutional Commission on the absence of an express provision on the matter, Fr. Joaquin Bernas, S.J. observed that it was already understood in jurisprudence that the President may not be sued during his or her tenure.[9] The Court subsequently made it abundantly clear in David v. Macapagal-Arroyo, a case likewise resolved under the umbrella of the 1987 Constitution, that indeed the President enjoys immunity during her incumbency, and why this must be so:

 

Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government.[10] x x x

 

 

And lest it be overlooked, the petition is simply bereft of any allegation as to what specific presidential act or omission violated or threatened to violate petitioners protected rights.

 

This brings us to the correctness of the assailed dismissal of the petition with respect to Gen. Esperon, P/Dir. Gen. Razon, P/Supt. Roquero, P/Insp. Gomez, and the OMB.

 

None of the four individual respondents immediately referred to above has been implicated as being connected to, let alone as being behind, the alleged abduction and harassment of petitioner Lourdes. Their names were not even mentioned in Lourdes Sinumpaang Salaysay[11] of April 2007. The same goes for the respective Sinumpaang Salaysay and/or Karagdagang Sinumpaang Salaysay of Jean[12] and Mary Joy.[13]

 

As explained by the CA, Gen. Esperon and P/Dir. Gen. Razon were included in the case on the theory that they, as commanders, were responsible for the unlawful acts allegedly committed by their subordinates against petitioners. To the appellate court, the privilege of the writ of amparo must be denied as against Gen. Esperon and P/Dir. Gen. Razon for the simple reason that petitioners have not presented evidence showing that those who allegedly abducted and illegally detained Lourdes and later threatened her and her family were, in fact, members of the military or the police force. The two generals, the CAs holding broadly hinted, would have been accountable for the abduction and threats if the actual malefactors were members of the AFP or PNP.

 

As regards the three other answering respondents, they were impleaded because they allegedly had not exerted the required extraordinary diligence in investigating and satisfactorily resolving Lourdes disappearance or bringing to justice the actual perpetrators of what amounted to a criminal act, albeit there were allegations against P/Insp. Gomez of acts constituting threats against Mary Joy.

 

While in a qualified sense tenable, the dismissal by the CA of the case as against Gen. Esperon and P/Dir. Gen. Razon is incorrect if viewed against the backdrop of the stated rationale underpinning the assailed decision vis--vis the two generals, i.e., command responsibility. The Court assumes the latter stance owing to the fact that command responsibility, as a concept defined, developed, and applied under international law, has little, if at all, bearing in amparo proceedings.

 

The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats. According to Fr. Bernas, command responsibility, in its simplest terms, means the responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict.[14] In this sense, command responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility,[15] 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[16] (as opposed to crimes he ordered).

The doctrine has recently been codified in the Rome Statute[17] 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.[18]

 

While there are several pending bills on command responsibility,[19] there is still no Philippine law that provides for criminal liability under that doctrine.[20]

 

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.[21] 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),[22] 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.[23] Of the same tenor, and by way of expounding on the nature and role of amparo, is what the Court said in Razon v. Tagitis:

 

It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or extra-judicial killings]; it determines responsibility, or at least accountability, for the enforced disappearance [threats thereof or extra-judicial killings] for purposes of imposing the appropriate remedies to address the disappearance [or extra-judicial killings].

 

x x x x

 

As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws. The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal x x x are matters of substantive law that only the Legislature has the power to enact.[24] x x x

 

If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to administrative disciplinary proceedings under existing administrative issuances, if there be any.

 

Petitioners, as the CA has declared, have not adduced substantial evidence pointing to government involvement in the disappearance of Lourdes. To a concrete point, petitioners have not shown that the actual perpetrators of the abduction and the harassments that followed formally or informally formed part of either the military or the police chain of command. A preliminary police investigation report, however, would tend to show a link, however hazy, between the license plate (XRR 428) of the vehicle allegedly used in the abduction of Lourdes and the address of Darwin Reyes/Sy, who was alleged to be working in Camp Aguinaldo.[25] Then, too, there were affidavits and testimonies on events that transpired which, if taken together, logically point to military involvement in the alleged disappearance of Lourdes, such as, but not limited to, her abduction in broad daylight, her being forcibly dragged to a vehicle blindfolded and then being brought to a place where the sounds of planes taking off and landing could be heard. Mention may also be made of the fact that Lourdes was asked about her membership in the Communist Party and of being released when she agreed to become an asset.

 

Still and all, the identities and links to the AFP or the PNP of the alleged abductors, namely Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes, have yet to be established.

 

Based on the separate sworn statements of Maj. Paul Ciano[26] and Technical Sergeant John N. Romano,[27] officer-in-charge and a staff of the 301st AISS, respectively, none of the alleged abductors of Lourdes belonged to the 301st AISS based in San Fernando Air Base. Neither were they members of any unit of the Philippine Air Force, per the certification[28] of Col. Raul Dimatactac, Air Force Adjutant. And as stated in the challenged CA decision, a verification with the Personnel Accounting and Information System of the PNP yielded the information that, except for a certain Darwin Reyes y Muga, the other alleged abductors, i.e., Cuaresma, Alfaro, Santana and Jonathan, were not members of the PNP. Petitioners, when given the opportunity to identify Police Officer 1 Darwin Reyes y Muga, made no effort to confirm if he was the same Maj. Darwin Reyes a.k.a. Darwin Sy they were implicating in Lourdes abduction.

 

Petitioners, to be sure, have not successfully controverted answering respondents documentary evidence, adduced to debunk the formers allegations directly linking Lourdes abductors and tormentors to the military or the police establishment. We note, in fact, that Lourdes, when queried on cross-examination, expressed the belief that Sy/Reyes was an NBI agent.[29] The Court is, of course, aware of what was referred to in Razon[30] as the evidentiary difficulties presented by the nature of, and encountered by petitioners in, enforced disappearance cases. But it is precisely for this reason that the Court should take care too that no wrong message is sent, lest one conclude that any kind or degree of evidence, even the outlandish, would suffice to secure amparo remedies and protection.

 

Sec. 17, as complemented by Sec. 18 of the Amparo Rule, expressly prescribes the minimum evidentiary substantiation requirement and norm to support a cause of action under the Rule, thus:

 

Sec. 17. Burden of Proof and Standard of Diligence Required.The parties shall establish their claims by substantial evidence.

 

x x x x

 

Sec. 18. Judgment.x x x If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (Emphasis added.)

 

 

Substantial evidence is more than a mere imputation of wrongdoing or violation that would warrant a finding of liability against the person charged;[31] it is more than a scintilla of evidence. It means such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might opine otherwise.[32] Per the CAs evaluation of their evidence, consisting of the testimonies and affidavits of the three Rubrico women and five other individuals, petitioners have not satisfactorily hurdled the evidentiary bar required of and assigned to them under the Amparo Rule. In a very real sense, the burden of evidence never even shifted to answering respondents. The Court finds no compelling reason to disturb the appellate courts determination of the answering respondents role in the alleged enforced disappearance of petitioner Lourdes and the threats to her familys security.

 

Notwithstanding the foregoing findings, the Court notes that both Gen. Esperon and P/Dir. Gen. Razon, per their separate affidavits, lost no time, upon their receipt of the order to make a return on the writ, in issuing directives to the concerned units in their respective commands for a thorough probe of the case and in providing the investigators the necessary support. As of this date, however, the investigations have yet to be concluded with some definite findings and recommendation.

 

As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied that they have no direct or indirect hand in the alleged enforced disappearance of Lourdes and the threats against her daughters. As police officers, though, theirs was the duty to thoroughly investigate the abduction of Lourdes, a duty that would include looking into the cause, manner, and like details of the disappearance; identifying witnesses and obtaining statements from them; and following evidentiary leads, such as the Toyota Revo vehicle with plate number XRR 428, and securing and preserving evidence related to the abduction and the threats that may aid in the prosecution of the person/s responsible. As we said in Manalo,[33] the right to security, as a guarantee of protection by the government, is breached by the superficial and one-sidedhence, ineffectiveinvestigation by the military or the police of reported cases under their jurisdiction. As found by the CA, the local police stations concerned, including P/Supt. Roquero and P/Insp. Gomez, did conduct a preliminary fact-finding on petitioners complaint. They could not, however, make any headway, owing to what was perceived to be the refusal of Lourdes, her family, and her witnesses to cooperate. Petitioners counsel, Atty. Rex J.M.A. Fernandez, provided a plausible explanation for his clients and their witnesses attitude, [They] do not trust the government agencies to protect them.[34] The difficulty arising from a situation where the party whose complicity in extra-judicial killing or enforced disappearance, as the case may be, is alleged to be the same party who investigates it is understandable, though.

 

The seeming reluctance on the part of the Rubricos or their witnesses to cooperate ought not to pose a hindrance to the police in pursuing, on its own initiative, the investigation in question to its natural end. To repeat what the Court said in Manalo, the right to security of persons is a guarantee of the protection of ones 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,[35] 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. (Emphasis added.)

 

 

This brings us to Mary Joys charge of having been harassed by respondent P/Insp. Gomez. With the view we take of this incident, there is nothing concrete to support the charge, save for Mary Joys bare allegations of harassment. We cite with approval the following self-explanatory excerpt from the appealed CA decision:

 

 

In fact, during her cross-examination, when asked what specific act or threat P/Sr. Gomez (ret) committed against her or her mother and sister, Mary Joy replied None [36]

 

Similarly, there appears to be no basis for petitioners allegations about the OMB failing to act on their complaint against those who allegedly abducted and illegally detained Lourdes. Contrary to petitioners contention, the OMB has taken the necessary appropriate action on said complaint. As culled from the affidavit[37] of the Deputy Overall Ombudsman and the joint affidavits[38] of the designated investigators, all dated November 7, 2007, the OMB had, on the basis of said complaint, commenced criminal[39] and administrative[40] proceedings, docketed as OMB-P-C-07-0602-E and OMB-P-A 07-567-E, respectively, against Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The requisite orders for the submission of counter-affidavits and verified position papers had been sent out.

 

The privilege of the writ of amparo, to reiterate, is a remedy available to victims of extra-judicial killings and enforced disappearances or threats of similar nature, regardless of whether the perpetrator of the unlawful act or omission is a public official or employee or a private individual.

At this juncture, it bears to state that petitioners have not provided the CA with the correct addresses of respondents Cuaresma, Alfaro, Santana, Jonathan, and Sy/Reyes. The mailed envelopes containing the petition for a writ of amparo individually addressed to each of them have all been returned unopened. And petitioners motion interposed before the appellate court for notice or service via publication has not been accompanied by supporting affidavits as required by the Rules of Court. Accordingly, the appealed CA partial judgmentdisposing of the underlying petition for a writ of amparo without (1) pronouncement as to the accountability, or lack of it, of the four non-answering respondents or (2) outright dismissal of the same petition as to themhews to the prescription of Sec. 20 of the Amparo Rule on archiving and reviving cases.[41] Parenthetically, petitioners have also not furnished this Court with sufficient data as to where the afore-named respondents may be served a copy of their petition for review.

 

Apart from the foregoing considerations, the petition did not allege ultimate facts as would link the OMB in any manner to the violation or threat of violation of the petitioners rights to life, liberty, or personal security.

 

The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and security of persons, free from fears and threats that vitiate the quality of this life.[42] It is an extraordinary writ conceptualized and adopted in light of and in response to the prevalence of extra-legal killings and enforced disappearances.[43] Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the indiscriminate filing of amparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations.

 

In their petition for a writ of amparo, petitioners asked, as their main prayer, that the Court order the impleaded respondents to immediately desist from doing any acts that would threaten or seem to threaten the security of the Petitioners and to desist from approaching Petitioners, x x x their residences and offices where they are working under pain of contempt of [this] Court. Petitioners, however, failed to adduce the threshold substantive evidence to establish the predicate facts to support their cause of action, i.e., the adverted harassments and threats to their life, liberty, or security, against responding respondents, as responsible for the disappearance and harassments complained of. This is not to say, however, that petitioners allegation on the fact of the abduction incident or harassment is necessarily contrived. The reality on the ground, however, is that the military or police connection has not been adequately proved either by identifying the malefactors as components of the AFP or PNP; or in case identification is not possible, by showing that they acted with the direct or indirect acquiescence of the government. For this reason, the Court is unable to ascribe the authorship of and responsibility for the alleged enforced disappearance of Lourdes and the harassment and threats on her daughters to individual respondents. To this extent, the dismissal of the case against them is correct and must, accordingly, be sustained.

 

Prescinding from the above considerations, the Court distinctly notes that the appealed decision veritably extended the privilege of the writ of amparo to petitioners when it granted what to us are amparo reliefs. Consider: the appellate court decreed, and rightly so, that the police and the military take specific measures for the protection of petitioners right or threatened right to liberty or security. The protection came in the form of directives specifically to Gen. Esperon and P/Dir. Gen. Razon, requiring each of them (1) to ensure that the investigations already commenced by the AFP and PNP units, respectively, under them on the complaints of Lourdes and her daughters are being pursued with urgency to bring to justice the perpetrators of the acts complained of; and (2) to submit to the CA, copy furnished the petitioners, a regular report on the progress and status of the investigations. The directives obviously go to Gen. Esperon in his capacity as head of the AFP and, in a sense, chief guarantor of order and security in the country. On the other hand, P/Dir. Gen. Razon is called upon to perform a duty pertaining to the PNP, a crime-preventing, investigatory, and arresting institution.

 

As the CA, however, formulated its directives, no definitive time frame was set in its decision for the completion of the investigation and the reportorial requirements. It also failed to consider Gen. Esperon and P/Dir. Gen. Razons imminent compulsory retirement from the military and police services, respectively. Accordingly, the CA directives, as hereinafter redefined and amplified to fully enforce the amparo remedies, are hereby given to, and shall be directly enforceable against, whoever sits as the commanding general of the AFP and the PNP.

 

At this stage, two postulates and their implications need highlighting for a proper disposition of this case.

 

First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention rooted in the same acts and incidents leading to the filing of the subject amparo petition has been instituted with the OMB, docketed as OMB-P-C-O7-0602-E. The usual initial steps to determine the existence of a prima facie case against the five (5) impleaded individuals suspected to be actually involved in the detention of Lourdes have been set in motion. It must be pointed out, though, that the filing[44] of the OMB complaint came before the effectivity of the Amparo Rule on October 24, 2007.

 

Second, Sec. 22[45] of the Amparo Rule proscribes the filing of an amparo petition should a criminal action have, in the meanwhile, been commenced. The succeeding Sec. 23,[46] on the other hand, provides that when the criminal suit is filed subsequent to a petition for amparo, the petition shall be consolidated with the criminal action where the Amparo Rule shall nonetheless govern the disposition of the relief under the Rule. Under the terms of said Sec. 22, the present petition ought to have been dismissed at the outset. But as things stand, the outright dismissal of the petition by force of that section is no longer technically feasible in light of the interplay of the following factual mix: (1) the Court has, pursuant to Sec. 6[47] of the Rule, already issued ex parte the writ of amparo; (2) the CA, after a summary hearing, has dismissed the petition, but not on the basis of Sec. 22; and (3) the complaint in OMB-P-C-O7-0602-E named as respondents only those believed to be the actual abductors of Lourdes, while the instant petition impleaded, in addition, those tasked to investigate the kidnapping and detention incidents and their superiors at the top. Yet, the acts and/or omissions subject of the criminal complaint and the amparo petition are so linked as to call for the consolidation of both proceedings to obviate the mischief inherent in a multiplicity-of-suits situation.

 

Given the above perspective and to fully apply the beneficial nature of the writ of amparo as an inexpensive and effective tool to protect certain rights violated or threatened to be violated, the Court hereby adjusts to a degree the literal application of Secs. 22 and 23 of the Amparo Rule to fittingly address the situation obtaining under the premises. [48] Towards this end, two things are at once indicated: (1) the consolidation of the probe and fact-finding aspects of the instant petition with the investigation of the criminal complaint before the OMB; and (2) the incorporation in the same criminal complaint of the allegations in this petition bearing on the threats to the right to security. Withal, the OMB should be furnished copies of the investigation reports to aid that body in its own investigation and eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be given easy access to all pertinent documents and evidence, if any, adduced before the CA. Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E, should be allowed, if so minded, to amend her basic criminal complaint if the consolidation of cases is to be fully effective.

 

 

WHEREFORE, the Court PARTIALLY GRANTS this petition for review and makes a decision:

(1) Affirming the dropping of President Gloria Macapagal-Arroyo from the petition for a writ of amparo;

 

(2) Affirming the dismissal of the amparo case as against Gen. Hermogenes Esperon, and P/Dir. Gen. Avelino Razon, insofar as it tended, under the command responsibility principle, to attach accountability and responsibility to them, as then AFP Chief of Staff and then PNP Chief, for the alleged enforced disappearance of Lourdes and the ensuing harassments allegedly committed against petitioners. The dismissal of the petition with respect to the OMB is also affirmed for failure of the petition to allege ultimate facts as to make out a case against that body for the enforced disappearance of Lourdes and the threats and harassment that followed; and

 

(3) Directing the incumbent Chief of Staff, AFP, or his successor, and the incumbent Director-General of the PNP, or his successor, to ensure that the investigations already commenced by their respective units on the alleged abduction of Lourdes Rubrico and the alleged harassments and threats she and her daughters were made to endure are pursued with extraordinary diligence as required by Sec. 17[49] of the Amparo Rule. They shall order their subordinate officials, in particular, to do the following:

 

(a) Determine based on records, past and present, the identities and locations of respondents Maj. Darwin Sy, a.k.a. Darwin Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and one Jonathan; and submit certifications of this determination to the OMB with copy furnished to petitioners, the CA, and this Court;

 

(b) Pursue with extraordinary diligence the evidentiary leads relating to Maj. Darwin Sy and the Toyota Revo vehicle with Plate No. XRR 428; and

(c) Prepare, with the assistance of petitioners and/or witnesses, cartographic sketches of respondents Maj. Sy/Reyes, Jimmy Santana, Ruben Alfaro, Capt. Angelo Cuaresma, and a certain Jonathan to aid in positively identifying and locating them.

 

The investigations shall be completed not later than six (6) months from receipt of this Decision; and within thirty (30) days after completion of the investigations, the Chief of Staff of the AFP and the Director-General of the PNP shall submit a full report of the results of the investigations to the Court, the CA, the OMB, and petitioners.

 

This case is accordingly referred back to the CA for the purpose of monitoring the investigations and the actions of the AFP and the PNP.

 

Subject to the foregoing modifications, the Court AFFIRMS the partial judgment dated July 31, 2008 of the CA.

 

SO ORDERED.

 

 

PRESBITERO J. VELASCO, JR.

Associate Justice

 

 

 

 

 

 

 

 

 

 

WE CONCUR:

 

 

REYNATO S. PUNO

Chief Justice

 

 

 

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

 

 

 

CONCHITA CARPIO MORALES ANTONIO EDUARDO B. NACHURA

Associate Justice Associate Justice

 

 

 

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION

Associate Justice Associate Justice

 

 

 

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

 

 

 

 

MARIANO C. DEL CASTILLO ROBERTO A. ABAD

Associate Justice Associate Justice

 

 

 

 

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

 

 

 

 

JOSE CATRAL MENDOZA

Associate Justice

 

 

 

 

 

C E R T I F I C A T I O N

 

 

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

 

 

 

REYNATO S. PUNO

Chief Justice

 



* No part.

[1] SEC. 19. Appeal. Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. x x x

[2] A.M. No. 07-9-12-SC.

[3] Penned by Associate Justice Edgardo P. Cruz (now retired) and concurred in by Associate Justices Fernanda Lampas-Peralta and Normandie Pizarro.

[4] Sec. 5. Contents of the Petition.The petition x x x shall allege the following: x x x d) The investigation conducted, if any, specifying the names and personal circumstances and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission.

[5] Rollo, pp. 196-198.

[6] Id. at 228-233.

[7] Id. at 48.

[8] Sec. 17. Leave of Court. Any application to the court under this Rule for leave to effect service in any manner which leave of court is necessary shall be made by motion in writing, supported by an affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application.

[9] Bernas, The Constitution of the Republic of the Philippines 738 (1996); citing Soliven v. Makasiar, Nos. L-82585, L-82827 & L-83979, November 14, 1988, 167 SCRA 393.

[10] G.R. No. 171396, May 3, 2006, 489 SCRA 160, 224-225.

[11] Rollo, pp. 524-527.

[12] Id. at 528-530, 531-532.

[13] Id. at 311-313.

[14] J.G. Bernas, S.J., Command Responsibility, February 5, 2007 <http://sc.judiciary.gov.ph/publications/summit/Summit%20Papers/Bernas%20-%20Command%20Responsibility.pdf>.

[15] Eugenia Levine, Command Responsibility, The Mens Rea Requirement, Global Policy Forum, February 2005 <www.globalpolicy.org.>. As stated in Kuroda v. Jalandoni, 83 Phil. 171 (1949), the Philippines is not a signatory to the Hague Conventions.

[16] Iavor Rangelov and Jovan Nicic, Command Responsibility: The Contemporary Law, <http://www.hlc-rdc.org/uploads/editor/Command%20Responsibility.pdf> (visited September 9, 2009).

[17] Adopted by 120 members of the UN on July 17, 1998 and entered into force on July 1, 2002 <http://www.un.org/News/facts/iccfact.htm> (visited November 26, 2009).

[18] Pimentel v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 622.

[19] S. Bill 1900: DEFINING THE LIABILITY OF HEADS OF DEPARTMENTS CONCERNED FOR GROSS VIOLATIONS OF HUMAN RIGHTS COMMITTED BY MEMBERS OF THE [PNP] OR OTHER LAW ENFORCEMENT AGENCIES.

S. Bill 1427: PUNISHING GOVERNMENT OFFICIALS OR SUPERIORS FOR CRIMES OR OFFENSES COMMITTED BY THEIR SUBORDINATES UNDER THE PRINCIPLE OF COMMAND RESPONSIBILITY.

S. Bill 2159: AN ACT ADOPTING THE DOCTRINE OF SUPERIOR RESPONSIBILITY TO ALL ACTIONS INVOLVING MILITARY PERSONNEL, MEMBERS OF THE [PNP] AND OTHER CIVILIANS INVOLVED IN LAW ENFORCEMENT.

[20] The attempt of the 1986 Constitutional Commission to incorporate said doctrine in the Bill of Rights that would have obliged the State to compensate victims of abuses committed against the right to life by government forces was shot down, on the ground that the proposal would violate a fundamental principle of criminal liability under the Penal Code upholding the tenet nullum crimen, nulla poena sine lege (there is no crime when there is no law punishing it). I Record of the 1986 Constitutional Commission, pp. 753-54.

[21] The incorporation clause (Art. II, Sec. 2) of the Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land.

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

[23] Id.; citing the deliberations of the Committee on the Revision of the Rules of Court, dated August 10, 24, and 31, 2007 and September 20, 2008.

[24] G.R. No. 182498, December 3, 2009.

[25] Supra note 6.

[26] Rollo, pp. 206-207.

[27] Id. at 209-210.

[28] Id. at 208.

[29] TSN, February 11, 2008, p. 30.

[30] Supra note 24.

[31] Republic v. Meralco, G.R. No. 141314, November 15, 2002, 391 SCRA 700.

[32] Bautista v. Sula, A.M. No. P-04-1920, August 17, 2007, 530 SCRA 406; Portuguez v. GSIS Family Bank (Comsavings Bank), G.R. No. 169570, March 2, 2007, 517 SCRA 309.

[33] Supra note 22.

[34] Rollo, p. 54.

[35] I/A Court, H.R. Velasquez Rodriguez Case, Judgment of July 29, 1988, Series C No. 4; cited in Secretary of National Defense v. Manalo, supra.

[36] TSN, March 3, 2008, p. 17.

[37] Rollo, pp. 223-225.

[38] Id. at 226-227.

[39] For arbitrary detention and kidnapping.

[40] For grave abuse of authority and grave misconduct.

[41] SEC. 20. Archiving and Revival of Cases. The [amparo] court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of the petitioner or witnesses to appear due to threats on their lives.

A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice, upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case.

[42] Secretary of National Defense v. Manalo, supra.

[43] Annotation to the Writ of Amparo, p. 2 <http://sc.judiciary.gov.ph/Annotation_amparo.pdf>.

[44] Sometime in April 2007.

[45] Sec. 22. Effect of Filing of a Criminal Action. When a criminal action has been commenced, no separate petition [for a writ of amparo] shall be filed. The reliefs under the writ shall be available by motion in the criminal case.

The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

[46] SEC. 23. Consolidation. When a criminal action is filed subsequent to the filing for the writ, the latter shall be consolidated with the criminal action. x x x

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

[47] SEC. 6. Issuance of the Writ. Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue.

[48] As held in Razon v. Tagitis, supra note 24, the unique situations that call for the issuance of the writ [of amparo] as well as the considerations and measures necessary to address the situations, may not at all be the same as the standard measures and procedures in ordinary court actions and proceedings.

[49] Sec. 17. Burden of Proof and Standard of Diligence Required. x x x The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. x x x