Writ of amparo; remanded to trial court; command responsibility explained - G.R. No. 186050

G.R. No. 186050

"x x x.

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-Arroyo[34] 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 x[35]
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 x[38] (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-Arroyo[43]:

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.)

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; and

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."