Friday, January 8, 2021

THIRD DIVISION [ G.R. No. 235658, June 22, 2020 ] PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RAUL DEL ROSARIO Y NIEBRES, ACCUSED-APPELLANT.

 

THIRD DIVISION

[ G.R. No. 235658, June 22, 2020 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RAUL DEL ROSARIO Y NIEBRES, ACCUSED-APPELLANT.

DECISION


GESMUNDO, J.:

This is an Appeal[1] from the February 22, 2017 Decision[2] of the Court of Appeals (CA) in CA-G.R. CR-HC No. 07680. The CA affirmed the July 22, 2015 Judgment[3] of the Regional Trial Court of Calamba City, Branch 37 (RTC) in Criminal Case Nos. 15745-2008-C and 15746-2008-C, finding Raul Del Rosario y Niebres (appellant) guilty beyond reasonable doubt of the illegal sale and possession of dangerous drugs under Sections 5 and 11, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The Antecedents

In an Information filed before the RTC, appellant was charge with violation of Sec. 5, Article II of R.A. No. 9165 or Illegal Sale of Dangerous Drugs. The accusatory portion of the Information reads:
Criminal Case No. 15745-2008-C

That on or about 11:00 p.m. of 21 April 2008 at Brgy. Pansol, Calamba City and within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, did then and there willfully, unlawfully, and feloniously sell and deliver to a poseur buyer one (1) transparent plastic sachet containing Methamphetamine Hydrochloride, otherwise known as "shabu", weighing 0.01 gram, in violation of the aforementioned provision of law.

CONTRARY TO LAW.[4]
In another Information, appellant was charged with violation of Sec. 11, Article II of R.A. No. 9165 or Illegal Possession of Dangerous Drugs. The accusatory portion of the Information reads:
Criminal Case No. 15746-2008-C

That on or about 11:00 p.m. of 21 April 2008 at Brgy. Pansol, Calamba City and within the jurisdiction of this Honorable Court, the above-named accused, without any authority of law, did then and there willfully, unlawfully and feloniously, possess a quantity of Methamphetamine Hydrochloride, having a total weight of 0.09 grams.

CONTRARY TO LAW.[5]
During his arraignment on May 14, 2008,[6] appellant pleaded "not guilty" to the charges. Thereafter, trial ensued.          ·

The prosecution presented Forensic Chemist Lalaine Ong Rodrigo (FC Rodrigo) and the arresting officer, Senior Police Officer I Apolonio:Naredo (SPO1 Naredo).

Version of the Prosecution

On April 21, 2008, a confidential informant reported to SPO1 Naredo that accused was engaged in illegal drug activities at Barangay Pansol, Calamba City. Police Inspector Alex Marasigan, the team leader of SPO1 Naredo, thus formed a buy-bust team consisting of SPO1 Naredo, Senior Police Officer II Melvin Llanes, Police Officer II Carpio, Police Officer II Arnel Sanque, the confidential informant, and himself. The confidential informant was designated as the poseur-buyer.[7]

At 11:00 o'clock in the evening of the same day, the buy-bust team proceeded to the billiard hall at Purok 7, Brgy. Pansol. SPO1 Naredo positioned himself about five (5) meters away from the confidential informant. SPO1 Naredo saw the confidential informant hand to appellant the marked money amounting to P200.00. Appellant then gave the confidential informant a plastic sachet with white crystalline substance. After the confidential informant gave the pre-arranged signal, SPO1 Naredo approached appellant and introduced himself as a police officer. He arrested appellant and recovered the marked money. SPO1 Naredo conducted a preventive search by instructing appellant to empty the contents of his pocket. Appellant subsequently brought out three (3) small plastic sachets with white crystalline substance. The confidential informant also handed the plastic sachet bought from appellant to SPO1 Naredo. SPO1 Naredo thus marked the plastic sachet bought by the confidential informant with "ACN-RND" and those in appellant's possession with "ACN-RND-1," "ACN-RND-2," and "ACN-RND-3." Appellant was thereafter brought to the police station.[8]

At the police station, the buy-bust team proceeded to make a request for laboratory examination of the seized evidence from appellant. Thereafter, Police Officer I Richard Cruz (PO1 Cruz), together with SPO1 Naredo, turned over the seized evidence to the crime laboratory.[9] A certain SPO1 Agustin of the crime laboratory received the same from PO1 Cruz.[10]  FC Rodrigo conducted the forensic examination and prepared Chemistry Report No. D-174-08. In said Report, FC Rodrigo confirmed that the plastic sachets confiscated and bought from appellant were positive for shabu.  FC Rodrigo placed her markings on the plastic sachets after the forensic examination.[11]

Version of the Defense

Appellant testified that, around 8:00 o'clock in the evening of April 21, 2008, two (2) men suddenly arrived at his hut, restrained him, and searched the premises. Finding nothing, they forced appellant to board a passenger jeep. Appellant was taken to a house where he was asked his name and address. He was thereafter picked up by a police mobile and brought to the barangay hall. At the barangay hall, he was instructed to sign a document. Afterwards, appellant was escorted back to the house where he was previously brought. There, he was shown a plastic sachet with white crystalline substance and money. Appellant was then transferred to the city hall where he was detained. He was informed that he was being charged with the illegal sale and possession of dangerous drugs.[12]

Appellant's neighbor,  Rosita Mangundayao  (Mangundayao), testified that, on April 21, 2008, at around 11:00 o'clock in the evening, she heard a noise coming from appellant's hut, which was merely 1 ½ arm's length away from her house. Mangundayao looked through her window and saw appellant resting when two (2) men suddenly came in and searched the hut. She only heard the noises made by the three (3) men but she did not audibly hear their conversation. Thereafter, she saw appellant being handcuffed.[13]

The RTC Ruling

In its July 22, 2015 Judgment, the RTC found appellant guilty beyond reasonable doubt of the illegal sale and possession of dangerous drugs. In Criminal Case No. 15745-2008-C, appellant was sentenced to suffer the penalty of life imprisonment and ordered to pay a fine of P500,000.00. In Criminal Case No. 15746-2008-C, appellant was sentenced to suffer the indeterminate penalty of imprisonment of twelve (12) years and one (1) day, as minimum, to fourteen (14) years, as maximum, and ordered to pay a fine of P300,000.00.[14]

The RTC ruled that the testimony of SPO1 Naredo carried with it the presumption of regularity in the performance of official functions. It gave no credence to appellant's defense of denial or frame-up since it could be easily concocted and was a common and standard defense ploy. The RTC also underscored the inconsistent testimonies of the defense witnesses as to the time of appellant's arrest at his hut by the two (2) unidentified men.[15]

The RTC held that all of the elements of the offenses were sufficiently established by the prosecution. The prosecution was able to prove that a buy-bust operation was conducted. Even without the testimony of the poseur-buyer, the RTC held that SPO1 Naredo's testimony sufficiently established that a sale took place and that the marked money was recovered from appellant.[16]

Further, the RTC ruled that the integrity and evidentiary value of the seized evidence were preserved notwithstanding the lack of physical inventory and photographing of the seized evidence. The RTC held that SPO1 Naredo's testimony sufficiently showed that the illegal drugs subject of the sale were handed to him by the confidential informant, who had bought the same from appellant, and that SPO1 Naredo himself recovered three (3) plastic sachets from appellant. Thereafter, the seized evidence were marked and delivered by PO1 Cruz to one SPO1 Agustin of the crime laboratory. FC Rodrigo thereafter examined the seized evidence and placed her markings thereon. According to the RTC, the prosecution's failure to follow the procedural requirements under Section 21 of R.A. No. 9165 did not affect the integrity and evidentiary value of the seized evidence.[17]

Aggrieved, appellant appealed to the CA.

The CA Ruling

In its February 22, 2017 Decision, the CA affirmed appellant's conviction. The CA ruled that the prosecution was able to establish all the elements of Illegal Sale of Dangerous Drugs. It gave full credence to SPO1 Naredo's positive identification of appellant and his narration of the buy­-bust operation. The CA affirmed the finding of the RTC that the integrity and evidentiary value of the seized evidence had been preserved despite noncompliance with Sec. 21 of R.A. No. 9165. The chain of custody, according to the CA, consisted of the possession of the seized evidence by the police officers, the testing in the laboratory to determine its composition, and the presentation of the same seized evidence in court. The CA noted that the custody of the seized evidence remained with SPO1 Naredo until its delivery to the crime laboratory for forensic examination.[18]

Appellant now seeks the reversal of the CA Decision before this Court.
Issue

WHETHER OR NOT THE GUILT OF APPELLANT FOR THE OFFENSES CHARGED  HAS  BEEN  PROVEN  BEYOND REASONABLE DOUBT.
In a January 17, 2018 Resolution,[19] this Court required the parties to submit their respective supplemental briefs, if they so desired. In its April 10, 2018 Manifestation (Re: Supplemental Brief),[20] the Office of the Solicitor General (OSG) manifested that it will no longer file a supplemental brief considering that the guilt of appellant was exhaustively discussed in its appellee's brief and no new issue was raised in the automatic review. In its April 18, 2018 Manifestation (In Lieu of a Supplemental Brief),[21] appellant averred that he would no longer file a supplemental brief to avoid repetition since he had sufficiently refuted all the arguments raised in the Appellee's Brief.

In his Appellant's Brief[22] before the CA, appellant argues that there was failure to comply with the requirements of Sec. 21, Article II of R.A. No. 9165. The arresting officer failed to conduct the physical inventory of, and to photograph, the seized evidence. Consequently, there was also non­compliance with the requirement of the presence of representatives from the Department of Justice (DOJ) and media, and an elected public official during the physical inventory and photographing of the seized evidence. Appellant maintains that the apprehending officers did not exert any genuine and sufficient effort to comply with the mandate of Sec. 21, Article II of R.A. No. 9165. He contends that the police officers failed to justify their failure to comply with the requirements under R.A. No. 9165, since the urgency of conducting a buy-bust operation was also not established and it was not shown that the tip given by the confidential informant was verified. Finally, appellant argues that there were breaks in the chain of custody, specifically from the second to the fourth links.

In its Appellee's Brief[23] before the CA, the OSG urges this Court to affirm the challenged Decision of the RTC. The OSG maintains that the prosecution duly established the elements of the offenses charged. It insists that mere possession of a prohibited drug is sufficient to convict appellant in the absence of any satisfactory explanation, more so because the seized evidence from appellant tested positive for shabu. The OSG countered that there was an unbroken chain of custody – from SPO1 Naredo's recovery of the plastic sachets from appellant, to the markings he placed thereon after appellant's arrest, to the request for laboratory examination made by the buy­-bust team, to the turnover by PO1 Cruz of the seized evidence to the crime laboratory, and to the examination thereof by FC Rodrigo which yielded a positive result for shabu. According to the OSG, the integrity and identity of the seized evidence were sufficiently preserved by the police officers who handled the plastic sachets confiscated from appellant.

The Court's Ruling

It is a well-established rule that an appeal in criminal cases throws the whole case open for review.[24] Thus, the appellate court has the competence to examine records, revise the judgment appealed from, increase the penalty, and cite the proper provision of the penal law.[25] After careful examination, this Court finds the appeal meritorious.

To sustain a conviction for the offense of illegal sale or possession of dangerous drugs under R.A. No. 9165, it is of utmost importance to establish with moral certainty the identity of the confiscated drug.[26] To remove any doubt or uncertainty on the identity and integrity of the seized drug, it must be shown that the substance illegally possessed or sold by the accused is the same substance offered and identified in court.[27] This requirement is known as the chain of custody rule under R.A. No. 9165 created to safeguard doubts concerning the identity of the seized drugs.[28]

Chain of custody means the duly recorded, authorized movements, and custody of the seized drugs at each stage, from the moment of confiscation to the receipt in the forensic laboratory for examination until it is presented to the court.[29] Under Sec. 21, Article II of R.A. No. 9165:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.
The implementing rules and regulations of R.A. No. 9165 further expounded this provision:
a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items;

x x x x
Sec. 21 of R.A. No. 9165 requires the apprehending team, after seizure and confiscation, to immediately conduct a physical inventory of, and photograph, the seized drugs in the presence of: (a) the accused or the persons from whom such items were confiscated and/or seized, or his/her representative or counsel; (b) a representative from the media; (c) a representative from the DOJ; and (d) an elected public official. These four (4) witnesses should be present at the time of the apprehension of the accused and must all sign the copies of the inventory and obtain a copy thereof.

The procedure enshrined in Sec. 21, Article II of R.A. No. 9165 is a matter of substantive law, and cannot be brushed aside as a simple procedural technicality; or worse, ignored as an impediment to the conviction of illegal drug suspects.[30] The police officers or PDEA agents implementing R.A. No. 9165 must strictly comply with the procedure laid out, although failure to strictly do so does not, ipso facto, render the seizure and custody over the illegal drugs as void and invalid if: (a) there is justifiable ground for such noncompliance; and (b) the integrity and evidentiary value of the seized evidence were preserved. Nonetheless, the safeguard measures under Sec. 21, Article II of R.A. No. 9165 must be strictly adhered to.

There was a total lack of compliance
with Sec. 21, Article II of R.A. No. 9165.

In this case, the buy-bust team completely ignored the procedure outlined under Sec. 21, Article II of R.A. No. 9165. They failed to conduct a physical inventory of the seized items and to photograph the same. The deficiency is apparent from SPO1 Naredo's testimony:
Q:   Did you have receipt of inventory issued in these cases?
A:   None, ma'am.

Q:   You have also no photographs?
A:   None, ma'am.[31]
Moreover, the presence of the representatives required by law to witness the apprehension of appellant and seizure of the illegal drugs were not secured by the buy-bust team. In People v. Tomawis,[32] this Court held that the witnesses required by law in order to insulate against the police practice of planting evidence should be present at or near the time of apprehension of the accused.[33] This Court held that the time of the warrantless arrest is "the point in which the presence of the three witnesses is most needed, as it is their presence at the time of seizure and confiscation that would belie any doubt as to the source, identity, and integrity of the seized drug."[34]

Neither can the prosecution rely on the saving clause of Sec. 21, Article II of R.A. No. 9165. In Gamboa v. People,[35] this Court ruled that "the saving clause applies only where the prosecution has recognized the procedural lapses on the part of the police officers or PDEA agents, and thereafter explained the cited justifiable grounds; after which, the prosecution must show that the integrity and evidentiary value of the seized items have been preserved."[36] It was not shown that the prosecution even recognized that the buy-bust team in this case committed major lapses in handling the seized illegal drugs from appellant. Consequently, no justification was offered by the prosecution as to why the procedure in Sec. 21, Article II of R.A. No. 9165 was not adhered to.

When a court cannot be assured that the drugs presented as evidence are exactly what the prosecution purports them to be, it cannot be assured that any activity or transaction pertaining to them truly proceeded, as the prosecution claims they did. Thus, no conviction can ensue, as in this case.[37]

The links in the chain of
custody were not properly
established by the prosecution.

This Court explained in Malillin v. People[38] how the chain of custody or movement of the seized evidence should be maintained and why this must be shown by evidence, viz.:
As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same.[39]
In People v. Kamad[40] and People v. Dahil,[41] this Court enumerated the links that the prosecution must establish in the chain of custody of a buy-­bust situation to be as follows: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized by the forensic chemist to the court.

This Court finds that the second, third, and fourth links in the chain of custody were not established by the prosecution in the case at bar.

Second link

The second link in the chain of custody is the transfer of the seized drugs by the apprehending officer to the investigating officer.[42] The investigating officer shall conduct the proper investigation and prepare the necessary documents for the proper transfer of the evidence to the police crime laboratory for testing. Thus, the investigating officer's possession of the seized drugs must be documented and established.[43]

Here, the name of the investigator was neither identified nor mentioned by the prosecution. SPO1 Naredo failed to specify the person to whom he turned over the seized items upon reaching the police station. It was merely stated that "the police officers prepared a request for laboratory examination and drug testing."[44] However, the specific person who handled the seized items for the preparation of the required documents was not named in the records. When the apprehending officer is unable to identify the investigating officer to whom he turned over the seized items, this Court has held that such circumstance, when taken in light of the several other lapses in the chain of custody that attend the case, raises doubts as to whether the integrity and evidentiary value of the seized illegal drugs had been preserved.[45]

Third Link

The third link in the chain of custody is the delivery by the investigating officer of the illegal drug to the forensic chemist. Once the seized drugs arrive at the forensic laboratory, it will be the laboratory technician who will test and verify the nature of the substance.[46]

Here, SPO1 Naredo testified that he was with PO1 Cruz when the latter delivered the seized items to SPO1 Agustin of the crime laboratory. Thus, there was an apparent transfer of the seized items from SPO1 Naredo to PO1 Cruz. As can be gleaned from SPO1 Naredo's testimony, however, no informative details were provided as to how, and at what point, the seized items were handed to PO1 Cruz, who was not even a member of the buy-bust team. There was also lack of information on the condition of the seized items when SPO1 Naredo transmitted the same to PO1 Cruz and when PO1 Cruz delivered it to SPO1 Agustin. Further, there was no documentary evidence indicating SPO1 Agustin's actual receipt of the seized items and how the latter handled the same upon his receipt thereof before transmitting the same to FC Rodrigo for forensic examination.

Fourth Link

The last link involves the submission of the seized drugs by the forensic chemist to the court when presented as evidence in the criminal case.[47] In this case, there was no testimonial or documentary evidence on how FC Rodrigo kept the seized items while it was in her custody and in what condition the items were in until it was presented in court. While the parties stipulated on FC Rodrigo's testimony, the stipulations do not provide information regarding the condition of the seized item while in her custody or if there was no opportunity for someone not in the chain to have possession thereof.

In People v. Gutierrez,[48] there were inadequate stipulations as to the testimony of the forensic chemist. In that case, no explanation was given regarding the chemist's custody in the interim - from the time it was turned over to the investigator to its turnover for laboratory examination. The records also failed to show what happened to the allegedly seized shabu between the turnover by the chemist to the investigator and its presentation in court. Thus, since no precautions were taken to ensure that there was no change in the condition of the object and no opportunity for someone not in the chain to have possession thereof, the accused therein was acquitted.

In view of the foregoing lapses in the chain of custody and the lack of compliance with Sec. 21, Article II of R.A. No. 9165, appellant's acquittal is only proper. Serious uncertainty hangs over the identification of the corpus delicti that the prosecution introduced into evidence in order to convict appellant. In effect, the prosecution as no evidence against appellant given that the circumstances surrounding the handling of the seized items cast doubt on their source, identity, and integrity.

WHEREFORE, the appeal is GRANTED. The February 22, 2017 Decision of the Court of Appeals in CA-G.R. CR-HC No. 07680 is hereby REVERSED and SET ASIDE for failure of the prosecution to prove beyond reasonable doubt the guilt of Raul Del Rosario y Niebres. He is hereby ACQUITTED of the crimes charged against him and ordered immediately RELEASED from custody, unless he is being held for some other lawful cause.

The Director of the Bureau of Corrections is ORDERED to implement this Decision and to inform this Court of the date of the actual release from confinement of Raul Del Rosario y Niebres within five (5) days from receipt of this Decision.

SO ORDERED.

Leonen, J., (Chairperson), Gesmundo, Carandang, and Zalameda, JJ., concur.
Gaerlan, J., on leave.



September 24, 2020

N O T I C E  O F  J U D G E  M E N T

Sirs/Mesdames:

Please take notice that on June 22, 2020, a Decision, copy attached hereto, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on September 24, 2020 at 10:30 a.m.

Very truly yours,

(Sgd.) MISAEL DOMINGO C. BATTUNG III
Division Clerk of Court



O R D E R  O F  R E L E A S E

TO: The Director
       BUREAU OF CORRECTIONS
       1770 Muntinlupa City

       Thru: The Superintendent
                 New Bilibid Prison
                 BUREAU OF CORRECTIONS
                 1770 Muntinlupa City


G R E E T I  N G S:

WHEREAS, the Supreme Court on June 22, 2020 promulgated a Decision in the above-entitled case, the dispositive portion of which reads:
"WHEREFORE, the appeal is GRANTED.  The February 22, 2017 Decision of the Court of Appeals in CA-G.R. CR-HC No. 07680 is hereby REVERSED and SET ASIDE for failure of the prosecution to prove beyond reasonable doubt the guilt of Raul Del Rosario y Niebes.  He is ordered ACQUITTED of the crimes charged against him and ordered immediately RELEASED from custody, unless he is being held for some lawful cause.

The Director of the Bureau of Corrections is ORDERED to implement this Decision and to inform this Court of the date of the actual release from confinement of Raul Del Rosario y Niebres within five (5) days from receipt of this Decision.

SO ORDERED."
NOW, THEREFORE, you are hereby ordered to immediately release RAUL DEL ROSARIO y NIEBRES unless there are other lawful causes for which he should be further detained, and to return this Order with the certificate of your proceedings within five (5) days from notice hereof.

GIVEN by the Honorable MARVIC MARIO VICTOR F. LEONEN, Chairperson of the Third Division of the Supreme Court of the Philippine, this 22nd day of June 2020.

Very truly yours,

(Sgd.) MISAEL DOMINGO C. BATTUNG III
Division Clerk of Court


[1] Rollo, pp. 22-23; Notice of Appeal.

[2] Id. at 2-21.

[3] CA rollo, pp. 22-32 and 72-82; penned by Presiding Judge Caesar C. Buenagua.

[4] Id. at 22.

[5] Id.

[6] Rollo, p. 3; CA Decision.

[7] Id. at 4.

[8] Id.

[9] Id.

[10] Id. at 10.

[11] Id. at 11.

[12] Id. at 6.

[13] Id. at 6-7.

[14] CA rollo, p. 32.

[15] Rollo, p. 7, CA Decision; CA rollo, p. 25, RTC Decision.

[16] CA rollo, p. 26.

[17] Id. at 28-32.

[18] Rollo, pp. 13-20.

[19] Id. at 26-27.

[20] Id. at 28-29.

[21] Id. at 33-35.

[22] CA rollo, pp. 51-70.

[23] Id. at 97-109.

[24] People v. Ygoy, G.R. No.215712, August 7, 2019.

[25] People v. Comboy, 782 Phil. 187, 196 (2016).

[26] See People v. Lorenzo, 633 Phil. 393, 403 (2010).

[27] See People v. Pagaduan, 641 Phil. 432, 442-443 (2010).

[28] See People v. Climaco, 687 Phil. 593, 604-605 (2012), citing Malilin v. People, 576 Phil. 576 (2008).

[29] Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002.

[30] People v. Tomawis, G.R. No. 228890, April 18, 2018, 862 SCRA 131, 145, citing Gamboa v. People, 799 Phil. 584, 597 (2016).

[31] Rollo, p. 15; CA Decision.

[32] Supra note 30.

[33] Id. at 147.

[34] Id. at 150.

[35] Supra note 30.

[36] Id. at 595.

[37] People v. Asaytuno, Jr., G.R. No. 245972, December 2, 2019.

[38] Supra note 28.

[39] Id. at 587; citations omitted.

[40] 624 Phil. 289 (2010).

[41] 750 Phil. 212 (2015).

[42] Id. at 235.

[43] Id.

[44] Rollo, p. 5; CA Decision, p. 4.

[45] People v. Hementiza, 807 Phil. 1017, 1035 (2017), citing People v. Nandi, 639 Phil. 134 (2010).

[46] People v. Asaytuno, Jr., supra note 37.

[47] Id.

[48] 614 Phil. 285 (2009).
By at 1 comment:

CYNTHIA S. DEL ROSARIO, FEDERICO N. VIRGO, JR., RENATO V. BALADAD, BEATRIZ A. DIOSO, CORAZON MANALON DAVILA, LORETA N. ALSA, HIYA I. HASSAN, AND JOHN VINCENT C. COLILI, PETITIONERS, VS. COMMISSION ON ELECTIONS, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE PROVINCIAL GOVERNMENT OF PALAWAN, AND THE PROVINCIAL TREASURER OF THE PROVINCIAL GOVERNMENT OF PALAWAN, RESPONDENTS.

 

EN BANC

[ G.R. No. 247610, March 10, 2020 ]

CYNTHIA S. DEL ROSARIO, FEDERICO N. VIRGO, JR., RENATO V. BALADAD, BEATRIZ A. DIOSO, CORAZON MANALON DAVILA, LORETA N. ALSA, HIYA I. HASSAN, AND JOHN VINCENT C. COLILI, PETITIONERS, VS. COMMISSION ON ELECTIONS, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE PROVINCIAL GOVERNMENT OF PALAWAN, AND THE PROVINCIAL TREASURER OF THE PROVINCIAL GOVERNMENT OF PALAWAN, RESPONDENTS.

D E C I S I O N


REYES, A., JR., J.:

Are the voters of a city which used to be a component city of a province entitled to vote in a plebiscite for the division of said province, even after the city has been converted into a highly urbanized city (HUC)?

The Case and Its Antecedents

The present petition for prohibition assails the constitutionality and validity of Republic Act (RA) No. 11259, entitled "Charter of the Provinces of Palawan del Norte, Palawan Oriental, and Palawan del Sur."[1] The bill originated from House Bill Nos. 7413 and 8055, which was initiated in the 17th Congress by the representatives of the three legislative districts of the province of Palawan.[2] The bill was signed into law on April 5, 2019[3] and published in the Official Gazette on May 20, 2019.[4]

Sections 51 and 54 of the assailed law provide:
SEC. 51. Plebiscite. - The provinces of Palawan del Norte, Palawan Oriental, and Palawan del Sur shall be created upon approval by the majority of the votes cast by the voters of the affected areas in a plebiscite to be conducted and supervised by the Commission on Elections (COMELEC) on the second Monday of May 2020 following the effectivity of this Charter.

The amount necessary for the conduct of the plebiscite shall be charged against the appropriations of the present Province of Palawan.

SEC. 54. Residents of the City of Puerto Princesa. - The residents of the City of Puerto Princesa, as a highly urbanized city, shall not be qualified to vote in the plebiscite and for candidates for provincial elective positions.

The district representatives who were duly elected and qualified in the election immediately preceding the May 2022 national and local elections of the present First Legislative District, Second Legislative District, and Third Legislative District shall continue to represent their respective districts until the representatives for the newly created legislative districts for the three (3) provinces and the highly urbanized City of Puerto Princesa shall have been elected and qualified.
Petitioners Cynthia S. Del Rosario, Federico N. Virgo, Jr., Renato V. Baladad, Beatriz A. Dioso, and Corazon Manalon Davila are all residents of various barangays in Puerto Princesa City; while the other petitioners are residents of three municipalities in Palawan. Loreta N. Alsa is a resident of Sagpangan, Aborlan; petitioner Hiya I. Hassan is a resident of Panitian, Sofronio Espanola; and petitioner John Vincent C. Colili is a resident of Amas, Brooke's Point. Claiming standing as taxpayers and registered voters of Puerto Princesa City and of Palawan, they ask this Court to declare RA No. 11259 unconstitutional and invalid. Consequently, they also seek the issuance of a writ of prohibition against the conduct of the May 11, 2020[5] plebiscite provided for in Sections 51 and 54 of RA No. 11259, without the participation of the electorate of Puerto Princesa City, as well as the disbursement of funds relative thereto.

The Issues

The petition alleges that RA No. 11259 suffers from three infirmities which render it unconstitutional: first, its passage and enactment into law was made in gross violation of the public's right to take part in the conduct of public affairs through public hearings and consultations;[6] second, it disqualifies the voters of Puerto Princesa City from voting in the scheduled plebiscite, contrary to Article X, Section 10 of the Constitution;[7] and third, it provides for a substantial change in the sharing of proceeds from the development and utilization of the national wealth between the three new provinces and their existing municipalities and barangays, in violation of Article X, Section 7 of the Constitution.[8]

Ruling of the Court

I.

Before delving into the merits of the petition, this Court resolves the objections made by respondents, through the Solicitor General, regarding the prematurity of the petition and petitioners' lack of standing to file the same.

Standing to sue, for purposes of assailing the constitutionality of statutes, has been defined as
a personal and substantial interest in a case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions.[9]
Following this definition, a party was held to have standing upon proof of the following: (1) the suing party has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is likely to be redressed by the remedy being sought.[10]



Considering the foregoing parameters, We hold that petitioners Cynthia S. Del Rosario, Federico N. Virgo, Jr., Renato V. Baladad, Beatriz A. Dioso, and Corazon Manalon Davila lack standing to file the present petition. As residents of Puerto Princesa, they have become residents of an entity separate, distinct, and autonomous from the province of Palawan, when Puerto Princesa became an HUC. In fact, said petitioners, as qualified voters of Puerto Princesa, have not participated in the elections for provincial official s of Palawan.[11] By the same token, they have likewise lost the right to vote in the plebiscite for the division of the province of Palawan, as discussed in the latter part of this ruling. Nevertheless, this Court cannot dismiss the petition on this point alone, considering that petitioners Loreta N. Alsa, Hiya I. Hassan, and John Vincent C. Colili are residents and registered voters of the province of Palawan, and as such, are directly affected by the implementation of the assailed statute, which will divide their home province into three distinct and separate provinces.

As regards the alleged prematurity of the petition, in Council of Teachers and Staff of Colleges and Universities of the Philippines v. Secretary of Education,[12] which also involved a Rule 65 challenge against a statute and its implementation, it was held that:
This Court has consistently ruled that an actual case or controversy is necessary even in cases where the constitutionality of a law is being questioned. It is not enough that the statute has been passed. There must still be a real act. The law must have been implemented, and the party filing the case must have been affected by the act of implementation.
On this point, it must be stressed that most of the provisions of RA No. 11259 will take effect only after the approval thereof by the electorate of Palawan. Sections 51 and 52 of the law provide:
SEC. 51. Plebiscite. - The provinces of Palawan del Norte, Palawan Oriental, and Palawan del Sur shall be created upon approval by the majority of the votes cast by the voters of the affected areas in a plebiscite to be conducted and supervised by the Commission on Elections (COMELEC) on the second Monday of May 2020 following the effectivity of this Charter.

x x x x

SEC. 52. Commencement of Corporate Existence. - The provinces of Palawan del Norte, Palawan Oriental, and Palawan del Sur shall commence its corporate existence upon the election and qualification of its provincial governor, provincial vice governor and majority of the members of the sangguniang panlalawigan. The election of the provincial officials of the newly created provinces shall be held on the second Monday of May in the year 2022. (Emphases supplied.)
At the risk of being repetitive, it is clear from the foregoing that the creation and existence of the three provinces of Palawan del Norte, Palawan Oriental, and Palawan del Sur is contingent upon the approval thereof by the voters of the affected areas in a plebiscite conducted for the purpose. Until such plebiscite has been conducted and it is ascertained that the majority of the electorate in said plebiscite approved the proposed division, the provisions of RA No. 11259 relating to the organization and governance of the three provinces of Palawan del Norte, Palawan Oriental, and Palawan del Sur will remain inoperative, as the provinces to which they pertain have not been created yet. Pending the conduct of the plebiscite, only Sections 51, 54, 58, 59, and 60 of the law can be considered to be in full force and effect, as these provisions pertain to matters preparatory to the conduct of the plebiscite for the creation of the three proposed provinces. These are the very provisions sought to be implemented by respondents as they prepare for the conduct of the plebiscite this coming May. It is therefore premature for this Court to make any declaration on the unconstitutionality of the law in toto, when most of the provisions of the law have yet to take effect.

It is for these reasons that the Court must refrain from ruling upon the · issue raised by the petition regarding the alteration of the natural resource revenue allotments of the three proposed provinces vis-a-vis the prescribed allotment ratio in the Local Government Code (LGC). Thus, this decision is confined to the resolution of the first and third issues, i.e., the alleged lack of public consultation in the formulation of R.A. No. 11259, and the question of whether or not Puerto Princesa can still be considered a political unit directly affected by the division of Palawan into three provinces, so as to entitle the city's voters to participate in the plebiscite scheduled for that purpose.

II.

Petitioners allege that in formulating the assailed statute, the legislature
x x x failed to invite written submissions and to conduct public hearings on the subject legislation such that the [H]ouse and [S]enate bills on the proposed act dividing the province of Palawan were never submitted to the constituents of the province of Palawan for public consultations and public hearings.[13]
According to petitioners, this constituted a violation of the political right of the people of Palawan to participate in public consultations on matters affecting their interest.

Respondents Provincial Treasurer and Provincial Government of Palawan counter that the assailed statute was developed in coordination with the various offices of the provincial government, as well as the municipal mayors and Sangguniang Panlalawigan members of Palawan. They also aver that petitioner Cynthia del Rosario was even present during one of the deliberations of the House of Representatives on the matter.[14]

Respondents Commission on Elections and the Department of Budget and Management argue that the passage of the statute did not disregard the right to participate in public consultations on matters of the public interest, for the creation of the proposed provinces still needs the approval of the electorate of Palawan.

The Court agrees with the submissions of the respondents on the matter. Petitioners' long but vacuous citation of various constitutional provisions and treaty instruments does not persuade. The records of the case reveal that the proposed division of Palawan, as reflected in the assailed statute, was in fact made in consultation with the people of Palawan, through their elected representatives: the municipal mayors,[15] municipal councilors, and the members of the Sangguniang Panlalawigan, as reflected in the transcripts of the consultative meeting,[16] Sangguniang Panlalawigan meetings,[17] and resolutions from the municipal councils of Palawan.[18]

Furthermore, the Constitution does not establish prior public consultation as a prerequisite for the validity of a statute. Article XIII, Section 16, as cited by petitioners, is a protection against any action which serves to abridge the right of people's organizations to "effective and reasonable participation at all levels of social, political, and economic decision-making." A renowned constitutional scholar and Constitutional Commission member explains that:
x x x At most, the provisions serve as exhortations to the people to act jointly, and to associations to act with independence and not to allow themselves to be instrumentalized by the state. Moreover, Kilosbayan v. Morato rejected the notion that the provisions confer on organizations "standing" to challenge in court the validity of governmental policies.

It should be pointed out that the language of Section 16 hews closely to the phraseology of the Bill of Rights. The deliberate intention of the Commission was to not "in any way dilute or diminish the rights already guaranteed in the Bill of Rights, particularly [Sections 8 and 4], which guarantee the right of the people to fonn associations and unions for purposes not contrary to law, and also the guarantee which says that no law shall be passed abridging the right of the people peaceably to assemble and petition the government for redress of grievances." Furthermore, in relation to consultation mechanisms, the role of the state is to "facilitate" their creation. x x x[19]
This Court sustains the contention of the Solicitor General that the assailed statute does not run afoul of the constitutional policy on public consultation because its effectivity is still subject to the supreme mode of public consultation: the ballot. Petitioners must be reminded that ours is a republican state, where the people are heard primarily through their· elected representatives.[20] Sovereignty resides in the people, but is primarily manifested through their elected representatives. In the case at bar, the duly elected representatives of the people of Palawan at every level: municipal, provincial, and national, have registered their support and consent to the proposed division of their province.

III.

Article X, Section 10 of the Constitution requires that the division of a province must be approved "by a majority of the votes cast in a plebiscite in the political units directly affected." As applied to the present petition, is the HUC of Puerto Princesa a "political unit directly affected" by the partition of the province of Palawan into three separate provinces?

In determining which political units are directly affected - hence eligible to participate in the pertinent plebiscite - by a merger, division, creation, or abolition of a local government unit, the Supreme Court has taken into account a number of political and economic factors.

Early decisions of the Court on the matter hinged primarily on the matter of territorial and boundary alteration. In Tan v. Comelec,[21] the Court considered the possible alteration of boundaries and reduction of municipal boundaries, and held that the whole mother province must vote in the division thereof into two provinces. After citing Article XI, Section 3 of the 1973 Constitution, the Court held:
It can be plainly seen that the aforecited constitutional provision makes it imperative that there be first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or merged and there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the existing province of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries in order that there can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate than that two political units would be affected. The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte.[22]
The applicability of the Tan ruling to local government unit (LGU) creations, mergers, divisions, or abolitions under the present constitution was confirmed in Gov. Padilla, Jr. v. Commission on Elections,[23] where the Court held that the whole municipality must vote in a plebiscite for the creation of a new barangay therein.[24] In Tobias v. City Mayor Abalos,[25] the Court, faced with a challenge against the constitutionality of the law converting Mandaluyong from a municipality into an HUC, rejected the assertion that a municipality within the same legislative district - but not within the same province - as the proposed HUC is a "political unit directly affected" by such conversion. Said the Court:
Petitioners contend that the people of San Juan should have been made to participate in the plebiscite on R.A. No. 7675 as the same involved a change in their legislative district. The contention is bereft of merit since the principal subject involved in the plebiscite was the conversion of Mandaluyong into a highly urbanized city. The matter of separate district representation was only ancillary thereto. Thus, the inhabitants of San Juan were properly excluded from the said plebiscite as they had nothing to do with the change of status of neighboring Mandaluyong.[26]
Later Decisions apply a more comprehensive approach in the determination of which political units are directly affected by a change or conversion of an LGU. In Miranda v. Hon. Aguirre,[27] which involved the conversion[28] of Santiago City from an independent component city to a component city of the province of Isabela, the Court said:
x x x The resolution of the issue depends on whether or not the downgrading falls within the meaning of creation, division, merger, abolition or substantial alteration of boundaries of municipalities per Section 10, Article X of the Constitution. A close analysis of the said constitutional provision will reveal that the creation, division, merger, abolition or substantial alteration of boundaries of local government units involve a common denominator - material change in the political and economic rights of the local government units directly affected as well as the people therein. It is precisely for this reason that the Constitution requires the approval of the people "in the political units directly affected." It is not difficult to appreciate the rationale of this constitutional requirement. x x x Section 10, Article X [of the Constitution] addressed the undesirable practice in the past whereby local government units were created, abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the people. Thus, the consent of the people of the local government unit directly affected was required to serve as a checking mechanism to any exercise of legislative power creating, dividing, abolishing, merging or altering the boundaries of local government units. x x x This plebiscite requirement is also in accord with the philosophy of the Constitution granting more autonomy to local government units.

The changes that will result from the downgrading of the city of Santiago from an independent component city to a component city are many and cannot be characterized as insubstantial. For one, the independence of the city as a political unit will be diminished. The city mayor will be placed under the administrative supervision of the provincial governor. The resolutions and ordinances of the city council of Santiago will have to be reviewed by the Provincial Board of Isabela. Taxes that will be collected by the city will now have to be shared with the province. x x x

x x x x

It is markworthy that when R.A. No. 7720 upgraded the status of Santiago City from a municipality to an independent component city, it required the approval of its people thru a plebiscite called for the purpose. There is neither rhyme nor reason why this plebiscite should not be called to determine the will of the people of Santiago City when R.A. No. 8528 downgrades the status of their city. Indeed, there is more reason to consult the people when a law substantially diminishes their right. (Italics in the original)[29]
This comprehensive approach was followed in Umali v. Commission on Elections, et al.,[30] where the Court held that the whole province of Nueva Ecija is the political unit directly affected by the conversion of Cabanatuan into an HUC, viz.:
In cutting the umbilical cord between Cabanatuan City and the province of Nueva Ecija, the city will be separated from the territorial jurisdiction of the province, as earlier explained. The provincial government will no longer be responsible for delivering basic services for the city residents' benefit. Ordinances and resolutions passed by the provincial council will no longer cover the city. Projects queued by the provincial government to be executed in the city will also be suspended 1f not scrapped to prevent the LGU from performing functions outside the bounds of its territorial jurisdiction, and from expending its limited resources for ventures that do not cater to its constituents.

In view of these changes in the economic and political rights of the province of Nueva Ecija and its residents, the entire province certainly stands to be directly affected by the conversion of Cabanatuan City into an HUC. Following the doctrines in Tan and Padilla, all the qualified registered voters of Nueva Ecija should then be allowed to participate in the plebiscite called for that purpose.[31]
A careful survey of these cases reveals that the Court has considered three key factors in determining whether an LGU is a "political unit directly affected" by an LGU change or conversion: territorial alteration, political effects, and economic effects. The Court shall now apply this three-factor test to Puerto Princesa and the rest of Palawan, in the light of the parties' pleadings and the applicable law.

As regards territorial alteration, the petitioners allege that RA No. 11259 will re-draw the boundaries of Palawan's Third Legislative District, which is currently composed of Puerto Princesa and the municipality of Aborlan.[32] On the other hand, respondents aver that the law will neither alter the boundaries of Puerto Princesa nor reduce its land area.[33] On this point, this Court agrees with respondents that the assailed statute will not result in the alteration of Puerto Princesa's territorial jurisdiction. Section 4 of the law provides in part that "The terrestrial jurisdictions of the newly created provinces shall be within the present metes and bounds of all the municipalities that comprise the respective provinces" without reference to Puerto Princesa. The Court has pored over the law and finds nothing in it that changes the metes and bounds of Puerto Princesa's territory. Furthermore, following Tobias v. Abalos[34] and Bagabuyo v. COMELEC,[35] the realignment of Palawan's legislative district boundaries does not amount to a territorial alteration so as to render Puerto Princesa directly affected by the division of the province of Palawan, for the re-drawing of legislative district boundaries does not require electoral approval through a plebiscite.

As regards political and economic effects, the Court first considers the applicable laws. Section 452 of the Local Government Code provides:
Sec. 452. Highly Urbanized Cities. - (a) Cities with a m1mmum population of two hundred thousand (200,000) inhabitants as certified by the National Statistics Office, and within the latest annual income of at least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices, as certified by the city treasurer, shall be classified as highly urbanized cities.

(b) Cities which do not meet above requirements shall be considered component cities of the province in which they are geographically located. If a component city is located within the boundaries of two (2) or more provinces, such city shall be considered a component of the province of which it used to be a municipality.

(c) Qualified voters of highly urbanized cities shall remain excluded from voting for elective provincial officials.

Unless otherwise provided in the Constitution or this Code, qualified voters of independent component cities shall be governed by their respective charters, as amended, on the participation of voters in provincial elections.

Qualified voters of cities who acquired the right to vote for elective provincial officials prior to the classification of said cities as highly­ urbanized after the ratification of the Constitution and before the effectivity of this Code, shall continue to exercise such right. (Underscoring supplied)
It is glaringly clear from this provision that voters of highly urbanized cities cannot vote for elective provincial officials. Notably, Section 452(c) uses the phrase "shall remain excluded," because such exclusion was carried over from previous statutes on the matter.[36] Pertinently, Section 3 of Batas Pambansa Blg. 51 provides:
SEC. 3. Cities. - There shall be in each city such elective local officials as provided in their respective charters, including the city mayor, the city vice-mayor, and the elective members of the sangguniang panlungsod, all of whom shall be elected by the qualified voters in the city. In addition thereto, there shall be appointive sangguniang panlungsod, members consisting of the president of the city association of barangay councils, the president of the city federation of the kabataang barangay, and one representative each from the agricultural and industrial labor sectors who shall be appointed by the President (Prime Minister) whenever, as determined by the sangguniang panlungsod, said sectors are of sufficient number in the city to warrant representation.

Until cities are reclassified into highly urbanized and component cities in accordance with the standards established in the Local Government Code as provided for in Article XI, Section 4 (1) of the Constitution, any city now existing with an annual regular income derived from infrastructure and general funds of not less than forty million pesos (P40,000,000.00) at the time of the approval of this Act shall be classified as a highly urbanized city. All other cities shall be considered components of the provinces where they are geographically located.

The City of Baguio, because of its special functions as the summer capital of the Philippines, shall be classified as a highly urbanized city irrespective of its income.

The registered voters of a component city may be entitled to vote in the election of the officials of the province of which that city is a component, if its charter so provides. However, voters registered in a highly urbanized city, as hereinabove defined, shall not participate nor vote in the election of the officials of the province in which the highly urbanized city is geographically located. (Emphasis and underscoring supplied)
HUCs, as conceptualized in our local government laws, are essentially cities that have attained a level of population growth and economic development which the legislature has deemed sufficient for devolution of governmental powers as self-contained political units. As such, these cities are intended to function as first-level political and administrative subdivisions in their own right, on par with provinces.[37] For this reason, Article X, Section 12 of the Constitution provides that "[c]ities that are highly urbanized, as determined by law, x x x shall be independent of the province." This constitutionally-mandated independence from provincial units is explicitly declared in Section 29 of the Local Government Code and manifests itself throughout said Code in three forms: first, exclusion from participation in provincial elections, as earlier discussed;[38] second, direct Presidential supervision over HUCs and their local chief executives;[39] and third, other special distinctions provided for in the Code.[40] As this Court explained in Umali, involving the issue of which political units are directly affected by the conversion of a component city into an HUC:
x x x x

Aside from the alteration of economic rights, the political rights of Nueva Ecija and those of its residents will also be affected by Cabanatuan's conversion into an HUC. Notably, the administrative supervision of the province over the city will effectively be revoked upon conversion. x x x

Duties, privileges and obligations appertaining to HUCs will attach to Cabanatuan City if it is converted into an HUC. This includes the right to be outside the general supervision of the province and be under the direct supervision of the President. An HUC is not subject to provincial oversight because the complex and varied problems in an HUC due to a bigger population and greater economic activity require greater autonomy. The provincial government stands to lose the power to ensure that the local government officials of Cabanatuan City act within the scope of its prescribed powers and functions, to review executive orders issued by the city mayor, and to approve resolutions and ordinances enacted by the city council. The province will also be divested of jurisdiction over disciplinary cases concerning the elected city officials of the new HUC, and the appeal process for administrative case decisions against barangay officials of the city will also be modified accordingly. Likewise, the registered voters of the city will no longer be entitled to vote for and be voted upon as provincial officials.

In cutting the umbilical cord between Cabanatuan City and the province of Nueva Ecija, the city will be separated from the territorial jurisdiction of the province, as earlier explained. The provincial government will no longer be responsible for delivering basic services for the city residents' benefit. Ordinances and resolutions passed by the provincial council will no longer cover the city. Projects queued by the provincial government to be executed in the city will also be suspended if not scrapped to prevent the LOU from performing functions outside the bounds of its territorial jurisdiction, and from expending its limited resources for ventures that do not cater to its constituents.[41]
This Court is aware of the fact that Section 89 of the city charter of Puerto Princesa allows its residents to vote for provincial officials of Palawan.[42] However, upon the declaration of Puerto Princesa as an HUC by the President, and the subsequent approval thereof in a plebiscite as required by Section 453 of the LGC, Section 452(c) of the LGC, and Article X, Section 12 of the Constitution became applicable to the city, superseding Section 89 of the Puerto Princesa charter. As such, when Puerto Princesa was converted from a component city into an HUC, its political ties with the province of Palawan were effectively severed, in accordance with the principle of HUC independence as provided in the Constitution and the LGC. It must be noted that the conversion of Puerto Princesa took effect in 2007,[43] under the aegis of the present LGC, taking its case out of the ambit of the last paragraph of Section 453(c), which only applies to cities which became HUCs after the ratification of the 1987 Constitution and before the effectivity of the LGC.

On the economic effects of LGU changes or conversions, the following excerpt from Umali is illuminating:
Often raised is that Cabanatuan City's conversion into an HUC and its severance from Nueva Ecija will result in the reduction of the Internal Revenue Allotment (IRA) to the province based on Sec. 285 of the LGC. The law states:
Sec. 285. Allocation to Local Government Units. - The share of local government units in the internal revenue allotment shall be collected in the following manner:

(a) Provinces - Twenty-three percent (23%);
(b) Cities - Twenty-three percent (23%);
(c) Municipalities - Thirty-four percent (34%); and
(d) Barangays - Twenty percent (20%)

Provided, however, That the share of each province, city, and municipality shall be determined on the basis of the following formula:

(a) Population - Fifty percent (50%);
(b) Land Area - Twenty-five percent (25%); and
(c) Equal sharing - Twenty-five percent (25%)
In our earlier disquisitions, we have explained that the conversion into an HUC carries the accessory of substantial alteration of boundaries and that the province of Nueva Ecija will, without a doubt, suffer a reduction in territory because of the severance of Cabanatuan City. The residents of the city will cease to be political constituencies of the province, effectively reducing the latter's population. Taking this decrease in territory and population in connection with the above formula, it is conceded that Nueva Ecija will indeed suffer a reduction in IRA given the decrease of its multipliers' values. x x x

x x x x

Clear as crystal is that the province of Nueva Ecija will suffer a substantial reduction of its share in IRA once Cabanatuan City attains autonomy. In view of the economic impact of Cabanatuan City's conversion, petitioner Umali's contention, that its effect on the province is not only direct but also adverse, deserves merit.

Moreover, his claim that the province will lose shares in provincial taxes imposed in Cabanatuan City is well-founded. This is based on Sec. 151 of the LGC x x x.

x x x x

Once converted, the taxes imposed by the HUC will accrue to itself. Prior to this, the province enjoys the prerogative to impose and collect taxes such as those on sand, gravel and other quarry resources, professional taxes, and amusement taxes over the component city. While, it may be argued that this is not a derogation of the province's taxing power because it is in no way deprived of its right to collect the mentioned taxes from the rest of its territory, the conversion will still reduce the province's taxing jurisdiction, and corollory to this, it will experience a corresponding decrease in shares in local tax collections. This reduction in both taxing jurisdiction and shares poses a material and substantial change to the province's economic rights, warranting its participation in the plebiscite.

x x x x

A component city's conversion into an HUC and its resultant autonomy from the province is a threat to the latter's economic viability. Noteworthy is that the income criterion for a component city to be converted into an HUC is higher than the income requirement for the creation of a province. The ensuing reduction in income upon separation would clearly leave a crippling effect on the province's operations as there would be less funding to finance infrastructure projects and to defray overhead costs. Moreover, the quality of services being offered by the province may suffer because of looming austerity measures. These are but a few of the social costs of the decline in the province's economic performance, which Nueva Ecija is bound to experience once its most progressive city of Cabanatuan attains independence.[44]
Petitioners argue that the division of Palawan into three provinces will deprive Puerto Princesa of the benefits it enjoys as the provincial capital. Specifically, they assert that the relocation of 1,400 permanent employees and 7,000 job order employees of the provincial government will affect consumer spending in Puerto Princesa.[45] They also argue that the removal of Puerto Princesa as provincial capital will result in a "dramatic decline" in the number of tourists visiting the city, and affect the price of basic commodities in the city, which will now come from three different provinces which may have different tax rates.[46]

Respondents Provincial Treasurer and Provincial Government of Palawan counter that not all of its employees are residents of Puerto Princesa, and most of its employees are assigned to different offices around the province.[47] They also argue that the rest of Palawan has enough hospitals, ports, and airports which are enough to service the needs of the three proposed provinces.[48]

As made abundantly clear in Umali, the economic factors contemplated in the determination of "political units directly affected" by an LGU change or conversion pertain strictly to fiscal or budgetary relations among the political units concerned, specifically, the sharing of internal revenue allotments, budgetary allocations, and taxing powers, all of which are governed by the pertinent provisions of the LGC and other laws. An expansion the scope of economic impact analysis outside these factors, as petitioners would want this Court to do, will require the presentation and evaluation of evidence: a task which is outside the purview of this Court's functions.[49] Furthermore, the holistic consideration of the economic effects of LGU changes or conversions is a matter of policy in which the judiciary must defer to the other two great branches of government. The holistic analysis of the economic impact of an LGU change or conversion on its neighboring LGUs concerns the wisdom, prudence, and economic viability of the proposed division, and do not pertain to the legality thereof.[50]

Confining ourselves, thus, to the consideration of what is essentially the fiscal impact on Puerto Princesa of the division of Palawan into three provinces, We must again have recourse to the provisions of the Constitution and the LGC. As an HUC, Puerto Princesa, in its own right, has the power to impose its own taxes, fees and charges, the revenues of which shall accrue to its own treasury.[51] It is likewise entitled to its own internal revenue allotment[52] and its own share in whatever natural resources may be found within its territory.[53] It is therefore clear that Puerto Princesa has been rendered fiscally autonomous from the province of Palawan by virtue of the city's conversion into an HUC.

The foregoing disquisitions make it abundantly clear that Puerto Princesa has become a distinct political entity independent and autonomous from the province of Palawan, by virtue of its conversion into a highly urbanized city in 2007. Hence, it can no longer be considered a "political unit directly affected" by the proposed division of Palawan into three provinces; and perforce, the qualified voters of the city of Puerto Princesa, including herein petitioners Cynthia S. Del Rosario, Federico N. Virgo, Jr., Renato V. Baladad, Beatriz A. Dioso, and Corazon Manalon Davila were properly excluded from the coverage of the plebiscite scheduled by RA No. 11259. The petition must therefore be dismissed.

IN VIEW OF THE FOREGOING PREMISES, the present petition for prohibition is hereby DISMISSED.

SO ORDERED.

Peralta, C. J., Perlas-Bernabe, Leonen, Caguioa, Gesmundo, J. Reyes, Jr., Hernando, Carandang, Lazaro-Javier, Inting, Zalameda, Lopez, Delos Santos, and Gaerlan, JJ., concur.


NOTICE OF JUDGMENT

Sirs/Mesdames:

Please take notice that on March 10, 2020 a Decision copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on July 16, 2020 at 3:10 p.m.



Very truly yours,



(SGD) EDGAR O. ARICHETA
 
Clerk of Court

[1] Republic Act No. 11259, Section 1.

[2] House of Representatives, 17th Congress, Committee Report No. 809. Accessed February 13, 2020 at http://www.congress.gov.ph/legisdocs/first_17/CR00809.pdf; rollo, p. 342.

[3] As admitted by petitioners and respondents; id. at 8, 342.

[4] 115 O.G. (No. 20) 5025 (2019).

[5] The second Sunday of May 2020 falls on May 11, 2020.

[6] Rollo, pp. 7-13.

[7] Id. at 13-18.

[8] Id. at 19-24.

[9] Southern Hemisphere Engagement Network, Inc., et al. v. Anti-Terrorism Council, et al., 646 Phil. 452, 472 (2010), citing Anak Mindanao Party-List Group v. Executive Secretary, 558 Phil. 338 (2007).

[10] Atty. Lozano, et al. v. Speaker Nograles, 607 Phil. 334, 342 (2009).

[11] Respondents Provincial Treasurer and Provincial Government of Palawan submitted a sample ballot for Puerto Princesa, which does not include the choices for Governor, Vice-Governor, and Members of Sangguniang Panlalawigan; rollo, pp. 129-130.

[12] G.R. Nos. 216930, 217451, 217752, 218045, 218098, 218123 & 218465, October 9, 2018.

[13] Rollo, p. 8.

[14] Id. at 82-83.

[15] Resolution No. 03, series of 2018 of the League of Municipalities of the Philippines, Palawan Chapter, "Manifesting the Full Support of the League of the Municipalities of the Philippines - Palawan Chapter to the Provincial Government of Palawan Particularly on the Passage of the Creation of Three (3) New Provinces Through the Division of Palawan;" id. at 258-259.

[16] Minutes of Consultative Meeting on Regionalization of Palawan; id. at 132-148.

[17] Minutes of the Joint Committee Meeting of the Committees on Rules and Laws and Local Government Regarding the Division of Palawan into Three Provinces, October 14, October 17, and November 7, 2017, respectively; id. at 149-240; Palawan Provincial Resolution No. 13465, series of 2017; id. at 241-245.

[18] Resolution No. 2018-026 of the Sangguniang Sayan of Rizal, Palawan; id. at 246-247; Resolution No. 30, series of 2018 of the Sangguniang Sayan of Aborlan, Palawan; id. at 248-249; Resolution No. 2018-78 of the Sangguniang Sayan of San Vicente, Palawan; id. at 250-251; Resolution No. 141, series of 2017 of the Sangguniang Bayan of Coron, Palawan; id. at 252-254; Resolution No. 2018-3249 of the Sangguniang Sayan of Narra, Palawan; id. at 255-257.

[19] Joaquin G. Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, pp. 1272-1273 (2009). Citations omitted.

[20] CONSTITUTION, Art. II. Sec. 1.

[21] 226 PHIL 624 (1986).

[22] Id. at 639.

[23] 289 Phil. 356 (1992).

[24] Id. at 360-361.

[25] 309 Phil. 100 (1994).

[26] Id. at 106.

[27] 373 PHIL 386 (1999).

[28] In the words of the Court, "downgrading."

[29] Supra note 27 at 400-402.

[30] 733 Phil. 775 (2014).

[31] Id. at 809.

[32] Rollo, pp. 16-17.

[33] Comment of Provincial Treasurer and Provincial Government of Palawan; id. at 87.

[34] Supra note 25.

[35] 593 Phil. 678 (2008).

[36] Batas Pambansa Blg. 337, Sections 166-168.

[37] See Ceniza v. Commission on Elections, 184 Phil. 597 (1980).

[38] CONSTITUTION, Article X, Section 12; LOCAL GOVERNMENT CODE, Sec. 452(c).

[39] LOCAL GOVERNMENT CODE, Sections 25, 45, 47, 61, 62, 67, and 82.

[40] LOCAL GOVERNMENT CODE, Sections 13(b) (regarding special provisions for street renaming in HUCs), 39(b) (regarding qualifications of local chief executives, where the mayors, vice-mayors and member of the sangguniang panlungsod of HUCs are placed in the same group as governors, vice­-governors, and members of the sangguniang panlalawigan), 118(d) (regarding the settlement of boundary disputes where one of the parties is a HUC), 386(a) (regarding increased population requirement for creation of a barangay in Metro Manila and other HUCs), 436(c) (providing that elected presidents of the pederasyon at the provincial, highly urbanized city, and metropolitan political subdivision levels shall constitute the pambansang katipunan ng mga sangguniang kabataan), and 456(b) (prescribing different salary grades for vice-mayors of HUCs as against vice-mayors of component cities).

[41] Supra note 30 at 806-809. Citations omitted.

[42] Republic Act No. 5906, Sec. 89.

[43] Presidential Proclamation No. 1264, Conversion of Puerto Princesa City into a Highly-Urbanized City, March 26, 2007]. The conversion was approved by the electorate of the city in a plebiscite held on July 9, 2007. See Mitra v. Commission on Elections, 636 PHIL 753 (2010) and Umali v. Commission on Elections, supra note 12 at 798. See also Philippine Statistics Authority, PSGC Updates (July-September 2007). Accessed 17 February 2020 at https://web.archive.org/web/20160508081947/http://nap.psa.gov.ph/activestats/psgc/PSGC_updates/Sept07.asp.

[44] Supra note 30 at 802-806. Citations omitted.

[45] Rollo, p. 19.

[46] Id. at 20.

[47] Comment of Provincial Treasurer and Provincial Government of Palawan; id. at 110.

[48] Id. at 110-112.

[49] The Supreme Court is not a trier of facts. Spouses Liu v. Espinosa, G.R. No. 238513, July 31, 2019; University of the Philippines v. City Treasurer of Quezon City, G.R. No. 214044, June 19, 2019; Miranda v. Social Security Commission, G.R. No. 238104, February 27, 2019; Union Bank of the Philippines v. Regional Agrarian Reform Officer, 806 Phil. 545 (2017); Information Technology Foundation of the Philippines v. Commission on Elections, 810 Phil. 400 (2017); Heirs of Villanueva v. Heirs of Mendoza, 810 Phil. 172 (2017).

[50] Council of Teachers and Staff of Colleges and Universities of the Philippines v. Secretary of Education, supra note 12; Padilla v. Congress of the Philippines, 814 Phil. 344 (2017), citing Diocese of Bacolod v. Commission on Elections, 751 Phil. 301 (2015);

[51] LOCAL GOVERNMENT CODE, Sec. 151.

[52] LOCAL GOVERNMENT CODE, Sec. 285.

[53] LOCAL GOVERNMENT CODE, Sec. 292.

By at No comments:

LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, AND MARY JOY RUBRICO CARBONEL, PETITIONERS, VS. 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.

 

EN BANC

[ G.R. No. 183871, February 18, 2010 ]

LOURDES D. RUBRICO, JEAN RUBRICO APRUEBO, AND MARY JOY RUBRICO CARBONEL, PETITIONERS, VS. GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, MAJ. DARWIN SY A.K.A. DARWIN REYES, JIMMY SANTANA, RUBEN ALFARO, CAPT. ANGELO CUARESMA, A CERTAIN JONATHAN, P/SUPT. EDGAR B. ROQUERO, ARSENIO C. GOMEZ, AND OFFICE OF THE OMBUDSMAN, RESPONDENTS.

D E C I S I O N


VELASCO JR., J.:

In this petition for review under Rule 45 of the Rules of Court in relation to Section 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, Dasmariñas, 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 Dasmariñas, 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., Dasmariñas, 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, Dasmariñas, 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., Parañaque City, but nothing has happened; and the threats and harassment incidents have been reported to the Dasmariñas 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-à-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 Dasmariñas 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., Parañaque City. The person residing in the apartment on that given address is one Darius/Erwin See @ Darius Reyes allegedly working, per the latter's 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 court's process server on Darwin Sy/Reyes, Santana, Alfaro, Capt. Cuaresma, and Jonathan.

The legal skirmishes that followed over the propriety of excluding President Arroyo from the petition, petitioners' motions for service by publication, and the issuance of a TPO are not of decisive pertinence in this recital. The bottom line is that, by separate resolutions, the CA dropped the President as respondent in the case; denied the motion for a TPO for the court's want of authority to issue it in the tenor sought by petitioners; and effectively denied the motion for notice by publication owing to petitioners' failure to submit the affidavit required under Sec. 17, Rule 14 of the Rules of Court.[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 President's purported lack of immunity from suit during her term of office. The 1987 Constitution, so they claim, has removed such immunity heretofore enjoyed by the chief executive under the 1935 and 1973 Constitutions.

Petitioners are mistaken. The presidential immunity from suit remains preserved under our system of government, albeit not expressly reserved in the present constitution. Addressing a concern of his co-members in the 1986 Constitutional Commission on the absence of an express provision on the matter, Fr. Joaquin Bernas, S.J. observed that it was already understood in jurisprudence that the President may not be sued during his or her tenure.[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 CA's holding broadly hinted, would have been accountable for the abduction and threats if the actual malefactors were members of the AFP or PNP.

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

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

The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed combats. According to Fr. Bernas, "command responsibility," in its simplest terms, means the "responsibility of commanders for crimes committed by subordinate members of the armed forces or other persons subject to their control in international wars or domestic conflict."[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 former's allegations directly linking Lourdes' abductors and tormentors to the military or the police establishment. We note, in fact, that Lourdes, when queried on cross-examination, expressed the belief that Sy/Reyes was an NBI agent.[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 CA's evaluation of their evidence, consisting of the testimonies and affidavits of the three Rubrico women and five other individuals, petitioners have not satisfactorily hurdled the evidentiary bar required of and assigned to them under the Amparo Rule. In a very real sense, the burden of evidence never even shifted to answering respondents. The Court finds no compelling reason to disturb the appellate court's determination of the answering respondents' role in the alleged enforced disappearance of petitioner Lourdes and the threats to her family's security.

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

As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied that they have no direct or indirect hand in the alleged enforced disappearance of Lourdes and the threats against her daughters. As police officers, though, theirs was the duty to thoroughly investigate the abduction of Lourdes, a duty that would include looking into the cause, manner, and like details of the disappearance; identifying witnesses and obtaining statements from them; and following evidentiary leads, such as the Toyota Revo vehicle with plate number XRR 428, and securing and preserving evidence related to the abduction and the threats that may aid in the prosecution of the person/s responsible. As we said in Manalo,[33] 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."[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 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,[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 Joy's charge of having been harassed by respondent P/Insp. Gomez. With the view we take of this incident, there is nothing concrete to support the charge, save for Mary Joy's bare allegations of harassment. We cite with approval the following self-explanatory excerpt from the appealed CA decision:

In fact, during her cross-examination, when asked what specific act or threat P/Sr. Gomez (ret) committed against her or her mother and sister, Mary Joy replied "None ..."[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 judgment--disposing 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 them--hews 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. Razon's imminent compulsory retirement from the military and police services, respectively. Accordingly, the CA directives, as hereinafter redefined and amplified to fully enforce the amparo remedies, are hereby given to, and shall be directly enforceable against, whoever sits as the commanding general of the AFP and the PNP.

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

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

Puno, C.J., Corona, Nachura, Leonardo-De Castro, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, and Mendoza, JJ., concur.
Carpio, J., join the separate opinion of J. Morales.
Carpio Morales, J., please see separate opinion.
Brion, J., pls. see separate opinion.
Peralta, J., 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 .

[15] Eugenia Levine, Command Responsibility, The Mens Rea Requirement, Global Policy Forum, February 2005 . 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," (visited September 9, 2009).

[17] Adopted by 120 members of the UN on July 17, 1998 and entered into force on July 1, 2002 (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 .

[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




SEPARATE OPINION


CARPIO MORALES, J.:


I concur with the ponencia in all respects, except its treatment of the doctrine of command responsibility.

The ponencia's ambivalence on the applicability of the doctrine of command responsibility overlooks its general acceptance in public international law, which warrants its incorporation into Philippine law via the incorporation clause of the Constitution.

Under Article II, Section 2 of the Constitution, the Philippines adopts the generally accepted principles of international law as part of the law of the land. Based on the clarification provided by then Commissioner Adolfo Azcuna, now a retired member of this Court, during the deliberations of the Constitutional Commission, the import of this provision is that the incorporated law would have the force of a statute.[1]

The most authoritative enumeration of the sources of international law, Article 38 of the Statute of the International Court of Justice (ICJ Statute),[2] does not specifically include "generally accepted principles of international law." To be sure, it is not quite the same as the "general principles of law" recognized under Article 38(1)(c) of the ICJ Statute. Renowned publicist Ian Brownlie suggested, however, that "general principles of international law" may refer to rules of customary law, to general principles of law as in Article 38(1)(c), or to logical propositions resulting from judicial reasoning on the basis of existing international law and municipal analogies.[3]

Indeed, judicial reasoning has been the bedrock of Philippine jurisprudence on the determination of generally accepted principles of international law and consequent application of the incorporation clause.

In Kuroda v. Jalandoni,[4] the Court held that while the Philippines was not a signatory to the Hague Convention and became a signatory to the Geneva Convention only in 1947, a Philippine Military Commission had jurisdiction over war crimes committed in violation of the two conventions before 1947. The Court reasoned that the rules and regulations of the Hague and Geneva Conventions formed part of generally accepted principles of international law. Kuroda thus recognized that principles of customary international law do not cease to be so, and are in fact reinforced, when codified in multilateral treaties.

In International School Alliance of Educators v. Quisumbing,[5] the Court invalidated as discriminatory the practice of International School, Inc. of according foreign hires higher salaries than local hires. The Court found that, among other things, there was a general principle against discrimination evidenced by a number of international conventions proscribing it, which had been incorporated as part of national laws through the Constitution.

The Court thus subsumes within the rubric of "generally accepted principles of international law" both "international custom" and "general principles of law," two distinct sources of international law recognized by the ICJ Statute.

Respecting the doctrine of command responsibility, a careful scrutiny of its origin and development shows that it is a widely accepted general principle of law if not, also, an international custom.

The doctrine of command responsibility traces its roots to the laws of war and armed combat espoused by ancient civilizations. In a 1439 declaration of Charles VII of Orleans, for instance, he proclaimed in his Ordinances for the Armies:

[T]he King orders each captain or lieutenant be held responsible for the abuses, ills, and offences committed by members of his company, and that as soon as he receives any complaint concerning any such misdeed or abuse, he bring the offender to justice so that the said offender be punished in a manner commensurate with his offence, according to these Ordinances. If he fails to do so or covers up the misdeed or delays taking action, or if, because of his negligence or otherwise, the offender escapes and thus evades punishment, the captain shall be deemed responsible for the offence, as if he has committed it x x x .[6] (underscoring supplied.)


The first treaty codification of the doctrine of command responsibility was in the Hague Convention IV of 1907.[7] A provision therein held belligerent nations responsible for the acts of their armed forces,[8] prefiguring the modern precept of holding superiors accountable for the crimes of subordinates if they fail in their duties of control, which is anchored firmly in customary international law.[9]

The development of the command responsibility doctrine is largely attributable to the cases related to World War II and subsequent events.

One prominent case is the German High Command Case[10] tried by the Nuremberg Tribunal, wherein German officers were indicted for atrocities allegedly committed in the European war. Among the accused was General Wilhelm Von Leeb, who was charged with implementing Hitler's Commissar and Barbarossa Orders, which respectively directed the murder of Russian political officers and maltreatment of Russian civilians. Rejecting the thesis that a superior is automatically responsible for atrocities perpetrated by his subordinates, the tribunal acquitted Von Leeb. It acknowledged, however, that a superior's negligence may provide a proper basis for his accountability even absent direct participation in the commission of the crimes. Thus:

[C]riminality does not attach to every individual in this chain of command from that fact alone. There must be a personal dereliction. That can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. (underscoring supplied.)

In In re Yamashita,[11] the issue was framed in this wise:

The question then is whether the law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of the specified acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and whether he may be charged with personal responsibility for his failure to take such measures when violations result. (emphasis, underscoring and italics supplied.)

Resolving the issue in the affirmative, the Court found General Tomoyuki Yamashita guilty of failing to control the members of his command who committed war crimes, even without any direct evidence of instruction or knowledge on his part.

The post-World War II formulation of the doctrine of command responsibility then came in Protocol I of 1977, Additional Protocol to the Geneva Conventions[12] of 1949, Article 86 of which provides:

  1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.

  2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information that should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.[13] (emphasis, underscoring and italics supplied.)

The doctrine of command responsibility has since been invariably applied by ad hoc tribunals created by the United Nations for the prosecution of international crimes, and it remains codified in the statutes of all major international tribunals.[14]

From the foregoing, it is abundantly clear that there is a long-standing adherence by the international community to the doctrine of command responsibility, which makes it a general principle of law recognized by civilized nations. As such, it should be incorporated into Philippine law as a generally accepted principle of international law.

While the exact formulation of the doctrine of command responsibility varies in different international legal instruments, the variance is more apparent than real. The Court should take judicial notice of the core element that permeates these formulations - a commander's negligence in preventing or repressing his subordinates' commission of the crime, or in bringing them to justice thereafter. Such judicial notice is but a necessary consequence of the application of the incorporation clause vis-à-vis the rule on mandatory judicial notice of international law.[15]

That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or administrative liability should not abate the applicability of the doctrine of command responsibility. Taking Secretary of National Defense v. Manalo[16] and Razon v. Tagitis[17] in proper context, they do not preclude the application of the doctrine of command responsibility to Amparo cases.

Manalo was actually emphatic on the importance of the right to security of person and its contemporary signification as a guarantee of protection of one's rights by the government. It further stated that protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances, or threats thereof, and/or their families, and bringing offenders to the bar of justice.[18]

Tagitis, on the other hand, cannot be more categorical on the application, at least in principle, of the doctrine of command responsibility:

Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extraordinary diligence that the Amparo Rule requires. We hold these organizations accountable through their incumbent Chiefs who, under this Decision, shall carry the personal responsibility of seeing to it that extraordinary diligence, in the manner the Amparo Rule requires, is applied in addressing the enforced disappearance of Tagitis. (emphasis and underscoring supplied.)

Neither does Republic Act No. 9851[19] emasculate the applicability of the command responsibility doctrine to Amparo cases. The short title of the law is the "Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity." Obviously, it should, as it did, only treat of superior responsibility as a ground for criminal responsibility for the crimes covered.[20] Such limited treatment, however, is merely in keeping with the statute's purpose and not intended to rule out the application of the doctrine of command responsibility to other appropriate cases.

Indeed, one can imagine the innumerable dangers of insulating high-ranking military and police officers from the coverage of reliefs available under the Rule on the Writ of Amparo. The explicit adoption of the doctrine of command responsibility in the present case will only bring Manalo and Tagitis to their logical conclusion.

In fine, I submit that the Court should take this opportunity to state what the law ought to be if it truly wants to make the Writ of Amparo an effective remedy for victims of extralegal killings and enforced disappearances or threats thereof. While there is a genuine dearth of


evidence to hold respondents Gen. Hermogenes Esperon and P/Dir. Gen. Avelino Razon accountable under the command responsibility doctrine, the ponencia's hesitant application of the doctrine itself is replete with implications abhorrent to the rationale behind the Rule on the Writ of Amparo.


[1] 4 Record of the Constitutional Commission 772 (1986). The Commission unanimously voted in favor of the provision, with no abstentions.

[2] The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States;

(b) international custom, as evidence of a general practice accepted as law;

(c) general principles of law recognized by civilized nations;

(d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Statute of the International Court of Justice, Art. 38(1).

[3] Ian Brownlie, Principles of Public International Law Sixth Edition 18 (2003).

[4] 83 Phil. 171, 178 (1949).

[5] G.R. No. 128845, June 1, 2000, 333 SCRA 13.

[6] Text culled from Theodor Meron, Henry's Wars and Shakespeare's Laws 149 N.40, Article 19 (Eng. Tr. 1993); Louis Guillaume De Vilevault & Louis Brequigny, Ordonnances Des Rois De France De La Troisieme Race XIII, 306 (1782).

[7] Respecting the Laws and Customs of War on Land, October 18, 1907, U.S.T.S. 539, 36 Stat. 2277.

[8] Id., Article 3.

[9] Vide Prosecutor v. Mucic, International Criminal Tribunal for the Former Yugoslavia (Appeals Chamber), judgment of February 20, 2001, para. 195. For command responsibility in international armed conflict, vide Prosecutor v. Hadzihasanovic, International Criminal Tribunal for the Former Yugoslavia (Appeals Chamber), decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility of July 16, 2003, paras. 11 et seq.

[10] United Nations War Crimes Commission, XII Law Reports of Trials of War Criminals 1, 76 (1948).

[11] 327 US 1 (1946).

[12] The Geneva Conventions consist of four treaties concluded in Geneva, Switzerland that deal primarily with the treatment of non-combatants and prisoners of war. The four Conventions are:

First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (first adopted in 1864, last revised in 1949)

Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (first adopted in 1949, successor to the 1907 Hague Convention X)

Third Geneva Convention relative to the Treatment of Prisoners of War (first adopted in 1929, last revised in 1949)

Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (first adopted in 1949, based on parts of the 1907 Hague Convention IV).

[13] Protocol I Additional to the Geneva Conventions of August 12, 1949 and relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3.

[14] Statute of the International Criminal Tribunal for the former Yugoslavia, UN Doc. S/RES/827 (1993), Annex, Article 7(3); Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/RES/955 (1994), Annex, Article 6(3); Statute of the Special Court for Sierra Leone, Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, January 16, 2002, Annex, Article 6(3); Statute of the Khmer Rouge Tribunal, Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, Article 29; Rome Statute of the International Criminal Court, circulated as document A/CONF. 183/9 of July 17, 1998 and corrected by process-verbaux of November 10, 1998, July 12, 1999, November 30, 1999, May 8, 2000, January 17, 2001 and January 16, 2002, Article 28; Statute of the Special Tribunal for Lebanon, UN Doc. S/RES/1757 (2007), Article 3(2).

[15] Section 1, Rule 129 of the Rules of Court provides in relevant part:

Section 1. Judicial notice, when mandatory. - A court shall take judicial notice, without the introduction of evidence, of . . . the law of nations . . .

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

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

[18] Supra note 16 at 57.

[19] AN ACT DEFINING AND PENALIZING CRIMES AGAINST INTERNATIONAL HUMANITARIAN LAW, GENOCIDE AND OTHER CRIMES AGAINST HUMANITY, ORGANIZING JURISDICTION, DESIGNATING SPECIAL COURTS, AND FOR RELATED PURPOSES; SIGNED INTO LAW ON DECEMBER 11, 2009.

[20] Section 10. Responsibility of Superiors. - In addition to other grounds of criminal responsibility for crimes defined and penalized under this Act, a superior shall be criminally responsible as a principal for such crimes committed by subordinates under his/her effective command and control, or effective authority and control as the case may be, as a result of his/her failure to properly exercise control over such subordinates, where:

(a) That superior either knew or, owing to the circumstances at the time, should have known that the subordinates were committing or about to commit such crimes;

(b) That superior failed to take all necessary and reasonable measures within his/her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.




SEPARATE OPINION

BRION, J.:

I CONCUR with the ponencia and its results but am compelled to write this Separate Opinion to elaborate on some of the ponencia's points and to express my own approach to the case, specifically, an "alternative approach" in resolving the case that the ponencia only partially reflects. On this point, I still believe that my "alternative approach" would be more effective in achieving the objectives of a Writ of Amparo.

For the record, I wish at the outset to draw attention to the recent enactment on December 11, 2009 of Republic Act No. 9851 (RA 9851), otherwise known as "An Act Defining and Penalizing Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity, Organizing Jurisdiction, Designating Special Courts, and for Related Purposes." Two aspects relevant to the present case have been touched upon by this law, namely, the definition of enforced or involuntary disappearance, and liability under the doctrine of command responsibility. Under Section 3(g) of the law, "enforced or involuntary disappearance" is now defined as follows:

(g) "Enforced or involuntary disappearance of persons" means the arrest, detention, or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons with the intention of removing from the protection of the law for a prolonged period of time.[1]

With this law, the Rule on the Writ of Amparo is now a procedural law anchored, not only on the constitutional rights to the rights to life, liberty and security, but on a concrete statutory definition as well of what an "enforced or involuntary disappearance" is. This new law renders academic and brings to a close the search for a definition that we undertook in Razon v. Tagitis[2] to look for a firm anchor in applying the Rule on the Writ of Amparo procedures.

I shall discuss RA 9851's effect on doctrine of command responsibility under the appropriate topic below.

Background

By way of background, the petition for the Writ of Amparo dated October 25, 2007 alleged that petitioner Lourdes Rubrico (Lourdes) was kidnapped and detained without any basis in law on April 3, 2007, but was subsequently released by her captors. Soon after her release on April 10, 2007, Lourdes and her children Jean Rubrico Apruebo and Joy Rubrico Carbonel (collectively, the petitioners) filed with the Ombudsman their complaint (dated April 19, 2007) against respondents Capt. Angelo Cuaresma, Ruben Alfaro, Jimmy Santana, a certain Jonathan and Darwin Sy or Darwin Reyes. The Ombudsman complaint was for violation of Articles 124 and 267 of the Revised Penal Code, and of Section 4, Rep. Act No. 7438, paragraphs (a) and (b).

During Lourdes' detention and after her release, her children (who initially looked for her and subsequently followed up the investigation of the reported detention with the police), and even Lourdes herself, alleged that they were harassed by unknown persons they presumed to be military or police personnel.

On October 25, 2007, the petitioners filed the present petition regarding: (1) the failure of the respondents to properly investigate the alleged kidnapping; and (2) the acts of harassment the petitioners suffered during the search for Lourdes and after her release. The petition also alleged that the Ombudsman violated Lourdes' right to the speedy disposition of her case, and placed her and her witnesses in danger because of its inaction.

Re: Respondent President Macapagal-Arroyo

The ponencia correctly ruled that the dismissal of the petition as against the President is proper because of her immunity from suit during her term.[3] The more basic but unstated reason is that the petitioners did not even specifically state the act or omission by which the President violated their right as required by Section 2, Rule 2 of the Rules of Court, and therefore, failed to prove it. Thus, I fully concur with the dismissal the ponencia directed.

Re: The Ombudsman

I likewise agree with the ponencia's conclusion that the petition against the Ombudsman should be dismissed for the reason discussed below.

The petitioner simply alleged that the Ombudsman violated her right to speedy disposition of the criminal complaint, with the passing claim that the delay has placed her life and that of her witnesses in danger. She failed to aver the fact of delay; the dilatory acts of the Ombudsman, if any; and manner and kind of danger the delay caused her.

Thus, the petition did not allege anything that would place it within the ambit of the Rule on the Writ of Amparo (the Amparo Rule) with respect to the Ombudsman; it did not involve any violation by the Ombudsman relating to any disappearance, extrajudicial killing or any violation or threat of violation of the petitioners' constitutional rights to life, liberty or security.

For this reason, the petition stated no cause of action against the Ombudsman under the Amparo Rule, contrary to Section 2, Rule 2 of the Rules of Court, in relation with Section 5 of the Amparo Rule. I thus join the ponencia in dismissing the case against the Ombudsman.

Re: The Command Responsibility Ruling

On the command responsibility issue, the CA held in its decision that:

The doctrine of command responsibility holds military commanders and other persons occupying positions of superior authority criminally responsible for the unlawful conduct of their subordinates. For the doctrine to apply, the following elements must be shown to exist: (i) the existence of a superior-subordinate relationship; (ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and (iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator (Joaquin Bernas, S.J. Command Responsibility, February 7, 2007).

Since petitioners failed to establish by substantial evidence the first element of command responsibility, i.e., that the perpetrators of the acts complained of are subordinates of Gen. Esperon and P/Dir. Gen Razon, we cannot hold the two officials liable under a writ of amparo.

Under these terms, the CA effectively ruled that the doctrine of command responsibility applies in an Amparo case, but could not be applied in this case for lack of proof that the alleged perpetrators were military or police personnel.

The ponencia rejects the CA's approach and conclusion and holds that command responsibility is not an appropriate consideration in an Amparo proceeding, except for purposes specific and directly relevant to these proceedings. I fully concur with this conclusion.

The doctrine of command responsibility is a substantive rule that establishes criminal or administrative liability that is different from the purpose and approach of the Amparo Rule. As we have painstakingly explained in Secretary of Defense v. Manalo[4] and Razon v. Tagitis,[5] the Amparo Rule merely provides for a procedural protective remedy against violations or threats of violations of the constitutional rights to life, liberty and security. It does not address criminal, civil or administrative liability as these are matters determined from the application of substantive law.

As heretofore mentioned, a new law - RA 9851 - has recently been passed relating to enforced disappearance and command responsibility. Section 10 of this law explicitly makes superiors criminally liable under the doctrine of command responsibility, as follows:[6]

Section 10. Responsibility of Superiors. - In addition to other grounds of criminal responsibility for crimes defined and penalized under this Act, a superior shall be criminally responsible as a principal for such crimes committed by subordinates under his/her effective command and control, or effective authority and control as the case may be, as a result of his/her failure to properly exercise control over such subordinates, where:

(a) That superior either knew or, owing to the circumstances at the time, should have known that the subordinates were committing or about to commit such crimes;

(b) That superior, failed to take all necessary and reasonable measures within his/her power to prevent or repress their commissio0n or to submit the matter to the competent authorities for investigation and prosecution.

Thus, liability under the doctrine of command responsibility is no longer simply administrative (based on neglect of duty),[7] but is now criminal. This new development all the more stresses that the doctrine of command responsibility has limited application to the Rule on the Writ of Amparo whose concern is the protection of constitutional rights through procedural remedies.

The factual issue an Amparo case directly confronts is whether there has been a disappearance or an extrajudicial killing or threats to the constitutional rights to life, liberty and security. If at all possible, a preliminary determination can be made on who could have perpetrated the acts complained of, but only for the purpose of pointing the way to the remedies that should be undertaken. On the basis of a positive finding, the case proceeds to its main objective of defining and directing the appropriate procedural remedies to address the threat, disappearance or killing.[8] In meeting these issues, the Amparo Rule specifies the standard of diligence that responsible public officials carry in the performance of their duties. Expressly,[9] one duty the Amparo Rule commands is the investigation of a reported crime that, by law,[10] the police is generally duty bound to address.

To the extent of (1) answering the question of whether an enforced disappearance, an extrajudicial killing or threats thereof have taken place and who could have been the perpetrators of these deeds; (2) determining who has the immediate duty to address the threat, disappearance, extrajudicial killing or violation of constitutional right; and in (2) determining the remedial measures that need to be undertaken - the doctrine of command responsibility may find some relevance to the present petition.

This linkage, however, does not go all the way to a definitive determination of criminal or administrative liability, or non-liability, for the act of a subordinate or for neglect of duty. This question is far from what the CA or this Court can definitively answer in an Amparo petition and is certainly an improper one to answer in an Amparo proceeding. It has never been the intention of the Amparo Rule to determine liability, whether criminal or administrative; the Court, under the Amparo Rule, can only direct that procedural remedies be undertaken for the protection of constitutional rights to life, liberty and security.

In Tagitis, we pointedly stated that while the Court can preliminarily determine responsibility in terms of authorship (not liability), this is only "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." In doing this, we gave "responsibility" a peculiar meaning in an Amparo proceeding. (We did the same with the term "accountability.")[11] It is only in this same sense that the CA can hold respondents Gen. Esperon and P/Dir. Gen. Razon not liable under the doctrine of command responsibility.

Re: Respondents P/Dir. Gen. Razon and Gen. Esperon

Subject to the above observations and for the reasons discussed below, I concur in dismissing the petition against the respondents P/Dir. Gen. Razon and Gen. Esperon who were impleaded in their capacities as Philippine National Police (PNP) Chief and Armed Forces of the Philippines (AFP) Chief of Staff, respectively. As a matter of judicial notice, they are no longer the incumbents of the abovementioned positions and cannot therefore act to address the concerns of a Writ of Amparo. In their places should be the incumbent PNP Chief and AFP Chief of Staff to whom the concerns of and the responsibilities under the petition and the Amparo Rule should be addressed. Unless otherwise directed by the Court, these incumbent officials shall assume direct responsibility for what their respective offices and their subordinate officials should undertake in Amparo petitions. This is in line with what we did in Tagitis where, as appropriate remedy, we applied the broadest brush by holding the highest PNP officials tasked by law to investigate, to be accountable for the conduct of further investigation based on our finding that no extraordinary diligence had been applied to the investigation of the case.

Consistent with this position, the petition should likewise be dismissed as against respondents Edgar B. Roquero (Roquero) and Arsenio C. Gomez (Gomez), except to the extent that Gomez may be charged with harassment and oppression before the Ombudsman[12] as these are substantive liability matters that are not laid to rest under an Amparo petition.

Re: Consideration of the Evidence and the Remedy

I acknowledge that the police at the municipal and provincial levels conducted investigations that unfortunately did not produce concrete results because of, among others, the lack of cooperation from the petitioners at some point during the investigation. No amount of extraordinary diligence indeed can produce results if the very persons seeking the investigation would not cooperate.

I do not read this intervening development, however, to be indicative of lack of interest in the case, given the efforts on record exerted by the petitioners to follow up the case at every level of police investigation. Moreover, the petitioners still pursued their petition and relied on this Court, in the hope that we can remedy what they perceive to be inadequate police investigative response.

In my view, the perceived lack of cooperation resulted more from frustration with police processes rather than from the outright refusal to cooperate. As we discussed in Tagitis, this is precisely the type of situation that a Writ of Amparo addresses - a situation where the petitioners swim against the current in a river strewn with investigative and evidentiary difficulties.

From the records, I note that very significant gaps exist in the handling of the investigation - among them, the failure to identify and locate the respondents Major Darwin Reyes/Sy, Jimmy Santana, Ruben Alfaro, Captain Angelo Cuaresma and a certain Jonathan - to the point that the petition was not even served on these respondents. This gap occurred despite evidence that the respondents are military or police personnel and that the address of Darwin Reyes/Sy had apparently been located and he had been identified to be connected with the military. A major problem, as the petition pointed out, is that the AFP itself certified that these respondents are not in the roster of Philippine Air Force personnel; no search and certification was ever made on whether they are AFP personnel or in other branches of the service. No significant follow through was also made in locating and properly placing Darwin Reyes/Sy within the jurisdiction of the court despite the evidentiary leads provided. These constitute major gaps in the investigation that became the stumbling blocks to its progress, both with the CA and the Ombudsman. Both bodies failed to make any headway because only the investigating respondents who are not alleged participants in the kidnapping showed up while the alleged perpetrators did not. This Court will never know unless further investigation is conducted whether this happened by design or by accident.

Based on this view, I agree with the ponencia that further investigation and monitoring should be undertaken. While past investigations may have been conducted, no extraordinary diligence had been applied to critical aspects of the case that are outside the petitioners' capability to act upon and which therefore have not been affected by the petitioners' lack of cooperation, even assuming this to be true. Because of this investigative shortcoming, we do not have sufficient factual findings that would give us the chance to fashion commensurate remedies. Otherwise stated, we cannot rule on the case until a more meaningful investigation using extraordinary diligence is undertaken.

The ponencia holds that the needed additional actions should be undertaken by the CA. I concur with this ruling as it is legally correct; the CA started the fact-finding on the case and has adequate powers and capability to pursue it. I wish to reiterate in this Separate Opinion, however, that an alternative way exists that is more direct and more efficient in achieving the goals of the Rule on the Writ of Amparo - i.e. the full and complete investigation with the observance of extraordinary diligence, and the recommendation for the prosecution of the parties who appear to be responsible for the violation of the constitutional rights to life, liberty and security. This alternative is based on the relevant provisions of the Amparo Rule, particularly Sections 20 to 23 which provide:

SECTION 20. Archiving and Revival of Cases. -- The 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 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.

The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule not later than the first week of January of every year.

SECTION 21. Institution of Separate Actions. -- This Rule shall not preclude the filing of separate criminal, civil or administrative actions.

SECTION 22. Effect of Filing of a Criminal Action - When a criminal action has been commenced, no separate petition 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.

SECTION 23. Consolidation. -- When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of Amparo, the latter shall be consolidated with the criminal action.

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

SECTION 26. Applicability to Pending Cases. -- This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts.

Section 22 of the Amparo Rule would be the closest provision to apply to the present case since a criminal action has been commenced before the Ombudsman (on April 19, 2007) before the present petition was filed on October 25, 2007. Under Section 22, no petition for the Writ of Amparo can technically be filed because of the previous commencement of criminal action before the Ombudsman. In the regular course, the present petition should have been dismissed outright at the first instance.

Yet, as the case developed, the Court issued the Writ of Amparo and the CA denied the petition on other grounds. As things now stand, it appears late in the day to dismiss the petition on the basis of Section 22. We should consider, too, that the present petition came under a unique non-repeatable circumstance - the Ombudsman complaint was filed before the Amparo Rule took effect; thus, the petitioners did not really have a choice of remedies when they filed the criminal complaint before the Ombudsman. There is likewise the consideration that the Ombudsman complaint was only against the perceived perpetrators of the kidnapping, whereas the present petition impleaded even those who had the duty to investigate or could effectively direct investigation of the case. The kidnapping and the threats that resulted, too, are inextricably linked and should not separately and independently be considered under prevailing procedural rules.[13]

Under the circumstances, I believe that the best approach is to simply avail of the possibilities that the combined application of the above-quoted provisions offer, appropriately modified to fit the current situation. Thus, this Court can simply consolidate the investigative and fact-finding aspects of the present petition with the investigation of the criminal complaint before the Ombudsman, directing in the process that the threats to the right to security aired in the present petition be incorporated in the Ombudsman complaint. Necessarily, all the records and evidence so far adduced before the CA should likewise be turned over and be made available to the Ombudsman in its investigation, in accordance with the dispositions made in this Decision. For purposes of its delegated investigative and fact-finding authority, the Ombudsman should be granted the complete investigative power available under the Amparo Rule.

The petitioners should be allowed, as they see fit, to amend their Ombudsman complaint to give full effect to this consolidation.

In the above manner, the Court continues to exercise jurisdiction over the Amparo petition and any interim relief issue that may arise, taking into account the Ombudsman's investigative and fact-finding recommendations.

The Ombudsman, for its part, shall rule on the complaint before it in accordance with its authority under Republic Act 6770 and its implementing rules and regulations, and report to the Court its investigative and fact-finding recommendations on the Amparo petition within one year from the promulgation of this Decision.

The incumbent Chiefs of the AFP and the PNP and their successors shall remain parties to the Ombudsman case and to the present petition in light of and under the terms of the consolidation, and can be directed to act, as the ponencia does direct them to act.

Now that the case has been remanded for further investigation and monitoring to the Court of Appeals, the investigation using the standards of extraordinary diligence now rests with that court to enforce, using all the powers and authority that this Court can grant under the Rule on the Writ of Amparo. The Ombudsman, for its part, has been duly enlightened by the ponencia and by this Separate Opinion on the directions it should take to effectively discharge its tasks in handling the complaint before it. The petitioners, too, have their share of the burden in pushing their case to a meaningful conclusion and cannot just wait for the other dramatis personae to act. With the Court's Decision, action has again shifted to the lower levels and the Court now simply waits to see if the appellate court, the Ombudsman and the parties, acting on their own and collectively, can be equal to the tasks before them.


[1] Under Section 6 of RA 9851, enforced or involuntary disappearance is penalized under the concept of "other crimes against humanity" when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

[2] G.R. No. 182498, Dec. 3, 2009.

[3] Under Section 9 of RA 9851, the Philippine constitutional standard of presidential immunity from suit is also made an exception to the higher international criminal law standard of non-immunity of heads of state for the most serious crimes of concern to the international community as a whole - namely, war crimes, genocide, and crimes against humanity. Thus, Section 9 states:

Section 9. Irrelevance of Official Capacity. - This Act shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Act, nor shall it, in and of itself, constitute a ground for reduction of sentence. However:

(a) Immunities or special procedural rules that may be attached to the official capacity of a person under Philippine law other than the established constitutional immunity from suit of the Philippine President during his/her tenure, shall not bar the court from exercising jurisdiction over such a person; and

(b) Immunities that may be attached to the official capacity of a person under international law may limit the application of this Act, nut only within the bounds established under international law. [emphasis supplied]

[4] G.R. No. 180906, Oct. 7, 2008, 568 SCRA 1, 57-58.

[5] Supra note 1.

[6] Similarly, Section 13 of Republic Act No. 9745, otherwise known as the "Anti-Torture Act of 2009" makes "[t]he immediate commanding officer of the unit concerned of the AFP or the immediate senior public official of the PNP and other law enforcement agencies criminally liable as a principal to the crime of torture or other cruel or inhuman and degrading treatment or punishment "[i]f he/she has knowledge of or, owing to the circumstances at the time, should have known that acts of torture or other cruel, inhuman and degrading treatment or punishment shall be committed, is being committed, or has been committed by his/her subordinates or by others within his/her area of responsibility and, despite such knowledge, did not take preventive or corrective action either before, during or immediately after its commission, when he/she has the authority to prevent or investigate allegations of torture or other cruel, inhuman and degrading treatment or punishment but failed to prevent or investigate allegations of such act, whether deliberately or due to negligence shall also be liable as principals."

[7] As provided under Executive Order No. 226 for the Philippine National Police and Circular No. 28, Series of 1956 of the Armed Forces of the Philippines.

[8] Id.

[9] Rule on the Writ of Amparo, Sections 5, 9 and 17.

[10] Republic Act No. 6975, Section 24.

[11] In Tagitis, we defined the concept of responsibility and accountability for Writ of Amparo cases as follows: "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 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 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."

[12] See Prudencio M. Reyes, Jr. v. Simplicio C. Belisario, G.R. No. 154652, August 15, 2009.

[13] See Philippine National Bank v. Gotesco Tyan Ming Development, Inc., G.R. No. 183211, June 5, 2009, where the Court held that "[t]he rule allowing consolidation is designed to avoid multiplicity of suits, to guard against oppression or abuse, to prevent delays, to clear congested dockets, and to simplify the work of the [courts]; in short, the attainment of justice with the least expense and vexation to the parties-litigants." See also Teston v. Development Bank of the Philippines, G.R. No. 144374, November 11, 2005, 474 SCRA 597, 605.

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