rodriguez vs arroyo.docx

8/9/2019 Rodriguez vs Arroyo.docx

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Happy Valentines Day! -From people who must not be named.

EN BANC

.". No. #$#%&'. No(ember #') *#.+

,N HE AE" /F HE 0E,,/N F/" HE 1", /F A0A"/ AND HABEA2 DAA ,NFAV/" /F N/",E3 H. "/D",4E5)

N/",E3 H. "/D",4E5) petitioner) (s. 3/",A ACA0AA3-A""/6/) EN. V,C/" 2.

,B"AD/) 0D 7E242 AE VE"2/5A) 3. EN. DE3F,N BAN,) A7. EN. NE2/" 5.

/CH/A) 08C240. AE/ . /3EN,N/) 082240. 74DE 1. 2AN/2) C/3. "E,,/

. DE VE"A) an o9:er named A4,NA) 3. C/3. ,NA) CA3/) E/"E 0A3AC0AC

under the name ;HA""6); AN/N,/ C"45) A3D1,N ;B/N; 0A2,C/3AN and

V,NCEN CA33AAN) respondents.

.". No. #$


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he abo(e-named respondents are also D,"ECED to re?rain ?rom usin the said

reports in any transa:tion or operation o? the military. Ne:essarily) the a?ore-named

respondents are /"DE"ED to epune ?rom the re:ords o? the military all

do:uments ha(in any re?eren:e to petitioner.

3iIewise) the a?ore-named respondents) as well as respondents 0oli:e Dire:toreneral 7esus Ame VersoJa) Antonio CruJ) Aldwin 0asi:olan and Vi:ente Callaan

are D,"ECED to ensure that no ?urther (iolation o? petitionerKs rihts to li?e) liberty

and se:urity is :ommitted aainst the latter or any member o? his ?amily.

he petition is D,2,22ED with respe:t to 0resident loria a:apaal-Arroyo on

a::ount o? her presidential immunity ?rom suit. 2imilarly) the petition is D,2,22ED

with respe:t to respondents Calo and eore 0ala:pa: or Harry ?or la:I o? merit.

0etitionerKs prayer ?or issuan:e o? a temporary prote:tion order and inspe:tion order

is DEN,ED.

Noriel "odriueJ @"odriueJ is petitioner in .". No. #$#%&' and respondent in .".

No. #$


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he men tied the hands o? "odriueJ) ordered him to lie on his stoma:h) sat on his

ba:I and started pun:hin him. he :ar tra(elled towards the dire:tion o? 2ta.

eresita-ission and mo(ed around the area until about *>&& a.m. Durin the dri(e)

the men ?or:ed "odriueJ to :on?ess to bein a member o? the New 0eopleKs Army

@N0A) but he remained silent. he :ar then entered a pla:e that appeared to be a

military :amp. here were soldiers all o(er the area) and there was a banner withthe word ;Bra(o; written on it. "odriueJ later on learned that the :amp beloned

to the #Gth ,n?antry Battalion o? the 0hilippine Army. M

"odriueJ was brouht to a :anteen) where si men :on?ronted him) orderin him to

:on?ess to his membership in the N0A. Due to his ehaustion) he unintentionally ?ell

asleep. As a result) the men hit him on the head to waIe him up. A?ter the

interroation) two o? the men uarded him) but did not allow him to sleep. '

:HC,EA

,n the mornin o? G 2eptember *&&$) the men tied the hands o? "odriueJ)

blind?olded him and made him board a (ehi:le. 1hile they were in transit) thesoldiers repeatedly hit him in the head and threatened to Iill him. 1hen the :ar

stopped a?ter about ten minutes) the soldiers brouht him to a room) remo(ed his

blind?old) and ?or:ed him to :on?ess to bein a member o? the N0A. Durin the

interroation) the soldiers repeatedly hit him on the head. herea?ter) he was

detained inside the room ?or the entire day. he soldiers tied his stoma:h to a

papa) and a(e him ri:e and (iand. Fearin that the ?ood miht be poisoned) he

re?used to eat anythin. He slept on the papa while bein tied to it at the waist. =

/n % 2eptember *&&$) the men ?or:ed "odriueJ into a (ehi:le) whi:h brouht them

to Buey and ission. 1hile passin houses alon the way) the men asIed him i? his

:onta:ts li(ed in those houses. 1hen he ?ailed to answer) a soldier pointed a un tohis head and threatened to Iill him and his ?amily. Be:ause he remained silent) the

soldiers beat him and tied him up. he (ehi:le returned to the military :amp at past

#>&& p.m.) where he was aain sube:ted to ta:ti:al interroation about the lo:ation

o? an N0A :amp and his alleed N0A :omrades. He suered in:essant maulin e(ery

time he ?ailed to answer. G

At dawn on $ 2eptember *&&$) soldiers armed with riOes tooI "odriueJ and made

him their uide on their way to an N0A :amp in Birao. A::ompanyin them was a

man named Harry) who) a::ordin to the soldiers) was an N0A member who had

surrendered to the military. Harry pointed to "odriueJ and :alled him a member o?

the N0A. He also heard Harry tell the soldiers that the latter Inew the area well and

was a:uainted with a man named El(is. he soldiers loaded "odriueJ into a

military tru:I and dro(e to abbaI) Buey. 1hile he was walIin with the soldiers)

he noti:ed a soldier with the name ta ;atutina); who appeared to be an o9:ial

be:ause the other soldiers addressed him as ;sir.; %


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4pon rea:hin Birao on ?oot) the soldiers looIed ?or and was able to lo:ate a :ertain

El(is and told him that "odriueJ had identied his whereabouts lo:ation. he

soldiers ?or:ed "odriueJ to :on(in:e El(is to dis:lose the lo:ation o? the N0A :amp.

hey brouht the two to the mountains) where both were threatened with death.

1hen the soldiers pun:hed El(is) "odriueJ told them that he would re(eal the

lo:ation o? the N0A :amp i? they let El(is o home. hey nally released El(is around&& p.m. that day. he soldiers and "odriueJ spent the net three nihts in the

mountains. $ ,:EDC

/n #* 2eptember *&&$) the soldiers aain hit "odriueJ and ?or:ed him to identi?y

the lo:ation o? the N0A :amp. He was blind?olded and warned to et ready be:ause

they would beat him up aain in the military :amp. 4pon arri(al therein) they

brouht him to the same room where he had rst been detained) and two soldiers

mauled him aain. hey repeatedly pun:hed and Ii:Ied him. ,n the a?ternoon) they

let him rest and a(e him an Alaan tablet. herea?ter) he ?ell asleep due to o(er-

?atiue and etreme body pain. he soldiers) howe(er) hit him aain. A?ter i(in

him a pen and a pie:e o? paper) they ordered him to write down his reuest ?or ri:e

?rom the people. 1hen he re?used) the soldiers maltreated him on:e more. #&

/n #< 2eptember *&&$) the soldiers ?or:ed "odriueJ to sin do:uments de:larin

that he had surrendered in an en:ounter in Cumao) and that the soldiers did not

shoot him be:ause he be:ame a military asset in ay. 1hen he re?used to sin the

do:ument) he re:ei(ed another beatin. hus) he was :ompelled to sin) but did so

usin a dierent sinature to show that he was merely :oer:ed. ##

he soldiers showed "odriueJ photoraphs o? dierent persons and asIed him i? he

Inew the men appearin therein. 1hen he told them that he did not re:oniJe the

indi(iduals on the photos) the soldiers instru:ted him to write down the name o? hiss:hool and oraniJation) but he de:lined. he soldiers then wrote somethin on the

paper) maIin it appear that he was the one who had written it) and ?or:ed him to

sin the do:ument. he soldiers tooI photoraphs o? him while he was sinin.

A?terwards) the soldiers ?or:ed him down) held his hands) and sat on his ?eet. He did

not only re:ei(e another beatin) but was also ele:tro:uted. he torture lasted ?or

about an hour. #*

At ##>&& p.m. on #' 2eptember *&&$) the soldiers brouht "odriueJ to a military

operation in the mountains) where he saw atutina aain. hey all spent the niht

there. #&& a.m. on < No(ember *&) "odriueJ and his irl?riend) Aileen HaJel

"obles) noti:ed that se(eral suspi:ious-looIin men ?ollowed them at the etro "ail

ransit @") in the streets and on a eepney. *'

/n G De:ember *&&$) "odriueJ led be?ore this Court a 0etition ?or the 1rit o?

Amparo and 0etition ?or the 1rit o? Habeas Data with 0rayers ?or 0rote:tion /rders)

,nspe:tion o? 0la:e) and 0rodu:tion o? Do:uments and 0ersonal 0roperties dated *

De:ember *&&$. *= he petition was led aainst ?ormer 0resident Arroyo) en.

,brado) 0D. VersoJa) 3t. en. Banit) aor eneral @a. en. Nestor 5. /:hoa)08C2upt. olentino) 0822upt. 2antos) Col. De Vera) #st 3t. atutina) Calo) eore

0ala:pa: @0ala:pa:) CruJ) 0asi:olan and Callaan. he petition prayed ?or the

?ollowin relie?s>

a. he issuan:e o? the writ o? amparo orderin respondents to desist ?rom

(iolatin "odriueJKs riht to li?e) liberty and se:urity.

b. he issuan:e o? an order to enoin respondents ?rom doin harm to or

approa:hin "odriueJ) his ?amily and his witnesses.

:. Allowin the inspe:tion o? the detention areas o? the Headuarters o? Bra(o

Co.) 'th ,n?antry Di(ision) auin) onJaa) Caayan and another pla:e near

where "odriueJ was brouht. HD,a2

d. /rderin respondents to produ:e do:uments submitted to them reardin

any report on "odriueJ) in:ludin operation reports and pro(ost marshall reports o?

the 'th ,n?antry Di(ision) the 2pe:ial /perations roup o? the Armed For:es o? the

0hilippines @AF0) prior to) on and subseuent to = 2eptember *&&$.


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e. /rderin re:ords pertinent or in any way :onne:ted to "odriueJ) whi:h are

in the :ustody o? respondents) to be epuned) disabused) and ?ore(er barred ?rom

bein used. *G

/n #' De:ember *&&$) we ranted the respe:ti(e writs a?ter ndin that the

petition su9:iently alleed that "odriueJ had been abdu:ted) tortured and laterreleased by members o? the #Gth ,n?antry Battalion o? the 0hilippine Army. *% 1e

liIewise ordered respondents therein to le a (eried return on the writs on or

be?ore ** De:ember *&&$ and to :omment on the petition on or be?ore M 7anuary

*&. *$ Finally) we dire:ted the Court o? Appeals to hear the petition on M 7anuary

*& and de:ide on the :ase within #& days a?ter its submission ?or de:ision.


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1hen the CH" o9:ers) alon with 1ilma and "odel) arri(ed at the #Gth ,n?antry

Battalion at asin) Al:ala) Caayan) Briade Commander Col. de Vera and Battalion

Commander 3t. Col. ina alleed that "odriueJ had be:ome one o? their assets) as

e(iden:ed by the 2ummary on the 2urrender o? Noriel "odriueJ and the latterKs

Contra:t as Aent. M' he CH" o9:ers obser(ed his :asual and :ordial demeanor

with the soldiers. M= ,n any :ase) CruJ asIed him to raise his shirt to see i? he hadbeen sube:ted to any maltreatment. CruJ and 0asi:olan did not see any tra:es o?

torture. herea?ter) "odriueJ was released to his ?amily) and they were made to

sin a :erti:ation to this ee:t. Durin the sinin o? the do:ument) herein CH"

o9:ers did not witness any threat) intimidation or ?or:e employed aainst "odriueJ

or his ?amily. MG

Durin their ourney ba:I to the home o? "odriueJ) the CH" o9:ers obser(ed that

he was (ery mu:h at ease with his military es:orts) espe:ially with #st 3t. atutina.

M% Neither was there any ?or:e or intimidation when the soldiers tooI pi:tures o? his

house) as the taIin o? photoraphs was per?ormed with 1ilmaKs :onsent. M$

Durin the hearin on *G 7anuary *&) the parties areed to le additional

a9da(its and position papers and to ha(e the :ase :onsidered submitted ?or

de:ision a?ter the lin o? these pleadins. '&

/n #* April *&) the Court o? Appeals rendered its assailed De:ision. '#

2ubseuently) on *% April *&) respondents therein led their otion ?or

"e:onsideration. '* Be?ore the Court o? Appeals :ould resol(e this otion ?or

"e:onsideration) "odriueJ led the instant 0etition ?or 0artial "e(iew on Certiorari

@.". No. #$#%&') raisin the ?ollowin assinment o? errors>

a. he Court o? Appeals erred in not rantin the ,nterim "elie? ?or temporaryprote:tion order. AHEC:

b. he Court o? Appeals erred in sayin> ;@Howe(er) i(en the nature o? the writ

o? amparo) whi:h has the ee:t o? enoinin the :ommission by respondents o?

(iolation to petitionerKs riht to li?e) liberty and se:urity) the sa?ety o? petitioner is

ensured with the issuan:e o? the writ) e(en in the absen:e o? an order pre(entin

respondent ?rom approa:hin petitioner.;

:. he Court o? Appeals erred in not ndin that respondent loria a:apaal-

Arroyo had :ommand responsibility. '

,nterim "elie?s. 4pon lin o? the petition or at anytime be?ore nal udment) the

:ourt) usti:e or ude may rant any o? the ?ollowin relie?s>

emporary 0rote:tion /rder. he :ourt) usti:e or ude) upon motion or motu

proprio) may order that the petitioner or the arie(ed party and any member o?

the immediate ?amily be prote:ted in a o(ernment aen:y or by an a::redited

person or pri(ate institution :apable o? Ieepin and se:urin their sa?ety. ,? the

petitioner is an oraniJation) asso:iation or institution re?erred to in 2e:tion


11/28


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amparo) on:e ranted) ne:essarily entails the prote:tion o? the arie(ed party.

hus) sin:e we rant petitioner the pri(ilee o? the writ o? amparo) there is no need

to issue a temporary prote:tion order independently o? the ?ormer. he order

restri:tin respondents ?rom oin near "odriueJ is subsumed under the pri(ilee

o? the writ. aE,:2

2e:ond issue> 0residential immunity ?rom suit

,t bears stressin that sin:e there is no determination o? administrati(e) :i(il or

:riminal liability in amparo and habeas data pro:eedins) :ourts :an only o as ?ar

as as:ertainin responsibility or a::ountability ?or the en?or:ed disappearan:e or

etraudi:ial Iillin. As we held in "aJon (. aitis> =$

,t does not determine uilt nor pinpoint :riminal :ulpability ?or the disappearan:eQ

rather) it determines responsibility) or at least a::ountability) ?or the en?or:ed

disappearan:e ?or purposes o? imposin the appropriate remedies to address the

disappearan:e. "esponsibility re?ers to the etent the a:tors ha(e been established

by substantial e(iden:e to ha(e parti:ipated in whate(er way) by a:tion or

omission) in an en?or:ed disappearan:e) as a measure o? the remedies this Court

shall :ra?t) amon them) the dire:ti(e to le the appropriate :riminal and :i(il :ases

aainst the responsible parties in the proper :ourts. A::ountability) on the other

hand) re?ers to the measure o? remedies that should be addressed to those who

ehibited in(ol(ement in the en?or:ed disappearan:e without brinin the le(el o?

their :ompli:ity to the le(el o? responsibility dened abo(eQ or who are imputed with

Inowlede relatin to the en?or:ed disappearan:e and who :arry the burden o?

dis:losureQ or those who :arry) but ha(e ?ailed to dis:hare) the burden o?

etraordinary dilien:e in the in(estiation o? the en?or:ed disappearan:e. ,n all

these :ases) the issuan:e o? the 1rit o? Amparo is ustied by our primary oal o?addressin the disappearan:e) so that the li?e o? the (i:tim is preser(ed and his

liberty and se:urity are restored. G& @Emphasis supplied.

hus) in the :ase at bar) the Court o? Appeals) in its De:ision G# ?ound respondents

in .". No. #$#%&' with the e:eption o? Calo) 0ala:pa: or Harry to be

a::ountable ?or the (iolations o? "odriueJKs riht to li?e) liberty and se:urity

:ommitted by the #Gth ,n?antry Battalion) 'th ,n?antry Di(ision o? the 0hilippine

Army. G* he Court o? Appeals dismissed the petition with respe:t to ?ormer

0resident Arroyo on a::ount o? her presidential immunity ?rom suit. "odriueJ

:ontends) thouh) that she should remain a respondent in this :ase to enable the

:ourts to determine whether she is responsible or a::ountable there?or. ,n this

reard) it must be :laried that the Court o? AppealsK rationale ?or droppin her ?rom

the list o? respondents no loner stands sin:e her presidential immunity is limited

only to her in:umben:y.

,n Estrada (. Desierto) G< we :laried the do:trine that a non-sittin 0resident does

not enoy immunity ?rom suit) e(en ?or a:ts :ommitted durin the latterKs tenure.


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1e emphasiJe our rulin therein that :ourts should looI with dis?a(or upon the

presidential pri(ilee o? immunity) espe:ially when it impedes the sear:h ?or truth or

impairs the (indi:ation o? a riht) to wit> AC:H,a

1e ree:t EstradaKs+ arument that he :annot be prose:uted ?or the reason that he

must rst be :on(i:ted in the impea:hment pro:eedins. he impea:hment trial o?petitioner Estrada was aborted by the walIout o? the prose:utors and by the e(ents

that led to his loss o? the presiden:y. ,ndeed) on February G) *&) the 2enate

passed 2enate "esolution No. %< ;"e:oniJin that the ,mpea:hment Court is

Fun:tus /9:io.; 2in:e the ,mpea:hment Court is now ?un:tus o9:io) it is untenable

?or petitioner to demand that he should rst be impea:hed and then :on(i:ted

be?ore he :an be prose:uted. he plea i? ranted) would put a perpetual bar aainst

his prose:ution. 2u:h a submission has nothin to :ommend itsel? ?or it will pla:e

him in a better situation than a non-sittin 0resident who has not been sube:ted to

impea:hment pro:eedins and yet :an be the obe:t o? a :riminal prose:ution. o be

sure) the debates in the Constitutional Commission maIe it :lear that when

impea:hment pro:eedins ha(e be:ome moot due to the resination o? the

0resident) the proper :riminal and :i(il :ases may already be led aainst him) (iJ.>

;

r. Auino. /n another point) i? an impea:hment pro:eedin has been led aainst

the 0resident) ?or eample) and the 0resident resins be?ore udment o? :on(i:tion

has been rendered by the impea:hment :ourt or by the body) how does it ae:t the

impea:hment pro:eedinR 1ill it be ne:essarily droppedR

r. "omulo. ,? we de:ide the purpose o? impea:hment to remo(e one ?rom o9:e)

then his resination would render the :ase moot and a:ademi:. Howe(er) as thepro(ision says) the :riminal and :i(il aspe:ts o? it may :ontinue in the ordinary

:ourts.;

his is in a::ord with our rulin in ,n "e> 2aturnino BermudeJ that ;in:umbent

0residents are immune ?rom suit or ?rom bein brouht to :ourt durin the period o?

their in:umben:y and tenure; but not beyond. . . . ,a2CE

1e now :ome to the s:ope o? immunity that :an be :laimed by petitioner as a non-

sittin 0resident. he :ases led aainst petitioner Estrada are :riminal in :hara:ter.

hey in(ol(e plunder) bribery and ra?t and :orruption. By no stret:h o? the

imaination :an these :rimes) espe:ially plunder whi:h :arries the death penalty)be :o(ered by the alleed mantle o? immunity o? a non-sittin president. 0etitioner

:annot :ite any de:ision o? this Court li:ensin the 0resident to :ommit :riminal a:ts

and wrappin him with post-tenure immunity ?rom liability. ,t will be anomalous to

hold that immunity is an ino:ulation ?rom liability ?or unlaw?ul a:ts and omissions.

he rule is that unlaw?ul a:ts o? publi: o9:ials are not a:ts o? the 2tate and the

o9:er who a:ts illeally is not a:tin as su:h but stands in the same ?ootin as any

other trespasser.


14/28

,ndeed) a :riti:al readin o? :urrent literature on ee:uti(e immunity will re(eal a

udi:ial disin:lination to epand the pri(ilee espe:ially when it impedes the sear:h

?or truth or impairs the (indi:ation o? a riht. ,n the #$GM :ase o? 42 (. Nion) 42

0resident "i:hard Nion) a sittin 0resident) was subpoenaed to produ:e :ertain

re:ordins and do:uments relatin to his :on(ersations with aids and ad(isers.

2e(en ad(isers o? 0resident NionKs asso:iates were ?a:in :hares o? :onspira:y toobstru:t usti:e and other oenses whi:h were :ommitted in a burlary o? the

Demo:rati: National Headuarters in 1ashintonKs 1aterate Hotel durin the #$G*

presidential :ampain. 0resident Nion himsel? was named an unindi:ted :o-

:onspirator. 0resident Nion mo(ed to uash the subpoena on the round) amon

others) that the 0resident was not sube:t to udi:ial pro:ess and that he should rst

be impea:hed and remo(ed ?rom o9:e be?ore he :ould be made amenable to

udi:ial pro:eedins. he :laim was ree:ted by the 42 2upreme Court. ,t :on:luded

that ;when the round ?or assertin pri(ilee as to subpoenaed materials souht ?or

use in a :riminal trial is based only on the eneraliJed interest in :ondentiality) it

:annot pre(ail o(er the ?undamental demands o? due pro:ess o? law in the ?air

administration o? :riminal usti:e.; ,n the #$%* :ase o? Nion (. FitJerald) the 42

2upreme Court ?urther held that the immunity o? the 0resident ?rom :i(il damaes

:o(ers only ;o9:ial a:ts.; "e:ently) the 42 2upreme Court had the o::asion to

reiterate this do:trine in the :ase o? Clinton (. 7ones where it held that the 42

0residentKs immunity ?rom suits ?or money damaes arisin out o? their o9:ial a:ts

is inappli:able to uno9:ial :ondu:t. GM @Emphasis supplied

Further) in our "esolution in Estrada (. Desierto) G' we reiterated that the

presidential immunity ?rom suit eists only in :on:urren:e with the presidentKs

in:umben:y> ,2EHa

0etitioner stubbornly :lins to the :ontention that he is entitled to absolute

immunity ?rom suit. His aruments are merely re:y:led and we need not prolon the

lone(ity o? the debate on the sube:t. ,n our De:ision) we ehausti(ely tra:ed the

oriin o? ee:uti(e immunity in our urisdi:tion and its bends and turns up to the

present time. 1e held that i(en the intent o? the #$%G Constitution to breathe li?e

to the poli:y that a publi: o9:e is a publi: trust) the petitioner) as a non-sittin

0resident) :annot :laim ee:uti(e immunity ?or his alleed :riminal a:ts :ommitted

while a sittin 0resident. 0etitionerKs rehashed aruments in:ludin their thinly

disuised new spins are based on the ree:ted :ontention that he is still 0resident)

albeit) a 0resident on lea(e. His stan:e that his immunity :o(ers his entire term o?

o9:e or until 7une

;r. 2uareJ> hanI you.


15/28

he last uestion is with re?eren:e to the CommitteeKs omittin in the dra?t proposal

the immunity pro(ision ?or the 0resident. , aree with Commissioner Nolledo that

the Committee did (ery well in striIin out this se:ond senten:e) at the (ery least)

o? the oriinal pro(ision on immunity ?rom suit under the #$G< Constitution. But

would the Committee members not aree to a restoration o? at least the rst

senten:e that the president shall be immune ?rom suit durin his tenure):onsiderin that i? we do not pro(ide him that Iind o? an immunity) he miht be

spendin all his time ?a:in litiations) as the 0resident-in-eile in Hawaii is now

?a:in litiations almost dailyR

Fr. Bernas>

he reason ?or the omission is that we :onsider it understood in present

urispruden:e that durin his tenure he is immune ?rom suit.

r. 2uareJ>

2o there is no need to epress it here.

Fr. Bernas>

here is no need. ,t was that way be?ore. he only inno(ation made by the #$G

/n the understandin) , will not press ?or any more uery) madam 0resident.

, thanI the Commissioner ?or the :lari:ation.;

0etitioner) howe(er) ?ails to distinuish between term and tenure. he term means

the time durin whi:h the o9:er may :laim to hold the o9:e as o? riht) and es

the inter(al a?ter whi:h the se(eral in:umbents shall su::eed one another. he

tenure represents the term durin whi:h the in:umbent a:tually holds o9:e. he

tenure may be shorter than the term ?or reasons within or beyond the power o? the

in:umbent. From the deliberations) the intent o? the ?ramers is :lear that the

immunity o? the president ?rom suit is :on:urrent only with his tenure and not his

term. G= @Emphasis supplied

Applyin the ?oreoin rationale to the :ase at bar) it is :lear that ?ormer 0resident

Arroyo :annot use the presidential immunity ?rom suit to shield hersel? ?rom udi:ial

s:rutiny that would assess whether) within the :ontet o? amparo pro:eedins) she

was responsible or a::ountable ?or the abdu:tion o? "odriueJ.

hird issue> Command responsibility

in amparo pro:eedins


16/28

o attribute responsibility or a::ountability to ?ormer 0resident Arroyo) "odriueJ

:ontends that the do:trine o? :ommand responsibility may be applied. As we

eplained in "ubri:o (. Arroyo) GG :ommand responsibility pertains to the

;responsibility o? :ommanders ?or :rimes :ommitted by subordinate members o? the

armed ?or:es or other persons sube:t to their :ontrol in international wars or

domesti: :onOi:t.; G% Althouh oriinally used ?or as:ertainin :riminal :ompli:ity)the :ommand responsibility do:trine has also ?ound appli:ation in :i(il :ases ?or

human rihts abuses. G$ ,n the 4nited 2tates) ?or eample) :ommand responsibility

was used in Ford (. ar:ia and "omaoJa (. ar:ia :i(il a:tions led under the

Alien ort Claims A:t and the orture Vi:tim 0rote:tion A:t. %& his de(elopment in

the use o? :ommand responsibility in :i(il pro:eedins shows that the appli:ation o?

this do:trine has been liberally etended e(en to :ases not :riminal in nature. hus)

it is our (iew that :ommand responsibility may liIewise nd appli:ation in

pro:eedins seeIin the pri(ilee o? the writ o? amparo. As we held in "ubri:o>

ECa2,

,t may plausibly be :ontended that :ommand responsibility) as leal basis to hold

military8poli:e :ommanders liable ?or etra-leal Iillins) en?or:ed disappearan:es)

or threats) may be made appli:able to this urisdi:tion on the theory that the

:ommand responsibility do:trine now :onstitutes a prin:iple o? international law or

:ustomary international law in a::ordan:e with the in:orporation :lause o? the

Constitution.

,? :ommand responsibility were to be in(oIed and applied to these pro:eedins) it

should) at most) be only to determine the author who) at the rst instan:e) is

a::ountable ?or) and has the duty to address) the disappearan:e and harassments:omplained o?) so as to enable the Court to de(ise remedial measures that may be

appropriate under the premises to prote:t rihts :o(ered by the writ o? amparo. As

intimated earlier) howe(er) the determination should not be pursued to :riminal

liability on respondents preparatory to :riminal prose:ution) or as a prelude to

administrati(e dis:iplinary pro:eedins under eistin administrati(e issuan:es) i?

there be any. %# @Emphasis supplied.

0re:isely in the :ase at bar) the do:trine o? :ommand responsibility may be used to

determine whether respondents are a::ountable ?or and ha(e the duty to address

the abdu:tion o? "odriueJ in order to enable the :ourts to de(ise remedial

measures to prote:t his rihts. Clearly) nothin pre:ludes this Court ?rom applyin

the do:trine o? :ommand responsibility in amparo pro:eedins to as:ertain

responsibility and a::ountability in etraudi:ial Iillins and en?or:ed

disappearan:es. ,n this reard) the 2eparate /pinion o? 7usti:e Con:hita Carpio-

orales in "ubri:o is worth notin) thus>


17/28

hat pro:eedins under the "ule on the 1rit o? Amparo do not determine :riminal)

:i(il or administrati(e liability should not abate the appli:ability o? the do:trine o?

:ommand responsibility. aIin 2e:retary o? National De?ense (. analo and "aJon

(. aitis in proper :ontet) they do not pre:lude the appli:ation o? the do:trine o?

:ommand responsibility to Amparo :ases.

analo was a:tually emphati: on the importan:e o? the riht to se:urity o? person

and its :ontemporary sini:ation as a uarantee o? prote:tion o? oneKs rihts by

the o(ernment. ,t ?urther stated that prote:tion in:ludes :ondu:tin ee:ti(e

in(estiations) oraniJation o? the o(ernment apparatus to etend prote:tion to

(i:tims o? etraleal Iillins or en?or:ed disappearan:es) or threats thereo?) and8or

their ?amilies) and brinin oenders to the bar o? usti:e. CA2:,H

aitis) on the other hand) :annot be more :ateori:al on the appli:ation) at least in

prin:iple) o? the do:trine o? :ommand responsibility>

i(en their mandates) the 0N0 and 0N0-C,D o9:ials and members were the ones

who were remiss in their duties when the o(ernment :ompletely ?ailed to eer:ise

the etraordinary dilien:e that the Amparo "ule reuires. 1e hold these

oraniJations a::ountable throuh their in:umbent Chie?s who) under this De:ision)

shall :arry the personal responsibility o? seein to it that etraordinary dilien:e) in

the manner the Amparo "ule reuires) is applied in addressin the en?or:ed

disappearan:e o? aitis.

Neither does "epubli: A:t No. $%'# emas:ulate the appli:ability o? the :ommand

responsibility do:trine to Amparo :ases. he short title o? the law is the ;0hilippine

A:t on Crimes Aainst ,nternational Humanitarian 3aw) eno:ide) and /ther Crimes

Aainst Humanity.; /b(iously) it should) as it did) only treat o? superiorresponsibility as a round ?or :riminal responsibility ?or the :rimes :o(ered. 2u:h

limited treatment) howe(er) is merely in Ieepin with the statuteKs purpose and not

intended to rule out the appli:ation o? the do:trine o? :ommand responsibility to

other appropriate :ases.

,ndeed) one :an imaine the innumerable daners o? insulatin hih-ranIin

military and poli:e o9:ers ?rom the :o(erae o? relie?s a(ailable under the "ule on

the 1rit o? Amparo. he epli:it adoption o? the do:trine o? :ommand responsibility

in the present :ase will only brin analo and aitis to their loi:al :on:lusion.

,n ne) , submit that the Court should taIe this opportunity to state what the lawouht to be i? it truly wants to maIe the 1rit o? Amparo an ee:ti(e remedy ?or

(i:tims o? etraleal Iillins and en?or:ed disappearan:es or threats thereo?. 1hile

there is a enuine dearth o? e(iden:e to hold respondents en. Hermoenes

Esperon and 08Dir. en. A(elino "aJon a::ountable under the :ommand

responsibility do:trine) the ponen:iaKs hesitant appli:ation o? the do:trine itsel? is

replete with impli:ations abhorrent to the rationale behind the "ule on the 1rit o?

Amparo. %* @Emphasis supplied.


18/28

his 2eparate /pinion was reiterated in the re:ently de:ided :ase o? Boa: (.

Cadapan) %< liIewise penned by 7usti:e Carpio-orales) wherein this Court ruled>

CDEaA,

"ubri:o :ateori:ally denies the appli:ation o? :ommand responsibility in amparo

:ases to determine :riminal liability. he Court maintains its adheren:e to thispronoun:ement as ?ar as amparo :ases are :on:erned.

"ubri:o) howe(er) re:oniJes a preliminary yet limited appli:ation o? :ommand

responsibility in amparo :ases to instan:es o? determinin the responsible or

a::ountable indi(iduals or entities that are duty-bound to abate any transression

on the li?e) liberty or se:urity o? the arie(ed party.

,? :ommand responsibility were to be in(oIed and applied to these pro:eedins) it

should) at most) be only to determine the author who) at the rst instan:e) is

a::ountable ?or) and has the duty to address) the disappearan:e and harassments

:omplained o?) so as to enable the Court to de(ise remedial measures that may be

appropriate under the premises to prote:t rihts :o(ered by the writ o? amparo. As

intimated earlier) howe(er) the determination should not be pursued to :riminal

liability on respondents preparatory to :riminal prose:ution) or as a prelude to

administrati(e dis:iplinary pro:eedins under eistin administrati(e issuan:es) i?

there be any.

,n other words) :ommand responsibility may be loosely applied in amparo :ases in

order to identi?y those a::ountable indi(iduals that ha(e the power to ee:ti(ely

implement whate(er pro:esses an amparo :ourt would issue. ,n su:h appli:ation)

the amparo :ourt does not impute :riminal responsibility but merely pinpoint the

superiors it :onsiders to be in the best position to prote:t the rihts o? the arie(edparty.

2u:h identi:ation o? the responsible and a::ountable superiors may well be a

preliminary determination o? :riminal liability whi:h) o? :ourse) is still sube:t to

?urther in(estiation by the appropriate o(ernment aen:y. @Emphasis supplied.

As earlier pointed out) amparo pro:eedins determine @a responsibility) or the

etent the a:tors ha(e been established by substantial e(iden:e to ha(e

parti:ipated in whate(er way) by a:tion or omission) in an en?or:ed disappearan:e)

and @b a::ountability) or the measure o? remedies that should be addressed to

those @i who ehibited in(ol(ement in the en?or:ed disappearan:e without brininthe le(el o? their :ompli:ity to the le(el o? responsibility dened abo(eQ or @ii who

are imputed with Inowlede relatin to the en?or:ed disappearan:e and who :arry

the burden o? dis:losureQ or @iii those who :arry) but ha(e ?ailed to dis:hare) the

burden o? etraordinary dilien:e in the in(estiation o? the en?or:ed

disappearan:e. hus) althouh there is no determination o? :riminal) :i(il or

administrati(e liabilities) the do:trine o? :ommand responsibility may ne(ertheless


19/28

be applied to as:ertain responsibility and a::ountability within these ?oreoin

denitions. E,:2DC

a. Command responsibility

o? the 0resident

Ha(in established the appli:ability o? the do:trine o? :ommand responsibility in

amparo pro:eedins) it must now be resol(ed whether the president) as

:ommander-in-:hie? o? the military) :an be held responsible or a::ountable ?or

etraudi:ial Iillins and en?or:ed disappearan:es. 1e rule in the a9rmati(e.

o hold someone liable under the do:trine o? :ommand responsibility) the ?ollowin

elements must obtain>

a. the eisten:e o? a superior-subordinate relationship between the a::used as

superior and the perpetrator o? the :rime as his subordinateQ

b. the superior Inew or had reason to Inow that the :rime was about to be or

had been :ommittedQ and

:. the superior ?ailed to taIe the ne:essary and reasonable measures to pre(ent

the :riminal a:ts or punish the perpetrators thereo?. %M

he president) bein the :ommander-in-:hie? o? all armed ?or:es) %' ne:essarily

possesses :ontrol o(er the military that ualies him as a superior within the

pur(iew o? the :ommand responsibility do:trine. %=

/n the issue o? Inowlede) it must be pointed out that althouh international

tribunals apply a stri:t standard o? Inowlede) i.e.) a:tual Inowlede) su:h may

nonetheless be established throuh :ir:umstantial e(iden:e. %G ,n the 0hilippines) a

more liberal (iew is adopted and superiors may be :hared with :onstru:ti(e

Inowlede. his (iew is buttressed by the ena:tment o? Ee:uti(e /rder No. **=)

otherwise Inown as the ,nstitutionaliJation o? the Do:trine o? KCommand

"esponsibilityK in all o(ernment /9:es) parti:ularly at all 3e(els o? Command in

the 0hilippine National 0oli:e and other 3aw En?or:ement Aen:ies @E./. **=. %%

4nder E./. **=) a o(ernment o9:ial may be held liable ?or nele:t o? duty under

the do:trine o? :ommand responsibility i? he has Inowlede that a :rime or oense

shall be :ommitted) is bein :ommitted) or has been :ommitted by his

subordinates) or by others within his area o? responsibility and) despite su:hInowlede) he did not taIe pre(enti(e or :orre:ti(e a:tion either be?ore) durin) or

immediately a?ter its :ommission. %$ Lnowlede o? the :ommission o? irreularities)

:rimes or oenses is presumed when @a the a:ts are widespread within the

o(ernment o9:ialKs area o? urisdi:tionQ @b the a:ts ha(e been repeatedly or

reularly :ommitted within his area o? responsibilityQ or @: members o? his

immediate sta or o9:e personnel are in(ol(ed. $& 2H,:D


20/28

eanwhile) as to the issue o? ?ailure to pre(ent or punish) it is important to note that

as the :ommander-in-:hie? o? the armed ?or:es) the president has the power to

ee:ti(ely :ommand) :ontrol and dis:ipline the military. $#

b. "esponsibility or

a::ountability o? ?ormer

0resident Arroyo

he net uestion that must be ta:Iled is whether "odriueJ has pro(en throuh

substantial e(iden:e that ?ormer 0resident Arroyo is responsible or a::ountable ?or

his abdu:tion. 1e rule in the neati(e.

"odriueJ an:hors his arument on a eneral alleation that on the basis o? the

;elo Commission; and the ;Alston "eport); respondents in .". No. #$#%&' already

had Inowlede o? and in?ormation on) and should ha(e Inown that a :limate o?

en?or:ed disappearan:es had been perpetrated on members o? the N0A. $* 1ithoute(en atta:hin) or at the (ery least) uotin these reports) "odriueJ :ontends that

the elo "eport points to roue military men as the perpetrators. 1hile the Alston

"eport states that there is a poli:y allowin en?or:ed disappearan:es and pins the

blame on the 0resident) we do not automati:ally impute responsibility to ?ormer

0resident Arroyo ?or ea:h and e(ery :ount o? ?or:ible disappearan:e. $< Aside ?rom

"odriueJKs eneral a(erments) there is no pie:e o? e(iden:e that :ould establish

her responsibility or a::ountability ?or his abdu:tion. Neither was there e(en a :lear

attempt to show that she should ha(e Inown about the (iolation o? his riht to li?e)

liberty or se:urity) or that she had ?ailed to in(estiate) punish or pre(ent it.

Fourth issue> "esponsibility or

a::ountability o? respondents in .".

No. #$#%&'

he do:trine o? totality o? e(iden:e in amparo :ases was rst laid down in this

CourtKs rulin in "aJon) $M to wit>

he ?air and proper rule) to our mind) is to :onsider all the pie:es o? e(iden:e

addu:ed in their totality) and to :onsider any e(iden:e otherwise inadmissible under

our usual rules to be admissible i? it is :onsistent with the admissible e(iden:e

addu:ed. ,n other words) we redu:e our rules to the most basi: test o? reason i.e.)

to the rele(an:e o? the e(iden:e to the issue at hand and its :onsisten:y with all

other pie:es o? addu:ed e(iden:e. hus) e(en hearsay e(iden:e :an be admitted i?

it satises this basi: minimum test. $' @Emphasis supplied.

,n the :ase at bar) we nd no reason to depart ?rom the ?a:tual ndins o? the Court

o? Appeals) the same bein supported by substantial e(iden:e. A :are?ul


21/28

eamination o? the re:ords o? this :ase re(eals that the totality o? the e(iden:e

addu:ed by "odriueJ indubitably pro(e the responsibility and a::ountability o?

some respondents in .". No. #$#%&' ?or (iolatin his riht to li?e) liberty and

se:urity. C,Aa:2

a. he totality o? e(iden:e

pro(ed by substantial e(iden:e

the responsibility or

a::ountability o? respondents

?or the (iolation o? or threat to

"odriueJKs riht to li?e)

liberty and se:urity.

A?ter a :are?ul eamination o? the re:ords o? these :ases) we are :on(in:ed that the

Court o? Appeals :orre:tly ?ound su9:ient e(iden:e pro(in that the soldiers o? the

#Gth ,n?antry Battalion) 'th ,n?antry Di(ision o? the military abdu:ted "odriueJ on =

2eptember *&&$) and detained and tortured him until #G 2eptember *&&$.

"odriueJKs 2inumpaan 2alaysay dated M De:ember *&&$ was a meti:ulous and

straiht?orward a::ount o? his horri: ordeal with the military) detailin the manner

in whi:h he was :aptured and maltreated on a::ount o? his suspe:ted membership

in the N0A. $= His narration o? his suerin in:luded an ehausti(e des:ription o? his

physi:al surroundins) personal :ir:umstan:es and per:ei(ed obser(ations. He

liIewise positi(ely identied respondents #st 3t. atutina and 3t. Col. ina to be

present durin his abdu:tion) detention and torture) $G and respondents CruJ)

0asi:olan and Callaan as the CH" representati(es who appeared durin his

release. $%

ore parti:ularly) the ?a:t o? "odriueJKs abdu:tion was :orroborated by Carlos in

his 2inumpaan 2alaysay dated #= 2eptember *&&$) $$ wherein he re:ounted in

detail the :ir:umstan:es surroundin the (i:timKs :apture.

As reards the alleation o? torture) the respe:ti(e Certi:ations o? Dr. "amil and Dr.

0amuas (alidate the physi:al maltreatment "odriueJ suered in the hands o? the

soldiers o? the #Gth ,n?antry Battalion) 'th ,n?antry Di(ision. A::ordin to the

Certi:ation dated #* /:tober *&&$ ee:uted by Dr. "amil) #&& she eamined

"odriueJ in the Al?onso 0on:e Enrile emorial Distri:t Hospital on #= 2eptember

*&&$ and arri(ed at the ?ollowin ndins>

FACE

- #&:m healed s:ar ?a:e riht side


22/28

- *:m healed s:ar riht eyebrow @lateral area

- *:m healed s:ar riht eye brow @median area

- M:m *:m hematoma anterior :hest at the sternal area riht side

-


23/28

the maltreatment inOi:ted on him by the soldiers o? the #Gth ,n?antry Battalion) 'th

,n?antry Di(ision o? the 0hilippine Army. Further) the Iind o? inuries he sustained

showed that he :ould not ha(e sustained them ?rom merely ?allin) thus maIin

respondentsK :laim hihly implausible.

Despite these medi:al ndins that o(erwhelminly supported and lent :redibility tothe alleations o? "odriueJ in his 2inumpaan 2alaysay) respondents in .". No.

#$#%&' still stubbornly :lun to their arument that he was neither abdu:ted nor

detained. "ather) they :laimed that he was a double aent) whose relationship with

the military was at all times :onenial. his :ontention :annot be sustained) as it is

?ar remo(ed ?rom ordinary human eperien:e.

,? it were true that "odriueJ maintained ami:able relations with the military) then

he should ha(e unhesitatinly assured his ?amily on #G 2eptember *&&$ that he

was amon ?riends. ,nstead) he (iorously pleaded with them to et him out o? the

military ?a:ility. ,n ?a:t) in the 2inumpaan 2alaysay dated M De:ember *&&$ #&M

1ilma ee:uted) she made the ?ollowin a(erments>

#%. Na nan aIita Io an aIin anaI ay naIaramdam aIo sa Ianya n awa

dahil sa muIha syan paod at malaIi an Ianyan ipinayat.

#$. Na niyaIap Io sya at sa amin paIaIayaIap ay binulunan nya aIo na wa

Io syan iiwan sa luar na iyonQ

*


24/28

*G. Na sinabihan Iami ni 3t. Col. ina na baIa pweden maiwan pa n dalwan

lino an aIin Iapatid sa Ianila para raw ma-train sya.

*%. Na hindi Iami pumaya n aIin nanayQ . . . #&G

oreo(er) the Court o? Appeals liIewise aptly pointed out the illoi:al) i? not

outrihtly :ontradi:tory) :ontention o? respondents in .". No. #$#%&' that while

"odriueJ had :omplained o? his ehaustion ?rom his a:ti(ities as a member o? the

C00-N0A) he ne(ertheless willinly (olunteered to return to his li?e in the N0A to

be:ome a double-aent ?or the military. he lower :ourt ruled in this manner>

,n the "eturn o? the 1rit) respondent AF0 members alleed that petitioner :onded

to his military handler) Cpl. Na(arro) that petitioner :ould no loner stand the

hardships he eperien:ed in the wilderness) and that he wanted to be:ome an

ordinary :itiJen aain be:ause o? the empty promises o? the C00-N0A. Howe(er) in

the same "eturn) respondents state that petitioner areed to be:ome a double

aent ?or the military and wanted to re-enter the C00-N0A) so that he :ould et

in?ormation reardin the mo(ement dire:tly ?rom the sour:e. ,? petitioner was tired

o? li?e in the wilderness and desired to be:ome an ordinary :itiJen aain) it dees

loi: that he would aree to be:ome an under:o(er aent and worI alonside

soldiers in the mountains or the wilderness he dreads to lo:ate the hideout o?

his alleed N0A :omrades. #&% @Emphasis supplied.

Furthermore) the appellate :ourt also properly ruled that aside ?rom the abdu:tion)

detention and torture o? "odriueJ) respondents) spe:i:ally #st 3t. atutina) had

(iolated and threatened the ?ormerKs riht to se:urity when they made a (isual

re:ordin o? his house) as well as the photos o? his relati(es) to wit> :DA,2

,n the (ideos taIen by the soldiers one o? whom was respondent atutina in

the house o? petitioner on 2eptember #%) *&&$) the soldiers e(en went as ?ar as

taIin (ideos o? the photos o? petitionerKs relati(es hun on the wall o? the house)

as well as (ideos o? the innermost part o? the house. his Court notes that #3t.

atutina) by taIin the said (ideos) did not merely intend to maIe proo?s o? the sa?e

arri(al o? petitioner and his ?amily in their home. #3t. atutina also desired to instill

?ear in the minds o? petitioner and his ?amily by showin them that the san:tity o?

their home) ?rom then on) will not be ?ree ?rom the wat:h?ul eyes o? the military)

permanently :aptured throuh the medium o? a seeminly inno:uous :ellphone

(ideo :amera. he Court :annot and will not :ondone su:h a:t) as it intrudes

into the (ery :ore o? petitionerKs riht to se:urity uaranteed by the ?undamentallaw. #&$ @Emphasis supplied.

aIen in their totality) the pie:es o? e(iden:e addu:ed by "odriueJ) as well as the

:ontradi:tory de?enses presented by respondents in .". No. #$#%&') i(e :reden:e

to his :laim that he had been abdu:ted) detained and tortured by soldiers belonin

to the #Gth ,n?antry Battalion) 'th ,n?antry Di(ision o? the military.


25/28

,t must be pointed out) howe(er) that as to respondents CruJ) 0asi:olan and

Callaan) there was no substantial e(iden:e to show that they (iolated) or

threatened with (iolation) "odriueJKs riht to li?e) liberty and se:urity. Despite the

dearth o? e(iden:e to show the CH" o9:ersK responsibility or a::ountability) this

Court nonetheless emphasiJes its :riti:ism as reards their :apa:ity to re:oniJe

torture or any similar ?orm o? abuse. he CH") bein :onstitutionally mandated toprote:t human rihts and in(estiate (iolations thereo?) ##& should ensure that its

o9:ers are well-euipped to respond ee:ti(ely to and address human rihts

(iolations. he a:tuations o? respondents unmistaIably showed their insu9:ient

:ompeten:e in ?a:ilitatin and ensurin the sa?e release o? "odriueJ a?ter his

ordeal.

b. he ?ailure to :ondu:t a

?air and ee:t in(estiation

amounted to a (iolation o? or

threat to "odriueJKs rihts to

li?e) liberty and se:urity.

he "ule on the 1rit o? Amparo epli:itly states that the (iolation o? or threat to the

riht to li?e) liberty and se:urity may be :aused by either an a:t or an omission o? a

publi: o9:ial. ### oreo(er) in the :ontet o? amparo pro:eedins) responsibility

may re?er to the parti:ipation o? the respondents) by a:tion or omission) in en?or:ed

disappearan:e. ##* A::ountability) on the other hand) may atta:h to respondents

who are imputed with Inowlede relatin to the en?or:ed disappearan:e and who

:arry the burden o? dis:losureQ or those who :arry) but ha(e ?ailed to dis:hare) the

burden o? etraordinary dilien:e in the in(estiation o? the en?or:ed

disappearan:e. ##< E:HAa2

,n this reard) we emphasiJe our rulin in 2e:retary o? National De?ense (. analo

##M that the riht to se:urity o? a person in:ludes the positi(e obliation o? the

o(ernment to ensure the obser(an:e o? the duty to in(estiate) (iJ.>

hird) the riht to se:urity o? person is a uarantee o? prote:tion o? oneKs rihts by

the o(ernment. ,n the :ontet o? the writ o? Amparo) this riht is built into the

uarantees o? the riht to li?e and liberty under Arti:le ,,,) 2e:tion # o? the #$%G

Constitution and the riht to se:urity o? person @as ?reedom ?rom threat anduarantee o? bodily and psy:holoi:al interity under Arti:le ,,,) 2e:tion *. he riht

to se:urity o? person in this third sense is a :orollary o? the poli:y that the 2tate

;uarantees ?ull respe:t ?or human rihts; under Arti:le ,,) 2e:tion ## o? the #$%G

Constitution. As the o(ernment is the :hie? uarantor o? order and se:urity) the

Constitutional uarantee o? the rihts to li?e) liberty and se:urity o? person is

rendered inee:ti(e i? o(ernment does not aord prote:tion to these rihts


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espe:ially when they are under threat. 0rote:tion in:ludes :ondu:tin ee:ti(e

in(estiations) oraniJation o? the o(ernment apparatus to etend prote:tion to

(i:tims o? etraleal Iillins or en?or:ed disappearan:es @or threats thereo? and8or

their ?amilies) and brinin oenders to the bar o? usti:e. he ,nter-Ameri:an Court

o? Human "ihts stressed the importan:e o? in(estiation in the VelasueJ

"odriueJ Case) (iJ.>

@he duty to in(estiate must be undertaIen in a serious manner and not as a

mere ?ormality preordained to be inee:ti(e. An in(estiation must ha(e an

obe:ti(e and be assumed by the 2tate as its own leal duty) not as a step taIen by

pri(ate interests that depends upon the initiati(e o? the (i:tim or his ?amily or upon

their oer o? proo?) without an ee:ti(e sear:h ?or the truth by the o(ernment.

2imilarly) the European Court o? Human "ihts @ECH" has interpreted the ;riht to

se:urity; not only as prohibitin the 2tate ?rom arbitrarily depri(in liberty) but

imposin a positi(e duty on the 2tate to aord prote:tion o? the riht to liberty. he

ECH" interpreted the ;riht to se:urity o? person; under Arti:le '@# o? the European

Con(ention o? Human "ihts in the leadin :ase on disappearan:e o? persons) Lurt

(. urIey. ,n this :ase) the :laimantKs son had been arrested by state authorities and

had not been seen sin:e. he ?amilyKs reuests ?or in?ormation and in(estiation

reardin his whereabouts pro(ed ?utile. he :laimant suested that this was a

(iolation o? her sonKs riht to se:urity o? person. he ECH" ruled) (iJ.> H2C:D

. . . any depri(ation o? liberty must not only ha(e been ee:ted in :on?ormity with

the substanti(e and pro:edural rules o? national law but must eually be in Ieepin

with the (ery purpose o? Arti:le ') namely to prote:t the indi(idual ?romarbitrariness . . . Ha(in assumed :ontrol o(er that indi(idual it is in:umbent on the

authorities to a::ount ?or his or her whereabouts. For this reason) Arti:le ' must be

seen as reuirin the authorities to taIe ee:ti(e measures to sa?euard aainst

the risI o? disappearan:e and to :ondu:t a prompt ee:ti(e in(estiation into an

aruable :laim that a person has been taIen into :ustody and has not been seen

sin:e. ##' @Emphasis supplied

,n the instant :ase) this Court rules that respondents in .". No. #$#%&' are

responsible or a::ountable ?or the (iolation o? "odriueJKs riht to li?e) liberty and

se:urity on a::ount o? their abe:t ?ailure to :ondu:t a ?air and ee:ti(e o9:ial

in(estiation o? his ordeal in the hands o? the military. "espondents en. ,brado)0D. VerJosa) 3t. en. Banit) a. en. /:hoa) Col. De Vera and 3t. Col. ina only

:ondu:ted a per?un:tory in(estiation) eertin no eorts to taIe "amireJKs a::ount

o? the e(ents into :onsideration. "ather) these respondents solely relied on the

reports and narration o? the military. he rulin o? the appellate :ourt must be

emphasiJed>


27/28

,n this :ase) respondents ,brado) VerJosa) Banit) olentino) 2antos) De Vera) and

ina are a::ountable) ?or while they were :hared with the in(estiation o? the

sube:t in:ident) the in(estiation they :ondu:ted and8or relied on is super:ial and

one-sided. he re:ords dis:lose that the military) in in(estiatin the in:ident

:omplained o?) depended on the Comprehensi(e "eport o? Noriel "odriueJ S

0epito prepared by #3t. 7ohnny Calub ?or the Commandin /9:er o? the 'st,n?antry Briade) 'th ,n?antry Di(ision) 0hilippine Army. 2u:h report) howe(er) is

merely based on the narration o? the military. No eorts were undertaIen to soli:it

petitionerKs (ersion o? the sube:t in:ident and no witnesses were uestioned

reardin the alleed abdu:tion o? petitioner. aED,:

"espondent 0D VerJosa) as Chie? o? the 0N0) is a::ountable be:ause 2e:tion *M o?

"epubli: A:t No. =$G') otherwise Inown as the ;0N0 3aw); spe:ies the 0N0 as the

o(ernmental o9:e with the mandate ;to in(estiate and pre(ent :rimes) ee:t the

arrest o? :riminal oenders) brin oenders to usti:e and assist in their

prose:ution.; ,n this :ase) 0D VerJosa ?ailed to order the poli:e to :ondu:t the

ne:essary in(estiation to unmasI the mystery surroundin petitionerKs abdu:tion

and disappearan:e. ,nstead) 0D VerJosa dis:laims a::ountability by merely statin

that petitioner has no :ause o? a:tion aainst him. 0alpable) howe(er) is the la:I o?

any eort on the part o? 0D VerJosa to ee:ti(ely and aressi(ely in(estiate the

(iolations o? petitionerKs riht to li?e) liberty and se:urity by members o? the #Gth

,n?antry Battalion) #Gth ,n?antry Di(ision) 0hilippine Army. ##= @Emphasis supplied.

Clearly) the absen:e o? a ?air and ee:ti(e o9:ial in(estiation into the :laims o?

"odriueJ (iolated his riht to se:urity) ?or whi:h respondents in .". No. #$#%&'

must be held responsible or a::ountable.

Ne(ertheless) it must be :laried that "odriueJ was unable to establish anyresponsibility or a::ountability on the part o? respondents 08C2upt. olentino)

0822upt. 2antos) Calo and 0ala:pa:. "espondent 08C2upt. olentino had already

retired when the abdu:tion and torture o? "odriueJ was perpetrated) while 0822upt.

2antos had already been reassined and trans?erred to the National Capital

"eional 0oli:e /9:e si months be?ore the sube:t in:ident o::urred. eanwhile)

no su9:ient alleations were maintained aainst respondents Calo and 0ala:pa:.

From all the ?oreoin) we rule that "odriueJ was su::ess?ul in pro(in throuh

substantial e(iden:e that respondents en. ,brado) 0D. VerJosa) 3t. en. Banit)

a. en. /:hoa) Bri. en. De Vera) #st 3t. atutina) and 3t. Col. ina were

responsible and a::ountable ?or the (iolation o? "odriueJKs rihts to li?e) liberty and

se:urity on the basis o? @a his abdu:tion) detention and torture ?rom = 2eptember

to #G 2eptember *&&$) and @b the la:I o? any ?air and ee:ti(e o9:ial in(estiation

as to his alleations. hus) the pri(ilee o? the writs o? amparo and habeas data

must be ranted in his ?a(or. As a result) there is no loner any need to issue a

temporary prote:tion order) as the pri(ilee o? these writs already has the ee:t o?


28/28

enoinin respondents in .". No. #$#%&' ?rom (iolatin his rihts to li?e) liberty and

se:urity. :,ECH

,t is also :lear ?rom the abo(e dis:ussion that despite @a maintainin ?ormer

0resident Arroyo in the list o? respondents in .". No. #$#%&') and @b allowin the

appli:ation o? the :ommand responsibility do:trine to amparo and habeas datapro:eedins) "odriueJ ?ailed to pro(e throuh substantial e(iden:e that ?ormer

0resident Arroyo was responsible or a::ountable ?or the (iolation o? his rihts to li?e)

liberty and property. He liIewise ?ailed to pro(e throuh substantial e(iden:e the

a::ountability or responsibility o? respondents a. en. /:hoa) CruJ) 0asi:olan and

Callaan.

1HE"EF/"E) we resol(e to "AN the 0etition ?or 0artial "e(iew in .". No. #$#%&'

and DEN6 the 0etition ?or "e(iew in .". No. #$

rodriguez vs arroyo.docx

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