“x x x.
Third issue: Command
responsibility in amparo proceedings
To attribute responsibility or accountability to former
President Arroyo, Rodriguez contends that the doctrine of command responsibility may be applied. As we explained
in Rubrico v. Arroyo,[77] command responsibility pertains to 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.[78] Although originally used for ascertaining criminal complicity,
the command responsibility doctrine has also found application in civil cases
for human rights abuses.[79] In the United States, for example, command
responsibility was used in Ford v. Garcia and Romagoza v. Garcia civil actions
filed under the Alien Tort Claims Act and the Torture Victim Protection
Act.[80] This development in the use of command responsibility in civil
proceedings shows that the application
of this doctrine has been liberally extended even to cases not criminal in
nature. Thus, it is our view that command responsibility may likewise find
application in proceedings seeking the privilege of the writ of amparo. As we held in Rubrico:
It may plausibly be contended that command responsibility,
as legal basis to hold military/police commanders liable for extra-legal
killings, enforced disappearances, or threats, may be made applicable to this
jurisdiction on the theory that the
command responsibility doctrine now constitutes a principle of international
law or customary international law in accordance with the incorporation clause
of the Constitution.
If command responsibility were to be invoked and applied to
these proceedings, it should, at most, be only to determine the author who, at
the first instance, is accountable for, and has the duty to address, the
disappearance and harassments complained of, so as to enable the Court to devise
remedial measures that may be appropriate under the premises to protect rights
covered by the writ of amparo. As intimated earlier, however, the determination
should not be pursued to fix criminal liability on respondents preparatory to
criminal prosecution, or as a prelude to administrative disciplinary
proceedings under existing administrative issuances, if there be any.[81]
(Emphasis supplied.)
Precisely in the case at bar, the doctrine of command
responsibility may be used to determine whether respondents are accountable for
and have the duty to address the abduction of Rodriguez in order to enable the
courts to devise remedial measures to protect his rights. Clearly, nothing precludes this Court from applying the doctrine of
command responsibility in amparo proceedings to ascertain responsibility and
accountability in extrajudicial killings and enforced disappearances. In
this regard, the Separate Opinion of Justice Conchita Carpio-Morales in Rubrico is worth noting, thus:
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 and
Razon v. Tagitis 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 ones 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.
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.
Neither does Republic
Act No. 9851 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. Such limited treatment, however, is
merely in keeping with the statutes 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 ponencias
hesitant application of the doctrine itself is replete with implications abhorrent
to the rationale behind the Rule on the Writ of Amparo.[82] (Emphasis
supplied.)
This Separate Opinion was reiterated in the recently decided
case of Boac v. Cadapan,[83] likewise
penned by Justice Carpio-Morales, wherein this Court ruled:
Rubrico categorically denies the application of command
responsibility in amparo cases to determine criminal liability. The Court
maintains its adherence to this pronouncement as far as amparo cases are
concerned.
Rubrico, however,
recognizes a preliminary yet limited application of command responsibility in
amparo cases to instances of determining the responsible or accountable
individuals or entities that are duty-bound to abate any transgression on the
life, liberty or security of the aggrieved party.
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.
In other words,
command responsibility may be loosely applied in amparo cases in order to
identify those accountable individuals that have the power to effectively
implement whatever processes an amparo court would issue. In such application,
the amparo court does not impute criminal responsibility but merely pinpoint
the superiors it considers to be in the best position to protect the rights of
the aggrieved party.
Such identification of the responsible and accountable
superiors may well be a preliminary determination of criminal liability which,
of course, is still subject to further investigation by the appropriate
government agency. (Emphasis supplied.)
As earlier pointed out, amparo proceedings determine (a)
responsibility, or the extent the actors have been established by substantial
evidence to have participated in whatever way, by action or omission, in an
enforced disappearance, and (b) accountability, or the measure of remedies that
should be addressed to those (i) who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of
responsibility defined above; or (ii) who are imputed with knowledge relating
to the enforced disappearance and who carry the burden of disclosure; or (iii)
those who carry, but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced disappearance. Thus, although
there is no determination of criminal, civil or administrative liabilities, the
doctrine of command responsibility may nevertheless be applied to ascertain
responsibility and accountability within these foregoing definitions.
a.
Command responsibility of the President
Having established
the applicability of the doctrine of command responsibility in amparo
proceedings, it must now be resolved whether the president, as
commander-in-chief of the military, can be held responsible or accountable for
extrajudicial killings and enforced disappearances. We rule in the affirmative.
To hold someone liable under the doctrine of command
responsibility, the following elements must obtain:
a. the
existence of a superior-subordinate relationship between the accused as
superior and the perpetrator of the crime as his subordinate;
b. the
superior knew or had reason to know that the crime was about to be or had been
committed; and
c. the superior failed to take the
necessary and reasonable measures to prevent the criminal acts or punish the
perpetrators thereof.[84]
The president, being the commander-in-chief of all armed
forces,[85] necessarily possesses control over the military that qualifies him
as a superior within the purview of the command responsibility doctrine. [86]
On the issue of knowledge, it must be pointed out that
although international tribunals apply a strict standard of knowledge, i.e.,
actual knowledge, such may nonetheless be established through circumstantial
evidence.[87] In the Philippines, a more
liberal view is adopted and superiors may be charged with constructive
knowledge. This view is buttressed by the enactment of Executive Order No. 226,
otherwise known as the Institutionalization of the Doctrine of Command
Responsibility in all Government Offices, particularly at all Levels of Command
in the Philippine National Police and other Law Enforcement Agencies (E.O.
226).[88] Under E.O. 226, a government official may be held liable for
neglect of duty under the doctrine of command responsibility if he has
knowledge that a crime or offense shall be committed, is being committed, or
has been committed by his subordinates, or by others within his area of
responsibility and, despite such knowledge, he did not take preventive or
corrective action either before, during, or immediately after its
commission.[89] Knowledge of the commission of irregularities, crimes or
offenses is presumed when (a) the acts are widespread within the government
officials area of jurisdiction; (b) the acts have been repeatedly or regularly
committed within his area of responsibility; or (c) members of his immediate
staff or office personnel are involved.[90]
Meanwhile, as to the issue of failure to prevent or punish,
it is important to note that as the commander-in-chief of the armed forces, the
president has the power to effectively command, control and discipline the
military.[91]
b.
Responsibility or accountability of former President Arroyo
The next question that must be tackled is whether Rodriguez
has proven through substantial evidence that former President Arroyo is
responsible or accountable for his abduction. We rule in the negative.
Rodriguez anchors his argument on a general allegation that
on the basis of the Melo Commission and the Alston Report, respondents in G.R.
No. 191805 already had knowledge of and information on, and should have known
that a climate of enforced disappearances had been perpetrated on members of
the NPA.[92] Without even attaching, or at the very least, quoting these
reports, Rodriguez contends that the Melo Report points to rogue military men
as the perpetrators. While the Alston Report states that there is a policy
allowing enforced disappearances and pins the blame on the President, we do not
automatically impute responsibility to former President Arroyo for each and
every count of forcible disappearance.[93] Aside from Rodriguezs general
averments, there is no piece of evidence that could establish her
responsibility or accountability for his abduction. Neither was there even a
clear attempt to show that she should have known about the violation of his
right to life, liberty or security, or that she had failed to investigate,
punish or prevent it.
X xx .”
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ: NORIEL H. RODRIGUEZ, Petitioner, versus GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO, PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO, P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE PALACPAC under the name HARRY, ANTONIO CRUZ, ALDWIN BONG PASICOLAN and VINCENT CALLAGAN, Respondents. G.R. No. 191805, November 15, 2011.
