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#7 IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND WRIT OF HABEAS DATA IN FAVOR OF NORIEL H.

RODRIGUEZ GR NO. 191805 NOVEMBER 15, 2011 Facts: Petitioner Noriel Rodriguez is a member of Alyansa Dagiti Mannalon Iti Cagayan (Kagimungan), a peasant organization affiliated with Kilusang Magbubukid ng Pilipinas (KMP). He claims that the military tagged KMP as an enemy of the State under the Oplan Bantay Laya, making its members targets of extrajudicial killings and enforced disappearances. Rodriguez was abducted by military men and was tortured repeatedly when he refused to confess to his membership in the NPA. When released, he filed a Petition for the Writ of Amparo and and Petition for the Writ of Habeas Data with Prayers for Protection Orders, Inspection of Place, and Production of Documents and Personal Properties. The petition was filed against former Pres. Arroyo, et al. The writs were granted but the CA dropped Pres Arroyo as party-respondent, as she may not be sued in any case during her tenure of office or actual incumbency. Issue: 1. Whether former Pres GMA should be dropped as respondent on the basis of presidential immunity from suit 2. Whether the doctrine of command responsibility can be used in amparo and habeas data cases. 3. Whether the president, as commander-in-chief of the military, can be held responsible or accountable for extrajudicial killings and enforced disappearances. 4. Whether Rodriguez has proven through substantial evidence that former President Arroyo is responsible or accountable for his abduction. Held: 1. No. It bears stressing that since there is no determination of administrative, civil or criminal liability in amparo and habeas data proceedings, courts can only go as far as ascertaining responsibility or accountability for the enforced disappearance or extrajudicial killing. As was held in the case of Estrada v Desierto, a non-sitting President does not enjoy immunity from suit, even for acts committed during the latters tenure; that courts should look with disfavor upon the presidential privilege of immunity, especially when it impedes the search for truth or impairs the vindication of a right. The deliberations of the Constitutional Commission also reveal that the intent of the framers is clear that presidential immunity from suit is concurrent only with his tenure and not his term. (The term means the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds office. The tenure may be shorter than the term for reasons within or beyond the power of the incumbent.) Therefore, former Pres. GMA cannot use such immunity to shield herself from judicial scrutiny that would assess whether, within the context of amparo proceedings, she was responsible or accountable for the abduction of Rodriguez.

2. Yes. As we explained in Rubrico v. Arroyo, 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." Although originally used for ascertaining criminal complicity, the command responsibility doctrine has also found application in civil cases for human rights abuses. 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. 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 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. 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. 3. Yes. 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, necessarily possesses control over the military that qualifies him as a superior within the purview of the command responsibility doctrine. 4. No. 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. 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. 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.