Balao v Macapagal-Arroyo

662 SCRA 294 (2011)

Immunity from Suit
FACTS: The siblings of James Balao, and Longid (petitioners), filed with the RTC of La Trinidad, Benguet
a Petition for the Issuance of a Writ of Amparo in favor of James Balao who was abducted by unidentified
armed men earlier. Named respondents in the petition were then President GMA, Exec Sec Eduardo
Ermita, Defense Sec Gilberto Teodoro, Jr., ILG Secretary Ronaldo Puno, National Security Adviser (NSA)
Norberto Gonzales, AFP Chief of Staff Gen. Alexander . Yano, PNP Police Director General Jesus
Verzosa, among others.
James M. Balao is a Psychology and Economics graduate of the UP-Baguio. In 1984, he was among
those who founded the Cordillera Peoples Alliance (CPA), a coalition of NGOs working for the cause of
indigenous peoples in the Cordillera Region.
According to witnesses testimony, James was abducted by unidentified men, saying they were policemen
and were arresting him for a drugs case and then made to ride a white van.
Petitioners prayed for the issuance of a writ of amparo and likewise prayed for (1) an inspection order for
the inspection of at least 11 military and police facilities which have been previously reported as detention
centers for activists abducted by military and police operatives; (2) a production order for all documents
that contain evidence relevant to the petition, particularly the Order of Battle List and any record or
dossier respondents have on James; and (3) a witness protection order.
the RTC issued the assailed judgment, disposing as follows:
ISSUE a Writ of Amparo Ordering the respondents to (a) disclose where James is detained or confined,
(b) to release James considering his unlawful detention since his abduction and (c) to cease and desist
from further inflicting harm upon his person; and
DENY the issuance of INSPECTION ORDER, PRODUCTION ORDER and WITNESS PROTECTION
ORDER for failure of herein Petitioners to comply with the stringent provisions on the Rule on the Writ of
Amparo and substantiate the same
ISSUE/S:
I.
THE TRIAL COURTS JUDGMENT ORDERING RESPONDENT-PETITIONERS TO: (A)
DISCLOSE WHERE JAMES BALAO IS DETAINED AND CONFINED; (B) TO RELEASE
JAMES BALAO CONSIDERING HIS UNLAWFUL DETENTION SINCE HIS ABDUCTION
AND (C) TO CEASE AND DESIST FROM FURTHER INFLICTING HARM UPON HIS
PERSON IS BASED PURELY ON CONJECTURES, SURMISES AND HEARSAY
EVIDENCE; HENCE, IT MUST BE SET ASIDE.
The Rule on the Writ of Amparo was promulgated on October 24, 2007 amidst rising incidence of
extralegal killings and enforced disappearances. It was formulated in the exercise of this Courts
expanded rule-making power for the protection and enforcement of constitutional rights enshrined in the
1987 Constitution, albeit limited to these two situations. Extralegal killings refer to killings committed
without due process of law, i.e., without legal safeguards or judicial proceedings. [29] On the other hand,
enforced disappearances are attended by the following characteristics: an arrest, detention, or

abduction of a person by a government official or organized groups or private individuals acting with the
direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places
such person outside the protection of law.[30]
Section 18 of the Amparo Rule provides:
SEC. 18. Judgment. - The court shall render judgment within ten (10) days from the time the petition is
submitted for decision. 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 supplied.)
The threshold issue in this case is whether the totality of evidence satisfies the degree of proof
required by the Amparo Rule to establish an enforced disappearance.
In granting the privilege of the writ of amparo, the trial court ratiocinated:
On record is evidence pointing to the more likely than not motive for James Balaos disappearance his
activist/political leanings. This is shown by the several incidents relating to harassments of activists as
mentioned in the unrebutted testimony of Beverly Longid and the enumeration made in par. 48 (a) to (cc)
of the petition. There were also references in the petitions pars. 52 et. seq. to the CPA (of which James
Balao was an active staff) as a front organization of the Communist Party of the Philippines-New Peoples
Army. More likely than not he was not taken to parts unknown for reasons other than his involvement in
the CPA, that is, politically-motivated. The Court considers these facts enough circumstances to
establish substantial evidence of an enforced disappearance as defined under the Rule on the
Writ of Amparo. For after all, substantial evidence requires nothing greater than more likely than
not degree of proof.[31](Emphasis supplied.)
The trial court gave considerable weight to the discussion in the petition of briefing papers
supposedly obtained from the AFP (Oplan Bantay-Laya implemented since 2001) indicating that the antiinsurgency campaign of the military under the administration of President Arroyo included targeting of
identified legal organizations under the NDF, which included the CPA, and their members, as enemies of
the state. The petition cited other documents confirming such all-out war policy which resulted in the
prevalence of extrajudicial killings: namely, the published reports of the Melo Commission and the
UNHRCs Special Rapporteur on Extrajudicial Summary or Arbitrary Executions, Mr. Philip Alston. The
petition also enumerated previously documented cases of extralegal killings of activists belonging to
militant groups, including CPA leaders and workers, almost all of which have been preceded by
surveillance by military or police agents and acts of harassment. Consequently, petitioners postulated
that the surveillance on James and his subsequent abduction are interconnected with the harassments,
surveillance, threats and political assassination of other members and officers of CPA which is his
organization.
We hold that such documented practice of targeting activists in the militarys counter-insurgency
program by itself does not fulfill the evidentiary standard provided in the Amparo Rule to establish an
enforced disappearance.
II.
RESPONDENT-PETITIONERS HAD PROVEN THAT THEY OBSERVED
EXTRAORDINARY DILIGENCE AS REQUIRED BY APPLICABLE LAWS, RULES AND
REGULATIONS IN THE PERFORMANCE OF THEIR OFFICIAL DUTIES.

In the case of Roxas v. Macapagal-Arroyo,[32] the Court noted that the similarity between the
circumstances attending a particular case of abduction with those surrounding previous instances of
enforced disappearances does not, necessarily, carry sufficient weight to prove that the government
orchestrated such abduction. Accordingly, the trial court in this case cannot simply infer government
involvement in the abduction of James from past similar incidents in which the victims also worked or
affiliated with the CPA and other left-leaning groups.
The petition further premised government complicity in the abduction of James on the very
positions held by the respondents, stating that -The abduction of James Balao can only be attributed to the Respondents who have command
responsibility of all the actions of their subordinates and who are the primary persons in the
implementation of the governments all out war policy.[33] (Emphasis supplied.)
The Court in Rubrico v. Macapagal-Arroyo[34] had the occasion to expound on the doctrine of
command responsibility and why it has little bearing, if at all, in amparo proceedings.
The evolution of the command responsibility doctrine finds its context in the development of laws of war
and armed combats. According to Fr. Bernas, command responsibility, in its simplest terms, means the
responsibility of commanders for crimes committed by subordinate members of the armed forces or other
persons subject to their control in international wars or domestic conflict. In this sense, command
responsibility is properly a form of criminal complicity. The Hague Conventions of 1907 adopted the
doctrine of command responsibility, foreshadowing the present-day precept of holding a superior
accountable for the atrocities committed by his subordinates should he be remiss in his duty of control
over them. As then formulated, command responsibility is an omission mode of individual criminal
liability, whereby the superior is made responsible for crimes committed by his subordinates for failing to
prevent or punish the perpetrators (as opposed to crimes he ordered).
The doctrine has recently been codified in the Rome Statute of the International Criminal Court (ICC) to
which the Philippines is signatory. Sec. 28 of the Statute imposes individual responsibility on military
commanders for crimes committed by forces under their control. The country is, however, not yet formally
bound by the terms and provisions embodied in this treaty-statute, since the Senate has yet to extend
concurrence in its ratification.
While there are several pending bills on command responsibility, there is still no Philippine law that
provides for criminal liability under that doctrine.
It may plausibly be contended that command responsibility, as legal basis to hold military/police
commanders liable for extra-legal killings, enforced disappearances, or threats, may be made applicable
to this jurisdiction on the theory that the command responsibility doctrine now constitutes a principle of
international law or customary international law in accordance with the incorporation clause of the
Constitution. Still, it would be inappropriate to apply to these proceedings the doctrine of
command responsibility, as the CA seemed to have done, as a form of criminal complicity through
omission, for individual respondents criminal liability, if there be any, is beyond the reach
of amparo. In other words, the Court does not rule in such proceedings on any issue of criminal
culpability, even if incidentally a crime or an infraction of an administrative rule may have been
committed. As the Court stressed in Secretary of National Defense v. Manalo (Manalo), the writ of
amparo was conceived to provide expeditious and effective procedural relief against violations or threats
of violation of the basic rights to life, liberty, and security of persons; the corresponding amparo suit,

however, is not an action to determine criminal guilt requiring proof beyond reasonable doubt x x x or
administrative liability requiring substantial evidence that will require full and exhaustive proceedings. Of
the same tenor, and by way of expounding on the nature and role ofamparo, is what the Court said
in Razon v. Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats thereof or
extrajudicial killings]; it determines responsibility, or at least accountability, for the enforced
disappearance [threats thereof or extrajudicial killings] for purposes of imposing the appropriate
remedies to address the disappearance [or extrajudicial killings].
xxxx
As the law now stands, extrajudicial killings and enforced disappearances in this jurisdiction are not
crimes penalized separately from the component criminal acts undertaken to carry out these killings and
enforced disappearances and are now penalized under the Revised Penal Code and special laws. The
simple reason is that the Legislature has not spoken on the matter; the determination of what acts are
criminal x x x are matters of substantive law that only the Legislature has the power to enact. x x x [35]
Subsequently, we have clarified that the inapplicability of the doctrine of command responsibility
in an amparo proceeding does not, by any measure, preclude impleading military or police commanders
on the ground that the complained acts in the petition were committed with their direct or indirect
acquiescence. Commanders may therefore be impleadednot actually on the basis of command
responsibilitybut rather on the ground of their responsibility, or at least accountability.[36]
In Razon, Jr. v. Tagitis,[37]the Court defined responsibility and accountability as these terms are
applied to amparo proceedings, as follows:
x x x Responsibility refers to the extent the actors have been established by substantial evidence to
have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of
the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil
cases against the responsible parties in the proper courts. Accountability, on the other hand, refers
to the measure of remedies that should be addressed to those who exhibited involvement in the
enforced disappearance without bringing the level of their complicity to the level of responsibility defined
above; or who are imputed with knowledge relating to the enforced disappearance and who carry the
burden of disclosure; or those who carry, but have failed to discharge, the burden of extraordinary
diligence in the investigation of the enforced disappearance. x x x[38] (Emphasis supplied.)
Assessing the evidence on record, we find that the participation in any manner of military and police
authorities in the abduction of James has not been adequately proven. The identities of the abductors
have not been established, much less their link to any military or police unit. There is likewise no
concrete evidence indicating that James is being held or detained upon orders of or with acquiescence of
government agents. Consequently, the trial court erred in granting amparo reliefs by ordering the
respondent officials (1) to disclose where James Balao is detained or confined, (2) to release him from
such detention or confinement, and (3) to cease and desist from further inflicting harm upon his
person. Such pronouncement of responsibility on the part of public respondents cannot be made given
the insufficiency of evidence.[39] However, we agree with the trial court in finding that the actions taken by
respondent officials are very limited, superficial and one-sided. Its candid and forthright observations
on the efforts exerted by the respondents are borne by the evidence on record, thus:
x x x the violation of the right to security as protection by the government is unmistakable. The police and
the military miserably failed in conducting an effective investigation of James Balaos abduction as

revealed by the investigation report of respondents own witnesses Honorable Chief Superintendent
Eugene Martin and Honorable Senior Superintendent Fortunato Albas. The investigation was to use the
words in The Secretary of National Defense, et. al., v. Manalo et. al. verylimited, superficial and onesided.
The actions taken were simply these: (a) organization of the Task Force Balao; (b) conduct of ocular
inspection at the place of abduction; (c) taking of sworn statements of civilian witnesses, whose
testimonies did not prove much as shown by the continued disappearance of James Balao; (d) dialogue
with implicated military officials as well as family members and friends of James Balao; and (e) writing of
letter to the CPA. The Court does not want to second-guess police protocols in investigation but surely
some things are amiss where the investigation DID NOT INVESTIGATE the military officials believed to
be behind the abduction as they were merely invited to a dialogue and where the investigation DID NOT
LEAD to Camp Dangwa where the abductors were supposed to have proceeded as narrated by the
witnesses. To the mind of this Court, there is a seeming prejudice in the process of investigation to pin
suspects who are not connected with the military establishments. By any measure, this cannot be a
thorough and good faith investigation but one that falls short of that required by the Writ of Amparo. [40]
Respondents reiterate that they did their job the best they could and fault the petitioners instead for their
non-cooperation which caused delay in the investigation. They particularly blamed Beverly who failed to
attend the October 15, 2008 invitation to appear before the investigators and shed light on Jamess
disappearance.
III.
THE FACTUAL CIRCUMSTANCES AND THE EVIDENCE PRESENTED IN
THE MANALO CASE ARE TOTALLY DIFFERENT FROM THE CASE AT BAR; HENCE,
THE TRIAL COURT GROSSLY ERRED IN APPLYING THE RULING THEREIN TO THE
CASE AT BAR.
We are not persuaded.
First, the Task Force Balao had acknowledged the fact that Pol. Chief Supt. Martin was already in
constant coordination with the Balao family and CPA, and hence the investigators could have readily
obtained whatever information they needed from Beverly. Pol. Chief Supt. Martin even mentioned in his
affidavit that Task Force Balao was able to secure the testimonies of two eyewitnesses with the help of
Beverly and the Balao family, and that as a result cartographic sketches were made of some suspects.
[41]
Moreover, Beverly had explained during the cross-examination conducted by Associate Solicitor
Paderanga that she was at the time coordinating with national and local agencies even as the police
investigation was ongoing.[42] There is nothing wrong with petitioners simultaneous recourse to other legal
avenues to gain public attention for a possible enforced disappearance case involving their very own
colleague. Respondents should even commend such initiative that will encourage those who may have
any information on the identities and whereabouts of Jamess abductors to help the PNP in its
investigation.
Assuming there was reluctance on the part of the Balao family and CPA to submit Jamess relatives or
colleagues for questioning by agents of the PNP and AFP, they cannot be faulted for such stance owing to
the militarys perception of their organization as a communist front: ergo, enemies of the State who may
be targeted for liquidation. But more important, such non-cooperation provides no excuse for
respondents incomplete and one-sided investigations. As we held in Rubrico v. Macapagal-Arroyo[43]:

As regards P/Supt. Romero and P/Insp. Gomez, the Court is more than satisfied that they have no direct
or indirect hand in the alleged enforced disappearance of Lourdes and the threats against her
daughters. As police officers, though, theirs was the duty to thoroughly investigate the abduction
of Lourdes, a duty that would include looking into the cause, manner, and like details of the
disappearance; identifying witnesses and obtaining statements from them; and following
evidentiary leads, such as the Toyota Revo vehicle with plate number XRR 428, and securing and
preserving evidence related to the abduction and the threats that may aid in the prosecution of the
person/s responsible. As we said in Manalo, the right to security, as a guarantee of protection by the
government, is breached by the superficial and one-sidedhence, ineffectiveinvestigation by the
military or the police of reported cases under their jurisdiction. As found by the CA, the local police
stations concerned, including P/Supt. Roquero and P/Insp. Gomez, did conduct a preliminary fact-finding
on petitioners complaint. They could not, however, make any headway, owing to what was perceived to
be the refusal of Lourdes, her family, and her witnesses to cooperate. Petitioners counsel, Atty. Rex
J.M.A. Fernandez, provided a plausible explanation for his clients and their witnesses attitude, [They] do
not trust the government agencies to protect them. The difficulty arising from a situation where the
party whose complicity in extrajudicial killing or enforced disappearance, as the case may be, is alleged to
be the same party who investigates it is understandable, though.
The seeming reluctance on the part of the Rubricos or their witnesses to cooperate ought not to
pose a hindrance to the police in pursuing, on its own initiative, the investigation in question to its
natural end. To repeat what the Court said in Manalo, the right to security of persons is a guarantee
of the protection of ones right by the government. And this protection includes conducting
effective investigations of extra-legal killings, enforced disappearances, or threats of the same
kind. The nature and importance of an investigation are captured in the Velasquez Rodriguez case, in
which the Inter-American Court of Human Rights pronounced:
[The duty to investigate] must be undertaken in a serious manner and not as a mere formality
preordained to be ineffective. An investigation must have an objective and be assumed by the State as its
own legal duty, not a step taken by private interests that depends upon the initiative of the victim or
his family or upon offer of proof, without an effective search for the truth by the government. [44] (Emphasis
supplied.)
Indeed, why zero in on Jamess own kin and colleagues when independent eyewitnesses already
provided firsthand accounts of the incident, as well as descriptions of the abductors? With the
cartographic sketches having been made from interviews and statements of witnesses, the police
investigators could have taken proper steps to establish the personal identities of said suspects and yet
this was not done, the police investigators not even lifting a finger to ascertain whether the cartographic
sketches would match with any enlisted personnel of AFP and PNP, or their civilian agents/assets. As to
the vehicles, the plate numbers of which have earlier been disclosed by James to his family and the CPA
as used in conducting surveillance on him prior to his abduction, the military merely denied having a
vehicle with such plate number on their property list despite the fact that the same plate number (USC
922) was sighted attached to a car which was parked at the PA-ISU compound in Navy Base, Baguio
City. As to the other plate number given by James (TNH 787), while the police investigators were able to
verify the name and address of the registered owner of the vehicle, there is no showing that said owner
had been investigated or that efforts had been made to locate the said vehicle. Respondents insistence
that the CPA produce the alleged companions of James in his rented residence for investigation by the
PNP team, while keeping silent as to why the police investigators had not actively pursued
those evidentiary leads provided by eyewitnessesand the Balao family, only reinforce the trial courts

observation that the investigators are seemingly intent on building up a case against other persons so as
to deflect any suspicion of military or police involvement in James Balaos disappearance.
In view of the foregoing evidentiary gaps, respondents clearly failed to discharge their burden of
extraordinary diligence in the investigation of Jamess abduction. Such ineffective investigation extant in
the records of this case prevents us from completely exonerating the respondents from allegations of
accountability for James disappearance. The reports submitted by the PNP Regional Office, Task Force
Balao and Baguio City Police Station do not contain meaningful results or details on the depth and extent
of the investigation made. In Razon, Jr. v. Tagitis, the Court observed that such reports of top police
officials indicating the personnel and units they directed to investigate can never constitute exhaustive
and meaningful investigation, or equal detailed investigative reports of the activities undertaken to search
for the victim.[45] In the same case we stressed that the standard of diligence required the duty of
public officials and employees to observe extraordinary diligence called for extraordinary
measures expected in the protection of constitutional rights and in the consequent handling and
investigation of extra-judicial killings and enforced disappearance cases.
*** As to the matter of dropping President Arroyo as party-respondent, though not raised in the petitions,
we hold that the trial court clearly erred in holding that presidential immunity cannot be properly invoked in
an amparo proceeding. As president, then President Arroyo was enjoying immunity from suit when the
petition for a writ of amparo was filed. Moreover, the petition is bereft of any allegation as to what specific
presidential act or omission violated or threatened to violate petitioners protected rights. [46]
In order to effectively address thru the amparo remedy the violations of the constitutional rights to liberty
and security of James who remains missing to date, the Court deems it appropriate to refer this case back
to the trial court for further investigation by the PNP and CIDG and monitoring of their investigative
activities that complies with the standard of diligence required by theAmparo Rule. Section 24 of
Republic Act No. 6975, otherwise known as the PNP Law [47] specifies the PNP as the governmental
office with the mandate to [i]nvestigate and prevent crimes, effect the arrest of criminal offenders, bring
offenders to justice and assist in their prosecution. The trial court should further validate the results of
such investigations and actions through hearings it may deem necessary to conduct.
IV.
THE TRIAL COURT CORRECTLY DENIED PETITIONER-RESPONDENTS PRAYER FOR
THE ISSUANCE OF AN INSPECTION ORDER, PRODUCTION ORDER AND A WITNESS
PROTECTION ORDER.
Lastly, on the denial of the prayer for interim reliefs under the Amparo Rule.
An inspection order is an interim relief designed to give support or strengthen the claim of a petitioner in
an amparo petition, in order to aid the court before making a decision. [48] A basic requirement before
an amparo court may grant an inspection order is that the place to be inspected is reasonably
determinable from the allegations of the party seeking the order. [49] In this case, the issuance of
inspection order was properly denied since the petitioners specified several military and police
establishments based merely on the allegation that the testimonies of victims and witnesses
in previous incidents of similar abductions involving activists disclosed that those premises were used as
detention centers. In the same vein, the prayer for issuance of a production order was predicated on
petitioners bare allegation that it obtained confidential information from an unidentified military source,
that the name of James was included in the so-called Order of Battle. Indeed, the trial court could not

have sanctioned any fishing expedition by precipitate issuance of inspection and production orders on
the basis of insufficient claims of one party.
Nonetheless, the trial court is not precluded, as further evidence warrants, to grant the above interim
reliefs to aid it in making a decision upon evaluation of the actions taken by the respondents under the
norm of extraordinary diligence.