LOURDES VS.

ARROYO
G.R. No. 183871 : February 18, 2010
FACTS:
A petition for the writ of amparo dated October 25, 2007, it was alleged in the petition
that on April 3, 2007 armed men belonging to the 301st Air Intelligence and Security
Squadron (AISS) abducted Lourdes and detained her at the Fernando Air Base in Lipa.
Following a week of relentless interrogation, Lourdes, chair of the Ugnayan ng Maralita
para sa Gawa Adhikan, was released but only after being made to sign a statement that
she would be a military asset.
During the time Lourdes was missing, P/Sr. Gomez, then sub-station commander, kept
sending text messages to Lourdes' daughter, Mary Joy, bringing her to beaches and
asking her questions about Karapatan, an alliance of human rights organizations. He,
however, failed to make an investigation even after Lourdes' disappearance had been
made known to him.
Lourdes has filed with the Office of the Ombudsman a criminal complaint for kidnapping
and arbitrary detention and administrative complaint for gross abuse of authority and
grave misconduct against Cuaresma, Alfaro, Santana and a certain Jonathan, c/o
Headquarters 301st AISS, Fernando Air Base and Maj. Sy/Reyes, but nothing has
happened; and the threats and harassment incidents have been reported, but nothing
eventful resulted from their respective investigations.
Karapatan conducted an investigation on the incidents. The investigation would indicate
that men belonging to the AFP, namely Capt. Cuaresma of the Philippine Air Force,
Alfaro, Santana, Jonathan and Maj. Darwin Sy/Reyes, led the abduction of Lourdes,
and that unknown to the abductors, Lourdes was able to pilfer a "mission order" which
was addressed to CA Ruben Alfaro and signed by Capt. Cuaresma of the PAF.
The petition prayed that a writ of amparo issue, ordering the individual respondents to
desist from performing any threatening act against the security of the petitioners and for
the Office of the Ombudsman to immediately file an information for kidnapping qualified
with the aggravating circumstance of gender of the offended party.
As explained, Gen. Esperon and P/Dir. Gen. Razon were included in the case on the
theory that they, as commanders, were responsible for the unlawful acts allegedly
committed by their subordinates against petitioners.
Before the CA, respondents Esperon and Razon, among others, filed a joint return on
the writ specifically denying the material inculpatory averments against them.
CA dismissed the petition with respect to Esperon and Razon.

ISSUE:
Whether or not the assailed dismissal of the petition with respect to Gen. Esperon,
P/Dir. Gen. Razon is correct.
RULING:
The Court affirmed the dismissal of the amparo case as against Gen. Hermogenes
Esperon, and P/Dir. Gen. Avelino Razon, insofar as it tended, under the command
responsibility principle, to attach accountability and responsibility to them, as then AFP
Chief of Staff and then PNP Chief, for the alleged enforced disappearance of Lourdes
and the ensuing harassments allegedly committed against petitioners.
The Court assumes the stance owing to the fact that command responsibility, as a
concept defined, developed, and applied under international law, has little, if at all,
bearing in amparo proceedings.
The evolution of the command responsibility doctrine finds its context in the
development of laws of war and armed combats. According to Fr. Bernas, "command
responsibility," in its simplest terms, means the "responsibility of commanders for crimes
committed by subordinate members of the armed forces or other persons subject to
their control in international wars or domestic conflict." 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 of amparo, is what the Court
said in Razon v. Tagitis:
It does not determine guilt nor pinpoint criminal culpability for the disappearance [threats
thereof or extra-judicial killings]; it determines responsibility, or at least accountability,
for the enforced disappearance [threats thereof or extra-judicial killings] for purposes of
imposing the appropriate remedies to address the disappearance [or extra-judicial
killings].
As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts
undertaken to carry out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws. The simple reason is that
the Legislature has not spoken on the matter; the determination of what acts are
criminal are matters of substantive law that only the Legislature has the power to enact.
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.