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Citation:
Anna Lorem Ramos, The Writs of Amparo and Habeas Data:
Judicial Approaches to Human Rights Implementation in
the Philippines, 2011 Lawasia J. 87 (2011)

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 THE WRITS OF AMPARO AND HABEAS DATA:
JUDICIAL APPROACHES TO HUMAN RIGHTS IMPLEMENTATION
IN THE PHILIPPINES

Anna Lorem Ramos*

I INTRODUCTION

While victims of enforced disappearances are separated from the rest of the world behind
secret walls, they are not separated from the constitutional protection of their basic rights.
The constitution is an overarching sky that covers all in its protection. The case at bar
involves the rights to life, libertyl and security in the first petition for a writ
of Amparo filed before this Court.

Professor Philip Alston, United Nations Special Rapporteur on Extrajudicial, Summary or

Arbitrary Executions, visited the Philippines from 12-21 February 2007 to examine the
mounting reports of killings, disappearances and intimidation of leftist activists and civil
society leaders. 2 His report lamented the continued denial of the military that the
perpetrators of these human rights violations were from among their ranks. 3 Instead of
probing the veracity of this finding, the military stubbornly insisted on its "purge theory"
and pinned the blame on the supposed internal cleansing perpetrated by the Communist
Party of the Philippines (CPP). To date, victims of these extrajudicial executions and
enforced disappearances have included militant activists, community leaders, trade
unionists and journalists.

Although Professor Alston's report was met with various responses from the government,
the most concrete and notable of these remains the Supreme Court's promulgation of the
rules on the writs of amparo and habeas data. Touted as a bold manifestation of judicial
activism, the High Court's enforcement of these judicial remedies warrants an
examination of the nascent jurisprudence in order to ascertain whether the writs
effectively achieve their function as tools for human rights implementation. The first part
of this article briefly traces the rise of judicial activism in the Philippines to address
extrajudicial killings and enforced disappearances. The second and third parts highlight
important provisions in the rules on the writs of amparo and habeas data, respectively,
that illustrate the protective and curative features of these judicial remedies. The fourth
part focuses on three issues that challenge the operational competence of these writs,
namely: (a) the evidentiary threshold; (b) the conduct of official investigation; and (c) the
doctrine of command responsibility. This section argues that the Supreme Court's refusal
to accord flexibility in evidentiary standards, its hesitation to treat the conduct of poor
official investigation as a violation in itself, and its rejection of the application of the

The author obtained her Bachelor of Science in Economics, cum laude, in 2004 and her Juris
Doctor in 2008 from the University of the Philippines. She was admitted to the Philippine Bar in
2009. She is currently a law clerk in the Supreme Court of the Philippines and a part-time lecturer
in Public International Law at the Arellano University School of Law.
I Secretary of National Defense v Manalo ('Secretary of National Defense') (2008) 568 SCRA t,
10 (Puno CJ).
2 Philip Alston, Promotion and Protection of all Human Rights, Civil, Political,Economic, Social
and Cultural Rights, Including the Right of Development: Report of the Special Rapporteur on
Extrajudicial,Summary or ArbitraryExecutions, UN Doc A/HRC/8/3/Add.2. (16 April 2008).
Ibid 2.
Ibid 13-14.
[2011] LAWASIA Journal

doctrine of command responsibility in amparo and habeas data cases negate the
protective and curative functions of both judicial remedies. The final part concludes with
recommendations for maximizing the effectiveness of these writs as tools for human
rights implementation.

2 THE RISE OF JUDICIAL ACTIVISM

As a response to the reported cases of extrajudicial killings and enforced disappearances

in the country, on 13 May 2006, then Secretary of Interior and Local Government,
Ronaldo Puno, ordered the Philippine National Police (PNP) to create 'Task Force Usig'
5
to investigate the killings of leftist leaders and media practitioners. The body pointed to
the CPP and its armed group, the National People's Army (NPA), as the primary
6
culprits, and claimed a large number of solved cases despite having facilitated the filing
of only 20 cases in court with 6 suspects in custody.

On 21 August 2006, then President Gloria Macapagal-Arroyo issued Administrative

Order No. 157 creating 'An Independent Commission to Address Media and Activist
8
Killings', otherwise known as the 'Melo Commission'. This fact-finding body admitted
to having been fraught with difficulties in the conduct of its investigations, owing largely
9
to the reluctance of witnesses to cooperate. Thus, it was constrained to rely heavily on
0
the accounts of the PNP and the military.' Nevertheless, it found the military to be
accountable for the extrajudicial killings and enforced disappearances, targeting
individuals on the basis of its unfounded classification as 'enemies of the State'.ii With
its tasks limited only to fact-finding, the most concrete output that the Melo Commission
could have produced was a mere report with recommendations and nothing more.

Unsatisfied with the government's inadequate responses that failed to provide genuine
relief to victims of these human rights violations, the Supreme Court launched a series of
unprecedented initiatives to address the growing number of unresolved killings and
disappearances. Thus, on 1 March 2007, the Supreme Court issued Administrative Order
No. 25-2007 designating 99 regional trial courts as special courts to hear and decide cases
12
involving the killing of judges, political activists and members of the media.
Thereafter, on 16-17 July 2007, it convened a National Consultative Summit on
3
Extrajudicial Killings and Enforced Disappearances.i During this two-day conference,
several multi-sectoral representatives, such as officials from the three branches of
government, the military, academia and civil society, examined the reasons behind these
human rights violations and recommended various responses to this alarming concern.

5 Task Force Usig, Accomplishment Report as of20 June 2006: Executive Summary (2006).
6 Ibid 2.
7 Independent Commission to Address Media and Activist Killings, Report (2007) 7-8
<www.pinoyhr.net/reports/meloreport.pdf> ('Melo Report').
The Melo Commission obtained its name from the appointed Chairman of the body, retired
Supreme Court Associate Justice Jose Melo.
'Stumped: The Melo Commission is running out of witnesses', Newsbreak (online), 5 November
2006 <http://www.newsbreak.ph/2006/l 1/05/stumped-the-melo-commission-is-running-out-of-
witnessest>.
10 Melo Report, above n 7, 4.
11 Ibid 4, 82-83.
12 Supreme Court of the Philippines, National ConsultativeSummit on Extra-JudicialKillings and
Enforced Disappearances:Searchingfor Solutions, 16-17 July 2007,
<http://sc.judiciary.gov.ph/publications/summit/summationl .pdf.>, 8 ('National Consultative
Summit').
13 Ibid 1; Secretary ofNational Defense (2008) 568 SCRA 1, 37-38.
 Human Rights in Philippines

Finally, and most remarkably, the Supreme Court invoked its authority under the 1987
Philippine Constitution to promulgate rules concerning the protection and enforcement of
constitutional rights, 14 such as the rights to life, liberty and security. The result was its
implementation of the Rule on the Writ of Amparo 15 and the Rule on the Writ of Habeas
Data.' 6 This unprecedented use of the High Court's prerogative to invoke its expanded
rule-making power under the Constitution has been hailed as a bold manifestation of
judicial activism. However, ascertaining whether this activist approach actually provides
an effective tool for human rights implementation must be reserved after an examination
of the writs' key features and the issues in current jurisprudence.

3 THE WRIT OF AMPARO

The writ of amparo is an extraordinary, independent and summary judicial remedy that
addresses violations of or threats to the rights to life, liberty and security by providing
various forms of interim and permanent relief to aggrieved parties. As enunciated in
Secretary of National Defense,' this judicial relief assumes both preventive and curative
functions, to wit:

The writ of Amparo serves both preventive and curative roles in addressing the
problem of extralegal killings and enforced disappearances. It is preventive in
that it breaks the expectation of impunity in the commission of these offenses; it
is curative in that it facilitates the subsequent punishment of perpetratorsas it
will inevitably yield leads [sic] to subsequent investigation and action. In the
long run, the goal of both the preventive and curative roles is to deter the further
commission of extralegal killings and enforced disappearances.I1

These preventive and curative roles sit at the core of the writ of amparo, allowing it to
protect and enforce the individual's right to life, liberty and security
19 without making a
judicial determination of administrative, civil or criminal liability.

3.1 Scope of the Writ of Amparo

Section 1 of the Rule on the Writ of Amparo provides:

The petition for a writ of amparo is a remedy available to any person whose right
to life, liberty and security is violated or threatened with violation by an unlawful
act or omission of a public official or employee, or of a private individual or
entity.

The writ shall cover extralegal killings and enforced disappearances or threats
thereof.

Four points are worth discussing. First, the initial draft and preliminary revisions of the
Rule on the Writ of Amparo qualify the scope thereof to extrajudicial killings and
enforced disappearances that are due to or are in furtherance of a political or ideological

14 Constitution 1987, art VII s 5(5).

is Administrative Matter No 07-9-12 SC, effective 24 October 2007 ('Amparo Rule').
16 Administrative Matter No 08-1-16 SC, effective 2 February 2008 ('Habeas Data Rule').
17 Secretary of NationalDefense (2008) 568 SCRA 1.
18 Secretary of NationalDefense (2008) 568 SCRA 1,43 (emphasis added).
'9 Supreme Court, Annotation to the Writ of Amparo <http://sc.judiciary.gov.ph/Annotation
amparo.pdf>, 16 ('Annotation to the Writ ofAmparo'); Supreme Court, Annotation to the Rule on
the Writ of Habeas Data (pamphlet) (2008), 34 ('Annotation to the Writ of Habeas Data').
[2011] LAWASIA Journal

reason.20 However, the framers of the Rule decided to delete this qualification to: (a)
provide a remedy to the victims of killings and disappearances that are not politically - or
ideologically - motivated; (b) avoid making the existence of a political or ideological
colour a prejudicial question that might hamper the speedy grant of the relief; (c) prevent
focusing only on the alleged abuses of the military and the police; and (d) accommodate
future legislation on extrajudicial killings and enforced disappearances that might carry a
broader definition. 21 Thus, the Supreme Court defined extrajudicial killings and enforced
disappearances in the following manner:
As the Amparo Rule was intended to address the intractable problem of
"extralegal killings" and "enforced disappearances," its coverage, in its present
form, is confined to these two instances or to threats thereof. "Extralegal
killings" are "killings committed without due process of law, i.e., without legal
safeguards or judicial proceedings. " 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 persons outside the protection of law. "22

Although the elimination of political or ideological motivation sought to accommodate

future legislation on extrajudicial killings and enforced disappearances, the absence of
this qualification has led litigants to misinterpret the extraordinary nature of these writs.
In Tapuz v Del Rosario, 23 a case arising from a dispute over physical possession of real
property, the Supreme Court emphasized the restricted scope of the writs of amparo and
habeas data by sayingf that these were not intended to protect purely property or
commercial concerns. 2 Thus, the rights to life, liberty and security must be not be
construed to include property ri6hts, such as those involving ownership or possession of
real property,25 or labour issues.

Second, the writ of amparo does not protect all the rights under the 1987 Philippine
Constitution. Rather, it is only limited to the rights to life, liberty and security, 27 and
more specifically confined only to cases involving extrajudicial killings and enforced
disappearances, or to threats thereof. 28 This restrictive approach finds reason in the
existence of other remedies under civil and criminal law that already protect and enforce
other constitutionally mandated rights. 29 Thus, the Supreme Court denied the writ of
30
amparo in a case where the petitioner sought the protection of his right to travel.

20 See generally the Committee on Revision of the Rules of Court, Minutes, 10 August 2007, 6
('Minutes'); Minutes, 24 August 2007, 10; Minutes, 6 September 2007, 2; Minutes, 13 September
2007, 2; Minutes, 17 September 2007, 2-3.
21 Minutes, 20 September 2007, 2, 4-5.
22 Secretary of National Defense (2008) 568 SCRA 1, 38-9 (emphasis added; citations omitted).
23 (2008) 554 SCRA 768.
24 Ibid 784.
25 Castillo v. Cruz (2009) 605 SCRA 628, 636-8.
26 Manila Electric Company v. Lim (2010) 632 SCRA 195, 203.
27 Reyes v Court of Appeals (2009) 606 SCRA 580, 591.
28 Secretary of National Defense (2008) 568 SCRA 1, 38.
29 Annotation to the Writ ofAmparo, above n 19, 3.
30 Reyes v Court of Appeals (2009) 606 SCRA 580, 590-4.
 Human Rights in Philippines

Third, the scope of the writ extends to threats, and not just to actual violations of the
rights to life, liberty or security. In Secretary of National Defense, the Supreme Court
expounded on the concept of freedom from fear as a constitutional right implied from the
right to security, to wit:

First, the right to security of person is "freedom from fear." In its "whereas"
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that "a
world in which human beings shall enjoy freedom of speech and belief
and freedom from fear and want has been proclaimed as the highest aspiration of
the common people." Some scholars postulate that "freedom from fear" is not
only an aspirational principle, but essentially an individual international human
right. It is the "right to security of person" as the word "security" itself means
"freedom from fear." Article 3 of the UDHR provides, viz:

Everyonc has the right to life, liberty and security of person.

In furtherance of this right declared in the UDHR, Article 9(1) of

the International Covenant on Civil and Political Rights (ICCPR) also provides
for the right to security of person, viz:

I. Everyone has the right to liberty and security of person. No

one shall be subjected to arbitrary arrest or detention. No one
shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.

The Philippines is a signatory to both the UDHR and the ICCPR.

In the context of Section 1 of the Amparo Rule, 'freedom from fear" is the right
and any threat to the rights to life, liberty or security is the actionable wrong.
Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear
caused by the same stimulus can range from being baseless to well-founded as
people react differently. The degree offear can varyfrom one person to another
with the variationof the prolificacy of their imagination,strength of characteror
past experience with the stimulus. Thus, in the Amparo context, it is more correct
to say that the "right to security" is actually the 'freedom from threat." Viewed
in this light, the "threatenedwith violation" Clause in the latter part of Section I
ofthe Amparo Rule is aform of violation of the right to security mentioned in the
earlier part of the provision."

Additionally, the inclusion of threats to the rights to life, liberty or security is also
grounded on the preventive role of the writ of amparo in breaking 'the expectation of
impunity in the commission' of extrajudicial killings and enforced disappearances.32

Fourth, even juridical persons may be held accountable or responsible in amparo

proceedings. Ensuring the accountability of juridical entities reflects a progressive
treatment of human rights implementation, as it addresses the reality that even
corporations can commit human rights violations.

31 Secretary of National Defense (2008) 568 SCRA 1, 52-4 (emphasis altered).

32 Ibid 43.
[2011] LAWASIA Journal

3.2 Who May File

Section 2 of the Rule on the Writ of Amparo enumerates the parties or entities who may
seek this judicial remedy, in the following order:

1. The aggrieved party;

2. Any member of the immediate family, namely: the spouse, children and
parents of the aggrieved party;
3. Any ascendant, descendant or collateral relative of the aggrieved party
within the fourth degree of consanguinity or affinity;
4. Any concerned citizen, organization, association or institution, if there is
no known member of the immediate family or relative of the aggrieved
party.

The Rule provides a priority list and follows an exclusionary rule. If the aggrieved party
files a petition, those under numbers 2 to 4, called authorized parties, are precluded from
seeking the remedy on behalf of the former. Moreover, in the absence of the aggrieved
party, the filing of an amparo petition by an authorized party excludes the other
authorized parties in the order mentioned. This priority list, according to the framers of
the Rule, contemplates a possible situation where the release of a disappeared person is
negotiated by the family members, and the filing of a subsequent33 petition by a third party
might stifle the talks and jeopardize the security of the victim.

3.3. Contents of the Petition

Section 5 of the Rule on the Writ of Amparo requires the petitioner to allege the particular
right to life, liberty and security violated or threatened, as well as the details of how such
violation or threat was committed through the unlawful act or omission of the respondent.
The petitioner must also aver the actions and recourses undertaken by him/her to
determine the fate or whereabouts of the aggrieved party and the identity of the person
alleged to be responsible for the violation or threat. Lastly, the petitioner must specify the
relief prayed for, and if necessary, include a general prayer for other just and equitable
relief.

3.4 The Writ of Amparo and the Return of the Writ

If the court deems the petition to be meritorious on its face, it shall immediately order the
issuance the writ of amparo, and set the hearing of the case within seven days from the
date of issue to determine whether the privilege of the writ must be granted. 4 Upon its
issuance, the writ shall be served upon the respondent, who should file a verified return
within five working days from receipt thereof.35 The respondent is prohibited from
making a general denial of the allegations in the petition. Instead, the return must be
accompanied by supporting affidavits containing the following:
36
1. All the lawful defences, as those not alleged will be deemed waived;
33 Minutes, 24 August 2007, 5 [27-33].
34 Amparo Rule, s 6. According to the Annotation to the Writ of Amparo (above n 19,7):
The writ is issued as a matter of course when on the face of the petition it ought to issue.
... If the petitioner is able to prove his cause of action after the hearing, the privilege of
the writ of amparo shall be granted, i.e. the court will grant the petitioner his appropriate
reliefs. (Emphasis in original.)
35 lbid s 9, as amended by Administrative Matter No 07-9-12-SC, effective 24 October 2007.
36 Ibid s 10.
 Human Rights in Philippines

2. The steps or actions undertaken by the respondent to determine the fate or

whereabouts of the aggrieved party;
3. All the relevant information in the possession of the respondent pertaining
to the act or omission subject of the petition; and
4. Other matters relevant to the investigation, prosecution or resolution of the
case.

Further, if the respondent is a public official or employee, the return of the writ should
also specify the actions that have been or will be undertaken to:

1 Verify the identity of the aggrieved party;

2 Recover and preserve evidence relating to the death or disappearance of
the aggrieved party;
3 Identify witnesses and obtain relevant statements;
4 Determine the cause, manner, location and time of death or disappearance,
as well as any pattern or practice that may have brought about the death or
disappearance;
5 Identify and apprehend those involved in the death
37 or disappearance; and
6 Bring the suspected offenders before the courts.

3.5. Interim Relief

Section 14 of the Rule on the Writ of Amparo allows the court to grant interim relief upon
the filing of the petition and at any time before final judgment. Such interim relief
consists of a Temporary Protection Order, Inspection Order, Production Order and
Witness Protection Order. These are not only available to the petitioner, but also to the
witnesses and even 38
the respondents, although only the final three forms of interim relief
apply to the latter.

Any motion for an Inspection Order or Production Order may be opposed on the ground
of national security or privileged information, in which case the hearing thereon may be
conducted in chambers.

3.6 Burden of Proof, Standard of Diligence and Judgment

The petitioner has the burden of proof to establish his/her allegations by substantial
evidence. 39 If the petitioner satisfactorily proves his/her case,40
then the court must grant
the privilege of the writ, together with the appropriate reliefs.

If the respondent is a private individual or entity, the standard of diligence required is

ordinary diligence. On the other hand, if the respondent is a public official or employee,
the observation of extraordinary diligence in the performance of his/her duties must be
proven. For this purpose, the presumption of regularity in the performance of duty, in
order to prove the exercise of extraordinary diligence, does not apply.'

37 Ibid s 9.
38 Minutes, 6 September 2007, 13 [23-28].
39 Amparo Rule ss 17-18.
40 Ibid s 18.
41 Ibid s 17.
[2011] LAWASIA Journal

Since the amparo proceedings take the form of a summary remedy, the court must render
judgment within 10 days from the time the case is submitted for decision.42 If there is an
appeal, it must be filed within
43
five working days from the date of notice of judgment, and
will be accorded priority.

4 The Writ of Habeas Data

To complement the writ of amparo, the Rule on the Writ of Habeas Data was
promulgated to protect the right to privacy, as well as the right to truth. 44 The need for
such a judicial remedy arose due to reports that a number of victims of extrajudicial
killings and enforced disappearances in the country were allegedly targeted on the basis
of an unwarranted classification as "enemies of the State," or on false or inaccurate
information about their political beliefs or affiliation.45

Habeas data, which literally means "you should have the data," aims to safeguard
individual freedom from abuse in the information age by ensuring control over sensitive
personal data and stopping the abuse of such information, which will be detrimental to the
individual. 46 In Roxas v Arroyo,47 the Supreme Court further expounded on the purpose
of this writ, viz:

The writ of habeas data was conceptualized as a judicial remedy enforcing the
right to privacy, most especially the right to informational privacy of
individuals. The writ operates to protect a person's right to control information
regarding himself, particularly in the instances where such information
48 is being
collected through unlawful means in order to achieve unlawful ends.

Like the writ of amparo, the writ of habeas data is also an extraordinary and summary
judicial remedy. It must be underscored, however, that although the writ of habeas data
complements the writ of amparo, the former may be filed independently of the latter.49

4.1 Scope of the Writ of Habeas Data

Section 1 of the Rule on the Writ of Habeas Data defines the writ as

a remedy available to any person whose right to privacy in life, liberty or security is
violated or threatened with violation by an unlawful act or omission of a public official or
employee or of a private individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family, home and correspondence of
the aggrieved party.

42 Ibid s 18.
43 lbid s 19.
44 Supreme Court, Rationalefor the Writ of Habeas Data (pamphlet) (2008), 21.
45 Supreme Court of the Philippines, National Consultative Summit on Extra-JudicialKillings and
Enforced Disappearances:Searchingfor Solutions, 16-17 July 2007,
<http://sc.judiciary.gov.ph/publications/summit/summation 1.pdf>.
46 Andres Guadamuz, 'Habeas Data: An Update on Latin America Data Protection Constitutional
Right' (Paper presented at the 16 th BILETA Annual Conference, Edinburgh, Scotland, 9-10 April
2001) <http://www.bileta.ac.uk/Document/20Library/l/Habeas%2OData%20-
%20An%2OUpdate%20on%20the%20Latin%America%20Data%20Protection%20Constitutional
%20Right.pdf'>
47 (2010) 630 SCRA 211.
48 Ibid 239 (citation omitted).
49 Annotation to the Rule on the Writ of Habeas Data, above n 19, 23-24; Minutes, 17 December
2007, 7 [18-22].
 Human Rights in Philippines

As in the writ of amparo, the protection accorded by the writ of habeas data is limited to
the right to privacy in life, liberty or security, and covers both actual violations and
threats. The framers of the Rule deliberately inserted the phrase "privacy in" to
emphasize that while the writ of amparo safeguards the rights to life, liberty and security,
what the writ of habeas data really protects is the right to privacy in these areas. 50 Also
similar to amparo petitions, juridical entities may be held responsible in habeas data
proceedings for alleged violations of or threats to the right to privacy in life, liberty or
security, for so long as the respondent is engaged in the gathering, collecting or storing of
the subject data or information.

4.2 Who may File

The general rule is that any aggrieved party may file a petition for the issuance of the writ
of habeas data.51 However, if the petition involves extrajudicial killings and enforced
disappearances, the Rule on the Writ of Habeas Data, like in amparo cases, also imposes
an order of priority:

1. Any member of the immediate family of the aggrieved party,

namely: the spouse, children and parents; or
2. Any ascendant, descendant or collateral relative of the aggrieved
party within the fourth civil degree of consanguinity or affinity, in
default of those mentioned in the preceding paragraph. 2

4.3 Contents of the Petition

The petition must set out the manner in which the right to privacy of the aggrieved party
is violated or threatened, and how this affects his/her rights to life, liberty or security.
The petitioner must also allege the actions and recourses taken by him/her to secure the
subject data or information, as well as the location of the files, registers or databases, the
government office, and the person in charge, in possession or in control thereof, if known.
In cases involving actual violations of the right to privacy in life, liberty or security, the
prayer for relief may include the updating, rectification, suppression or destruction of the
data or information; in cases involving threats, the aggrieved party may ask the court to
enjoin the act complained of in the petition.53 The imposition of these 54 detailed
requirements is intended to prevent the use of the writ as a fishing expedition.

4.4 The Writ of Habeas Data and the Return

If the court finds the petition to be meritorious on its face, then it should issue the writ,
and set the date and time for its summary hearing, which shall not be later than 10
working days from the date of its issuance.

Within five working days from the service of the writ, the respondent must file a verified
return with supporting affidavits. The return must state the lawful defences, such as
national security, state secrets, privileged communication and confidentiality of the
source of information of media. In addition, if the respondent is in charge, in possession

50 Minutes, 16 January 2008, 2.

51 Habeas Data Rule s 2.
52 Ibid s 2.
53 ]bid s 6.
54 Annotation to the Writ of Habeas Data, above n 19, 27.
55 Habeas Data Rule s 7.
[2011] LAWASIA Journal

or in control of the subject data or information, then the return must include the
following:

1 A disclosure of the data or information;

2 The nature and purpose of the data or information;
3 The steps or actions undertaken by the respondent to ensure the security
and confidentiality of the data or information; and
4 The currency and accuracy of the data or information.

As in the writ of amparo, the respondent in a habeas data case is prohibited from making
a general denial of the allegations in the petition. 56 If the defence of the respondent is
grounded on national security, state secrets or57privileged information, then the court may
order the conduct of the hearing in chambers.

4.5 Judgment

Actions for the issuance of the writ of habeas data are summary in nature, requiring the
court to render judgment within 10 days from the submission of the case for decision.
The court shall grant the privilege of the writ of habeas data upon proof of the allegations
in the petition by substantial evidence. The court may: (a) enjoin the act complained of;
(b) order the deletion, destruction or rectification
58 of the subject data or information; or (c)
grant such other just and equitable relief.

An appeal may be made from the judgment, which must be filed within five working59 days
from notice thereof. The appeal is given the same priority as actions for amparo.

5 ISSUES AND CHALLENGES IN CURRENT JURISPRUDENCE

Analysing the developing jurisprudence on the writs of amparo and habeas data cannot
be made without going back to the crux of these judicial remedies. It is worth reiterating
that the Rules on the Writs of Amparo and HabeasData provide rapid judicial relief and
the writs serve both preventive and curative roles, and do not make a judicial
determination of administrative, civil or criminal liability. With these key features in
mind, three issues in current jurisprudence need to be examined: (a) the evidentiary
threshold; (b) the conduct of official investigations; and (c) the doctrine of command
responsibility.

5.1 Flexibility in the Evidentiary Threshold

The writs of amparo and habeas data both impose the evidentiary threshold of substantial
evidence, which is similar to that used in administrative actions, albeit judicially
conducted. 60 The use of substantial evidence owes largely to the absence in amparo and
habeas data cases of a judicial determination of criminal guilt requiring proof beyond
reasonable doubt, or liability for civil damages requiring preponderance of evidence, or
administrative responsibility
6 requiring substantial evidence that will require full and
exhaustive proceedings. 1

56 Ibid s 10.
57 Ibid s 12.
58 Ibid s 16.
59 Ibid s 19.
60 Razon v Tagitis (2009) 606 SCRA 598, 687.
61 Secretary of National Defense (2008) 568 SCRA 1, 42.
 Human Rights in Philippines

Under Philippine law and jurisprudence, substantial evidence means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion,6 2 even if
other minds equally reasonable might conceivably opine otherwise. 63 However, the
traditional manner in which the standard of substantial evidence is used in administrative
cases cannot be applied in amparo and habeas data proceedings due to the existence of
evidentiary difficulties peculiar to extrajudicial killings and enforced disappearances,
especially in situations where the State assumes the dual role of accused and investigating
authority. 64 The Supreme Court, in Razon v Tagitis ('Razon'), 65 enumerated three kinds
of evidentiary difficulties, namely: (a) concealment of the identity of the perpetrators; (b)
concealment of evidence; and (c) denial, to wit:

These difficulties largely arise because the State itself - the party whose
involvement is alleged - investigates enforced disappearances. Past experiences
in other jurisdictions show that the evidentiary difficulties are generally
threefold.

First, there may be a deliberate concealment of the identities of the direct

perpetrators.Experts note that abductors are well organized, armed and usually
members of the military or police forces, thus:

The victim is generally arrested by the security forces or by

persons acting under some form of governmental authority. In
many countries the units that plan, implement and execute the
program are generally specialized, highly-secret bodies within
the armed or security forces. They are generally directed
through a separate, clandestine chain of command, but they have
the necessary credentials to avoid or prevent any interference by
the "legal" police forces. These authorities take their victims to
secret detention centers where they subject them to interrogation
and torture without fear of judicial or other controls.

In addition, there are usually no witnesses to the crime; ifthere are, these
witnesses are usually afraid to speak out publicly or to testify on the
disappearanceout offearfor their own lives. We have had occasion to note this
difficulty in Secretary of Defense v. Manalo when we acknowledged that "where
powerful military officers are implicated, the hesitation of witnesses to surface
and testify againstthem comes as no surprise."

Second, deliberate concealment of pertinent evidence of the disappearanceis a

distinct possibility; the central piece of evidence in an enforced disappearance -
i.e., the corpus delicti or the victim's body - is usually concealed to effectively
thwart the start of any investigation or the progress of one that may have begun.
The problem for the victim'sfamily is the State's virtual monopoly of access to
pertinent evidence. The Inter-American Court of Human Rights (IACHR)
observed in the landmark case of Velasquez Rodriguez that inherent to the
practice of enforced disappearance is the deliberate use of the State's power to
destroy the pertinent evidence. The IACHR described the concealment as a clear
attempt by the State to commit the perfect crime.

62 Ang Tibay v Court of IndustrialRelations (1940) 69 Phil 635, 642.

63 Civil Service Commission v Cayobit (2003) 410 SCRA 357, 364, citing Betguen v Masangcay
(1994) 238 SCRA 475.
Razon v Tagitis (2009) 606 SCRA 598, 684.
65 (2009) 606 SCRA 598.
[2011] LAWASIA Journal

Third is the element of denial; in many cases, the State authorities deliberately
deny that the enforced disappearanceever occurred. "Deniability" is central to
the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards
ensuring the victim's human rights. Experience shows that government officials
typically respond to requests for information about desaparecidosby saying that
they are not aware of any disappearance, that the missing people may have fled
the country, or that their names have merely been invented.'

Thus, for amparo cases, the Supreme Court categorically established a new evidentiary
standard,6 7 which is still within the bounds of substantial evidence, thus:

The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test of
reason - i.e., to the relevance of the evidence to the issue at hand and its
consistency with all the other pieces of adduced evidence. Thus, even hearsay
68
evidence can be admitted if it satisfies this minimum test.

Despite seemingly espousing the liberality employed by the Inter-American Court of

Human Rights, the Supreme Court has not consistently observed the flexibility in
evidentiary standards that it had adopted in Razon. Departing from its pronouncement
therein, the cases subsequently decided followed a more stringent threshold of substantial
69
evidence. In Rubrico v Arroyo ('Rubrico'), for example, the Supreme Court denied the
privilege of the writ of amparo despite the presence of factual circumstances that would
have otherwise been sufficient under Razon, viz:

Petitioners, as the [Court of Appeals] has declared, have not adduced substantial
evidence pointing to government involvement in the disappearance of [victim]
Lourdes. To a concrete point, petitioners have not shown that the actual
perpetrators of the abduction and the harassments that followed formally or
informally formed part of either the military or the police chain of command. A
preliminary police investigation report, however, would tend to show a link,
however hazy, between the license plate (XRR 428) of the vehicle allegedly used
in the abduction of Lourdes and the address of Darwin Reyes/Sy, who was alleged
to be working in Camp Aguinaldo. Then, too, there were affidavits and
testimonies on events that transpiredwhich, if taken together, logicallypoint to
military involvement in the alleged disappearanceof Lourdes, such as, but not
limited to, her abduction in broad daylight, her being forcibly dragged to a
vehicle blindfoldedand then being brought to a place where the sounds ofplanes
taking off and landing could be heard. Mention may also be made of the fact
that Lourdes was asked about her membership in the Communist Party [of the
Philippines] and of being released when she agreed to become an "asset."

The Court is, of course, aware of what was referred to in Razon as the
"evidentiary difficulties" presented by the nature of, and encountered by
petitioners in, enforced disappearance cases. But it is precisely for this reason that
the Court should take care too that no wrong message is sent, lest one conclude

66 Ibid 684-686 (emphasis altered).

67 Razon (Resolution) (2010) 612 SCRA 685, 689.
68 Razon (2009) 606 SCRA 598, 692 (emphasis in original).
69 (2010) 613 SCRA 233.
 Human Rights in Philippines

that any kind or degree of evidence,

7 even the outlandish, would suffice to secure
amparo remedies and protection. 0

It is true that the flexibility given to courts in the admissibility and weight of evidence
presented in amparo and habeas data proceedings must not be misinterpreted as a license
to grant the privileges of the writs on vague or doubtful grounds. At the same time, the
Supreme Court must also not hesitate to follow the liberality in admitting and weighing
evidence that it had itself established in Razon. After all, Razon already provided for a
safeguard, in that evidence otherwise inadmissible under the Revised Rules on Evidence7 '
in Philippine law will be considered in amparo and habeas data cases only if it is relevant
and consistent with the admissible evidence adduced. To continue imposing a rigid
evidentiary standard similar to that used in Rubrico might eventually impair the remedial
and extraordinary nature of the writs. The supposed relief made available to aggrieved
parties will be rendered nugatory if they are expected to comply with a stringent
evidentiary threshold that is almost impossible for them to meet, considering the presence
of evidentiary difficulties unique to amparo and habeas data cases.

5.2 Conduct of Official Investigation

In Secretary of National Defense, the Supreme Court granted the privilege of the writ of
amparo after finding that respondent government officers failed to conduct fair and
independent investigation despite being charged with such authority and responsibility.
This failure to pursue effective official investigation was in itself treated as a violation of
the right to security as a guarantee of protection by the government, thereby warranting the
grant of the privilege of the writ. The relevant portions of the decision therein read:

[T]he right to security of person is a guarantee of protection of one's rights by the

government. In the context of the writ of Amparo, this right is built into the
guarantees of the right to life and liberty under Article III, Section 1 of the 1987
Constitution and the right to security of person (as freedom from threat and
guarantee of bodily and psychological integrity) under Article III, Section 2. The
right to security of person in this ... sense is a corollary of the policy that the
State "guarantees full respect for human rights" under Article II, Section 11 of the
1987 Constitution. As the government is the chief guarantor of order and
security, the Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection to these
rights especially when they are under threat. 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. The
Inter-American Court of Human Rights stressed the importance of investigation
in the Velasquez Rodriguez Case, viz:

(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 as a step taken by private interests that
depends upon the initiative of the victim or his family or upon
their offer of proof, without an effective search for the truth by
the government.

70 lbid 254-6 (emphasis added).

71 Rules 128-134, Rules of Court.
[2011] LAWASIA Journal

Similarly, the European Court of Human Rights (ECHR) has interpreted the
"right to security" not only as prohibiting the State from arbitrarily depriving
liberty, but imposing a positive duty on the State to afford protection of the right
to liberty. The ECHR interpreted the "right to security of person" under Article
5(1) of the European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey. In this case, the claimant's son had
been arrested by state authorities and had not been seen since. The family's
requests for information and investigation regarding his whereabouts proved
futile. The claimant suggested that this was a violation of her son 's right to
security ofperson. The ECHR ruled, viz:

... any deprivation of liberty must not only have been effected in
conformity with the substantive and procedural rules of national
law but must equally be in keeping with the very purpose of
Article 5, namely to protect the individual from arbitrariness...
Having assumed control over that individual it is incumbent on
the authorities to account for his or her whereabouts. For this
reason, Article 5 must be seen as requiringthe authoritiesto take
effective measures to safeguardagainst the risk of disappearance
and to conduct a prompt effective investigation into an arguable
claim that a person has been taken into custody and has not been
seen since.

Next, the violation of the right to security as protection by the government. Apart
from the failure of military elements to provide protection to respondents by
themselves perpetrating the abduction, detention, and torture, they also miserably
failed in conducting an effective investigation of respondents' abduction as
revealed by the testimony and investigation report of petitioners' own witness, Lt.
Col. Ruben Jimenez, Provost Marshall of the 7' Infantry Division.

The one-day investigationconducted by Jimenez was very limited, superficial, and

one-sided. He merely relied on the Sworn Statements of the six implicated
members of the [Citizens Armed Forces Geographical Unit (CAFGU)] and
civilians whom he met in the investigation for the first time. He was present at the
investigation when his subordinate Lingad was taking the sworn statements, but
he did not propound a single question to ascertain the veracity of their statements
or their credibility. He did not call for other witnesses to test the alibis given by
the six implicated persons nor for the family or neighbors of the respondents.

In his affidavit, petitioner Secretary of National Defense attested that in a

Memorandum Directive dated October 31, 2007, he issued a policy directive
addressed to the [Armed Forces of the Philippines (AFP)] Chief of Staff, that the
AFP should adopt rules of action in the event the writ of amparo is issued by a
competent court against any members of the AFP, which should essentially
include verification of the identity of the aggrieved party; recovery and
preservation of relevant evidence; identification of witnesses and securing
statements from them; determination of the cause, manner, location and time of
death or disappearance; identification and apprehension of the person or persons
involved in the death or disappearance; and bringing of the suspected offenders
before a competent court. Petitioner AFP Chief of Staff also submitted his own
affidavit attesting that he received the above directive of respondent Secretary of
National Defense and that acting on this directive, he immediately caused to be
issued a directive to the units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the recent reappearance of the
respondents, and undertook to provide results of the investigations to respondents.
To this day, however, almost a year after the policy directive was issued by
petitionerSecretary of National Defense on October 31, 2007, respondents have
 Human Rights in Philippines

not been furnishedthe results of the investigationwhich they now seek through the
instant petitionfor a writ of amparo.

Under these circumstances, there is substantial evidence to warrant the conclusion

that there is a violation of respondents' right to security as a guarantee of
protection by the government.

In sum, we conclude that respondents' right to security as "freedom from threat"

is violated by the apparent threat to their life, liberty and security of person. Their
right to security as a guarantee of protection by the government is likewise
violated72by the ineffective investigation and protection on the part of the
military.

Instead of developing jurisprudence on the basis of the foregoing arguments, the

succeeding Supreme Court decisions reflect a series of vacillating pronouncements. Some
cases adhered to Secretary of National Defense, while others diverted therefrom, making
the absence of a fair, independent and effective official investigation the primary reason to
deny or suspend the grant of the privilege of the writ of amparo and habeas data. For
73
instance, in Burgos v Arroyo ('Burgos'), the finding that the respondent public officers
failed to conduct an exhaustive and meaningful investigation, as dictated by their official
functions, became the basis for deferring the disposition of the case, rather than becoming
the reason for granting the privilege of the writ. The Supreme Court held in Burgos:

Considering the findings of the CA and our review of the records of the present
case, we conclude that the [PhilippineNationalPolice (PNP)] and the AFP have
so far failed to conduct an exhaustive and meaningful investigation into the
disappearance of Jonas Burgos, and to exercise the extraordinarydiligence (in
the performance of their duties) that the Rule on the Writ of Amparo requires.
Because of these investigative shortcomings, we cannot rule on the case until a
more meaningful investigation, using extraordinarydiligence, is undertaken.

From the records, we note that there are very significant lapses in the handling of
the investigation- among them the PNP-[Criminal Investigation and Detection
Group (CIDG)]'s failure to identify the cartographic sketches of two (one male
and one female) of the five abductors of Jonas based on their interview of
eyewitnesses to the abduction. This lapse is based on the information provided to
the petitioner by no less than State Prosecutor Emmanuel Velasco of the
[Department of Justice (DOJ)] who identified the persons who were possibly
involved in the abduction, namely: T/Sgt. Jason Roxas (Philippine Army), Cpl.
Maria Joana Francisco (Philippine Air Force), M/Sgt. Aron Arroyo (Philippine
Air Force), and an alias T.L., all reportedly assigned with Military Intelligence
Group 15 of Intelligence Service of the AFP. No search and certification were
ever made on whether these persons were AFP personnel or in other branches of
the service, such as the Philippine Air Force. As testified to by the petitioner, no
significant follow through was also made by the PNP-CIDG in ascertaining the
identities of the cartographic sketches of two of the abductors despite the
evidentiary leads provided by State Prosecutor Velasco of the DOJ. Notably, the
PNP-CIDG, as the lead investigating agency in the present case, did not appear
to have lifted afinger to pursue these aspects of the case.

We note, too, that no independent investigation appearedto have been made by

the PNP-CIDG to inquire into the veracity of Lipio's and Manuel's claims that
Jonas was abducted by a certain @KA DANTE and a certain @KA ENSO of the

72 Secretary of NationalDefense (2008) 568 SCRA 1, 57-58, 60-64 (emphasis altered).

73 (2010) 621 SCRA 481.
[2011] LAWASIA Journal

CPP/NPA guerilla unit RYG. The records do not indicate whether the PNP-
CIDG conducted a follow-up investigation to determine the identities and
whereabouts of @KA Dante and @KA ENSO. These omissions were aggravated
by the CA finding that the PNP has yet to refer any case for preliminary
investigation to the DOJ despite its representation before the CA that it had
forwarded all pertinent and relevant documents to the DOJ for the filing of
appropriate charges against @KA DANTE and @KA ENSO.

Based on these considerations, we conclude that further investigation and

monitoring should be undertaken.74
75
Meanwhile, in the unanimously adopted decision in Rodriguez v Arroyo ('Rodriguez'),
the Supreme Court reverted to its ruling in Secretary ofNational Defense, and ruled that the
failure to conduct a fair and effective investigation amounted to a violation of the right to
security. The High Court ratiocinated in this manner:

The Rule on the Writ of Amparo explicitly states that the violation of or threat to
the right to life, liberty and security may be caused by either an act or
an omission of a public official. Moreover, in the context of amparo proceedings,
responsibility may refer to the participation of the respondents, by action
or omission, in enforced disappearance. Accountability, on the other hand, may
attach to respondents who are imputed with knowledge relating to the enforced
disappearanceand who carry the burden of disclosure; or those who carry, but
have failed to discharge, the burden of extraordinary diligence in the
investigationof the enforced disappearance.

In the instant case, this Court rules that respondents in G.R. No. 191805 are
responsible or accountablefor the violation of Rodriguez's right to life, liberty
and security on account of their abject failure to conduct a fair and effective
official investigation of his ordeal in the hands of the military. Respondents Gen.
Ibrado, PDG. Verzosa, Lt. Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera and Lt.
Col. Mina only conducted a perfunctory investigation, exerting no efforts to take
Ramirez's account of the events into consideration. Rather, these respondents
solely relied on the reports and narration of the military. The ruling of the
appellate court must be emphasized:

In this case, respondents Ibrado, Verzosa, Bangit, Tolentino,

Santos, De Vera, and Mina are accountable, for while they were
charged with the investigation of the subject incident, the
investigation they conducted and/or relied on is superficial and
one-sided...

Respondent [Police Director General (PDG)] Verzosa, as Chief

of the PNP, is accountable because Section 24 of Republic Act
No. 6975, otherwise known as the "PNP Law," specifies the
PNP as the governmental office with the mandate "to investigate
and prevent crimes, effect the arrest of criminal offenders, bring
offenders to justice and assist in their prosecution." In this case,
PDG Verzosa failed to order the police to conduct the necessary
investigation to unmask the mystery surrounding petitioner's
abduction and disappearance. Instead,PDG Verzosa disclaims
accountabilityby merely stating that petitioner has no cause of
action against him. Palpable,however, is the lack of any effort
on the part of PDG Verzosa to effectively and aggressively
Ibid 493-495 (emphasis altered).
G.R. No. 191805, 15 November 2011.
 Human Rights in Philippines

investigate the violations of petitioner's right to life, liberty and

th th
security by members of the 17 Infantry Battalion, 1 7 Infantry
Division, Philippine Army.

Clearly, the absence of a fair and effective official investigation into the claims of
Rodriguez violated his right to security, for which respondents in G.R. No.
6
191805 must be held responsible or accountable.

Less than a month after the promulgation of Rodriguez, the Supreme Court came out with
77
Balao v Arroyo ('Balao'), which echoed the ruling in Burgos. In that case, despite a clear
finding that 'the actions taken by respondent official are "very limited, superficial and one-
sided,"' the Supreme Court still denied the grant of the privilege of the writ of amparo. In
this regard, the Dissenting Opinion therein of Sereno J is worth noting:

The majority Decision precariously steers budding Philippinejurisprudence on

the writ of amparo in a course that threatens to diminish the preventive and
curative functions of this judicial relief As this Court emphasized in the
landmark case of Secretary of National Defense v. Manalo, the writ
of amparoserves both preventive and curative roles in addressing the problem of
extrajudicial killings and enforced disappearances. It is preventive in that it
breaks the expectation of impunity in the commission of these offenses, and it is
curative in that it facilitates the subsequent punishment of perpetrators by
inevitably leading to subsequent investigation and action.

The ponencia admits that the commanders and military officers impleaded as
respondents in G.R. No. 186050 have taken very limited, superficial and one-sided
actions and have "clearly failed to discharge their burden of extraordinary
diligence in the investigation." Notwithstanding this explicit finding, the majority
still refused the grant of the privilege of the writ. A faithful interpretation of the
Rule on the Writ of Amparo, as well as existing jurisprudence, supports the
contention that the failure to conduct an effective official investigationis precisely
the reason why respondents in G.R. No. 1860589 should be held responsible or
accountablefor the enforceddisappearanceof [James] Balao.

The ponencia orders the referral of this case back to the trial court for further
investigation by the PNP and CIDG. As previously discussed, an explicit finding
of absence of a fair and effective investigation should have been sufficient to grant
the privilege of the writ of amparo. After all, there is no finding of criminal, civil
or administrative liability in amparo proceedings. In fact, granting the privilege
of the writ may include an order instructing respondents to conduct further
investigation, if such a directive is deemed as an78appropriateremedialmeasure under
the premises to protect the rightsunder the writ.

The inconsistencies in the Supreme Court decisions notwithstanding, the previously

discussed core features of the writs of amparo and habeas data necessitate an adherence to
the pronouncements in Secretary of National Defense and Rodriguez. The failure to
conduct fair and effective official investigation should on its own be treated as a violation
of the right to security. To consider it as a reason to deny or suspend the grant of the
privilege of the writ until further investigation is performed ultimately negates the intention
of the framers of the Rules of Amparo and Habeas Data to make these judicial remedies
summary and expedient. These rapid judicial reliefs are especially necessary in instances of
enforced disappearances, where time plays a crucial role in the discovery of the

76 Ibid (emphasis altered).

77 G.R. Nos. 186050 and 186059,13 December 2011.
78 Ibid (Sereno J; emphasis altered).
[2011] LA WASIA Journal

whereabouts of the victim or his/her release from custody. Prolonging the amparo and
habeas data proceedings will only decrease the hope of aiding the victims of these human
rights atrocities.

The ideal action, therefore, is that once there is a finding that the respondent public officers
failed to fulfil their responsibility to conduct fair and effective official investigation, the
Supreme Court must treat such an omission as a violation of the right to security,
warranting the grant of the privilege of the writs. If there is a need to conduct further
investigation, then this directive can properly be included as one of the appropriate orders
in the grant of the privilege, as was done in Rodriguez.

5.3 Command Responsibility

As previously discussed, the remedies of amparo and habeas data do not entail a
determination of administrative, civil or criminal liability. 79 These summary judicial
reliefs are limited to ascertaining the responsibility or accountability of the respondent for
the alleged violation or threat to the right to life, liberty or security of the aggrieved party.
The Supreme Court first explained the concepts of responsibility and accountability in
Razon, to wit:

[The writ of amparo] does not determine guilt nor pinpoint criminal culpability
for the disappearance; rather, it determines responsibility, or at least
accountability, for the enforced disappearance for purposes of imposing the
appropriate remedies to address the disappearance. 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 disappearancewithout bringing the level of their
complicity to the level of responsibility defined above; or who are imputed with
knowledge relating to the enforced disappearanceand who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of
extraordinarydiligence in the investigationof the enforceddisappearance. In all
these cases, the issuance of the Writ of Amparo isjustified by our primary goal of
addressing the disappearance, sot that the life of the victim is preserved and his
liberty and security are restored.8

Although the above pronouncement only refers to amparo proceedings, the same also
applies to habeas data cases since both remedies are in the nature of prerogative writs.
Therefore, the issues in actions for amparo and habeas data comprise of the following:

1. Whether the respondent participated in the alleged violation or threat to the

rights to life, liberty or security;
2. Whether the extent of such participation made the respondent responsible
for the violation or threat;
3. Whether the respondent was involved in the violation or threat on a level
below that of responsibility;

79 Annotation to the Writ ofAmparo, above n 19, 16; Annotation to the Writ of Habeas Data, above n
19, 34.
80 Razon (2009) 606 SCRA 598, 620-621 (emphasis altered).
 Human Rights in Philippines

4. Whether the respondent was imputed with knowledge of the violation or

threat and carried the burden of its disclosure; and
5. Whether the respondent carried and failed to discharge the burden of
extraordinary diligence in the conduct of the investigation.

These issues lay the basis for the applicability of the doctrine of command responsibility,
which had been far from welcomed in the current jurisprudence on amparo and habeas
data.

The Supreme Court first categorically ruled against the applicability of command
responsibility in Rubrico, holding that since command responsibility is a form of criminal
complicity through omission, this doctrine cannot be used in amparo proceedings, where
criminal culpability is not an issue. 8 1 In the same case, however, Carpio-Morales J wrote
a dissent, putting the concept of command responsibility vis-A-vis the writ of amparo in
its proper context -
While the exact formulation of the doctrine of command responsibility varies in
different international legal instruments, the variance is more apparent than real.
The Court should take judicial notice of the core element that permeates these
formulations - a commander's negligence in preventing or repressing his
subordinates' commission of the crime, or in bringing them to justice thereafter.
Such judicial notice is but a necessary consequence of the application of the
incorporation clause vis-iA-vis the rule on mandatory judicial notice of
international law.

That proceedings under the Rule on the Writ of Amparo do not determine
criminal, civil or administrativeliability should not abate the applicabilityof the
doctrine of command responsibility. Taking Secretary of National Defense v.
Manalo and Razon v. Tagitis in proper context, they do not preclude the
applicationof the doctrine ofcommand responsibilityto 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 one's
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 ofjustice.

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,
81 Rubrico (2010) 613 SCRA 233, 253.
[2011] LAWASIA Journal

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
statute's 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 ponencia's hesitant application of the
8 2 implications abhorrent to the rationale behind the
doctrine itself is replete with
Rule on the Writ of Amparo.

This Separate Opinion was later on affirmed in the majority decision in Boac v Cadapan
('Boac') 83 - penned by no less than Carpio-Morales J herself - where the Supreme
Court finally allowed the application of command responsibility to the extent that it may
determine the identity of those who might be accountable for the violation of or threat to
the rights to life, liberty or security, to wit:

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 preliminaryyet 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
transgressionon the life, liberty or security of the aggrievedparty.

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

82 Ibid 273-5 (Carpio-Morales J; emphasis added).

G.R. Nos. 184461-2, 184495, 187109, 31 May 2011.
 Human Rights in Philippines

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.

Aptly reiterating Boac, the Supreme Court again applied the doctrine of command
responsibility in Rodriguez, ruling in this wise:

Although originally used for ascertaining criminal complicity, the command

responsibility doctrine has also found application in civil cases for human rights
abuses. 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. 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
ascertainresponsibilityand accountabilityin extrajudicialkillings and enforced
disappearances....

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 appliedt 5to ascertain responsibility
and accountability within these foregoing definitions.

The progression of the doctrinal jurisprudence on command responsibility from Rubrico

to Boac, and then to Rodriguez, was unfortunately impeded by the recent ruling in Balao.
While Rodriguez clarified the propriety of applying command responsibility in amparo
and habeas data cases insofar as this doctrine can determine responsibility or
accountability within the context of their respective Rules, Balao created confusion by
stating 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
Ibid (emphasis altered).
85 Rodriguez, G.R. No. 191805, 15 November 2011 (emphasis altered).

107
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therefore be impleaded-not actually on the basis of command responsibility-

86
but ratheron the groundof theirresponsibility, or at least accountability.

Drawing attention to the departure of Balao from the development in jurisprudence,

Sereno J issued a Dissenting Opinion therein, the pertinent portions of which read:
The ponencia rejects the use of command responsibility in amparo proceedings
on the ground that the manner of impleading commanders must be on the basis
of their responsibility or accountability. It must be pointed out that the doctrine
of command responsibility is not mutually exclusive with the standard of
responsibilityandaccountabilityin amparo cases.

Boac v. Cadapan gives guidance as to how the ostensible difference between

command responsibility,on the one hand, and responsibilityand accountability,
on the other,can be reconciledas follows:

[C]ommand 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 aggrievedparty...

Thus, the doctrine of command responsibility may be used

in amparo proceedings to the extent of identifying the superiors accountablefor
the enforced disappearance or extrajudicial killing, and those who may be
directed to implement the processes and reliefs in the amparo case.87

In cases of extrajudicial killings and enforced disappearances, where the alleged

perpetrators are members of the police force or the military, and the evidentiary
difficulties make it almost impossible to specifically identify the individual participation
of the respondents, the Supreme Court must adhere to its pronouncements in Boac and
Rodriguez and allow a liberal application of the doctrine of command responsibility in
amparo and habeas data cases. Otherwise, it will inordinately and improperly increase
the threshold for impleading respondents in these actions, where administrative, civil or
criminal liabilities are not even in issue. Thus, the Supreme Court must not hesitate to
use command responsibility to implead respondents in amparo and habeas data
proceedings in order to identify (1) those who might be responsible or accountable for the
violation or threat to the rights to life, liberty or security, and (2) those accountable
individuals who have the power to implement whatever processes that the court may
issue.

6 Conclusion

The early stages of implementation of the Rules on the Writs of Amparo and Habeas
Data are very crucial. The Supreme Court continues to clarify the parameters of the
application of amparo and habeas data, as well as the metes and bounds of the
concomitant protections that can be accorded the victims of enforced disappearances and
extrajudicial killings. From the time these writs were enforced in late 2007 and in early
2008, the Supreme Court has issued only a total of 15 decisions involving either or both
remedies. Of these decided cases, only four have been granted the privilege of the writ of
86 Balao, G.R. Nos. 186050 and 186059, 13 December 2011 (emphasis altered).
87 Ibid (Sereno J; emphasis altered).
 Human Rights in Philippines

amparo, and one the privilege of the writ of habeas data. These statistics may portend
sweeping conclusions about the dismal contribution of the writs in attaining the ultimate
goal of ending impunity for extrajudicial killings and enforced disappearances. But more
than concentrating on the absolute numbers, the effectiveness of both judicial remedies
must be gauged on the developing issues in the writs' nascent jurisprudence.

First, the evidentiary difficulties in amparo and habeas data cases are undeniable, and the
Supreme Court's ruling in Razon already provided an appropriate response by creating a
new evidentiary standard allowing flexibility in the admissibility and weight of evidence.
Thus, what is needed is merely its reinforcement in jurisprudence. The Supreme Court
must not hesitate to use this flexible evidentiary standard, considering that the writs are
only remedial in nature and do not entail any judicial determination of administrative, civil
or criminal liability.

Second, Secretary of National Defense aptly introduced the concept of the right to
security imposing a positive duty on the government to conduct fair and effective official
investigation on allegations of enforced disappearances and extrajudicial killings. Failing
to perform such duty should naturally be interpreted as an unlawful omission violating or
threatening with violation the right to life, liberty and security of the aggrieved party.
Instead of denying or suspending the grant of the privilege of the writs of amparo and/or
habeas data pending the conduct of further investigation, the Supreme Court must grant
the privilege and include as a relief therein the conduct of investigation as a means for
determining whether any administrative, civil or criminal action may be pursued against
those who had the duty to investigate but refused or failed to do so.

Finally, the progression from Rubrico to Boac, and Boac to Rodriguez as regards the
applicability of command responsibility in impleading respondents in amparo and habeas
data proceedings is a triumph in jurisprudence, and should not be encumbered by the
doctrinal hiccup brought about by the case of Balao. It must be emphasized that there is
no contradiction between command responsibility and the concepts of responsibility and
accountability in the context of amparo and habeas data. Neither is there any legal
impediment to a liberal interpretation of command responsibility, extending the
application of this doctrine to actions for the writs of amparo and habeas data. Allowing
aggrieved parties to implead respondents on the basis of command responsibility even
affords the courts a complete determination of the case. After all, the petitioners still
have the burden to prove through substantial evidence their allegations concerning the
respondents' unlawful act or omission that violated or threatened to violate their right to
life, liberty and security.

In the final analysis, it must be remembered that the writs of amparo and habeas data
never claimed to be a panacea to the problem of extrajudicial killings and enforced
disappearances. But in order to fully maximize the potential of these judicial remedies,
the Supreme Court must always revisit the boldness and activist qualities that ushered in
their promulgation, impose standards in jurisprudence that faithfully reflect its strong
stand against impunity, and ensure the consistent adherence to these very standards. Only
when the Supreme Court ends its own confusion and indecision as to how to operationalize
the core roles of the writs can the victims of these human rights abuses begin to feel the
power of these extraordinary judicial remedies.