The following relates to select decisions promulgated by the High Court in December 2011 where at least one Justice felt compelled to express his or her dissent from the decision penned by the ponente.
1. Probation or Not? (Abad vs. Peralta and Villarama)
In the case of Arnel Colinares vs. People of the Philippines, Arnel Colinares was found guilty by the Regional Trial Court (RTC) of frustrated homicide and sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years and one day of prision mayor, as maximum. Since the maximum probationable imprisonment under the law was only up to six years, Arnel did not qualify for probation.
Colinares appealed to the Court of Appeals invoking self-defense and, alternatively, seeking conviction for the lesser crime of attempted homicide with the consequent reduction of the penalty imposed on him. However, the Court of Appeals affirmed the decision of the RTC.
Acting on his Petition for Review, the Supreme Court, through Justice Roberto A. Abad, found Colinares guilty of committing only the lesser crime of attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. As a result, the Supreme Court held that since the maximum imposable penalty was now less than six years, Colinares may apply for probation upon remand of the case to the trial court.
Justice Diosadado M. Peralta took exception to this ruling of the majority, emphasizing that probation is not a right but a privilege.
According to this dissenter, the Probation Law is clear that “no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction.” And since Colinares did exactly that—i.e., he appealed from a judgment of conviction and not merely appealed the imposition of wrong penalty—then he is not entitled to apply for probation.
Justice Martin S. Villarama, Jr. joined Justice Peralta in dissenting on the point relating to the granting to Colenares of a right to apply for probation. This dissenter cited the precedent of Francisco vs, Court of Appeals particular;y the pronouncement therein that “[p]robation is not a right of an accused, but rather an act of grace of clemency or immunity conferredconferred by the court to a seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands convicted.”
For Justice Villarama, the majority decision carves out an exception not found in and contrary to the purpose of the probation law. He adds that the the policy of liberality of probation statutes cannot prevail against the categorical provisions of the law.”
Justice Abad defends the majority ruling on this point by (i) clarifying that the High Court is not saying that Colinares has a right to be granted probation, only that in view of the reduced maximum sentence, he has a right to apply for probation, with the trial judge still having the discretion to decide whether or not to grant him the privilege of probation, taking into account the full circumstances of his case, and (ii) explaining that even if it may be the case that under the probation law the accused who appeals “from the judgment of conviction” is disqualified from availing himself of the benefits of probation, in this case, the RTC’s judgment has been annulled and this, to say that Colinares is not now entitled to apply for probation will be to apply the probation law based on the trial court’s erroneous, and thereafter annulled, judgment.
From a zoological perspective, Justice Abad concludes:
And, worse, Arnel will now also be made to pay for the trial court’s erroneous judgment with the forfeiture of his right to apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the whip). Where is justice there?
Specifically addressing the views expressed by the dissenters, the majority ruled that the case of Colinares differs from the Francisco case in that in the Francisco case, the accused was convicted and meted out a probationary penalty. But instead of applying for probation, the convicted party chose to appeal his conviction, thereby forfeiting the opportunity to apply for probation.
In this case, Colinares did not have a choice on whether to apply for probation or to appeal since the sentence handed down by the RTC (which was later annulled by the Court) did not grant to him a right to apply for probation.
In addition, on the dissenting view that allowing Arnel to apply for probation after he appealed from the trial court’s judgment of conviction would not be consistent with the provision of Section 2 that the Probation Law should be interpreted to “provide an opportunity for the reformation of a penitent offender” (because an accused like Arnel who appeals from a judgment convicting him shows no penitence), Justice Abad notes that there would be no issue on this point if the trial court meted out on Colinares a correct judgment of conviction. For “[h]ow can the Court expect him to feel penitent over a crime, which as the Court now finds, he did not commit?” queries the ponente.
(author’s note: To this author, there is wisdom and therefore merit to the distinction made by the majority. Applying for probation essentially means that a convicted person accepts his conviction but asks for a degree of clemency. But horses and carabaos aside, even based only on human gut feel, it seems that there is something just not right in depriving a person of a right to at least ask for probation if the original conviction that caused his non-entitlement was found to have been wrong.)
2. Writ of Amparo (Villarama vs. Sereno)
The main issues in the consolidated cases of Arthur Balao, et al. vs. Gloria Macapagal-Arroyo, et al. and President Gloria Macapagal-Arroyo, et al. vs. Arthur Balao, et al. have to do with the standards for the issuance of a writ of Amparo as well as Presidential immunity.
Sometime in September of 2008, James M. Balao, a Psychology and Economics graduate of the University of the Philippines-Baguio and among other things, a founder of the Cordillera Peoples Alliance (CPA), a coalition of non-government organizations working for the cause of indigenous peoples in the Cordillera Region, was abducted by unidentified men in la Trinidad, Benguet.
Inquiries and investigations followed the disappearance of James Balao but even so, on October 8, 2008, James’s siblings filed with the Regional Trial Court (RTC) of La Trinidad, Benguet a Petition for the Issuance of a Writ of Amparo in favor of James Balao with an Urgent Ex-Parte Motion for the immediate issuance of the writ of Amparo. Officials of the Military, the Defense Department, the Executive Secretary and the President of the Philippines were included as respondents.
The following day, October 9, 2008, the Writ of Amparo was issued directing respondents to file their verified return together with their supporting affidavit within five days from receipt of the writ.
In their return, the respondents contended that the petition failed to meet the requirement in the Rules on the Writ of Amparo that claims must be established by substantial evidence. They also moved to have President Gloria Macapagal-Arroyo dropped as a party on account of Presidential immunity.
In its decision, the RTC ordered the issuance of a Writ of Amparo ordering the respondents to (a) disclose where James Balao is detained or 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.
The RTC believed that “more likely than not,” the motive for James’s disappearance is his activist/political leanings and that James’s case is one of an enforced disappearance as defined under the Rules on the Writ of Amparo considering the several incidents of harassment mentioned in testimonies and in the petition; and the references in the petition to the CPA as a front for the CPP-NPA.
The RTC likewise ruled that the government violated James’s right to security of person as the investigation conducted by respondents was very limited, superficial and one-sided.
It also denied the prayer to drop the President as a party. However, certain interim reliefs sought by the petitioners (inspection, production and witness protection orders) were denied by the RTC due to the failure of the petitioners to comply with the stringent provisions on the Rule on the Writ of Amparo and substantiate the same.
Both parties appealed to this Court.
In disposing of the consolidated cases, Justice Martic S. Villarama, Jr., as ponente, zeroed in on Section 18 of the Amparo Rule which states:
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.)
Therefore, according the Justice Villarama, the threshold issue is whether the totality of evidence satisfied the degree of proof required by the Amparo Rule to establish an enforced disappearance.
The majority observed that the trial court gave considerable weight to briefing papers supposedly obtained from the AFP indicating that the anti-insurgency 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” and that this campaign resulted in the prevalence of extrajudicial killings. Based on such, the 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.
The majority decision held that such documented practice of targeting activists in the military’s counter-insurgency program by itself does not fulfill the evidentiary standard provided in the Amparo Rule to establish an enforced disappearance.
Justice Villarama wrote 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.”
Moreover, the Court held that the participation in any manner of military and police authorities, who had been impleaded on the basis of a command responsibility assertion, in the abduction of James has not been adequately proven.
On the matter of President Arroyo’s inclusion as party-respondent, the ponente stated that the RTC clearly erred in holding that presidential immunity cannot be properly invoked in an Amparo proceeding. As president, then President Arroyo enjoyed immunity from suit at the time the petition for a writ of Amparo was filed and moreover, the petition did not allege what specific presidential act or omission violated or threatened to violate petitioners’ protected rights.
The sole dissenter, Justice Maria Lourdes P. A. Sereno, took the view that “[w]hile the substantial evidence rule remains the standard in Amparo proceedings, flexibility should be observed. Courts must consider evidence adduced in its totality, including that which would otherwise be deemed inadmissible if consistent with the admissible evidence adduced.”
Justice Sereno took issue with the majority decisions thesis that the similarity between past abductions and the present case of enforced disappearance is not sufficient basis for the issuance of a writ of Amparo. Citing international jurisprudence, specifically the ruling of the Inter-American Court of Human Rights in Velasquez Rodriguez v. Honduras, the dissenting opinion noted that inn that case, the tribunal found that once a pattern or practice of enforced disappearances supported or tolerated by the government is established, a present case of disappearance may be linked to that practice and proven through circumstantial evidence or logical inference.
On the issue of Presidential immunity, the dissenter opined that “[t] he majority Decision states that former President Gloria Macapagal-Arroyo (former President Arroyo) should have been accorded presidential immunity, as she was the incumbent President when the present Petitions were filed. This position is not in accord with the ruling of this Court in Estrada v. Desierto, in which it was explicitly held that a non-sitting President does not enjoy immunity from suit even for acts committed during the latter’s tenure.”
Instead of dropping president Arroyo as a party on the basis of Presidential immunity, Justice Sereno argued that the dismissal should have been on a finding that petitioners failed to make allegations or adduce evidence to show her responsibility or accountability for violation of or threat to James Balao’s right to life, liberty and security.
(author’s note: this author, to be completely honest, is still at a loss in the first place as to the necessity for a special writ and a special set of rules therefore. Aren’t there sufficient laws and rules to enable a court to be able to direct specified courses of action to government agencies to safeguard the constitutional right to life, liberty and security of aggrieved individuals? In any case, this is one among those cases where a subjective evaluation on whether evidence is sufficient is involved. Since all but one Justice who participated in this case felt that there was not sufficient evidence, then this author supposes that that should be given the benefit of the doubt.)