writ of amparo in the philippines

THE WRIT OF AMPARO AND ITS IMPACTS TO THE CULTURE

OF IMPUNITY IN THE PHILIPPINES

A Research Paper

Submitted to

Atty. Suzanne Margarete T. Sencio-Tabunda

College of Law

Josefina H. Cerilles State College

Pagadian City

In partial fulfillment

Of the requirements in

Legal Research 1

Submitted by

Ms. Mary Jane Gamose-Gangoso

LLB 1 Student

October 25, 2014

Writ Of Habeas Corpus And Its Impact To The Culture Of Impunity In The Philippines

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TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................................... 3 THE WRIT OF AMPARO, ITS ORIGIN AND HISTORY ............................................................. 6 THE WRIT OF AMPARO AND THE GHOSTS OF THE WRIT OF HABEAS CORPUS 10 THE WRIT OF AMPARO AND ITS TAXONOMY ....................................................................... 15

SCOPE OF THE AMPARO .................................................................................................................... 16 LEGAL BASIS .............................................................................................................................................. 18

WRIT OF AMPARO RULES OF PROCEDURES .......................................................................... 20 WHO MAY FILE ......................................................................................................................................... 20 WHERE AND WHEN TO FILE ............................................................................................................ 22 COURT FILING FEE ............................................................................................................................... 24 CONTENTS OF THE PETITION ......................................................................................................... 24 CERTIFICATON AGAINST FORUM SHOPPING AS A REQUISITE ................................. 26 ACTION OF THE COURT ..................................................................................................................... 27 SERVICE TO RESPONDENT(S) AND RETURNS ....................................................................... 28 PROHIBITED PLEADINGS UNDER THE AMPARO RULE .................................................. 32 AMPARO HEARING ................................................................................................................................. 33 INTERIM RELIEF UNDER THE WRIT OF AMPARO ............................................................... 35 QUANTUM OF EVIDENCE .................................................................................................................. 38 COURT DECISION ................................................................................................................................... 38 EFFECTS OF PARALLEL CRIMINAL AND ADMINISTRATIVE CASE ............................ 40

THE AMPARO LANDMARK CASE IN PAGADIAN CITY ..................................................... 41 THE LANDMARK CASE OF AMPARO AT THE SUPREME COURT ................................ 43 CONCLUSION ............................................................................................................................................. 45

THE STATE OF IMPUNITY BEFORE AND AFTER THE ADOPTION OF THE WRIT

OF AMPARO ............................................................................................................................................... 45 BEYOND AMPARO ................................................................................................................................... 47


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INTRODUCTION

It is without doubt that a culture of impunity has plagued the Philippine

society even before the Supreme Court has promulgated the Writ of Amparo.

Impunity is ever consistent in the many cases of extra judicial killings, enforced

disappearances and other forms of human rights violations in the country. Adding to

the weight of impunity is the heinousness of the crimes where many of the

extrajudicial killings and enforced disappearances were executed openly in public

locations, in close proximity to police stations and within military camps. Most, if not

all, of these cases have not caught attention from the Philippine government to push

the latter to conduct an investigation and attain prosecution for these crimes. Human

rights lawyers and paralegal human rights groups reported minimal cooperation from

the government and had their members, even the lawyers themselves, subjected to

attacks further limiting the window for human rights victims to access the judicial

process.

To address media and activist killings, the Philippine government created an

Independent body on 2006 that among other tasks, shall conduct investigation of

high-profile cases of enforced disappearances of the time and shall formulate policy

recommendations directly to the President. This body is coined the Melo

Commission.1 In terms of numbers, the Special Task Force Usig of the Philippine

National Police listed down one hundred eleven (111) killings, which has since

1 Administrative Order 157 [21August 2006] 2 The United Nations created the position of Special Rapporteur on extrajudicial, summary or arbitrary executions


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increased to one hundred thirty six (136). Amnesty International, in its official

website, mentions 244 victims. The group Karapatan is said to have counted at least

724 killings. These numbers are counted during the term of President Arroyo alone.

Unfortunately, none of the so-called activist/militant groups, be they outright

communist or satellite groups, came forward if only to inform the Commission of the

numbers of their members who have become victims of extrajudicial killings. Be this

as it may, the number, whether at a low of 111 according to Task Force Usig, or a

high of 724 of Karapatan, is one too many, the Melo Commission reported.

The Melo Commission in its report confirmed the earlier claims of human

rights groups and the UN Rapporteur2 that “people, almost all of them activists or

militants, have been killed. There is no denying the reality that militant citizens have

been liquidated.” Despite the lack of support from the Philippine government, the

European Commission sent a six-member expert team to the Philippines on June 2007

and provided the impetus for government action in relation to extrajudicial killings

per conclusions of their technical assessment of the state of impunity in the nation.3

2 The United Nations created the position of Special Rapporteur on extrajudicial, summary or arbitrary executions

in 1982. The job of the Special Rapporteur is to respond to cases of extrajudicial killings around the world by

holding Governments to account both (a) where they or their agents are responsible or (b) where they have not

done everything within their power to prevent or respond to killings carried out by others. The Special Rapporteur

carries out this mandate through correspondence and fact-finding visits. These serve to clarify past violations,

alert Governments to their legal obligations, and provide guidance on the measures required to prevent future

violations, http://www.extrajudicialexecutions.org/about/mandate.html

3 http://www.delphl.cec.eu.int/docs/NAMPressRelease. pdf


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It is in this context of worsening culture of impunity that the Supreme Court invoked

its Constitutional mandate4 to formulate rules to ensure the “enforcement” and

“protection” of the constitutional rights of the people.

On July 16-17 of 2007, the Supreme Court then headed by Justice Reynato S.

Puno, called for a Consultative Summit on Extrajudicial Killings and Enforced

Disappearances. The summit solicited recommendations the most crucial of which is

the notion that there should be an active judicial intervention in cases of human rights

violations. As an offshoot of the summit, the rules of Writ of Amparo were

promulgated.

4 Art. VIII, Sec. 5 (5), Philippine Constitution


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THE WRIT OF AMPARO, ITS ORIGIN AND HISTORY

The writ of amparo (which means “protection”) is of Mexican origin. Its

present form is found in the Mexican Constitution.5

Recurso de Amparo is a legal remedy against acts violative of the

constitutional guarantees of individuals as reflected in the Mexican constitution. It

may be invoked in administrative, criminal and civil trials. It must be noted that the

recurso de amparo is of much broader application in its country of origin compared to

that which was adopted by the Philippine Supreme Court. Generally speaking, the

writ of amparo has broader application compared to the writ of habeas corpus since

the former can be applied to most controversies while the latter is confined to cases

relating to illegal detention, custody or confinement. But when adopted by the

Philippine Supreme Court, the writ of amparo was limited to cases of human rights

such as extrajudicial killings, enforced disappearance and threats to life, liberty and

security. The nucleus of the rule is the disposition of judicial review powers by court

as per provided in our Philippine constitution.

In the Philippines, amparo was virtually unheard of to the law students until

the then Ateneo law professor and now Supreme Court Associate Justice Adolfo

Azcuna incorporated it as a bewildering question in the 1991 bar examinations.

6Justice Azcuna first proposed the adoption of the writ of amparo in the 1971

5 Art 103, 107 , The Mexican Constitution 6 CREATIVE RULE-MAKING IN RESPONSE TO DEFICIENCIES OF EXISTING REMEDIES, Joan Lou P. Gamboa


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Constitutional Convention. His proposition, unfortunately, was not adopted. He got

another chance to raise it as a delegate in the 1986 Constitutional Commission.

Eventually, it was adopted not as the writ of amparo, but as a provision in Section 5,

Article VIII of the 1987 Constitution, which grants the Supreme Court the power to

promulgate rules concerning the protection and enforcement of constitutional rights.7

During the Summit on Extrajudicial Killings and Enforced Disappearances on

2007, Chief Justice Puno spoke that “In expanding the judicial rule-making authority

to enhance the protection and enforcement of constitutional rights, our Constitutional

Commissioners were endowed with prophetic eyes. For two decades later, we would

be bedeviled by extrajudicial killings and forced disappearances that would expose

the frailties of our freedom, the inadequacy of our laws if not the inutility of our

system of justice... [thus] the judiciary “has decided to unsheathe its unused power to

enact rules to protect the constitutional rights of [the Filipino] people.” Supreme

Court Associate Justice Adolfo Azcuna stressed on the doctrine of “equal political

liberties” first exhorted by John Rawls in his book Political Liberalism. The doctrine

stemmed from the recognition of the person as an individual blessed with natural

rights and clothed with civil and political rights, which all the nations of the world

have agreed upon to uphold, and which the 1987 Philippine Constitution has

recognized to attain a just and humane society.8

The summit came up with a number of recommendations, three of which are

very significant : “First, to redefine the doctrine of command responsibility along the

line applied to the late Gen. Tomoyuki Yamashita; second, to include the writ of

7http://www.positivenewsmedia.net/am2/publish/Cities_And_Towns_23/Amparo_writ_can_be_used_even_against_vigilantes.shtml

8 Ibid.


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amparo as part of the Rules of Court; and third, to revive the peace process with the

Communist Party of the Philippines and its military arm, the New People’s Army, and

political arm, the National Democratic Front.” Of the three, the incorporation of the

writ of amparo as part of the Rules of Court offers immediate relief because it can be

adopted by the Supreme Court pronto, without need of a new law and invoking only

its rule-making power as promulgated by the 1987 Constitution9.

The Rule on the Writ of Amparo10 was formally laid on the table on October

24, 2007. The new rule covers the right to life, liberty and security in cases of

extralegal killings, enforced disappearances or threats thereof.

Without a doubt, the writ of amparo as a law follows the usual pattern of

adoption by sovereign states the international laws adopted by the United Nations. As

a member of the UN, the Philippine government is greatly influenced by the timely

adoption of laws by the international community covering many areas to include

human rights. It is therefore logical to assume that one of the factors affecting the

move of the Philippine High Court to adopt the amparo rule is the country’s

commitment to abide by the UN laws and agreements. The Charter of the United

Nations requires the United Nations to promote human rights and their universal

respect, as well as to promote their observance according to the U.N. Charter Articles

1(3), 55(c), 56 and 62(2). For this purpose, the Economic and Social Council was

empowered by the Charter to set up a commission for the protection of human rights.

The Council established the Commission on Human Rights in 1946. A detailed

9 Summation, National Consultative Summit on Extrajudicial Killings and Enforced Disappearances, http://www.supremecourt.gov.ph/publications/summit/summation1.pdf (last accessed 23 December 2007).

10 A.M. No. 07-9-12-SC, adopted by the Philippine Supreme Court on October 16, 200


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discussion of the history and work of the U.N. Commission on Human Rights can be

read in THE U.N. COMMISSION ON HUMAN RIGHTS (1987) by H Tolley.

As a legal remedy, the writ of amparo in the Philippines is unique and

extraordinary and is given the same priority as habeas corpus. Essentially, it provides

the interim reliefs of Temporary Protection Order, Inspection Order, Production Order

and Witness Protection Order, any or all of which may be made permanent in the

judgment rendered after a summary hearing.


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THE WRIT OF AMPARO AND THE GHOSTS OF THE

WRIT OF HABEAS CORPUS

There is one important legal instrument in the Philippines that has historical

significance both to the birth of the amparo rule and to the cases of extrajudicial

killings and enforced disappearances (desaparecidos) - the writ of Habeas Corpus.

The writ of habeas corpus often known as the “great writ of liberty” means

command to have (show) the body in Latin. The writ of habeas corpus is a legal

remedy or writ, through which a person can seek relief from illegal detention or

custody. The writ applies to all cases concerning a person’s right of liberty and

rightful custody. The writ is used extensively to challenge a person’s detention

following an arrest.

In the calendar of court, a petition for habeas corpus shall take precedence and

require immediate action by the court at which the petition has been filed. The writ

has been given utmost important in our statutes that even in the Constitution11, the

President cannot suspend such privilege to every person of the land except only in

cases of invasion, insurrection and rebellion, as when the public safety so requires

subject to the approval by Congress and for a limited period of 60 days only unless

extended or reduced by Congress.

Despite its valued significance to the protection of a person’s liberty, the

efficacy of habeas corpus is under severe criticism and challenge. Its obvious 11 Section 18, Art VII, Philippine Constitution of 1987


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limitations has frustrated many a lawyer in asserting the defenses of a person’s

constitutional liberties. In cases where a detainee is labeled as a political dissident,

state agencies impose repression through illegal detention. A denial by the officer or

agency petitioned against by the writ pertaining to the custody of the victim warrants

dismissal of the petition. writ. There is an obvious tendency for the petitioner to suffer

the burden of evidence as most cases of illegal detention are perpetuated with secrecy

and beyond the public eye. Only when the court is satisfied by clear and convincing

evidence 12that a person is indeed denied of his liberty and that the respondent is

indeed denying the applicant of whose petition is filed in his behalf can habeas corpus

be granted.13 Considering that the objective of the writ is to determine whether the

detention is lawful or not, the writ cannot be enforced when the person or authority in

custody of the petitioner of whose petition is filed in one’s behalf14 can show proof

that such custody or detention is valid.

In a petition for habeas corpus, there are four determining factors for the court

to grant the petition: (1) the person in whose behalf the application is made is

imprisoned or restrained of his liberty; (2) the officer or name of the person by whom

he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or

person may be described by an assumed appellation; (3) the place where he is

imprisoned or restrained, if known; (4) the cause of his detention, if a copy of the

commitment order can be procured without impairing the efficacy of the remedy; or,

if the imprisonment or restraint is without any legal authority. These factors manifest

12 In the matter of the Petition for Habeas Corpus in behalf of Daniel Ngaya-an, et al. v. Conrado Balweg, et al., 200 SCRA 149 (1991); citing Gonzales v. Viola, 61 Phil. 824. 13 In the matter of the Petition for Habeas Corpus of Ferdinand E. Marcos etc. v. Executive Secretary Catalino Macaraig, 18 May 1989, G.R. No. 88079, En Banc, Minute Resolution.

14 Rules of Court, Rule 102, S3


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the scope of the writ as well as its obvious limitations.

The writ cannot apply to many other cases of deprivation of civil liberties to a

person most especially to those are vulnerable to human rights violations such as

political dissidents, activists and even human rights lawyers.

“Where the person is arrested by the police who claimed to have released him

but still continued to be missing, the petition for habeas corpus was held to be an

inappropriate remedy. For instance, in Dizon v. Eduardo, an application for the

issuance of a writ of habeas corpus filed by petitioners-parents, on behalf of their son

and daughter who were arrested by the Philippine Constabulary (PC) elements of

Pampanga without warrant of arrest or Presidential Order of Arrest. They were

detained by the respondents and were allegedly released nine days later. However,

they were never seen nor heard from since their supposed release. Alleging that their

signatures on their release papers were falsified and thus, they were never released by

the military, said release being a scheme of the respondents to prolong their detention,

torture, and interrogation, the petitioners- parents sought a writ of habeas corpus. The

petition did not prosper. With regret, the Supreme Court failed to grant the relief

sought, though counseled that the concerned elements of the police force may be

charged with falsification, perjury, and criminal contempt of court should there be a

false sworn return and violation of Article 125, Revised Penal Code, pertaining to

delay in delivery of detained persons to the proper judicial authorities, or if the

established circumstances warrant, it is possible also for the aggrieved party to initiate

the criminal proceeding for abduction or kidnapping against the guilty elements of the

police force in the proper office such as the Department of Justice, or the Provincial

or City Prosecutor’s Office, in addition to resorting to the PLEB or CHR. The High


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Court simply “does not have the means and the facilities to conduct an investigation

of the whereabouts and fate of the desaparecidos.”15

It is in this further context that the writ of amparo is more timely needed given

that the habeas corpus is giving a vast leeway for culprits to validate violation of

human rights.

“A vivid illustration is the notorious case of Ilagan v. Enrile.16 In this case,

when the arrested lawyers were ordered released by the Supreme Court by virtue of

habeas corpus, the military-respondents managed to circumvent the order by

subsequently filing rebellion charges against them. Unfortunately, the Supreme Court

agreed, citing Rule 102, Section 4, of the Rules of Court, which provides that if “the

person alleged to be restrained of his liberty is in the custody of an officer under

process issued by a court or a judge, or by virtue of a judgment or order of a court of

record, and the court or judge has jurisdiction to issue the process, render the

judgment, or make the order, the writ shall not be allowed...”

The confines of habeas corpus in protecting human rights can be more clearly

gleaned from two recent Court of Appeals’ cases on enforced disappearances of

Sherlyn Cadapan, Karen Empeno, and Manuel Merino, abducted in June 2006 in

Hagonoy, Bulacan, and the disappearance of Leopoldo Ancheta, also in June 2006, in

Guiguinto, Bulacan. Both were petitions for habeas corpus filed against Major

General Jovito S. Palparan Jr. and other military officials.17 In the first case, Cadapan

and Empeno were alleged members of the Kilusang Magbubukid ng Pilipinas and

15 CREATIVE RULE-MAKING IN RESPONSE TO DEFICIENCIES OF EXISTING REMEDIES, Joan Lou P. Gamboa

16 139 SCRA 349 (1985) 17 Ibid.


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Alyansa ng mga Magbubukid ng Bulacan, while Merino was only a good samaritan

who assisted the two. Cadapan et. al. were abducted by armed men.18 The writ of

habeas corpus was returned by respondent military officials denying participation in

the alleged abduction and custody of the said missing persons. Because of lack of

indubitable evidence that the three missing persons were in the custody of the

military, the Court of Appeals could do no further but dismiss the case, finding itself

helpless to aid the grief of the families. All the court could do is to order a further

investigation to be separately undertaken by the Philippine National Police, the

National Bureau of Investigation, and the Commission on Human Rights.”

As a matter of truthful declaration, the courts do not have the ultimate power

to address all types of grievances pertaining to the deprivation of civil liberties, much

more to the growing culture of impunity on the country. The habeas corpus has its

pronounced purposes and limitations. Finding itself helpless against the ghosts of

habeas corpus- the countless petitions of habeas corpus dismissed by mere lack of

merit and the granted ones still unable to provide remedy to the victims of

desaparecidos, the high court held itself accountable to its Constitutional mandate.

Guided by the painful lessons of the past especially of the dark era of the Marcos

regime, the Supreme Court promulgated the writ of amparo partly to fill in the gaps of

the habeas corpus.

It must be clarified that the writ of amparo is not a replacement to the writ of

habeas corpus for both has its parallel yet particular purposes. Habeas corpus is

meant to protect and enforce of a person’s right to freedom while the writ of amparo

is for the protection of the other fundamental rights of a person. 18 Ibid.


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THE WRIT OF AMPARO AND ITS TAXONOMY

The writ of amparo is a special writ that do not suspend nor precludes the filing of

civil, criminal of administration cases. It does not determine the guilt of the

respondent being not criminal in nature yet if the evidences so warrant the filing of

criminal charges, the court where the petition is filed may refer the case to the

Department of Justice for proper disposal of criminal proceedings. The word amparo

comes from the Spanish word “amparar” which literally means “to protect.” The writ

traces its origins to Mexico and later on spread throughout the regions of the Western

Hemisphere where it has gradually evolved into various forms, depending on the

experiences of each country in the area. Starting as a protective writ against acts or

omissions of public authorities in violation of constitutional rights, it later on

blossomed as a remedial tool having several purposes:

1. (1) For the protection of personal freedom, equivalent to the habeas corpus writ

(called amparo libertad);

2. (2) For the judicial review of the constitutionality of statutes (called amparo contra

leyes);

3. (3) For the judicial review of the Constitutionality and legality of a judicial

decision (called amparo casacion);

4. (4) For the judicial review of administrative actions (called amparo

administrativo); and

5. (5) For the protection of peasants’ rights derived from the agrarian reform process


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(called amparo agrario). 19

SCOPE OF THE AMPARO

The writ of amparo is similar to the writ of habeas corpus as a legal remedy

for the enforcement and protection of human rights but it has an obvious wider

20scope. Under Section 1 of the Rule on the Writ of Amparo, the nature of the writ is

defined as a “remedy available to any person whose right to life, liberty, or security is

violated or threatened by an unlawful act or omission by a public official or employee

or by a private individual or entity.” Under the 1987 Constitution the writ is not

specifically defined but Section 1 enumerates the constitutional rights protected by the

writ, and limits its scope only to right to life, liberty, and security of persons. In many

sovereign jurisdictions, the amparo has broader and wider coverage ranging from

criminal to administrative and even civil cases. In the case of the Philippine version,

the writ is confined only to the protection of a person’s right to life, liberty, and

security. This is because other constitutional rights and civil liberties have other

remedies in place to enforce them. 21

According to Atty. Neri Colmenares of the Union of People’s Lawyers, the

limited number of rights covered by the writ of amparo, in dire contrast to the other 19 WATCHING THE WATCHERS: A LOOK INTO THE DRAFTING OF THE WRIT OF AMPARO, Felipe Enrique M. Gozon, Jr.& Theoben Jerdan C. Orosa

20 Supra, Note 35. 21 Supra, Note 52.


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versions in many other jurisdictions which cover constitutional rights per se, may

result in various different interpretation.22

The Philippine version of the amparo deviated itself from the Mexican

original version which covers the relief for violation of rights to human dignity

presumably because of the breadth of the notion of “dignity”.

Property rights is also beyond the scope of the Philippine amparo contrary to

Mexican version which explicitly covers rights and therefore allows the writ for use in

issues involving land and agrarian disputes. This particular limitation of our version

of Amparo miserably failed to address the area of land reform which could have been

one of the most striking issue of human rights in the country.23

One strong point of the Philippine version of the Amparo is that is somehow

broader in terms of the nature of protection given that is does not only cover actual

violations but also against threats of violation of rights. In addition to, it does not only

cover omissions or acts by public officials and employees but by private entities and

individuals as well.

In cases of actual violations, the Philippine version of amparo can be invoked

when the fate or whereabouts of the person subject of the petition is unknown, and the

habeas corpus applies when the detention is known. For cases of threats of

deprivation of liberty where no arrest or disappearance has been made yet, the amparo

is applicable instead of the habeas corpus.

22 http://www.bulatlat.com/2007/10/initial-analysis-philippine-amparo

23 Ibid.


18

The inclusion of “threats” instead of limiting itself to actual deprivation of

liberty makes the amparo a very strong writ as it can be invoked by activists and

individuals critical to the military against the latter’s practices of inviting the former

to their camps and subjecting them to interrogation and psychological torture.

Amparo can be a remedy if a right to life is violated or threatened and a party

may use it to further avail information and evidences prior to the filing of criminal

complaints.

LEGAL BASIS

Known Constitutionalist Fr. Joaquin G. Bernas wrote of the significant

influence of the Mexican amparo as the primary legal inspiration of the Philippine

version24. Amparo is explicitly coined in Articles 103 and 107 of the Mexican

constitution- the judicial review of government action, to empower state courts to

protect individuals against state abuses.

Under the Argentinian Constitution, any person may file a prompt and

summary proceeding regarding constitutional guarantees, provided there is no other

legal remedy, against any act or omission of the public authorities or individuals

which currently or imminently may damage, limit, modify or threaten rights and 24 Father Joaquin G. Bernas, The Mexican Amparo, Philippine Daily Inquirer http://opinion.inquirer.net/inquireropinion/columns/view_article.php?article_Id.=86232


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guarantees recognized by the Constitution, treaties or laws, with open arbitrariness or

illegality. In such case, the judge may declare that the act or omission is based on an

unconstitutional rule.25

In the Philippines, amparo was made available by the Supreme Court, without

need of a new legislation and invoking only its rule-making power under the Article

VIII, Section 5, Paragraph 5 of the 1987 Constitution, which provides that the

Supreme Court shall have the power to “[p]romulgate rules concerning the protection

and enforcement of constitutional rights [which] shall not diminish, increase, or

modify substantive rights.” It is, however, qualified that “the Rule on the Writ of

Amparo shall not diminish, increase or modify substantive rights recognized and

protected by the Constitution” because amparo is but a procedural rule.

25 Article 43, 1994 Constitution of Argentina


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WRIT OF AMPARO RULES OF PROCEDURES

WHO MAY FILE

A petition for the writ of amparo may be filed:

1. By the AGGRIEVED PARTY, or

2. By any QUALIFIED person or entity IN THE FOLLOWING ORDER AND

WHICH ORDER MUST BE OBSERVED:

a) Any member of the immediate family of the aggrieved party, namely:

1. the spouse,

2. children; and

3. parents. There seem to be no order of preference among the

immediate family of the aggrieved party and the petition can

therefore be filed by any of them and in any order;

b) Any ascendant, descendant or collateral relative of the aggrieved party

within the 4th civil degree of consanguinity or affinity, in default of the

members of the immediate family of the aggrieved party as mentioned

above;

c). If there is no known member of the immediate family or relative of the

aggrieved party, then ANY of the following:


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i. concerned citizen

ii. concerned organization or association

iii. concerned institution

If the AGGRIEVED PARTY files the petition, the said filing suspends the

right of all other authorized parties to file a similar petition. The filing of a petition by

an authorized party on behalf of the aggrieved party suspends the right of all others. 26

The order of hierarchy above provides as the last recourse any concerned citizen,

organization, association or institution, if there is no known member of the immediate

family or relative of the aggrieved party.27

It is uncommon for the High Court to provide specific hierarchy of the parties

who can petition the writ; though it could be observed that this particular provision in

Section 2 of the Amparo rules can somehow streamline facilitating recourse to the

remedy. This type of hierarchy is also evident in the implementing rules of the law on

violence against women and children. Through this order of rules, the courts can free

themselves from possible indiscriminate and groundless petitions which may put in

jeopardy a person’s right to life, liberty and security. Such provisions will encourage

family members from pursuing negotiations with the respondents and at the same

time prevent non-family members from intervening the negotiation and possibly

putting the victims life in danger. On the other hand, it will also give family members

the external support to pursue the writ should the respondents be state security forces

who may use intimidation and threat to the victim’s immediate family by giving third

party individuals and institutions the right to file the writ if the family members so

refuse or cannot. As the right to life, liberty and security of a person is at stake, this 26 Section 2, Amparo Rule 27 Supra, Note 68,S2


22

section shall not preclude the filing by those mentioned in paragraph (c) when

authorized by those mentioned in paragraphs (a) or (b) when circumstances require.28

There have been cases where family members are obviously afraid to come

out and file the petition due to threat and harassment. But the Philippine Amparo in

Section 2 is inspired by the Chilean notion that grants not only the injured party but

even human rights organizations the position to file the petition of writ.

Foreigners have standing to file a writ of amparo. This is correct since civil liberties

pertain to all persons—including foreigners as provided in Sec. 1, Art. III of the

Constitution which states that “no person” shall be deprived of life, liberty and

property without due process of law. This was the decision of the Supreme Court

when it issued the writ for British nationals Stephen and Mylene Kitts against local

public officials on December 7, 2008. 29

WHERE AND WHEN TO FILE

A petition for writ of amparo can be filed on “any day” and “any time” with:

1. The REGIONAL TRIAL COURT (RTC) of the place where the threat,

act or omission committed or any of its elements occurred;

2. The SANDIGANBAYAN;

28 Supra, Note 65 29 THE WRIT OF AMPARO AS MECHANISM TO CURB IMPUNITY: The Case of the Philippines , Atty. Neri Javier Colmenares ; Commission VI on Accountability for International Crimes: Fighting Impunity (IADL Congress, Hanoi, June 6-10, 2009)


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3. The COURT OF APPEALS;

4. The SUPREME COURT;

5. or with ANY OF THE JUSTICES of the Sandiganbayan, Court of

Appeal or Supreme Court;(Sec. 3, Amparo Rule)

“An outstanding feature of this Philippine version of the writ of amparo is the

availability of reliefs at any time before final judgment. Under the Rule, the petition

may be filed on any day and at any time with the Regional Trial Court of the place

where the threat, act or omission was committed or any of its elements occurred, or

with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of

such courts.105 The rule does not impose a strict hierarchy of courts and in fact

allows a petition to be filed before any member of these collegial bodies. In other

words, the aforementioned courts exercise concurrent jurisdiction over petitions for

the issuance of the writ of amparo.

The section on jurisdiction and venue is basically similar to the Rule on

petitions for the writ of habeas corpus. A slight deviation, however, occurs with the

inclusion of the Sandiganbayan, for the reason that public officials and employees

will be respondents in amparo petitions.

It will be noted that in filing the amparo petition with the Regional Trial

Court, the venue shall be in the place where the act or omission was committed or

where any of its elements occurred. The evident intent of the rule is to prevent the

filing of the petition in some far-flung area to harass the respondent. Moreover, the

rule attempts to preempt any prejudice to the effective dispensation of justice, as in

most cases, the witnesses and the evidence are located within the jurisdiction of the

Regional Trial Court where the act or omission was committed.” 30

The Philippine Amparo in uniquely liberal and almost similar to its

Nicaraguan counterpart that even allows the filing of the petition in “verbal or written

form” and can be filed “at any time and at any day and at all hours”.



24

COURT FILING FEE

Another liberal feature of the Philippine amparo is the amount of filing fee for

it requires no amount (free). The petitioner shall be exempted from the payment of the

docket and other lawful fees when filing the petition. The court, justice or judge shall

docket the petition and act upon it immediately.31 Indeed, it effectively makes the

remedy accessible to the victims insofar as it relieves them of the financial burden to

prosecute their case for the enforcement of our sacrosanct rights should not be

frustrated by lack of finances. The only possible danger in this provision is that this

may open up the system to abuse by litigious private individuals against another

private individual or entity for harassment purposes.32

CONTENTS OF THE PETITION

The petition shall contain the personal information of the petitioner, the details

about the respondent, the act or omission complained of, the investigations conducted

if there were any, and the relief requested. Specifically, the petition must be:

31 Section 4, The Rule on the Writ of Amparo 32 CREATIVE RULE-MAKING IN RESPONSE TO DEFICIENCIES OF EXISTING REMEDIES, Joan Lou P. Gamboa


25

a) signed, and

b) verified by the petitioner

Verification – A pleading is verified by an affidavit that the affiant has read the

pleading and that the allegations therein are true and correct of his personal

knowledge or based on authentic records. 33

It shall allege the following:

a) The personal circumstances of the petitioner;

b) The name and personal circumstances of the person or entity (called the

respondent) responsible for the threat, act or omission;

If the name of the respondent is unknown or uncertain, the respondent may be

described by an assumed appellation;

Ex. John Doe, Jane Doe, etc.

c) The right to life, liberty and security of the aggrieved party violated or

threatened with violation by an unlawful act or omission of the respondent,

and how such threat or violation is committed with the attendant

circumstances detailed in SUPPORTING AFFIDAVITS;

d) The investigation conducted, if any, specifying the names, personal

circumstances, and addresses of the investigating authority or individuals, as

well as the manner and conduct of the investigation, together with any report;

e) The actions and recourses taken by the petitioner to determine the fate or

whereabouts of the aggrieved party and the identity of the person responsible

for the threat, act or omission; and

33 (Rule 7, Sec. 4, Rules of Court)


26

f) The relief prayed for.

The petition may include a general prayer for other just and equitable remedies.34

CERTIFICATON AGAINST FORUM SHOPPING AS A REQUISITE

The rule does not expressly require a Certification against Forum Shopping. A

petition for amparo cannot be dismissed for lack of such a certification. In fact, a

Motion To Dismiss (on any ground) is a prohibited pleading under this rule.

To avoid technicalities, it should do no harm however to include a

Certification against Forum Shopping as found in Rule 7, Sec. 5 of the Rules of

Court:

“ The plaintiff or principal party shall certify under oath in the complaint or other

initiatory pleading asserting a claim for relief, or in a sworn certification annexed

thereto and simultaneously filed therewith:

(a) that he has not theretofore commenced any action or filed any claim involving the

same issues in any court, tribunal or quasi- judicial agency and, to the best of his

knowledge, no such other action or claim is pending therein;

(b) if there is such other pending action or claim, a complete statement of the present

34 Section 5, Amparo Rules


27

status thereof; and

(c) if he should thereafter learn that the same or similar action or claim has been filed

or is pending, he shall report that fact within five (5) days therefrom to the court

wherein his aforesaid complaint or initiatory pleading has been filed. “

ACTION OF THE COURT

Since the writ follows the summary nature of the proceedings, the writ is

issued as a matter of course when on the face of the petition it ought to issue. Upon

the filing of the petition, the court, justice or judge shall immediately order the

issuance of the writ if on its face it ought to be issued.35 To expedite its resolution, the

writ shall also set the date and time for summary hearing of the petition which shall

not be later than seven days from the date of its issuance.36 The amparo proceedings

enjoy priority and cannot be unreasonably delayed. A clerk of court who refuses to

issue the writ after its allowance, or a deputized person who refuses to serve the same,

shall be punished by the court, justice, or judge for contempt without prejudice to

other disciplinary actions.37The foregoing is a modified version of a similar provision

in Rule 102, governing petitions for a writ of habeas corpus.

Upon the filing of the petition, the court, justice or judge shall immediately

35 Supra, Note 68, S6 36 Ibid. 37 Supra, Note 68, S7


28

order the issuance of the writ if on its face it ought to issue.

1. The clerk of court shall issue the writ under the seal of the court, or

2. in case of urgent necessity, the justice or the judge may issue the writ under his or

her own hand, and may deputize any officer or person to serve it per Sec. 6 of

the Amparo Rule.

The writ issued shall set the date and time for summary hearing of the petition

which shall not be later than seven (7) days from the date of issuance.

SERVICE TO RESPONDENT(S) AND RETURNS

The writ shall be served personally upon the respondent/s by a judicial officer

or the person deputized. The serving officer shall retain a copy on which to make a

return of service.

In case the writ cannot be served personally on the respondent, the rules on

substituted service shall apply per provisons of the Section 8 of the Amparo rules.

The rule on substituted service applies to the petition for writ of amparo. If,

for justifiable causes, the respondent cannot be personally served within a reasonable

time, service may be effected:


29

3. (a) by leaving copies at the respondent/s residence with some person of suitable

age and discretion then residing therein, or

4. (b) by leaving copies at respondent/s office or regular place of business with some

competent person in charge thereof. 38

The writ imposes a heftier responsibility on the part of the respondents. A

general denial from the respondent is not allowed. The respondent shall be required to

give a full explanation and account in the return which shall be submitted to the court.

This is to ensure that the respondent shall make a detailed return which will not only

seek the persons liable but also help in the determination of their compliance with the

standard of conduct required of them.

The writ will require respondent to file his return, which is the comment or

answer to the petition. The return must be detailed to help determine whether the

respondent fulfilled the standard of conduct required by the Rule. Particularly, within

five working days after service of the writ, the respondent is required to file a verified

written return together with supporting affidavits which shall, among other things

contain the following:

(a) The lawful defenses to show that the respondent did not violate or threaten with

violation the right to life, liberty and security of the aggrieved party, through any

act or omission;

(b) The steps or actions taken by the respondent to determine the fate or

whereabouts of the aggrieved party and the person or persons responsible for the

38 Rule 14, Sec. 7, Rules of Court


30

threat, act or omission;

(c) All relevant information in the possession of the respondent pertaining to the

threat, act or omission against the aggrieved party; and

(d) If the respondent is a public official or employee, the return shall further state

the actions that have been or will still be taken:

(i) to verify the identity of the aggrieved party;

(ii) to recover and preserve evidence related to the death or disappearance of

the person identified in the petition which may aid in the prosecution of the

person or persons responsible;

(iii) to identify witnesses and obtain statements from them concerning the

death or disappearance;

(iv) to 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;

(v) to identify and apprehend the person or persons involved in the death or

disappearance; and

(vi) to bring the suspected offenders before a competent court.39

A general denial of the allegations in the petition shall not be allowed under

the writ of amparo in contrast to the ineffectiveness of the writ of habeas corpus

39 Supra 68, S9


31

where cases are dismissed due to lack of proof of respondent’s custody of the person

the petition is filed in behalf. Likewise, the period to file a return cannot be extended

except on highly meritorious ground.40

Under Section 3 of the Amparo Rules, when issued by the RTC or any judge

thereof, the writ shall be returnable before such court or judge but when issued by the

Sandiganbayan or the Court of Appeals or any of their justices, the writ shall be

returnable:

1. before such court;

2. or any justice thereof, or

3. to any RTC of the place where the threat, act or omission was committed or

any of its elements occurred;

When issued by the Supreme Court or any of its justices, the writ shall be

returnable:

1. before the Supreme Court,

2. Any justice of the Supreme Court, or

3. With the Sandiganbayan, or

4. The Court of Appeals, or

5. to any RTC of the place where the threat, act or omission was

committed or any of its elements occurred;

40 Supra, 112


32

In case the respondent failed to comply with the return, the amparo court,

justice or judge shall proceed to hear the petition ex parte as provided in Section 12 of

the Amparo Rule.

Under Section 16 of the Amparo rule, the respondent/s who refuses to make a

return, or who makes a false return, shall be punished for contempt. The person held

in contempt may be imprisoned or imposed a fine.

PROHIBITED PLEADINGS UNDER THE AMPARO RULE

As provided in the Amparo rules, the following pleading and motions are

prohibited and cannot be filed:

(a) Motion to dismiss

(b) Motion for extension of time to file return, opposition, affidavit, position

paper and other pleadings;

(c) Dilatory motion to postponement;

(d) Motion for bill of particulars;

(e) Counterclaim or cross-claim;

(f) Third party complaint;

(g) Reply;


33

(h) Motion to declare the respondent in default;

(i) Intervention;

(j) Memorandum;

(k) Motion for reconsideration of interlocutory orders or interim reliefs; and

(l) Petition for certiorari, mandamus or prohibition against any interlocutory

order.

AMPARO HEARING

The hearing shall be summary in nature. This means a speedy response from

the court; and this is why delaying tactics shall not be allowed. Hence, the Rule has a

provision on prohibited pleadings and motions so as not to delay the proceedings. The

hearing shall be from day to day and shall be given priority. The court shall render

judgment within ten (10) days from the time the petition is submitted for decision.

Under the 1991 Revised Rule on Summary Procedure, which is what is most

probably envisioned by the rule on amparo, or at least something similar or analogous

thereto, the following is what usually transpires:

a) A preliminary conference is held. (Under the rule on amparo, the court,

justice or judge may also call a PRELIMINARY CONFERENCE in order to

simplify the issues and determine the possibility of obtaining stipulations and

admissions from the parties.)


34

b) Thereafter the parties are ordered to submit the affidavits of witnesses and

other evidence on the factual issues defined therein, together with a brief

statement of their positions setting forth the law and the facts relied upon by

them. (The amparo rule already requires that supporting affidavits be

attached to the petition. This may be without prejudice to the filing of

additional affidavits at the discretion of the amparo court.)

c) Should the court find, upon a consideration of the pleadings, the affidavits and

other evidence, and position statements submitted by the parties, that a

judgment may be rendered thereon without need of a formal hearing, it may

proceed to render judgment not later than fifteen (15) days from the

submission of the position statements of the parties. (Under the amparo rule

however, the amparo court is mandated to decide the case within TEN (10)

days from the time the case is submitted for decision.) In cases where the

judge deems it necessary to hold a hearing to clarify specific factual matters

before rendering judgment, he shall set the case for hearing for the purpose. At

such hearing, witnesses whose affidavits were previously submitted may be

asked clarificatory questions by the proponent and by the court and may be

cross-examined by the adverse party.

The order setting the case for hearing shall specify the witnesses who will be

called to testify, and the matters on which their examination will deal.


35

INTERIM RELIEF UNDER THE WRIT OF AMPARO

The Rule empowers the court to issue protective and instantaneous reliefs to

the petitioner and his possible witnesses in the form of a temporary protection order

(TPO), or a witness protection order (WPO), while the petition is being heard. The

grant of a temporary protection to the petitioner and any member of the immediate

family, as well as witnesses, is essential because their lives and safety may be at a

higher risk once they file the amparo petition. They may be ordered to be under the

safekeeping of government agencies, or persons and institutions accredited by the

Supreme Court.

An inspection order for a particular place may also be issued upon motion and

after being duly heard. The inspection order has a lifetime of five (5) days. The

motion is required to describe the places to be inspected in particular detail. A

production order for personal objects or documents, in tangible or electronic form, to

enforce a party’s right to seek evidence, may be granted by the court after due

hearing.

As provided under Section 14 of the Rules, upon filing of the petition or at

anytime before final judgment, the court, justice or judge may grant any of the interim

reliefs:

a) temporary protection order (TPO);

b) inspection order (IO);

c) production order (PO); and

d) witness protection order (WPO).


36

Under the temporary protection order, the court, justice or judge, upon motion

or motu proprio, may order that the petitioner or the aggrieved party and any member

of the immediate family be protected in a government agency or by an accredited

person or private institution capable of keeping and securing their safety.

The filing of the petition for the writ of amparo is not mutually exclusive with

the filing of other reliefs (i.e. habeas corpus), as well as the filing of separate

criminal, civil or administrative actions.

The amparo rule also allows respondents to seek interim relief. Upon verified

motion and after due hearing, the respondent can be granted:

a) An Inspection Order (IO), and

b) A Production Order (PO)

Under Section 16 of the amparo rule, motion for Inspection Order requested

by the respondent/s shall be supported by affidavits or testimonies of witnesses

having personal knowledge of the defenses of the respondent/s.

Respondent/s, however, are not entitled to the issuance of Temporary

Protection and Witness Protection Orders in their favor.

On the issue of custody, the basis of custody must be legal, not upon the whim

of anyone, whether the military or the victim himself. If there is no arrest warrant or

commitment order, the court cannot order that a victim remains in the custody of

government agencies particularly if no charges were filed against them as in the case

of Panganiban and Ortiz. The Constitution and the rules on the writ of amparo does


37

not allow this. Surely, government budget does not include expenses for the lodging

and food of people who ‘want’ to be in military custody.

Secondly, the court should give recognition to the public perception and even

actual complaints [as contained in reports by the Commission on Human Rights itself,

human rights groups, and even the UN Special Rapporteur] that the military and the

police are involved in human rights violations, abduction and enforced disappearance

including torture. This immediately puts a legal responsibility on the court’s to

frown on claims by subjects that they ‘want’ to be in military custody as a testimony

likely given under duress. This is further emphasized when the subjects initially

claim that they were tortured, even if they recant such allegation during the hearing.

A court decision dismissing an amparo petition because a subject ‘wants’ to be under

the military’s custody, rather than with his family, is based on an unrealistic

assessment of the facts and is, also, totally without legal basis. Some lawyers even

contend that at the very least, the court should release the subject to the custody of his

family, with a provision that the subject may return to the military should he really

want to be under its custody, but only after amparo is granted the family granted

custody similar to the decision in the Bustamante petition. 41

41 THE WRIT OF AMPARO AS MECHANISM TO CURB IMPUNITY: The Case of the Philippines , Atty. Neri Javier Colmenares ; Commission VI on Accountability for International Crimes: Fighting Impunity (IADL Congress, Hanoi, June 6-10, 2009)


38

QUANTUM OF EVIDENCE

Both parties of the petition shall establish their claims by substantial evidence.

42 However, the rule imposes a higher standard of diligence on public officers or

employees than on private individuals or entities. If the respondent is a private

individual or entity, he must prove that ordinary diligence, as required by applicable

laws, rules and regulations, was observed in the performance of duty. 43On the other

hand, if the respondent is a public official or employee, he must prove that

extraordinary diligence as required by applicable laws, rules and regulations, was

observed in the performance of duty. 44The respondent public official or employee

cannot invoke the presumption that official duty has been regularly performed to

evade responsibility or liability.45

COURT DECISION

For amparo petitions, judgment must be rendered within ten (10) days from

the time the petition is submitted for decision per Section 18 of the Amparo rule.

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 under the same provision of the rule.

42 Supra, Note 68, S17 43 Ibid. 44 Ibid. 45 Ibid.


39

A petition denied is not a petition dismissed. As a matter of fact, the court

shall not dismiss the petition, but shall only archive it, if upon its determination it

cannot proceed for a valid cause such as the failure of petitioner or witnesses to

appear due to threats on their lives as specified under Section 20 of the amparo rule.

A periodic review of archived cases shall be made by the amparo court and

shall by motu propio, or upon motion by any party order its revival when ready for

further proceedings.

The clerks of court shall submit to the Office of the Court Administrator of the

Supreme Court a consolidated list of archived cases under this Rule not later than the

first week of January every year under Section 20 of the rule.

The petition shall be dismissed without prejudice upon failure to prosecute the

case after the lapse of two (2) years from notice to the petitioner of the order

archiving the case.

Appeals are allowed for the amparo petition and any party may appeal from

the final judgment or order to the Supreme Court as Rule 45 of the Rules of Court

provides for a petition for review on certiorari:

“A party desiring to appeal by certiorari from a judgment of final order or

resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial

Court or other courts whenever authorized by law, may file with the Supreme

Court a verified petition for review on certiorari.”

Unlike a petition under Rule 45 wherein only questions of law can be raised, a

Petition for Review on Certiorari under the rule on amparo may raise questions of

fact, questions of law or both questions of fact and law as provided in Section 19 of


40

the Amparo rule.

An order to archive a petition is not subject of an appeal by the petitioner. The

order to archive is an interlocutory order not subject of an appeal. The petitioner can

however file a motion to revive the petition if he/she disagrees with the archival or

feels ready to proceed with the petition. The period of appeal shall be five (5) working

days from the date of notice of the adverse judgment.

EFFECTS OF PARALLEL CRIMINAL AND ADMINISTRATIVE CASE

The amparo rule does not preclude the filing of separate criminal, civil and

administrative actions. If a criminal action is filed prior to the filing of a petition for

writ of amparo no separate petition for the writ of amparo shall be filed. The reliefs

under the writ shall be available by motion in the criminal case. The procedure under

the rule shall govern the disposition of other reliefs available under the writ of

amparo. If the criminal action is filed after a petition for the writ of amparo has

already been filed, the petition for writ of amparo shall be consolidated with the

criminal action.46 If a criminal action and a separate civil action are filed after a

petition for writ of amparo has already been filed, the petition shall be consolidated

with the criminal action. After consolidation, the procedure under the Amparo Rule

shall continue to apply in the disposition of the reliefs of the petition.

46 Section 23, Amparo Rule


41

THE AMPARO LANDMARK CASE IN PAGADIAN CITY

Unknown to many, the very first success case of the writ of amparo was the

release of Rowil Muñasque, a Bayan Muna leader following the order of Judge

Reinerio Ramas of Pagadian, Zamboanga del Sur. He was abducted by the soldiers

belonging to the 53rd Infantry Battalion stationed in the same province. The military

did not deny having custody of Muñasque, but claimed that the latter had waived his

right to question his detention. In due course, the army had no choice but to produce

him in court. After the first day of hearing on the petition, he was immediately

reunited with his family after missing for two weeks. Chief Justice Puno of the

Philippine Supreme Court lauded the counsel team for Munasque led by Atty.

Emiliano Deliverio.47

On the day of Muñasque’s release, the relatives of 22-year old Luisito

Bustamante similarly filed a petition for writ of amparo before the Davao City

Regional Trial Court. A week after the filing of the petition, the writ achieved another

triumph. In ordering his release, Executive Judge Isaac Robillo, Jr. upheld

Bustamante’s liberty and his basic rights as a civilian.

Responding to the order of the Supreme Court En Banc to hear a petition for

amparo, the Court of Appeals issued another writ to protect labor leader, Leny

Robiños, an organizer of the Aguman Da Reng Maglalautang Capampangan and the

provincial chapter of the Kilusang Magbubukid ng Pilipinas. Leny Robiños was the

alleged target of an attempted abduction by the military. But failing to find her during

47 Chief Justice Puno Lauds Writ of Amparo’s Victory, http://www.supremecourt.gov.ph/news/ courtnews /2007/11/


42

a raid on their house, the military took Romulos, her brothers, as ransom for her

surrender. The Court of Appeals ordered the inspection of certain military

detachments and safe houses used as detention areas, in its search for the missing

brothers.


43

THE LANDMARK CASE OF AMPARO AT THE SUPREME COURT

The first decision of the Philippine Supreme Court involving this new remedy

is Secretary of National Defense, et al. v. Raymund Manalo and Reynaldo Manalo,

penned by Chief Justice Reynato S. Puno.48

The case was an appeal from the decision of the Court of Appeals which

granted respondent brothers the privilege of the writ of amparo and ordered

petitioners Secretary of National Defense and Armed Forces of the Philippines Chief

of Staff to furnish respondents all official and unofficial reports of the investigation

undertaken in connection with their case; to confirm in writing the present places of

official assignment of two military personnel found involved in the matter

investigated, and to produce to the Court all medical reports, records, charts and

reports of any treatment given or recommended and medicines prescribed to said

respondents and the list of the attending medical personnel.

Respondents Manalo brothers were abducted from their houses by armed men

on February 14, 2006 and held in detention until they escaped on August 13, 2007.

The Court sustained the findings on the adduction, detention, torture and escape of the

respondents.

In disposing of the appeal, the Supreme Court examined the right to life,

liberty and security as recognized in Article III, Section 2 of the Philippine

Constitution as well as the Universal Declaration of Human Rights, the U.N.

48 G.R. No. 180906, October 7, 2008


44

Declaration on the Protection of All Persons from Enforced Disappearance, and The

International Covenant on Civil and Political Rights. It held that the right to security

of person is a guarantee of bodily and psychological integrity and security and that the

right of security of person exists independently of the right to liberty. The Supreme

Court also cited the European Court of Human Rights on its interpretation of the

“right to security” as not only prohibiting the State from arbitrarily depriving liberty,

but imposing a positive duty on the State to afford protection of the right to liberty.49

Applying these concepts, the Court then ruled that there was violation of the

right to security as freedom from threat to respondents’ life, liberty and security and

also a violation of the right to security as protection by the government. It then

proceeded to rule that the reliefs granted were appropriate and relevant and thereby

dismissed the petition.

The Manalo ruling is truly a landmark in Philippine jurisprudence and the fact

that it was a unanimous decision of the entire 15-member Court augurs well for the

future of the new remedy of Amparo in the Philippines.50

49 Kurt v. Turkey (1991), 27 E.H. R.R. 373 50 THE PHILIPPINE WRIT OF AMPARO: A NEW REMEDY FOR HUMAN RIGHTS, Adolfo S. Azcuna


45

CONCLUSION

THE STATE OF IMPUNITY BEFORE AND AFTER THE ADOPTION OF THE WRIT OF AMPARO Excluding the long list of unresolved cases of enforced disappearances and

extrajudicial killing where most of the alleged culprits are elements of the Philippine

military and police forces, more than 700 cases of modern-day deaths are blamed on

the lack of legal measures to protect activists and even ordinary citizens from

extralegal threats and deaths recorded as of 2007 alone. The list is even higher a

decade before the discussion of the amparo in the Supreme Court.

From the words of Chief Justice Puno during the amparo committee

proceedings,

“Until the Second World War, the roots of human rights grew country-by-

country. The growth was necessarily uneven, for the seeds of human rights

sprout on different grounds differently. Some grounds were more suited than

the others, considering the readiness of their people’s culture and experience.

At this stage, the protection of human rights depended largely on the will and

pleasure of the sovereign ruler of each country. The horrors of the Holocaust,

however, shattered this dependency, for Hitler showed to the world that the

States themselves could be the predators of human rights.”

It is beyond question that the very driving force of the pressure towards the

Supreme Court and the justices to adopt the amparo is the sky-rocketing numbers of


46

human rights violations especially enforced disappearances in the Philippines which

even included among its victims the son of one the country’s most important

historical figure in Press Freedom, Jonas Burgos, the son of Jose Burgos Jr.

No wonder that the Committee took note of Article 2 of the International

Convention for the Protection of all Persons from Enforced Disappearance which

states that:

“For the purposes of this Convention, “enforced disappearance” is

considered to be the arrest, detention, abduction or any other form of

deprivation of liberty by agents of the State or by persons or groups of persons

acting with the authorization, support or acquiescence of the State, followed

by a refusal to acknowledge the deprivation of liberty or by concealment of the

fate or whereabouts of the disappeared person, which place such a person

outside of the protection of the law.”

The right to freedom from arbitrary deprivation of life has long been

recognized internationally and domestically. For the victims of extra-legal, arbitrary

and summary executions this right has now found judicial safeguards despite the

absence of clear positive legislation. As it is designed, the writ of amparo is a remedy

for the protection of the right to life, liberty, and security of a person.

So far, the remedy has resulted in a number of persons released from military

custody although many others are still unaccounted for. The number of extralegal

killings and enforced disappearances, however, which prompted the adoption of the


47

remedy, has since gone down considerably.51

BEYOND AMPARO According to the National Union of People’s Lawyers in the Philippines

(NUPL) the military has developed a template nationwide—arguing that the subject

voluntarily surrendered to the military or preferred custody with the military. This

scheme must be publicly exposed. Concise legal arguments must also be prepared

to meet this very weak argument head on. 52 Some RTC judges who are not familiar

with the rule, treat amparo like a habeas corpus petition or in some instances

dismiss ‘amparo’ cases even if they grant liberty to the subject. The Supreme

Court explained during the NUPL forum on the writ that a writ is “issued” once the

court requires the respondent to file a ‘return’. If the subject was ordered released

the ‘privilege of the writ’ was actually granted, and not dismissed. It maybe

worthwhile to give a brief explanation on the amparo in the prefatory, and

specifically state the above in the prayer including a prayer for a ‘temporary

protection order’ in the custody of the family or a human rights group or institution.

The rule on the writ of amparo contains many provisions that may be used

to pierce the veil of impunity that shrouds the Philippine justice system. It is

important that human rights lawyers must support the Supreme Court’s assertion of

its constitutional powers to protect human rights including the promulgation of the

51 THE PHILIPPINE WRIT OF AMPARO: A NEW REMEDY FOR HUMAN RIGHTS, Adolfo S. Azcuna

52 THE WRIT OF AMPARO AS MECHANISM TO CURB IMPUNITY: The Case of the Philippines , Atty. Neri Javier Colmenares ; Commission VI on Accountability for International Crimes: Fighting Impunity (IADL Congress, Hanoi, June 6-10, 2009)


48

rules on the writ of amparo and habeas data. It is also important that human rights

advocates help ensure that the writ of amparo becomes an effective tool in the

battle against impunity. In this undertaking, the active participation of the victims,

their families and human rights advocates in the quest for justice plays an important

role and should be pressed vigorously. The writ of amparo, or any rule for that

matter, will always be insufficient to stop institutionalized human rights violations

without the involvement of the most important pillar of the justice system—the

people . 53

On 28 September 2007, the Asian Human Rights Commission (AHRC)

commented on the Writ of Amparo and Habeas Data may still be insufficient to

resolve the problems of extralegal killings and enforced disappearances in the

Philippines. According to it, there must be cooperation from all parts of the

government and civil society. “Though it responds to practical areas it is still

necessary that further action must be taken in addition to this. The legislative bodies,

House of Representatives and Senate, should also initiate its own actions promptly

and without delay. They must enact laws which ensure protection of rights—laws

against torture and enforced disappearance and laws to afford adequate legal remedies

to victims. 54

It must be noted that the Rule on the Writ of Amparo is merely procedural

and cannot increase, diminish nor modify substantive constitutional rights. The

adoption of the rule by the Supreme Court is merely an exercise of an institutional

prerogative by the judiciary. This can reflect in some way the sad state of 53 Ibid. 54 http://en.wikipedia.org/wiki/Asian_Human_Rights_Commission


49

performance of Congress in utilizing the latter’s law-making mandate. The Philippine

legislature has therefore fell short in its task of passing laws that shall protect its

people against torture and enforced disappearances and provide the people access to

legal remedies and urgent resolution of cases.

The Philippine government per se has the duty to take actions to enact

adequate laws to comply with its international obligations being an elected member of

the United Nations Human Rights Council.

The Philippines has not yet fulfilled its role under the United Nations

Convention Against Torture, which requires as a State party to the Convention to

enact the corresponding domestic law. For many years, the proposed laws against

torture and enforced disappearance have been pending before the Legislature. Sadly,

there are so far no indications that it would be acted upon soon. The government still

needs even to ratify the instruments on International Convention for the Protection of

All Persons from Enforced Disappearance and to subsequently enact corresponding

laws on the matter. Its reluctance to be a State party to the said convention, manifests

its insincerity to face the problem head- on. It is hoped that the writ of amparo, so

noble in its vision, will not be abused by scrupulous criminals or be circumvented by

the military. In the wake of the full enforcement of the Human Security Act of 2007,

the improper enforcement of its many ambiguous provisions will surely erode many

of our civil liberties. Feared to be a draconian law, amparo stands the best vanguard of

the liberties threatened to be transgressed and trampled upon. 55



50

BIBLIOGRAPHY Bernas, Joaquin S.J. (1995). The Intent Of The 1986 Constitution Writers __________________ (2008). The Mexican Amparo, Philippine Daily Inquirer, http://opinion.inquirer.net/inquireropinion/columns/view_article.php?article_Id.=86232 Colmenares, Atty. Neri Javier (2007). Initial Analysis on the Philippine Amparo, http://www.bulatlat.com/2007/10/initial-analysis-philippine-amparo __________________________ (2009). The Writ Of Amparo As Mechanism To Curb Impunity: The Case Of The Philippines , Commission VI On Accountability For International Crimes: Fighting Impunity (IADL Congress, Hanoi, June 6-10, 2009) Gamboa, Joan Lou P. (2007). Creative Rule-Making In Response To Deficiencies Of Existing Remedies Pangalangan, Raul (2008). Passion for a Reason, ‘Judicial Activism and its limits’, Philippine Daily Inquirer, February 1, 2008 Puno, Reynato S. (2007). “ No Turning Back on Human Rights”, delivered at the Luce Auditorium, Silliman University, Dumaguete City, during its University Convocation and Presentation of the 2007 Outstanding Silliman University Law Alumni Association (SULAW) Award to Prof. Rolando V. del Carmen and 19th SULAW General Assembly and Alumni Homecoming, August 25, 2007. “Chief Justice Puno Lauds Writ of Amparo’s Victory”. http://www.supremecourt.gov.ph/news/ courtnews/2007/11/ Free Legal Assistance Group (FLAG) (2006). Primer on the Writ of Amparo UN Manual on the Effective Protection and Investigation of Extralegal, Arbitrary and Summary Executions, ST/CSDHA/12-1991; Model Protocol for a Legal Investigation of Extralegal, Arbitrary and Summary Executions available at http://www.icrc.org (last accessed August 8, 2007). Federal Practice and Procedure ,G.R. No. 129742, 16 September 1998; citing 32 Am. Jur. 2d, , § 505, p. 936 and People vs. Smith, 205 P. 2d 444. In the Matter of the Petition for the Writ of Amparo in Favor Romulos Robiños, Ryan Supan, Leny Robiños and Lolita Robiños v. Gloria Macapagal Arroyo, Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Lt. Col Edison Caga, Lt. Eric Bulosan, et. al., G.R. No. 180160, 31 October 2007, Minute Resolution.


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Extra-Judicial Killings and Enforced Disappearances: Where Do We Go From Here? http:// ca.supremecourt.gov.ph/index. International Covenant on Civil and Political Rights, G.A. Res. 2200A, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966) entered into force Mar. 23, 1976, ratified by the Philippines in 1986. Report of the Secretary-General, Extra-legal, Arbitrary and Summary Executions and Measures for Their Prevention and Investigation, U.N. Doc. E/AC.57/1988/5, at 21 (1988). The Constitution of the Republic of the Philippines; 1987 The Constitution of Argentina; 1994

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