Friday, May 8, 2009

The Writ Of Amparo: RP style [The writ series part 1]

Sometime last year amidst reports on extrajudicial killings and enforced disappearances under the Arroyo administration, a friend from the local media asked me point blank about the so called writ of amparo. I was dumbfounded and could not give a sensible legal opinion. To my surprise, he told me to write an article about this matter and if possible post it in my blog for educational purposes and posterity. I must admit though that remedial law is one of the hardest subjects in law school so I was quite reluctant to discuss anything concerning legal remedies or procedure let alone write a legal opinion about it. Nevertheless since this remedy has constitutional underpinnings which sought to protect the right to life, liberty and security of persons under the bill of rights, I therefore decided to have a brief academic discussion on this topic.


Oriented towards providing safeguards and guarantees to constitutional rights, every State in the world has its own version of petitions where individuals can seek vindication of their violated fundamental rights. The writ of habeas corpus, discussed above, is probably the oldest and most famous of all. The writ of habeas corpus is said to have been used for more than five centuries now. The writ of amparo however seconds in history. The writ of amparo hails from a Spanish etymology “amparar” which means to protect. Verily, the writ of amparo finds it roots in Mexico in the mid 19th century. Here in the Philippines, while the 1987 Constitution does not explicitly provide for the writ of amparo, several of the above amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” Also, the court’s promulgation of said Rule is but “an exercise for the first time of the Court’s expanded power to promulgate rules to protect our people’s constitutional rights, which made its maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial law regime.” Since its promulgation in September 25, 2007, the Writ of Amparo has been tested for several times. However, it was only in October 7, 2008 where the Supreme Court decided its first landmark amparo judgment entitled Secretary of Defense, et al., v. Manalo affirming the December 26, 2007 decision of the Court of Appeals in favor of Raymond and Reynaldo Manalo who were abducted by the Citizen’s Armed Forces Geographical Unit (CAFGU) in San Ildefonso, Bulacan in February 2006 and were able to escape their abductors after eighteen months of detention and torture. Aptly, the ponencia, no other than the Supreme Court Chief Justice initialed the decision by: 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.
Purposes and Objectives

The writ of amparo is a remedy to enforce fundamental rights. A certain point delineates the writ of amparo and the writ of habeas corpus. The latter is designed to enforce the right of freedom of the person where as the former is designed to protect those other fundamental human rights, enshrined in the Constitution but not covered by the writ of habeas corpus. Section 1 of the Rule on the Writ of Amparo states that a “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 a private individual or entity. The writ shall cover extra legal killings and enforced disappearances or threats thereof.” In the promulgation of the said rule, Chief Justice Reynato Puno announced that “…the rule will place the constitutional right to life, liberty and security above violation and threats of violation. This rule will provide the victims of extralegal killings and enforced disappearances the protection they need and the promise of vindication of their rights. This rule empowers our Courts to issue reliefs that may be granted through judicial orders of protection, production, inspection and other relief to safeguard one’s life and liberty. The writ of amparo shall hold public authorities, those who took their oath to defend the constitution and enforce our laws, to a high standard of official conduct and hold them accountable to our people. The sovereign Filipino people should be assured that if their right to life and liberty is threatened or violated, they will find vindication in our courts of justice.” The same sentiment has been penned in a case duly decided by the Supreme Court. Thus, discussed by the Court, “the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address these extraordinary concerns. It is intended to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules.”
In its first landmark amparo case, the Court has held, “The writ of amparo serves both preventive and curative roles in addressing the problem of extralegal killings and enforced disappearances.” The Court further said that “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 perpetrators as it will inevitably yield leads 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.”

However, the Court has forewarned petitioners, in Masangkay v. Judge del Rosario that “when recourses in the ordinary course of law fail because of deficient legal representation or the use of improper remedial measures, neither the writ of certiorari nor that of amparo - extraordinary though they may be - will suffice to serve as a curative substitute. The writ of amparo, particularly, should not issue when applied for as a substitute for the appeal or certiorari process, or when it will inordinately interfere with these processes.”

Sufficiency of Rules

Under the Rule, the writ shall cover extra judicial killings and enforced disappearances. Of course, the Rule itself, like any other law, cannot be constrained to embody and explicate on itself the purpose and objective of the law. Jurisprudence has its own compulsion to do so. Thus, in the landmark case of the Manalo brothers, the Court explicated, “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.” In the same case, the Court also has elaborated and amplified what is meant by right to life, liberty and security and their violation which may warrant an amparo proceeding. The Court explains, “While the right to life under Article III, Section 1 of the Constitution guarantees essentially the right to be alive - upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life, viz: “The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of his person and property. The ideal of security in life and property… pervades the whole history of man. It touches every aspect of man’s existence.” In a broad sense, the right to security of person “emanates in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual.” In that regard the Court has set guidelines, (1) the right to security of person is “freedom from fear’; (2) the right to security of person is a guarantee of bodily and psychological integrity or security; (3) Third, the right to security of person is a guarantee of protection of one’s rights by the government.
Moreover, in the Masangkay the court further clarified that: What it (referring to the writ) is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo – in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands – requires that every petition for the issuance of the writ must be supported by justifying allegations of fact, to wit:

x x x (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; x x x

The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed. In other words, there must be prima facie showing of violation or threat of violation of right to life, liberty and security however in said case none of the supporting affidavits compellingly show that the threat to the rights to life, liberty and security of the petitioners is imminent or is continuing. In this case, the Court has stressed the sufficiency of petition in order that a writ of amparo may issue. Moreover, the Court likewise held that “Rather than acts of terrorism that pose a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to be purely property-related and focused on the disputed land. Thus, if the petitioners wish to seek redress and hold the alleged perpetrators criminally accountable, the remedy may lie more in the realm of ordinary criminal prosecution rather than on the use of the extraordinary remedy of the writ of amparo.”

In that case, the Court also made specific mention of Sec. 21 of The Rule on The Writ of Amparo, “(The rule) provides for rules on the institution of separate actions, for the effect of earlier-filed criminal actions, and for the consolidation of petitions for the issuance of a writ of amparo with a subsequently filed criminal and civil action. These rules were adopted to promote an orderly procedure for dealing with petitions for the issuance of the writ of amparo when the parties resort to other parallel recourses. Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and the reported acts of violence and harassment, we see no point in separately and directly intervening through a writ of amparo in the absence of any clear prima facie showing that the right to life, liberty or security – the personal concern that the writ is intended to protect - is immediately in danger or threatened, or that the danger or threat is continuing. We see no legal bar, however, to an application for the issuance of the writ, in a proper case, by motion in a pending case on appeal or on certiorari, applying by analogy the provisions on the co-existence of the writ with a separately filed criminal case.”

The Philippine version of the writ of amparo is also seen to supplant or better remedy the escape that state agents do in cases of petitions for writ of habeas corpus. As noted in the previous pages of this work, the writ of habeas corpus applies “to all cases of illegal confinement or detention.” It is therefore required that there be a person in “custody.” With that requirement on mind, state agents now usually end up simply denying they have the missing person in their custody. The writ, as explicated by, former Chief Justice Artemio Panganiban would compel state agents to look for the missing person and hold them accountable if the court would find that they exerted not enough efforts to find such person. Thus, under Section 9 of the same Rule, it is provided that “Within 72 hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall among others contain the following:
“(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 threat, act or omission.”

In our ends, we find the Rule sufficient at this point. However, with the passing of time, the Rule on the Writ of Amparo shall be bolstered further by jurisprudence. Even the Supreme Court believes in continuous review of this protective writ as well as the habeas corpus and habeas data in order to successfully achieve their respective ends. It has been commented however by the international community and to which we subscribe that the protective writs are insufficient to resolve the general problems of extralegal killings and enforced disappearances on the Philippines. It must be catalyzed by a collective and cooperative action on all levels of the government and society as well especially the legislature. It is also our submission, as the proposed constitutional amendments are at hype, that the constitutional provisions pertaining to Social Justice and the Commission on Human Rights be given of highest consideration. The two previous writs we have discussed and the writ of habeas data which we are about to talk about all afford protection to individual rights. However, because of the Court’s ruling in Carino v. Commission on Human Rights which declared the said commission to be bereft of quasi-judicial functions and merely possesses examining or investigatory powers, the Commission is rendered like a toothless tiger. The Commission therefore has no substantial power to provide remedies and deter violation of human rights which is the very object for which the writs of habeas corpus, amparo and habeas data have been promulgated.


Fred said...

Sir Im a frequent visitor of your blog, I just want to ask you if you are a lawyer?or a professor? you have great insights on constitutional law..keep it up!

Christopher Diaz Bonoan said...

Thank you Fred for taking the time to visit my blogsite. Unfortunately I am neither a lawyer nor a professor, frankly speaking I am a nobody....thank you sir for the comment

HR said...

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I have known this guy since my college days at Basilan State College, he was firm and ardent in drawing out the commitment of those students with sound conviction by making them all involved in all undertakings by boosting their fervor and efforts. He possesses the quality of what it takes to be an ideal, dynamic and steadfast student leader having elected as Senator of the College Supreme Student Council (hehe). However, his ultimate passion as a student leader was two-pronged: Firstly, to forge integral alliance between various student organizations with the school administration in developing and implementing student services programs that are responsive to the needs of the students. Secondly, to develop a comprehensive yet meaningful student development program that is expectyed to fuel the trajectory in increasing the driving force of all students to successfully leverage their academic performance performance.

Mr. Pey was indisputably sensitive to the needs of the students and guarantees that those needs are met and satisfied within the expected timescale. In enforcing change in the student council, he realizes it by facilitating dialogue and by articulating the needed standards that will be necessitated as the change process is about to be implemented. In dealing with problems, he enforces and induces appropriate organizational interventions that will eliminate the problems.

Since Pey exudes the image of an inspirational leader, he can easily motivates all the members of the student council to sustain the equilibrium even under pressure in meeting the deadlines and achieving and/or realizing the goals of the school. The friendly and cordial mood of Mr. Pey galvanizes good performance among the student leaders. He always carries with him a hale and hearty load of optimism. He has the ability to magnetize the attention of his subordinates because he has coherent and clear sets of intentions and frame of reference to consider the students as a group that has more commonality than diversity. He strategically communicates an excellent focus of commitment and dedication which moves people to work with utmost enthusiasm.

With utmost lucidity, he assumes with utmost sincerity and dedication to be duty-bound in orchestrating systematically the deliverables of monitoring the outputs of his colleague in the studetn council.

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Christopher Diaz Bonoan said...

well..what more can i say?but touching...