The writ of amparo: Judiciary’s sword unsheathed
At the unprecedented
What gave impetus to this conference was his desire to prevent losing “eye contact” with the escalation of unexplained killings and disappearances in the country. He acutely felt the need for the judiciary, congruent with global trend, to take a proactive stance to enhance the protection and promotion of constitutional rights.
Earlier, in a letter addressed to him, President Arroyo urged the creation of special human rights courts as she viewed with “alarm and concern the unabated killings of political activists and members of media.”
Fundamental human rights
Enshrined in several international instruments are the rights to life, liberty and security of persons. These include the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights; at the regional level, the American Convention on Human Rights, the African Charter on Human and Peoples’ Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
At the domestic front, Article III, Section 1 of the Bill of Rights of the Constitution declares “No person shall be deprived of life, liberty or property without due process of law…” One of the State Policies in Article II, Section 11 provides: “The State values the dignity of every human person and guarantees full respect for human rights.”
Other sources for the protection of these basic rights are the Civil Code, the Revised Penal Code, special laws and generally accepted principles of international law, which consonant with the Constitution, are automatically part of the law of the land. But even without this incorporation clause under Philippine jurisprudence such international humanitarian norms are valid and binding. These provisions, which are not limited to citizens of the country but include all residents, are self-executory and need no enabling statute to enforce them, whether in times of war or peace.
Acknowledged universally as an indispensable complement to the substantive rights cited above are the remedies to enforce them. Such “teeth” are provided by the Universal Declaration of Human Rights which lays down the “right to an effective remedy by the competent national tribunals…”; likewise by the International Covenant on Civil and Political Rights which goes further to add that “the competent authorities shall enforce such remedies when granted.” Procedures are to be expeditious, fair, inexpensive and accessible.
Legal remedies for violations of rights
At the summit, representatives from various stakeholders, such as the government, human rights groups, the academe, the religious, NGOs and the military made numerous recommendations and proposed solutions addressed to the three main branches of the government. Emerging loud and clear was the clamor for the Supreme Court to amend the Rules of Court to include a protective and remedial tool for those whose rights to life, liberty and security are being violated.
Existing mechanisms are inadequate, like the writ of habeas corpus, which is an extraordinary recourse available only in cases of illegal confinement or detention by which a person is deprived of his liberty. Moreover, the invariable reply to “produce the body” is a general denial of custody.
Models for effective legal remedies in cases of violation of constitutional rights are not wanting. To name a few international human rights documents: the Great Writ of Liberty, the Magna Carta of England of 1215; the French Declaration of the Rights of Man and Citizen; the United States Bill of Rights in the Constitution.
Unique to Mexico and later, other Latin-American countries which have experienced political instability and military coups, is an extraordinary recourse designed to challenge arbitrary and oppressive government actions found in Articles 103 and 107 of the Mexican Constitution. Described as “the most important procedural mechanism in the Mexican legal system,” the writ of amparo (taken from the Spanish term amparar meaning “to protect, favor or aid”) started out as a protective tool against acts or omissions of public authorities in violation of constitutional rights with special application to peasants’ rights arising from the agrarian reform process. Gradually it has evolved as an all-encompassing judicial remedy to review the constitutionality of statutes and decisions of judicial, quasi-judicial and administrative agencies and to remedy violations of both political and socio-economic rights.
The writ of amparo
Responding to the vociferous proposals in the
The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ itself shall cover extralegal killings and enforced disappearances or even mere threats thereof. Unlike habeas corpus, a general denial of allegations in the petition is not allowed.
“Extralegal killings” (the term used in UN instruments) are killings committed without due process of law, i.e. without legal safeguards or judicial proceedings. As such, these will include the illegal taking of life regardless of the motive, summary and arbitrary executions, “salvagings” even of suspected criminals, threats to take the life of, say, media persons who are openly critical of erring government officials and the like.
On the other hand, “enforced disappearances,” as defined in the Declaration on the Protection of All Persons from 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 persons concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of the law. The abduction of suspected Leftists is an example of an enforced disappearance.
Mechanics of filing petition
The petition for the writ of amparo may be filed by the aggrieved party, or in case of his inability or refusal to do so, maybe because of fear of reprisal, the members of his immediate family, his close relatives, or in default of these persons, even any concerned citizen or association. It shall recite in detail the circumstances of the right violated, or the threat, any investigation conducted and actions taken to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible.
It may be filed before the Regional Trial Court of the place where the threat, act or omission was committed, or the Sandiganbayan, the Court of Appeals and the Supreme Court and made returnable before the same. It shall be enforceable anywhere in the
The procedure
The court or judge shall immediately order the issuance of the writ which shall be served on the respondent and a summary hearing shall be held. An outstanding feature of this Philippine version of the writ of amparo is the availability of reliefs at anytime before final judgment. These shall include temporary protection orders to safeguard the aggrieved party or his family, in a government agency or in an accredited private institution; inspection orders allowing entry into designated land or property; production orders of designated documents, papers or any tangible things relevant to the petition and witness protection orders under the Witness Protection Program of the Department of Justice.
Since this Rule on the writ of amparo shall apply to cases on extralegal killings and enforced disappearances or mere threats, pending in trial or appellate courts, it holds promise of filling the void in the legal system of the
(The author is a retired justice of the Supreme Court and a member of the Supreme Court committee on the revision of the rules of court)
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