Colmenares.writ of Amparo

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THE WRIT OF AMPARO AS MECHANISM TO CURB IMPUNITY:The Case of the Philippines

By Atty Ne!i "a#ie! Col$ena!es

Co$$ission %I on A&&o'nta(ility fo! Inte!national C!i$es:Fi)htin) I$p'nity *IA+, Con)!ess- Hanoi- "'ne ./01- 21134

I I$p'nity: Conte5t 6ithin 6hi&h a$pa!o 6as p!o$'l)ate7

Cases of extra judicial killings, enforced disappearances and other human rightsviolations in the Philippines have not only been marked by the heinousness of the crimebut also by the impunity with which they were committed. Many of the extra judicialkillings and enforced disappearances were committed openly, in public places, near police stations or military camps but no serious investigation of and prosecution for

these crimes have been conducted by the government. The various abeas Corpuspetitions filed by human rights lawyers to stem enforced disappearances remainunsuccessful as the respondent!state security forces merely deny custody of the victimsresulting in the dismissal of these petitions. "ttempts by human rights groups to gather and preserve evidence are met with very little cooperation from governmentinvestigating agencies making it exceedingly difficult for human rights cases to prosper in court. #orse, many human rights advocates and lawyers have been the target of attacks themselves further curtailing the victims$ access to the judicial processes.

This is the context under which the %upreme Court called for a consultativesummit on extra judicial killings and enforced disappearance on &uly '(!'), *++). Many

human rights lawyers who are now members of the -P were invited to the summitand were asked to submit their recommendations. "mong our recommendations werefor active judicial intervention in cases of human rights violations.

II The Role of NUP, in s'ppo!t of the W!it of A$pa!o

/ne of the most important output of the %ummit was the promulgation of the ruleson the #rit of "mparo, a legal concept that was enshrined in the Mexican legal systemin the '0++$s. The amparo was later used by many atin "merican countries 1Please see-P paper ‘Comparative Analysis of the Writ of Amparo’ published on %eptember '2,

*++)3 . The "mparo rule provided victims or their relatives and human rights groupswith opportunities to seek legal remedies from courts through the rule$s 4interim relief$provisions such as witness protection orders, production orders, and inspection orders.

5ven before amparo was promulgated, the -P already discussed a paper tackling the writ of amparo, writ of habeas data and the notion of command responsibilityduring its ational Congress held on %eptember '2!'(, *++0. 6t was also in that -PCongress that Chief &ustice 7eynato Puno, in his message to the -P, announced theimpending promulgation of the writ of amparo rules. The Congress, which was


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VIETNAM LAWYERS ASSOCIATION THE XVII th IADL CONGRESS INTERNATIONAL ASSOCIATION

OF DEMOCRATIC LAWYERS

attended by '8' lawyers, law students and para legal workers from ten of the countries

twelve regions making it one of the largest gatherings of human rights lawyers sincemartial law, issued a statement lauding the %upreme Court$s efforts and expressingsupport for the #rit as a legal tool that may be used in various human rights cases.

The -P subse9uently organi:ed a forum at the -niversity of the Philippines on/ctober '8, *++), where %upreme Court &ustice "dolph ":cuna explained the newlypublished rules to a wide range of audience which included human rights lawyers, lawstudents, judges, the academe and even lawyers from the Philippine ational Policewho attended the forum. The -P then published a comparative analysis of the writof amparo and put out initial guidelines on the filing of the petitions among human rightslawyers nationwide.

Many amparo petitions filed so far, were filed by human rights lawyers who arealso -P members, notably;

'. . ourdes 7ubrico Petition8. 7omulos 7obinos Petition2. 7yan %upan Petition

The missing -P students case, filed by "tty. 7ex ?ernande: of -P, is currentlypending before the Court of "ppeals. "tty. @ing 5stores and "tty. Carlos Aaratefounding members of the -P!-PM and "tty. Manuel Buibod of -PM, filed theBustamante petition and succeeded in getting custody of uisito =ustamante from therespondent military and para military groups upon orders of &udge 6saac 7obillo of 7TC=ranch '> in @avao on ovember '8. @espite =ustamante$s statement in open courtthat he voluntarily sought custody with the military, 7TC &udge 7obillo ordered that hebe released from military custody in stark contrast to the C" ruling in the case of /rti:and Panganiban.

The amparo petitions for 7ubrico, 7omulos, and %upan, filed by "tty. 7ex?ernande:, were given due course by the courts and are currently pending resolution.The %upreme Court issued a protection order for 7obinos under the custody of a priestof the 6glesia ?ilipinas 6ndependiente 16?63.

"tty. 5mil @eleverio of Pagadian, a founding member of the -P and -PMalso reported the successful petition filed by -PM and ?" lawyer TirsendoPoloyapoy for 7uel Munas9ue. Munas9ue was ordered released by &udge 7einero7amas of 7TC =ranch '0 in Pagadian on ovember ). The Manalo brothers petitionwas filed by ?" lawyer "tty. &ose @iokno and is currently pending.

Initial +e&isions

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The petition of &effrey /rti: and &uvy Panganiban was reportedly dismissed bythe a panel of the Court of "ppeals because they stated that they want to remain in thecustody of the "?P. "nother Court of "ppeals decision ordered that Pres. loria "rroyobe stricken off as 7espondent since she is 4immune$ from suit. 6t must be noted that the%upreme Court did not exclude Pres. "rroyo in the Cadapan and 7obinos petitions filedbefore it.

?oreigners have standing to file a writ of amparo. This is correct since civilliberties pertain to all personsDincluding foreigners as provided in %ec. ', "rt. 666 of theConstitution which states that Eno personF shall be deprived of life, liberty and propertywithout due process of law. This was the decision of the %upreme Court when it issuedthe writ for =ritish nationals %tephen and Mylene


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individual rather than the wish or the 4want$ of an individual. 6n any case, human rights

lawyers should appeal the decision to the %upreme Court. uman rights lawyers in theprovinces may coordinate with lawyers in Manila to help facilitate the filing of the samewith the Court.

III. Nature of the Writ under Section 1

The nature of the writ is defined' as a remedy Eavailable to any personwhose right to life, liberty or security F is violated or Ethreatened with violation by anunlawful act or omission by a public official or employee or of a private individual or entity F. -nlike the other amparos in atin "merica which covers violation of constitutional rights 1individual guarantees3 in general, the rule focused on thehuman rights crimes related to extra judicial killings and enforced disappearances.

The writ includes protection of ElibertyF which may include deprivation of liberty previously covered by habeas corpus petitions. The Philippine amparodeparted from the amparo rules of "rgentina and Mexico which expressly providesthat deprivation of liberty is not covered by amparo but is remedied through ahabeas corpus petition.

?rom the practice so far, amparo was not limited to cases of enforceddisappearance where the fate or whereabouts of the accused is unknown. Thecourts do not distinguish between habeas corpus and writ of amparo allowingamparo petitions even in cases where respondents admit custody of the subject.This liberal interpretation of the writ, similar to the Chilean amparo, is favorable tothe victims as this facilitate the filing of cases in many situations.

%ince the rule may be applied EretroactivelyF* by implication, amparopetitions may still be filed on cases of past disappearances or extra!judicial killingsincluding previously dismissed habeas corpus petitions. This is a usefulmechanism against impunity, as the military is no longer secured by the previousdismissal of cases against them.

uman rights lawyers can also use the writ of amparo on cases of EthreatenedF deprivation of liberty, when the subject has not been arrested or

1 SECTION 1. Petition. – The petition for a writ of amparo is a remedy available to any person

whose right to life, liberty and security is violated or threatened with violation by an unlawful

act or omission of a public official or employee, or of a private individual or entity. The writ

shall cover extralegal killings and enforced disappearances or threats thereof.

2 SEC. 26. Applicability to Pending Cases. – This Rule shall govern cases involving extralegal

killings and enforced disappearances or threats thereof pending in the trial and appellate

courts.

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disappeared. The inclusion of 4threats$ to liberty as a justiciable controversy can

put a stop to the illegal habit of the military and the police in EinvitingF people tomilitary camps> for interrogation. Many of the victims of the killings anddisappearances were first EinvitedF to military camps before they were killed or 4disappeared$.

-nder the amparo rule, the 4invited$ persons may only file an amparo petitionto stop the military from harassing them through these 4invitations$ and need notresort to the cumbersome certiorari petition. Those threatened with arrest, similar to the =atasan 2 incident last year, may also resort to amparo. "lthough as yetuntested, lawyers may use amparo creatively to post bail in cases where the victimis unlawfully harassed through false criminal charges.

?or victims of extra judicial killings, an amparo petition is focused onproduction orders. "mparo is therefore a means to firm up evidence on theperpetrators of the extra judicial killings. uman rights lawyers must be able toprepare well the basis for the production order to ensure that specific documentsthat may lead to the identity of the perpetrator is unearthed through amparo. /ncethis succeeds it is possible that the fre9uency of extra judicial killings may belessened.Who $ay File

%ection * provides that the following have standing to file the petition Ein thefollowing orderF

'. The aggrieved party*. "ny member of the immediate family of the injured party>. "ny relative within the fourth degree of consanguinity or affinity8. "ny individual citi:en or organi:ation Eif there is no known member of theimmediate family or relative of the aggrieved partyF.

This expansion of standing, which is a departure from the Mexican amparo,is positive in terms facilitating recourse to the remedy. This is a speedy recoursebecause human rights organi:ations and even an individual human rights advocatemay file the petition should it be difficult to trace the family of the victim.

6t must be noted that the Chilean amparo merely states that it Emay be filed on behalf of any person” . The "rgentina amparo, states that the petition Emay befiled by the damaged party, the ombudsman and the associations which foster such ends” without any hierarchical re9uirement.

3 This Marcosian tactic became the subject of a Supreme Court petition for certiorari during martial law when the military ‘invited’ media people like Arlene abst for interrogation!

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I% Ret'!n of the W!it

/ne of the most difficult hurdle for the military and PP respondents in anamparo petition is the provision on 4return$ under %ection H. "nd this is wherehuman rights lawyers should hammer the respondents ensuring that no 4falsereturns$ or templates are submitted. 6n fact, prayer for contempt must be lodgedbefore the %upreme Court in case a false return is submitted.

-nlike in habeas corpus cases where respondents get away with blanketdenials, amparo penali:es public officials who issue such blanket denials withoutconducting a serious and diligent search for the victim by prohibiting the same andre9uiring the respondent to state in the following in their 7eturn;

%5C. H. 7eturnI Contents. J #ithin 1?6K5 @"L%3 after service of thewrit, the respondent shall file a verified written return together withsupporting affidavits which shall, among other things, contain thefollowing;

aN The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of theaggrieved party, through any act or omissionIbN The steps o! a&tions ta8en (y the !espon7ent to 7ete!$inethe fate or whereabouts of the aggrieved party an7 the pe!son o! pe!sons !esponsi(le for the threat, act or omissionIcN "ll relevant information in the possession of the respondentpertaining to the threat, act or omission against the aggrieved partyIanddN 6f the respondent is a public official or employee, the return shallfurther state the a&tions that ha#e (een o! 6ill still (e ta8en;iN to verify the identity of the aggrieved partyIiiN to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aidin the prosecution of the person or persons responsibleIiiiN to identify witnesses and obtain statements from them concerningthe death or disappearanceIivN to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may havebrought about the death or disappearanceIvN to identify and apprehend the person or persons involved in thedeath or disappearanceI andviN to bring the suspected offenders before a competent court.

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The return shall also state othe! $atte!s !ele#ant to the

in#esti)ation- its !esol'tion an7 the p!ose&'tion of the &ase . "general denial of the allegations in the petition shall not be allowed.

The rule re9uires the respondent to state the steps taken to determine thewhereabouts of the victim, a difficult re9uirement indeed since in previous casesthe respondents usually make blanket denials even if they did not conduct anyin9uiry on the whereabouts of the victim. @oubly difficult under %ec. H, is there9uirement to describe steps undertaken to find the perpetrator, since this willexpose the lack of serious investigation on the part of government to find anysuspect or follow leads.

6f, after denial by the "?P of custody for example, the 4disappeared$ is later found to have been under the custody of the "?P, all the respondents or thehighest ranking respondent may be penali:ed for issuing a false return. 6t isimportant to implead the Commander!in!Chief in an amparo petition, particularly inthe C7, because she has complete control of all large units which may havecustody of the victim. "mparo petitions in the provinces may also implead thePresident or the Chief of %taff although this depends on the immediacy of thesituation particularly in far flung provinces. 6n any case, human rights lawyers inManila may help facilitate service of the writ to public officials based in the capital

The information re9uired in an amparo petition was designed to spur therespondent to conduct at least some semblance of a 4search$ or investigationbefore the filing of the return, on pain of contempt under %ection '( either failing tomake a return or making a false return. 6t must be personally filed or verified bythe respondents.

Presumption of regularity

/ne novel legal development in the Philippine amparo is the inapplicability of the Epresumption of regularityF rule. This was one of the proposals of -P membersto the %upreme Court during the extra!judicial summit. %ection ') re9uires that thepublic official must prove Ethat extraordinary diligence was observed in theperformance of duty.F =lanket denials without the corresponding diligence toinvestigate the killing or disappearance are unacceptable under the rule. ?urthermore,since there is no presumption of regularity, the respondent public officials must provethrough evidence that their acts were indeed regular rather than placing the burden of proving the 4irregularity$ on the complainants.% Inte!i$ Relief

The interim relief provided by the writ will predictably be a major battleground inamparo petitions, and will test the will of the courts and human rights lawyers to battlethe recalcitrant attitude of the government and the "?P against court orders and rules.

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5very interim relief granted will surely discourage the commission of abduction since

there is now a risk that the abduction will be discovered especially if the 4disappeared$is brought to a military camp.

irstly, the Temporary Protection /rder 1%ection '8!a3 and the #itnessProtection /rder 1%ection '8!b3 may hamper acts of harassment from therespondents. 6t must be noted that protection orders are not only applicable to naturalpersons but even juridical persons such as human rights groups and political partiespreviously subject to harassment by the "?P.

!econdly , non government entities namely accredited private individuals andorgani:ations, are given the authority 1previously limited to government agenciesunder the witness protection program3 to give that protection. These provisions areactually indictments of the government$s witness protection program and its failure toprovide a credible and safe haven for witnesses. 6n many instances, human rightsorgani:ations, universities and churches have gained the trust of victims of humanrights violations and provided sanctuaries for them. The %upreme Court merelyrecogni:ed this prevailing situation and gave non!governmental entities the legalstanding to provide protection. -nder this rule, the military and the police cannotharass or raid or make arrests in recogni:ed sanctuaries.8 %urveillance or threatsagainst the accredited sanctuaries can be penali:ed under the writ for violation of court orders.

/rgani:ations who wish to avail of this status must prepare to apply for thesame during the petition itself or after the %upreme Court has released its guidelines.

"lthough the guidelines are not yet out, the %C may re9uire groups to establish itscredibility as a witness protection institution, its track record if any of being asanctuary, resources. Credibility rather than resources should be the main criteriasince credibility is a 9uestion of trust which is earned, while resources may be availedof from funding institutions.

uman rights advocates must make sure that the criteria set must not be sorestrictive as to dis9ualify many well meaning, credible and capable human rightsorgani:ations and institutions.

The 6nspection /rders under %ection '8.b, which empowers the court to allowentry into a public or private property for "the purpose of inspecting, surveying,measuring or photographing” the property or any relevant object thereon can includeprisons, safehouses, and military camps.

4 The police once raided the Polytechnic University of the Philippines during martial lawwhere refugees from Leyte were taking sanctuary and arrested many refugees. Cardinal

Jaime Sin once complained against a military raid on his convent allegedly to arrest rebelsseeking sanctuary in the same.

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The Production /rders under %ection '8.c which empowers the court to order

any person to produce "documents, papers, letters, photographs, ob#ects or tangiblethings and those in digiti$ed or electronic formsF includes the inspection of prisonlogbooks, records of arrest, and even trace existing paper trail on the authority whoordered the arrest of a person including the order of battle. /ne of the main functionsof the writ is to force evidence from uncooperative government investigationagencies. The evidence gathered through inspection orders will not only be importantin amparo petitions, but even in the prosecution or the filing of administrative and civilcases against the perpetrators of human rights abuses.

The inspection and production provisions can be used to go beyond the blanketdenials of respondents and break the 4mantle of protection$ given by certain officials tosuspected human rights violators. These inspection and production provisions areakin to the little used 4discovery rules$ under the 7ules of Court. "lthough therespondent is given the opportunity to object to these orders on grounds of nationalsecurity or Eprivileged informationF, the courts are given the plenary powers to decidewhether or not the claim to the much abused justification of 4national security$ is valid.

Considering that the interim relief is expected to be a major battleground, it isimportant for human rights lawyers to ensure that the court where the petition was filedis capable of standing up to the pressures that may be applied by respondents. Theabove provisions, could lead to a clash between the judiciary and the executivedepartment if the executive disregards the inspection and production orders of the

judiciary and insists on its self serving interpretation of what constitutes 4executiveprivilege$ and 4national security$.

6t must be noted that "dministrative /rder H) was issued by Pres. loria "rroyoon the same day the amparo rules were promulgated re9uiring the military to draft alaw that will protect military secrets and military operations. Pres. "rroyo alsore9uires, under "/ H), that any information on extra judicial killings and enforceddisappearance be reported to her. This is intended to provide military officers themeans to refuse testifying in court on the ground of 4executive privilege$, claiming thattheir testimony has been the subject of a 4report$ to the commander in chief. "/ H) ismeant to subvert the writ of amparo, particularly the inspection and production orders.6t is important that human rights advocates must campaign against the passage of thislaw and this insidious attempt to render the writ ineffective.

%I ,i(e!al p!o#isions on #en'e- filin)- an7 fees

The Philippine amparo, under %ection >, allows for the filing of the amparopetition in the 7egional Trial Court where the threat, act or omission Eor any of itselementsF occurred, and with the Court of "ppeals, %andiganbayan or the %upremeCourt "or any of its #usticesF. The rule does not impose a strict hierarchy of courts andin fact allows a petition to be filed before any member of these collegial bodies. 6t can

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also be filed 4on any day and at any time$ 1%ec. >3 before any of these bodies or

justices.

@ecisions by any of these bodies may be immediately appealed to the%upreme Court under 7ule 82 on 9uestions of both 4facts and law$ 1%ee %ec. 'H3. 6f the appeal is only on 9uestions of law, it may be decided by the %upreme Court.Traversing factual issue may result in remanding the case to the Court of "ppeals.

/ne of the most important liberal provisions of the rule is that unlike many other amparos, the Philippine amparo does not expressly re9uire exhaustion of remediesbefore an amparo court ac9uires jurisdiction. This possibly stems from the lessonslearned in many of the amparos in atin "merica which were circumvented by theexhaustion re9uirement and was generally used by state security forces to delaypetitions for the writ thereby rendering the remedy ineffective.

"nother important liberal provision in the rule is the absence of any re9uirementfor the payment of docket fees under %ection 8, which makes the remedy accessibleto the victims insofar as it relieves them of the financial burden to prosecute their case.@ocket fees are usually beyond the reach of the families of victims, especially sincethe victim of disappearance or extra!judicial killings are usually the bread winner.

%II A!&hi#in)

%ection *+ provides that an amparo petition is not dismissed by the court, butis rather archived, if Eit cannot proceed for a valid cause such as the failure of the

petitioner or witnesses to appear due to threats to their lives .F This proposal is alsoone of those proposed by members of the -P during the %ummit. The archiving of the case, rather than dismissal, makes it easier for the victims to revive the petitionwhen circumstances change. This provision could be effectively used in the battleagainst impunity, and may be deemed a warning on the perpetrators of human rightsabuses that they may still be held to account in the future under a new president or once their 4protectors$ in government are gone.

%III Conte$pt

ike the amparos in Mexico, "rgentina and icaragua, %ection '( of thePhilippine amparo provides for sanctions, in the case of the latter, through fine or imprisonment on Eany pe!son who refuses to make a return, makes a false return, or resists or disobeys a lawful process or order of the court.F " clerk of court or adeputi:ed person who refuses to issue the writ after its allowance or who refuses toserve the same are also punished with contempt under %ection ).

6s the President liable for contempt under the amparo rule should she disregarda court order in an amparo petitionG The president, impleaded as respondent, isexpected to follow the orders of the judiciary and is even re9uired by her oath of office

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to 4 execute all laws faithfully$. %hould the president disobey court orders, it is this

papers$ opinion that the judiciary is not at all helpless against those who disregardlawful court edicts. The president$s may claim immunity from criminal or civil casesbut can be reprimanded or fined by the courts for contemptuous acts. 6n any case,the President may be later held legally accountable once she finishes her term andher immunity terminated.

6t must be stressed that respondent military officers who certify that the personsubject of the petition is not in their custody after conducting Ediligent searchF for thedisappeared among "?P units is making a false return, and therefore liable, if the "?Pis later found to actually have custody of the victim.

Initial ,essons

%ome of the lessons learned from the experience are the following;

The military has developed a template nationwideDarguing that the subjectvoluntarily surrendered to the military or preferred custody with the military. Thisscheme must be publicly exposed. Concise legal arguments must also be preparedto meet this very weak argument head on.

%ome 7TC judges who are not familiar with the rule, treat amparo like a habeascorpus petition or in some instances dismiss 4amparo$ cases even if they grant libertyto the subject. The %upreme Court explained during the -P forum on the writ that awrit is EissuedF once the court re9uires the respondent to file a 4return$. 6f the subjectwas ordered released the 4privilege of the writ$ was actually granted, and notdismissed. 6t maybe worthwhile to give a brief explanation on the amparo in theprefatory, and specifically state the above in the prayer including a prayer for a4temporary protection order$ in the custody of the family or a human rights group or institution.

"mparo decisions must be immediate, and handed down in open court, rather than through written decisions. Counsel for petitioners must immediately move inopen court for reconsideration from an unfavorable decision particularly if the basis is4voluntary custody$. "n appeal under rule 82 of the 7ules of Court may be filed withthe %upreme Court.2

S'ppo!t fo! the W!it

5 A !"#$ %$t&'($% %')*+))'", ", th$ ($))",) ($,$% &,% -#"-")$% )t$-) ."# (&/0$#) ') $', -#$-$% &,% /'(( $

%')t#'+t$% '!!$%'&t$(0 Th$ )&'% )t+%0 /'(( $ &)$% ", th$ #$)+(t) ". th$ NL "#&,'$% F"#+! &,% C&)$

C",.$#$,*$ ", th$ W#'t ". A!-" &,% H&$&) D&t& h$(% ", D$*$!$# 8 &t th$ S+(" H"t$(

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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. 6t is importantthat human rights lawyers must support the %upreme Court$s assertion of itsconstitutional powers to protect human rights including the promulgation of the ruleson the writ of amparo and habeas data. 6t is also important that human rightsadvocates help ensure that the writ of amparo becomes an effective tool in the battleagainst impunity. 6n this undertaking, the active participation of the victims, their families and human rights advocates in the 9uest for justice plays an important roleand should be pressed vigorously. The writ of amparo, or any rule for that matter, willalways be insufficient to stop institutionali:ed human rights violations without theinvolvement of the most important pillar of the justice systemDthe people .

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Colmenares.writ of Amparo