The Writ of Amparo; The Philippine Experience So Far_CD

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Copyright © 2012 Justice Adolfo S. Azcuna

ISBN 978-971-0361-08-3

Published by the

Supreme Court of the PhilippinesPadre Faura Street, Ermita 1000

Manila, Philippines

A special publicationof the Research, Publications and Linkages Office,

Philippine Judicial Academy, Supreme Court.

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SUPREME COURT OF THE PHILIPPINES

Hon. MARIA LOURDES P. A. SERENOChief Justice

ASSOCIATE JUSTICESHon. ANTONIO T. CARPIO

Hon. PRESBITERO J. VELASCO, Jr.

Hon. TERESITA J. LEONARDO-DE CASTRO

Hon. ARTURO D. BRION

Hon. DIOSDADO M. PERALTA

Hon. LUCAS P. BERSAMIN

Hon. MARIANO C. DEL CASTILLO

Hon. ROBERTO A. ABAD

Hon. MARTIN S. VILLARAMA, Jr.

Hon. JOSE P. PEREZ

Hon. JOSE C. MENDOZA

Hon. BIENVENIDO L. REYES

Hon. ESTELA M. PERLAS-BERNABE

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n November 12, 2012, retired Supreme Court Justice and PHILJAChancellor Adolfo S. Azcuna delivered his lecture on the topic “TheWrit of Amparo: The Philippine Experience So Far” before an augustbody of retired and incumbent members of the judiciary,government officials, the academe, representatives of PHILJA’sdevelopment partners, private practitioners, and law students, inconnection with his selection as the first recipient of the FoundingChancellor Emeritus Ameurfina A. Melencio Herrera Award for theMost Outstanding Professorial Lecturer. Justice Herrera and herfamily graced the occasion held at the PHILJA Training Center inTagaytay. This was a fitting opportunity to honor Justice Herreraon the occasion of her 90th birthday on May 11, 2012.

Justice Azcuna’s comprehensive lecture focuses on therecent development in the implementation of the Writ after theSupreme Court issued on September 25, 2007, its En Banc Resolutionin A.M. No. 07-9-12-SC on the Rule on the Writ of Amparo. Henarrates his first encounter with amparo while he was serving as amember of the 1971 Constitutional Convention. He had then readilygrasped the noble intent of amparo to protect citizens from specificacts violating their freedoms and had been moved to seek itsinclusion in the Philippine Constitution. As he continued to track thespread of amparo in other countries of the Western Hemisphere,he further saw the opportunity, as a member of the ConstitutionalCommission to draft the 1987 Constitution, to infuse the rule in thefundamental law of the land. His unwavering efforts to make thisprotection of rights available to Filipinos have earned him recognitionat different legal fora as the “Father of the Writ of Amparo.”

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PrefacePreface

Justice Azcuna takes his audience through a journey ofevents that introduced amparo into the realm of our nation’s legalconsciousness, such as when our political and military institutionsneeded to address the increasing number of extrajudicial killingsand enforced disappearances that threatened the fragile peace andorder situation in our country. He relates that, in due time, he joinedefforts with Justice Antonio T. Carpio in preparing a short draft ofthe rule on amparo which was submitted to the Chief Justice. Whattranspired five years later included an unprecedented NationalSummit on Extrajudicial Killings and Enforced Disappearances thathelped pave the way to the promulgation of the Rule on the Writof Amparo by the Supreme Court.

It is our hope that this publication will serve as anothertool to enhance the capacity of judges and other stakeholders inaddressing the phenomenon of extrajudicial killings and enforceddisappearances.

Sedfrey M. CandelariaHead, Research, Publications and Linkages Office

Philippine Judicial Academy

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ustice Adolfo S. Azcuna was born in Katipunan, Zamboanga Del Norte,on February 16, 1939, the son of Felipe B. Azcuna and Carmen S. Sevilla.He received the degree of Bachelor of Arts, with academic honors, at theAteneo de Manila in 1959 and the degree of Bachelor of Laws, cum laude,at the same institution in 1962. He was admitted to the Philippine Bar in1963, placing 4th in the 1962 Bar Examinations. He forthwith embarkedon a government career as Assistant Private Secretary of then PresidingJustice Jose P. Bengzon of the Court of Appeals in 1963 and, thereafter,upon the appointment of the latter to the Supreme Court in 1964, as hisPrivate Secretary.

Justice Azcuna taught International Law at his alma mater, Ateneode Manila, from 1967 to 1986. In 1982, he completed post-graduatestudies in International Law and Jurisprudence at the McGeorge Schoolof Law in Salzburg, Austria. Representing Zamboanga Del Norte, he waselected as member of the 1971 Constitutional Convention. Subsequently,he was appointed as a member of the 1986 Constitutional Commission.

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ProfileProfile

ADOLFO S. AZCUNAHolder, 2007 Metrobank Foundation

Professorial Chair in Internationaland Human Rights Law

Chancellor, Philippine Judicial AcademyAssociate Justice (Ret.),

Supreme Court of the Philippines

He held several government posts during the term of PresidentCorazon C. Aquino, first as Presidential Legal Counsel, then as PressSecretary and subsequently, as Presidential Spokesperson. In 1991,he was appointed chairperson of the Philippine National Bank. OnOctober 17, 2002, he was appointed Associate Justice of theSupreme Court by then President Gloria Macapagal-Arroyo.

In his opening remarks delivered at the Lecture Forum onthe Writ of Amparo before the RTC judges of the NCJR on October15, 2007, then Chief Justice Reynato S. Puno said, “In 1987, JusticeAdolf Azcuna, then one of the commissioners tasked by PresidentCorazon Aquino to draft the 1987 Constitution, embedded in itsbackbone a provision giving the Supreme Court the extra power topromulgate rules which would give life to the writ of amparo toprotect the constitutional rights of our people. Through his initiative,the rule-making power of the Supreme Court was expanded tocomplement the awesome power of Congress to make laws.Historically, it is the parliament that protects the rights of peoplethrough its lawmaking power. Justice Azcuna allowed the SupremeCourt to have a share in the exercise of this power by expanding itsrule-making power.”

He retired from the Supreme Court on February 16, 2009,and was appointed on June 1, 2009, as Chancellor of the PhilippineJudicial Academy, a post he holds at the moment.

Justice Azcuna’s major publications include “InternationalSales of Goods,” “Transnational Law Practice,” “International LawTeaching in the Philippines,” “Doing Business in the Philippines,”“Foreign Judgment [Monetary] Enforcements in the Philippines,”“Piercing the Veil of Corporate Entity: From Willets to Santos,”“ASEAN Conflict of Law,” “The Supreme Court and PublicInternational Law,” “International Humanitarian Law: A Field Guideto the Basics,” and his two Supreme Court books: “Seeing Reality inToday’s World” and “Seeking Justice in Today’s World.”

Justice Azcuna is married to Maria Asuncion Aunario,former Dean of Liberal Arts and Sciences at the St. Scholastica’sCollege. They are blessed with four children and four grandchildren.

1ContentsContents

PREFACEDean Sedfrey M. Candelariav

PROFILEChancellor Adolfo S. Azcunavii

PROGRAM1

OPENING REMARKSAssociate Justice Antonio T. Carpio3

INTRODUCTIONCourt AdministratorJose Midas P. Marquez

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RESPONSEAtty. Florentino M. Herrera III53

THE WRIT OF AMPARO:THE PHILIPPINE EXPERIENCE SO FARChancellor Adolfo S. Azcuna

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APPENDIX BThe Writ of Amparo:A Remedy to Enforce Fundamental RightsAdolfo S. Azcuna

CLOSING REMARKSChief Justice Hilario G. Davide, Jr. (Ret.)55

APPENDIX AThe Rule on the Writ of Amparo

Administrative Matter No. 07-9-12-SCRationaleAnnotation

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Supreme Court of the PhilippinesPhilippine Judicial Academy

in partnership with the

Children of PHILJA ChancellorEmeritus Justice Ameurfina Melencio Herrera

present the

Founding Chancellor EmeritusJustice Ameurfina Melencio Herrera

Award for the Most Outstanding Professorial Lecturer

November 12, 2012, Monday, 2:00 p.m.PTC Auditorium

PHILJA Training CenterTagaytay City

Program

DoxologyPhilippine National Anthem

Supreme Court HymnPHILJA Choir

Opening RemarksHonorable Antonio T. Carpio

Senior Associate Justice, Supreme Court of the Philippines

Musical NumberPHILJA Choir

Introduction of the LecturerHonorable Jose Midas P. Marquez

Court Administrator, Supreme Court of the Philippines

LECTURE

“The Writ of Amparo: The Philippine Experience So Far”

by

Justice Adolfo S. AzcunaChancellor, Philippine Judicial Academy

Award for the Most Outstanding Professorial Lecturer

endowed by the

Children of Chancellor Emeritus Justice Ameurfina Melencio Herrera

Presentation of Paper

Presentation of Endowment to theMost Outstanding Professorial Lecturer

Presentation of Plaques of Appreciation

ResponseAtty. Florentino M. Herrera III

Founding Partner, Herrera Teehankee and Cabrera Law Offices

Closing RemarksHonorable Hilario G. Davide, Jr. (Ret.)

Chief Justice, Supreme Court of the Philippines

Philippine Judiciary Hymn

Master of CeremoniesDean Sedfrey M. Candelaria

Head, Research, Publications, and Linkages Office, PHILJADean, Ateneo Law School

3THE WRIT OF AMPARO: THE PHILIPPINE EXPERIENCE SO FAR

Chief Justice Hilario Davide, Jr., my esteemed colleagues on the Court, other retired Justicesof the Court present here this afternoon, Justice Adolfo Azcuna, Justice Ameurfina A.Melencio Herrera, Atty. Florentino Herrera III, Court Administrator Jose Midas Marquez,Dean Sedfrey M. Candelaria, the Presiding Justice and Associate Justices of the Court ofAppeals, Sandiganbayan, and Court of Tax Appeals; the faculty and officials of the PhilippineJudicial Academy, officials of the Supreme Court; judges of first and second level courts; myco-workers in the judiciary and in government; members of the Bar; fellow students of thelaw; friends – good afternoon to everyone.

I welcome you all to this first-ever lecture – The Founding Chancellor Emeritus JusticeAmeurfina Melencio Herrera Award for the Most Outstanding Professorial Lecturer. Thisannual lecture is endowed by the children of Justice Melencio Herrera, the foundingchancellor of the Philippine Judicial Academy. On behalf of the Court and PHILJA, I thankthe Children of Justice Melencio Herrera for this generous endowment.

Our distinguished lecturer this afternoon, Justice and PHILJA Chancellor Adolfo S.Azcuna, or Justice Adolf as we fondly call him, has a lifelong passion for the Writ of Amparo.For the longest time Justice Adolf has been the foremost advocate for the adoption of theWrit of Amparo in the Philippines. In 1971, as a youthful member of the 1971 ConstitutionalConvention, then ConCon Delegate Adolf filed a resolution for the adoption of the Writ ofAmparo in the proposed Constitution. Well, the members of the 1971 ConstitutionalConvention simply ignored Delegate Adolf’s resolution, and the idea of the Writ of Amparonever entered the consciousness of the legal community. That was more than 40 years ago,when I was still a freshman in law school.

In 1986, as a middle-aged member of the Constitutional Commission, thenCommissioner Adolf filed not one, not two but three resolutions for the adoption of theWrit of Amparo in the proposed Constitution. The first resolution was to provide for aconstitutional writ of amparo, the second to provide judicial review of violations of theConstitution, and the third to provide judicial review of the exercise of emergency powersby the President. The members of the 1986 Convention simply ignored Commissioner Adolf’s

Opening Remarks Associate Justice Antonio T. Carpio

4 OPENING REMARKS I ASSOCIATE JUSTICE ANTONIO T. CARPIO

second and third resolutions. However, the first resolution gained traction, not expressly asthe writ of amparo, but as a rule-making power of the Supreme Court. Nevertheless, whatcame out was of tectonic magnitude just the same.

Justice Adolf was able to insert a new provision in Section 5(5), Article VIII on theJudiciary. As explained by Commissioner Roberto Concepcion – the former Chief Justice –in his response to a query by Commissioner Fely Aquino during the deliberations of theConstitutional Convention:

x x x if the Commissioner will go over Section 7(5) [eventually Section 5(5),Article VIII of the Constitution], she will notice that this provision says:‘Promulgate rules concerning the protection and enforcement of constitutionalrights x x x.’ Note also that this is the first part of the paragraph. This wasintroduced upon the request of Commissioner Azcuna in order to stress thatconstitutional rights are not merely declaratory but also enforceable. That iswhy this phrase which did not appear in the 1973 Constitution is an innovation.

What is the nature and meaning of this innovative provision, which Justice Adolfsuccessfully inserted in the 1987 Constitution? The answer to this question goes back 171years ago, to what Manuel Crescencio Rejon inserted in the 1841 Constitution of theindependent State of Yucatan in Mexico. Manuel Rejon is acknowledged in legal history asthe originator or creator of the Writ of Amparo. As drafter of the 1841 Yucatan Constitution,Manuel Rejon wrote in Article 62 of the Yucatan Constitution that a citizen has the right to‘amparo,’ that is, protection from the Supreme Court of Yucatan when his constitutionalright is violated by the government. In short, the writ of amparo protects the constitutionalrights of a citizen, making all constitutional rights not only declaratory but also judiciallyenforceable. In the Yucatan Constitution, the Writ of Amparo was self-executory, judiciallyenforceable without need of any implementing legislation.

In 1847, when a republican Mexico re-adopted its 1824 Constitution, it also includedthe Writ of Amparo as an amendment to the 1824 Constitution, borrowing from ManuelRejon’s 1841 Yucatan Constitution. The Writ of Amparo in the Mexican Constitution protectedconstitutional rights with a difference. The Writ of Amparo in the 1847 Amendment [to the1824 Mexico Constitution], as well as the Writ of Amparo in the later 1857 MexicanConstitution, was not self-executory but needed implementing legislation, unlike the Writ ofAmparo in the Yucatan Constitution, which was self-executory. However, what is importantis that the Writ of Amparo in both the Yucatan and Mexican Constitutions was writtenexpressly to protect constitutional rights of citizens, so that constitutional rights are notonly declaratory but also judicially enforceable.

Now we can see clearly what Justice Adolf intended when he successfully insertedin Section 5(5), Article VIII of the 1987 Constitution the innovative provision that the SupremeCourt shall have the power to promulgate rules for the protection and enforcement of


constitutional rights. Justice Adolf actually inserted the Writ of Amparo in the 1987Constitution without naming it the Writ of Amparo. In fact, Commissioner Suarez expresslyadmitted this during the ConCom deliberations when he stated:

I remember that one of our distinguished colleagues, Commissioner Azcuna,precisely submitted for the consideration of the Committee on the Judiciarythe consideration of the so-called writ of amparo, meaning, that one has theright to demand the enforcement of a constitutional right. This is now aconstitutional right.

That the phrase “Writ of Amparo” does not appear in the 1987 Constitution isimmaterial. The Writ of Amparo by any other name, or even nameless, with the substancethe same, is still the Writ of Amparo. Undeniably, the power of the Supreme Court to protectand enforce constitutional rights under Section 5(5), Article VIII of the Constitution is thePhilippine version of the Writ of Amparo. In an article he wrote in the Ateneo Law Journal in1993, or 14 years before the Supreme Court promulgated the Amparo Rule in 2007, JusticeAdolf stated:

The Philippine Constitution provides the basis for the Philippine writ of amparo,by introducing a new provision in Article VIII, Section 5(5), that empowers theSupreme Court to: “Promulgate rules concerning the protection andenforcement of constitutional rights x x x.” x x x.

The Writ of Amparo in the 1987 Constitution is practically the same as the Writ ofAmparo in the Yucatan and Mexican Constitutions. They all protect constitutional rights, sothat constitutional rights are not only declaratory but also judicially enforceable. The onlysignificant difference is this: the Writ of Amparo in the Yucatan Constitution was self-executory, under the Mexican Constitution it needed implementing legislation, and in our1987 Constitution it needs an implementing rule from the Supreme Court.

Justice Antonio T. Carpiodelivers the opening

remarks at the PHILJAFounding Chancellor

Emeritus Justice AmeurfinaMelencio Herrera Award

for the Most OutstandingProfessorial Lecturer held

on November 12, 2012, atthe PHILJA Training Center,

Tagaytay City.

6 OPENING REMARKS I ASSOCIATE JUSTICE ANTONIO T. CARPIO

Of course, we all know that when the Puno Court adopted in October 2007 the Ruleon the Writ of Amparo, Justice Adolf, together with then Chief Justice Reynato Puno, was aleading member of the committee that drafted the Amparo Rule. For his lifelong advocacyfor the Writ of Amparo, and most importantly, for actually introducing in the 1987Constitution the Writ of Amparo, I can say with confidence that Justice Adolf is truly thefather of the Writ of Amparo in the Philippines.

In 1991, Justice Adolf, as the Bar examiner in Political Law, asked the question: Whatis the Writ of Amparo? In 1991, just like almost all the bar examinees then, I would haveanswered, I have not yet met, nor been invited or summoned by, Amparo. Now I knowbetter – the Writ of Amparo is the power of the Supreme Court to protect and enforceconstitutional rights, as introduced by ConCom Commissioner Adolf Azcuna in Section 5(5),Article VIII of the 1987 Constitution.

The present Amparo Rule is only the start of what could be a series of SupremeCourt promulgated rules to protect all constitutional rights enshrined in the Constitution.What Justice Adolf inserted in the Constitution is not only for the protection of the right tolife, liberty, or security in cases of extralegal killings or enforced disappearances, but moresignificantly, for the protection of all constitutional rights without qualification. Thus, theSupreme Court, through its rule-making power, can apply the Amparo provision in Section5(5), Article VIII of the Constitution to other rights, whether civil, political, social or economicrights, as long as these rights are declared in the Constitution. That is why I say that theAmparo provision introduced by Justice Adolf in the 1987 Constitution has tectonicramifications on Philippine society.

Today, five years after the adoption of the present Amparo Rule by the SupremeCourt, and almost 25 years after the insertion of the innovative Amparo provision in the1987 Constitution, Justice Adolf will report to us on the Philippine experience, so far, on hislifelong love affair with the Writ of Amparo. I am sure we will all be enlightened.

Thank you and welcome once again to this lecture.


Amparo first gained popularity, or infamy, during the 1991 Bar Examinations. “What isthe Writ of Amparo and what, if any, is the basis for it in the Philippine Constitution?”was the first question of the first exam of the 1991 Bar Examinations. Of course, theexaminer then in Political Law was no less than our awardee-lecturer today, JusticeAdolfo S. Azcuna, or simply JASA to his colleagues, friends, and even staff. Incidentally,the Chairperson of the 1991 Bar Examinations was then Associate Justice, later ChiefJustice, Hilario G. Davide, Jr., who will be delivering the closing remarks later.

In his address before the 2004 graduates of the Ateneo de Manila UniversityCollege of Law, Justice Azcuna narrated that when he was formulating the questions forthe 1991 Political Law Bar Exams, he felt that he had run out of questions after questionNo. 49, and so he decided to throw in a question on the writ of amparo as question No.50, almost sure that the Chairperson of the Bar Exams would not give it much attention.1

However, Chief Justice Davide chose it and even made it question No. 1(A),surprising a good number of the bar examinees. Justice Azcuna recounted that “onlyabout 20 percent managed a correct answer, having possibly read a speech of thenChief Justice Marcelo Fernan that mentioned it, or the book of Professor de Leon thatalso dealt with it. The rest either left it blank or said it was the writ of habeas corpus.”

Two years later, in 1993, after amparo became a huge buzz in the academe andthe legal profession, Justice Azcuna’s article, “The Writ of Amparo: A Remedy to EnforceFundamental Rights” was published in the Ateneo Law Journal. It has now become thesource of various studies on amparo, and was even cited in the Supreme Court’sAnnotation on the Rule of Writ of Amparo.

IntroductionCA Jose Midas P. Marquez

1 Justice Adolfo S. Azcuna, A Field Guide to a New Kind of Lawyering, delivered at theCommencement Exercises, Ateneo de Manila University School of Law, April 25, 2004,Meralco Theater, Pasig City.

8 INTRODUCTION I COURT ADMINISTRATOR JOSE MIDAS P. MARQUEZ

Some attribute the promulgation of the Amparo Rule to then Chief Justice ReynatoS. Puno and consider Chief Justice Puno as the Father of Amparo. If that is so, we mightas well call Justice Azcuna the Grandfather of Amparo, for it was Justice Azcuna whofirst introduced the concept of amparo into the Philippine legal system as a flexibleremedy to enforce and protect constitutional rights, first during the 1971 ConstitutionalConvention where he was elected as a young delegate at 32 from Zamboanga del Norte,and again in the 1986 Constitutional Commission where he was appointed as acommissioner.2

Thus, in his speech “The Legacy of a Legal Luminary,” Chief Justice Puno disclosedthat the Court “leaned heavily on the foreknowledge of Justice Azcuna in drafting therule on the Writ of Amparo for it was he who first introduced this writ of liberty to themainstream of Philippine legal thought.”3

In another speech, Chief Justice Puno said that Justice Azcuna, as a member ofthe 1986 Constitutional Commission tasked to draft the 1987 Constitution, “embeddedin its backbone a provision giving the Supreme Court the extra power to promulgaterules which would give life to the writ of amparo to protect the constitutional rights ofour people. Through his initiative, the rule-making power of the Supreme Court wasexpanded to complement the awesome power of Congress to make laws. Historically, itis the parliament that protects the rights of people through its lawmaking power. JusticeAzcuna allowed the Supreme Court to have a share in the exercise of this power byexpanding its rule-making power.”4

Hence, in the initial meeting of the Supreme Court Committee on the Revision ofRules to draft the rules on amparo, Chief Justice Puno himself emphatically called JusticeAzcuna as “the father of amparo.”5

A native of Katipunan, Zamboanga del Norte, Justice Azcuna received his Bachelorof Arts degree, with academic honors, from the Ateneo de Manila in 1959, and obtained

2 See Felipe Enrique M. Gozon, Jr. and Theoben Jerdan C. Orosa, Watching the Watchers: ALook into the Drafting of the Writ of Amparo, PHILIPPINE LAW JOURNAL, Vol. 82, No. 4 (2008)

3 Annie A. Laborte and Gleo Sp. Guerra, Justice Adolfo S. Azcuna: Love is the Secret, BenchmarkOnline February 2009 <http://sc.judiciary.gov.ph/publications/benchmark/2009/02/020903.php>.

4 Chief Justice Reynato S. Puno, Opening Remarks on Lecture Forum on the Rule on the Writof Amparo <http://ca.judiciary.gov.ph/index.php?action=mnuactual_contents&ap=j60130&p=y>.

5 Ibid.


his Bachelor of Laws degree, cum laude, from the same institution in 1962. He thenplaced 4th in the 1962 Bar Examinations. Among those who topped the 1962 Bar Examswere San Beda Law Dean Virgilio B. Jara, No. 5; the late Haydee B. Yorac, No. 8; andnoted constitutionalist Fr. Joaquin G. Bernas, No. 9. Incidentally, since Chief JusticePuno is not around anyway, because of a prior commitment, he also took the 1962 BarExams.

Justice Azcuna right away joined the government in 1963 as a law clerk of thenCourt of Appeals Presiding Justice Jose P. Bengzon. He then joined PJ Bengzon when thelatter was appointed to the Supreme Court a year later.

Justice Azcuna also taught International Law at his alma mater for almost twodecades, from 1967 to 1986. In 1982, he completed his post-graduate studies inInternational Law and Jurisprudence at the Salzburg University in Austria.

Justice Azcuna held other sensitive government posts. In 1986, during the termof President Corazon C. Aquino, he was first Presidential Legal Counsel, then PressSecretary, and eventually Presidential Spokesperson. It was during this time that hemet with Chinese leader Deng Xiaoping, which he considers “historic” and as one of hisbest experiences.

In 1991, he was appointed Chairperson of the Philippine National Bank, and in2002, Associate Justice of the Supreme Court. In 2009, upon retiring from the Supreme

Court AdministratorJose Midas P. Marquez

introduces the Speaker atthe PHILJA FoundingChancellor Emeritus

Justice AmeurfinaMelencio Herrera Award

for the Most OutstandingProfessorial Lecturer

held on November 12,2012, at the PHILJA

Training Center,Tagaytay City.

10 INTRODUCTION I COURT ADMINISTRATOR JOSE MIDAS P. MARQUEZ

Court after reaching the mandatory age of 70, Justice Azcuna was appointed as thesecond Chancellor of the Philippine Judicial Academy.

A photography afficionado, Justice Azcuna has a huge collection of importantvintage cameras, including Leicas and Nikons, and loves to take pictures. Some of hisworks have in fact been exhibited abroad.

A certified linguist, Justice Azcuna can speak German, Spanish, and French, inaddition to English, Filipino, and of course Chavacano. He likes to read, loves to eat, andenjoys hot chocolate. An Obama fan and a mall habitué, he updates his Facebook pageand checks on others’ regularly, and also tweets every so often.

A loving husband to Mariasun for almost half a century, doting father to Rhinaand Alvi, Bea, Agoo and Andy, and Miguel, and an adoring grandfather to Angelo, Andres,Luci and Ari, Justice Azcuna does yoga and still manages to do a headstand to improvehis blood circulation.

TLC, a Discovery company, describes aquarian Justice Azcuna, who was bornon February 16, as easygoing and generous. He gives freely of his time and talents, andhas a seeming laid-back attitude that endears him to everyone. But despite a pleasantfacade, he is a perfectionist. When he involves himself in a project, he gives it everything.Known for his ability to see the bigger picture, he is equally at home with details. His isa temperament that wins people’s affection and respect.

In fine, there is no person more fitting to deliver a lecture on the Writ of Amparo,which has been described as “a tool that gives voice to preys of silent guns and prisonersbehind secret walls,”6 other than Justice Azcuna.

Friends, ladies and gentlemen, let us all please welcome the first awardee of thePHILJA Founding Chancellor Emeritus Justice Ameurfina Melencio Herrera Award forthe Most Outstanding Professorial Lecturer, retired Supreme Court Justice and PHILJAChancellor, Justice Adolfo S. Azcuna.

6 Secretary of National Defense v. Manalo, G.R. No. 180906, October 7, 2008, 568 SCRA 1.


12 LECTURE I CHANCELLOR ADOLFO S. AZCUNA

I first learned of the Writ of Amparo from an article in an international law journal by theMexican professor Hector Fiz Zamudio. This was around the time of the 1971 ConstitutionalConvention in which I represented, with two others, the lone district of Zamboanga delNorte as an elected Delegate.

From Fiz Zamudio’s article, I learned what I later recounted in an article in the AteneoLaw Journal and which is best summarized in the first decision of the Philippine SupremeCourt on amparo, Secretary of National Defense v. Manalo.1 Chief Justice Reynato S. Puno,speaking for a unanimous Court, laid out the nature and origin of amparo, thus:

The adoption of the Amparo Rule surfaced as a recurring proposition in therecommendations that resulted from a two-day National Consultative Summiton Extrajudicial Killings and Enforced Disappearances sponsored by the Courton July 16–17, 2007. The Summit was “envisioned to provide a broad and fact-based perspective on the issue of extrajudicial ki llings and enforceddisappearances,” hence “representatives from all sides of the political and socialspectrum, as well as all the stakeholders in the justice system” participated inmapping out ways to resolve the crisis.

On October 24, 2007, the Court promulgated the Amparo Rule “ inthe light of the prevalence of extralegal killings and enforced disappearances.”It was an exercise for the first time of the Court’s expanded power topromulgate rules to protect our people’s constitutional rights, which made itsmaiden appearance in the 1987 Constitution in response to the Filipinoexperience of the martial law regime. As the Amparo Rule was intended toaddress the intractable problem of “extralegal ki llings” and “enforceddisappearances,” its coverage, in its present form, is confined to these twoinstances or to threats thereof. “Extralegal killings” are “killings committed

The Writ of Amparo:The Philippine Experience So far∗

Chancellor Adolfo S. Azcuna

∗ Philippine Copyright © 2012 by Justice Adolfo S. Azcuna.1 G.R. No. 180906, October 7, 2008, 568 SCRA 1.


without due process of law, i.e., without legal safeguards or judicialproceedings.” On the other hand, “enforced disappearances” are “attended bythe following characteristics: an arrest, detention or abduction of a person bya government official or organized groups or private individuals acting withthe direct or indirect acquiescence of the government; the refusal of the Stateto disclose the fate or whereabouts of the person concerned or a refusal toacknowledge the deprivation of liberty which places such persons outside theprotection of law.”

The writ of amparo originated in Mexico. Amparo literally means“protection” in Spanish. In 1837, de Tocqueville’s Democracy in Americabecame available in Mexico and stirred great interest. Its description of thepractice of judicial review in the U.S. appealed to many Mexican jurists. One ofthem, Manuel Crescencio Rejón, drafted a constitutional provision for his nativestate, Yucatan, which granted judges the power to protect all persons in theenjoyment of their constitutional and legal rights. This idea was incorporatedinto the national constitution in 1847, viz:

The federal courts shall protect any inhabitant of the Republic in theexercise and preservation of those rights granted to him by thisConstitution and by laws enacted pursuant hereto, against attacksby the Legislative and Executive powers of the federal or stategovernments, limiting themselves to granting protection in thespecific case in litigation, making no general declaration concerningthe statute or regulation that motivated the violation.

Since then, the protection has been an important part of Mexicanconstitutionalism. If, after hearing, the judge determines that a constitutionalright of the petitioner is being violated, he orders the official, or the official’ssuperiors, to cease the violation and to take the necessary measures to restorethe petitioner to the full enjoyment of the right in question. Amparo thuscombines the principles of judicial review derived from the U.S. with thelimitations on judicial power characteristic of the civil law tradition whichprevails in Mexico. It enables courts to enforce the constitution by protectingindividual rights in particular cases, but prevents them from using this powerto make law for the entire nation.

The writ of amparo then spread throughout the Western Hemisphere,gradually evolving into various forms, in response to the particular needs ofeach country. It became, in the words of a justice of the Mexican FederalSupreme Court, one piece of Mexico’s self-attributed “task of conveying to theworld’s legal heritage that institution which, as a shield of human dignity, herown painful history conceived.” What began as a protection against acts oromissions of public authorities in violation of constitutional rights later evolvedfor several purposes:


(1) amparo libertad for the protection of personal freedom,equivalent to the habeas corpus writ;

(2) amparo contra leyes for the judicial review of the constitutionalityof statutes;

(3) amparo casacion for the judicial review of the constitutionalityand legality of a judicial decision;

(4) amparo administrativo for the judicial review of administrativeactions; and

(5) amparo agrario for the protection of peasants’ rights derived fromthe agrarian reform process.

In Latin American countries, except Cuba, the writ of amparo has beenconstitutionally adopted to protect against human rights abuses especiallycommitted in countries under military juntas. In general, these countriesadopted an all-encompassing writ to protect the whole gamut of constitutionalrights, including socio-economic rights. Other countries like Colombia, Chile,Germany and Spain, however, have chosen to limit the protection of the writof amparo only to some constitutional guarantees or fundamental rights.

In the Philippines, while the 1987 Constitution does not explicitlyprovide for the writ of amparo, several of the above amparo protections areguaranteed by our charter. The second paragraph of Article VIII, Section 1 ofthe 1987 Constitution, the Grave Abuse Clause, provides for the judicial power“to determine whether or not there has been a grave abuse of discretionamounting to lack or excess of jurisdiction on the part of any branch orinstrumentality of the Government.” The Clause accords a similar generalprotection to human rights extended by the amparo contra leyes, amparocasacion, and amparo administrativo. Amparo libertad is comparable to theremedy of habeas corpus found in several provisions of the 1987 Constitution.The Clause is an offspring of the U.S. common law tradition of judicial review,which finds its roots in the 1803 case of Marbury v. Madison.

While constitutional rights can be protected under the Grave AbuseClause through remedies of injunction or prohibition under Rule 65 of theRules of Court and a petition for habeas corpus under Rule 102, these remediesmay not be adequate to address the pestering problem of extralegal killingsand enforced disappearances. However, with the swiftness required to resolvea petition for a writ of amparo through summary proceedings and theavailability of appropriate interim and permanent reliefs under the AmparoRule, this hybrid writ of the common law and civil law traditions—borne outof the Latin American and Philippine experience of human rights abuses—offers


a better remedy to extralegal killings and enforced disappearances and threatsthereof. The remedy provides rapid judicial relief as it partakes of a summaryproceeding that requires only substantial evidence to make the appropriatereliefs available to the petitioner; it is not an action to determine criminal guiltrequiring proof beyond reasonable doubt, or liability for damages requiringpreponderance of evidence, or administrative responsibility requiringsubstantial evidence that will require full and exhaustive proceedings.

The writ of amparo serves both preventive and curative roles inaddressing the problem of extralegal killings and enforced disappearances. Itis preventive in that it breaks the expectation of impunity in the commissionof these offenses; it is curative in that it facilitates the subsequent punishmentof perpetrators as it will inevitably yield leads to subsequent investigation andaction. In the long run, the goal of both the preventive and curative roles is todeter the further commission of extralegal killings and enforced disappearances.

I proposed before the Convention the adoption of amparo as a remedy to enforcethe Social and Economic Rights which were in turn proposed by Delegates Roco and othersunder a Bill of Social and Economic Rights in addition to the traditional Bill of Rights (Civiland Political).

This was not to be, as the idea of a separate Bill of Social and Economic Rightsincorporating a writ to amparo was not adopted by the Convention.

Subsequently, 15 years later, I again had a chance to insert amparo in the Bill ofRights, as one of the 48 members of the Constitutional Commission appointed by PresidentCorazon C. Aquino to draft a Charter after the EDSA People Power Revolution swept awaythe 1971 Constitution as amended by President Marcos.

This time, however, upon the sage counsel of the late Chief Justice Roberto C.Concepcion, I proposed to put it simply as among the powers of the Supreme Court inproviding for the rules of court.

This strategy worked and the proposal was approved and is now Article VIII, Section5, subsection 5 of the Constitution:

x x x x

SEC. 5. The Supreme Court shall have the following powers:

x x x x

(5) Promulgate rules concerning the protection and enforcement ofconstitutional rights, pleading, practice, and procedure in all courts, the


admission to the practice of law, the integrated bar, and legal assistanceto the under-privileged. Such rules shall provide a simplified andinexpensive procedure for the speedy disposition of cases, shall be uniformfor all courts of the same grade, and shall not diminish, increase, or modifysubstantive rights. Rules of procedure of special courts and quasi-judicialbodies shall remain effective unless disapproved by the Supreme Court.

It is this provision that was asked in the 1991 Political Law Bar Examinations whereI was the examiner: “What is the Writ of Amparo and what if any is the basis for it in thePhilippine Constitution?”

Amparo, then, is a special Constitutional remedy provided for by the Constitution toenforce and protect rights other than the right of physical liberty that is already covered bythe writ of habeas corpus. Its basis is the new provision on the rule-making power of theSupreme Court quoted above.

For over 20 years, however, the Supreme Court saw no need to exercise this newpower. It felt that there were sufficient existing remedies such as prohibition, mandamus,certiorari, injunction and the like, to achieve the same purpose.

Then, in 2007, a spate of extrajudicial killings and enforced disappearances plaguedthe country. We were pilloried all over the world and the United Nations sent a specialenvoy to investigate the Philippine situation. As a result, the Supreme Court decided to acton the crisis. It designated a number of courts to try extrajudicial killings and enforceddisappearances. For these courts, Justice Antonio T. Carpio and I drafted a short Rule onAmparo and submitted it to the Chief Justice. It was, however, decided to call anunprecedented National Summit as mentioned in the Mariano brothers case. The presentRule on Amparo was thereafter adopted effective on October 24, 2007.

The Rule is fairly straightforward: It has 27 sections. The Sections provide for thenature of the remedy, who can file an action to get it, how this is done, where it is filed, whatthe judge/Justice does after receiving it, the service on the respondent, the reply, the summaryhearing, the interim reliefs, the defenses available, the judgment and the privilege of thewrit, the appeal and other incidental matters.

After five years of amparo, what is the score?

The record of the Court Administrator gives the following picture:









TOTAL CASES FILED PER COURT


TOTAL PETITIONS PER REGION


STATUS OF CASES

ARCHIVED

DECID

ED

DISMISS

ED

PENDIN

GPR

OVISIONALL

Y

DISMISS

EDPE

TITIO

N FOR

WRIT

OF AM

PARO

PARTIA

LLY

GRANTED

PETIT

ION

WITH

DRAWN

RE-RAFF

LED TO

OTHER

BRANCHSU

SPEN

DED

PROCEE

DINGS


The Supreme Court, however, is the focus of this study since it is the source of theRule and we are interested in how the Rule has played out in its decisions so far.

The first and landmark case is Secretary of National Defense v. Manalo earliermentioned.

Simply, the facts are:

Section 1 of the Rule on the Writ of Amparo provides for the followingcauses of action, viz:

SECTION 1. Petition. – The petition for a writ of amparo is a remedyavailable to any person whose right to life, liberty and security isviolated or threatened with violation by an unlawful act or omissionof a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforceddisappearances or threats thereof. (emphasis supplied)

Sections 17 and 18, on the other hand, provide for the degree of proofrequired, viz:

SEC. 17. Burden of Proof and Standard of Diligence Required. – Theparties shall establish their claims by substantial evidence.

x x x x

SEC. 18. Judgment. – x x x If the allegations in the petition are provenby substantial evidence, the court shall grant the privilege of thewrit and such reliefs as may be proper and appropriate; otherwise,the privilege shall be denied. (emphases supplied)

Substantial evidence has been defined as such relevant evidence as areasonable mind might accept as adequate to support a conclusion.

After careful perusal of the evidence presented, we affirm the findingsof the Court of Appeals that respondents were abducted from their houses inSitio Muzon, Barangay Buhol na Mangga, San Ildefonso, Bulacan, on February14, 2006, and were continuously detained until they escaped on August 13,2007. The abduction, detention, torture, and escape of the respondents werenarrated by respondent Raymond Manalo in a clear and convincing manner.His account is dotted with countless candid details of respondents’ harrowingexperience and tenacious will to escape, captured through his different sensesand etched in his memory. A few examples are the following: “Sumilip ako saisang haligi ng kamalig at nakita kong sinisilaban si Manuel.” “(N)ilakasan ngmga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinigko ang hiyaw o ungol ni Manuel.” “May naiwang mga bakas ng dugo habang


hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas.”“Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para tanggalinang mga kadena.” “Tinanong ko sa isang kapit-bahay kung paano akomakakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae nanakatira sa malapit na lugar.”

We affirm the factual findings of the appellate court, largely based onrespondent Raymond Manalo’s affidavit and testimony, viz:

x x x the abduction was perpetrated by armed men who weresufficiently identified by the petitioners (herein respondents) to bemilitary personnel and CAFGU auxiliaries. Raymond recalled that thesix armed men who barged into his house through the rear doorwere military men based on their attire of fatigue pants and armyboots, and the CAFGU auxiliaries, namely: Michael de la Cruz,Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all membersof the CAFGU and residents of Muzon, San Ildefonso, Bulacan, andthe brothers Randy Mendoza and Rudy Mendoza, also CAFGUmembers, served as lookouts during the abduction. Raymond wassure that three of the six military men were Ganata, who headed theabducting team, Hilario, who drove the van, and George. Subsequentincidents of their long captivity, as narrated by the petitioners,validated their assertion of the participation of the elements of the7th Infantry Division, Philippine Army, and their CAFGU auxiliaries.

We are convinced, too, that the reason for the abductionwas the suspicion that the petitioners were either members orsympathizers of the NPA, considering that the abductors were lookingfor Ka Bestre, who turned out to be Rolando, the brother ofpetitioners.

The efforts exerted by the Military Command to look intothe abduction were, at best, merely superficial. The investigation ofthe Provost Marshall of the 7th Infantry Division focused on the one-sided version of the CAFGU auxiliaries involved. This one-sidednessmight be due to the fact that the Provost Marshall could delve onlyinto the participation of military personnel, but even then the ProvostMarshall should have refrained from outrightly exculpating theCAFGU auxiliaries he perfunctorily investigated x x x.

Gen. Palparan’s participation in the abduction was alsoestablished. At the very least, he was aware of the petitioners’captivity at the hands of men in uniform assigned to his command. Infact, he or any other officer tendered no controversion to the firmclaim of Raymond that he (Gen. Palparan) met them in person in asafehouse in Bulacan and told them what he wanted them and theirparents to do or not to be doing. Gen. Palparan’s direct and personalrole in the abduction might not have been shown but his knowledgeof the dire situation of the petitioners during their long captivity atthe hands of military personnel under his command bespoke of hisindubitable command policy that unavoidably encouraged and notmerely tolerated the abduction of civilians without due process oflaw and without probable cause.


In the habeas proceedings, the Court, through the formerSpecial Sixth Division (Justices Buzon, chairman; Santiago-Lagman,Sr., member; and Romilla-Lontok, Jr., member/ponente) found noclear and convincing evidence to establish that M/Sgt. Rizal Hilariohad anything to do with the abduction or the detention. Hilario’sinvolvement could not, indeed, be then established after EvangelineFrancisco, who allegedly saw Hilario drive the van in which thepetitioners were boarded and ferried following the abduction, didnot testify (See the decision of the habeas proceedings at rollo, p.52).

However, in this case, Raymond attested that Hilario drovethe white L-300 van in which the petitioners were brought awayfrom their houses on February 14, 2006. Raymond also attested thatHilario participated in subsequent incidents during the captivity ofthe petitioners, one of which was when Hilario fetched them fromFort Magsaysay on board a Revo and conveyed them to a detachmentin Pinaud, San Ildefonso, Bulacan, where they were detained for atleast a week in a house of strong materials (Exhibit D, rollo, p. 205)and then Hilario (along with Efren) brought them to Sapang, SanMiguel, Bulacan on board the Revo, to an unfinished house insidethe compound of Kapitan where they were kept for more or lessthree months (Exhibit D, rollo, p. 205). It was there where thepetitioners came face to face with Gen. Palparan. Hilario and Efrenalso brought the petitioners one early morning to the house of thepetitioners’ parents, where only Raymond was presented to theparents to relay the message from Gen. Palparan not to join anymore rallies. On that occasion, Hilario warned the parents that theywould not again see their sons should they join any rallies todenounce human rights violations (Exhibit D, rollo, pp. 205–206).Hilario was also among four Master Sergeants (the others beingArman, Ganata and Cabalse) with whom Gen. Palparan conversed onthe occasion when Gen. Palparan required Raymond to take themedicines for his health (Exhibit D, rollo, p. 206). There were otheroccasions when the petitioners saw that Hilario had a direct hand intheir torture.

It is clear, therefore, that the participation of Hilario in theabduction and forced disappearance of the petitioners wasestablished. The participation of other military personnel like Arman,Ganata, Cabalse and Caigas, among others, was similarly established.

x x x x

As to the CAFGU auxiliaries, the habeas Court found thempersonally involved in the abduction. We also do, for, indeed, theevidence of their participation is overwhelming.

We reject the claim of petitioners that respondent Raymond Manalo’sstatements were not corroborated by other independent and credible piecesof evidence. Raymond’s affidavit and testimony were corroborated by theaffidavit of respondent Reynaldo Manalo. The testimony and medical reportsprepared by forensic specialist Dr. Molino, and the pictures of the scars left by


the physical injuries inflicted on respondents, also corroborate respondents’accounts of the torture they endured while in detention. Respondent RaymondManalo’s familiarity with the facilities in Fort Magsaysay such as the “DTU,” asshown in his testimony and confirmed by Lt. Col. Jimenez to be the “DivisionTraining Unit,” firms up respondents’ story that they were detained for sometime in said military facility.

In Ortiz v. Guatemala, a case decided by the Inter-AmericanCommission on Human Rights, the Commission considered similar evidence,among others, in finding that complainant Sister Diana Ortiz was abductedand tortured by agents of the Guatemalan government. In this case, SisterOrtiz was kidnapped and tortured in early November 1989. The Commission’sfindings of fact were mostly based on the consistent and credible statements,written and oral, made by Sister Ortiz regarding her ordeal. These statementswere supported by her recognition of portions of the route they took whenshe was being driven out of the military installation where she was detained.She was also examined by a medical doctor whose findings showed that the111 circular second degree burns on her back and abrasions on her cheekcoincided with her account of cigarette burning and torture she suffered whilein detention.

With the secret nature of an enforced disappearance and the tortureperpetrated on the victim during detention, it logically holds that much of theinformation and evidence of the ordeal will come from the victims themselves,and the veracity of their account will depend on their credibility and candidnessin their written and/or oral statements. Their statements can be corroboratedby other evidence such as physical evidence left by the torture they sufferedor landmarks they can identify in the places where they were detained. Wherepowerful military officers are implicated, the hesitation of witnesses to surfaceand testify against them comes as no surprise.

The Supreme Court sustained the Court of Appeals in granting the privilege of thewrit of amparo. The Court resoundingly set forth its rationale:

We now come to the right of the respondents to the privilege of the writ ofamparo. There is no quarrel that the enforced disappearance of bothrespondents Raymond and Reynaldo Manalo has now passed as they haveescaped from captivity and surfaced. But while respondents admit that theyare no longer in detention and are physically free, they assert that they are not“free in every sense of the word” as their “movements continue to be restrictedfor fear that people they have named in their Judicial Affidavits and testifiedagainst (in the case of Raymond) are still at large and have not been heldaccountable in any way. These people are directly connected to the ArmedForces of the Philippines and are, thus, in a position to threaten respondents’rights to life, liberty and security” (emphasis supplied). Respondents claimthat they are under threat of being once again abducted, kept captive or evenkilled, which constitute a direct violation of their right to security of person.


Elaborating on the “right to security, in general,” respondents pointout that this right is “often associated with liberty”; it is also seen as an“expansion of rights based on the prohibition against torture and cruel andunusual punishment.” Conceding that there is no right to security expresslymentioned in Article III of the 1987 Constitution, they submit that their rights“to be kept free from torture and from incommunicado detention and solitarydetention places fall under the general coverage of the right to security ofperson under the writ of amparo.” They submit that the Court ought to give anexpansive recognition of the right to security of person in view of the StatePolicy under Article II of the 1987 Constitution which enunciates that, “TheState values the dignity of every human person and guarantees full respect forhuman rights.” Finally, to justify a liberal interpretation of the right to securityof person, respondents cite the teaching in Moncupa v. Enrile that “the rightto liberty may be made more meaningful only if there is no undue restraint bythe State on the exercise of that liberty” such as a requirement to “reportunder unreasonable restrictions that amounted to a deprivation of liberty” orbeing put under “monitoring and surveillance.”

In sum, respondents assert that their cause of action consists in thethreat to their right to life and liberty, and a violation of their right to security.

Let us put this right to security under the lens to determine if it hasindeed been violated as respondents assert. The right to security or the rightto security of person finds a textual hook in Article III, Section 2 of the 1987Constitution which provides, viz:

SEC. 2. The right of the people to be secure in their persons, houses,papers and effects against unreasonable searches and seizures ofwhatever nature and for any purpose shall be inviolable, and nosearch warrant or warrant of arrest shall issue except upon probablecause to be determined personally by the judge x x x.

At the core of this guarantee is the immunity of one’s person, includingthe extensions of his/her person—houses, papers, and effects—againstgovernment intrusion. Section 2 not only limits the state’s power over aperson’s home and possessions, but more importantly, protects the privacyand sanctity of the person himself. The purpose of this provision was enunciatedby the Court in People v. CFI of Rizal, Branch IX, Quezon City, viz:

The purpose of the constitutional guarantee against unreasonablesearches and seizures is to prevent violations of private security inperson and property and unlawful invasion of the security of thehome by officers of the law acting under legislative or judicialsanction and to give remedy against such usurpation when attempted(Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]).The right to privacy is an essential condition to the dignity andhappiness and to the peace and security of every individual, whetherit be of home or of persons and correspondence (Tañada and Carreon,Political Law of the Philippines, Vol. 2, 139 [1962]). The constitutional


inviolability of this great fundamental right against unreasonablesearches and seizures must be deemed absolute as nothing is closerto a man’s soul than the serenity of his privacy and the assurance ofhis personal security. Any interference allowable can only be for thebest causes and reasons. (emphases supplied)

While the right to life under Article III, Section 1 guarantees essentiallythe right to be alive – upon which the enjoyment of all other rights ispreconditioned – the right to security of person is a guarantee of the securequality of this life, viz: “The life to which each person has a right is not a lifelived in fear that his person and property may be unreasonably violated by apowerful ruler. Rather, it is a life lived with the assurance that the governmenthe established and consented to, will protect the security of his person andproperty. The ideal of security in life and property x x x pervades the wholehistory 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 uninterruptedenjoyment of his life, his limbs, his body, his health, and his reputation. Itincludes the right to exist, and the right to enjoyment of life while existing, andit is invaded not only by a deprivation of life but also of those things which arenecessary to the enjoyment of life according to the nature, temperament, andlawful desires of the individual.”

A closer look at the right to security of person would yield variouspermutations of the exercise of this right.

First, the right to security of person is “freedom from fear.” In its“whereas” clauses, the Universal Declaration of Human Rights (UDHR)enunciates that “a world in which human beings shall enjoy freedom of speechand belief and freedom from fear and want has been proclaimed as the highestaspiration of the common people.” (emphasis supplied) Some scholars postulatethat “freedom from fear” is not only an aspirational principle, but essentiallyan individual international human right. It is the “right to security of person”as the word “security” itself means “freedom from fear.” Article 3 of the UDHRprovides, viz:

Everyone has the right to life, liberty and security of person.(emphasis supplied)

In furtherance of this right declared in the UDHR, Article 9(1) of theInternational Covenant on Civil and Political Rights (ICCPR) also provides forthe right to security of person, viz:

1. Everyone has the right to liberty and security of person. No oneshall be subjected to arbitrary arrest or detention. No one shallbe deprived of his liberty except on such grounds and inaccordance with such procedure as are established by law.(emphasis supplied)


The Philippines is a signatory to both the UDHR and the ICCPR.

In the context of Section 1 of the Amparo Rule, “freedom from fear” isthe right and any threat to the rights to life, liberty or security is the actionablewrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause ofaction. Fear caused by the same stimulus can range from being baseless towell-founded as people react differently. The degree of fear can vary from oneperson to another with the variation of the prolificacy of their imagination,strength of character or past experience with the stimulus. Thus, in the amparocontext, it is more correct to say that the “right to security” is actually the“freedom from threat.” Viewed in this light, the “threatened with violation”Clause in the latter part of Section 1 of the Amparo Rule is a form of violationof the right to security mentioned in the earlier part of the provision.

Second, the right to security of person is a guarantee of bodily andpsychological integrity or security. Article III, Section II of the 1987 Constitutionguarantees that, as a general rule, one’s body cannot be searched or invadedwithout a search warrant. Physical injuries inflicted in the context of extralegalkillings and enforced disappearances constitute more than a search or invasionof the body. It may constitute dismemberment, physical disabilities, and painfulphysical intrusion. As the degree of physical injury increases, the danger to lifeitself escalates. Notably, in criminal law, physical injuries constitute a crimeagainst persons because they are an affront to the bodily integrity or securityof a person.

Physical torture, force, and violence are a severe invasion of bodilyintegrity. When employed to vitiate the free will such as to force the victim toadmit, reveal or fabricate incriminating information, it constitutes an invasionof both bodily and psychological integrity as the dignity of the human personincludes the exercise of free will. Article III, Section 12 of the 1987 Constitutionmore specifically proscribes bodily and psychological invasion, viz:

(2) No torture, force, violence, threat or intimidation, or any othermeans which vitiate the free will shall be used against him (anyperson under investigation for the commission of an offense).Secret detention places, solitary, incommunicado or othersimilar forms of detention are prohibited.

Parenthetically, under this provision, threat and intimidation thatvitiate the free will—although not involving invasion of bodily integrity—nevertheless constitute a violation of the right to security in the sense of“freedom from threat” as afore-discussed.

Article III, Section 12 guarantees freedom from dehumanizing abusesof persons under investigation for the commission of an offense. Victims ofenforced disappearances who are not even under such investigation should allthe more be protected from these degradations.


An overture to an interpretation of the right to security of person as aright against torture was made by the European Court of Human Rights (ECHR)in the recent case of Popov v. Russia. In this case, the claimant, who was lawfullydetained, alleged that the state authorities had physically abused him in prison,thereby violating his right to security of person. Article 5(1) of the EuropeanConvention on Human Rights provides, viz: “Everyone has the right to libertyand security of person. No one shall be deprived of his liberty save in thefollowing cases and in accordance with a procedure prescribed by law x x x”(emphases supplied) Article 3, on the other hand, provides that “(n)o one shallbe subjected to torture or to inhuman or degrading treatment or punishment.”Although the application failed on the facts as the alleged ill-treatment wasfound baseless, the ECHR relied heavily on the concept of security in holding,viz:

x x x the applicant did not bring his allegations to the attention ofdomestic authorities at the time when they could reasonably havebeen expected to take measures in order to ensure his security andto investigate the circumstances in question.

x x x x

x x x the authorities failed to ensure his security in custody or tocomply with the procedural obligation under Art. 3 to conduct aneffective investigation into his allegations. (emphasis supplied)

The U.N. Committee on the Elimination of Discrimination againstWomen has also made a statement that the protection of the bodily integrityof women may also be related to the right to security and liberty, viz:

x x x gender-based violence which impairs or nullifies the enjoymentby women of human rights and fundamental freedoms under generalinternational law or under specific human rights conventions isdiscrimination within the meaning of article 1 of the Convention (onthe Elimination of All Forms of Discrimination Against Women). Theserights and freedoms include x x x the right to liberty and security ofperson.

Third, the right to security of person is a guarantee of protection ofone’s rights by the government. In the context of the writ of amparo, thisright is built into the guarantees of the right to life and liberty under ArticleIII, Section 1 of the 1987 Constitution and the right to security of person (asfreedom from threat and guarantee of bodily and psychological integrity) underArticle III, Section 2. The right to security of person in this third sense is acorollary of the policy that the State “guarantees full respect for human rights”under Article II, Section 11 of the 1987 Constitution. As the government is thechief guarantor of order and security, the Constitutional guarantee of the rightsto life, liberty and security of person is rendered ineffective if governmentdoes not afford protection to these rights especially when they are under threat.Protection includes conducting effective investigations, organization of the


government apparatus to extend protection to victims of extralegal killings orenforced disappearances (or threats thereof) and/or their families, and bringingoffenders to the bar of justice. The Inter-American Court of Human Rightsstressed the importance of investigation in the Velasquez Rodriguez Case, viz:

(The duty to investigate) must be undertaken in a serious mannerand not as a mere formality preordained to be ineffective. Aninvestigation must have an objective and be assumed by the State asits own legal duty, not as a step taken by private interests thatdepends upon the initiative of the victim or his family or upon theiroffer of proof, without an effective search for the truth by thegovernment.

This third sense of the right to security of person as a guarantee ofgovernment protection has been interpreted by the United Nations’ HumanRights Committee in not a few cases involving Article 9 of the ICCPR. While theright to security of person appears in conjunction with the right to libertyunder Article 9, the Committee has ruled that the right to security of personcan exist independently of the right to liberty. In other words, there need notnecessarily be a deprivation of liberty for the right to security of person to beinvoked. In Delgado Paez v. Colombia, a case involving death threats to areligion teacher at a secondary school in Leticia, Colombia, whose social viewsdiffered from those of the Apostolic Prefect of Leticia, the Committee held,viz:

The first sentence of article 9 does not stand as a separate paragraph.Its location as a part of paragraph one could lead to the view that theright to security arises only in the context of arrest and detention.The travaux préparatoires indicate that the discussions of the firstsentence did indeed focus on matters dealt with in the otherprovisions of article 9. The Universal Declaration of Human Rights, inarticle 3, refers to the right to life, the right to liberty and the right tosecurity of the person. These elements have been dealt with inseparate clauses in the Covenant. Although in the Covenant the onlyreference to the right of security of person is to be found in article 9,there is no evidence that it was intended to narrow the concept ofthe right to security only to situations of formal deprivation of liberty.At the same time, States parties have undertaken to guarantee therights enshrined in the Covenant. It cannot be the case that, as amatter of law, States can ignore known threats to the life of personsunder their jurisdiction, just because that he or she is not arrested orotherwise detained. States parties are under an obligation to takereasonable and appropriate measures to protect them. Aninterpretation of article 9 which would allow a State party to ignorethreats to the personal security of non-detained persons within itsjurisdiction would render totally ineffective the guarantees of theCovenant. (emphasis supplied)

The Paez ruling was reiterated in Bwalya v. Zambia, which involved apolitical activist and prisoner of conscience who continued to be intimidated,


harassed, and restricted in his movements following his release from detention.In a catena of cases, the ruling of the Committee was of a similar import:Bahamonde v. Equatorial Guinea, involving discrimination, intimidation andpersecution of opponents of the ruling party in that state; Tshishimbi v. Zaire,involving the abduction of the complainant’s husband who was a supporter ofdemocratic reform in Zaire; Dias v. Angola, involving the murder of thecomplainant’s partner and the harassment he (complainant) suffered becauseof his investigation of the murder; and Chongwe v. Zambia, involving anassassination attempt on the chairman of an opposition alliance.

Similarly, the European Court of Human Rights (ECHR) has interpretedthe “right to security” not only as prohibiting the State from arbitrarilydepriving liberty, but imposing a positive duty on the State to afford protectionof the right to liberty. The ECHR interpreted the “right to security of person”under Article 5(1) of the European Convention of Human Rights in the leadingcase on disappearance of persons, Kurt v. Turkey. In this case, the claimant’sson had been arrested by state authorities and had not been seen since. Thefamily’s requests for information and investigation regarding his whereaboutsproved futile. The claimant suggested that this was a violation of her son’sright to security of person. The ECHR ruled, viz:

x x x any deprivation of liberty must not only have been effected inconformity with the substantive and procedural rules of nationallaw but must equally be in keeping with the very purpose of Article5, namely to protect the individual from arbitrariness x x x. Havingassumed control over that individual it is incumbent on theauthorities to account for his or her whereabouts. For this reason,Article 5 must be seen as requiring the authorities to take effectivemeasures to safeguard against the risk of disappearance and toconduct a prompt effective investigation into an arguable claim thata person has been taken into custody and has not been seen since.(emphasis supplied)

Applying the foregoing concept of the right to security of person tothe case at bar, we now determine whether there is a continuing violation ofrespondents’ right to security.

First, the violation of the right to security as freedom from threat torespondents’ life, liberty and security.

While respondents were detained, they were threatened that if theyescaped, their families, including them, would be killed. In Raymond’s narration,he was tortured and poured on with gasoline after he was caught the firsttime he attempted to escape from Fort Magsaysay. A call from a certain “Mam,”who wanted to see him before he was killed, spared him.

This time, respondents have finally escaped. The condition of the threatto be killed has come to pass. It should be stressed that they are now free


from captivity not because they were released by virtue of a lawful order orvoluntarily freed by their abductors. It ought to be recalled that towards theend of their ordeal, sometime in June 2007 when respondents were detainedin a camp in Limay, Bataan, respondents’ captors even told them that theywere still deciding whether they should be executed. Respondent RaymondManalo attested in his affidavit, viz:

Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami nakakadena aydahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami ohindi.

The possibility of respondents being executed stared them in the eyewhile they were in detention. With their escape, this continuing threat to theirlife is apparent, more so now that they have surfaced and implicated specificofficers in the military not only in their own abduction and torture, but also inthose of other persons known to have disappeared such as Sherlyn Cadapan,Karen Empeño, and Manuel Merino, among others.

Understandably, since their escape, respondents have been underconcealment and protection by private citizens because of the threat to theirlife, liberty and security. The threat vitiates their free will as they are forced tolimit their movements or activities. Precisely because respondents are beingshielded from the perpetrators of their abduction, they cannot be expected toshow evidence of overt acts of threat such as face-to-face intimidation orwritten threats to their life, liberty and security. Nonetheless, the circumstancesof respondents’ abduction, detention, torture and escape reasonably supporta conclusion that there is an apparent threat that they will again be abducted,tortured, and this time, even executed. These constitute threats to their liberty,security, and life, actionable through a petition for a writ of amparo.

Next, the violation of the right to security as protection by thegovernment. Apart from the failure of military elements to provide protectionto respondents by themselves perpetrating the abduction, detention, andtorture, they also miserably failed in conducting an effective investigation ofrespondents’ abduction as revealed by the testimony and investigation reportof petitioners’ own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th

Infantry Division.

The one-day investigation conducted by Jimenez was very limited,superficial, and one-sided. He merely relied on the Sworn Statements of thesix implicated members of the CAFGU and civilians whom he met in theinvestigation for the first time. He was present at the investigation when hissubordinate Lingad was taking the sworn statements, but he did not propounda single question to ascertain the veracity of their statements or their credibility.He did not call for other witnesses to test the alibis given by the six implicatedpersons nor for the family or neighbors of the respondents.


In his affidavit, petitioner Secretary of National Defense attested thatin a Memorandum Directive dated October 31, 2007, he issued a policy directiveaddressed to the AFP Chief of Staff, that the AFP should adopt rules of actionin the event the writ of amparo is issued by a competent court against anymembers of the AFP, which should essentially include verification of the identityof the aggrieved party; recovery and preservation of relevant evidence;identification of witnesses and securing statements from them; determinationof the cause, manner, location and time of death or disappearance;identification and apprehension of the person or persons involved in the deathor disappearance; and bringing of the suspected offenders before a competentcourt. Petitioner AFP Chief of Staff also submitted his own affidavit attestingthat he received the above directive of respondent Secretary of NationalDefense and that acting on this directive, he immediately caused to be issueda directive to the units of the AFP for the purpose of establishing thecircumstances of the alleged disappearance and the recent reappearance ofthe respondents, and undertook to provide results of the investigations torespondents. To this day, however, almost a year after the policy directive wasissued by petitioner Secretary of National Defense on October 31, 2007,respondents have not been furnished the results of the investigation whichthey now seek through the instant petition for a writ of amparo.

Under these circumstances, there is substantial evidence to warrantthe conclusion that there is a violation of respondents’ right to security as aguarantee of protection by the government.

In sum, we conclude that respondents’ right to security as “freedomfrom threat” is violated by the apparent threat to their life, liberty and securityof person. Their right to security as a guarantee of protection by thegovernment is likewise violated by the ineffective investigation and protectionon the part of the military.

Finally, we come to the reliefs granted by the Court of Appeals, whichpetitioners question.

First, that petitioners furnish respondents all official and unofficialreports of the investigation undertaken in connection with their case, exceptthose already on file with the court.

Second, that petitioners confirm in writing the present places ofofficial assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas.

Third, that petitioners cause to be produced to the Court of Appealsall medical reports, records and charts, and reports of any treatment given orrecommended and medicines prescribed, if any, to the Manalo brothers, toinclude a list of medical personnel (military and civilian) who attended tothem from February 14, 2006, until August 12, 2007.


With respect to the first and second reliefs, petitioners argue thatthe production order sought by respondents partakes of the characteristics ofa search warrant. Thus, they claim that the requisites for the issuance of asearch warrant must be complied with prior to the grant of the productionorder, namely: (1) the application must be under oath or affirmation; (2) thesearch warrant must particularly describe the place to be searched and thethings to be seized; (3) there exists probable cause with one specific offense;and (4) the probable cause must be personally determined by the judge afterexamination under oath or affirmation of the complainant and the witnesseshe may produce. In the case at bar, however, petitioners point out that otherthan the bare, self-serving and vague allegations made by respondent RaymondManalo in his unverified declaration and affidavit, the documents respondentsseek to be produced are only mentioned generally by name, with no othersupporting details. They also argue that the relevancy of the documents to beproduced must be apparent, but this is not true in the present case as theinvolvement of petitioners in the abduction has not been shown.

Petitioners’ arguments do not hold water. The production order underthe Amparo Rule should not be confused with a search warrant for lawenforcement under Article III, Section 2 of the 1987 Constitution. ThisConstitutional provision is a protection of the people from the unreasonableintrusion of the government, not a protection of the government from thedemand of the people such as respondents.

Instead, the amparo production order may be likened to theproduction of documents or things under Section 1, Rule 27 of the Rules ofCivil Procedure which provides in relevant part, viz:

SECTION 1. Motion for production or inspection order. – Upon motion ofany party showing good cause therefor, the court in which an actionis pending may (a) order any party to produce and permit theinspection and copying or photographing, by or on behalf of themoving party, of any designated documents, papers, books ofaccounts, letters, photographs, objects or tangible things, notprivileged, which constitute or contain evidence material to anymatter involved in the action and which are in his possession, custodyor control x x x.

In Material Distributors (Phil.) Inc. v. Judge Natividad, the respondentjudge, under authority of Rule 27, issued a subpoena duces tecum for theproduction and inspection of among others, the books and papers of MaterialDistributors (Phil.) Inc. The company questioned the issuance of the subpoenaon the ground that it violated the search and seizure clause. The Court struckdown the argument and held that the subpoena pertained to a civil procedurethat “cannot be identified or confused with unreasonable searches prohibitedby the Constitution x x x.”


Moreover, in his affidavit, petitioner AFP Chief of Staff himselfundertook “to provide results of the investigations conducted or to beconducted by the concerned unit relative to the circumstances of the allegeddisappearance of the persons in whose favor the Writ of Amparo has beensought for as soon as the same has been furnished Higher headquarters.”

With respect to the second and third reliefs, petitioners assert thatthe disclosure of the present places of assignment of M/Sgt. Hilario aka RollieCastillo and Donald Caigas, as well as the submission of a list of medicalpersonnel, is irrelevant, improper, immaterial, and unnecessary in the resolutionof the petition for a writ of amparo. They add that it will unnecessarilycompromise and jeopardize the exercise of official functions and duties ofmilitary officers and even unwittingly and unnecessarily expose them to threatof personal injury or even death.

On the contrary, the disclosure of the present places of assignment ofM/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom respondents bothdirectly implicated as perpetrators behind their abduction and detention, isrelevant in ensuring the safety of respondents by avoiding their areas ofterritorial jurisdiction. Such disclosure would also help ensure that thesemilitary officers can be served with notices and court processes in relation toany investigation and action for violation of the respondents’ rights. The list ofmedical personnel is also relevant in securing information to create the medicalhistory of respondents and make appropriate medical interventions, whenapplicable and necessary.

In blatant violation of our hard-won guarantees to life, liberty andsecurity, these rights are snuffed out from victims of extralegal killings andenforced disappearances. The writ of amparo is a tool that gives voice to preysof silent guns and prisoners behind secret walls.

WHEREFORE, premises considered, the petition is DISMISSED. TheDecision of the Court of Appeals dated December 26, 2007 is affirmed.

SO ORDERED.

The next case is that of Reverend Father Robert P. Reyes v. Court of Appeals,Secretary Raul M. Gonzalez, in his capacity as the Secretary of the Department of Justice,and Commissioner Marcelino C. Libanan, in his capacity as the Commissioner of the Bureauof Immigration,2 an en banc case penned by Justice Teresita Leonardo-De Castro.

2 G.R. No. 182161, December 3, 2009, 606 SCRA 580.


The facts are:

This is a Petition for Review under Rule 45 of the Rules of Court, assailing the Decisionof the Court of Appeals, dated February 4, 2008, which dismissed the petition for the issuanceof the writ of amparo.

Petitioner Fr. Robert P. Reyes was among those arrested in the Manila PeninsulaHotel siege on November 30, 2007. He was charged with the crime of Rebellion underArticle 134 of the Revised Penal Code.

The RTC dismissed the charge against Reyes for lack of probable cause.

Reyes filed a petition for the issuance of a writ of amparo, claiming that despite thedismissal of the rebellion case, his name remains in the Hold Departure List of the BID officialsin NAIA. He further alleged that the respondents violated his constitutional right to travel.

The Court of Appeals dismissed the petition and denied the privilege of the writ ofamparo.

Reyes filed a Motion for Reconsideration, which was also denied.

The issue was “whether or not petitioner’s right to liberty has been violated orthreatened by the issuance of the Hold Departure Order (HDO), which would entitle him tothe privilege of the writ of amparo.”

The Court held that the petition must fail. The Amparo Rule is confined to instancesof extralegal killings and enforced disappearances or threats thereof. “The rights that fallwithin the protective mantle of the Writ of Amparo under Section 1 of the Rules thereon arethe following: (1) right to life; (2) right to liberty; and (3) right to security. The right to travelrefers to the right to move from one place to another.”

Furthermore, it was held that “the restriction on petitioner’s right to travel as aconsequence of the pendency of the criminal case filed against him was not unlawful.”Petitioner’s direct recourse to the Court is inappropriate; he should have filed with the RTCa motion to lift the HDO. The Court has no authority to separately and directly intervene incivil cases pending before the trial courts through the writ of amparo. Petitioner’sapprehension that the DOJ may deny his motion to lift the HDO is merely speculative. Hefailed to show any clear threat to his right to liberty actionable through a petition for a writof amparo.

The petition was therefore DISMISSED and the Decision of the Court of Appealswas AFFIRMED.


Then came a landmark case in amparo: Gen. Avelino I. Razon, Jr., et al. v. MaryJean B. Tagitis represented by Atty. Felipe P. Arcilla, Jr., Attorney-in-Fact,3 penned by JusticeArturo D. Brion.

The facts are:

Engineer Morced Tagitis, a consultant for the World Bank and the Senior HonoraryCounselor for the Islamic Development Bank (IDB) Scholarship Programme, was abductedby burly men believed to be police intelligence operatives in Jolo, Sulu, and was never seenagain.

When his wife, respondent Mary Jean Tagitis, went to look for him, she met withCol. Kasim in Camp Katitipan in Davao City who informed her that “her husband is in goodhands” and that he was abducted because “he is under custodial investigation” for allegedlybeing a liaison for the known terrorist group J.I. or Jema’ah Islamiah.

Respondent filed a Petition for the Writ of Amparo with the Court of Appeals (CA)which subsequently confirmed the enforced disappearance of Engr. Tagitis and granted thewrit relying heavily on the pronouncements made by Col. Kasim to respondent when theymet in Davao City.

Petitioners appealed the CA decision before the Supreme Court and assailed in themain, the sufficiency of evidence supporting the conclusion that Tagitis was abducted andthat the CIDG-Zamboanga City was responsible for it.

Resolving the appeal, the Court was not persuaded. It recognized the evidentiarydifficulties inherent in cases of enforced disappearance owing to its unique nature. Becauseof these, the Court avers that rules must be reduced to the most basic test of reason “thuseven hearsay evidence can be admitted if it satisfies this basic minimum test.”

There being no direct evidence of Tagitis’ disappearance, Col. Kasim’s testimonyassumed critical materiality. All that is gleaned from these pieces of evidence “is a consistencyin the government’s denial of any complicity in Tagitis’ disappearance disrupted only by thereport made by Col. Kasim to respondent.”

The Court concluded that “his disclosure, made in an unguarded moment,unequivocally points to some complicity in the disappearance.” The Court in this case statedthat the writ of amparo “does not determine guilt nor pinpoint criminal culpability for thedisappearance; rather, it determines responsibility, or at least accountability for the enforceddisappearance for purposes of imposing the appropriate remedies to address thedisappearance.”

The Court DENIED the petition and AFFIRMED the CA decision.

Subsequently, resolving a motion for reconsideration, the Court issued a Resolutionordering the military authorities to exert diligent efforts in a continuing search for the missingEngineer and to report the progress of its search to the judicial authorities.

3 G.R. No. 182498, December 3, 2009, 606 SCRA 598.


The third case is the joined cases of Arthur Balao, et al. v. Gloria Macapagal-Arroyo et al. and President Gloria Macapagal-Arroyo, et al. v. Arthur Balao, et al.,4 pennedby Justice Martin S. Villarama.

These consolidated cases are about the abduction of James Balao in Benguet byunidentified armed men believed to be members of the military. Balao, one of the foundingmembers of the militant Cordillera Peoples Alliance (CPA), was allegedly under militarysurveillance and was in fact previously arrested and charged with a violation of the Anti-Subversion Law which charge was eventually dismissed.

Believing their brother to be in the custody of the military and after having failed tolocate his whereabouts, the Balao siblings filed a Petition for the Issuance of the Writ ofAmparo in favor of James before the Regional Trial Court of Benguet which subsequentlyGRANTED the writ of amparo but DENIED their prayer for the issuance of the Inspection,Production and Witness Protection Orders.

In so ruling, the trial court stated among others that – “‘more likely than not,’ themotive for James’ disappearance is his activist/political leanings and that his case is one ofenforced disappearance as defined under the Rule on the Writ of Amparo” and that “thegovernment unmistakably violated James’ right to security of person.” It also found theinvestigation conducted by respondent PNP and CIDG “very limited, superficial and one-sided.”

Both parties appealed before the Court on the threshold issue of “whether thetotality of evidence satisfies the degree of proof required by the Amparo Rule to establishan enforced disappearance.”

The Court REVERSED the trial court’s grant of the privilege of the writ of amparostating that the “documented practice of targeting activists in the military’s counter-insurgency program by itself does not fulfill the evidentiary standards provided in the AmparoRule to establish an enforced disappearance.” It also negated the application of the doctrineof ‘command responsibility’ saying that it “does not determine guilt or pinpoint criminalculpability.”

It AFFIRMED the trial court’s DENIAL of the prayer for Inspection and ProductionOrders without prejudice to the subsequent grant thereof in the course of the hearing andother developments in the investigations it has ORDERED the PNP, AFP and the CIDG toconduct on the matter. The case was REMANDED to the trial court for further proceedings.

Justice Antonio T. Carpio and then Justice Maria Lourdes P. A. Sereno (now ChiefJustice) disagreed with the majority opinion saying that “in disposing of cases involving

4 G.R. Nos. 186050 and 186059, December 13, 2011, 662 SCRA 312.


extrajudicial killings and enforced disappearances for which the writ is sought, the Courtmust always go back to its pronouncement in Secretary of National Defense, supra,emphasizing the twin roles of the writ of amparo as a preventive and curative tool to addressthese human rights violations.”

Another case is that of Rodolfo Noel Lozada, Jr., Violeta Lozada and Arturo Lozadav. President Gloria Macapagal-Arroyo (PGMA), Eduardo Ermita, Avelino Razon, AngelAtutubo and SPO4 Roger Valeroso,5 penned by Justice Maria Lourdes P. A. Sereno (nowChief Justice).

This case is rooted on the alleged NBN-ZTE corruption scandal where petitionerLozada, who, while serving as unofficial consultant to the government, supposedly discoveredseveral anomalies which the Senate Blue Ribbon Committee sought to investigate. He wasunable to attend the Senate hearing due to a purported official trip to London and was thuscited for contempt.

Trouble ensued upon his return, when he was met by several government agents atthe airport. Lozada claimed that these agents ignored his request to be brought to his houseand instead deposited him in the care of the La Salle brothers in Greenhills where he wasplaced under heavy guard.

Consequently, his wife Violeta and his brother Antonio filed before the CourtPetitions for Habeas Corpus and the Writ of Amparo with a Prayer for its issuance as well asfor the issuance of a TPO and Inspection and Production Orders with respect to documentsordering his alleged abduction.

The Court consolidated the petitions and directed the Court of Appeals (CA) to hearthe same. The CA dismissed the petitions, finding that petitioners were unable to provethrough substantial evidence that petitioner’s right to life, liberty and security were violated.

Petitioners sought recourse before the Court alleging that the CA committed anerror in dropping PGMA as a respondent in the Amparo case and in denying their Motion forthe Issuance of a Subpoena Ad Testificandum. They also brought in issue whether they shouldbe granted the privilege of the Writ of Amparo.

The Supreme Court denied the petition and affirmed the denial of the privilege ofthe writ of amparo by the CA ruling that there is nothing in the records that would sufficientlyestablish the link of PGMA to the events surrounding Lozada’s alleged abduction as well asto the subsequent threats that he and his family supposedly received.

5 G.R. Nos. 184379–80, April 24, 2012, 670 SCRA 545.


The Court likewise ruled that “the CA correctly denied petitioners’ Motion for theIssuance of Subpoena Ad Testificandum on the ground that the testimonies of the witnessessought to be presented during trial were prima facie irrelevant to the issues of the case.”The Amparo petition does not involve the investigation of the NBN-ZTE deal. It affirmed theCA’s denial of the privilege of the Writ of Amparo because “the totality of the evidenceadduced by petitioners failed to meet the threshold of substantial evidence.”

It was held that in amparo actions, petitioners must establish their claims bysubstantial evidence and cannot merely rely on the supposed failure of respondents to provetheir defense or their exercise of extraordinary diligence.

To round up this review, the following cases are also of interest:

Gen. Alexander B. Yano, Chief of Staff, Armed Forces of the Philippines; Lt. Gen. Victor S.Ibrado, Commanding General, Philippine Army, And Maj. Gen. Ralph A. Villanueva,Commander, 7th Infantry Division, Philippine Army v. Cleofas Sanchez and MarcianaMedina,6 an en banc Decision penned by Justice Conchita Carpio Morales.

Cleofas Sanchez filed a petition for the issuance of a Writ of Amparo with a Motionfor Production and Inspection directed against Gen. Hermogenes Esperon, and then Chiefof Staff of the Armed Forces of the Philippines (AFP).

The Court “resolved to issue a Writ of Amparo and ordered Gen. Esperon to make averified return of the writ before Court of Appeals Justice Edgardo Sundiam.”

The petition was amended to include Marciana Medina as additional petitioner andother military officers as therein additional respondents. Sanchez and Medina alleged thattheir respective sons Nicolas Sanchez and Heherson Medina disappeared on September 18,2006. Their neighbor, Antonina Galang, alleged that she saw the two men inside CampServillano Aquino on September 21, 2006.

“In their Return, the military officers denied having custody of the victims.” Theyalso opposed the request for the issuance of an inspection and production orders, positingthat national security will be compromised and that these orders partake of the nature of asearch warrant.

The appellate court, after hearing, absolved Gen. Esperon, Lt. Gen. Yano, Maj. Gen.Gomez, and Lt. Col. Bayani for lack of evidence linking them to the disappearances. Inaddition, the appellate court granted the following reliefs: inspections of certain militarycamps in Tarlac City, and a thorough and impartial investigation regarding the disappearances.

6 G.R. No. 186640, February 11, 2010, 612 SCRA 347.


The remaining impleaded military officers filed a Motion for Partial Reconsiderationstating that the appellate court should not have granted those reliefs; which the appellatecourt denied.

Respondents neither moved for reconsideration nor appealed the appellate court’sDecision.

Petitioners thus filed the present petition for review of the appellate court’s assailedissuances.

The Court found merit in the petition. The Court held that the evidence adduced inthe present case failed to measure up to the required standard of proof – substantial evidence– in resolving amparo petitions. Moreover, the Court ruled that “the failure to establish thatthe public official observed extraordinary diligence in the performance of duty does notresult in the automatic grant of the privilege of the amparo writ.”

The provisional reliefs “are intended to assist the court before it arrives at a judiciousdetermination of the amparo petition. For the appellate court to still order the inspectionof the military camps and order the army units to conduct an investigation into thedisappearance of Nicolas and Heherson after it absolved petitioners is not in order. Thereliefs granted by the appellate court to respondents are not in sync with a finding thatpetitioners could not be held accountable for the disappearance of the victims.”

The petition was GRANTED. The Decision and Resolution of the Court of Appealsinsofar as it granted the assailed earlier-quoted reliefs were SET ASIDE.

Lourdes D. Rubrico, et al. v. Gloria Macapagal-Arroyo, et al.,7 penned by Justice PresbiteroJ. Velasco, Jr.

On April 3, 2007, petitioner Lourdes Rubrico, chair of the Ugnayan ng Maralita parasa Gawa Adhikain was abducted by armed men belonging to the 301st Air Intelligence andSecurity Squadron (AISS) and after having been subjected to what amounts to verbal abuseand mental harassment she was released after she was made to sign a statement that shewould be a military asset.

Thereafter, petitioner was continuously harassed by being followed around bymotorcycle-riding men in bonnets. Consequently, she filed before the Office of theOmbudsman a Criminal Complaint for Kidnapping and Arbitrary Detention and AdministrativeComplaint for Gross Abuse of Authority and Grave Misconduct against her abductors.

7 G.R. No. 183871, February 18, 2010, 613 SCRA 233.


She also filed a Petition for a Writ of Amparo before the Supreme Court on October25, 2007. The Supreme Court issued the writ and remanded the case to the Court of Appealsfor hearing and appropriate action. After due proceedings, the Court of Appeals renderedPartial Judgment DISMISSING the petition with respect to respondent-officials of the AFPand PNP and the Office of the Ombudsman.

Nonetheless, the Court of Appeals DIRECTED the heads of the AFP and the PNP toensure that the investigations already commenced are diligently pursued to bring theperpetrators to justice. They were further directed to regularly update petitioners and theSupreme Court on the status of such investigation.

On appeal, the Supreme Court PARTIALLY GRANTED this petition for review asfollows:

a. Affirming the dropping of President Gloria Macapagal-Arroyo as a party-respondent;

b. Affirming the dismissal of the amparo case as against Gen. Esperon andGen. Razon insofar as it tended to attach accountability andresponsibility to them under the ‘command responsibility’ principle;Affirming the dismissal with respect to the Office of the Ombudsmanfor failure of the petition to allege ultimate facts as to make out a caseagainst that body for the abduction of petitioner and the harassmentthat followed;

c. Directing the concerned officials to ensure that the investigations alreadycommenced by their respective units on the alleged abduction ofpetitioner Rubrico and the alleged harassments and threats to her familyare pursued with extraordinary diligence as required by the AmparoRule.

While the doctrine of ‘command responsibility’ “has recently been codified in theRome Statute of the ICC (International Criminal Court) to which the Philippines is a signatory,x x x there is still no Philippine law that provides for criminal liability under that doctrine.”[The Philippines has since ratified the Rome Statute and enacted Republic Act No. 9851 thatrecognized the command responsibility principle in cases covered by that Statute.] TheSupreme Court found “no compelling reason to disturb the appellate court’s determinationof the answering respondents’ role in the alleged enforced disappearance of petitionerRubrico and the threats to her family’s security.”

The Supreme Court referred back the case to the Court of Appeals for the purposeof monitoring the investigations and the actions of the Armed Forces of the Philippines andthe Philippine National Police.


Separate Opinion of Justice Arturo D. Brion:

Justice Brion concurs with the ponencia and its results but wrote a separate opinionto express his views on the “alternative approach” as more effective in achieving theobjectives of a Writ of Amparo.

He is in agreement with the ponencia’s dismissal of the petition against PresidentMacapagal-Arroyo because of her immunity from suit during her term. He likewise agreedwith the conclusion that the petition against the Ombudsman should be dismissed for havingno cause of action under the Amparo Rule.

Justice Brion drew attention to then recently enacted Republic Act No. 9851 onDecember 11, 2009. Section 10 thereof explicitly makes superiors criminally liable under thedoctrine of command responsibility. This new development stresses that the doctrine ofcommand responsibility has limited application to the Amparo Rule.

Justice Brion concurs in dismissing the petition against P/Dir. Gen. Razon and Gen.Esperon who were impleaded in their capacities as Philippine National Police (PNP) Chiefand Armed Forces of the Philippines (AFP) Chief of Staff, respectively. “As a matter of judicialnotice, they are no longer the incumbents of the abovementioned positions and cannottherefore act to address the concerns of a Writ of Amparo.”

Justice Brion notes that “very significant gaps exist in the handling of theinvestigation—among them, the failure to identify and locate the respondents Major DarwinReyes/Sy, Jimmy Santana, Ruben Alfaro, Captain Angelo Cuaresma and a certain Jonathan—to the point that the petition was not even served on these respondents. x x x No search andcertification was ever made on whether they are AFP personnel or in other branches of theservice. No significant follow-through was also made in locating and properly placing DarwinReyes/Sy within the jurisdiction of the court despite the evidentiary leads provided.”Therefore, “further investigation and monitoring should indeed be undertaken.”

Justice Brion holds that needed additional actions should be undertaken by the Courtof Appeals; however, he suggests an alternative way based on the combined application ofSections 20 to 23 of the Amparo Rule. The Court can consolidate the investigative and fact-finding aspects with the investigation of the criminal complaint before the Ombudsman. Inthis manner “the Court continues to exercise jurisdiction over the Amparo petition and anyinterim relief issue that may arise, taking into account the Ombudsman investigative andfact-finding recommendations.”

Separate Opinion of Justice Conchita Carpio Morales:

Justice Carpio Morales concurs “with the ponencia in all respects, except in thetreatment of the doctrine of command responsibility.”


According to Justice Carpio Morales, “the Court should take judicial notice of thecore element that permeates the formulations of the doctrine of command responsibility –a commander’s negligence in preventing or repressing his subordinates’ commission of thecrime, or in bringing them to justice thereafter.”

She reiterated that “the proceedings under the Rule on the Writ of Amparo do notdetermine criminal, civil or administrative liability [and] should not abate the applicability ofthe doctrine of command responsibility.”

Finally, Justice Carpio Morales concludes that “while there is a genuine dearth ofevidence to hold respondents Gen. Hermogenes Esperon and P/Dir. Gen. Avelino Razonaccountable under the command responsibility doctrine, the ponencia’s hesitant applicationof the doctrine itself is replete with implications abhorrent to the rationale behind the Ruleon the Writ of Amparo.”

Edgardo Navia, Ruben Dio, and Andrew Buising v. Virginia Pardico, for and in behalfand in representation of Benhur V. Pardico,8 an en banc case penned by Justice Mariano C.Del Castillo.

The facts are:

This is a Petition for Review under Rule 45 of the Rules of Court, assailing the July24, 2008 Decision of the Regional Trial Court, Branch 20, Malolos City, which granted thePetition for Writ of Amparo.

Two uniformed guards took Enrique “Bong” Lapore and Benhur “Ben” Pardicobecause allegedly a complaint was lodged against them for theft of electric wires and lampsin Grand Royale Subdivision.

Petitioners, who work as security guards at the Asian Land security department,claim that Bong and Ben admitted they took the lamp to transfer it to the post near theirhouse; that Ben and Bong were subsequently released as the complainant was no longerinterested in filing a case against them; and that they affixed their signatures on a logbookto affirm that they were released unharmed and without any injury.

According to Virginia Pardico, wife of Ben Pardico, her husband and Bong werephysically assaulted by petitioners. Bong was subsequently released, but Ben had to stay ashis case would be forwarded to the barangay.

The following day, Ben could not be located anywhere; so, Virginia reported thematter to the police. Thus, Virginia filed a Petition for Writ of Amparo before the RTC ofMalolos City.

8 G.R. No. 184467, June 19, 2012.


The trial court issued an Order directing, among others, the issuance of a writ ofamparo and the production of the body of Ben before it. The court likewise issued aTemporary Protection Order prohibiting petitioners, or any persons acting for and in theirbehalf, under pain of contempt, from threatening, harassing, or inflicting any harm torespondent, his immediate family, and any member of his household.

A summary hearing was conducted and the court granted the privilege of the writ ofamparo. It also directed the NBI to immediately conduct a deep and thorough investigationof petitioners; and the Office of the Provincial Prosecutor of Bulacan to investigate thecircumstances concerning the legality of the arrest of Ben.

Petitioners filed a Motion for Reconsideration, which was denied by the trial court.

The issue was whether Ben’s disappearance falls within the ambit of A.M. No. 07-9-12-SC and relevant laws.

The Court held that Virginia’s Petition for Writ of Amparo is fatally defective andmust be dismissed. While Section 1 of A.M. No. 07-9-12-SC provides for the coverage of theRule, it “does not define extralegal killings and enforced disappearances.” The Committeewhich drafted A.M. No. 07-9-12-SC “chose to allow it to evolve through time andjurisprudence and through substantive law as may be promulgated by Congress.”

Eventually, the Court defined enforced disappearances in Razon v. Tagitis (606 SCRA598). It “applied the generally accepted principles of international law and adopted theInternational Convention for the Protection of All Persons from Enforced Disappearance’sdefinition of enforced disappearances, as ‘the arrest, detention, abduction or any otherform of deprivation of liberty by agents of the State or by persons or groups of personsacting with the authorization, support or acquiescence of the State, followed by a refusal toacknowledge the deprivation of liberty or by concealment of the fate or whereabouts ofthe disappeared person, which place such a person outside the protection of the law.’”

Then, “Congress enacted Republic Act No. 9851 on December 11, 2009. Section 3(g)thereof defines enforced or involuntary disappearances as follows:

(g) ‘Enforced or involuntary disappearance of persons means the arrest,detention, or abduction of persons by, or with the authorization supportor acquiescence of, a State or a political organization followed by a refusalto acknowledge that deprivation of freedom or to give information on thefate or whereabouts of those persons, with the intention of removing fromthe protection of the law for a prolonged period of time.’”

In probing enforced disappearance cases, courts should read the Rule on the Writof Amparo in relation to RA No. 9851.


According to the Court, “from the statutory definition of enforced disappearance,the elements that constitute it can be derived as follows:

(a) that there be an arrest, detention, abduction or any form of deprivationof liberty;

(b) that it be carried out by, or with the authorization, support oracquiescence of the State or a political organization;

(c) that it be followed by the State or political organization’s refusal toacknowledge or give information on the fate or whereabouts of theperson subject of the amparo petition; and,

(d) that the intention for such refusal is to remove subject person from theprotection of the law for a prolonged period of time.”

In sum, “the petitioner in an amparo case has the burden of proving by substantialevidence the indispensable element of government participation.”

“Proof of disappearance is not enough; it is essential to establish that suchdisappearance was carried out with the direct and indirect authorization, support, oracquiescence of the government.”

“Government involvement in the disappearance remains an indispensable elementin an amparo case.” However, State participation is wanting in this case. The petition did notallege State complicity and no evidence were presented to show that government or any ofits agents is responsible for Ben’s disappearance.

Wherefore, the Decision of the RTC is REVERSED and SET ASIDE. The Petition forWrit of Amparo is DISMISSED.

Armando Q. Canlas, Miguel D. Capistrano, and Marrieta Pia v. NAPICO HomeownersAssociation, I–XIII, Inc. et al.,9 an en banc resolution penned by Justice Ruben T. Reyes.

A petition was filed seeking issuance of a Writ of Amparo. Petitioners allege thattheir dwellings have either been demolished or about to be demolished pursuant to a courtjudgment. Ultimately, petitioners seek the reversal of this Court’s dismissal of the petitionsin G.R. Nos. 177448, 180768, 177701, and 177038.

The Court held that petitioner’s claim to their dwelling does not constitute right tolife, liberty, and security; hence, there is no legal basis for the issuance of the writ of amparo.

9 G.R. No. 182795, June 5, 2008, 554 SCRA 208.


The Court reiterated that the “new remedy of the writ of amparo is intended forthe protection of the highest possible rights of any person, which is his or her right to life,liberty and security. The Court will not spare any time or effort on its part in order to givepriority to petitions of this nature. However, the Court will also not waste its precious timeand effort on matters not covered by the writ.”

Wherefore, the Petition for the issuance of a Writ of Amparo is DISMISSED.

CONCLUSION

From the foregoing, I CONCLUDE that the remedy of amparo has become a reality in ourlegal system and is no longer a theory or academic subject. It has been availed of by aggrievedparties who obtained reliefs under its procedure.

As a newly provided remedy, the first necessity is still its introduction to allstakeholders so that they will be familiar with its coverage and procedure.

Secondly, the judges must propose to be trained in their role of adjudicating thisremedy. They should not be too strict, for instance, in applying the hierarchy of the personswho may file the petition, as some even refuse birth certificates of children suing on behalfof a missing father.

Finally, as the dissenting opinion of a number of Justices of the Supreme Court pointedout, it must be remembered that the remedy is intended to prevent as well as to cure andthat one need not wait for the violation to take place as the rule clearly includes “threats”of such violation.

On the whole, I would commend our people and our courts for responding well andpositively to this innovative remedy as an additional safeguard to our fundamental rights.

Thank you and good day.


Good afternoon, everybody.

Please forgive me for I have never spoken before such a body before. I would notknow how to greet all the justices, jurists, and all the very important people who have comehere today. Please allow me to just acknowledge the jurists who are in the center front rowand my uncle the former Prime Minister of the Philippines Cesar Virata. Thank you, thankyou.

Chief Justice Hilario G. Davide, Jr., Justice Antonio T. Carpio, Justice Adolfo S. Azcuna,Court Administrator Jose Midas P. Marquez, Dean Sedfrey M. Candelaria, my mother JusticeAmor Herrera, ladies and gentlemen:

My mother’s 90th birthday was on May 11, 2012. My sisters and I did not know whatgift to give her; what could we do to make her 90th birthday a milestone. So, in connivancewith Justice Azcuna and Justice Marina Buzon, we maneuvered this donation, this endowment.I do not really know what to call it, but what pleases me so much is that Justice Azcuna,Justice Buzon, and I managed to do it in complete secrecy. My mother had no idea that wewere implementing this kind of gift. So, Justice Azcuna, who also spoke for PHILJA’s AcademicCouncil and to the PHILJA’s Board of Trustees, graciously accepted and decided to establishthis very long title “The Founding Chancellor Emeritus Justice Ameurfina Melencio HerreraAward for the Most Outstanding Professorial Lecturer” for each year. As Justice Azcunasaid, he was not really meant to be the very first recipient, but because he is the currentChancellor, we felt that Justice Azcuna deserved it. So, to support this award, my sisters andI deposited the amount of Three Million Pesos (P3 million) in the BPI Family Savings Bank, astrustee, with a guaranteed return of at least a hundred thousand pesos a year. But, becausewe did very well, the return as of today was One Hundred Thirty Thousand Pesos (P130,000).

We were told subsequently by Justice Azcuna that at the luncheon hosted by mymother and the PHILJA for her 90th birthday, the award and donation were announced. Mymother was, to say the least, quite shocked. She was so shocked that after the ceremony,and perhaps as most mothers would do, she called me to say thank you and then at thesame time scolded me for such a maneuver and for pulling off such a surprise. And I said,“Ma, leave it be... this is meant to honor you, this is meant to help PHILJA for which youhave devoted so much of your life.”

So, on a very personal note now, I have always tried to live by a Latin phraseUberrimae fidae which means absolute trust and confidence in your partners. And, that iswhy I was so pleased when Justice Azcuna, Justice Buzon, and the other members of the

ResponseAtty. Florentino M. Herrera III

54 MESSAGE I ATTY. FLORENTINO M. HERERRA III

PHILJA used the words “in partnership with the children of Justice Herrera.” This had such aspecial connotation, and meaning, for us. We would like to think that we are truly partnersof PHILJA. In fact, my mother—obviously being my mother and mother to my sisters—could also be said to be the mother of PHILJA. She helped give birth to this institution. So,we are partners, we are family members, and I am just so honored to be here with youtoday.

The second principle that I adhere to, and I think most of you know that I am acorporate lawyer, is that my clients and I always ensure that when we spend one peso, weget the appropriate return for that peso. If we pay one peso, we expect a product back. Ifwe spend one peso we get a service back. But, there is perhaps, the best kind of expenditurewhen you do not really expect anything back except good public service or a donation for aworthy cause. And having heard what I have heard today, having seen what I have seentoday, having felt what I have felt today, this donation of Three Million Pesos is certainlymore than worth it.

As I had said to you, Justice Azcuna, when I gave you your check, you have set thebar very high. We hope that all future recipients of this Award will do as well as you; thattheir lectures will be as deep, as profound as yours, and even as humorous as yours; andthat they will be able to share experiences with us to make it easier to understand what theyare lecturing about.

I told Chief Justice Davide I had never heard of the Writ of Amparo till I read aboutit in the newspapers. So, I would have flunked that 1991 Bar Exams.

So, again, members of the PHILJA family, we look at you as our partners, maybeeven our family members. I would just like to say, Justice Azcuna, if you will allow us again,I am so pleased and honored that, perhaps, in time you will allow us children of Justice Amorto put up a second award.

So, thank you very much! Good day to you all!

Atty. Florentino M. HerreraIII delivers the Response at

the PHILJA FoundingChancellor Emeritus Justice

Ameurfina Melencio HerreraAward for the Most

Outstanding ProfessorialLecturer held on November

12, 2012, at the PHILJATraining Center,

Tagaytay City.


Chancellor Adolfo S. AzcunaFounding Chancellor Ameurfina A. Melencio HerreraSenior Associate Justice Antonio T. CarpioIncumbent and Retired Justices of the Supreme Court,

Court of Appeals, Sandiganbayan, Court of Tax AppealsOfficials of the PHILJA, Judges, Members of the AcademeGuests, Ladies and Gentlemen,

Good afternoon to all of you. This afternoon’s event is but one of a series of special blessingsnot only for the Supreme Court, the Philippine Judicial Academy and the awardee, but alsofor the constitutional history of the Philippines. I salute the Philippine Judicial Academy andthe children of PHILJA’s Founding Chancellor Madame Justice Ameurfina A. Melencio Herrerafor making this possible.

Delivering the Closing Remarks in any program is a difficult task because of thetemptation to make it short or long and even to make it the keynote address. This is thereason why in my 39 years of public service, I accepted only a few of such assignment,despite persistent requests for whatever reasons.

But for this program, a confluence of compelling reasons—both just and valid underany principle—made acceptance of the request to deliver the Closing Remarks a joyunspeakable.

The first reason: This is my first official visit to this new PHILJA Training Center whichwas primarily built from a grant of the Government of Japan for which, modesty aside, Iworked very hard to obtain. I even breached diplomatic protocol with the Japan InternationalCooperation Agency (JICA) which initially offered to assist to fund the project. The breachturned out to be a blessing in disguise when the Japanese Government finally decided tomake the grant on a special basis. The grant was approved a month before I retired.

The second reason: The award is named in honor of Justice Ameurfina MelencioHerrera, the Founding Chancellor of PHILJA, who served as Chancellor for more than adecade. She was the PHILJA for the many years she served as Chancellor. During my watchfor more than seven years as Chief Justice, she expressed many times her desire not to bereappointed. But having worked with her for seven years in the Board of Trustees and having

Closing RemarksCh ief Justice Hilario G. Davide, Jr. (Ret.)

56 CLOSING REMARKS I CHIEF JUSTICE HILARIO G. DAVIDE, JR. (RET.)

known her as a great lady and a quintessential justice, I pleaded that she should continue toserve because she is the life of the PHILJA which she had served with all her heart, mind,soul, strength and resources. Her love for the PHILJA was, and remains to be, unparalleled.Truly, it is but fitting and proper that the award for the Most Outstanding Professorial Lecturerbe in her honor. And it is more fitting and proper yet that her children Atty. Florentino HerreraIII, Dr. Victoria Lourdes Herrera-Ruiz and Dr. Milagros Herrera-Arroyo have taken the initiativeto establish a Three Million Peso (P3 million) endowment in her name. This was their veryprecious gift to her on her 90th birth anniversary last May. What a perfect demonstration oflove for a mother! An example difficult to follow. With Atty. Herrera are his two daughters,Ana and Amor, who are lawyers. Also with them are their relatives who I greet: formerPrime Minister Cesar Virata and ConCom Commissioner Fely Aquino Arroyo, my favoritecolleague in the ConCom of 1986.

The third reason: the aims of the award are of special importance to achieve thevision of PHILJA and to promote its national and even international prestige, namely, todevelop and enhance PHILJA programs in judicial education and to publish treatisesintroducing innovative concepts and approaches in designated areas of law which willpromote competence, excellence, and efficiency in the Philippine Justice System.

The fourth reason: The awardee—my good friend Chancellor Justice Adolfo S.Azcuna—is best qualified to receive the award. On the professorial level itself, he is the bestI know of especially on topics his expertise are most outstanding, including photography.Upon my request or at his own instance when in the mood, he lectured to me on manyoccasions during our days in the Constitutional Convention of 1971, the ConstitutionalCommission of 1986, and in the Supreme Court. He was always convincing, even if,sometimes, I was not convinced. As a brilliant lecturer and a product of the Ateneo, heknew too well if I was not convinced.

The fifth reason: His lecture this afternoon is on a primary subject which ChancellorAzcuna alone, I very respectfully submit and “with due respect,” to quote the title of the PDIcolumn of retired Chief Justice Artemio V. Panganiban, is the most authoritative in thePhilippines. While Justice Carpio considers Chancellor Azcuna as the father of the writ ofAmparo, I proclaim him the legitimate father and mother of the writ of Amparo in thePhilippines. He was the only Commissioner of the 1986 Constitutional Commission, and theonly Filipino for that matter, who insisted in the incorporation in the Constitution of the writof Amparo. In the Commission he filed a resolution docketed as Proposed Resolution No.18, entitled, Resolution to Provide for Constitutional Writ of Amparo,1 which was referredto the Committee on the Judiciary on the second plenary session of the Commission onJune 2, 1986.

1 Vol. 1, Record of the Constitutional Commission, p. 14.


While the Committee on the Judiciary chaired by Chief Justice Roberto R. Concepciondid not decide to specifically include the writ of Amparo by name, its Committee Report,docketed in the Commission as Committee Report No. 18, specifically mentions that thebasic concept or substance of Commissioner Azcuna’s Proposed Resolution No. 18 wasapproved and indicated as one of the sources of Section 7, paragraph (5) of the proposedArticle on the Judiciary. This is now paragraph (5), Section 5 of Article VIII of our 1987Constitution. Section 5 enumerates the power of the Supreme Court and paragraph 5 thereofis the power to, among others, “promulgate rules concerning the protection and enforcementof constitutional rights.”2 In his answer to the interpellation of Commissioner FelicitasAquino, Chairman Concepcion answered that this part of the paragraph “was introducedupon the request of Commissioner Azcuna in order to stress that constitutional rights arenot merely declaratory but are also enforceable. That is why this phrase which did not appearin the 1973 Constitution is an innovation.”3 These facts must be a part of the Philippineexperience on the writ of amparo.

The sixth reason, but certainly not the last: Chancellor Azcuna as then the examinerin Political and Public International Law of the 1991 Bar Examinations submitted to me, asChairman of the Bar Committee, 50 questions written in his own hand, from which I wouldchoose which should be the final questions on the subject. One of them is: What is theConstitutional writ of amparo and what is the basis for such remedy under the Constitution?I selected this as the number one question for the 1991 Bar examinees in Political and PublicInternational Law. I knew that only a handful of examinees could correctly answer the

Chief Justice Hilario G.Davide, Jr. (Ret.) delivers

the closing remarks atthe PHILJA FoundingChancellor Emeritus

Justice AmeurfinaMelencio Herrera

Award for the MostOutstanding Professorial

Lecturer held onNovember 12, 2012, at

the PHILJA TrainingCenter, Tagaytay City.

2 Vol. 1, Record of the Constitutional Commission, pp. 430–433.3 Id. at p. 459.

58 CLOSING REMARKS I CHIEF JUSTICE HILARIO G. DAVIDE, JR. (RET.)

question and I intended it to be a shocker to test their mental equanimity and ability toquickly respond to difficult situations, as are demanded of lawyers. Many could not answerthe question, many were in tears. Blame Examiner Azcuna for their misfortune. Unfortunately,the examinees who did not know the writ of Amparo blamed me. They thought that Amparowas the given name of Mrs. Davide who I love very much. This misfortune to the 1991 Barexaminees must also be a part of the Philippine experience on the writ of amparo.

I would say that this ceremony this afternoon is the celebration of three famousnames – Azcuna, Herrera and Amparo whose acronym AHA is an interjection that expressestriumph as well as satisfaction. Or, the famous given names Adolfo, Ameurfina and Amparowhose acronym is AAA. A triple A is a sign of perfection and completeness. Or, moreappropriately perhaps, it means Accelerating the Achievement of the Agenda of the PHILJA.Their convergence in our midst enriches our Constitutional history and nurtures the visionand values of PHILJA.

Congratulations to Founding Chancellor Herrera and Chancellor Azcuna. VivaAmparo!

Undoubtedly, ours has been the honor and privilege to witness the convergence.

I thus close with a prayer and hope that what Founding Chancellor Herrera hassown and cultivated in PHILJA, Chancellor Azcuna will nurture with love, compassion anddevotion, perhaps in a measure higher than that for Amparo or even for Maria Asuncion hisbeloved wife.

God bless us all.


Administrative Matter No. 07-9-12-SC

THE RULE ON THE WRIT OF AMPARO

(As amended by the Resolution of theCourt En Banc dated October 16, 2007)

Effective October 24, 2007

SECTION 1. Petition. – The petition for a writ of amparo is a remedy available to any personwhose right to life, liberty and security is violated or threatened with violation by an unlawfulact 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.

SEC. 2. Who May File. – The petition may be filed by the aggrieved party or by any qualifiedperson or entity in the following order:

a. Any member of the immediate family, namely: the spouse, children and parentsof the aggrieved party;

b. Any ascendant, descendant or collateral relative of the aggrieved party withinthe fourth civil degree of consanguinity or affinity, in default of those mentionedin the preceding paragraph; or

c. Any concerned citizen, organization, association or institution, if there is noknown member of the immediate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other authorizedparties to file similar petitions. Likewise, the filing of the petition by an authorized party onbehalf of the aggrieved party suspends the right of all others, observing the order establishedherein.

SEC. 3. Where to File. – The petition may be filed on any day and at any time with theRegional Trial Court of the place where the threat, act or omission was committed or any ofits elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court,or any justice of such courts. The writ shall be enforceable anywhere in the Philippines.

Appendix A

60 APPENDIX A I THE RULE ON THE WRIT OF AMPARO I ADMINISTRATIVE MATTER NO. 07-9-12-SC

When issued by a Regional Trial Court or any judge thereof, the writ shall be returnablebefore such court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any of their justices,it may be returnable before such court or any justice thereof, or to any Regional Trial Courtof 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, it may be returnable beforesuch Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals orany of their justices, or to any Regional Trial Court of the place where the threat, act oromission was committed or any of its elements occurred.

SEC. 4. No Docket Fees. – The petitioner shall be exempted from the payment of the docketand other lawful fees when filing the petition. The court, justice or judge shall docket thepetition and act upon it immediately.

SEC. 5. Contents of Petition. – The petition shall be signed and verified and shall allege thefollowing:

a. The personal circumstances of the petitioner;

b. The name and personal circumstances of the respondent responsible for thethreat, act or omission, or, if the name is unknown or uncertain, the respondentmay be described by an assumed appellation;

c. The right to life, liberty and security of the aggrieved party violated or threatenedwith violation by an unlawful act or omission of the respondent, and how suchthreat or violation is committed with the attendant circumstances detailed insupporting affidavits;

d. The investigation conducted, if any, specifying the names, personalcircumstances, and addresses of the investigating authority or individuals, aswell 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 orwhereabouts of the aggrieved party and the identity of the person responsiblefor the threat, act or omission; and

f. The relief prayed for.

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

SEC. 6. Issuance of the Writ. – Upon the filing of the petition, the court, justice or judge shallimmediately order the issuance of the writ if on its face it ought to issue. The clerk of court


shall issue the writ under the seal of the court; or in case of urgent necessity, the justice orthe judge may issue the writ under his or her own hand, and may deputize any officer orperson to serve it.

The writ shall also set the date and time for summary hearing of the petition whichshall not be later than seven days from the date of its issuance.

SEC. 7. Penalty for Refusing to Issue or Serve the Writ. – A clerk of court who refuses toissue the writ after its allowance, or a deputized person who refuses to serve the same, shallbe punished by the court, justice or judge for contempt without prejudice to other disciplinaryactions.

SEC. 8. How the Writ is Served. – The writ shall be served upon the respondent by a judicialofficer or by a person deputized by the court, justice or judge who shall retain a copy onwhich to make a return of service. In case the writ cannot be served personally on therespondent, the rules on substituted service shall apply.

SEC. 9. Return; Contents. – Within five working days after service of the writ, the respondentshall file a verified written return together with supporting affidavits which shall, amongother things, contain the following:

a. The lawful defenses to show that the respondent did not violate or threatenwith violation the right to life, liberty and security of the aggrieved party, throughany act or omission;

b. The steps or actions taken by the respondent to determine the fate orwhereabouts of the aggrieved party and the person or persons responsible forthe threat, act or omission;

c. All relevant information in the possession of the respondent pertaining to thethreat, act or omission against the aggrieved party; and

d. If the respondent is a public official or employee, the return shall further statethe 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 ofthe person identified in the petition which may aid in the prosecution of theperson or persons responsible;

iii. to identify witnesses and obtain statements from them concerning the deathor disappearance;


iv. to determine the cause, manner, location and time of death ordisappearance as well as any pattern or practice that may have broughtabout the death or disappearance;

v. to identify and apprehend the person or persons involved in the death ordisappearance; and

vi. to bring the suspected offenders before a competent court.

The period to file a return cannot be extended except on highly meritorious ground.

The return shall also state other matters relevant to the investigation, its resolutionand the prosecution of the case.

A general denial of the allegations in the petition shall not be allowed. (as amendedby the Resolution of the Court En Banc dated October 16, 2007).

SEC. 10. Defenses not Pleaded Deemed Waived. – All defenses shall be raised in the return,otherwise, they shall be deemed waived.

SEC. 11. Prohibited Pleadings and Motions. – The following pleadings and motions areprohibited:

a. Motion to dismiss;

b. Motion for extension of time to file, opposition, affidavit, position paper andother pleadings;

c. Dilatory motion for postponement;

d. Motion for a bill of particulars;

e. Counterclaim or cross-claim;

f. Third-party complaint;

g. Reply;

h. Motion to declare respondent in default;

i. Intervention;

j. Memorandum;


k. Motion for reconsideration of interlocutory orders or interim relief orders; and

l. Petition for certiorari, mandamus or prohibition against any interlocutory order(as amended by the Resolution of the Court En Banc dated October 16, 2007).

SEC. 12. Effect of Failure to File Return. – In case the respondent fails to file a return, thecourt, justice or judge shall proceed to hear the petition ex parte.

SEC. 13. Summary Hearing. – The hearing on the petition shall be summary. However, thecourt, justice or judge may call for a preliminary conference to simplify the issues anddetermine the possibility of obtaining stipulations and admissions from the parties.

The hearing shall be from day to day until completed and given the same priority aspetitions for habeas corpus.

SEC. 14. Interim Reliefs. – Upon filing of the petition or at anytime before final judgment,the court, justice or judge may grant any of the following reliefs:

a. Temporary Protection Order. – The court, justice or judge, upon motion or motuproprio, may order that the petitioner or the aggrieved party and any memberof the immediate family be protected in a government agency or by an accreditedperson or private institution capable of keeping and securing their safety. If thepetitioner is an organization, association or institution referred to in Section2(c) of this Rule, the protection may be extended to the officers involved.

The Supreme Court shall accredit the persons and private institutionsthat shall extend temporary protection to the petitioner or the aggrieved partyand any member of the immediate family, in accordance with guidelines whichit shall issue.

The accredited persons and private institutions shall comply with therules and conditions that may be imposed by the court, justice or judge.

b. Inspection Order. – The court, justice or judge, upon verified motion and afterdue hearing, may order any person in possession or control of a designatedland or other property, to permit entry for the purpose of inspecting, measuring,surveying, or photographing the property or any relevant object or operationthereon.

The motion shall state in detail the place or places to be inspected. Itshall be supported by affidavits or testimonies of witnesses having personalknowledge of the enforced disappearance or whereabouts of the aggrievedparty.


If the motion is opposed on the ground of national security or of theprivileged nature of the information, the court, justice or judge may conduct ahearing in chambers to determine the merit of the opposition.

The movant must show that the inspection order is necessary toestablish the right of the aggrieved party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized tomake the inspection and the date, time, place and manner of making theinspection and may prescribe other conditions to protect the constitutional rightsof all parties. The order shall expire five days after the date of its issuance,unless extended for justifiable reasons.

c. Production Order. – The court, justice or judge, upon verified motion and afterdue hearing, may order any person in possession, custody or control of anydesignated documents, papers, books, accounts, letters, photographs, objectsor tangible things, or objects in digitized or electronic form, which constitute orcontain evidence relevant to the petition or the return, to produce and permittheir inspection, copying or photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or ofthe privileged nature of the information, in which case the court, justice or judgemay conduct a hearing in chambers to determine the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protectthe constitutional rights of all the parties.

d. Witness Protection Order. – The court, justice or judge, upon motion or motuproprio, may refer the witnesses to the Department of Justice for admission tothe Witness Protection, Security and Benefit Program, pursuant to Republic ActNo. 6981.

The court, justice or judge may also refer the witnesses to othergovernment agencies, or to accredited persons or private institutions capableof keeping and securing their safety.

SEC. 15. Availability of Interim Reliefs to Respondent. – Upon verified motion of therespondent and after due hearing, the court, justice or judge may issue an inspection orderor production order under paragraphs (b) and (c) of the preceding section.

A motion for inspection order under this section shall be supported by affidavits ortestimonies of witnesses having personal knowledge of the defenses of the respondent.


SEC. 16. Contempt. – The court, justice or judge may order the respondent who refuses tomake a return, or who makes a false return, or any person who otherwise disobeys or resistsa lawful process or order of the court to be punished for contempt. The contemnor may beimprisoned or imposed a fine.

SEC. 17. Burden of Proof and Standard of Diligence Required. – The parties shall establishtheir claims by substantial evidence.

The respondent who is a private individual or entity must prove that ordinary diligenceas required by applicable laws, rules and regulations was observed in the performance ofduty.

The respondent who is a public official or employee must prove that extraordinarydiligence as required by applicable laws, rules and regulations was observed in theperformance of duty.

The respondent public official or employee cannot invoke the presumption thatofficial duty has been regularly performed to evade responsibility or liability.

SEC. 18. Judgment. – The court shall render judgment within 10 days from the time thepetition is submitted for decision. If the allegations in the petition are proven by substantialevidence, the court shall grant the privilege of the writ and such reliefs as may be proper andappropriate; otherwise, the privilege shall be denied.

SEC. 19. Appeal. – Any party may appeal from the final judgment or order to the SupremeCourt under Rule 45. The appeal may raise questions of fact or law or both.

The period of appeal shall be five working days from the date of notice of the adversejudgment.

The appeal shall be given the same priority as in habeas corpus cases.

SEC. 20. Archiving and Revival of Cases. – The court shall not dismiss the petition, but shallarchive it, if upon its determination it cannot proceed for a valid cause such as the failure ofpetitioner or witnesses to appear due to threats on their lives.

A periodic review of the archived cases shall be made by the amparo court thatshall, motu proprio or upon motion by any party, order their revival when ready for furtherproceedings. The petition shall be dismissed with prejudice upon failure to prosecute thecase after the lapse of two years from notice to the petitioner of the order archiving thecase.


The clerks of court shall submit to the Office of the Court Administrator aconsolidated list of archived cases under this Rule not later than the first week of January ofevery year.

SEC. 21. Institution of Separate Actions. – This Rule shall not preclude the filing of separatecriminal, civil or administrative actions.

SEC. 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced,no separate petition for the writ shall be filed. The reliefs under the writ shall be available bymotion in the criminal case.

The procedure under this Rule shall govern the disposition of the reliefs availableunder the writ of amparo.

SEC. 23. Consolidation. – When a criminal action is filed subsequent to the filing of a petitionfor the writ, the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petitionfor a writ of amparo, the latter shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to apply to thedisposition of the reliefs in the petition.

SEC. 24. Substantive Rights. – This Rule shall not diminish, increase or modify substantiverights recognized and protected by the Constitution.

SEC. 25. Suppletory Application of the Rules of Court. – The Rules of Court shall applysuppletorily insofar as it is not inconsistent with this Rule.

SEC. 26. Applicability to Pending Cases. – This Rule shall govern cases involving extralegalkillings and enforced disappearances or threats thereof pending in the trial and appellatecourts.

SEC. 27. Effectivity. – This Rule shall take effect on October 24, 2007, following its publicationin three newspapers of general circulation.


1 Magna Carta of 1215, Fordham University Medieval Sourcebook, available at <http://www.fordham.edu/hall/souce/mcarta.html> (last accessed September 11, 2007).

2 Declaration of the Rights of Man, The Avalon Project at Yale Law School, available at <http://www.yale.edu//lawwed/avalon/rightsof.htm> (last accessed September 11, 2007).

THE RATIONALE FOR THE WRIT OF AMPARO

INTRODUCTION

The care of human life and happiness, and not their destruction,is the first and only object of good government.

–Thomas Jefferson

Human rights, collectively, is a concept that has long been constantly evolving throughtouthistory. It is intricately tied to laws, customs and religions throughout the ages, and inConstitutions and international instruments in modern times. Experience is the life of thelaw and history is the cauldron of human rights. As early as 4000 B.C.E. the Sumerian KingHammurabi codified laws to arrest arbitrariness and impose a sense of universal fairness toall his subjects.

In ancient Greece, human rights began to take a greater meaning than mereprevention of arbitrary persecution. Human rights became synonymous with natural rightsor those rights that spring from natural laws. Human rights deriving from the philosophicalideal of natural rights meant that the innate rights of individuals are present even if there isno legal system in place to protect them. According to the Greek tradition of Socrates andPlato, natural law is that which reflects the natural order of the universe, essentially the willof the gods who control nature. A classical example of this was when Creon approachedAntigone for defying the gods. The idea of natural rights continued in ancient Rome, wherethe Roman jurist Ulpian believed that natural rights belonged to every person—whetherthey be Roman citizens or not. Another Roman jurist, Justinian, published his Codex of variouslaws in the early sixth century, setting the precedent for further codifications.

The recognition by Thomas Hobbes (1588–1679) of the idea of positive law sawnatural law as being overshadowed for having been too vague and subject to so manydifferent interpretations. Legal positivism, with Jeremy Bentham in the forefront, dealtnatural law a fatal blow, when he argued that under positive law, “right is a child of law, fromreal laws come real rights, but from imaginary law, from ‘laws of nature,’ come imaginaryrights x x x natural rights is simple nonsense.”

Abstract ideas regarding human rights and their relation to the will of nature weretransformed into concrete laws, as exemplified best by various legal documents such as theBritish Magna Carta (1215);1 the French Declaration of the Rights of Man (1789);2 theAmerican Bill of Rights (1789) and the Geneva Convention (1894).

68 APPENDIX A I THE RULE ON THE WRIT OF AMPARO I RATIONALE

Historically, human rights legislation dramatically increased after the Magna Cartaand many countries, the Philippines being one of them, followed the liberal individualistideas of the American Bill of Rights, which restated and affirmed many human rights in theEnglish tradition. These liberal-individualist thoughts flowed from the West to the East andnow form a larger part of the prevailing human rights doctrines, legislation, norms andtheories. But it is in the individual experience of every state where human rights find contextand application.

This paper will trace the legal history and explore the rationale bases for theapplication of the writ of amparo, a writ to protect constitutional rights, in the Philippines.Part I will cover the early legal history of the writs that protect human rights. Part II willdiscuss the prevailing trend of internationalization of human rights. Part III will discuss theproblem of extralegal killings and enforced disappearances and the measures implementedin Latin America. Part IV will discuss the Philippine experience.

I. EARLY LEGAL HISTORY

The belief that everyone, by virtue of one’s humanity, is entitled to certain human rights isfairly new. Its roots, however, lie in earlier tradition and documents of many cultures. Ittook the catalyst of World War II to propel human rights onto the global stage and into theglobal conscience.

A. The Magna Carta

In England, during the medieval times, the monarch was the sovereign. This absolutistsovereignty advanced in the 12th century and the English king by the end of the 12th centurybecame one of the most powerful monarchs in Europe. But when King John of England wascrowned in the early 13th century, a series of failures at home and abroad, combined withperceived abuses of the king’s power, led the English barons to revolt and attempt to restrainwhat the king could legally do. This was the beginning of constitutionalism in the modernworld—the dogma of absolutism was at an end.

By 1215, some of the most important barons in England had had enough, and theyentered London in force on June 10, 1215, with the city showing its sympathies with theircause by opening its gates to them. They forced King John to agree to the “Articles of theBarons,” to which his Great Seal was attached at Runnymede on June 15, 1215. In return,the barons renewed their oaths of fealty to King John on June 19, 1215. A formal documentto record the agreement was created by the royal chancery on July 15; this document iswhat will soon be known as the Magna Carta or the Great Charter.

When King John died during the war, on October 18, 1216, his nine-year-old son,Henry III, was next in line to the throne and was swiftly crowned in late October 1216.Henry’s regents reissued the Magna Carta in his name on November 12, 1216. When he


turned 18 in 1225, Henry III himself reissued the Magna Carta, this time in a shorter versionwith only 37 articles. Henry III ruled for 56 years (the longest reign of an English monarch inthe medieval period), so that by the time of his death in 1272, the Magna Carta had becomea settled part of English legal precedent. The Parliament of Henry III’s son and heir, EdwardI, reissued the Magna Carta for the final time on October 12, 1297, as part of a statute calledConfirmatio Cartarum (25 Edw. I), reconfirming Henry III’s shorter version of the Magna Cartafrom 1225.

The Magna Carta is the progenitor of the modern Constitution. Basic rights such asthe right to due process can be found therein

Clause 29 is foretelling:

29. No Freeman shall be taken or imprisoned or be disseized of his Freehold,or Liberties, or free Customs, or be outlawed, or exiled, or any other wisedestroyed; nor will We not pass upon him, nor condemn him, but by lawfuljudgment of his Peers, or by the Law of the Land. We will sell to no man,we will not deny or defer to any man either Justice or Right.3

For modern times, the most enduring legacy of the Magna Carta is the right of habeascorpus. As previously provided in the 1297 version:

36. Henceforth nothing shall be given or taken for a writ of inquest in a matterconcerning life or limb; but it shall be conceded gratis, and shall not bedenied.

x x x x

38. No bailiff, on his own simple assertion, shall henceforth put any one to hislaw, without producing faithful witnesses in evidence.

39. No freeman shall be taken, or imprisoned, or disseized, or outlawed, orexiled, or in any way harmed—nor will we go upon or send upon him—save by the lawful judgment of his peers or by the law of the land.

40. To none will we sell, to none deny or delay, right or justice.4

Clauses 36, 38, 39 and 40 collectively defined the right of habeas corpus. Clause 36required courts to make inquiries as to the whereabouts of a prisoner, and to do so withoutcharging any fee. Clause 38 required more than the mere word of an official, before anyperson could be put on trial. Clause 39 gave the courts exclusive rights to punish anyone.

3 Magna Carta of 1297, UK Law Database available at <http://www.statutelaw.gov.uk/content.aspx?activeTextDocID=1517519> (last accessed September 9, 2007).

4 Magna Carta of 1297, UK Law Database available at <http://www.statutelaw.gov.uk/content.aspx?activeTextDocID=1517519> (last accessed September 9, 2007).


Clause 40 disallowed the selling or the delay of justice. Clauses 36 and 38 were removedfrom the 1225 version, but were reinstated in later versions. The right of habeas corpus, assuch, was first invoked in court in the year 1305.

B. The Habeas Corpus

In common law, habeas corpus5 has historically been an important instrument for thesafeguarding of individual freedom against arbitrary State action.

Blackstone noted:

If any person be restrained of his liberty by order or decree of any illegal court,or by command of the king’s majesty in person, or by warrant of the councilboard, or of any of the privy council; he shall upon demand of his counsel,have a writ of habeas corpus, to bring his body before the court of king’s benchor common pleas; who shall determine whether the cause of his commitmentbe just, and thereupon do as to justice shall appertain. And by the habeascorpus act [of 1679], the methods of obtaining this writ are plainly pointedout and enforced, that, so long as this statute remains unimpeached, no subjectof England can be long detained imprison, except in those cases in which thelaw requires and justifies such detainer x x x.6

In early common law, much of the business of the courts began with the issuance ofone of several writs, many of which have survived to this day. The writs were a series ofwritten order forms, issued by the court in the name of the king, commanding the individualto whom they were addressed to return the writ to the court for the purpose stated in thewrit. The purpose was generally reflected in the name of the writ itself. Thus, for example,a subpoena ad testificandum was a command to return the writ to the court at a specifiedtime and place, sub poena, that is, “under penalty” for failure to comply; and “adtestificandum” that is, “for the purpose of testifying.”

5 The writ of habeas corpus is often referred to in full in legal texts as habeas corpus adsubjiciendum or more rarely ad subjiciendum et recipiendum. The name derives from theoperative words of the writ in Medieval Latin: “Praecipimus tibi quod corpus A.B. in prisonanostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionissuae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis x x x adsubjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigeritin hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve.”(Translation: We command you, that the body of A.B. in Our prison under your custodydetained, as it is said, together with the day and cause of his taking and detention, bywhatsoever name the said A.B. may be known therein, you have at our Court x x x to undergoand to receive that which our Court shall then and there consider and order that in behalf.Hereof in no way fail, at your peril. And have there this writ.)

6 I BLACKSTONE, COMMENTARIES 131 (italics in the original) (transliteration provided) (1st ed. 1765–1769).


Also known as “The Great Writ,” a writ of habeas corpus ad subjiciendum is a courtorder addressed to a prison official (or other custodian), ordering that a prisoner be broughtbefore the court so that the court can determine whether that person is serving a lawfulsentence or should be released from custody. The prisoner, or some other person in hisbehalf (for example, when the prisoner is being held incommunicado), may petition the courtor an individual judge for a writ of habeas corpus.

The right of habeas corpus—or rather, the right to petition for the writ—has longbeen celebrated as the most efficient safeguard of the liberty of the subject. Dicey wrotethat the Habeas Corpus Acts “declare no principle and define no rights, but they are forpractical purposes worth a hundred constitutional articles guaranteeing individual liberty.”

There are several types of habeas corpus:7

1. Habeas corpus ad deliberandum et recipiendum, a writ for bringing an accusedfrom a different country into a court in the place where an offense had beencommitted for purposes of trial, or more literally to return holding the body forpurposes of “deliberation and receipt” of a decision.

2. Habeas corpus ad faciendum et recipiendum, a writ of a court of superiorjurisdiction to a custodian to return with the body being held in confinementpursuant to the order of a lower court for purposes of “receiving” the court’sdecision and of “doing” with the prisoner what the court instructed.

3. Habeas corpus ad faciendum, subjiciendum et recipiendum, or more simply,habeas corpus ad subjiciendum, a writ ordering a custodian with a prisoner forthe purposes of “submitting” the question of confinement to the court, of“receiving” its decision, and of “doing” what the court instructed with theprisoner.

4. Habeas corpus ad prosequendum, a writ ordering return with a prisoner for thepurpose “prosecuting” him before the court.

5. Habeas corpus ad respondendum, a writ ordering return to a court of superiorjurisdiction of a body under the jurisdiction of a lower court for purposes ofallowing the individual to “respond” with respect to matters under considerationin the high tribunal.

6. Habeas corpus ad satisfaciendum, a writ ordering return with the body of aprisoner for “satisfaction” or execution of a judgment of the issuing court.

7 BLACK’S LAW DICTIONARY, 715 (7th ed. 1999); 1 BOUVIER’S LAW DICTIONARY, 1400–408(11th ed. 1914); Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95–8 (1807); for English history ofhabeas corpus see DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS, 12–94 (1980);IX HOLDSWORTH, A HISTORY OF ENGLISH LAW, 104–25 (2nd ed. 1938).


7. Habeas corpus ad testificandum, a writ ordering return with the body of a prisonerfor the purposes of “testifying”; and

8. Habeas corpus cum causa, a writ ordering return with the body of a prisoner and“with the cause” of his confinement so that the issuing court might pass uponthe validity of continued confinement and issue appropriate additional orders.

Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305,during the reign of King Edward I. However, other writs were issued with the same effect asearly as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ,saying “the King is at all times entitled to have an account, why the liberty of any of hissubjects is restrained, wherever that restraint may be inflicted.”8 The procedure for issuingwrits of habeas corpus was first codified by the Habeas Corpus Act of 1679, following judicialrulings which had restricted the effectiveness of the writ. A previous act had been passed in1640 to overturn a ruling that the command of the King was a sufficient answer to a petitionof habeas corpus.

Then, the writ of habeas corpus was issued by a superior court in the name of theSovereign and commanded the addressee (a lower court, sheriff, or private subject) toproduce the prisoner before the royal courts of law. A habeas corpus petition could bemade by the prisoner himself or by a third party on his behalf and, as a result of the HabeasCorpus Acts, could be made regardless of whether the court was in session, by presentingthe petition to a judge.

Since the 18th century, the writ has also been used in cases of unlawful detention byprivate individuals, most famously in Somersett’s Case (1771), in which the black slaveSomersett was ordered to be freed, in the famous words being quoted: “The air of Englandhas long been too pure for a slave, and every man is free who breathes it.”

At about the same time, in France, the clamor for freedom was also being heard,but a more serious one—that of political freedom and the fall of the monarchy—culminatedin the revolution of 1789. In another continent, the people of the New World were alsoclamoring for their independence from their colonizers—a shout that would be heard theworld over.

C. The United States Constitution and the Bill of Rights

In 1776, the United States of America declared independence. The United States Declarationof Independence9 (Declaration) was an act of the Second Continental Congress, adoptedon July 4, 1776, which declared that the Thirteen Colonies were independent of Great Britain.

8 I BLACKSTONE, COMMENTARIES 133.9 U.S. Declaration of Independence, U.S. National Archives and Records Administration in

Washington, D.C.


The document, formally entitled “The Unanimous Declaration of the Thirteen United Statesof America” and written chiefly by Thomas Jefferson, explained the justifications forseparation from the British crown, and was an expansion of Richard Henry Lee’s Resolution(passed by Congress in July 2), which first proclaimed independence.

The Declaration is considered to be a founding document that preceded the laterformed United States of America, where July 4 is celebrated as Independence Day. At thetime the Declaration was issued, the American colonies were “united” in declaring theirindependence from Great Britain, but were not yet declaring themselves to be a single nation.That union would evolve and take shape during the next few years after the Declaration wasissued. John Hancock was the first to sign the Declaration of Independence.

The Declaration proclaimed that: “We hold these truths to be self-evident, that allmen are created equal, that they are endowed by their Creator with certain unalienableRights, that among these are Life, Liberty and the pursuit of Happiness.”10

U.S. President Abraham Lincoln succinctly explained the central importance of theDeclaration to American history in his Gettysburg Address of 1863:

Fourscore and seven years ago our fathers brought forth on this continent anew nation, conceived in liberty, and dedicated to the proposition that all menare created equal x x x.11

These first principles were further enshrined in what would be considered acodification of rights—the United States Bill of Rights.

The United States Bill of Rights consists of the first 10 amendments to the UnitedStates Constitution. These amendments limit the powers of the federal government inprotecting the rights of all citizens, residents and visitors on United States territory. Amongthe enumerated rights these amendments guarantee are: the freedoms of speech, thepress, and religion; the people’s right to keep and bear arms; the freedom of assembly;the freedom to petition; and the rights to be free of unreasonable search and seizure;cruel and unusual punishment; and compelled self-incrimination. The United States Billof Rights also restricts Congress’ power by prohibiting it from making any law respecting theestablishment of religion and by prohibiting the federal government from depriving any personof life, liberty, or property without due process of law. In criminal cases, it requires indictmentby grand jury for any capital or “infamous crime,” guarantees a speedy public trial with animpartial and local jury, and prohibits double jeopardy. In addition, the United States Bill ofRights states that “the enumeration in the Constitution of certain rights, shall not be construed

10 N.B.: The original handwritten text ended on the phrase “the pursuit of property” ratherthan “the pursuit of Happiness” but the phrase was changed in subsequent copies, in partbecause it was broader. The latter phrase is used today.

11 Abraham Lincoln, Gettysburg Address of 1863 (emphasis supplied); see also CARL F. WIECK,LINCOLN’S QUEST FOR EQUALITY: THE ROAD TO GETTYSBURG (2002).


to deny or disparage others retained by the people,” and reserves all powers not granted tothe Federal government, to the citizenry, or the states.

These amendments came into effect on December 15, 1791, when ratified by three-fourths of the states. Most were applied to the states by a series of decisions applying thedue process clause of the Fourteenth Amendment, which was adopted after the AmericanCivil War.

Initially drafted by James Madison in 1789, the United States Bill of Rights was writtenat a time when ideological conflict between Federalists and anti-Federalists, dating fromthe Philadelphia Convention in 1787, threatened the ratification of the Constitution.

The United States Bill of Rights was influenced by George Mason’s 1776 VirginiaDeclaration of Rights, the 1689 English Bill of Rights, works of the Age of Enlightenmentpertaining to natural rights, and earlier English political documents such as the Magna Carta(1215). The Bill was largely a response to the Constitution’s influential opponents, includingprominent founding fathers, who argued that it failed to protect the basic principles of humanliberty.

The English Bill of Rights (1689), one of the fundamental documents of English lawwhose roots can be traced to the Magna Carta of 1225, differed substantially in form andintent from the United States Bill of Rights, because it was intended to address the rights ofcitizens as represented by Parliament against the Crown. However, some of the basic tenetsof the English Bill of Rights are adopted and extended to the general public by the UnitedStates Bill of Rights, including the right of petition; an independent judiciary (the sovereignwas forbidden to establish his own courts or to act as a judge himself); freedom from taxationby royal (executive) prerogative, without agreement by Parliament (legislators); freedomfrom a peace-time standing army; freedom [for Protestants] to bear arms for self-defence;freedom to elect members of Parliament without interference from the Sovereign; freedomof speech in Parliament; freedom from cruel and unusual punishment and excessive bail,and freedom from fines and forfeitures without trial.

Also borrowing from the traditions of the English legal system and the libertarianphilosophies of the French Revolution, the United States Constitution specifically includedthe English common law procedure in the Suspension Clause, located in Article One, Section9. It states: “The privilege of the writ of habeas corpus shall not be suspended unless whenin cases of rebellion or invasion, the public safety may require it.”12

Furthermore, the amendments that would soon become the Bill of Rightsstrengthened the individual liberties and highlighted the interplay between the governmentand the individuals, with the Constitution being the contract of governance.13

12 U.S. CONSTITUTION, Art. I, Sec. 9.13 IRVING GRANT, THE BILL OF RIGHTS: ITS ORIGIN AND MEANING (1965).


D. The French Declaration of the Rights of Man

A month after the storming of the Bastille in 1789, the French National Assembly wasconvened and the La Déclaration des Droits de l’Homme et du Citoyen (The Declaration ofthe Rights of Man and of the Citizen) was promulgated. La Déclaration is one of thefundamental documents of the French Revolution, defining a set of individual rights andcollective rights of all the estates as one. Influenced by the doctrine of natural rights, theserights are universal: they are supposed to be valid at all times and places, pertaining tohuman nature itself. The last article of the Declaration was adopted August 26, 1789, by theAssemblée Nationale Constituante (National Constituent Assembly), as the first step towardwriting a Constitution. While it set forth fundamental rights, not only for French citizens butfor everyone without exception, the “First Article [states]–Men are born and remain freeand equal in rights. Social distinctions can be founded only on the common utility.”

The principles set forth in the declaration are of constitutional value in present-dayFrench law and may be used to oppose legislation or other government activities.

E. World Wars I and II

The end of the 19th century saw the rise of prominent countries adopting human rightsprinciples as part of their Constitutions. Efforts in the 19th century to prohibit slavery and tolimit the devastations of war, especially in terms of loss of lives both of combatants andnoncombatants are prime examples. These concerns on human rights provided impetus tothe formation of the League of Nations, to protect minority groups; and to the InternationalLabour Organization (ILO) to protect the rights of workers.

This trend of protecting human rights was cut short when World War I erupted. TheLeague of Nations floundered because it failed to prevent Japan’s invasion of China andMachuria (1931) and Italy’s attack on Ethiopia (1935). The refusal of the United States tojoin aggravated the weakness of the League of Nations.

In 1939, the World War II finally gave the death blow to the triumph of peace throughinternational cooperation. The war, however, demonstrated the need for greater protectionof human rights of people, especially against attacks by their own governments. It took thisbloody World War to jumpstart the internationalization of human rights.

F. The Birth of the United Nations

The Hitler government’s extermination of over six million Jews, Sinti and Romani,homosexuals, and persons with disabilities horrified the world. So did the cruel excesses ofthe Japanese in the conduct of war. Trials were held in Nuremberg and Tokyo after theSecond World War, and officials from defeated countries were charged with and punishedfor committing war crimes, “crimes against peace,” and “crimes against humanity.” It was


the first time the concept of crimes against humanity was used to bring to justice officialswho could have escaped liability if they had been prosecuted on the basis of their domesticlaws.

The result boosted the campaign for human rights. From across the globe came thecalls for human rights standards to protect citizens from abuses by their own governments,standards against which nations and ruling governments could be held accountable.Worldwide, people demanded that never again would anyone be unjustly denied life, libertyand their basic social and economic necessities.

Responding to these demands for internationalization of human rights, U.S.President Franklin D. Roosevelt, in his 1941 State of the Union Address, called for a newworld order founded on four essential freedoms: freedom of speech, freedom of religion,freedom from want, and freedom from fear. The voice of arguably the most powerfulcountry in the world precipitated the cascade of calls for nations to come together underone more effective organization.

In 1945, in San Francisco, California, a historic meeting was held that would give lifeto a document creating the United Nations. Member-States of the United Nations pledgedto promote respect for the human rights of all. To advance the goal, the United Nationsestablished a Commission on Human Rights and charged it with the task of drafting a documentspelling out the meaning of fundamental rights and freedoms proclaimed in the charter. Thecommission was guided by the able leadership of Eleanor Roosevelt.

In The History of Human Rights: From Ancient Times to the Globalization Era(2003), written by Micheline Ishay, Director of the Human Rights Program of the GraduateSchool of International Studies of the University of Denver, there is an anecdote regardingthe role of the Philippines in the drafting of the Universal Declaration of Human Rights.

Professor Ishay traced the beginnings of human rights and revealed very significantyet little known battles on the final wording of the Declaration. They were little known,because they were fought on the sidelines—and not on center stage, which was dominatedby such figures as Roosevelt, Churchill, Stalin and the big powers they represented. ProfessorIshay narrated how the UN was almost formed with a weak commitment to the enhancementof human rights. The tragedy was averted, thanks to the off-center stage efforts of lesspowerful countries, which included the Philippines.

The proposal for a United Nations organization was not accepted withoutvociferous protests from small and medium states. Two months before themeeting in San Francisco, Latin American states held a conference assemblingtwenty nations at Chapultepec, Mexico, to exert pressure agaisnt theprominence of great power influence in the new international organization,and they submitted recommendations to be discussed at the San Franciscoconference. At the San Francisco meeting, Australia, New Zealand, India and


the Philippines joined the chorus of disenchanted countries. With Chile, Cubaand the Panama initially in the forefront, the protesting countries called for astronger human rights commitment. Joining Gandhi’s effort, Carlos Romuloof the Philippines (1899–1985), Ho Chi Minh, Kwame Nkrumag, and theAmerican black leader W.E.B. Du Bois (1868–1963) all condemned the proposalfor ignoring human rights in general, and specifically for overlooking the rightsof minority and indigenous people living under colonial control.

x x x x

x x x Days later, the United States, along with Britain, France and theUSSR, conceded and backed the NGOs’ human rights proposals. The charterwould now include the statement that “[w]e the people of the United Nations[are] determined x x x to reaffirm faith in fundamental human rights,” followedby several passages with clear human rights references, and ending with arecommendation for the formation of a Trusteeship Council system as a mainorgan (Articles 75–91) designed to oversee the rights of the people of thecolonies and work toward their self-determination. The revised charter thusmarked an important success for human rights activists.14

On December 10, 1948, the Universal Declaration of Human Rights (UDHR) wasadopted by the 56 members of the United Nations. While not legally binding, it urged membernations to promote a number of human, civil, economic and social rights, declaring theserights are part of the “foundation of freedom, justice and peace in the world.” TheDeclaration was the first international legal effort to limit the behavior of states and pressupon them duties to their citizens following the model of the rights-duty duality. In thewords of Eleanor Roosevelt, the UDHR was the “international Magna Carta,”15 and how agovernment treats its own citizens is now a matter of legitimate international concern, andnot simply a domestic issue. The “international Magna Carta” claims that all rights are“interdependent” and “indivisible.”

The impact of the United Nations and the UDHR was far-reaching. Its principleshave been incorporated into the Constitutions of the more than 185 nations who are nowmembers of the United Nations. The Universal Declaration gained the status of customaryinternational law, as people regarded it as “a common standard of achievement for all peopleand all nations.”16

14 MICHELINE ISHAY, THE HISTORY OF HUMAN RIGHTS: FROM ANCIENT TIMES TO THE GLOBALIZATION ERA 16–18,218–223 (2003).

15 Eleanor Roosevelt, Address to the United Nations General Assembly, December 9, 1949, inParis, France available online at <http://www. americanrhetoric.com/speeches/eleanorrooseveltdeclarationhumanrights.htm> (last accessed September 11, 2007).

16 JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING AND INTENT (1999).


II. INTERNATIONALIZATION OF HUMAN RIGHTS

Many states were spurred to go beyond a declaration of rights and create legal covenantsto put greater pressure on governments to follow human rights norms. Some states, however,disagreed on whether this international covenant should contain economic and social rights(which usually require greater resources and effort to fulfill on the part of individual states),so two treaties were prepared.

In 1950, the first multilateral treaty on human rights – the European Conventionon Human Rights – was adopted and ratified by a majority of the nations of the Europeanregion.

In 1966, two international treaties were erected based on the UDHR. Because theUDHR contained both first-generation civil and political rights and second-generationeconomic, social, and cultural rights, it could not garner the international consensus necessaryto become a binding treaty. Particularly, a divide developed between capitalist nations suchas the U.S.A., which favored civil and political rights, and communist nations, which favoredeconomic, social and cultural rights. To solve this problem, two binding Covenants werecreated instead of one: the International Covenant on Civil and Political Rights (ICCPR)and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The ICCPR is a United Nations treaty based on the UDHR, created in 1966 and enteredinto force on March 23, 1976.17 The ICCPR currently has 160 States-Parties and five furthersignatories (pending ratification).

The ICESCR is also a multilateral treaty adopted by the United Nations GeneralAssemby on December 16, 1966, and in force from January 3, 1976. It commits States-Parties to work toward the granting of economic, social and cultural rights (ESCR) toindividuals. It was introduced as a second-generation human rights treaty developing someof the issues contained in the UDHR, at the same time as ICCPR. As of July 2007, there were157 States-Parties to the ICESCR. Four other states have also signed the treaty, but havenot ratified it.

A most significant part of the ICCPR is its imposition upon the signatory states, whichinclude the Philippines, of the duty to adopt the necessary laws to give effect to the rightsenumerated in the covenant. Articles 2 and 3 mandated the signatory states (a) to ensurethat persons whose rights or freedoms are violated shall have an effective remedy, even ifthe violation has been committed by those acting in an official capacity; (b) to ensure thatpersons claiming such a remedy shall have their rights thereto determined by competent

17 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI). 21 U.N. GAORSupp. (No. 16) at 52, U.N. Doc. A/6316 (1966). A country-by-country list of declarationsand reservations made upon ratification, accession or succession can be seen at <http://www.unhchr.ch/html/menu3/b/treaty5_asp.htm> (last accessed September 7, 2007).


judicial, administrative or legislative authorities, or by any other competent authorityprovided by the legal system of the State, and to develop the possibilities of a judicial remedy;and (c) to ensure that when granted, the competent authorities shall enforce such remedies.

Complementing the movement towards the internationalization of human rightswas the broadening of the scope of those responsible for their violation. Originally, humanrights were protected only from violations by the State; hence, in international covenants,the bearer of the duty was always the State. In other words, the right of an individual citizenis not protected from an unlawful act or omission by another individual, but only from Stateintrusion. There was a right to sue, but only against the State.

Expressed otherwise, the internationalization of rights resulted in a change ofconcepts as to the holders of the right and the bearers of the duties or the personalities ofthose who could sue and be sued. For instance, the third-generation human rights, whichinclude the right to a healthy environment, does not belong only to an individual; it belongsto the entire populace and can be claimed even by the international community.Correspondingly, the duty to preserve a healthy environment is demandable by the peopleas a collectivity against a State, an individual, a group, or a community. Pollution, for example,prejudices individuals, communities, and the State; its ill effects could even cross over toother countries. For these reasons the irreversible trend now is to hold both the State andindividuals accountable for violation of international human rights.

In addition, the United Nations has adopted more than 20 principal treaties enhancinghuman rights. These include conventions to prevent specific abuses like torture18 andgenocide;19 and to protect vulnerable populations such as refugees,20 women,21 andchildren.22

18 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment, adopted by resolution 39/46 2 of December 10, 1984 at the thirty-ninth sessionof the General Assembly of the United Nations.

19 Convention on the Prevention and Punishment of the Crime of Genocide, approved andproposed for signature and ratification or accession by General Assembly resolution 260 A(III) of December 9, 1948, entry into force January 12, 1951, in accordance with article XIII.

20 Convention Relating to the Status of Refugees, adopted on July 28, 1951, by the UnitedNations Conference of Plenipotentiaries on the Status of Refugees and Stateless Personsconvened under General Assembly resolution 429 (V) of December 14, 1950, entry intoforce April 22, 1954, in accordance with article 43.

21 Convention on the Elimination of All Forms of Discrimination Against Women, adopted byUN General Assembly on December 18, 1979 (resolution 34/180), and entered into force onSeptember 3, 1981.

22 Convention on the Rights of the Child, adopted and opened for signature, ratification andaccession by General Assembly resolution 44/25 of November 20, 1989, entry into forceSeptember 2, 1990, in accordance with article 49.


III. THE LATIN AMERICAN EXPERIENCE

Over a period of 50 years, the nations of the Western Hemisphere developed a relativelysophisticated and progressive system of human rights protection for the citizens.23 Thoughthe region is often thought of as Latin America, the system also comprises the independentnations of the Carribean, including Spanish-speaking Cuba and the Dominican Republic,French-speaking Haiti, and about a dozen English-speaking island nations, plus English-speaking United States and Canada.24

A. Supranational and National Protection of Human Rights

The development of mechanisms of supranational protection has been made possiblebecause, since 1948, a regional, political and diplomatic body — the Organization ofAmerican States (OAS) — has afforded an appropriate forum to condemn violations andseek their redress. The Charter of the OAS and the first human rights instrument for theAmericas — the American Declaration on the Rights and Duties of Man — were signed in thesame conference in Bogota in 1948.25 Subsequently, in 1959, a resolution of the GeneralAssembly of the OAS created the Inter-American Commission on Human Rights(Commission), where complaints can be brought alleging violations by the authorities ofrights enumerated in the American Declaration. A multilateral human rights treaty, theAmerican Convention on Human Rights (ACHR), also known as the Pact of San Jose, CostaRica, which reinforced the treaty underpinnings of the Commission, was signed in 1969, andit entered into force a decade later.

In the 1970s and early 1980s, the Commission was besieged with urgentcomplaints about arrests conducted in secret, in which the authorities denied anyresponsibility or knowledge of the fate and whereabouts of the victims.26 Inquiriesbefore domestic agencies and resort to habeas corpus writs proved ineffective. Therewas also little hope that an abducted person could be found via the long and cumbersomeprocedures for case complaints outlined in the ACHR.27 This tragic phenomenon cameto be known as forced disappearance of persons. The Commission had to find a wayto deal effectively with the problem, as more and more military dictatorships violatedtheir people’s right to life, liberty and security.

23 Juan E. Mendez, The Inter-American System of Protection: Its Contributions to theInternational Law of Human Rights, p. 111.

24 Id.25 Id. at 112.26 Id. at 120.27 Id.


The Commission realized that there had to be a quick response, because it wasin those early hours following a “deniable” detention that the authorities decided thefate of the detainee. The person could be released, sent into “legalized” detention,killed and the body disposed of secretly, or held in clandestine detention centerswhere the detainee could be tortured or interrogated.28

The first adversarial cases to reach the Inter-American Court were aboutinvoluntary disappearances.29 The Commission decided to bring these cases againstHonduras, as a way of highlighting the seriousness of the violation and obtaining supportfrom the Court in the struggle to solve the problem of “desaparecidos.” In Velasquez andGodinez, the Court held that such disappearances constituted crimes against humanityunder international law; and that, as a result, governments had an affirmative duty toinvestigate them and to prosecute and punish whoever may be responsible.30 The Courtalso found that, because the purpose of a disappearance was to eliminate traces of thegovernment’s role in a serious crime, the standard of proof and burden of persuasionmust, after an initial presentation by the Commission, shift to the government todemonstrate that it had done all in its power to redress the wrong.31 The Court based thisreasoning on its dictum that states have an obligation to organize their whole apparatusso that human rights may be adequately protected.32

This ruling resulted in the trend towards the incorporation of the internationallaw of human rights into the text of domestic constitutions. In some cases, the full textof all treaties ratified by the country is reproduced as constitutional text, and specialmajorities of Congress are required to denounce a human rights treaty.33 In other cases,international instruments that have been ratified are incorporated by reference into thenew constitutional text. Whatever the case may be, various court procedures weredeveloped to accord protection to human rights.

Among the different procedures that have been established, the primary onesthat provide direct and immediate protection are habeas corpus and amparo.34 The

28 Id.29 Id. at 121.30 Inter-American Court of Human Rights, Velasquez Rodriguez case, and Godinez Cruz case,

judgment of January 20, 1989.31 Mendez, at 121.32 Id.33 See Article 74, Sec. 11, Constitution of the Argentine Republic, as amended, 1994.34 Adolfo S. Azcuna, The Writ of Amparo: A Remedy to Enforce Fundamental Rights, 37 A.L.J.

14.


difference between these two writs is that habeas corpus is designed to enforce the rightof freedom of a person, whereas amparo is designed to protect those other fundamentalhuman rights enshrined in the Constitution but not covered by the writ of habeas corpus.35

The writ of amparo originated in Mexico, where it was provided for in theConstitution of the State of Yucatan in 1841 and later in the Federal Constitution of1857.36 Initially, the Mexican amparo was a narrowly constructed procedural devicedesigned to protect citizens’ rights in certain circumstances—amparo comes from“amparar” which means “to protect.” In the beginning, the term was used by judges totake action when a citizen was being illegally conscripted into the military or improperlydetained or condemned to death by a firing squad because of an alleged political crime.

Gradually, and through experience and jurisprudence, the Mexican amparoprocedure developed to protect citizens in many more ways and eventually blossomedto cover the whole range of constitutional rights. A plaintiff could bring a proceeding inthe Supreme Court, and eventually the intermediate appellate courts, to protectconstitutional rights; to test unconstitutional laws; and to challenge certain judicialdecisions (amparo casacion).

The success met by the writ of amparo in championing human rights in Mexicoled other Latin American countries to follow suit and adopt this extraordinary writ in theirConstitutions. As practiced, the amparo has been found to be so flexible to the particularsituations of each country that, while retaining its essence, it has developed variousprocedural forms.37 These forms differ according to the scope of protection given. Briefly,these are as follows:

a. In some countries, amparo is regarded solely as an equivalent to habeascorpus, being available only to protect the individual from unlawful acts orfrom irregularities in criminal proceedings. This is the meaning it has in Chile,and the same holds in the transitional provision of the 1951 VenezuelanConstitution which uses the term amparo de la libertad personal as a synonymof habeas corpus.38

b. In Argentina, Venezuela, Guatemala, El Salvador, Costa Rica, Panama, andvery recently, in Bolivia, Ecuador, and Paraguay, as well as in Mexico, amparo,has come to mean an instrument for the protection of constitutional rights

35 Zamudio, Latin American Procedures for the Protection of the Individual, J. Int’l Com. Jurists86 (1968).

36 Azcuna, at 13.37 Id. at 15.38 Id.


with the exception of freedom of the person, which is protected by thetraditional habeas corpus.39

c. A third group of countries also uses amparo as a petition for judicial reviewto challenge unconstitutional laws, as in Mexico, Honduras and Nicaragua.40

Amparo, therefore, has been said to have done for the social and economic rightswhat habeas corpus has done for the civil and political rights.41

The following is an examination of the amparo procedure as embodied in thevarious Constitutions of the countries in Latin America:

As the birthplace of amparo, Mexico provides in Article 107 of its Constitution anexhaustive substantive and procedural method for the enforcement of the different typesof amparo, viz:

All controversies mentioned in Article 103 shall be subject to the legal formsand procedure prescribed by law, on the following bases:

I. A trial in amparo shall always be held at the instance of the injuredparty.

II. The judgment shall always be such that it affects only private individuals,being limited to affording them redress and protection in the specialcase to which the complaint refers, without making any generaldeclaration as to the law or act on which the complaint is based.

A defect in the complaint may be corrected, whenever the actcomplained of is based on laws declared unconstitutional by previousdecisions of the Supreme Court of Justice.

A defect in the complaint may also be corrected in criminalmatters and in behalf of workers in labor disputes, when it is found thatthere has been a manifest violation of the law against the injured partywho is left without defense, and in criminal matters, likewise, when thetrial has been based on a law not precisely applicable to the case.

In trials in amparo which contest acts that resulted or couldresult in depriving ejidos or population groups, or members of an ejidoor communal holders having a de facto or de jure communal status,from ownership or possession and enjoyment of their lands, waters,pastures, and woodlands, defects in the complaint must be corrected as

39 Id.40 Id. at 16.41 Id. at 14.


provided in regulations; and there shall be no abandonment,discontinuance due to inactivity, or lapse of the legal action, if the rightsof ejidos or communal population groups are affected.

III. In judicial civil, criminal, or labor matters a writ of amparo shall begranted only:

a. Against final judgments or awards against which no ordinary recourseis available by virtue of which these judgments can be modified oramended, whether the violation of the law is committed in the judgmentsor awards, or whether, if committed during the course of the trial, theviolation prejudices the petitioner ’s defense to the extent of affectingthe judgment; provided that in civil or criminal judicial mattersopportune objection and protest were made against it because of refusalto rectify the wrong and that if (the violation) was committed in firstinstance, it was urged in second instance as a grievance.

b. Against acts at the trial, the execution of which would be irreparableout of court, or at the conclusion of the trial once all available recourseshave been exhausted.

c. Against acts that affect persons who are strangers to the trial.

IV. In administrative matters, amparo may be invoked against decisionswhich cause an injury that cannot be remedied through any legalrecourse, trial, or defense. It shall not be necessary to exhaust theseremedies when the law that established them, in authorizing thesuspension of the contested act, demand greater requirements thanthe regulatory law for trials in amparo requires as a condition for orderingsuch suspension.

V. Except as provided in the following section, a writ of amparo againstfinal decisions or awards, for violations committed therein shall beapplied for directly to the Supreme Court of Justice, which shall renderits decision without other evidence than the original complaint, a certifiedcopy of the claims of the aggrieved party, which shall be added to thosemade by the third party affected, the latter ’s complaint submitted eitherby the Attorney General of the Republic or his designated agent, andthat of the responsible authority.

x x x x

Art. 28 (15) of the Ecuadorian Constitution provides:

Without prejudice to other inherent rights of the individual, the Stateshall guarantee x x x the right to demand judicial amparo against anyviolation of constitutional guarantees, without prejudice to the duty of


the public power to ensure the observance of the Constitution and thelaws.

Article 77 of the Constitution of Paraguay provides:

Any person who considers that a right or guarantee to which he isentitled under this Constitution or under law has been or is in imminentdanger of being seriously injured by an individual and who, because ofthe urgency of the case, cannot have recourse to the ordinary remediesmay file a petition for amparo with any judge of first instance. Theproceedings shall be short, summary, free and held in public, and thejudge shall be empowered to safeguard the right or guarantee or torestore immediately the legal position infringed. Regulations governingthe procedure shall be laid down by law.

Article 43 of the Constitution of Argentina provides:

Any person shall file a prompt and summary proceeding regardingconstitutional guarantees, provided there is no other legal remedy,against any act or omission of the public authorities or individuals whichcurrently or imminently may damage, limit, modify or threaten rightsand guarantees recognized by this Constitution, treaties or laws, withopen arbitrariness or illegality. In such case, the judge may declare thatthe act or omission is based on an unconstitutional rule.

Article 49 of the Venezuelan Constitution provides:

The courts shall protect all inhabitants of the Republic in the exercise ofthe rights and guarantees established by the Constitution, in accordancewith law. The procedure shall be brief and summary and the judge shallhave the power to immediately restore the legal situation alleged to beinfringed.

Article 48(3) of the Costa Rican Constitution provides:

To maintain or restore the enjoyment of the rights laid down in thisConstitution (other than freedom of the person which is protected underparagraph 1 of the Article by habeas corpus) everyone shall also havethe right of amparo in such courts as the law may determine.

Article 19 of the Bolivian Constitution provides:

In addition to the right of habeas corpus, to which the preceding articlerefers, amparo lies against illegal acts or omissions of officials or privateindividuals that restrict or deny the individual rights and guaranteesrecognized by the Constitution and the law.


This examination shows, it is submitted, that no other institution has the prestige,roots and traditions as that of amparo to provide a coherent procedure with uniformbases for the protection of fundamental rights set forth in various Constitutions.42

B. Judicial Development of the Writ of Amparo Against Human Rights Abuses

Unlike the Mexican writ of amparo and which was mainly developed through legislativefiat, the emergence and metamorphosis of the Argentine writ of amparo was much moredramatic as the remedy was mainly fashioned through judicial activism.

Before 1957, there existed no summary devise for the protection of constitutionalrights in Argentine law or jurisprudence.43 Although at this time, the habeas corpus or asit is known in Argentina the recurso de amparo de la libertad, was already operative inArgentine legal arenas, its protection is limited to the traditional unlawful restraints onpersonal liberty or mobility.44 The absence of such a remedy was made more emphaticagainst the background of rapid progress in the development of the same remedy inneighboring Brazil and Mexico. Attempts to include within the protective coverage of thehabeas corpus other constitutional rights were rebuffed by the courts in the absence ofspecific statutory authority.45

By 1957, the seeds of amparo protection had already been transplanted in thevarious state constitutions of Argentina.46 It took the Supreme Court of Justice ofArgentina, despite the absence of clear and express statutory authority, in the two leadingcases of Siri and Samuel Kot to adopt and define a national amparo, finding support inits charge of protecting rights embodied in the Constitution.

In the Siri case,47 Angel Siri, publisher of the newspaper “Mercedes,” invoked thewrit of habeas corpus and sought judicial redress for the protection of his constitutionalguarantees of freedom of the press and of work, when his newspaper company was shutdown by police authorities for no apparent reason. The court of first instance and thecourt of appeals rejected the petition on the ground that it protects physical liberty only.The Supreme Court, however, reversed and ruled that “ it may not be alleged to the

42 Zamudio, at 89.43 Robert E. Biles, The Position of the Judiciary in the Political Systems of Argentina and Mexico,

8 LAW AM 287 at 307 (1976).44 Id.45 KARST AND ROSENN, LAW AND DEVELOPMENT IN LATIN AMERICA: A CASE Book 138–139 (1975).46 The Argentine amparo first appeared in Article 17 of the Constitution of the Province of

Santa Fe, in Article 22 of the Constitution of the Province of Santiago de Estero and inArticle 33 of the Constitution of the Province of Mendoza.

47 239 Fallos 459, 1958-II J.A. 478, 89 La Ley 532 (1957).


contrary that there is no law regulating the guarantee. Individual guarantees exist andprotect individuals by virtue of the single fact that they are contained in theConstitution, independently of regulatory laws x x x.”48

The Samuel Kot case,49 innocently enough, began as a labor dispute. The textilefirm of Samuel Kot was involved in a row with its laborers when the latter staged a strikewhich was initially declared illegal by the provincial department of labor which orderedthe laborers to return to work. The company, however, refused to reinstate two unionofficials, invoking the amparo protection enunciated in the Siri case.

The Supreme Court granted protection and redress for the violation of theconstitutional right of work and property, ruling:

Whenever it is clear and obvious that any restriction of basic human rightsis illegal and also that submitting the question to the ordinary administrativeor judicial procedures would cause serious and irreparable harm, it is properfor the judges immediately to restore the restricted right through the swiftmethod of the recourse of amparo.50

The Supreme Court fearlessly proceeded to give form to it, proclaiming that theamparo protection covers not only illegal actions of government but also of privatepersons or social groups:

There is nothing in either the letter or the spirit of the Constitution thatmight permit the assertion that the protection of “human rights” – so calledbecause they are the basic rights of man – is confined to attacks by officialauthorities. Neither is there anything to authorize the assertion that anillegal, serious, and open attack against any of the rights that make upliberty in the broad sense, would lack adequate constitutional protectionbecause of the single fact that the attack comes from other private personsor organized group of individuals x x x.51

The Supreme Court concluded with an impassioned affirmation of the need fora summary remedy such as the amparo procedure, viz:

In these conditions, it is not appropriate to require the affected party toclaim the return of his property through ordinary procedures. If, every timethat a group of persons physically occupied a factory, a private teaching

48 Id. at 463.49 241 Fallos 291, 1958-IV J.A. 227, 92 La Ley 626 (1958).50 Id. at 257.51 Id. at 450.


institution, or any other establishment, in connection with a conflict, theowners had no other recourse for defense of their constitutional rights thanto bring a possessory action or one of ejectment, with multiple citations foreach and every one of the occupants to appear in the action, with the powerof each of the occupants to name his own attorney, to contest notices anddocuments, to offer and produce evidence, etc., anyone can see how theprotection of rights given by the laws would be diminished and how thejuridical order of the country would be subverted. In such situations, x x xjudicial protection of constitutional rights does not tolerate or consent tosuch a delay.52

Judicial fashioning of the Argentine amparo proceeded without letup. The Moriscase53 established the amparo as the remedy if resort to ordinary legal channels wouldrender any protective grant illusory and cause irreparable damage to the complainant.Consistent with the Siri case which relied on the implicit guarantees for the grant of theprotection even on those rights not explicitly enumerated, mere legitimate interest, notnecessarily clear and incontestable right, suffices to fix legal personality on the petitionerfor the amparo protection.

IV. THE PHILIPPINE EXPERIENCE

A. The Philippines Under Spain

The Spanish crown governed the Philippines through the regional government of Mexico.This continued until the Mexican independence from Spain in 1821, when Philippinegovernance shifted to Council of the Indies in Spain. In 1837, the abolition of the Councilof the Indies shifted Philippine governance into the Council of Ministers and again in 1863shifted to the Ministry of Colonies.

The Royal Audiencia established in 1583 acted as the Supreme Court of thePhilippines. Under the Royal Audiencia were two Territorial Audiencia established in 1893in Cebu and Vigan. Regular Courts began to be established in the provinces in 1886.Justice of the Peace Courts began to be established in 1885 throughout the country.Religious matters where usually handled by a special ecclesiastical court, whereas militarymatters were often handled in a specialized military court.

Under Spanish laws, representation in the courts was denied Filipino natives amongmany other rights. In the late 1800s, Filipino students who were able to imbibe Westernideals formed propaganda movements, notably, the La Solidaridad, under Marcelo H. DelPilar, the aims of which were to include active Filipino participation in the affairs of the

52 Id.53 1962-I J.A. 442 (1961).


government; freedom of speech, of the press, and of assembly; wider social and politicalfreedoms; equality before the law; assimilation; and representation in the Spanish Cortes,or Parliament.

Spanish rule on the Philippines was briefly interrupted in 1762, when British troopsoccupied Manila as a result of Spain’s entry into the Seven Years’ War. The Treaty of Parisof 1763 restored Spanish rule and in 1764 the British left the country fearing anothercostly war with Spain.

Spain and the United States sent commissioners to Paris to draw up the terms ofthe Treaty of Paris which ended the Spanish-American War. The Filipino representative,Felipe Agoncillo, was excluded from sessions as the revolutionary government was notrecognized by the family of nations.54 Although there was substantial domestic opposition,the United States decided neither to return the Philippines to Spain, nor to allow Germanyto annex the Philippines. In addition to Guam and Puerto Rico, Spain was forced in thenegotiations to hand over the Philippines to the United States in exchange forUS$20,000,000, which the latter later claimed to be a “gift” from Spain.55 The firstPhilippine Republic rebelled against the U.S. occupation, resulting in the Philippine-American War (1899–1913).

B. The United States Occupation

Most of the rights recognized by the United States were transplanted in the Philippines.The controversial Insular Cases56 were in essence the U.S. Supreme Court’s resolution toa major issue of the United States presidential election, 1900 and the American Anti-Imperialist League, summarized by the phrase “Does the Constitution follow the flag?”Essentially, the U.S. Supreme Court held that not all constitutional rights extended toareas under American control. In 1898, the United States annexed Hawaii. In the sameyear, the Treaty of Paris ended the Spanish- American War and the United States gained

54 LEODIVICO CRUZ LACSAMANA, PHILIPPINE HISTORY AND GOVERNMENT 126–7 (1990); see also TEODORO

AGONCILLO, HISTORY OF THE FILIPINO PEOPLE, (1990 ed.).55 WALTER MILLIS, THE MARTIAL SPIRIT (1931) available at <http://www.spanamwar.com/

McKinleyphilreasons.htm> (last accessed September 7, 2007).56 DeLima v. Bidwell, 182 U.S. 1 (1901); Goetze v. United States, 182 U.S. 221 (1901); Armstrong

v. United States, 182 U.S. 243 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Huus v. NewYork & Porto Rico S.S. Co., 182 U.S. 392 (1901); Dooley v. United States, 183 U.S. 151 (1901);Fourteen Diamond Rings v. United States, 183 U.S. 176 (1901); Hawaii v. Mankichi, 190U.S. 197 (1903); Kepner v. United States, 195 U.S. 100 (1904); Dorr v. United States, 195U.S. 138 (1904); Rasmussen v. United States, 197 U.S. 516 (1905); Dowdell v. United States,221 U.S. 325 (1911); Ocampo v. United States, 234 U.S. 91 (1914); Balzac v. Porto Rico, 258U.S. 298 (1922). They are collectively referred to as the insular cases, meaning, those whichare “island-related.”


the islands of the Philippines, Puerto Rico, and Guam. At the time, there was a debate onhow to govern these new territories in view of the silence of the United States Constitutionon the matter. In the Insular Cases, the U.S. Supreme Court established the frameworkfor applying some of the Constitution to these islands.

In Fourteen Diamond Rings v. United States,57 the U.S. Supreme Court ruled thatthe Philippines, after its cession to the United States by Spain, was not a foreign countryfor purposes of the tariff laws of the United States, following De Lima v. Bidwell.58 It heldthat:

By the 3d (sic) article of the treaty Spain ceded to the United States “thearchipelago known as the Philippine islands,” and the United States agreedto pay Spain the sum of $20,000,000 within three months. The treaty wasratified; Congress appropriated the money; the ratification was proclaimed.The treaty making power, the executive power, the legislative power,concurred in the completion of the transaction.

The Philippines thereby ceased, in the language of the treaty, “to beSpanish.” Ceasing to be Spanish, they ceased to be foreign country. Theycame under the complete and absolute sovereignty and dominion of theUnited States, and so became territory of the United States over which civilgovernment could be established. The result was the same although therewas no stipulation that the native inhabitants should be incorporated intothe body politic, and none securing to them the right to choose theirnationality. Their allegiance became due to the United States, and theybecame entitled to its protection.59

This was the legal background when the 1935 Philippine Constitution was adopted.The 1935 Philippine Constitution was approved and adopted by the Commonwealth ofthe Philippines (1935–1946) and later used by the Third Republic of the Philippines (1946–1972).

Echoing the first principles of the French egalitarianism, the right-basedConstitution of the United States and the limitation-centered Magna Carta, the 1935Philippine Constitution in its preamble reads:

57 Fourteen Diamond Rings v. United States, 183 U.S. 176, 46 L.Ed. 138, 22 S.Ct. 59 (1901).58 De Lima v. Bidwell, 182 U.S. 1, 45 L.Ed. 1041, 21 S.Ct. 743 (1901) which held that Puerto

Rico after its cession to the United States was not a foreign country for purposes of thetariff laws of the United States, which required payment of duties on goods moving into theUnited States from a foreign country. In the absence of congressional legislation, the UnitedStates Government could not collect customs duties on sugar from Puerto Rico shipped toother parts of the United States by classifying Puerto Rico as a foreign country.

59 Fourteen Diamond Rings, 183 U.S. at 180.


The Filipino people, imploring the aid of Divine Providence, in order toestablish a government that shall embody their ideals, conserve and developthe patrimony of the nation, promote the general welfare, and secure tothemselves and their posterity the blessings of independence under a regimeof justice, l iberty, and democracy, do ordain and promulgate thisconstitution.60

The 1935 Philippine Constitution adopted most of the Bill of Rights as embodiedin the amendments of the United States Constitution. Article II, Section 1(14) of the 1935Philippine Constitution explicitly recognized the writ of habeas corpus, bringing to thePhilippines the English law concept of the remedial enforcement of the right to liberty ofa person.

The United States, as provided in the Jones-McDuffie Law of 1934, grantedindependence to the Philippines on July 4, 1946.

C. Martial law years and the drafting of the 1987 Constitution

The Philippine legal history of human rights operates under the experience of a presidentialform of government which is the only form so far known in Philippine history.61 Inparticular, the powers granted to the Executive branch of government by the organic lawof the land have influenced and shaped the present remedies and safeguards against theviolations of human rights. The experience of how powerful the presidency can be wasspecially marked during the martial law era when President Marcos tested the limits ofthe power of the presidency.62

Amidst the rising wave of lawlessness and the threat of a Communist insurgency,Marcos declared martial law on September 21, 1972, by virtue of Proclamation No. 1081.Marcos, ruling by decree, curtailed press freedom and other civil liberties, closed downCongress and media establishments, and ordered the arrest of opposition leaders andmilitant activists, including his staunchest critics senators Benigno Aquino, Jr., JovitoSalonga and Jose Diokno. The declaration of martial law was initially well-received, giventhe social turmoil the Philippines was experiencing. Crime rates plunged dramaticallyafter a curfew was implemented. Many political opponents were forced to go into exile.

A constitutional convention, which had been called for in 1970 to replace thecolonial 1935 Constitution, continued the work of framing a new constitution after the

60 1935 PHILIPPINE CONSTITUTION preamble.61 See JOAQUIN G. BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY

(2003 ed.); see also Joaquin G. Bernas, From One-Man Rule to “People Power,” 46 ATENEO

LAW JOURNAL 44 (2001).62 Id. at 45.


declaration of martial law. The new constitution went into effect in early 1973, changingthe form of government from presidential to parliamentary and allowing Marcos to stayin power beyond 1973.

From the experience of the martial law years, the members of the 1986Constitutional Commission tasked with drafting the new Constitution were keenly awareof the need to protect the people through the organic law against another powerfuldictator. Hence, the pronounced effort of the Commission to provide within theconstitutional structure of government a remedy against the emergence of anotherdictator by not only providing checks and balances within the three co-equal branches ofgovernment but also by providing for other legal means for the protection of humanrights.

Under the 1987 Constitution, the rule-making powers of the Supreme Court havebeen expanded. In Article VIII, Section 5(5) it is stated that the Supreme Court shall havethe power to promulgate rules concerning the protection and enforcement ofconstitutional rights, pleading, practice, and procedure in all courts, the admission to thepractice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rulesshall provide a simplified and inexpensive procedure for the speedy disposition of cases,shall be uniform for all courts of the same grade, and shall not diminish, increase, ormodify substantive rights. Rules of procedure of special courts and quasi-judicial bodiesshall remain effective unless disapproved by the Supreme Court.63

The power to “promulgate rules concerning the protection and enforcement ofconstitutional rights, pleading, practice, and procedure in all courts,” refers to a traditionalpower granted to the Supreme Court.64 Chief Justice Puno, in his ponencia of the case ofEchegaray v. Secretary of Justice65 characterized the nature of this rule-making power,designed under the present Constitution to provide a stronger and more independentjudiciary by taking away from Congress the power to repeal, alter or supplement the rulesof court promulgated by the Supreme Court. In the words of Chief Justice Puno,

The rule-making power of this Court was expanded. This Court for the firsttime was given the power to promulgate rules concerning the protectionand enforcement of constitutional rights. The Court was also granted forthe first time the power to disapprove rules of procedure of special courts

63 1987 PHILIPPINE CONSTITUTION, Art. VIII, Sec. 5(5) (emphasis supplied).64 JOAQUIN BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY 969 (2003

ed.).65 G.R. No. 132601, January 19, 1999, which idea is reiterated in People v. Lacson, G.R. No.

149453, April 1, 2003. The case of Republic v. Judge Gingoyon, G.R. No. 166429, however,provided that Congress may repeal a rule of the Court involving substantial rights. JusticePuno registered his dissent in this case.


and quasi-judicial bodies. But most importantly, the 1987 Constitutiontook away the power of Congress to repeal, alter, or supplement rulesconcerning pleading, practice and procedure. In fine, the power to promulgaterules of pleading, practice and procedure is no longer shared by this Courtwith Congress, more so with the Executive.66

On July 16–17, 2007, Justices, activists, militant leaders, police officials, politiciansand prelates attended the two-day National Consultative Summit on Extrajudicial Killingsand Enforced Disappearances sponsored by the Supreme Court of the Philippines, heldat the Manila Hotel in Manila City to map out ways to put an end to the string ofextrajudicial killings in the Philippines.

In the said event, Chief Justice Reynato S. Puno explained that “If there arecompelling reasons for this Summit, one of them is to prevent losing eye contact withthese killings and disappearances, revive our righteous indignation, and spur our unitedsearch for the elusive solution to this pestering problem.” The questions surroundingthe extrajudicial killings and enforced disappearances and their seeming resurgence refuseto go quietly and simply be rationalized. While a large number in society are concernedwith this issue, the frequency of its occurrence and the media focus only seem toanesthetize their sense of shock. While there are no easy solutions, this Summit is anembodiment of the untiring and ceaseless effort to overcome what may often seem tobe insurmountable challenges to resolve this issue.

The Summit was envisioned to provide a broad and fact-based perspective on theissue of extrajudicial killings and enforced disappearances. Representatives from all sidesof the political and social spectrum, as well as all the stakeholders in the justice system,have been invited in the hope that this summit will point to the right direction in resolvingthis crisis. In so doing, the commitment to uphold respect for life and human rights isenforced and revitalized.

The 1987 Constitution gave the judiciary two very prominent powers: (1) theexpanded judicial power to settle actual controversies involving rights which are legallydemandable and enforceable, and to likewise determine whether or not there has beena grave abuse of discretion amounting to lack or excess of jurisdiction on the part of anybranch or instrumentality of the government; and (2) the expanded rule-making power inthe protection and enforcement of constitutional rights to more effectively check theabuses in human rights. Citing his opinion in the case of Tolentino v. Secretary of Finance,67

the Chief Justice submitted that “ in imposing to this Court the duty to annul acts ofgovernment committed with grave abuse of discretion, the new Constitutiontransformed the Court from passivity to activism.”

66 Id.67 G.R. No. 115455, October 30, 1995, 249 SCRA 628.


The expanded rule-making power, on the other hand, can provide for a simplifiedand inexpensive procedure for the speedy disposition of cases. This enhanced rule-makingpower proved providential two decades later as the country was once again plagued bythe scourge of extrajudicial killings and enforced disappearances. This issue hadinadvertently exposed “the frailties of our freedom, the inadequacy of our laws if not theinutility of our system of justice.” In view thereof, the Judiciary has decided to “unsheatheits unused power to enact rules to protect the constitutional rights,” primordial of whichis the right to life.

In the Summit, a recurring proposition to the effect that the writ of amparo beoperationalized in the Philippines was heard. The first proposal in the Summary ofRecommendations,68 the output of the Summit, was to the effect that the Judiciary “[to]undertake a serious study of the Writ of Amparo to see how it can be availed of, asprotective and remedial tool, for the greater protection of the constitutional rights of thevictims; to undertake a study on how to attain a more creative and resourceful applicationof the writ of habeas corpus.”69

68 NATIONAL CONSULTATIVE SUMMIT ON EXTRAJUDICIAL KILLINGS AND ENFORCED DISAPPEARANCES, SUMMARY OF

RECOMMENDATIONS (2007); avai lable online at Supreme Court Website <http://www.supremecourt.gov.ph/publications/summit/SummaryRecommendations.pdf> (lastaccessed September 7, 2007).

69 Summary of Recommendations, p. 2.


ANNOTATION TO THE WRIT OF AMPARO

The Writ of Amparo. The nature and time-tested role of amparo has shown that it is aneffective and inexpensive instrument for the protection of constitutional rights.1 Amparo,literally “to protect,” originated in Mexico and spread throughout the Western Hemispherewhere it has gradually evolved into various forms, depending on the particular needs ofeach country.2 It started as a protection against acts or omissions of public authorities inviolation of constitutional rights. Later, however, the writ evolved for several purposes:3

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

2. For the judicial review of the consitutionality of statutes (called amparo contraleyes);

3. For the judicial review of the constitutionality and legality of a judicial decision(called amparo casacion);

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

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

The writ of amparo has been constitutionally adopted by Latin American countries,except Cuba, to protect against human rights abuses especially during the time they weregoverned by military juntas. Generally, these countries adopted the writ to provide for aremedy to protect the whole range of constitutional rights, including socio-economic rights.

In the Philippines, the Constitution does not explicitly provide for the writ of amparo.However, several of the amparo protections are available under our Constitution. Thus,pursuant to Article VIII, Section 1 of the 1987 Philippine Constitution, the definition of judicialpower was expanded to include “the duty of the courts of justice to settle actual controversiesinvolving rights which are legally demandable and enforceable, and to determine whether ornot there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on

1 Adolfo S. Azcuna, The Writ of Amparo: A Remedy to Enforce Fundamental Rights, 37 ATENEO

LAW JOURNAL 15 (1993).2 See Article 107 of the Constitution of Mexico; Article 28(15) of the Constitution of Ecuador;

Article 77 of the Constitution of Paraguay; Article 43 of the Constitution of Argentina;Article 49 of the Constitution of Venezuela; Article 48(3) of the Constitution of Costa Rica;and Article 19 of the Constitution of Bolivia.

3 Supra note 1.

96 APPENDIX A I THE RULE ON THE WRIT OF AMPARO I ANNOTATION

the part of any branch or instrumentality of the Government.” The second clause otherwiseknown as the Grave Abuse Clause, accords the same general protection to human rightsgiven by the amparo contra leyes, amparo casacion and amparo administrativo.

Amparo contra leyes, amparo casacion and amparo administrativo are also recognizedin form by the 1987 Philippine Constitution. Specifically, under Article VIII, Section 5, theSupreme Court has explicit review powers over judicial decisions akin to amparo casacion.To wit, Section 5(2) provides that the Supreme Court shall have power to “[r]eview, revise,reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court mayprovide, final judgments and orders of lower courts.”4 And in paragraph (a) of Section 5(2)it is also explicitly provided that the Supreme Court shall have, like amparo contra leyes, thepower to review “x x x [a]ll cases in which the constitutionality or validity of any treaty,international or executive agreement, law, presidential decree, proclamation, order,instruction, ordinance, or regulation is in question.”5

Amparo libertad is comparable to the remedy of habeas corpus. Our Rules of Courthas adopted the old English rule on the writ of habeas corpus to protect the right to libertyof individuals. There are also constitutional provisions recognizing habeas corpus, i.e. ArticleIII, Sections 13 and 15;6 Article VII, Section 18;7 and Article VIII, Section 5, Paragraph 1.8

The Rules of Court provide the procedure to protect constitutional rights. Rule 65embodies the Grave Abuse Clause, while Rule 102 governs petition for habeas corpus.Notably, the various socio-economic rights granted by the Constitution are enforced byspecific provisions of the Rules of Court, such as the rules on injunction, prohibition, etc.

The 1987 Constitution enhanced the protection of human rights by giving the SupremeCourt the power to “[p]romulgate rules concerning the protection and enforcement ofconstitutional rights x x x.”9 This rule-making power unique to the present Constitution, isthe result of our experience under the dark years of martial law regime. Heretofore, theprotection of constitutional rights was principally lodged with Congress through the enactmentof laws and their implementing rules and regulation. The 1987 Constitution, however, gavethe Supreme Court the additional power to promulgate rules to protect and enforce rightsguaranteed by the fundamental law of the land.

In the light of the prevalence of extralegal killing and enforced disappearances, theSupreme Court resolved to exercise for the first time its power to promulgate rules to protect

4 1987 PHILIPPINE CONSTITUTION, Art. VIII, Sec. 5(2).5 1987 PHILIPPINE CONSTITUTION, Art. VIII, Sec. 5(2)(a).6 1987 PHILIPPINE CONSTITUTION, Art. III, Secs. 13 and 15 .7 1987 PHILIPPINE CONSTITUTION, Art. VII, Sec. 18.8 1987 PHILIPPINE CONSTITUTION, Art. VIII, Sec. 5(1).9 1987 PHILIPPINE CONSTITUTION, Art. VIII, Sec. 5(5).


our people’s constitutional rights. Its Committee on the Revision of the Rules of Courtagreed that the writ of amparo should not be a comprehensive and all-encompassing as theones found in some American countries, especially Mexico. These nations are understandablymore advanced in their laws as well as in their procedures with respect to the scope of thisextraordinary writ. The Committee decided that in our jurisdiction, this writ of amparoshould be allowed to evolve through time and jurisprudence and through substantive lawsas they may be promulgated by Congress.

The highlights of the proposed Rule, section by section, are as follows:

SECTION 1. Petition. – The petition for a writ of amparo is a remedy available toany person whose right to life, liberty and security is violated or threatenedwith 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 disappearancesor threats thereof.

Philippine Version. Since the writ of amparo is still undefined under our Constitutionand Rules of Court, Section 1 enumerates the constitutional rights protected by the writ,i.e., only the right to life, liberty and security of persons. In other jurisdictions, the writprotects all constitutional rights. The reason for limiting the coverage of its protection onlyto the right to life, liberty and security is that other constitutional rights of our people arealready enforced through different remedies.

Be that as it may, the Philippine amparo encapsulates a broader coverage. Whereasin other jurisdictions the writ covers only actual violations, the Philippine version is moreprotective of the right to life, liberty and security in the sense that it covers both actual andthreatened violations of such rights. Further, unlike other writs of amparo that provideprotection only against unlawful acts or omissions of public officials or employees, our writcovers violations committed by private individuals or entities. “Entities” refer to artificialpersons, as they are also capable of perpetrating the acts or omission.

The writ covers extralegal killings and enforced disappearances or threats thereof.“Extralegal killings”10 are killings committed without due process of law, i.e., without legalsafeguards or judicial proceedings. As such, these will include the illegal taking of liferegardless of the motive, summary and arbitrary executions, “salvagings” even of suspectedcriminals and threats to take the life of persons who are openly critical of erring governmentofficials and the like.11 On the other hand, “enforced disappearances”12 are attended by the

10 As the term is used in United Nations Instruments.11 Such as media persons for example.12 As defined in the Declaration on the Protection of All Persons from Enforced Disappearances.


following characteristics: an arrest, detention or abduction of a person by a governmentofficial or organized groups or private individuals acting with direct or indirect acquiescenceof the government; the refusal of the State to disclose the fate or whereabouts of theperson concerned or a refusal to acknowledge the deprivation of liberty which places suchpersons outside the protection of law.

SEC. 2. Who May File. – The petition may be filed by the aggrieved party or byany qualified person or entity in the following order:

a. Any member of the immediate family, namely: the spouse, children andparents of the aggrieved party;

b. Any ascendant, descendant or collateral relative of the aggrieved partywithin the fourth civil degree of consanguinity or affinity, in default ofthose mentioned in the preceding paragraph; or

c. Any concerned citizen, organization, association or institution, if there isno known member of the immediate family or relative of the aggrievedparty.

The filing of a petition by the aggrieved party suspends the right ofall other authorized parties to file similar petitions. Likewise, the filing of thepetition by an authorized party on behalf of the aggrieved party suspendsthe right of all others, observing the order established herein.

Who May File. This section provides the order which must be followed by thosewho can sue for the writ. It is necessary for the orderly administration of justice. First, theright to sue belongs to the person whose right to life, liberty and security is being threatenedby an unlawful act or omission of a public official or employee or of a private individual orentity (the aggrieved party). However, in cases where the whereabouts of the aggrievedparty is unknown, the petition may be filed by qualified persons or entities enumerated inthe Rules (the authorized party). A similar order of priority of those who can sue is providedin our rules implementing the law on violence against women and children in conflict withthe law.

The reason for establishing an order is to prevent their indiscriminate and groundlessfiling of petitions for amparo which may even prejudice the right of life, liberty or security ofthe aggrieved party. For instance, the immediate family may be nearing the point ofsuccessfully negotiating with the respondent for the release of the aggrieved party. Anuntimely resort to the writ by a nonmember of the family may endanger the life of theaggrieved party.

The Committee is aware that there may also be instance wherein the qualifiedmembers of the immediate family or relatives of the aggrieved party might be threatenedfrom filing the petition. As the right to life, liberty and security of a person is at stake, this


section shall not preclude the filing by those mentioned in paragraph (c) when authorized bythose mentioned in paragraphs (a) or (b) when circumstances require.

SEC. 3. Where to File. – The petition may be filed on any day and at any timewith the Regional Trial Court of the place where the threat, act or omissionwas committed or any of its elements occurred, or with the Sandiganbayan,the Court of Appeals, the Supreme Court, or any justice of such courts. Thewrit shall be enforceable anywhere in the Philippines.

When issued by a Regional Trial Court or any judge thereof, the writshall be returnable before such court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any oftheir justices, it may be returnable before such court or any justice thereof,or to any Regional Trial Court of the place where the threat, act or omissionwas committed or any of its elements occurred.

When issued by the Supreme Court or any of its justices, it may bereturnable before such Court or any justice thereof, or before theSandiganbayan or the Court of Appeals or any of their justices, or to anyRegional Trial Court of the place where the threat, act or omission wascommitted or any of its elements occurred.

Day and Time of Filing. Due to the extraordinary nature of the writ which protectsthe mother of all rights – the right to life – the petition may be filed on any day, includingSaturdays, Sundays and holidays; and at any time, from morning until evening.

Courts Where Petition May Be Filed. This section is basically similar to the Rule onpetitions for the writ of habeas corpus. It is, however, different because it includes theSandiganbayan for the reason that public officials and employees will be respondents inamparo petitions. It will be noted that the amparo petition has to be filed with the RegionalTrial Court where the act or omission was committed or where any of its elements occurred.The intent is to prevent the filing of the petition in some far-flung area to harass therespondent. Moreover, allowing the amparo petition to be filed in any Regional Trial Courtmay prejudice the effective dispensation of justice, as in most cases, the witnesses and theevidence are located within the jurisdiction of the Regional Trial Court where the act oromission was committed.

Designation. Originally, the draft Rule required the petition to be filed in the RTCthat had “jurisdiction” over the offense. However, the Committee felt that the use of theword “jurisdiction” might be construed as vesting new jurisdiction in our courts, an act thatcan only be done by Congress. The use of the word “jurisdiction” was discontinued, for theRule merely establishes a procedure to enforce the right to life, liberty or security of a personand, undoubtedly, the Court has the power to promulgate procedural rules to governproceedings in our courts without disturbing their jurisdiction.


SEC. 4. No Docket Fees. – The petitioner shall be exempted from the paymentof the docket and other lawful fees when filing the petition. The court, justiceor judge shall docket the petition and act upon it immediately.

Liberalized Docket Fees. The Committee exempted petitioners from payment ofdocket and other lawful fees in filing an amparo petition, for this extraordinary writ involvesthe protection of the right to life, liberty and security of a person. The enforcement ofthese sacrosanct rights should not be frustrated by lack of finances.

SEC. 5. Contents of Petition. – The petition shall be signed and verified andshall allege the following:

a. The personal circumstances of the petitioner;

b. The name and personal circumstances of the respondent responsible forthe threat, act or omission, or, if the name is unknown or uncertain, therespondent may be described by an assumed appellation;

c. The right to life, liberty and security of the aggrieved party violated orthreatened with violation by an unlawful act or omission of therespondent, and how such threat or violation is committed with theattendant circumstances detailed in supporting affidavits;

d. The investigation conducted, if any, specifying the names, personalcircumstances, and addresses of the investigating authority or individuals,as well as the manner and conduct of the investigation, together withany report;

e. The actions and recourses taken by the petitioner to determine the fateor whereabouts of the aggrieved party and the identity of the personresponsible for the threat, act or omission; and

f. The relief prayed for.

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

Contents of the Petition. The petition should be verified to enhance the truthfulnessof its allegations and to prevent groundless suits.

Paragraphs (a) and (b) are necessary to identify the petitioner and the respondent.The respondent may be given an assumed appellation such as “John Doe,” as long as he orshe is particularly described (descriptio personae). Paragraph (c) requires the petitioner toallege the cause of action in as complete a manner a possible. The requirement of affidavitwas added, and it can be used as the direct testimony of the affiant. Affidavits can facilitatethe resolution of the petition, consistent with the summary nature of the proceedings.Paragraph (d) is necessary to determine whether the act or omission of the respondent


satisfies the standard of conduct set by this Rule. Paragraph (e) is intended to prevent thepremature use, if not misuse, of the writ for a fishing expedition.

SEC. 6. Issuance of the Writ. – Upon the filing of the petition, the court, justiceor judge shall immediately order the issuance of the writ if on its face it oughtto issue. The clerk of court shall issue the writ under the seal of the court; orin case of urgent necessity, the justice or the judge may issue the writ in hisor her own hand, and may deputize any officer or person to serve it.

The writ shall also set the date and time for summary hearing of thepetition which shall not be later than seven days from the date of its issuance.

Issuance. The writ is issued as a matter of course when on the face of the petitionit ought to issue. The writ will require respondent to file his return, which is the comment oranswer to the petition. If the petitioner is able to prove his cause of action after the hearing,the privilege or the writ of amparo shall be granted, i.e., the court will grant the petitionerhis appropriate reliefs.

The provision requires that the writ should set the date of hearing of the petition toexpedite its resolution. The amparo proceedings enjoy priority and cannot be unreasonablydelayed.

SEC. 7. Penalty for Refusing to Issue or Serve the Writ. – A clerk of court whorefuses to issue the writ after its allowance, or a deputized person who refusesto serve the same, shall be punished by the court, justice or judge for contemptwithout prejudice to other disciplinary actions.

Penalties. The provision is a modified version of a similar provision in Rule 102,governing petitions for a writ of habeas corpus.

SEC. 8. How the Writ is Served. – The writ shall be served upon the respondentby a judicial officer or by a person deputized by the court, justice or judgewho shall retain a copy on which to make a return of service. In case the writcannot be served personally on the respondent, the rules on substitutedservice shall apply.

Manner of Service. The writ should be served against the respondent, preferably inperson. If personal service cannot be made, the rules on substituted service shall apply.This will avoid the situation where the respondent would be conveniently assigned on a“secret mission” to frustrate personal service.

SEC. 9. Return; Contents. – Within 72 hours after service of the writ, therespondent shall file a verified written return together with supportingaffidavits which shall, among other things, contain the following:


a. The lawful defenses to show that the respondent did not violate orthreaten with violation the right to life, liberty and security of theaggrieved party, through any act or omission;

b. The steps or actions taken by the respondent to determine the fate orwhereabouts of the aggrieved party and the person or personsresponsible for the threat, act or omission;

c. All relevant information in the possession of the respondent pertainingto the threat, act or omission against the aggrieved party; and

d. If the respondent is a public official or employee, the return shall furtherstate 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 ordisappearance of the person identified in the petition which may aidin the prosecution of the person or persons responsible;

iii. to identify witnesses and obtain statements from them concerningthe death or disappearance;

iv. to determine the cause, manner, location and time of death ordisappearance as well as any pattern or practice that may havebrought about the death or disappearance;

v. to identify and apprehend the person or persons involved in the deathor disappearance; and

vi. to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation,its resolution and the prosecution of the case.

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

Contents of the Return. The section requires a detailed return. The detailed returnis important, for it will help determine whether the respondent fulfilled the standard ofconduct required by the Rule. It will also avoid the ineffectiveness of the writ of habeascorpus, where often the respondent makes a simple denial in the return that he or she hascustody over the missing person, and the petition is dismissed. The requirements underparagraph (d) are based on United Nations standards.13

13 See Art. III, United Nations Manual on the Effective Prevention and Investigation of Extralegal,Arbitrary and Summary Executions.


No General Denial. No general denial is allowed. The policy is to require revelationof all evidence relevant to the resolution of the petition. A litigation is not a game of guilebut a search for truth, which alone is the basis of justice.

SEC. 10. Defenses not Pleaded Deemed Waived. – All defenses shall be raisedin the return, otherwise, they shall be deemed waived.

Waiver. This section is in consonance with the summary nature of the proceedingsand to prevent its delay.

SEC. 11. Prohibited Pleadings and Motions. – The following pleadings andmotions are prohibited:

a. Motion to dismiss;

b. Motion for extension of time to file return, opposition, affidavit, positionpaper and other pleadings;

c. Dilatory motion for postponement;

d. Motion for a bill of particulars;

e. Counterclaim or cross-claim;

f. Third-party complaint;

g. Reply;

h. Motion to declare respondent in default;

i. Intervention;

j. Memorandum;

k. Motion for reconsideration of interlocutory orders or interim relief orders;and

l. Petition for certiorari, mandamus or prohibition against any interlocutoryorder.

Prohibited Pleadings. The enumerated pleadings and motions are prohibited, sothat the proceedings in the hearing shall be expedited. The Committee noted that since theright to life, liberty and security of a person is at stake, the proceedings should not be delayed.

This section is similar to that found in the Rule on Violence Against Women andChildren in Conflict with the Law (VAWC).14 However, unlike in VAWC, this Rule allows the

14 See A.M.No. 04-10-11-SC, Sec. 22.


filing of motions for new trial and petitions for relief from judgment. The Committee decidedthat the denial of these remedies may jeopardize the rights of the aggrieved party in certaininstances and should not be countenanced.

No Motion to Dismiss. The filing of a motion to dismiss even on the ground of lackof jurisdiction over the subject matter and the parties is proscribed. The reason is to avoidundue delay. The grounds of a motion to dismiss should be included in the return and resolvedby the court, using its reasonable discretion as to the time and merit of the motion.

SEC. 12. Effect of Failure to File Return. – In case the respondent fails to file areturn, the court, justice or judge shall proceed to hear the petition ex parte.

Ex Parte Hearing. The Committee decided that the hearing should not be delayedby the failure of the respondent to file a return, otherwise the right to life, liberty and securityof a person would be easily frustrated.

SEC. 13. Summary Hearing. – The hearing on the petition shall be summary.However, the court, justice or judge may call for a preliminary conference tosimplify the issues and determine the possibility of obtaining stipulationsand admissions from the parties.

The hearing shall be from day to day until completed and given thesame priority as petitions for habeas corpus.

Summary Nature. The amparo hearing is summary in nature and held from day today until completed for time cannot stand still when life, liberty or security is at stake. Bethat as it may, the court, justice or judge using reasonable discretion, may conduct apreliminary conference, if such conference will aid in the speedy disposition of the petition.

SEC. 14. Interim Reliefs. – Upon filing of the petition or at any time before finaljudgment, the court, justice or judge may grant any of the following reliefs:

Interim Reliefs. The interim reliefs available to the parties are distinct features ofthe writ of amparo. Some of these reliefs can be given immediately after the filing of thepetition motu proprio or at any time before final judgment.

a. Temporary Protection Order. – The court, justice or judge, upon motionor motu proprio, may order that the petitioner or the aggrieved partyand any member of the immediate family be protected in a governmentagency or by an accredited person or private institution capable of keepingand securing their safety. If the petitioner is an organization, associationor institution referred to in Section 3(c) of this Rule, the protection maybe extended to the officers concerned.

The Supreme Court shall accredit the persons and privateinstitutions that shall extend temporary protection to the petitioner or


the aggrieved party and any member of the immediate family, inaccordance with guidelines which it shall issue.

The accredited persons and private institutions shall comply withthe rules and conditions that may be imposed by the court, justice orjudge.

Temporary Protection Order. The grant of a temporary protection order to thepetitioner or the aggrieved party and any member of the immediate family is essentialbecause their lives and safety may be at higher risk once they file the amparo petition.

The temporary protection order and witness protection order are distinguishablefrom the inspection order and production order in that there is no need for verification ofthese motions. Moreover, unlike the latter, the temporary protection order and witnessprotection order may be issued motu proprio or ex parte, without need of a hearing in viewof their urgent necessity.

To make the temporary protection order as broad and as effective as possible, theCommittee decided to include not only government agencies, but also accredited personsand private institutions. For reasons of their own, some aggrieved persons refuse to beprotected by government agencies; hence, the need to add persons and private institutions.To ensure their capability, the Supreme Court shall accredit these persons and privateinstitutions.

b. Inspection Order. – The court, justice or judge, upon verified motion andafter due hearing, may order any person in possession or control of adesignated land or other property, to permit entry for the purpose ofinspecting, measuring, surveying, or photographing the property or anyrelevant object or operation thereon.

The motion shall state in detail the place or places to beinspected. It shall be supported by affidavits or testimonies of witnesseshaving personal knowledge of the enforced disappearance orwhereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or ofthe privileged nature of the information, the court, justice or judge mayconduct a hearing in chambers to determine the merit of the opposition.

The movant must show that the inspection order is necessary toestablish the right of the aggrieved party alleged to be threatened orviolated.

The inspection order shall specify the person or personsauthorized to make the inspection and the date, time, place and mannerof making the inspection and may prescribe other conditions to protect


the constitutional rights of all parties. The order shall expire five daysafter the date of its issuance, unless extended for justifiable reasons.

Inspection Order. The sensitive nature of an inspection order requires that it shallbe the subject of a motion and shall be duly heard. It may be availed of by both the petitionerand the respondent. To prevent its misuse, the Rule requires that the motion also state insufficient detail the place or places to be inspected. It should also be under oath and shouldhave supporting affidavits. The inspection order shall specify the persons authorized tomake the inspection as well as the date, time, place and manner of making the inspection.Other conditions may be imposed to protect the rights of the parties. The order has alimited lifetime of five days, but can be extended under justifiable circumstances.

If the court, justice or judge gravely abuses his or her discretion in issuing theinspection order, as when it will compromise national security, the aggrieved party is notprecluded from filing a petition for certiorari with the Supreme Court, which under theConstitution, may not be deprived of its certiorari jurisdiction.

c. Production Order. – The court, justice or judge, upon verified motion andafter due hearing, may order any person in possession, custody or controlof any designated documents, papers, books, accounts, letters,photographs, objects or tangible things, or objects in digitized or electronicform, which constitute or contain evidence relevant to the petition orthe return, to produce and permit their inspection, copying orphotographing by or on behalf of the movant.

The motion may be opposed on the ground of national securityor of the privileged nature of the information, in which case the court,justice or judge may conduct a hearing in chambers to determine themerit of the opposition.

The court, justice or judge shall prescribe other conditions toprotect the constitutional rights of all the parties.

Production Order. Like the inspection order, the production order is available toboth the petitioner and respondent and, considering its sensitive nature, is only grantedupon motion and after hearing. The phrase “objects in digitized or electronic form” wasadded to cover electronic evidence, since the documents involved may be stored in digitalfiles.

d. Witness Protection Order. – The court, justice or judge, upon motion ormotu proprio, may refer the witnesses to the Department of Justice foradmission to the Witness Protection, Security and Benefit Program,pursuant to Republic Act No. 6981.


The court, justice or judge may also refer the witnesses to othergovernment agencies, or to accredited persons or private institutionscapable of keeping and securing their safety.

Witness Protection Order. The witness protection order may be issued upon motionor motu proprio. The witness may be referred to the DOJ pursuant to Republic Act No. 6981.If the witness cannot be accommodated by the DOJ or the witness refuses the protection ofthe DOJ, the court, justice or judge may refer the witness to another government agency orto an accredited person or private institution.

SEC. 15. Availability of Interim Reliefs to Respondent. – Upon verified motionof the respondent and after due hearing, the court, justice or judge may issuean inspection order or production order under paragraphs (b) and (c) of thepreceding section.

A motion for inspection order under this section shall be supportedby affidavits or testimonies of witnesses having personal knowledge of thedefenses of the respondent.

Interim Reliefs of Respondent. This section enumerates the interim reliefs thatmay be availed of by the respondents, which are the inspection and production orders.

The interim reliefs will ensure fairness in the proceedings, since there may beinstances in which the respondents would need to avail themselves of these reliefs to protecttheir rights or to prove their defenses, i.e., when they allege that the aggrieved party islocated elsewhere, or when vital documents proving their defenses are in the possession ofother persons.

SEC. 16. Contempt. – The court, justice or judge may order the respondentwho refuses to make a return, or who makes a false return, or any personwho otherwise disobeys or resists a lawful process or order of the court tobe punished for contempt. The contemnor may be imprisoned or imposed afine.

Contempt. The power to cite for contempt is an inherent power of a court tocompel obedience to its orders and to preserve the integrity of the judiciary. A finding ofcontempt of court may result from a refusal to make a return; or, if one is filed, it is false andtantamount to not making a return; disobedience to a lawful order; and resistance to alawful process. A fine or an imprisonment may be imposed on a person found guilty ofcontempt of court in accordance with the Rules of Court.

SEC. 17. Burden of Proof and Standard of Diligence Required. – The partiesshall establish their claims by substantial evidence.


The respondent who is a private individual or entity must prove thatordinary diligence as required by applicable laws, rules and regulations wasobserved in the performance of duty.

The respondent who is a public official or employee must prove thatextraordinary diligence as required by applicable laws, rules and regulationswas observed in the performance of duty.

The respondent public official or employee cannot invoke thepresumption that official duty has been regularly performed to evaderesponsibility or liability.

Diligence Standard. The distinction is made between a private and a publicrespondent to highlight the difference in the diligence requirement for a public official oremployee. Public officials or employees are charged with a higher standard of conductbecause it is their legal duty to obey the Constitution, especially its provisions protecting theright to life, liberty and security. The denial of the presumption that official duty has beenregularly performed is in accord with current jurisprudence on custodial interrogation andsearch warrant cases.

SEC. 18. Judgment. – The court shall render judgment within 10 days from thetime the petition is submitted for decision. If the allegations in the petitionare proven by substantial evidence, the court shall grant the privilege of thewrit and such reliefs as may be proper and appropriate; otherwise, theprivilege shall be denied.

Speedy Judgment. The court, justice or judge is obliged to render judgment within10 days after submission of the petition for decision. The short period is demanded by theextraordinary nature of the writ.

SEC. 19. Appeal. – Any party may appeal from the final judgment or order tothe Supreme Court under Rule 45. The appeal may raise questions of fact orlaw or both.

The period of appeal shall be five working days from the date of noticeof the adverse judgment.

The appeal shall be given the same priority as habeas corpus cases.

Appeal. The provision allows an appeal from final judgments or orders throughRule 45. The Committee considered Rule 41 as a mode of appeal, but consensus was reachedthat Rule 45 would best serve the nature of the writ of amparo. The Rule 45 appeal here,however, is different because it allows questions not only of law but also of fact to be raised.The Committee felt that an amparo proceeding essentially involves a determination of factsconsidering that its subject is extralegal killings or enforced disappearances, hence, a review


of errors of fact should be allowed. The disposition of appeals dealing with amparo casesshall be prioritized like habeas corpus cases.

SEC. 20. Archiving and Revival of Cases. – The court shall not dismiss thepetition, but shall archive it, if upon its determination it cannot proceed for avalid cause such as the failure of petitioner or witnesses to appear due tothreats on their lives.

A periodic review of the archived cases shall be made by the amparocourt that shall, motu proprio or upon motion by any party, order their revivalwhen ready for further proceedings. The petition shall be dismissed withprejudice upon failure to prosecute the case after the lapse of two yearsfrom notice to the petitioner of the order archiving the case.

The clerks of court shall submit to the Office of the Court Administratora consolidated list of archived cases under this Rule, not later than the firstweek of January of every year.

Liberalized Rule on Dismissal. The rule on dismissal due to failure to prosecute isliberalized. If petitioners cannot proceed to prove their allegations for a justifiable reasonlike the existence of a threat to their lives or the lives of their witnesses, the court will notdismiss the petition but will archive it. The parties will be notified before a case is archived,as the order has to be justified by a good reason, to be determined after hearing. Archivingcan be ordered only during the pendency of the case. The case may be revived within twoyears from its archiving. After two years, it may be dismissed for failure to prosecute. Sinceit is the petitioner who would be prejudiced by its final dismissal, the two-year prescriptiveperiod is reckoned from the date of notice to the petitioners of the order of archiving. Twoyears is deemed a reasonable time for the aggrieved parties to prosecute their petition.

SEC. 21. Institution of Separate Actions. – This Rule shall not preclude thefiling of separate criminal, civil or administrative actions.

Prerogative Writ. The writ of amparo partakes of the nature of a prerogative writ.It is not criminal, civil or administrative suit. Hence, it does not suspend the filing of criminal,civil or administrative actions.

Originally, the Committee included a provision allowing a claim for damages. Itdropped the provision for fear that such a claim would unduly delay the proceeding,considering the possibility of counterclaims and cross-claims being set up. Delay would defeatthe summary nature of the amparo proceeding. It was decided that the aggrieved partyshould instead file in a claim in a proper civil action.

Similarly, the amparo proceeding is not criminal in nature and will not determine thecriminal guilt of the respondent. However, if the evidence so warrants, the amparo courtmay refer the case to the Department of Justice for criminal prosecution.


SEC. 22. Effect of Filing of a Criminal Action. – When a criminal action has beencommenced, no separate petition for the writ shall be filed. The reliefs underthe writ shall be available by motion in the criminal case.

The procedure under this Rule shall govern the disposition of thereliefs available under the writ of amparo.

Effect of Criminal Proceeding. This section contemplates the situation where acriminal action has already been filed, in which case the commencement of the amparoaction is barred. This is to avoid the difficulties that may be encountered when the amparoaction is allowed to proceed separately from the criminal action. Two courts trying essentiallythe same subject may issue conflicting orders.

The amparo reliefs, however, are made available to the aggrieved party throughmotion in the court where the criminal case is pending. The disposition of such reliefs shallcontinue to be governed by this Rule.

SEC. 23. Consolidation. – When a criminal action is filed subsequent to thefiling of a petition for the writ, the latter shall be consolidated with the criminalaction.

When a criminal action and a separate civil action are filed subsequentto a petition for a writ of amparo, the latter shall be consolidated with thecriminal action.

After consolidation, the procedure under this Rule shall continue toapply to the disposition of the reliefs in the petition.

Consolidation. In case a petition for the writ of amparo is filed prior to the institutionof a criminal action, or prior to a criminal action and a separate civil action, the petitionshall be consolidated with the criminal action. This Rule shall continue to govern thedisposition of the reliefs for amparo after consolidation.

SEC. 24. Substantive Rights. – This Rule shall not diminish, increase or modifysubstantive rights recognized and protected by the Constitution.

No Diminution, Increase or Modification of Substantive Rights. The rule-makingpower of the Supreme Court has been expanded in Article VIII, Section 5(5) of the 1987Constitution. It provides that the Supreme Court shall have the power to “[p]romulgaterules concerning the protection and enforcement of constitutional rights [which] shall notdiminish, increase, or modify substantive rights x x x.”15

The Supreme Court clarified what constitutes procedural rules in Fabian v. Desierto,viz:

15 1987 PHILIPPINE CONSTITUTION, Art. VIII, Sec. 5(5) (emphasis supplied).


[T]he test whether the rule really regulates procedure, that is the judicial processfor enforcing rights and duties recognized by substantive law and for justlyadministering remedy and redress for a disregard or infraction of them. If therule takes away a vested right, it is not procedural. If the rule creates a rightsuch as the right to appeal, it may be classified as a substantive matter; but ifit operates as a means of implementing an existing right, then the rule dealsmerely with procedure.16

SEC. 25. Suppletory Application of the Rules of Court. – The Rules of Courtshall apply suppletorily insofar as it is not inconsistent with this Rule.

Suppletory Application of the Rules of Court. The Rules of Court shall supplementthe Rule on amparo as far as it is applicable. This new Rule will prevail and will not beaffected by prior inconsistent rules, resolutions, regulations or circulars of the Supreme Court.

SEC. 26. Applicability to Pending Cases. – This Rule shall govern cases involvingextralegal killings and enforced disappearances or threats thereof pending inthe trial and appellate courts.

Remedial Nature of the Writ. Since the writ is remedial in nature, it is applicable topending cases of extralegal killings and enforced disappearances or threats thereof, both inthe trial and the appellate courts.

SEC. 27. Effectivity. – This Rule shall take effect on October 24, 2007, followingits publication in three newspapers of general circulation.

Date of Effectivity. The last section marks the date of effectivity of the Rule and itspublication requirement. The Committee deemed it proper that the birth of the Rule in thePhilippines should coincide with our celebration of United Nations Day, to manifest a strongaffirmation of our commitment towards the internationalization of human rights.

(Sgd.) PUNO, CJ; QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTTIEREZ, CARPIO,AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO,GARCIA, VELASCO, Jr., NACHURA, REYES, JJ.

16 G.R. No. 129742, September 16, 1998, at 22–23 citing 32 AM. JUR. 2d, Federal Practice andProcedure, Sec. 505, at 936; People v. Smith, 205 P. 2d 444.

112 APPENDIX B I THE WRIT OF AMPARO: A REMEDY TO ENFORCE FUNDAMENTAL RIGHTS

I. INTRODUCTION

The writ of amparo1 originated in Mexico, where it was provided for in the Constitution ofthe State of Yucatan in 1841 and later in the Federal Constitution of 1857.

Noteworthy it is that it was also in Mexico that the modern trend of incorporatingfundamental social and economic rights in the Constitution started. The Mexican Constitutionof February 5, 1917, which is still basically in force, opened up new perspectives. It wasmore advanced than even the German Constitution of October 1919, thus antedating thelatter by two years in establishing as constitutional a number of fundamental social rights.2

The social transcendence of human rights was thus constitutionally recognized. Andin addition to those rights that have traditionally been granted to the individual, others havearisen that put him in a new dimension: his integration into the various social groups ofwhich contemporary society is made up. Speaking on the new Constitutions of the world, B.Mirkins Guetzevitch aptly observed that, in the 20th century, the social purpose of law is notonly a doctrine or a school of legal thought but the very essence of life.3

Appendix BTHE WRIT OF AMPARO:

A REMEDY TO ENFORCE FUNDAMENTAL RIGHTS∗

Adolfo S. Azcuna**

∗ This Article was published in the 37 ATENEO LAW JOURNAL 13 (2nd Issue, 1993) and ATENEOLAW JOURNAL 39 (60th Commemorative Issue, 2011).

∗ ∗ A.B. ‘59, Ll. B. ‘62 Cum Laude, Ateneo de Manila University, Postgraduate Studies ‘82, SalzburgUniversity; Partner, Azcuna, Yorac, Sarmiento, Arroyo & Chua Law Offices; Member, 1971Constitutional Convention and 1986 Constitutional Commission; 1987–1990 PresidentialLegal Counsel and Spokesman; Editor in Chief, Ateneo Law Journal (1961–1962).

1 Amparo is a word meaning protection, from amparar meaning “to protect.”2 P. ROUSIX, GENESIS DE LOS ARTICULOS 27 Y 12 DE LA CONSTITUCION POLITICA DE 1917 27 ET. SEG. (2D ED.

1959).3 LAS NUEVAS CONSTITUCIONES DEL MUNDO 34 (1931).


Recently, however, contemporary jurists as well as facts of history have shown thathuman rights cannot be effectively safeguarded by incorporating them in the Constitution.And many constitutional lawyers today consider that human rights can be effectivelyguaranteed by specific procedures for their protection.

Now among the different procedures that have been established for the protectionof human rights, the primary ones that provide direct and immediate protection are habeascorpus and amparo. The difference between these two writs is that habeas corpus is designedto enforce the right of freedom of the person, whereas amparo is designed to protect thoseother fundamental human rights enshrined in the Constitution but not covered by the writof habeas corpus.4

Amparo, therefore, has been said to have been done for the social and economicrights what habeas corpus has done for civil and political rights. Speaking of the effectivenessof amparo, the Director of the Institute of Legal Research at the National University ofMexico says: “Amparo is, in my view, the most effective remedy for the specific protectionof the human rights set out in the Constitution.”5

After Mexico, the first country to introduce amparo was El Salvador, in its Constitutionof August 13, 1886. It was followed by Honduras, in its Constitution of 1894, Nicaragua onNovember 10, 1911, Guatemala on March 11, 1921, Panama on January 2, 1941, Costa Ricaon November 7, 1941, Argentina in the Constitution of the Province of Santa Fe of August13, 1921, and more recently, Venezuela in its Constitution of 1967.

It has also spread to other parts of the world, such as India, whose Constitution of1965—considered a model in progressive and modern constitution-making—provides in PartIII, Section 32, Subsections 1–4, a “Right to Constitutional Remedies” to enforce“Fundamental Rights” embodied in said portion of the Constitution.

Finally, the writ of amparo was raised to the international level by its inclusion inArticle XVIII of the Inter-American Declaration of Human Rights, a regional conventionapproved at Bogota on May 2, 1948. These landmark provisions state:

Every person may resort to the courts to ensure respect for his legal rights.There should likewise be available to him a simple, brief procedure wherebythe courts will protect (“amparo” in Spanish) him from acts of authority that,to his prejudice, violate any fundamental constitutional rights.

4 Zamudio, Latin American Procedures for the Protection of the Individual, J. INTL COM JURISTS

86 (1968).

5 Id. at 77.


Finally, amparo first found expression in a multilateral instrument of universalapplication in the Universal Declaration of Human Rights, which was approved by the GeneralAssembly of the United Nations on December 10, 1948. Article 8 of the Universal Declarationstates:

Everyone has the right to an effective remedy by the competent nationaltribunals for acts violating the fundamental rights granted him by theConstitution or by the law.

II. DIFFERENT FORMS OF AMPARO

The nature and time-tested role of amparo has shown that it is an effective and inexpensiveinstrument for the protection of human rights enshrined in the Constitution.

As practised, amparo has been found so flexible to the particular situations of eachcountry that, while retaining its essence, it has developed various procedural forms. There istherefore a Mexican amparo, an Argentinian amparo, a Chilean amparo, and so on.

The forms of amparo mainly differ according to the scope of protection given. Briefly,these are as follows:

(a) In some countries, amparo is regarded solely as an equivalent to habeas corpus,being available only to protect the individual from unlawful acts or fromirregularities in criminal proceedings. This is the meaning it has in Chile, and thesame holds in the Transitional Provision 5 of the 1951 Venezuelan Constitutionwhich uses the term amparo de la libertad personal as a synonym of habeascorpus.

(b) In Argentina, Venezuela, Guatemala, El Salvador, Costa Rica, Panama, and veryrecently, in Bolivia, Ecuador, and Paraguay, as well as in Mexico, amparo, hascome to mean an instrument for the protection of constitutional rights withthe exception of freedom of the person, which is protected by the traditionalhabeas corpus.

(c) A third group of countries also uses amparo as a petition for judicial review tochallenge unconstitutional laws, as in Mexico, Honduras and Nicaragua.

III. SURVEY OF PROVISIONS OF AMPARO IN MODERN CONSTITUTIONS

The Venezuelan Constitution of January 1961 provides for amparo in Article 49:

The courts shall protect (‘ampararan’ in Spanish) all inhabitants of the Republicin the exercise of the rights and guarantees established by the Constitution, inaccordance with law. The Procedure shall be brief and summary x x x.


Article 48(3) of the Constitution of Costa Rica, of November 7, 1949, lays downrules for amparo:

To maintain or restore the enjoyment of the rights laid down in this Constitution(other than freedom of the person which is protected under par. 1 of the Articleby habeas corpus) everyone shall also have the right of amparo in such courtsas the law may determine.

Article 19 of Bolivia’s Constitution of February 2, 1967, provides:

In addition to right of habeas corpus, to which the preceding article refers,amparo lies against illegal acts or omissions of officials or private individualsthat restrict or deny the individual rights and guarantees recognized by theConstitution and the law.

The Constitution of Ecuador, of May 25, 1967, provides for amparo in Article 28 (15)in the following terms:

Without prejudice to other inherent rights of the individual, the State shallguarantee x x x the right to demand judicial amparo against any violation ofconstitutional guarantees, without prejudice to the duty of the public powerto ensure the observance of the Constitution and the laws.

The Constitution of Paraguay, of August 25, 1967, provides for amparo in Article 77:

Any person who considers that a right or guarantee to which he is entitledunder this Constitution or under law has been or is in imminent danger ofbeing seriously injured by an individual and who, because of the urgency ofthe case, cannot have recourse to the ordinary remedies may file a petition foramparo with any judge of first instance. The proceedings shall be short,summary, free and held in public, and the judge shall be empowered tosafeguard the right or guarantee or to restore immediately the legal positioninfringed. Regulations governing the procedure shall be laid down by law.

Since the Revolution of 1955, amparo has found a place in a large number ofArgentinian provincial Constitutions.

Article 58 of the Constitution of Honduras, of June 3, 1965, in Paragraph 1 statesthat amparo may be sought by an aggrieved party or by any person on his behalf, for thefollowing purpose: “(a) to maintain or restore the enjoyment of the rights and guaranteesestablished by the Constitution x x x.”

As stated, the Constitution of India provides for a writ of amparo in its Part III,Section 32, Subsections 1–4.


The success of the land reform program of Mexico was due in large measure to thewrit of amparo, which, under the Constitution of Mexico, is available to challenge decisionsof agricultural authorities that affect the rights of their farming cooperatives there, calledejidos, or rights of their farming members, called ejiditarios, under the Constitutionally-established agrarian reform system of said country.6

Professor Zamudio attests: “An examination of the various procedures for protectingfundamental human rights, shows, it is submitted, that no other institution has the prestige,roots and traditions of amparo (or its equivalent, the Brazilian mandado de seguranza) toprovide a coherent procedure with uniform bases for the protection of fundamental rightsset forth in various x x x Constitutions.”7

IV. CONSTITUTIONAL BASIS OF THE WRIT

As earlier mentioned, constitutional lawyers around the world believe that human rightscan be effectively safeguarded only if, in addition to their being embodied in the Constitution,a specific procedural device to protect them is likewise provided for in the Constitution. Thereason is obvious. By including in the Constitution a right to an effective remedy to protectsocial and economic rights, we spare them from the possible curtailment or destruction bythe vagaries of shifting political majorities in the legislature. After all, these are human rights,deemed to spring from and adhere to the very nature, person, and dignity of man. They arenot within the competence of society to abrogate – even by majority vote; they are in factsometimes called “rights over society.”

Furthermore, there can be no clearer way of showing the degree of seriousness anddetermination to see the realization and fulfillment of the social and economic rightsenshrined in the fundamental law than to provide for an effective procedural remedy toenforce them.

The Philippine Constitution provides the basis for the Philippine writ of amparo, byintroducing a new provision in Article VIII, Section 5(5), that empowers the Supreme Courtto: “Promulgate rules concerning the protection and enforcement of constitutional rightsx x x.” This formulation was the idea of former Chief Justice Roberto Concepcion, Chairmanof the Judiciary Committee of the Constitutional Commission, in connection with the proposalfor a writ of amparo.

6 See Id. at 86.

7 Id. at 89 (emphasis supplied).

Documents

The Writ of Amparo; The Philippine Experience So Far_CD