02 Jul 2010

    On September 25, 2007 the Supreme Court issued AM No. 07-9-12 promulgating the Rule on the "Writ of Amparo".  The rule is to take effect on October 24, 2007 although it will also apply retroactively to "cases involving extra legal killings and enforced disappearance or threats thereof pending in the trial and appellate courts"�.  Under Section 26 this rule is applicable to pending habeas corpus cases including those on the disappearance of, among others, Jonas Burgos, Karen Empeno, Shirley Cadapan and Luisa Posa.

    This paper is an initial study of this very new rule, which has yet to become effective.  Considering that the Supreme Court has not  yet decided on any case involving the writ, it is unclear how  certain provisions will be interpreted by the Court. This paper, therefore, although recognizing that the rule does provide many opportunities for redress for victims of human rights violations, does not contain any conclusion or judgment on whether the Rule will be effective in addressing the state of impunity resulting from the unabated extrajudicial killings and enforced disappearance.  

    Judging from the consistent position of Pres. Gloria Arroyo and the AFP of disregarding court decisions, refusing to comply with court orders or blaming the New Peoples Army for the killings and disappearances, there is an apprehension that the provisions of the very Writ will be used by the Executive branch to render it ineffective by circumventing its rules and court orders or using the writ of amparo to deflect attention from their members accused of human rights abuses.  It is hoped that the Supreme Court will not allow the Writ to be abused or misused by the very suspects themselves to the detriment of justice and the victims of human rights violations.

 
Nature of the Writ under Section 1

    The nature of the writ is defined in Section 1 as a remedy "available to any person whose right to life, liberty or security"� is violated or "threatened with violation by an unlawful act or omission by a public official or employee or of a private individual or entity"�.   Unlike the other amparos which covers violation of constitutional rights in general, the rule seems to limit the justiciable issues to a limited number of rights.  This results in various possible interpretations. 

    Firstly, property rights are not covered by the writ, a possible deviation from the Mexican amparo which allows the writ on issues involving agrarian disputes.  The introduction of the legal notion of "security"� however, may be broadly defined to include economic rights since security includes rights pertaining to livelihood, economic well being and other economic rights.  It possible though, that the rule will only be limited to civil and possibly, political rights.   It is noteworthy that the Philippine amparo did not follow the Mexican "variation" which provides relief for violation of rights to life, liberty "and human dignity" presumably because of the  breadth of the notion of "human dignity".

    Secondly, the writ includes protection of "liberty"  which may include deprivation of liberty previously covered by habeas corpus petitions.  It is unclear how the rule will differentiate the  applicability of habeas corpus and amparo.  In Chile for example, there is no difference between amparo and habeas corpus petitions. The amparo rules in Argentina and Mexico however, clearly state that deprivation of liberty is not covered by amparo but is remedied through a habeas corpus petition.  The most likely interpretation of this provision in the Philippine amparo in cases of actual deprivation of liberty is to limit amparo to cases where the fate or whereabouts of the person subject of the petition is unknown.  If the detention of a subject is admitted by the state, but the legality of the same is contested, then the recourse is habeas corpus.

    Since the rule may be applied retroactively , the family of Jonas Burgos may apply the rule in their current habeas corpus petition and use the inspection and production clauses under Section 14 to compel the submission of the AFP Report on his disappearance.  In fact, this paper argues that, acts of extra judicial killings or enforced disappearance which were not subject of any complaint filed in court or of any judicial process, may still be filed on or after October 24 using amparo since procedural rules may apply retroactively.

    The case is different, however, when it comes to "threatened" deprivation of liberty, when the subject has not been arrested or disappeared.  In this case, the remedy is amparo since this situation may not be deemed within the ambit of a habeas corpus petition.  The threatened arrest of the Batasan Five for example, may also be remedied through an amparo petition.  The inclusion of "threats" to liberty as a justiciable controversy  could play a role in stopping the military from "calling and inviting to military camps" members of progressive organizations for interrogation.  The "invited" persons may immediately file an amparo petition to inquire why the military is inviting them to their camps.

    Thirdly, the writ is a remedy if the right  to "life" is violated or threatened.  Families of victims of extrajudicial killings [called "extra-legal killing" by the  rule] may therefore resort to amparo as a means of  identifying the perpetrator preparatory to the filing of a criminal complaint.  In the case of Reverend Isias Sta. Rosa in Bicol who was found dead beside another dead person subsequently identified as a member of the Philippine Army, resort to amparo may be availed of to get more information on the "mission order" found in body  of the soldier  and other relevant issues prior to the filing of a criminal complaint. 

    Fourthly,  the writ covers both government officials and private  individuals or entities.  This is where the rule, based on the experience of victims in other Latin American countries, gets complicated.  Ordinarily, acts committed by private individuals, such as deprivation of liberty or murder, is dealt with under the  Revised Penal Code and under the Rules on Criminal Procedure.   In fact, the original amparo [Mexico] only applies to public officials and did not include within its amparo rules "private crimes" leaving the same to be resolved by ordinary legal processes.

    The problem that the country faces today, and which required a Consultative Summit, is not the absence of investigation and prosecution  of crimes committed by private individuals as the "Rules of Court"� is equipped in dealing with these crimes.  The problem, rather, is in regard to the impunity with which extra judicial killings, enforced disappearances and other human rights violations were carried out by suspected state security forces who hide behind various mechanisms to preempt investigation and prosecution such as claims to confidentiality, national security, executive privilege, the principle of presumption of regularity or just plain and simple "protection"� provided by top military officials, rendering the ordinary rules of court and even the judiciary ineffective in intervening to at least spur serious investigation and prosecution.  The government not only has the resources but also the "political will" to go after crimes committed by private entities. The problem being addressed is that the executive branch does not have the "political will"� to go after its allies, and in the case of human rights violations, after members of the state security forces.

    This paper believes that redress for acts committed by private individuals is important and the victims of private crimes must never be denied redress.  It is possible, however, that the inclusion of "private crimes" may result in a deluge of amparo cases [similar to what happened in Argentina or Chile] that will clog the amparo courts to the detriment of victims who need the writ to avail of justice for their dead.  It is also possible that the AFP will "ride"� on this expansion and abuse the writ's expanded scope by filing baseless amparo petitions against phantom suspects in order to derail the amparo process and render it ineffective.  Hopefully, the  Supreme Court will preempt any attempt to abuse the writ by the suspects themselves and find ways to screen out petitions of such nature.

    On another vein, does the aggrieved "person"� in Section 1 include a juridical person?  The organizations or associations can claim the right to "security" under Section 1 and may file the writ as the aggrieved party and not as a mere representative.  It will be interesting how the court will interpret this considering that currently, organizations, not just individuals, have been subject to attacks and harassments. It must be noted that the court under Section 14 [c] may issue a protection order for the protection of a petitioner-organization


Who may File

    Section 2 provides that the following have standing to file the petition "in the following order"

1.    The aggrieved  party
2.    Any member of the immediate family of the injured party
3.    Any  relative within the fourth degree of consanguinity or affinity
4.    Any individual citizen or organization "if there is no known member of the immediate family or relative of the aggrieved party�".

    This expansion of standing is positive in terms facilitating recourse to the remedy.  The problem that may be encountered under Section 2 is the interpretation of the phrase "in the following order" and the requirement that a third party can only file the petition "if there is no known" member of the  aggrieved party's family.  This restriction partly stems from the complication brought about by the fact that the writ covers acts or omissions by private individuals.  This makes the family of  the victim a target for harassment and threats not to file the petition in cases where respondents are state security forces, and at the same time preempt third parties from filing an amparo petition.  The state of impunity prevailing today is partly brought about by the fact that families and witnesses are afraid to file a complaint or testify  against the police or members of the AFP. By limiting the right of human rights organizations to file the petition only in cases where there is no "known"� member of the victim's family, the rule gives the perpetrators the opportunity to defeat the remedy.

     This paper asserts that this limitation should be interpreted liberally in favor of the petitioners and the human rights organizations if the respondents are public officials.   Human rights organizations, have the institutional capacity and accountability to file these complaints should the victim's families be reluctant out of fear to file the petition. 

    It must be noted that the Chilean amparo merely states that it "may be filed on behalf of any person"�.  The Argentina amparo, states that the petition "may be filed by the damaged party, the ombudsman and the associations which foster such ends" without any hierarchical requirement.

Accessibility  through provisions on venue, Docket Fees and archiving

    The rule, under Section 3, is liberal in terms of venue which will indeed facilitate the filing of the petition.  This is similar to the Nicaraguan amparo which allows the filing of the petition "any day and at all hours".  Section 3 further allows the petitioner to file in the Regional Trial Court where the threat, act or omission [or any of its elements] occurred,  with  the Court of Appeals, Sandiganbayan or the Supreme Court "or any of its justices"�. The rule does not impose a strict hierarchy of courts and in fact allows a petition to be filed before any member of these collegial bodies. Decisions by any of these bodies may be immediately appealed to the Supreme Court under Rule 45.  The amparo rule departs from Rule 45, however, because an amparo appeal to the Supreme Court could raise issues of facts or both law and facts [See Sec. 19].

    A novel question on the issue of accessibility will crop up if the privilege of the writ of habeas corpus is suspended. Human rights lawyers may argue that such suspension does not suspend the writ of amparo.  It will be interesting t see how the Court will decide on this issue since the amparo writ is essentially different from habeas corpus.
 
    One of the most important liberal provisions of the rule is that unlike many other amparos, the Philippine amparo does not require exhaustion of remedies before an amparo court  acquires jurisdiction.  This possibly stems from the lessons learned in many of the amparos in Latin America which were circumvented by the exhaustion requirement and was generally used by  state security forces to delay petitions for the writ thereby rendering the remedy ineffective.

    Another important liberal provision in the rule is the absence of any requirement for the payment of docket fees under Section 4, which makes the remedy accessible to the victims insofar as it relieves them of the financial burden to prosecute their case.    The only possible danger in this provision is that this may open up the system to abuse by litigious private individuals against another private individual or entity for harassment purposes.  Unlike government, private citizens are not equipped to respond to Petitions filed against them in so many possible venues, particularly since Section 9 requires them to  file their "return" within 72 hours from receipt of the writ.  

    Section 20 provides that an amparo petition  is not dismissed by the court, but is rather archived, if  "it cannot proceed for a valid cause such as the failure of the petitioner or witnesses to appear  due to threats to their lives."� The archiving of the case, rather than dismissal, makes it easier for the victims to revive the petition when circumstances change.   This legal mechanism could play an important role in the battle against impunity, and may be deemed as a warning on the perpetrators of human rights abuses that they may still be held to account in the future under a new president or once their "protectors" in government are gone.

Return of the Writ

    One of the issues in habeas corpus cases involves the lack of accountability by the military and public officials who issue blanket denial of custody of the victim of enforced disappearance.  Human rights lawyers have long been demanding that a habeas corpus return must actually be a certification "under oath" by public officials who undertake that they conducted diligent search for the victim, inquired from the various units under their command and found that they have no custody of the victim. Should it be proven, after such certification, that the victim is in the custody of the government, then the respondents admit to either administrative or criminal liability for failing to conduct diligent search or for issuing a false certification.  This phenomenon of "denial without accountability" was resorted to by the military in Chile during Pinochet and was one of the major reasons for the setback of the writ in that country.
 
    The Philippine amparo does provide for opportunities to penalize public officials who issue such blanket denials without conducting a serious and diligent search for the victim by prohibiting the same under Section 9 and requiring, inter alia, the respondent to state in the following in their Return:

(i)    the steps taken by the respondents to determine the fate or whereabouts of the victim
(ii)    All relevant information in the possession of the respondent pertaining to the threats, acts or omissions against the victim.
(iii)    To recover and preserve evidence related to the death or disappearance of the victim
(iv)    To determine the cause, manner, location and time of death of the victim

    The above information should force the respondents to certify on the above rather than merely issuing blanket denials or just declaring that the NPA was responsible for the crime without showing the investigation undertaken or the basis for such denial.    Section 16 punishes with a fine or imprisonment those who fail to make a return or makes a false return.   It is possible, however, that contempt may not be sufficient to strike fear into the hearts of  state security forces should the judiciary waver in citing erring public officials with contempt. 

    One novel legal development in the Philippine amparo is the inapplicability of the "presumption of regularity"� rule.  Section 17 requires that the public official must prove "that extraordinary diligence was observed in the performance of duty." Blanket denials without the corresponding diligence to investigate the killing or disappearance are unacceptable under the rule.  Furthermore, since there is no presumption of regularity, the respondent public official must prove through evidence that his or her act was indeed regular rather than placing the burden of proving the "irregularity" on the complainants.


Interim Relief

    The rule provides for immediate relief and remedies under the following:

(i)    Section 14.a and 14.b  [Temporary Protection Order] and [Witness Protection Order] which empowers the court to order a government agency or a private person or an "accredited" institution to give protection to the aggrieved parties, their family or the organization who filed the petition.

(ii)     Section 14.b [Inspection Order] which empowers the court to allow entry into a public or private property for "the purpose of inspecting, surveying, measuring or photographing"� the property or any relevant object thereon

(iii)    14.c [Production Order] which empowers the court to order any person to produce "documents, papers, letters, photographs, objects or tangible things and those in digitized or electronic forms"�.

    Firstly, the rule grants the courts the power to issue a protection order, to protect not just natural persons but juridical persons such as the petitioner-organization or its officers.  This is akin to the "cessation" stage in the other amparos.

    Secondly, non government entities namely private individuals and accredited organizations, are given the authority [previously limited to government agencies under the witness protection program]  to give that protection.  Both the petitioners  (Section 14 [a] ) or their witnesses (Section 14 [b]) are subject to judicial order of protection  These provisions are actually indictments of the government's witness protection program and its failure to provide a credible and safe haven for witnesses.  In many instances, human rights organizations, universities and the church have gained the trust of victims of human rights violations and provided sanctuaries for them.  The Supreme Court merely recognized this prevailing situation and gave non-governmental entities the legal standing to provide protection.  Under this rule, the military and the police cannot harass or raid or make arrests in recognized sanctuaries .  Surveillance or threats of sanctuaries by security forces must be disallowed.

    Thirdly, the inspection and production provisions can be used to go beyond the blanket denials of  armed forces and break the "mantle of protection" given by certain officers to suspected human rights violators.   These inspection and production provisions are akin to the little used "discovery rules" under the Rules of Court. Although the respondent is given the opportunity to object to these orders on grounds of national security or "privileged information"�, the courts are given the plenary powers to decide whether or not the claim to the much abused justification of "national security" is valid.  

    Fourthly, the Amparo rule contains a strange provision in Section 15 which grants, upon verified motion,  the respondent the right to ask for inspection and production orders from the court.  Hopefully, the amparo court will not grant any such motion filed by the  AFP and other public respondents if such were merely intended to harass the petitioners.

    It is important for human rights lawyers, however, to ensure that the court [or the Justice] where the petition was filed is capable of standing up to the pressures that may be applied by respondents.   The above provisions, could lead to a clash between the judiciary and the executive department if the executive disregards the inspection and production orders of the judiciary and insists on its self serving interpretation of what constitutes "executive privilege" and "national security".


Contempt

    Like the amparos in  Mexico, Argentina and Nicaragua, Section 16 of the Philippine amparo provides for sanctions, in the case of the latter, through fine or imprisonment on those who "refuses to make a return, makes a false return, or resists or disobeys a lawful process or order of the court." A clerk of court or a deputized person who refuses to issue the writ after its allowance or who refuses to serve the same are also punished with contempt under Section 7.  Unlike its Latin American counterparts, however, the rule does not include the power to order the removal or even arrest of a belligerent public official or the automatic prosecution of the  public official.   Some Latin American amparos for example require that an amparo decision ordering the release of a person from detention must pass through the prosecutor who is expressly required to file an information against the respondent public official. 

    It must be stressed that respondent military officers who certify that the person subject of the petition is not in their custody after conducting "diligent search"� for the disappeared among AFP units is making a false return, and therefore liable, if the AFP is later found to actually have custody of the victim.   Absent this interpretation, the Philippine Amparo may suffer the same fate as the Chilean Amparo where the state security forces go unpunished despite the discovery in their custody of a person, the custody of whom they have previously denied.

     
Departure from Traditional Legal Principles.

    In general, the amparo rule promulgated by the Supreme Court, departs in certain instances from traditional legal notions and principles in Philippine.  The rule for example does not require the petitioner to exhaust administrative remedies [also a traditional notion in the Latin American amparos].  Furthermore, it does not allow public officials to hide behind the "presumption of regularity"  rule, requiring that both the petitioner and respondent establish their claim based on substantial evidence.  In fact, it requires the  public official to prove that "extraordinary diligence"was observed in the performance of duty.

    There is no expressed provision on res judicata, a feature of the Mexican amparo, although it declares that a case is "dismissed with prejudice" within two years from notice of the archiving, unless revived.  It also allows the archiving, rather than dismissing, a petition in certain circumstances.  These provisions grant the families of the victims, the opportunity to revive the petition should the situation change.  It allows for retroactive application, making the rule applicable to pending cases.  In fact, victims of human rights abuses committed before the rule became effective could still file a petition under the rule.   An appeal to the Supreme Court from an amparo decision may raise issues of fact or both issues of facts and law.

    It grants accredited private individuals or organizations the power and the task to give protection to the petitioners or the witnesses, previously limited to the Justice Department and other government agencies.      Its four forms of interim relief could be powerful tools for getting evidence and witnesses, the difficulty of which continues to be a major stumbling block in cases where the accused is a government personnel.  All of the above provisions are "deviations" from traditional legal principles which could impact on the prevailing state of impunity.  The effectiveness of these remedies depends largely, however, on the will of the judiciary in asserting the implementation of these orders in the face of  a recalcitrant respondent. 


Possible abuse

    The rule unfortunately contains provisions that may  be abused by the executive branch and make it difficult for victims of human rights violations to avail of its remedies.  The expansion in scope of respondents and the hierarchy of petitioners, unless the Court liberally interprets the provision under Sections 1 and 2, may hinder speedy response from human rights organizations.  The provision allowing the respondent "production or inspection orders" may also be an arena for abuse.

    The rule provides for a summary and immediate recourse in the filing of the petition by providing for strict periods under which a return is made and for the courts to decide.  It is unclear, however, whether the periods will still apply if the petition is on appeal under Rule 45.  Hopefully, dilatory tactics on appeal will be disallowed.
     
    The entire process is of course "court dependent" [considering that is part of the rules of court], subject to the vagaries of the justice system such as whether or not a judge is corrupt, biased in favor of government, can withstand threats and pressure from powerful respondents, and whether the judiciary can assert itself should the military disregard its orders.

    Based on the above, it is advised that only petitions based on very strong evidence or important issues be initially filed, at least in the first few months after the effectivity of the rule.  A careful study by human rights lawyers of the possible cases and options becomes imperative considering the vagueness of some portions of the rule and the possible obstacles that the executive will  put up to defeat the rule. 

    Despite possible venues for abuse, the rule on the writ of amparo contains many provisions that may be used  to pierce the veil of impunity that shrouds the justice system. Whether or not the writ of amparo becomes an effective tool in the battle against impunity, the active participation of the victims, their families and human rights advocates in the quest for justice should never be abandoned.  The writ of amparo, or any rule for that matter, will always be insufficient to stop institutionalized human rights violations without the involvement of the most important pillar of the justice system, the people .