02 Jul 2010

National Workshop on The Writ of Amparo and
Writ of Habeas Data


The Writ of Amparo and Habeas Data:
Seven Months After

By Atty. Jose Maidas Marquez

Officers and members of the NUPL
Fellow Lawyers and Students of Law;
Fellow Human Rights Advocates;
Friends:

Before I go to my assigned task this morning, I would like to thank your Secretary-General, Atty. Neri Colmenares for having me again.  It is not very easy to prepare speeches with scrutinizing lawyers as your audience.  It makes it doubly difficult if you have to deliver it on a Saturday morning – after a Friday evening of a long work week.  With all candidness, I had to wake up at four this morning to finish this survey.  But if these are what it would take for me to be again in the company of human rights devotees, considering the many inhibitions my present job as a functionary of the High Court brings, then so be it.  And that is why I have decided to accept the invitation of your Secretary-General, and am now before you.  I am now hoping that I will be able to do justice to your presence this morning before me.

My assignment for this morning is to speak about the current state of amparo and habeas data petitions nationwide and give a general overview of the use of amparo and habeas data as a remedy.  I am likewise being requested to discuss the plan of the Supreme Court to hold a national workshop on access to justice.

Let us first go to the amparo and habeas data petitions.

 As you all very well know, the writs of amparo and habeas data are the two latest rules issued or promulgated by the Supreme Court.  But since I know that you are all diligent students of the law, you already know the coverage and codal provisions of these two writs.  Thus, I will not dwell on them anymore.  I will instead focus on the survey of pending and decided amparo and habeas data petitions.

As a backgrounder, the Rule on the Writ of Amparo was approved and promulgated by the Court en banc on 25 September 2007, and took effect on 24 October 2007, while the Rule on the Writ of Habeas Data was approved and promulgated on 22 January 2008,  and took effect on 2 February 2008, on Constitution Day.

Chief Justice Puno believes that so far, “the writ of amparo is the greatest legal weapon to protect the constitutional rights of our people,” and thus is “the Judiciary’s humble offering to the altar of human rights in the Philippines.”  The writ of habeas data on the other hand has been used in solving the problem of extralegal killings and enforced disappearances in Latin American countries under military dictatorships, and has become “an excellent human rights tool mostly in the countries that are recovering from military dictatorships.”

The Chief Justice was not mistaken.  

On 7 November 2007, just two weeks after it took effect on 24 October 2007, amparo fulfilled its promise with the release of a youth and religious leader taken by the military on the very day the Rule on the Writ of Amparo took effect.  Ruel Muñasque, 33 years old, a leader of the Christian Youth Fellowship of the United Church of Christ in the Philippines (UCCP) and a member of Bayan Muna, was released and reunited with his family upon the order of the Regional Trial Court of Pagadian City, Zamboanga del Sur, Br. 18.  This is the first known successful amparo petition.  Of course, his lawyer, I understand, is an active member of the NUPL.

Then, on the very day that Ruel was released, the family of one Luisito Bustamante filed a petition for amparo before the Regional Trial Court of Davao City for the release of Luisito who was accosted by the military and held at its checkpoint on suspicion that he was a communist rebel.  His release, the second successful incident of the writ, was ordered by the trial court last 14 November 2007.  Again, his counsel is from the NUPL.

As of 4 June 2008, available records show that a total of 42 petitions for the issuance of a writ of amparo have been filed in the Supreme Court, the Court of Appeals, the Sandiganbayan, and the Regional Trial Courts.  I say “available records” because we are not quite certain how many actually have been filed with our RTCs across the country.  It is embarrassing, but up to now, with the High Court’s meager financial resources, we still rely on the manual reports sent to us by the RTCs through the mails, and we have to count them manually.  Many of these mails of course do not reach us, or if ever they do, at a much later time.  

Out of the 42 petitions, 16 have been decided: 5 were granted, 3 of which were decided by the CA and 2 by the RTC, while 11 were either dismissed by or withdrawn.  26 cases are now pending before the courts.
A few cases figure prominently.  On 29 November 2007, in Robinos v. Macapagal-Arroyo,  the Court of Appeals ordered respondents to desist from committing any act which would violate the right to life of petitioners.  The appellate court also ordered the inspection of military camps and the production of relevant documents.  
Inspection of the camps was conducted but comments filed by the petitioners and the Commission on Human Rights, after the inspection, revealed their dissatisfaction as they were refused entry to several parts of the camps’ premises.  Petitioners subsequently filed a motion to cite respondents in contempt of court which was heard last 22 May 2008.  A subsequent hearing was recently conducted last 5 June 2008 where the resolution on the motion to cite respondent AFP in contempt of court was held in abeyance pending a re-inspection of the military camps anytime from 23 June to 1 July 2008.  

Likewise, on 26 December 2007, the Court of Appeals granted the amparo petition of the Manalo brothers who escaped from the military after more than a year and a half in captivity, and ordered the Defense Secretary and the AFP Chief of Staff to furnish the appellate court relevant documents as well as pinpoint the location where the Manalo brothers were detained. However, the AFP has yet to comply with the appellate court’s orders as the Defense Secretary and the AFP Chief of Staff have filed a petition for review on certiorari before the Supreme Court last January.

    Then, on 7 March 2008, in Tagitis v. Lt. Gen. Yano , the Court ordered the respondents to exert extraordinary diligence and efforts, not only to protect the life, liberty and security of the petition’s subject, but also to extend the privileges of the Writ of Amparo to his family, and to submit a monthly report of their actions to the Court.
    I would like to think that all these court actions were unheard of before the promulgation and effectivity of the rule on the writ of amparo.

On the other hand, the 11 dismissed cases appear to have been terminated for justifiable reasons.  In two cases, the subjects themselves denied enforced disappearances and the existence of a threat or torture to their persons.  In another case, the petition was withdrawn on motion of the petitioner on the ground that the subject was facing charges before the lower court and the only obstacle to his being transferred to the proper authorities to stand trial was the pendency of the petition.  And in the other cases , the court found that the petition for the issuance of the Writ of Amparo was not the appropriate remedy.  However, the dismissal of these cases does not mean that the subjects’ rights were not protected.

In the case of Malapote v. Lt. Col. Tello  which the Court of Appeals decided on 29 November 2007, petitioner Malapote was released from Camp General Santos, Calauag, Quezon, even before the case was submitted for decision.  Hence, the petition was declared moot and academic.  Though the proceedings were terminated, Malapote’s right to life and liberty was effectively upheld.

Also in Ortiz v. Lt. Col. Tello , the Court of Appeals declared the petition moot and academic and terminated the proceedings on 23 November 2007.  Despite the termination of the case, Lt. Col. Tello publicly disclosed that the petitioners were not detained against their will but were actually the ones who sought the protective custody of the military.  The bottom line is that those who were in the military custody were released.
It is quite unfortunate that two of the most celebrated amparo cases which have been with us from day one remain pending before the Court of Appeals.  Of course, I am talking about the Jonas Burgos and the Cadapan and Empeño cases.
We also see a number of interesting cases and await the final resolutions of some of them.  

In Spouses Stephen and Mylene Kitt v. Solidum which is still pending,  petitioner Stephen Kitt, a British national, and his wife Mylene seek for the issuance of a Writ of Amparo because respondents, who are their neighbors in San Pedro, Laguna, have allegedly been harassing them. Respondent Barangay Captain Solidum allegedly conspired with the members of the Barangay Tanod in illegally arresting and detaining Stephen, as well as filing a false charge of seduction against the latter.  Stephen has retaliated by filing an attempted homicide case against one of the respondents in the MTC of San Pedro, Laguna.  Ang tanong nga po ng mga kasamahan ko sa Kataas taasang Hukuman ay nararapat ba ang Amparo sa away ng barangay.

In Cadiz v. Gadduang, the Court of Appeals affirmed the ruling of the RTC of Ilagan, Isabela, which denied the petition for the issuance of a writ of amparo in a domestic quarrel between a mother and a daughter involved in a lesbian relationship, where the mother kept her daughter away from her lesbian partner.
 
In the case of Luz v. AFP Chief of Staff,  a petition for the writs of amparo and habeas data, petitioner Guillermo Luz, the former Executive Director of the Makati Business Club, alleged that he was placed under military surveillance over his alleged involvement in a plot to oust President Arroyo during the Manila Peninsula Siege.  On 15 May 2008 however, he withdrew his petition, and on 21 May 2008 asked the appellate court to formally end the hearings on the case, apparently based on the letter of Gen. Esperon to the Court dated 21 April 2008 which said that “all major services in the AFP did not conduct any surveillance or case buildup activity on Luz.” Luz’ withdrawal is now pending resolution by the appellate court.

Another interesting case is Sanchez v. Esperon  where the subjects are aetas residing in Capas, Tarlac, who were allegedly taken forcibly by the military to their camps to serve as cooks, cleaners, and wood gatherers. The case was last heard 23 April 2008 and is awaiting the filing of required pleadings.

In Cruz v. Mendoza,  petitioners filed the petition for a Writ of Amparo and Habeas Data against Bulacan Gov. Joselito Mendoza and a number of police and local officials for allegedly using threats and intimidation to force the petitioners out of a disputed property in Malolos City. Petitioners also claimed that city engineers, accompanied by some 40 policemen, dismantled structures on the property and that petitioners were arrested and handcuffed by the police when they protested against the demolition.  The last hearing was held on 22 April 2008, and parties were directed to submit their respective memoranda as to why the court should sustain or deny the petition for writ of amparo and habeas data.

The amparo remedy was also successfully used in a child custody case when the RTC of Tagudin, Ilocos Sur, granted the privilege of the writ, and the minor, an illegitimate child was awarded to the mother, and the respondent, the biological father was allowed occasional visitorial rights.

In Fr. Reyes v. Secretary Gonzalez, where the writ of amparo was sought to remove petitioner’s name from the Hold Departure List on the ground that it is a violation of one’s right to liberty, the Court of Appeals denied the issuance of the privilege of the writ, dismissed the petition, and held that “[t]here is no reason for the petitioner to directly seek succor from the Supreme Court via this petition when a simple ordinary remedy exists.”  This case is now pending before the Supreme Court on a petition for review on certiorari.

I just had an opportunity early this week to bring to the attention of the Chief Justice the four amparo petitions for review on certiorari, pending before the Supreme Court, so as not to defeat the purpose of resolving amparo cases expeditiously.  The Chief Justice has instructed me to personally monitor these cases so that they may be resolved with deliberate dispatch.  The early resolution of these petitions will be significant as they will provide jurisprudence on the subject.

With regard the petition for habeas data, four petitions have so far been recorded and are still pending before our courts.
These numbers show us two things: first is the people’s increased awareness and understanding of the remedies that have been made available to them; second is their restored faith in our judicial institution and the justice system as a whole.
Less quantifiable but an equally important sequel is the heightened consciousness of our people on the sanctity of human rights, particularly on the part of our law enforcers and state agents.  I understand that there have been marked changes in the way our field commanders conduct their operations, now with extra keenness on the observance of human rights.  We also like to be encouraged by the statements of Lt. Gen. Alexander Yano, the new AFP Chief of Staff, who openly expressed his intention to turn in all military personnel implicated in writ of amparo cases.

To complete the circle of protection of human rights, the Supreme Court will now place primacy on the economic, social and cultural rights, the so-called second generation rights, through a Forum on Increasing Access to Justice by the Poor: Bridging Gaps and Removing Roadblocks on 30 June to 1 July.  The main objective is to identify and recommend to the Supreme Court concrete reform actions on increasing access to justice by the poor, the speedy resolution of cases, and the development of an integrity structure for our courts.  The forum will have three simultaneous fora – in Manila, in Cebu, and in Cagayan de Oro, where stations of the Court of Appeals are located.  All these venues will be linked via videoconference.  We are presently identifying the speakers from the different marginalized sectors who will give situationers, and those from the government agencies and NGOs who can recommend concrete reform actions the High Court can undertake.

It is hoped that after this Forum, the Court will be able to undertake measures to protect the economic, social and cultural rights of our people, as it did in defending their civil and political rights when it promulgated the writs of amparo and habeas data.

In closing, allow me to echo what the Chief Justice has said: “we cannot allow the begging hands in our midst to multiply any further without fuelling the social rage in our society.  Today, we see these hands, open, with palms up praying for alms.  Tomorrow, we may no longer see these open hands; we may be confronted with a sea of clenched fists.”  And as Indira Gandhi said, we cannot shake hands with a clenched fist.”

Maraming salamat po at magandang umaga sa inyong lahat.