02 Jul 2010

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


THE SEVENTH MONTH AFTER

By Atty. Rex Fernandez


Chief Justice Reynato Puno said that the Rules on the Writ of Amparo were not magic bullets.  

They were not indeed.

They were at best a recognition that there were no other remedies available for victims of extrajudicial killings and enforced disappearances and that the judicial system was wanting in doing its Constitutional functions of protecting the constitutional rights of people.

But the Writ of Amparo in its praxis found justice sorely lacking.

Let me explain.

GENESIS

There were already more than 800 killed extra-judicially and more than 150 abducted since the start of the reign of Her Highness Gloria Macapagal Arroyo in January 2001.  

In 2006, there was a surge of killings and abductions continuing to the early part of 2007.  Karapatan had been in the forefront of exposing the reign of terror of Gloria Macapagal Arroyo.  Early on, no one seem to notice until the spike of ejk’s and enforced disappearances hit the consciousness of society and the international community.

The executive department of the Philippine Government continued to deny or belittle the ejk’s and the enforced disappearances, to the extent of attacking the messenger, and even making their own statistics.  The Philippine Government was in a total counter-insurgency mode, burying the transparency principle of the government and utilizing all departments to defeat the enemies of the state which included, churches, nuns, lawyer groups, media personnel, human rights organizations, labor unions, peasant associations, environmental groups and people’s organizations.

HELPLESSNESS

The relatives of the victims of ejk’s felt helpless and found refuge in their gatherings.  They had no recourse in law, the Rules of Court cannot give them justice as they could not identify the particular perpetrators and killers of their loved ones.   As such, no one could be haled to court for death of their beloved.

However, the relatives of the victims of enforced disappearances who in themselves were also victims of the senseless abduction of their beloved and despite the non-ratification of the Rome Agreement on enforced disappearances by the Philippine Government, went to the Supreme Court to seek judicial assistance of their plight through Petitions for Habeas Corpus.

But the Rules of Court was heavily against them.  Jurisprudence had dictated that the privilege could only be granted if the person so petitioned can so name his or her detainer and his place of detention.  

But with the denials of the government and the trampling of the transparency principles by Her Majesty’s services, and the manner of the abductions through concealment of identity, and the fears generated by the impunity of the actors, the relatives could not declare who the detainers were and where their relative was detained.

But not only that, the judges and justices were in fact affected by this impunity.  In fact, one justice of the Supreme Court declared saying who was the judge or justice who can cite a general for contempt.

Despite evidence that this unit and this general was involved, the justices stuck to the jurisprudence that if there was no specific person who could be pinpointed doing the act of detention, the privilege of the writ of habeas corpus could not be granted.

DISMISSED

The petitions for habeas corpus, one by one was dismissed and denied and the relatives were left helpless and without recourse.

All sights were now swiveled to international remedies.

AN ACTIVIST JUDICIARY

But lo and behold, while the executive department continued to deny and deny the situation and the legislative continued receiving their pork barrels ignoring the stench of the extrajudicial killings and enforced disappearances, the judiciary, who was supposedly the slowest to move, rose up in utter recognition of the depravity of the situation and called for a National Consultative Summit on EJK and Enforced Disappearances.

With all the stakeholders involved, Karapatan’s recommendation for the promulgation of the writ of Amparo rules, sanctuaries and other matters were favorably acted upon and in September of 2007, the Supreme Court promulgated the Rules of the Writ of Amparo, declaring it effective on October 24, 2007.

AMPARO RULES

On October 24, 2007, two Petitions for the Writ of Amparo, the first was an enforced disappearance case and the second was a case of an escaped enforced disappearance victim, were filed at the Supreme Court, with only the first impleading the President as party respondent.

Subsequently, two more petitions for a writ of Amparo were filed at the Supreme Court, another enforced disappearance with threats to the relatives and another escaped enforced disappearance with threats, now both impleading the President, as party respondent.

All of these petitions were delegated to the Court of Appeals for reception of evidence.  

There were other Petitions for a writ of Amparo filed before other courts.

However, this writer is involved in seven (7) petitions for Writ of Amparo, five filed at the Supreme Court and handed to the Court of Appeals for reception of evidence and two filed at the Court of Appeals, Cebu.

At the Court of Appeals level, there are at least 30 Petitions for a Writ of Amparo filed. A 20 percent sample would be sufficient for this study.

THE CADAPAN-EMPEÑO CASE

The case started as a petition for a writ of habeas corpus which was dismissed but before the finality of judgment, Petitioners filed for a motion for reconsideration and for reception of new evidence which occurred after the petition was submitted for decision.  Then the Rules of the Writ of Amparo was promulgated before a ruling could be made on the motions filed.

The Petition for a Writ of Amparo was consolidated with the Habeas Corpus Petition.  

It is now seven months, and trial continues.  Supposedly, the proceedings are summary but the justices stick to a misguided due process consideration and allowed a full blown cross examination despite the fact that in the decision in the Habeas Corpus case, the Court found out that the respondents lied.  

The persons subject of the Petition had been abducted in June 26, 2006.  Today is the first week of June 2008.

The Court has not yet granted the applications for inspection of places and productions of documents.  However, the Court has granted witness protection of the new witness, the mother in law of Sherlyn Cadapan.  

THE ROBINOS CASE

    This was filed on November 2007.  

On January 2008, there was already a decision.  

This was a proceedings for the Petition for a Writ of Amparo exemplar.  The Court proceeded summarily with the case, considered the affidavits submitted by respondents and petitioners as the evidence and immediately considered the case submitted for decision when it was agreed.

The decision granted the interim prayers for temporary protection of the petitioners, inspection of places and the productions of documents.

The respondents filed a motion for reconsideration.

In the execution, there lies the rub.  The military did not allow the inspection of an area inside the camp and a military detachment.  Production of documents has not been complied.  

A motion to cite respondents in contempt is pending.  However, this is a week motion as this must be a separate filing.

Nonetheless, in the last hearing, Justice Villarama showing true power of the writ of Amparo, allowed again inspection of places – those that were not allowed and a new one.  He even declared that the inspection of places could be easily circumvented as the military can easily take away the victims in the morning during the inspection and return them at night.

    When asked the basis of his resolution, he declared that the Court is the basis.

THE RUBRICO CASE

This is an example of how not to proceed with a Petition for a Writ of Amparo.

The Court is so bent on complying with the littlest points of technical rules.  Every move by the Petitioner to expedite the case is met with hostility by the Court who advises the Counsel that the Rules must be followed.

In this case, because some of the respondents could not be served with notices, they are considered as not being party defendants when there is even evidence cited of their existence.  It is a violation of their right to be notified.  What happens if the military establishment or the individuals do not want to be notified as being done in several cases (Bayudang case.  Leuterio criminal case. Cadapan case.) The motion to serve notice by publication is met with a technical statement that substituted service can only be made when there is evidence of failure of service.

A motion for service by publication is not even allowed as this is not stated in the Rules of Amparo and is not denominated substituted service in the Rules of Court.

However, it is more than ten days when the case was submitted for decision but no decision has been made.

Here again, the respondents are given all the leeway and leniency of the  Court but not Petitioner.


THE LOZADA CASE


This is also where technicality reigns and the Court even prompts the counsel of respondents what and when to make objections to motions and requests of petitioner.  

The motions of petitioners for a Supplemental Petition, and to call witnesses as hostile and adverse witnesses were denied.

When it comes to the petitioners, the Court hews close to the Rules of Court but is lenient when it comes to the respondents.

The respondents are pounding on the fact that petitioners cannot identify the persons making the present threats as though they can be identified and would like to be identified.  

The internationally accepted evidentiary rule that a person although there is no direct evidence of him making the threat but there is probability that he did is not acceptable to the court , including that rule on environmental circumstances of the case can be evidentiary against a perpetrator.

THE YANOC AND THE ARANTE CASES

    The Proceedings were summary but the cases were dismissed although, there was substantial evidence of detention and there was evidence that respondents did not exert any extraordinary effort required of them to do an exhaustive investigation.

Denials won over direct and positive evidence.


THE SAEZ CASE

The proceedings were summary.  It was speedy but then, no temporary protection order was issued.  The Court was clearly favoring or fearing the military establishment or was again very technical in its evidentiary requirements.  

Favoring the military was very palpable and in fact, they were allowed to enter with hoods and covers and were even excused for not answering the court’s questions on who was the commanding officer of the Military Intelligence Company but when presented to the court that the witnesses just admitted that they were mere clerks and drivers and not operatives, the court went back to its order.  

A temporary protection order is something given at the outset as this is what is needed to give full accord to the writ of amparo but it seems that giving protection is equated with declaring the petition as granted and that the military is liable.

A writ of Amparo is not attributing any liability – civil and/or criminal.  Liability must be distinguished from responsibility.


PRESIDENTIAL IMMUNITY


In all of these cases, President Gloria Macapagal Arroyo was impleaded but when the government counsels moved for her to be dropped as party respondent the Courts with alacrity granted except for the Court of the Robinos case which still granted the same but after a while.

This also a manifestation of how the Court see the Presidential immunity which is still a throwback to the old 1973 Consitution.

This is a defeat to the concept of command responsibility which has already been widely accepted by the international judicial systems.


TECHNICAL


Delay and denial is the game of the government and military establishment in cases involving human rights violations.  This is achieved through the use of technicalities in the proceedings.  When the Court hearing the case uses technicalities, it will be sure that the Writ of Amparo will be emasculated.   

The Villarama Division of the Court of Appeals becomes a Philippines benchmark of the Judicial Mind of the Writ of Amparo.  While the other courts have a fetish on technicalities, the Villarama division granted the writ with a predisposition to favor human rights, which must be the correct position.

The other courts seem to forget that the Amparo is there to protect rights and not to establish liability.   That rights are paramount.

The fetish on technicalities is more to protect the perpetrators rather than solve the violations and threats to the right to life, liberty and security.  

The technicalities range from the proper notice of respondents as though the perpetrators would publish and bandy around their personal information.  That is why there is impunity as the actors are hidden.

SERVICE.  In the Rubrico case, the persons so identified by the Nanay Ude, the abduction victim and released, known only by their first names were considered as not having been brought to the jurisdiction of the court as they were not notified and even the presence of a document with names of persons belonging to the command was successfully controverted by a mere denial that they were not already under the command.

Also, a person whose identity was established by the vehicle identified by witnesses and was investigated was also not put into the jurisdiction of the court by the situation that the notice was unserved.

The significance is either you wait until everybody is notified “properly” or proceed to present evidence but that presentation will not be taken to those persons who remain unserved.  In either way, the victims-petitioners are at the disadvantage.

PUBLICATION.  Then you moved for service of notice by publication, but it is denied on the ground that the Rules on the Writ of Amparo do not state that publication is an allowed manner of notice as only substituted service is allowed.

THE RETURN.  Then comes, the return of the writ.  Usually, there are respondents named but who do not submit a verified return and usually it is a general denial for all.  

In this juncture, let me point out that the Gloria Macapagal Arroyo has not filed a verified return of the writ and is tolerated by the Court as the other defects of big name government officials (a captain in the army is handled with a ten foot pole).  

GENERAL DENIAL.  But a general denial is a violation of the Rules.  The military establishment and the government easily circumvent this provision by placing the words “specifically denies/y”.  And the courts tolerate it.

Anyway, what is the general denial the Rules mean prohibits?  What does it mean?

INVESTIGATIONS REQUIRED.  In the return likewise, the respondent military establishment and government then declare they have made investigations but clearly this is not the investigation required by the Rules.  Firstly, the investigation was only made after receiving the writ.  Secondly and more importantly, it is not exhaustive.  In fact, the return are just general statements that investigation was taken or they state that they talk with this and with that but never talk with the families.  

Like the of the Arante and Yanoc cases, the respondents declared in their Return that they talked with the Police Superiors and barangay captains but never with the neighbors or the priests or the pastors or whoever is more significant in the investigation.  

Respondents in violation of the Rules never sought for witnesses and when there were leads given like the Cadapan, the Rubrico, the Lozada, the Robinos, the Yanoc and the Arante  cases, they do not follow them and let them gather dust.

Clearly the returns are mere lip service.  It can even be said that they are lip services with the lips sliced off.  

PROTECTION.  You ask the court that the petitioners if they are surfaced or are the survivors be given temporary protection order but then the government counsels object and the Court gives in and requires you to present evidence.

In Latin American experience, the temporary protection orders are given immediately when the petition so prays.  But not in the Philippines.  You are made to present evidence.  It must be stated that the prayer for temporary protection need not even be verified.  What is required to be verified are the inspection of places and the production of documents.

And when you have affidavits ready for said prayer, the affidavits are required to be identified.  

POSITION PAPERS.  In summary proceedings as mandated in Rule 70, you are only required to submit a position paper but not in the Philippines’ practice of the Rules of the Writ of Amparo.  You are made to present your witness and let him or her identify the affidavit and then a rigorous cross-examination is made.

It must be remembered that what is required is only substantial evidence.  In Rule 70, preponderance of evidence is the quantum and only affidavits and position papers are submitted without witnesses placed under cross examination.  Cross examination is only required in criminal summary proceedings when the quantum is higher.  

DELAYING.  A full blown trial with all its postponements takes the day.  This is not without saying that with it, all the technicalities on the rules of evidence, direct, cross, redirect, recross and all objections.

Thus, when you want to present hostile or adverse witnesses, the Courts will dwell on technicalities to deny you.  However, we were able to present adverse witnesses in Cadapan during the habeas corpus stage.  But in the Lozada, the motion was denied on the ground that we have not established the hostility and the relevance.

The Lozada case is also a point in technicality.  It was filed when Jun Lozada was not yet surfaced.  So when the proceedings started, there was need to amend it but knowing the technicality of the Court, we deem it necessary not to file an amendment but only a supplemental, and so it was disallowed for reason that there was new matter raised which is not true for the cause of action was the same – abduction and threats and although we impleaded new parties, these parties submitted affidavits in the return.

The evidence required is a mere substantial evidence.  

NATIONAL SECURITY.  The government has the penchant to use national security, confidential, and other of the same kind of reasons to oppose your request for documents, your hostile witnesses or to answer a question.

And the court gives them the privilege without any presentation of evidence which the Rules require.

The government likewise will hammer on the fact that you cannot specifically identify the perpetrators, that you cannot specifically identify the source of the threat although you can identify the threats.  

The court will expect that you would know the owner of the cellphone used to send you threat messages or the voice threatening you over the phone or the motorcycle riding men stalking you.

FISHING EXPEDITION.  Also, the government tends to counter our requests for documents, and witnesses as a fishing expedition and telling us the fishing expedition are not allowed in the Rules which is wrong.

The Rules of Court allows it in the forms of modes of discovery.  The Rules on the writ of Amparo allows it suppletorily and directly with production of documents and inspection of places.

There is a tendency of limiting the power and effect of the writ of Amparo.

Also,

DELAY FAVORS THE PERPETRATORS. FAVORS VIOLATION OF HUMAN RIGHTS. FAVORS ENFORCED DISAPPEARANCES AND EXTRA-JUDICIAL KILLINGS.


THE PROBLEMS IN THE RULES OF THE WRIT OF AMPARO


The Rules are not specific enough.

It is not specific enough what this Rule is. It must be remembered that Latin America and we came from the same jural beginnings – Roman Law, to the Napoleonic Civil Code and to the Spanish Laws.  Then we split accreting English and American common law concepts – the diligence of a good father of a family, the doctrine of last clear chance.  

THE NUANCE OF A PROTECTOR

Where is the writ of Amparo in our legal traditions and framework?  Most of the justices and judges are blind to the nuances of the writ of Amparo, to the nuance of the judicial system as a protector.

Our history and our education has only taught us to consider litigation as allocator of rights, not as protector of rights.

This concept of law and litigation as protector is not much pushed and advanced.  Even the habeas corpus consideration and the grave abuse of discretion, certiorari are even diminished in their powers with all the stringent requirements of its application.

The claimant of the right is left with no one to turn to.


THE RULES COULD HAVE BEEN SPECIFIC

One thing the Rules of the Writ of Amparo lack is in its lack of specificity what it must be to be a protector of rights.  It gives general details and are specific on some details but not on all giving the military establishment and the government a place to turn around and play footsie.

For one thing, it could have been specific that all kinds of service should have allowed.

It could have been specific that the construction should be liberal in favor of the petitioners.

It could have been specific that national security could not be a ground unless there is evidence beyond reasonable doubt that the government would collapse the next day because of the disclosure or the testimony or the inspection of places.  

It could have been specific that the temporary protection order should immediately be issued if there is claim of danger and could only be revoked if proven otherwise.

It could have been specific that inspection of places could be made anyday, anytime under the power of a court order and that any obstruction or denial or prevention or hindrance to the inspection of places is direct contempt.

It could have been specific that the scope of production of documents should include all those of that class asked which might contain any evidence of what is sought to be revealed, exposed, or prevented.  

It could have been specific that after the issues have been joined and an opportunity to conduct preliminary conference have been given, and after submission of position papers are made, the case is deemed submitted for resolution except for clarificatory hearings.  


It could have been specific for many things more.  


A VACILLATION

Then likewise, the Rules take what it gives.  

It provides the government the necessary ammunition to stave off the writ of amparo by the use of national security reasons or immunity reasons or executive privilege.

Thus, the transparency which is sought to be upheld by the Writ becomes opaque and the impunity which is sought to be destroyed becomes stronger.


It gives the right to ask for an inspection order but takes it away by giving the government side the right to demand its necessity without defining the degree necessity required and the specifics of the inspection.


A RESOLVE

However, the writ of Amparo and the writ of Habeas Data are vehicles for educating, arousing, mobilizing and organizing people.  They must be strengthened.  

As stated in a Module for the use of writ of Amparo:
(R)ights litigation, however, can be a powerful vehicle for helping demystify the judicial process, educating and mobilizing affected individuals, groups or communities around issues of concern to them, and clearly defining and framing those issues. Xxx.
To be effective, litigation must be undertaken as part of a broader strategy of human rights education and community action carried out through existing local networks or, where none exists, through assisting to build critical links among members around their shared interests or concerns. The affected group or community must see regular attendance at court proceedings as an important part of the struggle for justice. Issues at stake in the case and highlights of hearings must be explained as simply as possible and in the appropriate language. The larger community should also be kept abreast of important developments through their representatives or other informal channels.
Xxx.  This and other cases have come to represent a crucial part of the community's resolve to carry on their struggle. Their determination is expressed in part by their regular attendance in huge numbers at the proceedings-and this in turn sends clear signals to the judicial authorities.