02 Jul 2010

 THE WRIT OF AMPARO AS MECHANISM TO CURB IMPUNITY:

The Case of the Philippines

By Atty. Neri Javier Colmenares

Commission VI on Accountability for International Crimes:

Fighting Impunity (IADL Congress, Hanoi, June 6-10, 2009)

 

             

I.                  Impunity: Context within which amparo was promulgated

 

            Cases of extra judicial killings, enforced disappearances and other human rights violations in the Philippines have not only been marked by the heinousness of the crime but also by the impunity with which they were committed.  Many of the extra judicial killings and enforced disappearances were committed openly, in public places, near police stations or military camps but  no serious investigation of and prosecution for these crimes have been conducted by the government.    The various Habeas Corpus petitions filed by human rights lawyers to stem enforced disappearances remain unsuccessful as the respondent-state security forces merely deny custody of the victims resulting in the dismissal of these petitions.  Attempts by human rights groups to gather and preserve evidence are met with very little cooperation from government investigating agencies making it exceedingly  difficult for human rights cases to prosper in court. Worse, many human rights advocates and lawyers  have been the target of attacks themselves further curtailing the victims’ access to the judicial processes.

 

This is the context under which the Supreme Court called for a consultative summit on extra judicial killings and enforced disappearance on July 16-17, 2007.  Many human rights lawyers who are now members of the NUPL were invited  to the summit and were asked to submit their recommendations.  Among our recommendations was for active judicial intervention in cases of human rights violations.

 

II.               The Role of NUPL in support of  the Writ of Amparo

 

            One of the most important output of the Summit was the promulgation of the rules on the Writ of Amparo, a legal concept that was enshrined in the Mexican legal system in the 1800’s.  The amparo was later used by many Latin American countries [Please see NUPL paper ‘Comparative Analysis of the Writ of Amparo’ published on September 15, 2007] .  The Amparo rule provided victims or their relatives and human rights groups with opportunities to seek legal remedies from courts through the rule’s ‘interim relief’ provisions such as witness protection orders, production orders, and inspection orders.

 

            Even before amparo was promulgated,  the NUPL already discussed a paper tackling the writ of amparo, writ of habeas data and the notion of command responsibility during its National Congress held on September 15-16, 2008.  It was also in that NUPL Congress that Chief Justice Reynato Puno, in his message to the NUPL, announced the impending promulgation of the writ of amparo rules.    The Congress, which was attended by 141 lawyers, law students  and para legal workers from ten of the countries twelve regions making it one of the largest gatherings of human rights lawyers since martial law, issued a statement lauding the Supreme Court’s efforts and expressing support for the Writ as a legal tool that may be used in various human rights cases.   

 

The NUPL subsequently organized a forum at the University of the Philippines on October 14, 2007, where Supreme Court Justice Adolph Azcuna explained the newly published rules to a wide range of audience which included human rights lawyers, law students, judges, the academe and even lawyers from the Philippine National Police who attended the forum.   The NUPL then published a comparative analysis of the writ of amparo and put out initial guidelines on the filing of the petitions among human rights lawyers nationwide.

 

Many amparo petitions filed so far, were filed by human rights lawyers who are also NUPL members, notably:

 

1.                           Karen Empeno and Sherlyn Cadapan amparo Petition

2.                          Luisito Bustamante Petition

3.                          Lourdes Rubrico Petition

4.                          Romulos Robinos Petition

5.                           Ryan Supan Petition

 

The missing UP students case, filed by Atty. Rex Fernandez of NUPL, is currently pending before the Court of Appeals.  Atty. Ding Estores  and Atty.  Carlos Zarate founding members of the  NUPL-UPLM and Atty. Manuel Quibod of UPLM, filed the Bustamante petition and succeeded in getting custody of Luisito Bustamante from  the respondent military and para military groups upon orders of Judge Isaac Robillo of RTC Branch 13 in Davao on November 14.  Despite Bustamante’s statement in open court that he voluntarily sought custody with the military, RTC Judge Robillo ordered that he be released from military custody in stark contrast to the CA ruling in the case of Ortiz and Panganiban.

 

  The amparo petitions for Rubrico, Romulos, and Supan, filed by Atty. Rex Fernandez,  were given due course by the courts and are currently pending resolution.  The Supreme Court issued a protection order for Robinos  under the custody of a priest of the Iglesia Filipinas Independiente [IFI].

 

Atty. Emil Deleverio of Pagadian, a founding member of the NUPL and UPLM also reported the successful petition filed by UPLM and FLAG lawyer Tirsendo Poloyapoy for Ruel Munasque.  Munasque was ordered released by Judge Reinero Ramas of RTC Branch 18 in Pagadian on November 7.  The Manalo brothers petition was filed by FLAG lawyer Atty. Jose Diokno and is currently pending.

 

Initial  Decisions

 

            The petition of Jeffrey Ortiz and Juvy Panganiban was reportedly dismissed by the a panel of the Court of Appeals because they  stated that they want to remain in the custody of the AFP.  Another Court of Appeals decision ordered that Pres. Gloria Arroyo be stricken off as Respondent since she is ‘immune’ from suit.  It must be noted that the Supreme Court did not exclude Pres. Arroyo in the Cadapan and Robinos petitions filed before it. 

            Foreigners have standing to file a writ of amparo.  This is correct since civil liberties pertain to all persons—including foreigners as provided in Sec. 1, Art. III of the Constitution which states that “no person” shall be deprived of life, liberty and property without due process of law.  This was the decision of the Supreme Court when it issued the writ for British nationals Stephen and Mylene Kitts against local public officials on December 7, 2008.  

 

Custody

 

            Should courts dismiss an amparo petition because the subject ‘chose’ to be in the custody of the military?  The answer is in the negative.   Firstly, the basis of custody must be legal, not upon the whim of anyone, whether the military or the victim himself.   If there is no arrest warrant or commitment order, the court cannot order that a victim remains in the custody of government agencies particularly if no charges were filed against them as in the case of Panganiban and Ortiz.  The Constitution and the rules on the writ of amparo does not allow this.   Surely, government budget does not include expenses for the lodging and food of people who ‘want’ to be in military custody.  

 

Secondly, the court should give recognition to the public perception and even actual complaints [as contained in reports by the Commission on Human Rights itself, human rights groups, and even the UN Special Rapporteur] that the military and the police are involved in human rights violations, abduction and enforced disappearance including torture.   This immediately puts a legal responsibility on the court’s to frown on claims by subjects that they ‘want’ to be in military custody as a testimony likely given under duress.   This is further emphasized when the subjects initially claim that they were tortured, even if they recant such allegation during the hearing.    A court decision dismissing an amparo petition because a subject ‘wants’ to be under the military’s custody, rather than with his family, is based on an unrealistic  assessment of the facts and is, also,  totally without legal basis.   Some lawyers even contend that at the very least, the court should release the subject to the custody of his family, with a provision that  the subject may return to the military should he really want to be under its custody, but only after amparo is granted the family granted custody similar to the decision in the Bustamante petition.  

 

            The point being stressed here is not that some judges like the  CA justices lack the heart and the courage when compared to RTC judges in the provinces, but that courts must focus on the basis of the legal authority of the military to take custody of an individual rather than the wish or the ‘want’ of an individual.   In any case, human rights lawyers should appeal the decision to the Supreme Court.  Human rights lawyers in the provinces may  coordinate with lawyers in Manila to help facilitate the filing of the same with the Court.

 

III.           Nature of the Writ under Section 1

 

            The nature of the writ is defined[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 in Latin America which covers violation of constitutional rights [individual guarantees] in general, the rule focused on the human rights crimes related to extra judicial killings and enforced disappearances.

 

            The writ includes protection of “liberty”  which may include deprivation of liberty previously covered by habeas corpus petitions.  The Philippine amparo departed from the amparo rules of Argentina and Mexico which expressly provides that deprivation of liberty is not covered by amparo but is remedied through a habeas corpus petition. 

 

            From the practice so far, amparo was not limited to cases of enforced disappearance where the fate or whereabouts of the accused is unknown.   The courts do not distinguish between habeas corpus and writ of amparo allowing amparo petitions even in cases where respondents admit custody of the subject.   This liberal interpretation of the writ, similar to the Chilean amparo, is favorable to the victims as this facilitate the filing of cases in many situations. 

 

            Since the rule may be applied “retroactively”[2] by implication, amparo  petitions may still be filed on cases of past disappearances or extra-judicial killings  including previously dismissed habeas corpus petitions.  This is a useful mechanism against impunity, as the military is no longer secured by the previous dismissal of cases against them. 

 

            Human rights lawyers can also use the writ of amparo on cases of “threatened” deprivation of liberty, when the subject has not been arrested or disappeared.  The inclusion of ‘threats’ to liberty as a justiciable controversy can put a stop to the illegal habit of the military and the police in “inviting” people to military camps[3] for interrogation. Many of the victims of the killings and disappearances were first “invited” to military camps before they were killed or ‘disappeared’.     

 

            Under the amparo rule, the ‘invited’ persons may only file an amparo petition to stop the military from harassing them through these ‘invitations’ and need not resort to the cumbersome certiorari petition.   Those threatened with arrest, similar to the Batasan 5 incident last year,  may also resort to amparo.   Although as yet untested, lawyers may use amparo creatively to post bail in cases where the victim is unlawfully harassed through false criminal charges.

 

            For victims of extra judicial killings, an amparo petition is focused on production orders.  Amparo is therefore a means to  firm up evidence on the perpetrators of the extra judicial killings.  Human rights lawyers must be able to prepare well the basis for the production order to ensure that specific documents that may lead to the identity of the perpetrator is unearthed through amparo.  Once this succeeds it is possible that the frequency of extra judicial killings may be lessened.

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, which is a departure from the Mexican amparo, is positive in terms facilitating recourse to the remedy.  This is a speedy recourse because human rights organizations and even an individual human rights advocate  may file the petition should it be difficult to trace the family of the victim.

 

            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.

 

 

IV.            Return of the Writ

 

            One of the most difficult hurdle for the  military and PNP respondents in an amparo petition is the provision on ‘return’ under Section 9.  And this is where human rights lawyers should hammer the respondents ensuring that no ‘false returns’ or templates are submitted.  In fact, prayer for contempt must be lodged before the Supreme Court in case a false return is submitted.

 

            Unlike in habeas corpus cases where respondents get away with blanket denials, amparo penalizes public officials who issue such blanket denials without conducting a serious and diligent search for the victim by prohibiting the same and requiring the respondent to state in the following in their Return:

 

SEC. 9. Return; Contents. – Within [FIVE DAYS] after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following:

 

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

(b) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission;

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

(d) If the respondent is a public official or employee, the return shall further state 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 or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible;

(iii) to identify witnesses and obtain statements from them concerning the death or disappearance;

(iv) to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance;

(v) to identify and apprehend the person or persons involved in the death or 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.

 

            The rule requires the respondent to state the steps taken to determine the whereabouts of the victim, a difficult requirement indeed since in previous cases the respondents usually make blanket denials even if they did not conduct any inquiry on the whereabouts of the victim.   Doubly difficult under Sec. 9, is the requirement to describe steps undertaken to find the perpetrator, since this will expose the lack of serious investigation on the part of government to find any suspect or follow leads.

 

            If, after denial by the AFP of custody for example,  the ‘disappeared’ is later found to have been under the custody of the AFP, all the respondents or the highest ranking respondent may be penalized for issuing a false return.  It is important to implead the Commander-in-Chief in an amparo petition, particularly in the NCR, because she has complete control of all large units which may have custody of the victim.  Amparo petitions in the provinces  may also implead the President or the Chief of Staff although this depends on the immediacy of the situation particularly in far flung provinces.  In any case, human rights lawyers in Manila may help facilitate service of the writ to public officials based in the capital

 

            The information required in an amparo petition was designed to spur the respondent to conduct at least some semblance of a ‘search’ or investigation before the filing of the return, on pain of contempt under Section 16 either failing to make a return or making a false return.   It must be personally filed or verified by the respondents.

 

Presumption of regularity

 

            One novel legal development in the Philippine amparo is the inapplicability of the “presumption of regularity” rule.  This was one of the proposals of NUPL members to the Supreme Court during the extra-judicial summit.  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 officials must prove through evidence that their acts were indeed regular rather than placing the burden of proving the ‘irregularity’ on the complainants.

V.                Interim Relief

 

            The interim relief provided by the writ will predictably be a major battleground in amparo petitions, and will test the will of the courts and human rights lawyers to battle the recalcitrant attitude of the government and the AFP against court orders and rules.   Every interim relief granted will surely discourage the commission of abduction since there is now a risk that the abduction will be discovered especially if the ‘disappeared’ is brought to a military camp.

 

            Firstly, the  Temporary Protection Order [Section 14-a] and the Witness Protection Order [Section 14-b] may hamper acts of harassment from the respondents.   It must be noted that protection orders are not only applicable to natural persons but even juridical persons such as human rights groups and political parties previously subject to harassment by the AFP.   

           

            Secondly, non government entities namely accredited private individuals and organizations, are given the authority [previously limited to government agencies under the witness protection program]  to give that 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 churches 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.[4]  Surveillance or threats against the accredited sanctuaries can be penalized under the writ for violation of court orders.

 

            Organizations who wish to avail of this status must prepare to apply for the same during the petition itself or after the Supreme Court has released its guidelines.   Although the guidelines are not yet out, the SC may require groups to establish its credibility as a witness protection institution, its track record if any of being a sanctuary, resources. Credibility rather than resources should be the main criteria since credibility is a question of trust which is earned, while resources may be availed of from funding institutions.

 

            Human rights advocates must make sure that the criteria set must not be so restrictive as to disqualify many well meaning, credible and capable human rights organizations and institutions.

 

            The Inspection Orders under Section 14.b, 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 can include prisons, safehouses, and military camps.  

 

            The Production Orders under Section 14.c 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” includes the inspection of prison logbooks, records of arrest, and even trace existing paper trail on the authority who ordered the arrest of a person including the order of battle. One of the main functions of the writ  is to force evidence from uncooperative government investigation agencies.  The evidence gathered through inspection orders will not only be important in amparo petitions, but  even in the prosecution or the filing of administrative and civil cases against the perpetrators of human rights abuses.

 

            The inspection and production provisions can be used to go beyond the blanket denials of  respondents and break the ‘mantle of protection’ given by certain officials 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.  

 

            Considering that the interim relief is expected to be a major battleground, it is important for human rights lawyers to ensure that the court 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’.

 

            It must be noted that Administrative Order 97 was issued by Pres. Gloria Arroyo on the same day the amparo rules were promulgated requiring the military to draft a law that will protect military secrets and military operations.  Pres. Arroyo also requires, under AO 97, that any information on extra judicial killings and enforced disappearance be reported to her.   This is intended to provide military officers the means to refuse testifying in court on the ground of ‘executive privilege’, claiming that their testimony has been the subject of a ‘report’ to the commander in chief. AO 97 is meant to subvert the writ of amparo, particularly the inspection and production orders.  It is important that human rights advocates must campaign against the passage of this law and this insidious attempt to render the writ ineffective. 

 

VI.            Liberal provisions on venue, filing, and fees

 

            The Philippine amparo, under Section 3, allows for the filing of the amparo petition in the Regional Trial Court where the threat, act or omission “or any of its elements” occurred,  and 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.  It can also be filed ‘on any day and at any time’ [Sec. 3]  before any of these bodies or justices.

           

             Decisions by any of these bodies may be immediately appealed to the Supreme Court under Rule 45 on questions of both ‘facts and law’  [See Sec. 19].  If the appeal is only on questions of law, it may be decided by the Supreme Court.  Traversing factual issue may result in remanding the case to the Court of Appeals.

 

            One of the most important liberal provisions of the rule is that unlike many other amparos, the Philippine amparo does not expressly 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.    Docket fees are usually beyond the reach of the families of victims, especially since the victim of disappearance or extra-judicial killings are usually the bread winner.

 

VII.         Archiving

 

            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.” This proposal is also one of those proposed by members of the NUPL during the Summit.  The archiving of the case, rather than dismissal, makes it easier for the victims to revive the petition when circumstances change.   This provision could be effectively used in the battle against impunity, and may be deemed 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.

 

VIII.     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 “any person 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. 

            Is the President liable for contempt under the amparo rule should she disregard a court order in an amparo petition?  The president, impleaded as respondent, is expected to follow the orders of the judiciary and is even required by her oath of office to ‘ execute all laws faithfully’.  Should the president disobey court orders, it is this papers’ opinion that the judiciary is not at all helpless against those who disregard lawful court edicts.  The president’s may claim immunity from criminal or civil cases but can be reprimanded or  fined by the courts for contemptuous acts.  In any case, the President may be later held legally accountable once she finishes her term and her immunity terminated.

 

            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.  

 

 

Initial Lessons

 

            Some of the lessons learned from the experience  are the following:

 

            The military has developed a template nationwide—arguing that the subject voluntarily surrendered to the military or preferred custody with the military.   This scheme must be publicly exposed.   Concise legal arguments must also be prepared to meet this very weak argument head on.

 

            Some RTC judges who are not familiar with the rule, treat amparo like a habeas corpus petition or in some instances dismiss ‘amparo’ cases even if they grant liberty to the subject.  The Supreme Court explained during the NUPL forum on the writ that a writ is “issued” once the court requires the respondent to file a ‘return’.  If the subject was ordered released the ‘privilege of the writ’ was actually granted, and not dismissed.  It maybe worthwhile to give a brief explanation on the amparo in the prefatory, and specifically state the above in the prayer including a prayer for a ‘temporary protection order’ in the custody of the family or a human rights group or institution.

           

            Amparo decisions must be immediate, and handed down in open court, rather than through written decisions.  Counsel for petitioners must immediately move in open court for reconsideration from an unfavorable decision particularly if the basis is ‘voluntary custody’.   An appeal under rule 45 of the Rules of Court may be filed with the Supreme Court.[5]  

           

Support for the Writ

             

            The rule on the writ of amparo contains many provisions that may be used  to pierce the veil of impunity that shrouds the Philippine justice system.  It is important that human rights lawyers must support the Supreme Court’s assertion of its constitutional powers to protect human rights including the promulgation of the rules on the writ of amparo and habeas data.  It is also important that human rights advocates help ensure that the writ of amparo becomes an effective tool in the battle against impunity.  In this undertaking,  the active participation of the victims, their families and human rights advocates in the quest for justice plays an important role and should be pressed vigorously.  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 .