THE WRIT OF AMPARO: A COMPARATIVE REVIEW

By Atty. Neri Javier Colmenares1 Speech delivered at the Founding Congress of the National Union of Peoples Lawyers [NUPL] (Cebu City, September 15-16, 2007) Introduction The recent Consultative Summit on Extrajudicial Killings and Enforced Disappearance organized by the Supreme Court highlighted legal concepts that are alien2 to Philippine jurisprudence. Concepts like the writ of amparo, command responsibility and subsequently, the writ of habeas data were entertained as possible legal tools that may be useful in solving the escalating number of cases involving extra judicial killings and enforced disappearances that have plagued the country for many years. Whether or not these legal procedures will help alleviate the human rights condition in the country remains to be seen. Much depend not merely on the provisions of the amparo rule that the Supreme Court has promulgated, but on the judicial will to implement these rules in the face of a recalcitrant executive department. This paper will attempt to give a general description of the concepts, hoping that it will stimulate discussion among legal practitioners and contribute to the efforts in the promotion, protection and defense of human rights in the country through the creative use of the rules.

Atty. Neri Javier Colmenares was an Associate of the Asian Law Centre, Faculty of Law, University of Melbourne. He is also the Spokesperson of CODAL. He delivered this paper during the historic Founding Congress of the National Union of Peoples Lawyers [NUPL] held at the Golden Prince Hotel, Cebu on September 15-16, 2007 and attended by over 120 lawyers, law students and paralegals from all over the country. Chief Justice Reynato Puno, in his message to the Founding Congress of the NUPL, announced the immediate promulgation of the rules on the Writ of Amparo. This paper was updated when the Supreme Court issued the rules on the writ of Amparo. Amparo is not completely alien. The notion is akin in parts to the common law concept of habeas corpus and certiorari. The concept of Habeas data, which essentially grants a person the right to demand the amendment or destruction of government data [dossier] on the petitioner, may be resorted to under the Constitutions freedom of information provision and using the general principles under the Civil Code provisions on quasi-delict. The liberal procedure in Habeas Data however has no equivalence in Philippine jurisprudence. The legal concept of command responsibility is not at all alien since the Yamashita case until the respondeat superior ruling in Aberca vs Ver.
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Historical Roots Amparo literally means amparar or to shelter or to protect. The name stems from the nature and intent of the writa judicial procedure for the protection of certain constitutional rights. The Writ of Amparo [ recurso de amparo or juicio de amparo] originated from the Mexican legal system and has no exact equivalence in common law. Amparo however is not totally alien to Philippine jurisprudence because it essentially encompasses elements of several legal actions of the common law tradition: writ of habeas corpus, injunction, error, mandamus, and certiorari. It was initiated by Manuel Crecencio Rejon in the drafting of the Constitution of Yucatan in 1840 and later enshrined in the 1857 Mexican Constitution. It possibly stemmed from the Anglo-Saxon concept of the writ of habeas corpus, although amparo [except in some countries like Argentina] pertains to the protection of rights, other than the deprivation of liberty, the remedy of which is a habeas corpus petition. Depending on the cause of action, the Amparo proceedings may be direct or indirect. An indirect Amparo is filed before a district court. There is a procedure for appeal before a collegiate tribunal such as the Supreme Court in the case of indirect amparo. A direct Amparo is filed before a collegiate tribunal and is decided in a single instance with no further judicial recourse available. It generally has two components: the temporary cessation [akin to a temporary restraining order] and the decision on the merits issued by the court as judgment. The effectiveness of Amparo in many Latin American countries, as a legal remedy for enforced disappearance has not been very encouraging due to various reasons: exceptions such as arrest during emergency rule or state of siege, exhaustion of remedies, inclusion of private individuals as respondents, and the lack of judicial will by the courts to interfere in cases where the military or the government is the respondent. As a legal tool, however, amparo does expand the restrictive notion of habeas corpus and may be used creatively to protect human rightsboth individual and collective rights. Mexican Amparo The amparo powers of the Mexican Supreme Court is founded in Article 94 of the 1917 Constitution of Mexico and is provided in detail under Article 107. Article 107 of the Mexican Constitution states that only the injured party can initiate an action for amparo. The Mexican amparo is, under Art. 103 of the Constitution, limited to acts of the State and its personnel. It does not encompass unrelated acts of private individuals. An amparo decision that a law is unconstitutional does not have an erga omnes effect to invalidate that law in general but is only res judicata in regard to the issue and the parties involved in the petition. The proceeding is summary in nature, and only those issues which do not require extensive evidentiary examination is admitted, as defined under Art. 107 of the Constitution: Except as provided in the following section, a writ of amparo against final decisions or awards, for violations committed therein shall be applied for directly to the Supreme Court of Justice, which shall render its decision without 2

other evidence than the original complaint, a certified copy of the claims of the aggrieved party, which shall be added to those made by the third party affected, the latter's complaint submitted either by the Attorney General of the Republic or his designated agent, and that of the responsible authority. The Mexican Constitution, at least on paper, frowns upon refusal of the Executive branch to cooperate with the Court by providing that If after amparo is granted, the responsible official persists in repetition of the contested act or attempts to evade the decision of the federal authority, he shall be immediately removed from office and taken before the appropriate District Judge [Art. 107, Par. XVI]. In fact, Par. XVIII requires that anyone who violates this article will be turned over to a competent authority, which means that a violation of the amparo decision may lead to the immediate arrest and detention of that official. Since an amparo petition is only filed against a public official, the Attorney General is mandated to appear in all amparo cases although the Constitution [Par. XV] with certain exceptions.3 There are five types of "amparo" suits: 1) "amparo" as a defense of individual rights such as life, liberty, and personal dignity; 2) "amparo" against laws (defending the individual against un-constitutional laws); 3) "amparo" in judicial matters (examine the legality of judicial decisions); 4) administrative "amparo" (providing jurisdiction against administrative enactments affecting the individual); 5) "amparo" in agrarian matters (protecting the communal ejidal rights of the peasants). It is noteworthy that even if peasants can file an action for amparo on agrarian issues, landlords cannot file a similar suit [their remedy is the ordinary court procedure of appeal]4 Amparo was copied by many Latin American countries, some deviating from the original notion of the Mexican amparo, although the idea of protection or shelter remains as the overriding theme of these amparos. Amparo in CHILE The legal notion of Amparo was initially outlined n the 1925 Constitution of Chile and expressly enshrined under Article 19 and 20 of its 1985 Constitution5. This was later qualified by Constitutional Act No. 3 by virtue of Decree Law 1152 promulgated on September 11, 1996.

Art. XV. The Attorney General of the Republic or an agent of the federal public ministry appointed for the purpose, shall be a party in all suits in amparo, but they may abstain from intervening in such cases, if the matter in question lacks public interest, in their opinion. Art XIV Landowners affected by decisions granting or restoring communal lands and waters to villages, or who may be affected by future decisions, shall have no ordinary legal right or recourse and cannot institute amparo proceedings. Persons affected by such decisions shall have solely the right to apply to the Federal Government for payment of the corresponding indemnity. This right
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must be exercised by the interested parties within one year counting from the date
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[Translated] Article 20. -The one that because of arbitrary or illegal acts or omissions undergoes deprivation, disturbance or threaten in the legitimate exercise of the rights and guarantees x x x may avail through himself or anyone in his name, to the respective Court of Appeals, that it will adopt immediately the orders to restore the violated right and to assure the due protection the affected one, without damage of the other rights. Article 21. -All individual that will be arrested, lengthy or imprisoned with infraction of the arranged thing in the Constitution or the laws, will be able to avail by himself or, or anyone to its name, to the courts, in order that this

The Chilean amparo, [under the 1925 Constitution and the Constitutional Act No. 3 of 1976] introduces an important innovation : While the Mexican amparo must be filed by the injured party, the Chilean amparo may be filed on behalf of any person who may unlawfully suffer any other deprivation, disturbance or threat to his right to personal freedom and individual security. 6 The Philippine Amparo, as outlined in Section 2 of the Supreme Court Rule on Amparo follows this expanded Chilean notion by granting not only the injured party, but even human rights organizations, the standing to file the petition. The Code of Criminal Procedure of Chile, [Book II, Title V, ] further regulates the remedy of amparo and stresses that : (i) the court must make a finding on the remedy within a period of 24 hours; (ii) it may instruct one of its judges to go to the place in which the person arrested or prisoner is located; (iii) it may order the person arrested or the prisoner to be brought before it (habeas corpus); (iv) if it revokes the order for detention or imprisonment or orders its defects to be corrected, it must pass the records to the Public Prosecutor, who is obliged to file a complaint against the perpetrator of the abuse. Note that the Chilean amparo includes the writ of habeas corpus which must be resolved within 24 hours and definitely not when the wrong caused by an unjust imprisonment has taken on large proportions or has been endured in its totality. [Supreme Court of Chile, Decision of December 19, 1932]. The Procedure also requires the prosecution of the public official who was responsible for unjust deprivation of liberty, an important mechanism in the battle against impunity and abuse.
one orders keep the legal formalities and adopts immediately the providencias that judge necessary to restore the violated right and to assure the due protection the affected one. That magistrate will be able to order that the individual is brought to their presence and its decree indeed will be obeyed by all ones in charge of the jails or places of halting. Instructed of the antecedents, it will decree his immediate freedom or it will cause that the legal defects are repaired or will put to the individual to disposition of the competent judge, coming in all brief one and summarily, and correcting by himself those defects or giving account to that corresponds so that it corrects them. The same resource, may be availed of by any person who illegally undergoes any other deprivation, disturbance or threatens in her right to the personal freedom and individual security.
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Article 16 of the 1925 Constitution provided that every individual who may be arrested, charged, or imprisoned contrary to the provisions of the Constitution governing these matters: may apply, for himself, or by anyone in his name, to the judicial authority designated by law, petitioning that the legal requirements be observed. This judicial authority shall order the individual to be brought before him and his order shall be obeyed exactly by all those having charge of prisons or places of detention. Informed of the facts he shall declare his immediate release, or cause the legal defects to be corrected, or put the individual at the disposition of the proper judge, proceeding throughout in a brief and summary manner, correcting the defects personally or referring them for correction to whomever it may concern.

The Chilean Supreme Court recommended on that occasion that once an appeal has been accepted and the liberty of the person arrested or imprisoned ordered, the Court shall ensure that its decision is duly carried out, for which purpose it shall require in all the cases it deems necessary an immediate report from the official responsible for executing it or from the head of the establishment in which the person covered by the remedy is located. These lofty pronouncements for the speedy remedy of those deprived of their rights, was however followed more in the breach during periods of authoritarian rule. Under Pinochet for example [from 1973 to 1983] only 10 amparo cases were admitted by the Chilean judiciary out of 5,400 petitions filed. This was mainly due to the escape clause in the Chilean Amparo which is best described by the Report of Chile to the Inter- American Commission on Human Rights : In the case of a state of siege, the recurso de amparo is inoperative against detentions ordered by the administrative authority in accordance with the powers that have been conferred on that authority. In effect, Article 306 of the Code of Penal Procedure provides that the recurso de amparo is available when the order of arrest is issued by an authority who does not have the power to arrest, or when the order has been issued on some basis other than those specified by the law, or when there has been a violation of the appropriate procedures. The Philippine Amparo contains a similar, though limited, provision under Section 14 (b) and (c) in relation to forms of relief. Most of the Amparos, including the Chilean Amparo, have stringent exhaustion requirements for judicial civil, criminal, or labor matters because it shall be granted only against final judgments or awards against which no ordinary recourse is available by virtue of which these judgments can be modified or amended, whether the violation of the law is committed in the judgments or awards, or whether, if committed during the course of the trial, the violation prejudices the petitioner's defense to the extent of affecting the judgment. This is similar to the rule on Certiorari in the Philippine Rules of Court and may render the remedy of amparo ineffective in cases of enforced disappearance which requires immediate action. The Chilean Amparo also requires that it may be resorted to in civil and criminal cases only if a prior objection was registered and followed by a refusal of the tribunal or government personnel to rectify. State agents who fail to acknowledge the fate or whereabouts of a disappeared, however, may be liable under Decree Law No. 1.008 which requires that government personnel inform the family of the detained person within 48 hours from arrest. Amparo in Argentina that: Any person may file a prompt and summary proceeding regarding constitutional guarantees, provided there is no other legal remedy, against any act or omission of the public authorities or individuals which currently or imminently may damage, limit, modify or threaten rights and guarantees recognized by this Constitution, treaties or laws, with open arbitrariness or illegality. In such case, the judge may declare that the act or omission is based on an unconstitutional rule. 5 Amparo is provided under Article 43 of the 1994 Constitution of Argentina, which state

This summary proceeding against any form of discrimination and about rights protecting the environment, competition, users and consumers, as well as about rights of general public interest, may be filed by the damaged party, the ombudsman and the associations which foster such ends registered according to a law determining their requirements and organization forms. Any person may file this action to obtain information on the data about himself and their purpose, registered in public records or databases, or in private ones intended to supply information; and in case of false data or discrimination, this action may be filed to request the suppression, rectification, confidentiality or updating of said data. The secret nature of the sources of journalistic information shall not be impaired. When the right damaged, limited, modified, or threatened affects physical liberty, or in case of an illegitimate worsening of procedures or conditions of detention, or of forced missing of persons, the action of habeas corpus may be filed by the party concerned or by any other person on his behalf, and the judge shall immediately make a decision even in a state of siege. Essentially, therefore, the Amparo of Argentina provides that any person, including a human rights organization may file the petition on behalf of an injured party, whose constitutional rights [except rights affected by arbitrary detention or enforced disappearance] have been or will be violated. In cases of disappearances, a petition for habeas corpus is the proper procedure and not amparo. It expressly provides for a collective amparo where the rights affected may pertain to a group rather than a mere individual such as rights to cultural heritage or environmental rights. Like the Philippine amparo, it may be filed against a government personnel or a private individual. The Amparo is further regulated by law under Act No. 16.986 The law provides for the filing of a writ of amparo against any act or omission of a public authority which currently or imminently may damage, limit, modify or threaten rights and guarantees explicitly or implicitly recognized by the Constitution, except for individual liberty, which is protected by habeas corpus. Article 2 of the law regulates the admissibility of a petition for a writ of amparo against an act of a public official. An amparo petition is not admissible when a) there exist judicial or administrative remedies through which it may be possible to obtain protection of the constitutional right or guarantee concerned; b) the impugned act emanates from an organ of the judiciary or has been adopted in express application of Act No. 16.970; c) judicial intervention might directly or indirectly compromise the regularity, continuity, and effectiveness of a public service, or the workings of essential state activities; d) determining the possible invalidity of the act would require wider discussion, further evidence, or a declaration of unconstitutionality of laws, decrees, or orders;

e) the petition is not filed within 15 business days from the date on which the act was carried out or should have occurred. Like the Mexican amparo, a final judgment on the petition constitutes a res judicata with respect to amparo as to the parties. An amparo petition against an act or omission of a private person is governed, not by Act 16.986 but by Article 321 of the Code of Civil and Commercial Procedure in the following terms: "The procedure provided at Article 498 [Special expedited summary proceeding] shall be applicable ... when a claim is filed against an act or omission of a private person which currently or imminently may damage, limit, modify or threaten any right or guarantee explicitly or implicitly recognized by the Constitution, provided that urgent reparation of the injury or immediate cessation of the effects of the act are necessary, and the matter, by its nature, does not require substantiation via another proceeding contained in this Code or other laws." A novelty in the jurisprudence of Argentina is a decision that imposes active court intervention in cases where the military denies custody of a disappeared person. The Court pronounced that the judiciary, being part of the state, also governs and therefore, has the power and the right to intervene to protect the rights the people it governs. Amparo in Nicaragua Other countries also have amparo in their legal systems through positive law instead of the Constitution. Nicaragua for example provides for amparo under Decree 232 of January 4, 1980. The Nicaraguan Amparo, which includes the writ of habeas corpus, operates on : (i) behalf of a person who has been detained or threatened with detention (ii) against acts restricting personal freedom that are committed by private individuals and (iii) against a sentence imposed upon a person who has not been detained and who wishes to be released from its effects. Amparo in Nicaragua may be filed orally or in writing by any individual on behalf of the injured party, at any day and at all hours [article 2 and 4]. Unlike the Argentinean amparo which prohibits impleading a court in an amparo petition, amparo in Nicaragua allows for the reversal of a judicial decision ' A government official who disobeys or violates an amparo decision may be ordered removed, indicted or fined [article 8 and 12]. If the employee disobeying the writ of habeas corpus is an employee or agent of the executive, the Court hearing the case shall immediately inform the executive through the Supreme Court so that it may carry out the instructions within forty-eight hours. If the Executive refuses, or allows the deadline to pass without complying with the writ, the Supreme Court shall make this fact known to the public without prejudice to its ordering trial for the non-complying employee, and without prejudice to the rights of the interested party or parties.

The historical development of the writ of amparo in various Latin American countries has been uneven7. One of the historical lessons from the experience of these countries is that the effectiveness of the writ largely depend on the extent with which the victims asserted their rights and the commitment of the judiciary to rule on these petitions with independence and impartiality and implement the writ with courage and judicial will to protect, promote and defend human rights.

This paper was based and taken from the following articles and documents: The Action of Amparo in the Argentine Constitution as an Emergency Measure to Safeguard Constitutional Rights, by Federico Gallo Quintian The writ of amparo, Mexican Procedure to Protect Human Rights by Carlos Sanchez Mejorada Report on the Human Rights in Chile to the Inter-American Commission on Human Rights [IACHR] Report of the Government of Argentina to the IACHR Report of the Government of Nicaragua to the IACHR Report of various Latin American countries to the Organization of American States on the state of human rights in their particular countries.

(i) (ii) (iii) (iv) (v) (vi)

INITIAL ANALYSIS ON THE PHILIPPINE AMPARO

By Atty. Neri Javier Colmenares [An Update on the Speech on the Writ of Amparo Presented at the NUPL Founding Congress on Sept. 15-16, 2007]8

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 has a retroactive effect in that it will apply 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 Jonas Burgos, Karen Empeno and Shirley Cadapan. 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.
This paper forms part of the paper presented during the NUPL Founding Congress on Sept. 15-16, 2007 in Cebu City. The Paper titled The Writ of Amparo: A Comparative Review was updated when the Supreme Court issued the Rule in October 2007.
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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 amparoin cases of actual deprivation of libertyis 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 retroactively9, 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 the rule 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 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. 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 prosecutionsuch 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
There is no express provision in the Rule that it is applied retroactively. Philippine jurisprudence however allows the retroactive application of procedural rules.
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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 is, rather, 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 writs expanded scope by filing baseless amparo petitions 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 partys 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 victims 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 victims families be reluctant out of fear to file the petition. 11

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]. 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 the 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

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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 Return the following: (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.10 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 rule 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 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.
A major example of the contemptuous and criminal act by the AFP is their explanation that although the plate number used in the enforced disappearance of Jonas Burgos came from a vehicle inside an army camp. The AFP initially claim that the NPAs entered the camp and took the subject plate number. Of course, no reasonable person is expected to believe a story that the NPAs will enter an army camp and the first and only thing they do, instead of stealing a gun or a bullet or a uniform or shoot a soldier, is to steal the plate number of a dilapidated vehicle.
10

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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 governments 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 sanctuaries11. 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 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 imposes the penalty of a 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 of a belligerent public official.

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The police once raided the Polytechnic University of the Philippines where refugees from Leyte were taking sanctuary and arrested many refugees. Cardinal Jaime Sin once complained against a military raid on his convent allegedly to arrest rebels seeking sanctuary in the same.

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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 if the AFP is later found to actually have custody of the victim. Absent this interpretation, the Philippine Amparo will 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 rule in certain instances departs 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 to 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. 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 whether the periods will still apply if the petition is filed before the Supreme Court on appeal under Rule 45.

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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 for example 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. 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 systemthe people .

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