Writ of Amparo in The Philippines

THE WRIT OF AMPARO AND ITS IMPACTS TO THE CULTURE
OF IMPUNITY IN THE PHILIPPINES
A Research Paper
Submitted to
Atty. Suzanne Margarete T. Sencio-Tabunda
College of Law
Josefina H. Cerilles State College
Pagadian City
In partial fulfillment
Of the requirements in
Legal Research 1
Submitted by
Ms. Mary Jane Gamose-Gangoso
LLB 1 Student
October 25, 2014
Writ Of Habeas Corpus And Its Impact To The Culture Of Impunity In The Philippines
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................................... 3
THE WRIT OF AMPARO, ITS ORIGIN AND HISTORY ............................................................. 6
THE WRIT OF AMPARO AND THE GHOSTS OF THE WRIT OF HABEAS CORPUS 10
THE WRIT OF AMPARO AND ITS TAXONOMY ....................................................................... 15
SCOPE OF THE AMPARO .................................................................................................................... 16
LEGAL BASIS .............................................................................................................................................. 18
WRIT OF AMPARO RULES OF PROCEDURES .......................................................................... 20
WHO MAY FILE ......................................................................................................................................... 20
WHERE AND WHEN TO FILE ............................................................................................................ 22
COURT FILING FEE ............................................................................................................................... 24
CONTENTS OF THE PETITION ......................................................................................................... 24
CERTIFICATON AGAINST FORUM SHOPPING AS A REQUISITE ................................. 26
ACTION OF THE COURT ..................................................................................................................... 27
SERVICE TO RESPONDENT(S) AND RETURNS ....................................................................... 28
PROHIBITED PLEADINGS UNDER THE AMPARO RULE .................................................. 32
AMPARO HEARING ................................................................................................................................. 33
INTERIM RELIEF UNDER THE WRIT OF AMPARO ............................................................... 35
QUANTUM OF EVIDENCE .................................................................................................................. 38
COURT DECISION ................................................................................................................................... 38
EFFECTS OF PARALLEL CRIMINAL AND ADMINISTRATIVE CASE ............................ 40
THE AMPARO LANDMARK CASE IN PAGADIAN CITY ..................................................... 41
THE LANDMARK CASE OF AMPARO AT THE SUPREME COURT ................................ 43
CONCLUSION ............................................................................................................................................. 45
THE STATE OF IMPUNITY BEFORE AND AFTER THE ADOPTION OF THE WRIT
OF AMPARO ............................................................................................................................................... 45
BEYOND AMPARO ................................................................................................................................... 47
INTRODUCTION
It is without doubt that a culture of impunity has plagued the Philippine

society even before the Supreme Court has promulgated the Writ of Amparo.
Impunity is ever consistent in the many cases of extra judicial killings, enforced
disappearances and other forms of human rights violations in the country. Adding to
the weight of impunity is the heinousness of the crimes where many of the
extrajudicial killings and enforced disappearances were executed openly in public
locations, in close proximity to police stations and within military camps. Most, if not
all, of these cases have not caught attention from the Philippine government to push
the latter to conduct an investigation and attain prosecution for these crimes. Human
rights lawyers and paralegal human rights groups reported minimal cooperation from
the government and had their members, even the lawyers themselves, subjected to
attacks further limiting the window for human rights victims to access the judicial
process.
To address media and activist killings, the Philippine government created an

Independent body on 2006 that among other tasks, shall conduct investigation of
high-profile cases of enforced disappearances of the time and shall formulate policy
recommendations directly to the President. This body is coined the Melo
Commission.1 In terms of numbers, the Special Task Force Usig of the Philippine
National Police listed down one hundred eleven (111) killings, which has since

1
Administrative Order 157 [21August 2006]
The United Nations created the position of Special Rapporteur on extrajudicial, summary or arbitrary executions

increased to one hundred thirty six (136). Amnesty International, in its official
website, mentions 244 victims. The group Karapatan is said to have counted at least
724 killings. These numbers are counted during the term of President Arroyo alone.
Unfortunately, none of the so-called activist/militant groups, be they outright
communist or satellite groups, came forward if only to inform the Commission of the
numbers of their members who have become victims of extrajudicial killings. Be this
as it may, the number, whether at a low of 111 according to Task Force Usig, or a
high of 724 of Karapatan, is one too many, the Melo Commission reported.
The Melo Commission in its report confirmed the earlier claims of human
rights groups and the UN Rapporteur2 that people, almost all of them activists or
militants, have been killed. There is no denying the reality that militant citizens have
been liquidated. Despite the lack of support from the Philippine government, the
European Commission sent a six-member expert team to the Philippines on June 2007
and provided the impetus for government action in relation to extrajudicial killings
per conclusions of their technical assessment of the state of impunity in the nation.3
The United Nations created the position of Special Rapporteur on extrajudicial, summary or arbitrary executions
in 1982. The job of the Special Rapporteur is to respond to cases of extrajudicial killings around the world by
holding Governments to account both (a) where they or their agents are responsible or (b) where they have not
done everything within their power to prevent or respond to killings carried out by others. The Special Rapporteur
carries out this mandate through correspondence and fact-finding visits. These serve to clarify past violations,
alert Governments to their legal obligations, and provide guidance on the measures required to prevent future
violations, http://www.extrajudicialexecutions.org/about/mandate.html
3
http://www.delphl.cec.eu.int/docs/NAMPressRelease. pdf
It is in this context of worsening culture of impunity that the Supreme Court invoked
its Constitutional mandate 4 to formulate rules to ensure the enforcement and
protection of the constitutional rights of the people.
On July 16-17 of 2007, the Supreme Court then headed by Justice Reynato S.
Puno, called for a Consultative Summit on Extrajudicial Killings and Enforced
Disappearances. The summit solicited recommendations the most crucial of which is
the notion that there should be an active judicial intervention in cases of human rights
violations. As an offshoot of the summit, the rules of Writ of Amparo were
promulgated.
Art. VIII, Sec. 5 (5), Philippine Constitution
THE WRIT OF AMPARO, ITS ORIGIN AND HISTORY
The writ of amparo (which means protection) is of Mexican origin. Its

present form is found in the Mexican Constitution.5
Recurso de Amparo is a legal remedy against acts violative of the
constitutional guarantees of individuals as reflected in the Mexican constitution. It
may be invoked in administrative, criminal and civil trials. It must be noted that the
recurso de amparo is of much broader application in its country of origin compared to
that which was adopted by the Philippine Supreme Court. Generally speaking, the
writ of amparo has broader application compared to the writ of habeas corpus since
the former can be applied to most controversies while the latter is confined to cases
relating to illegal detention, custody or confinement.
But when adopted by the
Philippine Supreme Court, the writ of amparo was limited to cases of human rights
such as extrajudicial killings, enforced disappearance and threats to life, liberty and
security. The nucleus of the rule is the disposition of judicial review powers by court
as per provided in our Philippine constitution.
In the Philippines, amparo was virtually unheard of to the law students until
the then Ateneo law professor and now Supreme Court Associate Justice Adolfo
Azcuna incorporated it as a bewildering question in the 1991 bar examinations.
6
Justice Azcuna first proposed the adoption of the writ of amparo in the 1971
Art 103, 107 , The Mexican Constitution
6 CREATIVE RULE-MAKING IN RESPONSE TO DEFICIENCIES OF EXISTING REMEDIES, Joan Lou P.
Gamboa
Constitutional Convention. His proposition, unfortunately, was not adopted. He got

another chance to raise it as a delegate in the 1986 Constitutional Commission.
Eventually, it was adopted not as the writ of amparo, but as a provision in Section 5,
Article VIII of the 1987 Constitution, which grants the Supreme Court the power to
promulgate rules concerning the protection and enforcement of constitutional rights.7
During the Summit on Extrajudicial Killings and Enforced Disappearances on
2007, Chief Justice Puno spoke that In expanding the judicial rule-making authority
to enhance the protection and enforcement of constitutional rights, our Constitutional
Commissioners were endowed with prophetic eyes. For two decades later, we would
be bedeviled by extrajudicial killings and forced disappearances that would expose
the frailties of our freedom, the inadequacy of our laws if not the inutility of our
system of justice... [thus] the judiciary has decided to unsheathe its unused power to
enact rules to protect the constitutional rights of [the Filipino] people. Supreme
Court Associate Justice Adolfo Azcuna stressed on the doctrine of equal political
liberties first exhorted by John Rawls in his book Political Liberalism. The doctrine
stemmed from the recognition of the person as an individual blessed with natural
rights and clothed with civil and political rights, which all the nations of the world
have agreed upon to uphold, and which the 1987 Philippine Constitution has
recognized to attain a just and humane society.8
The summit came up with a number of recommendations, three of which are
very significant : First, to redefine the doctrine of command responsibility along the
line applied to the late Gen. Tomoyuki Yamashita; second, to include the writ of

7
http://www.positivenewsmedia.net/am2/publish/Cities_And_Towns_23/Amparo_writ_can_be_used_even_against
_vigilantes.shtml
8 Ibid.

amparo as part of the Rules of Court; and third, to revive the peace process with the
Communist Party of the Philippines and its military arm, the New Peoples Army, and
political arm, the National Democratic Front. Of the three, the incorporation of the
writ of amparo as part of the Rules of Court offers immediate relief because it can be
adopted by the Supreme Court pronto, without need of a new law and invoking only
its rule-making power as promulgated by the 1987 Constitution9.
The Rule on the Writ of Amparo10 was formally laid on the table on October
24, 2007. The new rule covers the right to life, liberty and security in cases of
extralegal killings, enforced disappearances or threats thereof.
Without a doubt, the writ of amparo as a law follows the usual pattern of
adoption by sovereign states the international laws adopted by the United Nations. As
a member of the UN, the Philippine government is greatly influenced by the timely
adoption of laws by the international community covering many areas to include
human rights. It is therefore logical to assume that one of the factors affecting the
move of the Philippine High Court to adopt the amparo rule is the countrys
commitment to abide by the UN laws and agreements. The Charter of the United
Nations requires the United Nations to promote human rights and their universal
respect, as well as to promote their observance according to the U.N. Charter Articles
1(3), 55(c), 56 and 62(2). For this purpose, the Economic and Social Council was
empowered by the Charter to set up a commission for the protection of human rights.
The Council established the Commission on Human Rights in 1946. A detailed

9
Summation, National Consultative Summit on Extrajudicial Killings and Enforced Disappearances,
http://www.supremecourt.gov.ph/publications/summit/summation1.pdf (last accessed 23 December 2007).
10
A.M. No. 07-9-12-SC, adopted by the Philippine Supreme Court on October 16, 200
discussion of the history and work of the U.N. Commission on Human Rights can be
read in THE U.N. COMMISSION ON HUMAN RIGHTS (1987) by H Tolley.
As a legal remedy, the writ of amparo in the Philippines is unique and
extraordinary and is given the same priority as habeas corpus. Essentially, it provides
the interim reliefs of Temporary Protection Order, Inspection Order, Production Order
and Witness Protection Order, any or all of which may be made permanent in the
judgment rendered after a summary hearing.
10

THE WRIT OF AMPARO AND THE GHOSTS OF THE

WRIT OF HABEAS CORPUS
There is one important legal instrument in the Philippines that has historical
significance both to the birth of the amparo rule and to the cases of extrajudicial
killings and enforced disappearances (desaparecidos) - the writ of Habeas Corpus.
The writ of habeas corpus often known as the great writ of liberty means
command to have (show) the body in Latin. The writ of habeas corpus is a legal
remedy or writ, through which a person can seek relief from illegal detention or
custody. The writ applies to all cases concerning a persons right of liberty and
rightful custody. The writ is used extensively to challenge a persons detention
following an arrest.
In the calendar of court, a petition for habeas corpus shall take precedence and
require immediate action by the court at which the petition has been filed. The writ
has been given utmost important in our statutes that even in the Constitution11, the
President cannot suspend such privilege to every person of the land except only in
cases of invasion, insurrection and rebellion, as when the public safety so requires
subject to the approval by Congress and for a limited period of 60 days only unless
extended or reduced by Congress.
Despite its valued significance to the protection of a persons liberty, the
efficacy of habeas corpus is under severe criticism and challenge. Its obvious

11
Section 18, Art VII, Philippine Constitution of 1987
11
limitations has frustrated many a lawyer in asserting the defenses of a persons

constitutional liberties. In cases where a detainee is labeled as a political dissident,
state agencies impose repression through illegal detention. A denial by the officer or
agency petitioned against by the writ pertaining to the custody of the victim warrants
dismissal of the petition. writ. There is an obvious tendency for the petitioner to suffer
the burden of evidence as most cases of illegal detention are perpetuated with secrecy
and beyond the public eye. Only when the court is satisfied by clear and convincing
evidence 12that a person is indeed denied of his liberty and that the respondent is
indeed denying the applicant of whose petition is filed in his behalf can habeas corpus
be granted.13 Considering that the objective of the writ is to determine whether the
detention is lawful or not, the writ cannot be enforced when the person or authority in
custody of the petitioner of whose petition is filed in ones behalf14 can show proof
that such custody or detention is valid.
In a petition for habeas corpus, there are four determining factors for the court
to grant the petition: (1) the person in whose behalf the application is made is
imprisoned or restrained of his liberty; (2) the officer or name of the person by whom
he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or
person may be described by an assumed appellation; (3) the place where he is
imprisoned or restrained, if known; (4) the cause of his detention, if a copy of the
commitment order can be procured without impairing the efficacy of the remedy; or,
if the imprisonment or restraint is without any legal authority. These factors manifest

12 In the matter of the Petition for Habeas Corpus in behalf of Daniel Ngaya-an, et al. v. Conrado Balweg, et al.,
200 SCRA 149 (1991); citing Gonzales v. Viola, 61 Phil. 824.
13
In the matter of the Petition for Habeas Corpus of Ferdinand E. Marcos etc. v. Executive Secretary Catalino
Macaraig, 18 May 1989, G.R. No. 88079, En Banc, Minute Resolution.
14
Rules of Court, Rule 102, S3
12

the scope of the writ as well as its obvious limitations.
The writ cannot apply to many other cases of deprivation of civil liberties to a
person most especially to those are vulnerable to human rights violations such as
political dissidents, activists and even human rights lawyers.
Where the person is arrested by the police who claimed to have released him
but still continued to be missing, the petition for habeas corpus was held to be an
inappropriate remedy. For instance, in Dizon v. Eduardo, an application for the
issuance of a writ of habeas corpus filed by petitioners-parents, on behalf of their son
and daughter who were arrested by the Philippine Constabulary (PC) elements of
Pampanga without warrant of arrest or Presidential Order of Arrest. They were
detained by the respondents and were allegedly released nine days later. However,
they were never seen nor heard from since their supposed release. Alleging that their
signatures on their release papers were falsified and thus, they were never released by
the military, said release being a scheme of the respondents to prolong their detention,
torture, and interrogation, the petitioners- parents sought a writ of habeas corpus. The
petition did not prosper. With regret, the Supreme Court failed to grant the relief
sought, though counseled that the concerned elements of the police force may be
charged with falsification, perjury, and criminal contempt of court should there be a
false sworn return and violation of Article 125, Revised Penal Code, pertaining to
delay in delivery of detained persons to the proper judicial authorities, or if the
established circumstances warrant, it is possible also for the aggrieved party to initiate
the criminal proceeding for abduction or kidnapping against the guilty elements of the
police force in the proper office such as the Department of Justice, or the Provincial
or City Prosecutors Office, in addition to resorting to the PLEB or CHR. The High
13
Court simply does not have the means and the facilities to conduct an investigation
of the whereabouts and fate of the desaparecidos.15
It is in this further context that the writ of amparo is more timely needed given
that the habeas corpus is giving a vast leeway for culprits to validate violation of
human rights.
A vivid illustration is the notorious case of Ilagan v. Enrile.16 In this case,
when the arrested lawyers were ordered released by the Supreme Court by virtue of
habeas corpus, the military-respondents managed to circumvent the order by
subsequently filing rebellion charges against them. Unfortunately, the Supreme Court
agreed, citing Rule 102, Section 4, of the Rules of Court, which provides that if the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or a judge, or by virtue of a judgment or order of a court of
record, and the court or judge has jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed...
The confines of habeas corpus in protecting human rights can be more clearly
gleaned from two recent Court of Appeals cases on enforced disappearances of
Sherlyn Cadapan, Karen Empeno, and Manuel Merino, abducted in June 2006 in
Hagonoy, Bulacan, and the disappearance of Leopoldo Ancheta, also in June 2006, in
Guiguinto, Bulacan. Both were petitions for habeas corpus filed against Major
General Jovito S. Palparan Jr. and other military officials.17 In the first case, Cadapan
and Empeno were alleged members of the Kilusang Magbubukid ng Pilipinas and

15 CREATIVE RULE-MAKING IN RESPONSE TO DEFICIENCIES OF EXISTING REMEDIES,
Gamboa
16
139 SCRA 349 (1985)
17 Ibid.
Joan Lou P.
14

Alyansa ng mga Magbubukid ng Bulacan, while Merino was only a good samaritan
who assisted the two. Cadapan et. al. were abducted by armed men.18 The writ of
habeas corpus was returned by respondent military officials denying participation in
the alleged abduction and custody of the said missing persons. Because of lack of
indubitable evidence that the three missing persons were in the custody of the
military, the Court of Appeals could do no further but dismiss the case, finding itself
helpless to aid the grief of the families. All the court could do is to order a further
investigation to be separately undertaken by the Philippine National Police, the
National Bureau of Investigation, and the Commission on Human Rights.
As a matter of truthful declaration, the courts do not have the ultimate power
to address all types of grievances pertaining to the deprivation of civil liberties, much
more to the growing culture of impunity on the country. The habeas corpus has its
pronounced purposes and limitations. Finding itself helpless against the ghosts of
habeas corpus- the countless petitions of habeas corpus dismissed by mere lack of
merit and the granted ones still unable to provide remedy to the victims of
desaparecidos, the high court held itself accountable to its Constitutional mandate.
Guided by the painful lessons of the past especially of the dark era of the Marcos
regime, the Supreme Court promulgated the writ of amparo partly to fill in the gaps of
the habeas corpus.
It must be clarified that the writ of amparo is not a replacement to the writ of
habeas corpus for both has its parallel yet particular purposes. Habeas corpus is
meant to protect and enforce of a persons right to freedom while the writ of amparo
is for the protection of the other fundamental rights of a person.

18
Ibid.
15
THE WRIT OF AMPARO AND ITS TAXONOMY

The writ of amparo is a special writ that do not suspend nor precludes the filing of
civil, criminal of administration cases. It does not determine the guilt of the
respondent being not criminal in nature yet if the evidences so warrant the filing of
criminal charges, the court where the petition is filed may refer the case to the
Department of Justice for proper disposal of criminal proceedings. The word amparo
comes from the Spanish word amparar which literally means to protect. The writ
traces its origins to Mexico and later on spread throughout the regions of the Western
Hemisphere where it has gradually evolved into various forms, depending on the
experiences of each country in the area. Starting as a protective writ against acts or
omissions of public authorities in violation of constitutional rights, it later on
blossomed as a remedial tool having several purposes:
1. (1) For the protection of personal freedom, equivalent to the habeas corpus writ
(called amparo libertad);
2. (2) For the judicial review of the constitutionality of statutes (called amparo contra
leyes);
3. (3) For the judicial review of the Constitutionality and legality of a judicial
decision (called amparo casacion);
4. (4)
For the judicial review of administrative actions (called amparo

administrativo); and
5. (5) For the protection of peasants rights derived from the agrarian reform process
16

(called amparo agrario). 19

SCOPE OF THE AMPARO

The writ of amparo is similar to the writ of habeas corpus as a legal remedy
for the enforcement and protection of human rights but it has an obvious wider
20
scope. Under Section 1 of the Rule on the Writ of Amparo, the nature of the writ is
defined as a remedy available to any person whose right to life, liberty, or security is
violated or threatened by an unlawful act or omission by a public official or employee
or by a private individual or entity. Under the 1987 Constitution the writ is not
specifically defined but Section 1 enumerates the constitutional rights protected by the
writ, and limits its scope only to right to life, liberty, and security of persons. In many
sovereign jurisdictions, the amparo has broader and wider coverage ranging from
criminal to administrative and even civil cases. In the case of the Philippine version,
the writ is confined only to the protection of a persons right to life, liberty, and
security. This is because other constitutional rights and civil liberties have other
remedies in place to enforce them. 21
According to Atty. Neri Colmenares of the Union of Peoples Lawyers, the

limited number of rights covered by the writ of amparo, in dire contrast to the other

19 WATCHING THE WATCHERS: A LOOK INTO THE DRAFTING OF THE WRIT OF AMPARO, Felipe
Enrique M. Gozon, Jr.& Theoben Jerdan C. Orosa
20
21
Supra, Note 35.

Supra, Note 52.
17
versions in many other jurisdictions which cover constitutional rights per se, may
result in various different interpretation.22
The Philippine version of the amparo deviated itself from the Mexican
original version which covers the relief for violation of rights to human dignity
presumably because of the breadth of the notion of dignity.
Property rights is also beyond the scope of the Philippine amparo contrary to
Mexican version which explicitly covers rights and therefore allows the writ for use in
issues involving land and agrarian disputes. This particular limitation of our version
of Amparo miserably failed to address the area of land reform which could have been
one of the most striking issue of human rights in the country.23
One strong point of the Philippine version of the Amparo is that is somehow
broader in terms of the nature of protection given that is does not only cover actual
violations but also against threats of violation of rights. In addition to, it does not only
cover omissions or acts by public officials and employees but by private entities and
individuals as well.
In cases of actual violations, the Philippine version of amparo can be invoked

when the fate or whereabouts of the person subject of the petition is unknown, and the
habeas corpus applies when the detention is known. For cases of threats
of
deprivation of liberty where no arrest or disappearance has been made yet, the amparo
is applicable instead of the habeas corpus.

22
http://www.bulatlat.com/2007/10/initial-analysis-philippine-amparo
23
Ibid.
18

The inclusion of threats instead of limiting itself to actual deprivation of
liberty makes the amparo a very strong writ as it can be invoked by activists and
individuals critical to the military against the latters practices of inviting the former
to their camps and subjecting them to interrogation and psychological torture.
Amparo can be a remedy if a right to life is violated or threatened and a party

may use it to further avail information and evidences prior to the filing of criminal
complaints.
LEGAL BASIS

Known Constitutionalist Fr. Joaquin G. Bernas wrote of the significant
influence of the Mexican amparo as the primary legal inspiration of the Philippine
version 24. Amparo is explicitly coined in Articles 103 and 107 of the Mexican
constitution- the judicial review of government action, to empower state courts to
protect individuals against state abuses.
Under the Argentinian Constitution, 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

24
Father Joaquin G. Bernas, The Mexican Amparo, Philippine Daily Inquirer

http://opinion.inquirer.net/inquireropinion/columns/view_article.php?article_Id.=86232
19
guarantees recognized by the 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.25
In the Philippines, amparo was made available by the Supreme Court, without
need of a new legislation and invoking only its rule-making power under the Article
VIII, Section 5, Paragraph 5 of the 1987 Constitution, which provides that the
Supreme Court shall have the power to [p]romulgate rules concerning the protection
and enforcement of constitutional rights [which] shall not diminish, increase, or
modify substantive rights. It is, however, qualified that the Rule on the Writ of
Amparo shall not diminish, increase or modify substantive rights recognized and
protected by the Constitution because amparo is but a procedural rule.

25
Article 43, 1994 Constitution of Argentina
20

WRIT OF AMPARO RULES OF PROCEDURES
WHO MAY FILE

A petition for the writ of amparo may be filed:
1. By the AGGRIEVED PARTY, or
2. By any QUALIFIED person or entity IN THE FOLLOWING ORDER AND

WHICH ORDER MUST BE OBSERVED:
a) Any member of the immediate family of the aggrieved party, namely:
1. the spouse,
2. children; and
3. parents. There seem to be no order of preference among the

immediate family of the aggrieved party and the petition can
therefore be filed by any of them and in any order;
b) Any ascendant, descendant or collateral relative of the aggrieved party

within the 4th civil degree of consanguinity or affinity, in default of the
members of the immediate family of the aggrieved party as mentioned
above;
c). If there is no known member of the immediate family or relative of the

aggrieved party, then ANY of the following:
i.
concerned citizen
ii.
concerned organization or association
iii.
concerned institution
21
If the AGGRIEVED PARTY files the petition, the said filing suspends the
right of all other authorized parties to file a similar petition. The filing of a petition by
an authorized party on behalf of the aggrieved party suspends the right of all others. 26
The order of hierarchy above provides as the last recourse any concerned citizen,
organization, association or institution, if there is no known member of the immediate
family or relative of the aggrieved party.27
It is uncommon for the High Court to provide specific hierarchy of the parties
who can petition the writ; though it could be observed that this particular provision in
Section 2 of the Amparo rules can somehow streamline facilitating recourse to the
remedy. This type of hierarchy is also evident in the implementing rules of the law on
violence against women and children. Through this order of rules, the courts can free
themselves from possible indiscriminate and groundless petitions which may put in
jeopardy a persons right to life, liberty and security. Such provisions will encourage
family members from pursuing negotiations with the respondents and at the same
time prevent non-family members from intervening the negotiation and possibly
putting the victims life in danger. On the other hand, it will also give family members
the external support to pursue the writ should the respondents be state security forces
who may use intimidation and threat to the victims immediate family by giving third
party individuals and institutions the right to file the writ if the family members so
refuse or cannot. As the right to life, liberty and security of a person is at stake, this

26
27
Section 2, Amparo Rule

Supra, Note 68,S2
22

section shall not preclude the filing by those mentioned in paragraph (c) when
authorized by those mentioned in paragraphs (a) or (b) when circumstances require.28
There have been cases where family members are obviously afraid to come
out and file the petition due to threat and harassment. But the Philippine Amparo in
Section 2 is inspired by the Chilean notion that grants not only the injured party but
even human rights organizations the position to file the petition of writ.
Foreigners have standing to file a writ of amparo. This is correct since civil liberties
pertain to all personsincluding 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.
29
WHERE AND WHEN TO FILE

A petition for writ of amparo can be filed on any day and any time with:
1. The REGIONAL TRIAL COURT (RTC) of the place where the threat,
act or omission committed or any of its elements occurred;
2. The SANDIGANBAYAN;

28 Supra, Note 65
29 THE WRIT OF AMPARO AS MECHANISM TO CURB IMPUNITY: The Case of the Philippines , Atty. Neri
Javier Colmenares ; Commission VI on Accountability for International Crimes: Fighting Impunity (IADL
Congress, Hanoi, June 6-10, 2009)
23
3. The COURT OF APPEALS;

4. The SUPREME COURT;
5. or with ANY OF THE JUSTICES of the Sandiganbayan, Court of
Appeal or Supreme Court;(Sec. 3, Amparo Rule)
An outstanding feature of this Philippine version of the writ of amparo is the

availability of reliefs at any time before final judgment. Under the Rule, the petition
may be filed on any day and at any time with the Regional Trial Court of the place
where the threat, act or omission was committed or any of its elements occurred, or
with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of
such courts.105 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. In other
words, the aforementioned courts exercise concurrent jurisdiction over petitions for
the issuance of the writ of amparo.
The section on jurisdiction and venue is basically similar to the Rule on
petitions for the writ of habeas corpus. A slight deviation, however, occurs with the
inclusion of the Sandiganbayan, for the reason that public officials and employees
will be respondents in amparo petitions.
It will be noted that in filing the amparo petition with the Regional Trial
Court, the venue shall be in the place where the act or omission was committed or
where any of its elements occurred. The evident intent of the rule is to prevent the
filing of the petition in some far-flung area to harass the respondent. Moreover, the
rule attempts to preempt any prejudice to the effective dispensation of justice, as in
most cases, the witnesses and the evidence are located within the jurisdiction of the
Regional Trial Court where the act or omission was committed. 30
The Philippine Amparo in uniquely liberal and almost similar to its
Nicaraguan counterpart that even allows the filing of the petition in verbal or written
form and can be filed at any time and at any day and at all hours.

Gamboa
Joan Lou P.
24

COURT FILING FEE

Another liberal feature of the Philippine amparo is the amount of filing fee for
it requires no amount (free). The petitioner shall be exempted from the payment of the
docket and other lawful fees when filing the petition. The court, justice or judge shall
docket the petition and act upon it immediately.31 Indeed, it effectively makes the
remedy accessible to the victims insofar as it relieves them of the financial burden to
prosecute their case for the enforcement of our sacrosanct rights should not be
frustrated by lack of finances. 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.32
CONTENTS OF THE PETITION
The petition shall contain the personal information of the petitioner, the details
about the respondent, the act or omission complained of, the investigations conducted
if there were any, and the relief requested. Specifically, the petition must be:

31
Section 4, The Rule on the Writ of Amparo
32 CREATIVE RULE-MAKING IN RESPONSE TO DEFICIENCIES OF EXISTING REMEDIES, Joan Lou P.
Gamboa
25
a) signed, and
b) verified by the petitioner
Verification A pleading is verified by an affidavit that the affiant has read the
pleading and that the allegations therein are true and correct of his personal
knowledge or based on authentic records. 33
It shall allege the following:
a) The personal circumstances of the petitioner;
b) The name and personal circumstances of the person or entity (called the
respondent) responsible for the threat, act or omission;
If the name of the respondent is unknown or uncertain, the respondent may be
described by an assumed appellation;
Ex. John Doe, Jane Doe, etc.
c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such threat or violation is committed with the attendant
circumstances detailed in SUPPORTING AFFIDAVITS;
d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as
well as the manner and conduct of the investigation, together with any report;
e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission; and

33 (Rule 7, Sec. 4, Rules of Court)
26

f) The relief prayed for.
The petition may include a general prayer for other just and equitable remedies.34

CERTIFICATON AGAINST FORUM SHOPPING AS A REQUISITE
The rule does not expressly require a Certification against Forum Shopping. A
petition for amparo cannot be dismissed for lack of such a certification. In fact, a
Motion To Dismiss (on any ground) is a prohibited pleading under this rule.
To avoid technicalities, it should do no harm however to include a
Certification against Forum Shopping as found in Rule 7, Sec. 5 of the Rules of
Court:
The plaintiff or principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith:
(a) that he has not theretofore commenced any action or filed any claim involving the
same issues in any court, tribunal or quasi- judicial agency and, to the best of his
knowledge, no such other action or claim is pending therein;
(b) if there is such other pending action or claim, a complete statement of the present

34 Section 5, Amparo Rules
27
status thereof; and

(c) if he should thereafter learn that the same or similar action or claim has been filed
or is pending, he shall report that fact within five (5) days therefrom to the court
wherein his aforesaid complaint or initiatory pleading has been filed.
ACTION OF THE COURT
Since the writ follows the summary nature of the proceedings, the writ is
issued as a matter of course when on the face of the petition it ought to issue. Upon
the filing of the petition, the court, justice or judge shall immediately order the
issuance of the writ if on its face it ought to be issued.35 To expedite its resolution, the
writ shall also set the date and time for summary hearing of the petition which shall
not be later than seven days from the date of its issuance.36 The amparo proceedings
enjoy priority and cannot be unreasonably delayed. A clerk of court who refuses to
issue the writ after its allowance, or a deputized person who refuses to serve the same,
shall be punished by the court, justice, or judge for contempt without prejudice to
other disciplinary actions.37The foregoing is a modified version of a similar provision
in Rule 102, governing petitions for a writ of habeas corpus.
Upon the filing of the petition, the court, justice or judge shall immediately

35
Supra, Note 68, S6

Ibid.
37
Supra, Note 68, S7
36
28

order the issuance of the writ if on its face it ought to issue.
1. The clerk of court shall issue the writ under the seal of the court, or
2. in case of urgent necessity, the justice or the judge may issue the writ under his or
her own hand, and may deputize any officer or person to serve it per Sec. 6 of
the Amparo Rule.
The writ issued shall set the date and time for summary hearing of the petition
which shall not be later than seven (7) days from the date of issuance.

SERVICE TO RESPONDENT(S) AND RETURNS

The writ shall be served personally upon the respondent/s by a judicial officer
or the person deputized. The serving officer shall retain a copy on which to make a
return of service.
In case the writ cannot be served personally on the respondent, the rules on
substituted service shall apply per provisons of the Section 8 of the Amparo rules.
The rule on substituted service applies to the petition for writ of amparo. If,
for justifiable causes, the respondent cannot be personally served within a reasonable
time, service may be effected:
29
3. (a) by leaving copies at the respondent/s residence with some person of suitable
age and discretion then residing therein, or
4. (b) by leaving copies at respondent/s office or regular place of business with some
competent person in charge thereof. 38
The writ imposes a heftier responsibility on the part of the respondents. A

general denial from the respondent is not allowed. The respondent shall be required to
give a full explanation and account in the return which shall be submitted to the court.
This is to ensure that the respondent shall make a detailed return which will not only
seek the persons liable but also help in the determination of their compliance with the
standard of conduct required of them.
The writ will require respondent to file his return, which is the comment or
answer to the petition. The return must be detailed to help determine whether the
respondent fulfilled the standard of conduct required by the Rule. Particularly, within
five working days after service of the writ, the respondent is required to 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

38 Rule 14, Sec. 7, Rules of Court
30

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.39
A general denial of the allegations in the petition shall not be allowed under
the writ of amparo in contrast to the ineffectiveness of the writ of habeas corpus

39 Supra 68, S9
31
where cases are dismissed due to lack of proof of respondents custody of the person
the petition is filed in behalf. Likewise, the period to file a return cannot be extended
except on highly meritorious ground.40
Under Section 3 of the Amparo Rules, when issued by the RTC or any judge
thereof, the writ shall be returnable before such court or judge but when issued by the
Sandiganbayan or the Court of Appeals or any of their justices, the writ shall be
returnable:
1. before such court;

2. or any justice thereof, or
3. to any RTC of the place where the threat, act or omission was committed or
any of its elements occurred;
When issued by the Supreme Court or any of its justices, the writ shall be
returnable:
1. before the Supreme Court,
2. Any justice of the Supreme Court, or
3. With the Sandiganbayan, or
4. The Court of Appeals, or
5. to any RTC of the place where the threat, act or omission was
committed or any of its elements occurred;

40 Supra, 112
32

In case the respondent failed to comply with the return, the amparo court,
justice or judge shall proceed to hear the petition ex parte as provided in Section 12 of
the Amparo Rule.
Under Section 16 of the Amparo rule, the respondent/s who refuses to make a
return, or who makes a false return, shall be punished for contempt. The person held
in contempt may be imprisoned or imposed a fine.

PROHIBITED PLEADINGS UNDER THE AMPARO RULE
As provided in the Amparo rules, the following pleading and motions are
prohibited and cannot be filed:
(a) Motion to dismiss
(b) Motion for extension of time to file return, opposition, affidavit, position
paper and other pleadings;
(c) Dilatory motion to postponement;
(d) Motion for bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third party complaint;
(g) Reply;
33
(h) Motion to declare the respondent in default;

(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory orders or interim reliefs; and
(l) Petition for certiorari, mandamus or prohibition against any interlocutory
order.
AMPARO HEARING

The hearing shall be summary in nature. This means a speedy response from
the court; and this is why delaying tactics shall not be allowed. Hence, the Rule has a
provision on prohibited pleadings and motions so as not to delay the proceedings. The
hearing shall be from day to day and shall be given priority. The court shall render
judgment within ten (10) days from the time the petition is submitted for decision.

Under the 1991 Revised Rule on Summary Procedure, which is what is most
probably envisioned by the rule on amparo, or at least something similar or analogous
thereto, the following is what usually transpires:
a) A preliminary conference is held. (Under the rule on amparo, the court,
justice or judge may also call a PRELIMINARY CONFERENCE in order to
simplify the issues and determine the possibility of obtaining stipulations and
admissions from the parties.)
34

b) Thereafter the parties are ordered to submit the affidavits of witnesses and
other evidence on the factual issues defined therein, together with a brief
statement of their positions setting forth the law and the facts relied upon by
them. (The amparo rule already requires that supporting affidavits be
attached to the petition. This may be without prejudice to the filing of
additional affidavits at the discretion of the amparo court.)
c) Should the court find, upon a consideration of the pleadings, the affidavits and
other evidence, and position statements submitted by the parties, that a
judgment may be rendered thereon without need of a formal hearing, it may
proceed to render judgment not later than fifteen (15) days from the
submission of the position statements of the parties. (Under the amparo rule
however, the amparo court is mandated to decide the case within TEN (10)
days from the time the case is submitted for decision.) In cases where the
judge deems it necessary to hold a hearing to clarify specific factual matters
before rendering judgment, he shall set the case for hearing for the purpose. At
such hearing, witnesses whose affidavits were previously submitted may be
asked clarificatory questions by the proponent and by the court and may be
cross-examined by the adverse party.
The order setting the case for hearing shall specify the witnesses who will be
called to testify, and the matters on which their examination will deal.

35
INTERIM RELIEF UNDER THE WRIT OF AMPARO
The Rule empowers the court to issue protective and instantaneous reliefs to
the petitioner and his possible witnesses in the form of a temporary protection order
(TPO), or a witness protection order (WPO), while the petition is being heard. The
grant of a temporary protection to the petitioner and any member of the immediate
family, as well as witnesses, is essential because their lives and safety may be at a
higher risk once they file the amparo petition. They may be ordered to be under the
safekeeping of government agencies, or persons and institutions accredited by the
Supreme Court.
An inspection order for a particular place may also be issued upon motion and
after being duly heard. The inspection order has a lifetime of five (5) days. The
motion is required to describe the places to be inspected in particular detail. A
production order for personal objects or documents, in tangible or electronic form, to
enforce a partys right to seek evidence, may be granted by the court after due
hearing.
As provided under Section 14 of the Rules, upon filing of the petition or at
anytime before final judgment, the court, justice or judge may grant any of the interim
reliefs:
a) temporary protection order (TPO);
b) inspection order (IO);
c) production order (PO); and
d) witness protection order (WPO).
36

Under the temporary protection order, the court, justice or judge, upon motion
or motu proprio, may order that the petitioner or the aggrieved party and any member
of the immediate family be protected in a government agency or by an accredited
person or private institution capable of keeping and securing their safety.
The filing of the petition for the writ of amparo is not mutually exclusive with
the filing of other reliefs (i.e. habeas corpus), as well as the filing of separate
criminal, civil or administrative actions.
The amparo rule also allows respondents to seek interim relief. Upon verified
motion and after due hearing, the respondent can be granted:
a) An Inspection Order (IO), and
b) A Production Order (PO)
Under Section 16 of the amparo rule, motion for Inspection Order requested
by the respondent/s shall be supported by affidavits or testimonies of witnesses
having personal knowledge of the defenses of the respondent/s.
Respondent/s, however, are not entitled to the issuance of Temporary
Protection and Witness Protection Orders in their favor.
On the issue of custody, 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
37
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 courts 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 militarys 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.

41 THE WRIT OF AMPARO AS MECHANISM TO CURB IMPUNITY:
41
The Case of the Philippines , Atty. Neri

38

QUANTUM OF EVIDENCE
Both parties of the petition shall establish their claims by substantial evidence.
42
However, the rule imposes a higher standard of diligence on public officers or
employees than on private individuals or entities. If the respondent is a private

individual or entity, he must prove that ordinary diligence, as required by applicable
laws, rules and regulations, was observed in the performance of duty. 43On the other
hand, if the respondent is a public official or employee, he must prove that
extraordinary diligence as required by applicable laws, rules and regulations, was
observed in the performance of duty. 44The respondent public official or employee
cannot invoke the presumption that official duty has been regularly performed to
evade responsibility or liability.45

COURT DECISION

For amparo petitions, judgment must be rendered within ten (10) days from
the time the petition is submitted for decision per Section 18 of the Amparo rule.
If the allegations in the petition are proven by substantial evidence, the court
shall grant the privilege of the writ and such reliefs as may be proper and appropriate;
otherwise, the privilege shall be DENIED under the same provision of the rule.

42
Supra, Note 68, S17
43 Ibid.
44
45
Ibid.
Ibid.
39
A petition denied is not a petition dismissed. As a matter of fact, the court

shall not dismiss the petition, but shall only archive it, if upon its determination it
cannot proceed for a valid cause such as the failure of petitioner or witnesses to
appear due to threats on their lives as specified under Section 20 of the amparo rule.
A periodic review of archived cases shall be made by the amparo court and
shall by motu propio, or upon motion by any party order its revival when ready for
further proceedings.
The clerks of court shall submit to the Office of the Court Administrator of the
Supreme Court a consolidated list of archived cases under this Rule not later than the
first week of January every year under Section 20 of the rule.
The petition shall be dismissed without prejudice upon failure to prosecute the
case after the lapse of two (2) years from notice to the petitioner of the order
archiving the case.
Appeals are allowed for the amparo petition and any party may appeal from
the final judgment or order to the Supreme Court as Rule 45 of the Rules of Court
provides for a petition for review on certiorari:
A party desiring to appeal by certiorari from a judgment of final order or
resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial
Court or other courts whenever authorized by law, may file with the Supreme
Court a verified petition for review on certiorari.
Unlike a petition under Rule 45 wherein only questions of law can be raised, a
Petition for Review on Certiorari under the rule on amparo may raise questions of
fact, questions of law or both questions of fact and law as provided in Section 19 of
40

the Amparo rule.
An order to archive a petition is not subject of an appeal by the petitioner. The
order to archive is an interlocutory order not subject of an appeal. The petitioner can
however file a motion to revive the petition if he/she disagrees with the archival or
feels ready to proceed with the petition. The period of appeal shall be five (5) working
days from the date of notice of the adverse judgment.
EFFECTS OF PARALLEL CRIMINAL AND ADMINISTRATIVE CASE
The amparo rule does not preclude the filing of separate criminal, civil and
administrative actions. If a criminal action is filed prior to the filing of a petition for
writ of amparo no separate petition for the writ of amparo shall be filed. The reliefs
under the writ shall be available by motion in the criminal case. The procedure under
the rule shall govern the disposition of other reliefs available under the writ of
amparo. If the criminal action is filed after a petition for the writ of amparo has
already been filed, the petition for writ of amparo shall be consolidated with the
criminal action.46 If a criminal action and a separate civil action are filed after a
petition for writ of amparo has already been filed, the petition shall be consolidated
with the criminal action. After consolidation, the procedure under the Amparo Rule
shall continue to apply in the disposition of the reliefs of the petition.

46 Section 23, Amparo Rule
41
THE AMPARO LANDMARK CASE IN PAGADIAN CITY
Unknown to many, the very first success case of the writ of amparo was the
release of Rowil Muasque, a Bayan Muna leader following the order of Judge
Reinerio Ramas of Pagadian, Zamboanga del Sur. He was abducted by the soldiers
belonging to the 53rd Infantry Battalion stationed in the same province. The military
did not deny having custody of Muasque, but claimed that the latter had waived his
right to question his detention. In due course, the army had no choice but to produce
him in court. After the first day of hearing on the petition, he was immediately
reunited with his family after missing for two weeks. Chief Justice Puno of the
Philippine Supreme Court lauded the counsel team for Munasque led by Atty.
Emiliano Deliverio.47
On the day of Muasques release, the relatives of 22-year old Luisito
Bustamante similarly filed a petition for writ of amparo before the Davao City
Regional Trial Court. A week after the filing of the petition, the writ achieved another
triumph. In ordering his release, Executive Judge Isaac Robillo, Jr. upheld
Bustamantes liberty and his basic rights as a civilian.
Responding to the order of the Supreme Court En Banc to hear a petition for
amparo, the Court of Appeals issued another writ to protect labor leader, Leny
Robios, an organizer of the Aguman Da Reng Maglalautang Capampangan and the
provincial chapter of the Kilusang Magbubukid ng Pilipinas. Leny Robios was the
alleged target of an attempted abduction by the military. But failing to find her during

47 Chief Justice Puno Lauds Writ of Amparos Victory, http://www.supremecourt.gov.ph/news/ courtnews
/2007/11/
42

a raid on their house, the military took Romulos, her brothers, as ransom for her
surrender. The Court of Appeals ordered the inspection of certain military
detachments and safe houses used as detention areas, in its search for the missing
brothers.
43
THE LANDMARK CASE OF AMPARO AT THE

SUPREME COURT
The first decision of the Philippine Supreme Court involving this new remedy
is Secretary of National Defense, et al. v. Raymund Manalo and Reynaldo Manalo,
penned by Chief Justice Reynato S. Puno.48
The case was an appeal from the decision of the Court of Appeals which
granted respondent brothers the privilege of the writ of amparo and ordered
petitioners Secretary of National Defense and Armed Forces of the Philippines Chief
of Staff to furnish respondents all official and unofficial reports of the investigation
undertaken in connection with their case; to confirm in writing the present places of
official assignment of two military personnel found involved in the matter
investigated, and to produce to the Court all medical reports, records, charts and
reports of any treatment given or recommended and medicines prescribed to said
respondents and the list of the attending medical personnel.
Respondents Manalo brothers were abducted from their houses by armed men
on February 14, 2006 and held in detention until they escaped on August 13, 2007.
The Court sustained the findings on the adduction, detention, torture and escape of the
respondents.
In disposing of the appeal, the Supreme Court examined the right to life,
liberty and security as recognized in Article III, Section 2 of the Philippine
Constitution as well as the Universal Declaration of Human Rights, the U.N.

48 G.R. No. 180906, October 7, 2008
44

Declaration on the Protection of All Persons from Enforced Disappearance, and The
International Covenant on Civil and Political Rights. It held that the right to security
of person is a guarantee of bodily and psychological integrity and security and that the
right of security of person exists independently of the right to liberty. The Supreme
Court also cited the European Court of Human Rights on its interpretation of the
right to security as not only prohibiting the State from arbitrarily depriving liberty,
but imposing a positive duty on the State to afford protection of the right to liberty.49
Applying these concepts, the Court then ruled that there was violation of the
right to security as freedom from threat to respondents life, liberty and security and
also a violation of the right to security as protection by the government. It then
proceeded to rule that the reliefs granted were appropriate and relevant and thereby
dismissed the petition.
The Manalo ruling is truly a landmark in Philippine jurisprudence and the fact
that it was a unanimous decision of the entire 15-member Court augurs well for the
future of the new remedy of Amparo in the Philippines.50

49
Kurt v. Turkey (1991), 27 E.H. R.R. 373
50 THE PHILIPPINE WRIT OF AMPARO: A NEW REMEDY FOR HUMAN RIGHTS, Adolfo S. Azcuna
45
CONCLUSION
THE STATE OF IMPUNITY BEFORE AND AFTER THE ADOPTION OF

THE WRIT OF AMPARO

Excluding the long list of unresolved cases of enforced disappearances and
extrajudicial killing where most of the alleged culprits are elements of the Philippine
military and police forces, more than 700 cases of modern-day deaths are blamed on
the lack of legal measures to protect activists and even ordinary citizens from
extralegal threats and deaths recorded as of 2007 alone. The list is even higher a
decade before the discussion of the amparo in the Supreme Court.
From the words of Chief Justice Puno during the amparo committee
proceedings,
Until the Second World War, the roots of human rights grew country-bycountry. The growth was necessarily uneven, for the seeds of human rights
sprout on different grounds differently. Some grounds were more suited than
the others, considering the readiness of their peoples culture and experience.
At this stage, the protection of human rights depended largely on the will and
pleasure of the sovereign ruler of each country. The horrors of the Holocaust,
however, shattered this dependency, for Hitler showed to the world that the
States themselves could be the predators of human rights.
It is beyond question that the very driving force of the pressure towards the
Supreme Court and the justices to adopt the amparo is the sky-rocketing numbers of
46

human rights violations especially enforced disappearances in the Philippines which
even included among its victims the son of one the countrys most important
historical figure in Press Freedom, Jonas Burgos, the son of Jose Burgos Jr.
No wonder that the Committee took note of Article 2 of the International
Convention for the Protection of all Persons from Enforced Disappearance which
states that:
For the purposes of this Convention, enforced disappearance is
considered to be the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or groups of persons
acting with the authorization, support or acquiescence of the State, followed
by a refusal to acknowledge the deprivation of liberty or by concealment of the
fate or whereabouts of the disappeared person, which place such a person
outside of the protection of the law.
The right to freedom from arbitrary deprivation of life has long been
recognized internationally and domestically. For the victims of extra-legal, arbitrary
and summary executions this right has now found judicial safeguards despite the
absence of clear positive legislation. As it is designed, the writ of amparo is a remedy
for the protection of the right to life, liberty, and security of a person.
So far, the remedy has resulted in a number of persons released from military
custody although many others are still unaccounted for. The number of extralegal
killings and enforced disappearances, however, which prompted the adoption of the
remedy, has since gone down considerably.51
BEYOND AMPARO

According to the National Union of Peoples Lawyers in the Philippines
(NUPL) the military has developed a template nationwidearguing 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. 52 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.
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 Courts assertion of
its constitutional powers to protect human rights including the promulgation of the

51
THE PHILIPPINE WRIT OF AMPARO: A NEW REMEDY FOR HUMAN RIGHTS, Adolfo S. Azcuna
52 THE WRIT OF AMPARO AS MECHANISM TO CURB IMPUNITY: The Case of the Philippines , Atty. Neri
47
48

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 systemthe
people . 53

On 28 September 2007, the Asian Human Rights Commission (AHRC)
commented on the Writ of Amparo and Habeas Data may still be insufficient to
resolve the problems of extralegal killings and enforced disappearances in the
Philippines. According to it, there must be cooperation from all parts of the
government and civil society. Though it responds to practical areas it is still
necessary that further action must be taken in addition to this. The legislative bodies,
House of Representatives and Senate, should also initiate its own actions promptly
and without delay. They must enact laws which ensure protection of rightslaws
against torture and enforced disappearance and laws to afford adequate legal remedies
to victims.
54
It must be noted that the Rule on the Writ of Amparo is merely procedural
and cannot increase, diminish nor modify substantive constitutional rights. The
adoption of the rule by the Supreme Court is merely an exercise of an institutional
prerogative by the judiciary.
This can reflect in some way the sad state of

53
54
Ibid.
http://en.wikipedia.org/wiki/Asian_Human_Rights_Commission
49
performance of Congress in utilizing the latters law-making mandate. The Philippine

legislature has therefore fell short in its task of passing laws that shall protect its
people against torture and enforced disappearances and provide the people access to
legal remedies and urgent resolution of cases.
The Philippine government per se has the duty to take actions to enact
adequate laws to comply with its international obligations being an elected member of
the United Nations Human Rights Council.
The Philippines has not yet fulfilled its role under the United Nations
Convention Against Torture, which requires as a State party to the Convention to
enact the corresponding domestic law. For many years, the proposed laws against
torture and enforced disappearance have been pending before the Legislature. Sadly,
there are so far no indications that it would be acted upon soon. The government still
needs even to ratify the instruments on International Convention for the Protection of
All Persons from Enforced Disappearance and to subsequently enact corresponding
laws on the matter. Its reluctance to be a State party to the said convention, manifests
its insincerity to face the problem head- on. It is hoped that the writ of amparo, so
noble in its vision, will not be abused by scrupulous criminals or be circumvented by
the military. In the wake of the full enforcement of the Human Security Act of 2007,
the improper enforcement of its many ambiguous provisions will surely erode many
of our civil liberties. Feared to be a draconian law, amparo stands the best vanguard of
the liberties threatened to be transgressed and trampled upon. 55

Gamboa
Joan Lou P.
50

BIBLIOGRAPHY
Bernas, Joaquin S.J. (1995). The Intent Of The 1986 Constitution Writers
__________________ (2008). The Mexican Amparo, Philippine Daily Inquirer,
http://opinion.inquirer.net/inquireropinion/columns/view_article.php?article_Id.=862
32
Colmenares, Atty. Neri Javier (2007). Initial Analysis on the Philippine Amparo,
http://www.bulatlat.com/2007/10/initial-analysis-philippine-amparo
__________________________ (2009). The Writ Of Amparo As Mechanism To Curb
Impunity: The Case Of The Philippines , Commission VI On Accountability For
International Crimes: Fighting Impunity (IADL Congress, Hanoi, June 6-10, 2009)
Gamboa, Joan Lou P. (2007). Creative Rule-Making In Response To Deficiencies Of
Existing Remedies
Pangalangan, Raul (2008). Passion for a Reason, Judicial Activism and its limits,
Philippine Daily Inquirer, February 1, 2008
Puno, Reynato S. (2007). No Turning Back on Human Rights, delivered at the
Luce Auditorium, Silliman University, Dumaguete City, during its University
Convocation and Presentation of the 2007 Outstanding Silliman University Law
Alumni Association (SULAW) Award to Prof. Rolando V. del Carmen and 19th
SULAW General Assembly and Alumni Homecoming, August 25, 2007.
Chief Justice Puno Lauds Writ of Amparos Victory.
http://www.supremecourt.gov.ph/news/ courtnews/2007/11/
Free Legal Assistance Group (FLAG) (2006). Primer on the Writ of Amparo
UN Manual on the Effective Protection and Investigation of Extralegal,
Arbitrary and Summary Executions, ST/CSDHA/12-1991; Model Protocol for a
Legal Investigation of Extralegal, Arbitrary and Summary Executions available
at http://www.icrc.org (last accessed August 8, 2007).
Federal Practice and Procedure ,G.R. No. 129742, 16 September 1998; citing 32
Am. Jur. 2d, , 505, p. 936 and People vs. Smith, 205 P. 2d 444.
In the Matter of the Petition for the Writ of Amparo in Favor Romulos Robios,
Ryan Supan, Leny Robios and Lolita Robios v. Gloria Macapagal Arroyo, Gen.
Hermogenes Esperon, P/Dir. Gen. Avelino Razon, Lt. Col Edison Caga, Lt. Eric
Bulosan, et. al., G.R. No. 180160, 31 October 2007, Minute Resolution.
51
Extra-Judicial Killings and Enforced Disappearances: Where Do We Go From

Here? http:// ca.supremecourt.gov.ph/index.
International Covenant on Civil and Political Rights, G.A. Res. 2200A, 21 U.N.
GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966) entered into force Mar. 23,
1976, ratified by the Philippines in 1986.
Report of the Secretary-General, Extra-legal, Arbitrary and Summary Executions
and Measures for Their Prevention and Investigation, U.N. Doc. E/AC.57/1988/5, at
21 (1988).
The Constitution of the Republic of the Philippines; 1987
The Constitution of Argentina; 1994

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THE WRIT OF AMPARO AND ITS IMPACTS TO THE CULTURE

OF IMPUNITY IN THE PHILIPPINES

October 25, 2014

It is without doubt that a culture of impunity has plagued the Philippine

To address media and activist killings, the Philippine government created an

Administrative Order 157 [21August 2006]

Art. VIII, Sec. 5 (5), Philippine Constitution

THE WRIT OF AMPARO, ITS ORIGIN AND HISTORY

The writ of amparo (which means protection) is of Mexican origin. Its

But when adopted by the

Art 103, 107 , The Mexican Constitution

6 CREATIVE RULE-MAKING IN RESPONSE TO DEFICIENCIES OF EXISTING REMEDIES, Joan Lou P.

Constitutional Convention. His proposition, unfortunately, was not adopted. He got

THE WRIT OF AMPARO AND THE GHOSTS OF THE

Section 18, Art VII, Philippine Constitution of 1987

limitations has frustrated many a lawyer in asserting the defenses of a persons

Rules of Court, Rule 102, S3

139 SCRA 349 (1985)

THE WRIT OF AMPARO AND ITS TAXONOMY

For the judicial review of administrative actions (called amparo

(called amparo agrario). 19

According to Atty. Neri Colmenares of the Union of Peoples Lawyers, the

Supra, Note 35.

In cases of actual violations, the Philippine version of amparo can be invoked

Amparo can be a remedy if a right to life is violated or threatened and a party

Father Joaquin G. Bernas, The Mexican Amparo, Philippine Daily Inquirer

guarantees recognized by the Constitution, treaties or laws, with open arbitrariness or

Article 43, 1994 Constitution of Argentina

WRIT OF AMPARO RULES OF PROCEDURES

WHO MAY FILE

2. By any QUALIFIED person or entity IN THE FOLLOWING ORDER AND

a) Any member of the immediate family of the aggrieved party, namely:

3. parents. There seem to be no order of preference among the

b) Any ascendant, descendant or collateral relative of the aggrieved party

c). If there is no known member of the immediate family or relative of the

concerned organization or association

Section 2, Amparo Rule

WHERE AND WHEN TO FILE

3. The COURT OF APPEALS;

An outstanding feature of this Philippine version of the writ of amparo is the

COURT FILING FEE

CONTENTS OF THE PETITION

Section 4, The Rule on the Writ of Amparo

32 CREATIVE RULE-MAKING IN RESPONSE TO DEFICIENCIES OF EXISTING REMEDIES, Joan Lou P.

b) verified by the petitioner

status thereof; and

ACTION OF THE COURT

Supra, Note 68, S6

The writ imposes a heftier responsibility on the part of the respondents. A

1. before such court;

1. before the Supreme Court,

2. Any justice of the Supreme Court, or

3. With the Sandiganbayan, or

4. The Court of Appeals, or

(h) Motion to declare the respondent in default;

INTERIM RELIEF UNDER THE WRIT OF AMPARO

This immediately puts a legal responsibility on the courts to

frown on claims by subjects that they want to be in military custody as a testimony

This is further emphasized when the subjects initially

The Case of the Philippines , Atty. Neri

However, the rule imposes a higher standard of diligence on public officers or

employees than on private individuals or entities. If the respondent is a private

Supra, Note 68, S17