PRIMER

ON
THE RULE ON THE WRIT OF AMPARO

by:

Prof. Arturo M. de Castro

(Pre-Bar Reviewer, UP Law Center, National Bar

Review Consortium, Manila Law College; Executive
Director, MLC Tutorial Bar Review; Professor of Law,
Ateneo, Lyceum, MLC)

1. What is the Writ of Amparo?

Ans: It is a remedy available to any person whose right to life, liberty and
security is violated or threatened with violation by an unlawful act or
omission of a public official or employee, or of a private individual or
entity, including extra-legal killings and enforced disappearances or
threats thereof (Sec. 1).

2. What is the concept of “Enforced Disappearance”?

Ans: The rule on the Writ of Amparo does not contain a definition of
enforced disappearance. Under the Constitution, “[t]he Philippines
… adopts the generally accepted principles of International Law as
part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity of nations” (Sec.
2, Art. II). Hence, the following definition of “enforced
disappearance of persons” as defined in the Rome Statute of the
International Court of Justice may be applied in the Philippines.

“Enforced disappearance of persons” means the arrest, detention

or abduction of persons by, or with the authorization, support or
acquiescence of, a State or a political organization, followed by a
refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of those persons, with the
intention of removing them from the protection of the law for a
prolonged period of time. (Sec. 1 [i], Article 7 [Crimes Against
Humanity], Rome Statute of the International Court of Justice)

3. Is the Philippines a party to the Rome Statute of the International Criminal

Court?

Ans: No, for lack of ratification by the President with the concurrence of
2/3 of the members of the Senate of the Philippines. Although the
Statute was already signed by the Philippines on December 28,
2000 thru Charge d’ Affairs Enrique A. Manalo of the Philippine
Mission to the United Nations and submitted to President Gloria
Macapagal Arroyo, she refuses to ratify and send it to the Senate
for concurrence.
 The Senate President filed a Petition for mandamus to compel the
President to send the Rome Statute to the Senate for ratification.
The Supreme Court held in Pimentel, Jr. vs. Office of the
Executive Secretary, G.R. No. 158088, July 6, 2005, that the
ratification of a treaty is an exclusive executive prerogative
involving a political question and the President cannot be
compelled by a Writ of Mandamus to ratify it and send it to the
Senate for concurrence by 2/3 of its Members.

‘The Rome Statute established the

International Criminal Court which “shall have the
power to exercise its jurisdiction over persons for the
most serious crimes of international concern x x x and
shall be complementary to the national criminal
jurisdictions.” Its jurisdiction covers the crime of
genocide, crimes against humanity, war crimes and
the crime of aggression as defined in the Statute. The
Statute was opened for signature by all states in
Rome on July 17, 1998 and had remained open for
signature until December 31, 2000 at the United
Nations Headquarters in New York. The Philippines
signed the Statute on December 28, 2000 through
Charge d’ Affairs Enrique A. Manalo of the Philippine
Mission to the United Nations. Its provisions, however,
require that it be subject to ratification, acceptance or
approval of the signatory states.

Petitioner filed the instant petition to compel

the respondents – the Office of the Executive
Secretary and the Department of Foreign Affairs – to
transmit the signed text of the treaty to the Senate of
the Philippines for ratification.’ (462 SCRA 628)

xxx xxx xxx

‘It should be emphasized that under our

Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate.
The role of the Senate, however, is limited only to
giving or withholding its consent, or concurrence, to
the ratification. Hence, it is within the authority of the
President to refuse to submit a treaty to the Senate or,
having secured its consent for its ratification, refuse to
ratify it. Although the refusal of a state to ratify a treaty
which has been signed in its behalf is a serious step
that should not be taken lightly, such decision is within
the competence of the President alone, which cannot
be encroached by this Court via a writ of mandamus.
This Court has no jurisdiction over actions seeking to
enjoin the President in the performance of his official
duties. The Court, therefore, cannot issue the writ of
mandamus prayed for by the petitioners as it is
beyond its jurisdiction to compel the executive branch
of the government to transmit the signed text of Rome
Statute to the Senate.’

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 3.1. To whom is the President accountable for refusal to ratify the Rome
Statute?

The decision of the President not to ratify the Rome Statute is a political
question for which the President is answerable to the sovereign people. Under
the principle of public accountability and the right of the people to information on
matters of public concern, the President must explain to the people the reason
for refusal to accede to the treaty.

4. Who may file the Petition for a Writ of Amparo?

Ans: The petition may be filed by the aggrieved party or by any qualified
person or entity in the following order:

(a) Any member of the immediate family, namely; the spouse,

children and parents of the aggrieved party;

(b) Any ascendant, descendant or collateral relative of the

aggrieved party within the fourth civil degree of consanguinity or
affinity, in default of those mentioned in the preceding
paragraph; or

(c) Any concerned citizen, organization, association or institution, if

there is no known member of the immediate family or relative of
the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of

all other authorized parties to file similar petitions. Likewise, the
filing of the petition by an authorized party on behalf of the
aggrieved party suspends the right of all others, observing the order
established herein (Sec. 2)

5. When and where may the Petition be filed? Where is it enforceable?

Ans: 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. (Sec. 3)

6. Where is the Writ of Amparo enforceable?

Ans: The writ shall be enforceable anywhere in the Philippines. (Sec. 3,

Last Sentence)

7. Where is the Writ of Amparo returnable?

Ans: When issued by a Regional Trial Court or any judge thereof, the
writ shall be returnable before such court or judge. When issued by
the Sandiganbayan or the Court of Appeals or any of their justices,
it may be returnable before such court or any justice thereof, or to
any Regional Trial Court 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, it may be

returnable before such Court or any justice thereof, or before the

Prof. Arturo M. de Castro 3 12/6/2019

 Sandiganbayan or the Court of Appeals or any of their justices, or
to any Regional Trial Court of the place where the threat, act or
omission was committed or any of its elements occurred.

8. Is the Petition subject to payment of docket fees and other lawful fees?

Ans: No. The Petitioner shall be exempted from the payment of the
docket and other lawful fees when filing the petition. (Sec. 4)

8.1. When should the petition be acted upon?

Ans: Immediately upon its filing (Sec. 4, last Sentence)

9. What are the contents of the Petition?

Ans: The petition shall be signed and verified and shall allege the
following:

(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent

responsible for the threat, act or omission, or, if the name is
unknown or uncertain, the respondent may be described by an
assumed appellation;

(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

(f) The relief prayed for.

The petition may include a general prayer for other just and
equitable reliefs. (Sec. 5)

10. When should the Writ be issued?

Ans: Immediately upon filing.

Upon the filing of the petition, the court, justice or judge shall
immediately order the issuance of the writ if on its fact it ought to
issue. The clerk of court shall issue the writ under the seal of the
court; or 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. (Sec. 6)

11. When should the summary hearing be conducted?

Prof. Arturo M. de Castro 4 12/6/2019

 Ans: Not later than 7 days from its issuance.

The writ shall also set the date and time for summary hearing of the
petition which shall not be later than seven (7) days from the date
of its issuance. (Sec. 6, 2nd par.)

12. What is the sanction for refusal to issue or serve the Writ?

Ans: Contempt and other disciplinary action.

The Writ shall be served upon the respondent by a judicial officer or

by a person deputized by the court, justice or judge who 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. (Sec. 8)

13. When should the Writ be returned?

Ans: Within 72 hours from its issuance (Sec. 9)

14. What are the contents of the verified return?

Ans: The verified written return together with supporting affidavits shall,
among others things, contain the following:

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

(b) The steps or actions taken by the respondent to determine the

fate or whereabouts of the aggrieved party and the person or
persons responsible for the threat, act or omission;

(c) All relevant information in the possession of the respondent

pertaining to the threat, act or omission against the aggrieved
party; and

(d) If the respondent is a public official or employee, the return shall

further state the actions that have been or will still be taken:

(i) to verify the identity of the aggrieved party;

(ii) to recover and preserve evidence related to the death or

disappearance of the person identified in the petition
which may aid in the prosecution of the person or
persons responsible;

(iii) to identify witnesses and obtain statements from them

concerning the death or disappearance;

(iv) to determine the cause, manner, location and time of

death or disappearance as well as any pattern or practice
that may have brought about the death or disappearance;

Prof. Arturo M. de Castro 5 12/6/2019

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

(vi) to bring the suspected offenders before a competent

court.

The return shall also state other matters relevant to the

investigation, its resolution and the prosecution of the case.

A general denial of the allegations in the petition shall not be

allowed. (Sec. 9)

15. What is the effect of failure to plead certain defenses?

Ans: They shall be deemed waived. (Sec. 10)

16. What are the prohibited pleadings under the Rule on the Writ of Amparo?

Ans: The following pleadings and motions are prohibited:

(a) Motion to dismiss;

(b) Motion for extension of time to file return, opposition, affidavit,

position paper and other pleadings;

(c) Dilatory motion for postponement;

(d) Motion for a bill of particulars;

(e) Counterclaim or cross-claim;

(f) Third-party complaint;

(g) Reply;

(h) Motion to declare respondent in default;

(i) Intervention;

(j) Memorandum;

(k) Motion for reconsideration of interlocutory orders or interim relief

orders; and

(l) Petition for certiorari, mandamus or prohibition against any

interlocutory order.

17. What is the effect of failure to return the Writ?

Ans: The Petition shall be heard ex-parte. (Sec. 12)

18. What is the nature of the hearing on the Petition?

Ans: Summary Hearing – The hearing on the petition shall be summary.

However, the court, justice or judge may call for a preliminary
conference to simplify the issues and determine the possibility of
obtaining stipulations and admissions from the parties. (Sec. 13)

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 19. What are the interim reliefs that may be granted upon the filing of the
Petition and anytime before final judgment?

Ans: The following:

(a) Temporary Restraining 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. If
the petitioner is an organization, association or institution
referred to in Section 3(c) of this Rule, the protection may be
extended to the officers involved.

The Supreme Court shall accredit the persons and private

institutions that shall extend temporary protection to the
petitioner or the aggrieved party and any member of the
immediate family, in accordance with guidelines which it shall
issue.

The accredited persons and private institutions shall comply

with the rules and conditions that may be imposed by the court,
justice or judge.

(b) Inspection Order – The court, justice or judge, upon verified

motion and after due hearing, may order any person in
possession or control of a designated land or other property, to
permit entry for the purpose of inspecting, measuring,
surveying, or photographing the property or any relevant object
or operation thereon.

The motion shall state in detail the place or places to be

inspected. It shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the enforced
disappearance or whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of

the privileged nature of the information, the court, justice or
judge may conduct a hearing in chambers to determine the
merit of the opposition.

The movant must show that the inspection order is necessary to

establish the right of the aggrieved party alleged to be
threatened or violated.

The inspection order shall specify the person or persons

authorized to make the inspection and the date, time, place and
manner of making the inspection and may prescribe other
conditions to protect the constitutional rights of all parties. The
order shall expire five (5) days after the date of its issuance,
unless extended for justifiable reasons.

(c) Production Order – The court, justice or judge, upon verified

motion and after due hearing, may order any person in
possession, custody or control of any designated documents,
papers, books, accounts, letters, photographs, object or tangible

Prof. Arturo M. de Castro 7 12/6/2019

 things, or objects in digitized or electronic form, which constitute
or contain evidence relevant to the petition or the return, to
produce and permit their inspection, copying or photographing
by or on behalf of the movant.

The motion may be opposed on the ground of national security

or of the privileged nature of the information, in which case the
court, justice or judge may conduct a hearing in chambers to
determine the merit of the opposition. The court, justice or judge
shall prescribe other conditions to protect the constitutional
rights of all the parties.

(d) Witness Protection Order – The court, justice or judge, upon

motion or motu proprio, may refer the witnesses to the
Department of Justice for admission to the Witness Protection,
Security and Benefit Program, pursuant to Republic Act No.
6981.

The court, justice or judge may also refer the witnesses to other
government agencies, or to accredited persons or private
institutions capable of keeping and securing their safety.

20. What interim reliefs are available to the respondent?

Ans: Inspection Order and Production Order. (Sec. 15.)

21. Distinguish standard of diligence required between the respondent who is

a private individual or entity and the respondent who is a public official or
employee.

Ans: Ordinary diligence for private respondent and extra-ordinary

diligence for public officer or employee, for whom presumption of
regularity of performance of duty is not available as a defense
because he is presumed negligent if unable to prove extra-ordinary
diligence. (Sec. 17)

22. What is the quantum of proof required?

Ans: Substantial evidence. (Sec. 17)

23. When should the judgment be made, and what shall the judgment be?

Ans: Sec. 18. Judgment – The court shall render judgment within ten
(10) days from the time the petition is submitted for decision. 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.

24. When is the final judgment or order under the Rule appealable and what is
the period of appeal?

Ans: Any party may appeal from the final judgment or order to the
Supreme Court under Rule 45. The appeal may raise questions of
fact or law or both.

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 The period of appeal shall be five (5) working days from the date of
notice of the adverse judgment.

The appeal shall be given the same priority as in habeas corpus

cases. (Sec. 19)

25. What is the effect of failure to proceed?

Ans: The court shall not dismiss the petition, but shall 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. (Sec. 20, 1st par.)

26. When should an archived petition be dismissed?

Ans: A periodic review of the archived cases shall be made by the

amparo court that shall, motu proprio or upon motion by any party,
order their revival when ready for further proceedings. The petition
shall be dismissed with 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. (Sec. 20, 2nd par.)

27. What is the effect of filing a criminal action?

Ans: When a criminal action has been commenced, no separate petition

for the writ shall be filed. The reliefs under the writ shall be
available by motion in the criminal case. (Sec. 22)

The procedure under this Rule shall govern the disposition of the
reliefs available under the writ of amparo.

28. What is the effect on pending Petition for Writ of Amparo of the
subsequent filing of a criminal action?

Ans: When a criminal action is filed subsequent to the filing of a petition

for the writ, the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed

subsequent to a petition for a writ of amparo, the latter shall be
consolidated with the criminal action.

After consolidation, the procedure under the Rule on Amparo shall

continue to apply to the disposition of the reliefs in the petition.
(Sec. 23)

29. What is the application of the Rules of Court on Petition for Writ of
Amparo?

Ans: Suppletory Application of the Rules of Court. – The Rules of

Court shall apply suppletorily insofar as it is not inconsistent with
the Rule on Amparo. (Sec. 25)

30. Has the Rule on Writ of Amparo retroactive effect on cases of extralegal
killings and enforced disappearance or threats thereof pending in the trial
and the appellate courts?

Prof. Arturo M. de Castro 9 12/6/2019

 Ans: Yes, because it does not affect substantive rights (Sec. 24) and is
expressly given retroactive effect (Sec. 26).

31. What is the effectively of the Rule?

Ans: October 24, 2007 (Sec. 27)

CONSTITUTIONAL ISSUES ON
THE RULE ON THE WRIT OF AMPARO

Certain constitutional issues may crop up relative to the Rule on Amparo,

to wit:

1. Does the Writ of Amparo have constitutional moorings?

Unlike the Writ of Habeas Corpus which has an established scope and
purpose under the Constitution, the Writ of Amparo, dealing with “enforced
disappearances”, as defined in the Rome Statute of the International Criminal
Court, is not supported by any specific provisions of the Constitution. It may be
argued that the Rule of the Writ of Amparo is a usurpation of legislative function
by the Supreme Court in the guise of rule making.

2. The Rule on the Writ of Amparo may be challenged for being vague and
overbroad and for lack of sufficient standards for the exercise of the power to
issue Inspection Order and Production Order, and for possibly being inconsistent
with the provisions of the Constitution against unreasonable searches and
seizures.

The objective of the Supreme Court in issuing the Rule on the Writ of
Amparo is laudable to address the perennial problem of extra-legal killings and
enforced disappearances. The above constitutional issues must be ventilated
and resolved by the academe, the Bar and ultimately, by the Bench. What it is
is a procedural rule issued by the Supreme Court. The latter, as guardian of
constitutional processes and final arbiter of constitutional questions, is expected
by the public to set to rest all the related constitutional questions in the exercise
of judicial statesmanship to protect civil and political rights and the blessings of
peace, security and stability in our republican and democratic society.

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