Court News Flash October 2007

CJ Puno: Amparo, Best Legal Weapon to Protect Peoples Constitutional Rights

Posted: October 16, 2007 By Jay B. Rempillo

Chief Justice Reynato S. Puno today underscored to Regional Trial Court Judges of the National Capital Region the greatest legal weapon to protect the constitutional right of our people the writ of amparo is now in their hands. In a lecture forum on the Rule on the writ of amparo for RTC Judges of the NCR, Chief Justice Puno described the writ of amparo as the Judiciarys humble offering to the altar of human rights in the Philippines. This is our offering, all of us who are part of todays Philippine Judiciary. They can criticize the Judiciary with real and imagined complaints, but they cannot charge it with inertness, with paralysis and with amnesia in protecting the constitutional rights of our people, said Chief Justice Puno in his opening remarks. The writ of amparo is the greatest legal weapon to protect the constitutional rights of our people. The protection of our people depends on how well you will wield this weapon, Chief Justice Puno declared. Organized by the Philippine Judicial Academy (PHILJA), the lecture forum was held today at the Court of Appeals Auditorium, Centennial Building, CA, Ma. Orosa Street., Manila. Justice Adolfo S. Azcuna gave the lecture proper on the amparo Rule. He was joined by Justices Ma. Alicia Austria-Martinez and Dante O. Tinga during the panel discussion and open forum. The writ of amparo, the Rule of which will take effect this October 24, is the latest remedy available to any person whose right to life, liberty, and security has been violated or is threatened with violation by an unlawful act or omission by public officials or employees and by private individuals or entities. The Rule was promulgated pursuant to the recommendations from the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances called by Chief Justice Puno. The Summit, Chief Justice Puno pointed out, initiated the global search for the best legal armor to fight extralegal killings and enforced disappearances. The writ of amparo, which had originated in Mexico in the 19th century, was more comprehensive than the writ of habeas corpus that developed as part of the common-law remedies in England. The PHILJA seminar was part of the Supreme Courts efforts in educating the public about the writ of amparo in the wake of encouraging feedback from various sectors, including both local and foreign media. Last October 4, Justice Azcuna talked on Supreme Court Remedies and Proposals Towards A More Effective Court-Related Process for the Protection of Human Rights during a discussion dubbed as Forum on the Expanded Role of the Supreme Court on Human Rights Protection which was held at the Penthouse, UP Law Center in Diliman, Quezon City. Justice Antonio Eduardo B. Nachura gave a lecture on the Rule on the writ of amparo to the officers and personnel of the Department of National Defense (DND) and the Armed Forces of the Philippines (AFP) at the AFP Commissioned Officers Club, Camp General Emilio Aguinaldo, Quezon City last October 11. The amparo lecture at the DND-AFP was being held upon the request of Defense Secretary Gilberto C. Teodoro, Jr. who said that an enlightened DND and AFP will be in a better positioin to help the justice system in providing an expeditious resolution of the potential controversies raised before it under the

I remember several bar exams ago that a question was asked in Political Law about the writ of amparo. Although we may have heard or read about it in lectures and publications that mention it in passing, amparo is still somewhat novel for lawyers and law students alike. Nope, I am not about to discuss here the etymology or history of the term. Suffice it to say that in Latin American countries, the writ has already been widely used since the 19th century as an effective antidote against oppressive regimes. Little did we realize that the writ with a feminine sounding name is now, in the words of the Chief Justice himself, the greatest legal weapon to protect the constitutional rights of our people. Promulgated pursuant to the recommendations of the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances held last July 16 to 17, 2007 at the Manila Hotel, this rule is seen as the Supreme Courts response to the alarming spate of human rights violations that have taken place since 2001 which, observers say, comes as a close second to those committed during the Marcos era. In a nutshell, the petition for the issuance of a writ of amparo is 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. The writ shall cover extralegal killings and enforced disappearances or threats thereof (Sec. 1 of the Rule). Among the significant portions of the rule are the following: 1. The petitioner is exempted from the payment of the docket and other lawful fees, thereby giving him full and free access to courts authorized to issue the writ. 2. Technically, the petition can be filed on any day and at any time with the Regional Trial Court of the place where the violation was committed or with the Sandiganbayan, Court of Appeals, or the Supreme Court. 3. The writ is enforceable anywhere in the Philippines. 4. The respondent named in the writ, after being served therewith, must not only show in his return that he did not violate or threaten with violation the human rights of the aggrieved party but he must likewise show the steps taken by him to determine the whereabouts of the aggrieved party and the person or persons responsible for the violation. This simply means that a general denial by the respondent of the allegations in a petition for a writ of amparo, unlike in habeas corpus, is no longer sufficient to absolve him from responsibility. 5. The respondent must raise in his return all possible defenses available to him. Otherwise, they will be deemed waived. 6. The hearing of the writ, which is summary in nature, shall be scheduled not later than seven (7) days from the date of its issuance. 7. The court, upon the filing of the petition, may grant temporary reliefs to the petitioner or the aggrieved party like temporary protection orders, inspection orders, production orders, witness protection orders and the like. 8. If the respondent happens to be a public official or employee, he cannot evade liability or responsibility by invoking the presumption of regularity in the performance of duty. 9. The respondent who refuses to make a return or who makes a false return or otherwise disobeys the lawful process or order of the court shall be punished for contempt either by imprisonment or fine. In terms of degree of liability, the writ of amparo requires a higher standard of diligence on public officers and employees than on private individuals and entitites. This is but understandable, considering the kind of influence military and police authorities wield on government institutions that may only

lead to cover-ups and whitewashed investigations. The promulgation of the writ of amparo comes at a crucial period in our history when the administration of President Gloria Macapagal-Arroyo is hounded left and right with accusations of extrajudicial killings and abductions of activists and journalists. Now, this question comes to mind: is this an indication that President Arroyo has not been doing enough to bring the perpetrators to the bar of justice considering that the initiative had to come not from the executive but from the so-called weakest branch of government which is the judiciary? Extra-legal murders and abductions whether for personal or political reasons definitely have no place in a democratic country such as ours. It therefore behooves the government, particularly the Chief Executive, to be in the forefront in the campaign to preserve and protect human rights irrespective of political ideology. While the new rule on the writ of amparo may be the first big step at minimizing violations of human rights, it is only as good as the people tasked to enforce its provisions. Without the sincere and active cooperation of all sectors of society, the efforts of the Chief Justice - no matter how noble - may only go for naught. Vigilance is the key.

The Mexican amparo By Fr. Joaquin G. Bernas, S.J. Inquirer First Posted 00:20am (Mla time) 09/03/2007 Filed Under: Human Rights, Laws MANILA, Philippines - Several bar examinations ago the first item in the Bar Examination Questions for Political Law was What is a writ of amparo? There was a lot of head scratching among the examinees upon seeing the question. Almost nobody knew anything about the animal or had ever heard about it. But now the writ of amparo has become a frontpage subject and might be an important item in the Bar Examinations after this year. Chief Justice Reynato Puno has shown himself to be passionately committed to the protection of human rights. In his effort to find ways of strengthening the protection, he has started exploring the potential of the writ of amparo to fill the gaps in the mantle of protection offered by current law and jurisprudence. For this purpose I understand that he has commissioned my classmate and friend Justice Dolf Azcuna to study what the Supreme Court can do about making a writ of amparo effective in the Philippines. Fittingly so, since it is no secret that it was Justice Azcuna as Bar Examiner several years ago who surprised the examinees with the question about the writ of amparo. He probably knows more about it than any lawyer or jurist in the Philippines. At any rate, what is the writ of amparo? Amparo simply means protection. The recurso de amparo is an all-purpose remedy very much in use in the Mexican legal system. It is, in the words of a justice of the Mexican Federal

Supreme Court, one piece of Mexicos self-attributed task of conveying to the worlds legal heritage that institution which, as a shield of human dignity, her own painful history conceived. The writ has been described as the most Mexican institution of the whole of positive Mexican law. The reference to the painful history as the mother of the writ of amparo might discourage those who wish to introduce it into the Philippines. Some in fact would dismiss the Latin American amparo on the argument that the caudillos would never allow the development of an effective legal theory in the area of political law. Scholars have pointed out that between 1935 and 1975 Latin America experienced more than one hundred successful coups and many more unsuccessful oneson an average of more than twelve coups per country. Nevertheless this should not dissuade us from exploring the potential of the Latin American writ. After all, we still lag far behind in terms of number of coups! Mexico is the birthplace of amparo. The first thing to notice about it is that it is expressly provided for in the Mexican Constitutioncurrently in Articles 103 and 107. How the system got into the Constitution is itself historically interesting. The first stage of its development was philosophical. At the heart of amparo is the idea of judicial review of governmental action. It is said that the idea came to Mexico under the strong influence of American thought especially through the arrival in Mexico of the Spanish translation of Alexis de Tocquevilles Democracy in America. This happened in 1837, three years before the appearance of amparo. The American idea, born in the context of revolution against a colonial power, found a responsive chord in the new nations of Latin America which had long experienced colonial rule. The idea eventually found its way into the Mexican Constitution initially through the instrumentality of a federal politician named Manuel Crecencio Rejon. Rejon returned to his native state of Yucatan which had then seceded after a rebellion from the rest of Mexico. There he headed a central constitutional reform commission where he proposed to include a judicial review procedure. His aim was to give state courts the power to protect individuals against state abuses. Rejon eventually returned to Mexico City where he participated in the drafting of a new Constitution. He brought with him his Yucatan idea. But it was mainly Mariano Otero who pushed what came to be known as the Otero Formula and which became Article 25 of the new Mexican Constitution. Article 25 contained the heart of amparo. It said: The Courts of the Federation will protect [amparn] any inhabitant of the Republic in his exercise and conservation of those rights conceded to him by the Constitution and the constitutional laws, against all assaults of the Legislative and Executive Branches, on the federal as well as the state levels . . . The formula has since developed into an all-purpose multi-faceted amparo: (a) the Liberty Amparo (amparo de libertad); (b) the Constitutionality Amparo (amparo contra leyes); (c) the Judicial or Cassation Amparo, aimed at the constitutionality of a judicial interpretation; (d) the Administrative Amparo (amparo como contencioso-administrativo); and (e) the Agrarian Amparo (amparo en matera agraria, ejidal y comunal).

The Mexican amparo basically takes the form of judicial review. Much of what it is designed for is already covered by our legal system. But what interests us most is the amparo de libertad, which is the original amparo and which goes beyond the protection given by the traditional writ of habeas corpus. Our Constitution has one open-ended provision which, in tandem with the Bill of Rights and the Covenant on Civil and Political Rights, can accommodate expansion. The provision says that the Supreme Court shall Promulgate rules concerning the protection and enforcement of constitutional rights . . . This is the seed that the Chief Justice hopes to nurture into a Philippine recurso de amparo that is fast, simple and efficacious.