This paper is an initial study of the writ of amparo, which has yet to become effective. Considering that the Supreme Court has not yet decided on any case involving the writ, it is unclear how certain provisions will be interpreted by the Court.
BY NERI JAVIER COLMENARES
Spokesperson, Counsels for the Defense of Liberties (CODAL)
Posted by Bulatlat
Vol. VII, No. 36, October 14-20, 2007
On September 25, 2007 the Supreme Court issued AM No. 07-9-12 promulgating the Rule on the “Writ of Amparo.” The rule is to take effect on October 24, 2007 although it will also apply retroactively to “cases involving extra legal killings and enforced disappearance or threats thereof pending in the trial and appellate courts”. Under Section 26 this rule is applicable to pending habeas corpus cases including those on the disappearance of, among others, Jonas Burgos, Karen Empeño, Shirley Cadapan and Luisa Posa.
This paper is an initial study of this very new rule, which has yet to become effective. Considering that the Supreme Court has not yet decided on any case involving the writ, it is unclear how certain provisions will be interpreted by the Court. This paper, therefore, although recognizing that the rule does provide many opportunities for redress for victims of human rights violations, does not contain any conclusion or judgment on whether the Rule will be effective in addressing the state of impunity resulting from the unabated extrajudicial killings and enforced disappearance.
Judging from the consistent position of President Gloria Arroyo and the Armed Forces of the Philippines (AFP) of disregarding court decisions, refusing to comply with court orders or blaming the New People’s Army (NPA) for the killings and disappearances, there is an apprehension that the provisions of the very Writ will be used by the Executive branch to render it ineffective by circumventing its rules and court orders or using the writ of amparo to deflect attention from their members accused of human rights abuses. It is hoped that the Supreme Court will not allow the Writ to be abused or misused by the very suspects themselves to the detriment of justice and the victims of human rights
Nature of the Writ under Section 1
The nature of the writ is defined in Section 1 as a remedy “available to any person whose right to life, liberty or security” is violated or “threatened with violation by an unlawful act or omission by a public official or employee or of a private individual or entity”. Unlike the other amparos which covers violation of constitutional rights in general, the rule seems to limit the justiciable issues to a limited number of rights. This results in various possible interpretations.
Firstly, property rights are not covered by the writ, a possible deviation from the Mexican amparo which allows the writ on issues involving agrarian disputes. The introduction of the legal notion of “security” however, may be broadly defined to include economic rights since security includes rights pertaining to livelihood, economic well being and other economic rights. It possible though, that the rule will only be limited to civil and possibly, political rights. It is noteworthy that the Philippine amparo did not follow the Mexican “variation” which provides relief for violation of rights to life, liberty “and human dignity” presumably because of the breadth of the notion of ‘”dignity.”
Secondly, the writ includes protection of “liberty” which may include deprivation of liberty previously covered by habeas corpus petitions. It is unclear how the rule will differentiate the applicability of habeas corpus and amparo. In Chile for example, there is no difference between amparo and habeas corpus petitions. The amparo rules in Argentina and Mexico however, clearly state that deprivation of liberty is not covered by amparo but is remedied through a habeas corpus petition. The most likely interpretation of this provision in the Philippine amparo—in cases of actual deprivation of liberty—is to limit amparo to cases where the fate or whereabouts of the person subject of the petition is unknown. If the detention of a subject is admitted by the state, but the legality of the same is contested, then the recourse is habeas corpus.
Since the rule may be applied retroactively, the family of Jonas Burgos may apply the rule in their current habeas corpus petition and use the inspection and production clauses under Section 14 to compel the submission of the AFP Report on his disappearance. In fact, this paper argues that, acts of extra judicial killings or enforced disappearance which were not subject of any complaint filed in court or of any judicial process, may still be filed on or after Oct. 24 using amparo since procedural rules may apply retroactively.
The case is different, however, when it comes to “threatened” deprivation of liberty, when the subject has not been arrested or disappeared. In this case, the remedy is amparo since this situation may not be deemed within the ambit of a habeas corpus petition. The threatened arrest of the Batasan Five for example, may also be remedied through an amparo petition. The inclusion of “threats” to liberty as a justiciable controversy could play a role in stopping the military from “calling and inviting to military “ members of progressive organizations for interrogation. The “invited” persons may immediately file an amparo petition to inquire why the military is inviting them to their camps.
Thirdly, the writ is a remedy if the right to “life” is violated or threatened. Families of victims of extrajudicial killings [called “extra-legal killing” by the rule] may therefore resort to amparo as a means of identifying the perpetrator preparatory to the filing of a criminal complaint. In the case of Reverend Isias Sta. Rosa in Bicol who was found dead beside another dead person subsequently identified as a member of the Philippine Army, resort to amparo may be availed of to get more information on the ‘mission order’ found in body of the soldier and other relevant issues prior to the filing of a criminal complaint.
Fourthly, the writ covers both government officials and private individuals or entities. This is where the rule, based on the experience of victims in other Latin American countries, gets complicated. Ordinarily, acts committed by private individuals, such as deprivation of liberty or murder, is dealt with under the Revised Penal Code and under the Rules on Criminal Procedure. In fact, the original amparo [Mexico] only applies to public officials and did not include within its amparo rules ‘private crimes’ leaving the same to be resolved by ordinary legal processes.
The problem that the country faces today, and which required a Consultative Summit, is not the absence of investigation and prosecution of crimes committed by private individuals as the “Rules of Court” is equipped in dealing with these crimes. The problem, rather, is in regard to the impunity with which extra judicial killings, enforced disappearances and other human rights violations were carried out by suspected state security forces who hide behind various mechanisms to preempt investigation and prosecution—such as claims to confidentiality, national security, executive privilege, the principle of presumption of regularity or just plain and simple “protection” provided by top military officials, rendering the ordinary rules of court and even the judiciary ineffective in intervening to at least spur serious investigation and prosecution. The government not only has the resources but also the ‘political will’ to go after crimes committed by private entities. The problem being addressed is that the executive branch does not have the “political will” to go after its allies, and in the case of human rights violations, after members of the state security forces.