Firstly, the rule grants the courts the power to issue a protection order, to protect not just natural persons but juridical persons such as the petitioner-organization or its officers. This is akin to the ‘cessation’ stage in the other amparos.
Secondly, non government entities namely private individuals and accredited organizations, are given the authority [previously limited to government agencies under the witness protection program] to give that protection. Both the petitioners (Section 14 [a] ) or their witnesses (Section 14 [b]) are subject to judicial order of protection These provisions are actually indictments of the government’s witness protection program and its failure to provide a credible and safe haven for witnesses. In many instances, human rights organizations, universities and the church have gained the trust of victims of human rights violations and provided sanctuaries for them. The Supreme Court merely recognized this prevailing situation and gave non-governmental entities the legal standing to provide protection. Under this rule, the military and the police cannot harass or raid or make arrests in recognized sanctuaries. Surveillance or threats of sanctuaries by security forces must be disallowed.
Thirdly, the inspection and production provisions can be used to go beyond the blanket denials of armed forces and break the ‘mantle of protection’ given by certain officers to suspected human rights violators. These inspection and production provisions are akin to the little used ‘discovery rules’ under the Rules of Court. Although the respondent is given the opportunity to object to these orders on grounds of national security or “privileged information”, the courts are given the plenary powers to decide whether or not the claim to the much abused justification of ‘national security’ is valid.
Fourthly, the Amparo rule contains a strange provision in Section 15 which grants, upon verified motion, the respondent the right to ask for inspection and production orders from the court. Hopefully, the amparo court will not grant any such motion filed by the AFP and other public respondents if such were merely intended to harass the petitioners.
It is important for human rights lawyers, however, to ensure that the court [or the Justice] where the petition was filed is capable of standing up to the pressures that may be applied by respondents. The above provisions, could lead to a clash between the judiciary and the executive department if the executive disregards the inspection and production orders of the judiciary and insists on its self serving interpretation of what constitutes ‘executive privilege’ and ‘national security’.
Contempt
Like the amparos in Mexico, Argentina and Nicaragua, Section 16 of the Philippine amparo provides for sanctions, in the case of the latter, through fine or imprisonment on those who “refuses to make a return, makes a false return, or resists or disobeys a lawful process or order of the court.” A clerk of court or a deputized person who refuses to issue the writ after its allowance or who refuses to serve the same are also punished with contempt under Section 7. Unlike its Latin American counterparts, however, the rule does not include the power to order the removal or even arrest of a belligerent public official or the automatic prosecution of the public official. Some Latin American amparos for example require that an amparo decision ordering the release of a person from detention must pass through the prosecutor who is expressly required to file an information against the respondent public official.
It must be stressed that respondent military officers who certify that the person subject of the petition is not in their custody after conducting “diligent search” for the disappeared among AFP units is making a false return, and therefore liable, if the AFP is later found to actually have custody of the victim. Absent this interpretation, the Philippine amparo may suffer the same fate as the Chilean amparo where the state security forces go unpunished despite the discovery in their custody of a person, the custody of whom they have previously denied.
Departure from traditional legal principles
In general, the amparo rule promulgated by the Supreme Court, departs in certain instances from traditional legal notions and principles in Philippine. The rule for example does not require the petitioner to exhaust administrative remedies [also a traditional notion in the Latin American amparos]. Furthermore, it does not allow public officials to hide behind the ‘presumption of regularity’ rule, requiring that both the petitioner and respondent establish their claim based on substantial evidence. In fact, it requires the public official to prove that “extraordinary diligence” was observed in the performance of duty.
There is no expressed provision on res judicata, a feature of the Mexican amparo, although it declares that a case is “dismissed with prejudice” within two years from notice of the archiving, unless revived. It also allows the archiving, rather than dismissing, a petition in certain circumstances. These provisions grant the families of the victims, the opportunity to revive the petition should the situation change. It allows for retroactive application, making the rule applicable to pending cases. In fact, victims of human rights abuses committed before the rule became effective could still file a petition under the rule. An appeal to the Supreme Court from an amparo decision may raise issues of fact or both issues of facts and law.
