“Human Rights Legal Mechanisms: The

Writ of AMPARO”

Rep. Neri Javier Colmenares

MCLE Lecture for the
Integrated Bar of the Philippines
 Escalating Human Rights Violations

• Enforced or
Involuntary
Disappearance
Karen Empeno

• Extra judicial
Killings

• Impunity
Sherlyn Cadapan
Adaptedby the Latin American Legal
System

• Developed under the 1925 Constitution of

Mexico [Article 107]

• Enshrined in Article 43 of the 1994

Constitution of Argentina

• Chile passed it as a law under Act No.

16.986 [May 2002].
 Nicaraguan Definition
• It may be Provided through Statute under Decree
No. 232 [The Law of Amparo for Personal Freedom
and Security] and the Constitution by the
Fundamental statute of July 20, 1979.

Amparo operates:
a) on behalf of a person who has been detained or
threatened with detention upon orders of the State;
b) against a sentence of imprisonment imposed upon a
person who has not been detained and who wishes
to be released from its effects.
 Amparo Suits in Mexico
1) "amparo" as a defense of individual rights such
as life, liberty, and personal dignity;
2) "amparo" against laws deemed un-constitutional
;
3) "amparo" in judicial matters (examine the legality
of judicial decisions);
4) administrative "amparo" (providing jurisdiction
against administrative enactments
5) "amparo" in agrarian matters (protecting the
communal ejidal rights of the peasants)..
 SECTION 1.
• Petition. – The petition for a writ of
amparo 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. The writ shall cover extralegal
killings and enforced disappearances
or threats thereof.
 Right to Life
• Reyes v. Court of Appeals,
GR No. 182161, December 3, 2009

• While the right to life under Article III,

Section 1 guarantees essentially the right
to be alive x x xx “it is a life lived with the
assurance that the government xxx, will
protect the security of his person and
property. X x x x it is invaded not only by
a deprivation of life but also of those
 Right to Liberty
Case of Manalo and Reyes
•
• Liberty as guaranteed by the
Constitution was defined xxx “the right
to exist and the right to be free from
arbitrary restraint or servitude. The
term cannot be dwarfed into mere
freedom from physical restraint x x x,
but is deemed to embrace the right of
man to enjoy the facilities with which he
• Release from prison does not mean
no more threat to liberty

• See Cruz vs Bulacan (Castillo vs Cruz

G.R. No. 182165 November 25, 2009
 RIGHT TO SECURITY
(Sec. of Defense vs. Manalo)

1. First, the right to security of person is

“freedom from fear.” X x x x
2. Second, the right to security of person
is a guarantee of bodily and
psychological integrity or security.
3. third, the right to security of person is
a guarantee of protection of one’s
rights by the government.
• In a broad sense, the right to security of
person “emanates in a person’s legal
and uninterrupted enjoyment of his life,
his limbs, his body, his health, and his
reputation. It includes the right to exist,
and the right to enjoyment of life while
existing, and it is invaded not only by a
deprivation of life but also of those
things which are necessary to the
enjoyment of life according to the
 Extra judicial killing

As the Amparo Rule was intended to address

the intractable problem of “extralegal
killings” and “enforced disappearances,” its
coverage, in its present form, is confined to
these two instances or to threats thereof.

• “Extralegal killings” are “killings committed

without due process of law, i.e., without legal
safeguards or judicial proceedings.”
 Secretary of Defense vs Manalo
1. an arrest, detention or abduction of a person

2. by a government official or organized groups

or private individuals acting with the direct
or indirect acquiescence of the government;

3. the refusal of the State to disclose the fate or

whereabouts of the person concerned

4. or a refusal to acknowledge the deprivation

 Government Participation-Crucial
(Pardico Case)
• “Thus is the absence of an allegation or
proof that the government or its agents
had a hand in Ben’s disappearance or
that they failed to exercise extraordinary
diligence in investigating his case, the
Court will definitely not hold the
government or its agents either as
responsible or accountable persons,” the
high court held.
 Amparo does not cover purely
property or commercial issues
• The threatened demolition of a dwelling by
virtue of a final judgment of the court, which
in this case was affirmed with finality by this
Court in G.R. Nos. 177448 xxx is not included
among the enumeration of rights as stated in
the above-quoted Section 1 for which the
remedy of a writ of amparo is made available.
Canlas vs Napico Homeowners Association
(G.R. No. 182795)

What it is not, is a writ to protect concerns that

 President as a Respondent
• 1. amparo does not result in
administrative, civil or criminal sanctions

• 2. David vs Arroyo obiter

• 3. immunity provisions
 Lozada vs. Arroyo
It is settled in jurisprudence that the President
enjoys immunity from suit during his or her tenure of
office or actual incumbency. Conversely, this
presidential privilege of immunity cannot be invoked
by a non-sitting president even for acts committed
during his or her tenure.
It must be underscored, however, that since her
tenure of office has already ended, former
President Arroyo can no longer invoke the privilege
of presidential immunity as a defense to evade
judicial determination of her responsibility or
 Section 2 Hierarchy
1. The aggrieved party
2. immediate family of the injured party
3. relative within the fourth degree
4. Any concerned citizen or organization “if
there is no known member of the immediate
family or relative of the aggrieved party”.
Chile-may be filed on behalf of any person”.
Argentina-“may be filed by the damaged party,
the ombudsman and the associations which
foster such ends”
 Sec. 3 Where and When to File
• 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. 5 Contents of Petition
• The petition shall be signed and verified and
shall allege the following:
• (a) The name and personal circumstances of
the petitioner and respondent;
• (b) 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
• (d) The investigation conducted, if any,
specifying the names, personal
circumstances of the investigating
authority or individuals, as well as the
manner and conduct of the
investigation,;

• (e) The actions and recourses taken by

the petitioner to determine the fate or
• SEC. 6. Issuance of the Writ. – 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 issue.

• A hearing MUST BE SET within seven (7) days

from the date of its issuance

• ANY PERSON MAY BE DEPUTIZED TO SERVE

THE WRIT
 Return—within 5 days
(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;
• (d) If the respondent is a public official
the return shall further state the actions
that have been or will still be taken:

• (ii) to recover and preserve evidence

related to the death or disappearance of
the person x x x ;

• (iii) to identify witnesses and obtain

• (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; and

• (vi) to bring the suspected offenders

 Sec. 14-Interim Relief

• (a) Temporary Protection Order. – The

court,, 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.
 Razon vs Tagitis
G.R. No. 182498 December 3, 2009
• This Decision reflects the nature of the
Writ of Amparo – a protective remedy against
violations or threats of violation against the
rights to life, liberty and security. X x xx It
does not determine guilt nor pinpoint
criminal culpability for the disappearance;
rather, it determines responsibility, or at least
accountability, for the enforced
disappearance for purposes of imposing the
appropriate remedies to address the
 Witness Protection

• 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, xxx

• The court, justice or judge may also refer the

witnesses to other government agencies, or
to accredited persons or private institutions
• (c) Inspection Order. — The court,
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.
 GATDULA VS. DOJ
• RTC Judge Pampilo granted the motion
for inspection of the vehicle used by the
victim during the ambush.

• Solicitor General objects on the ground

that it is irrelevant
 Yano vs. Sanches
While xxx We could not find any link between
Respondents individual military officers to the
disappearance of Nicolas and Heherson,
nonetheless, the fact remains that the two men are
still missing. Hence, We find it equitable to grant
petitioners some reliefs in the interest of human
rights and justice as follows:
•
1. Inspections of the following camps: Camp
Servillano Aquino, San Miguel, Tarlac City, any
military camp of the 7th Infantry Division located in
 Opposition on National Security

• the court, 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. and

• Specify the persons authorized to make the

inspection and the date, time, place and
manner of making the inspection and may
 c. Production Order
• The court, upon verified motion and
after due hearing, may order any
person in possession, custody or
control of any designated
documents, papers, x x x
photographs, tangible 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.
 SEC. 17. Burden of Proof and Standard of Diligence
Required.

• – The parties shall establish their claims by

substantial evidence.

The respondent who is a public official or

employee must prove that extraordinary
diligence as required by applicable laws x x
was observed in the performance of duty.

The respondent public official or employee

cannot invoke the presumption that official
duty has been regularly performed to evade
 Razon vs Tagitis
• These difficulties largely arise because the
State itself – the party whose involvement is
alleged – investigates enforced
disappearances. Past experiences in other
jurisdictions show that the evidentiary
difficulties are generally threefold.
• First, there may be a deliberate concealment
of the identities of the direct perpetrators.
Experts note that abductors are well
organized, armed and usually members of the
military or police forces

• Second, deliberate concealment of pertinent

evidence of the disappearance is a distinct
possibility

• Third is the element of denial; in many cases,

Four Kinds of Proceedings or Four
Levels of Proof
The [Writ] provides rapid judicial relief as it
partakes of a summary proceeding that
requires only substantial evidence to make the
appropriate reliefs available to the petitioner; it
is not an (1) action to determine criminal guilt
requiring proof beyond reasonable doubt, or
(2) liability for damages requiring preponderance
of evidence, or
(3)administrative responsibility requiring
 (GR No. 182498, Razon v. Tagitis,
December 3, 2009)

• we reduce our rules to the most basic test of

reason – i.e., to the relevance of the evidence
to the issue at hand and its consistency with
all other pieces of adduced evidence. Thus,
even hearsay evidence can be admitted if it
satisfies this basic minimum test.
• SEC. 19. Appeal. – 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. 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. 22. Effect of Filing of a Criminal Action.
– 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. The procedure under this
Rule shall govern the disposition of the
reliefs available under the writ of amparo.

• - consolidation with pending criminal

 Pending Criminal action fatal—
Guerra Case
• “The reason why the pendency of a criminal
action bars the filing of a petition for Amparo
is, as the Supreme Court (SC) explains in its
annotation to the writ of amparo, ‘to avoid
the difficulties that may be encountered when
the amparo action is allowed to proceed
separately from the criminal action, wherein
two courts trying essentially the same subject
may issue conflicting orders,”
 Initial Rulings
• 1. Bustamante/Munasque- Voluntary
Custody not an absolute defense in amparo

• 2. Mangayon—voluntary custody valid

• 3. Burgos-failure to present clear proof of

involvement of respondents leads to
dismissal of amparo

• 4.Cadapan—military failed to prove that

• 5. Judge Floro case- Judge vs Judge must be
resolved within SC administrative rules

• 6. Kriss Mccord—Amparo is not a defense

in deportation proceedings

• 7. Chee Leong case-amparo cannot cure a

lost appeal

• 8. Rubrico—TRO cannot be granted in

amparo
• 9. Bill Luz—withdraw amparo petition
• 10. Mary Tagitis Case— (Petitioners case)

• 11. Funcion vs RTC—Amparo is not remedy for

mistrial

• 12 Fr Robert Reyes==amparo is not available if

the act is not unlawful
 Secretary Of National Defense vs.
Manalo [G.R. No. 180906, Oct. 7, 2008]
As the Amparo Rule was intended to address
the intractable problem of “extralegal
killings” and “enforced disappearances,” its
coverage, in its present form, is confined to
these two instances or to threats thereof.

• “Extralegal killings” are “killings committed

without due process of law, i.e., without legal
safeguards or judicial proceedings.”
 Findings

• …the abduction was perpetrated by

armed men who were sufficiently
identified by the petitioners (herein
respondents) to be military personnel and
CAFGU auxiliaries

• We are convinced, too, that the reason for

the abduction was the suspicion that the
petitioners were either members or
 Refer to investigative agencies
• The efforts exerted by the Military
Command to look into the abduction
were, at best, merely superficial

• there need not necessarily be a

deprivation of liberty for the right to
security of person to be invoked.
(1) Gen. Palparan’s participation in the
abduction was also established. At the very
least, he was aware of the petitioners’
captivity at the hands of men in uniform
assigned to his command.

(2) x x x his knowledge of the dire situation of

the petitioners during their long captivity at
the hands of military personnel under his
command bespoke of his indubitable
command policy that unavoidably
encouraged and not merely tolerated the
 Summary
• 1. Context of Amparo-judicial intent is
liberality to gather information

• 2. Nature of Amparo-killings and

disappearances; summary

• 3. interim relief—privatization of investigation

and witness protection and discovery

• 4. jurisprudence