THE PHILIPPINE WRIT OF AMPARO:

A LEGAL WEAPON FOR PROTECTING HUMAN RIGHTS

Marie Arcie Anne M. Sercado

I. INTRODUCTION

On 24 October 2007, Ruel Muñasque, leader of the Christian Youth Fellowship of the
United Church of the Christ in the Philippines (UCCP) and member of national activist organization
Bayan Muna, and his friend Roger Morales were abducted by soldiers in Zamboanga del Sur,
Mindanao. Upon being intercepted at a checkpoint, they were extensively searched, and soon after,
their wallets, mobile phones, and other personal things were confiscated. They were then
handcuffed and blindfolded, and forced into a jeepney. The two men were brought to an unknown
place where they were questioned about their political activities, and were even threatened with
death if they did not cooperate. Unfortunately, after the questioning, only Morales was freed.

On 28 October 2007, the soldiers called the sister of Muñasque, and told her that her
brother was in their custody, and firmly warned her not to seek legal assistance regarding his
detention. Despite the warning, Muñasque’s sister filed a petition at the Regional Trial Court (RTC)
of Pagadian City, Zamboanga Del Sur, Branch 18 for the Writ of Amparo, an extraordinary remedy
from the Supreme Court which took effect on the day Muñasque was abducted.

By virtue of this new remedy, the trial court immediately ordered the military to release
Muñasque. He was accordingly liberated and reunited with his family. This unprecedented release
was a consequence of the new Rule of the Supreme Court, which Chief Justice Reynato S. Puno
deemed “as the greatest legal weapon to protect the constitutional rights of our people.” It was
under Chief Justice Puno’s term as Chief Justice when this remedy was promulgated by the High
Court.

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 II. POWERS OF THE PHILIPPINE SUPREME COURT

A. The Legal Framework

In the present legal framework provided by our fundamental law, which is the 1987
Constitution, the Supreme Court is empowered to exercise judicial power, which “includes the duty
of the courts of justice to settle actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government.”1 Judicial power has also been defined as “the right to determine actual controversies
arising between adverse litigants, duly instituted in courts of proper jurisdiction.”2 Given this
traditional framework, the courts can only exercise judicial power when real parties come to litigate
their adverse claims.

Nevertheless, the 1987 Constitution, under Article VIII, Section 5 also conferred to the
Supreme Court the power to “promulgate rules concerning the protection and enforcement of
constitutional rights.” This rule-making power, which is peculiar to the present Constitution, was
explained to be the result of the Filipino experience under the dark years of the martial law regime.
Previously, the protection of constitutional rights was lodged with Congress through the enactment
of laws and their implementing rules and regulations. Now, because of the mandate provided by the
1987 Constitution, the Supreme Court is now empowered to promulgate rules to protect and
enforce rights guaranteed by the fundamental law of the land.

Chief Justice Reynato S. Puno explained this phenomenon and said:

I respectfully submit that the framers of the 1987 Constitution were gifted with a
foresight that allowed them to see that the dark forces of human rights violators would
revisit our country and wreak havoc on the rights of our people. With this all-seeing eye, they
embedded in our 1987 Constitution a new power and vested it on our Supreme Court—the
power to promulgate rules to protect the constitutional rights of our people. This is a radical
departure from our 1935 and 1972 Constitutions, for the power to promulgate rules or laws
to protect the constitutional rights of our people is essentially a legislative power, and yet it
was given to the judiciary, more specifically to the Supreme Court. If this is disconcerting to
foreign constitutional experts who embrace the tenet that separation of powers is the
cornerstone of democracy, it is not so to Filipinos who survived the authoritarian years, 1971
to 1986. Those were the winter years of human rights in the Philippines. They taught us the

1 CONST, article VIII, section 1(b).

2 Muskrat v. United States, 219 U.S. 346 (1911).
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 lesson that in the fight for human rights, it is the judiciary that is our last bulwark of defense;
hence, the people entrusted to the Supreme Court this right to promulgate rules protecting
their constitutional rights.3

Armed with these extraordinary powers, the Court can now take action. One view is that the
out of all the three departments of government, the Judiciary, particularly the Supreme Court, is the
best equipped and situated to fulfill this role as protector of human rights.4 The Judiciary is best
suited to be the protector of human rights, precisely because it

…is insulated from political responsibility and unbeholden to self absorbed and excited
majoritarianism. The Court’s aloofness from the political system and the Justices’ lack of
dependence for maintenance in office on the popularity of a particular ruling promise an
objectivity that elected representatives are not – and should be – as capable of achieving.
And the more deliberative, contemplative quality of the judicial process further lends itself to
dispassionate decisionmaking.5

Moreover, after World War II, democratic countries like the Philippines explicitly gave their
Judiciaries this authority to protect human rights,6 thus:

Heretofore, the protection of human rights has been principally entrusted to the
political branches of government, or to our electorally accountable officials, and not to
politically independent judiciaries. Over the years, however, the expectation that human
rights could best be protected by the political branches of government has been diluted.
There is a catalogue of causes for this failed expectation, but let me just cite the main ones.
Elected officials usually go for what is popular; but the vindication of human rights
sometimes demands taking unpopular decisions especially in instances when, due to
technicalities, the rights of the righteous are trumped by the rights of the wicked. Likewise,
elected officials sometimes demur in making decisions that will displease their powerful
constituencies.

Such a tilted stance cannot be taken by protectors of human rights, who must at all
times maintain an even keel on the rights of opposites. Also, elected officials have been
found to be sometimes more interested in high- profile issues or those with great impact on
the larger number of their constituents. Oftentimes, however, human rights cases are low-
profile, especially when they affect the marginalized, or people whose existence others would
hardly recognize or, worse, people dismissed as the “invisibles” of society. Indeed, no less
than the United Kingdom itself, the bulwark of parliamentary supremacy, recently adopted
the Human Rights Act of 1998 conceding to the courts the power to enforce human rights
as defined in the European Convention for the Protection of Human Rights. In the

3 Reynato Puno, No Turning Back on Human Rights, Keynote Address during the Silliman University Convocation and 19th
General Assembly and Alumni Homecoming, 2007.
4 Bryan Dennis Tiojanco & Leandro Angelo Aguirre, The Scope, Justifications and Limitations of Extradecisional Judicial Activism

and Governance in the Philippines, 84 PHIL. L.J. 73 (2009).

5 JESSE CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS: A FUNCTIONAL RECONSIDERATION OF

THE ROLE OF THE SUPREME COURT 68 (1980).

6 Reynato Puno, The View from the Mountaintop, Keynote Address during the National Consultative Summit on

Extrajudicial Killings and Enforced Disappearances, in A CONSPIRACY OF HOPE: REPORT ON THE NATIONAL
CONSULTATIVE SUMMIT ON EXTRAJUDICIAL KILLINGS AND ENFORCED DISAPPEARANCES 41 (2007).
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 Philippines, the debate is over on whether the protection of human rights can better be
entrusted to an independent judiciary.7

B. Acting Under the Legal Framework

In 2007, there was the rising toll of brazen and senseless extralegal killings and enforced
disappearances of journalists and activists. To put an end to these, the Supreme Court issued on 1
March 2007 Administrative Order No. 25-2007, designating 99 regional trial courts across the
country to “specially and preferentially” hear, try, and decide cases involving extralegal killings and
enforced disappearances.

For two months, these special courts were waiting but hardly any petitions were filed even if
human rights groups pegged the incidents of extralegal killings and enforced disappearances at
approximately 900. On the other hand, the tally of the Department of National Defense, the Armed
Forces of the Philippines, and Philippine National Police would be close to 200. Despite these
numbers, filed cases in these special courts only reached 45 in the year 2007. As a result, the
awesome potential of these special courts was not fully maximized. It is worthy to note that at that
time, the only available judicial remedy related to extralegal killings and enforced disappearances was
the Writ of Habeas Corpus.

A few months after the issuance of the aforementioned administrative order, the Supreme
Court hosted the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances—
Searching for Solutions from 16 to 17 July 2007. Nearly 500 delegates from all three branches of
government, human rights organizations, the religious sector, the media, the academe, the military
and police, and the international community attended such two-day conference.

III. THE WRIT OF AMPARO

One of the recommendations solicited during the Summit was the adoption by the High
Court of the Writ of Amparo. Speedily acting on this proposal, the Court promulgated the Rule on the
Writ of Amparo on 25 September 2007. According to the High Court, this remedy was supposed to
be the answer to the insufficiencies of the Writ of Habeas Corpus, when it allows the respondent to

7Reynato Puno, The Philippine Judiciary: The Knighted Sentry, speech delivered on Nov. 23, 2007 during the Pacific
Conference on Judicial Legal Instituted, Guam at the Hilton Hotel, Guam.
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simply deny knowledge, if not actual custody, of the missing person. Because of this insufficiency,
the petition is, more often than not, dismissed.

The nature and time-tested role of amparo has shown that it is an effective and inexpensive
instrument for the protection of constitutional rights.8 Amparo, meaning literally “to protect,” started
in Mexico where it has gradually evolved into various forms, depending on the particular needs of
each country.9 It started as a protection against acts or omissions of public authorities in violation of
constitutional rights. Later, however, the writ evolved for several purposes:10

(1) For the protection of personal freedom, equivalent to the habeas corpus writ (called
amparo libertad);
(2) For the judicial review of the constitutionality of statutes (called amparo contra leyes);
(3) For the judicial review of the constitutionality and legality of a judicial decision
(called amparo casacion);
(4) For the judicial review of administrative actions (called amparo administrativo); and
(5) For the protection of peasants’ rights derived from the agrarian reform process
(called amparo agrario).

The Writ of Amparo has been constitutionally adopted by Latin American countries, except
Cuba, to protect against human rights abuses especially during the time they were governed by
military juntas. Generally, these countries adopted the writ to provide for a remedy to protect the
whole range of constitutional rights, including socio-economic rights.

However, the Supreme Court Committee on Revision of the Rules of Court agreed that the
Writ of Amparo should not be as comprehensive and all-encompassing as the ones found in some
American countries, especially Mexico. The Committee ultimately decided that in the Philippine
jurisdiction, this Writ of Amparo should be allowed to evolve through time and jurisprudence, and
through substantive laws as they may be promulgated by Congress.

8 Adolfo S. Azcuna, The Writ of Amparo: A Remedy to Enforce Fundamental Rights, 37 ATENEO L.J. 15 (1993).
9 See Article 107 of the Constitution of Mexico; Article 28 (15) of the Constitution of Ecuador; Article 77 of the
Constitution of Paraguay; Article 43 of the Constitution of Argentina; Article 49 of the Constitution of Venezuela;
Article 48(3) of the Constitution of Costa Rica; and Article 19 of the Constitution of Bolivia.
10 The Rationale for the Writ of Amparo, AM No. 07-9-12-SC, p. 32.

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 As it now stands, 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.11 The petitioner seeking
to avail this extraordinary remedy is exempted from paying docket fees.12 Under the privilege of this
remedy, the courts can order the protection of the subject of the petition, his family, and witnesses
as well as compel the respondents to produce relevant information connected to the disappearance
or detention of the subject. The courts may even direct the respondents to desist from coming into
contact with the said subject, in the event that he is released subsequently or not in custody.

The Rule empowers the courts to issue several reliefs through orders of protection,
production, inspection, and other reliefs necessary for the protection of life, liberty, and security.13
The writ covers both acts and threats of extralegal killings or killings committed without due
process, such as executions carried out without judicial proceedings, and enforced disappearances,
such as the abduction of persons by a government official.14

The Writ of Amparo may also be resorted to as a judicial device for families and organizations
searching for missing children, the hijos desaparecidos, who are suspected of being victims of police or
military brutality, summary executions, kidnapping, and armed conflicts.

Because of the urgency of the situation and the necessity to act with dispatch, the Supreme
Court also directed the court, justice or judge to whom the case is raffled or assigned to docket the
petition, and act upon it immediately.15 The petition may be filed at any day and at any time16 with
any of the 800 RTCs across the country, the Sandiganbayan, the Court of Appeals with stations in
Manila, Cebu and Cagayan de Oro, and the Supreme Court, or any judge or justice of such courts, 17
and the Writ shall be enforceable anywhere in the Philippines.18

11 RULE ON THE WRIT OF AMPARO, sec. 1.

12 RULE ON THE WRIT OF AMPARO, sec. 4.
13 RULE ON THE WRIT OF AMPARO, sec. 14 & 15.
14 Annotation to the Writ of Amparo, AM No. 07-9-12-SC, pp. 47-48.
15 RULE ON THE WRIT OF AMPARO, sec. 4.
16 RULE ON THE WRIT OF AMPARO, sec. 3.
17 RULE ON THE WRIT OF AMPARO, sec. 3.
18 RULE ON THE WRIT OF AMPARO, sec. 3.

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 IV. THE WRIT’S PROTECTION OF HUMAN RIGHTS

On 10 December 1948, the United Nations General Assembly adopted the Universal
Declaration of Human Rights (UDHR). The UDHR was approved to address the experiences during
the Second World War, and represents the first global expression of rights to which all human
beings are inherently entitled. Article 3 of the UDHR provides that, “Everyone has the right to life,
liberty and security of a person.” Notably, the Philippines voted in favor of the UDHR.

And on 16 December 1966, the Assembly also adopted a multilateral treaty called the
International Covenant on Civil and Political Rights. Article 6, Paragraph 1 of the Covenant provides that
“Every human being has the inherent right to life. This right shall be protected by law. No one shall
be arbitrarily deprived of his life.” In addition, Article 9, Paragraph 1 of the Covenant provides that
“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.” The Philippines is a signatory to the
Covenant.
These two manifestations both recognize the right to life as the quintessential human right.
In its formulation, it is also conceived as a civil and political right that prohibits states from
arbitrarily depriving their subjects of life.

As previously mentioned, 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, which are rights that
are already protected by the two abovementioned manifestations. The 1987 Constitution also
provides for the protection of such rights but its enforcement and realization is weakened by
collective neglect and indifference to dignity.

Considering that the Writ of Amparo aims to protect these basic human rights, which are
acknowledged by international human rights norms, its promulgation by the Supreme Court is an
initiative that effectively responds to the crying need for protection of these ideals. This protection is
provided for in an area wherein such rights are repeatedly compromised and neglected, which is the
phenomenon of extra-judicial killings and enforced disappearances. This phenomenon includes the
extra-judicial execution of leftist activists and journalists; disputes between peasants, landowners,
and armed groups; human rights abuses in relation to the conflicts in western Mindanao and Sulu;
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and the nationwide trend of enforced disappearances. The Rule on the Writ of Amparo, without a
doubt, is an ambitious move by the judicial branch to put an end to this cruel cycle of constant
disregard for human life and ensuing lack of accountability. Further, its noble ideals are amplified by
the following milestones that have transpired since its inception.

V. RESULTS OF THE WRIT OF AMPARO

Since its effectivity, available records in the Supreme Court show that a total of 62 Writ of
Amparo cases have been filed, 42 of which have already been decided. Out of the 42, eight (8)
petitions have been granted.

The first case involving the Writ which was decided by the Supreme Court was the case of
Secretary of National Defense v. Manalo.19 The Court upheld the 26 December 2007 decision of the
Court of Appeals (CA), which granted the privilege of the Writ of Amparo to brothers Raymond and
Reynaldo Manalo, who escaped their military abductors after 18 months of torture and
incarceration. The Court en banc consequently ordered the Secretary of National Defense and Chief
of Staff of the Armed Forces of the Philippines to provide the Court and the aggrieved parties with
all pertinent information, including official and unofficial investigation reports, on the military’s
custody of the Manalo brothers.

More cases followed the success in the case of the Manalo brothers. In the middle of last
year, the Supreme Court ordered the Armed Forces to release University of the Philippines (UP)
students Sherlyn Cadapan and Karen Empeño, and farmer Manuel Merino, who have been missing
for nearly five years, and said that retired General Jovito Palparan and five others “appear
responsible and accountable” for their disappearance.20 Cadapan and Empeño, who were described
to be student activists, were abducted on 27 June 2006, along with Merino from his home in
Hagonoy, Bulacan.

The Court said that Palparan, Lieutenant Colonels Felipe Anotado and Rogelio Boac, Lt.
Francis Mirabelle Samson, Arnel Enriquez and Donald Caigas would remain impleaded in the
petitions “to answer for any responsibilities and/or accountabilities they may have incurred during

19 GR No. 180906, October 7, 2008.

20 Boac v. Cadapan, GR No. 184661-62, May 31, 2011.
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their incumbencies.” The High Tribunal emphasized its order by putting the words “immediate
release” in capital letters in its ruling. The Supreme Court said that the incumbent commanding
general of the 7th Infantry Division and the incumbent battalion commander of the 24th Infantry
Battalion, both of the Philippine Army, “are enjoined to fully ensure the release” of Cadapan,
Empeno, and Merino from detention as some of the respondents have either retired or have been
reassigned.

And before last year ended, the RTC of Malolos City, Bulacan, Branch 14 ordered the arrest
of Palparan and several army officials in connection with the abduction of Cadapan and Empeño.
Palparan and his men were charged with two counts of kidnapping and serious illegal detention for
the disappearance of the two UP students.

And in June 2010, the Supreme Court ordered the CA to submit a comprehensive report on
the developments regarding a missing World Bank (WB) consultant. It gave the CA 10 days from
notice to submit its first quarterly report and recommendations on the enforced disappearance of
WB consultant engineer Morced Tagitis, who was allegedly forcibly abducted in Sulu in 2007. 21 In a
four-page resolution penned by Justice Arturo D. Brion, the Court also reminded the Philippine
National Police (PNP) and the PNP-Criminal Investigation and Detection Group (PNP-CIDG) “to
faithfully and promptly comply” with the Court’s directives in its 03 December 2009 decision that
they present to the CA a plan of action for further investigation. In the said decision, the Court had
granted the petition of Mary Jean B. Tagitis, wife of the petition’s subject, for the issuance of the
writ of amparo. The Court referred the case back to the CA for appropriate proceedings, and
directed at the monitoring of the PNP and the PNP-CIDG investigations and actions.

In a separate resolution issued on the same day and also penned by Justice Brion, the Court
ordered the Commission on Human Rights (CHR) to conduct “a comprehensive and exhaustive
investigation” to identify the perpetrators and determine the other circumstances surrounding the
2007 abduction of Jonas Joseph T. Burgos, a farmer advocate and a member of Kilusang Magbubukid
sa Bulacan. Particularly, the CHR was directed to, among others, ascertain the identification of the
cartographic sketches of two of the abductors as well as their whereabouts, and determine based on

21Razon, Jr. v. Tagitis, GR No. 182498; Burgos v. President Arroyo, GR No. 183711; Burgos v. President Arroyo, GR No.
183712; and Burgos v. President Arroyo, GR No. 183713, June 22, 2010.
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records, past and present, the identities and locations of the persons identified by the DOJ alleged to
be involved in the abduction of Burgos.

The Court said that, “Considering the findings of the CA and our review of the records of
the present case, we conclude that the PNP and the AFP [Armed Forces of the Philippines] have so
far failed to conduct an exhaustive and meaningful investigation into the disappearance of Jonas
Burgos and to exercise the extraordinary diligence that the Rule on the Writ of Amparo requires.
Because of these investigative shortcomings, we cannot rule on the case until a more meaningful
investigation, using extraordinary diligence, is undertaken. From the records, we noted that there are
very significant lapses in the handling of the investigation–among them the PNP-CIDG’s failure to
identify the cartographic sketches of two (one male and one female) of the five abductors of Jonas
based on their interview of eyewitnesses to the abduction.”

Aside from these recent cases, there are more cases involving the Writ of Amparo that are
worth mentioning.

In Robinos v. Macapagal-Arroyo,22 the CA ordered respondents to desist from committing any

act which would violate the right to life of petitioners. The appellate court also ordered the
inspection of military camps and the production of relevant documents.

In Tagitis v. Lt. Gen. Yano,23 the CA ordered the respondents to exert extraordinary diligence
and efforts, not only to protect the life, liberty and security of the petition’s subject, but also to
extend the privileges of the Writ of Amparo to his family, and to submit a monthly report of their
actions to the Court.

In a child custody case at the RTC of Calamba City, Laguna, Branch 37, the lower court
granted the privilege of the Writ of Amparo, and the custody of the minor child, who is an illegitimate
child of the petitioner, was awarded to the latter.24 The remedy of the writ was deemed to be
applicable in this case as the child’s right to liberty was being infringed.

22 CA-G.R. WRA. No. 00004, November 29, 2007.

23 CA-G.R. WRA No. 00009, March 7, 2008.
24 RTC Case No. 1064-07-C, November 7, 2007.

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 The aforementioned cases are some cases where the privilege of the Writ of Amparo was
granted. On the other hand, the dismissed cases appear to have been terminated for justifiable
reasons. In two cases,25 the subjects themselves denied enforced disappearances, and the existence
of a threat or torture to their persons. In another case,26 the petition was withdrawn on motion of
the petitioner on the ground that the subject was facing charges before the lower court, and the only
obstacle to his being transferred to the proper authorities to stand trial was the pendency of the
petition. And in six cases,27 the court found that the petition for the issuance of the Writ of Amparo
was not the appropriate remedy. However, the dismissal of these cases does not mean that the
subjects’ rights were not protected.

In Ortiz v. Lt. Col. Tello,28 the appellate court declared the petition moot and academic, and
terminated the proceedings. Notwithstanding the termination of the case, respondent Lt. Col. Tello
publicly disclosed that the petitioners were not detained against their will but were actually the ones
who sought the protective custody of the military. He disclosed that the subjects of the petition are
free to leave the camps as they wish.

In Malapote v. Lt. Col. Tello,29 subject Malapote was released from Camp General Santos,
Calauag, Quezon even before the case was submitted for decision. Hence, the petition was declared
moot and academic. Though the proceedings were terminated, Malapote’s right to life and liberty
was upheld.

And in the case of Luz v. AFP Chief of Staff,30 where petitioner Luz alleged that he was placed
under military surveillance over his alleged involvement in a plot to oust President Gloria
Macapagal-Arroyo during the Manila Peninsula Hotel coup, the CA terminated the case after
petitioner himself prayed for its termination. His request was done after respondents certified that all
major services in the AFP did not conduct any surveillance or case buildup activity on Luz.

25 Ortiz v. Lt. Col. Tello, November 27, 2007; Malapate v. Lt. Col. Tello, November 29, 2007.
26 Pernia v. Maj. Gen. Bangit, March 18, 2008.
27 Rev. Fr. Cadiz v. Gadduang, March 5, 2008; Judge Floro, Jr. v. Judge Pinero-Cruz,
March 4, 2008; Funcion, Sr. v. Judge Baclig, February 18, 2008; Leong v. DOJ, March 12, 2008; McCord v. DOJ, March 17,
2008; Rev. Fr. Reyes v. Gonzales, February 4, 2008.
28 CA-G.R. SP-00005, December 7, 2007.
29 CA-G.R. WRA No. 00006, November 29, 2007.
30 CA-G.R. WRA No. 00023, June 16, 2008.

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 All these court actions and favorable results were unheard of before the promulgation and
effectivity of the Rule on the Writ of Amparo.

VI. ISSUES AND PROBLEMS CONCERNING THE WRIT OF AMPARO

A. Implementation

Some provisions in the Rule on the Writ of Amparo are still difficult to implement. One such
provision is the one regarding temporary protection orders which states that:

(a) Temporary Protection 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.31

Up to now, almost five years after its effectivity, there are still no guidelines on how to
accredit such agencies, persons, and institutions. As such, there are still no accredited sanctuaries
which can house aggrieved parties and their immediate family members, and their safety cannot be
easily secured. If they continue to stay at their homes or at the homes of their relatives, their lives
will still be in danger, and there is no assurance that the threat on their lives will disappear.
Accordingly, the provision in the Rule for a Temporary Protection Order offers no relief yet,
considering the guidelines are yet to be instituted by the High Court. In effect, this provision is
rendered futile.

Aside from this impediment, there are still other dilemmas which hinder the potential of the
Rule on the Writ of Amparo as a potent remedy against human rights violations. In the justice system,
there is a lack of proficient investigators, and there is not enough evidence-gathering equipment.
Almost always, the families of the victims are also too scared to report the commission of the crime,
and to fight for their causes in court. Further, some of them are not even aware of the Rule, and

31 RULE ON THE WRIT OF AMPARO, sec. 14(a).

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cannot afford lawyers who will inform them of such remedy. The country’s Witness Protection
Program, which is suppose to encourage witnesses to come forward and reveal key elements of the
crime, is also quite deficient, and acceptance into the program is often difficult.

Aside from these external obstacles, members of the Judiciary also encounter challenges in
the implementation of the Rule. Considering the rule that cases involving the Writ of Amparo should
be decided in the course of 10 days, judges and justices are hard-pressed for time. And since it is a
new remedy in our jurisdiction, there is no precedent or jurisprudence which may be cited in
deciding the cases swiftly. Moreover, some petitioners file a case for the writ even if it is not the
proper remedy, thereby adding to the workload of the judges.

B. Judicial Legislation

Definition

Judicial legislation takes place when a court steps in to craft missing parts or to fill in the
gaps in laws or when it oversteps its discretional boundaries, and goes beyond the law to coin
doctrines or principles where none was before.32

The American Experience

In the United States (US), a classic example of judicial legislation is the case of Roe v. Wade.33
The US Supreme Court ruled that restrictive abortion legislation is unconstitutional by holding that
the right to abortion is impliedly allowed in the US Constitution.34
Also in the US, in Brown v. Board of Education,35 the Supreme Court ruled that racially
segregated public schooling violates the US Constitution, as it places great significance on education
and the equal protection of the laws. Many insisted that the rulings in Roe and Brown were
illegitimate, on the ground that they are not explicable by reference to any of the Constitution

32 Myrna Dimaranan Vidal. ‘Judicial Legislation: Dissected’ Available

http://ca.supremecourt.gov.ph/index.php?action=mnuactual_contents&ap=j60200. July 14, 2008 [4]
33 410 U.S. 113 (1973).
34 M. Vidal, supra at 5.
35 347 U.S. 483 (1954).

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framer’s value judgments and since neither ruling was the outcome of interpretation or application
of any value judgment constitutionalized by the framers.36

Michael J. Perry, in his book The Constitution, the Courts, and Human Rights, verbosely discussed
this phenomenon in the US. He said:

Virtually all of modern constitutional decision making by the Court—at least, that part of
pertaining to questions of “human rights” which is the most important and controversial part,
and the part which I am mainly concerned in this book—must be understood as a species of
policymaking, in which the Court decides, ultimately without any reference to any value
judgment constitutionalized by the framers, which values among competing values shall prevail
and how those values shall be implemented. In the modern period of American constitutional
law—which began in 1954, with Brown v. Board of Education—the United States Supreme Court
has played a major and unprecedented role in the formulation of human rights. 37 (Emphasis
supplied)

Perry goes on to discuss that most constitutional doctrines espoused by the US Supreme
Court reflect not value judgments, or interpretations or applications of value judgments, made and
embodied in the Constitution by the framers, but value judgments made and enforced by the Court
against other, electorally accountable branches of government.38 “Thus, in America the status of
constitutional human rights is almost wholly a function, not of constitutional interpretation, but of
constitutional policymaking by the Supreme Court,” Perry concluded.

Even as early as 1921, this so-called judicial legislation was already recognized by Justice
Benjamin Nathan Cardozo in his book, The Nature of Judicial Process. Justice Cardozo, quoting a critic,
said that “it is the function of our courts to keep the doctrines up to date with the mores by continual
restatement and by giving them a continually new content. This is judicial legislation, and the judge
legislates at his peril. Nevertheless, it is the necessity and duty of such legislation that gives to judicial
office its highest honor; and no brave and honest judge shirks the duty or fears the peril.”

In the Philippine Setting

In the book The Global Expansion of Judicial Power, C. Neal Tate gave a discussion of the
constitutional foundation for the judicialization of politics in the Philippines. He said:

36 M. PERRY, The Constitution, the Courts, and Human Rights 2 (1982).

37 Id.
38 Id.

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 The current (1987) Constitution of the Philippines certainly provides the structural
foundations for the judicialization of politics. It sets up a liberal democratic regime with an
impressive separation of the executive, legislative, and judicial branches of the government.
It assigns the Judiciary, headed and arranged by the Supreme Court, new and expanded
powers and responsibilities that give it great potential to judicialize a wide variety of policy
processes that would otherwise be the responsibility of the executive and the legislature,
that is, the majoritarian institutions. It also contains an elaborate Bill of Rights capable of
sustaining a vigorous politics of rights that would promote the judicialization of politics.39
(Emphasis supplied)

This discussion implies that our Judiciary was, consciously or unconsciously, provided by the
1987 Constitution framers a structural framework that will enable it to transform itself into a more
hands-on branch of government, one that is susceptible of judicial legislation.

Chief Justice Puno expressly recognized this occurrence in his speech Judicial Review: Quo
Vadis?, which he delivered during the 43rd Anniversary of the Philippine Constitution Association in
September 2004. He said that the 1987 Constitution established a strong Judiciary, one that can be
activist if it wanted to. “The clear picture that leaps out of the 1987 constitutional canvass is a
restored legislature, a less potent president, a more powerful court and a more participatory people,”
he stressed.

In virtue of its structural framework and revitalized power, the Philippine Judiciary has been
delving into judicial legislation. Despite the good intentions behind its promulgation, the Rule on the
Writ of Amparo is often regarded as a product of this kind of contravening judicial act.

Criticism for this aspect of the Rule is present because the Judiciary, which is composed of
unelected and appointed magistrates, is perceived to be an institution which does not reflect the
sentiments of the majority. The justices and judges are not chosen by the popular will, and do not
represent the general public. As such, the promulgation of the Rule can be perceived as an
encroachment on legislation and policy-making, which are the primary duties of the elected
representatives of the people.

39 C. Neal Tate, The Philippines and Southeast Asia, in 1995 The Global Expansion of Judicial Power 467.
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 VII. CONCLUSION

Beyond the issues regarding the Rule on the Writ of Amparo, this judicial remedy effectively
shows that the Philippine Supreme Court is dedicated to addressing the pressing need for a more
accessible, much swifter, and less expensive delivery of justice. So far, the results of the
promulgation of the Rule are visibly encouraging, and prove that the Rule on the Writ of Amparo is
truly a legal and legitimate weapon for protecting human rights. However, to enable the Rule to
reach its maximum potential as an extraordinary remedy, disseminating information about it as well
as raising public awareness on its effectiveness is still seriously needed. This is also needed to enable
the families of the victims of involuntary disappearances to fully utilize the Writ, and for their
lawyers to provide them with intelligent instruction and the best legal advice. Further, members of
the legal profession should persistently and effectively share the features of this remedy to their
peers and communities as they protect and defend the people’s rights. Indeed, a deeper and broader
understanding of the Rule on the Writ of Amparo will enable our lawyers to efficiently address enforced
disappearance cases, and to properly apply the theories into practice.

As for the issues and problems concerning the Writ, the Supreme Court has initiated efforts
in trying to address such problems. Last 2007, the Court began to hold a series of consultative
meetings on the Writ of Amparo.40 The Court held a series of consultative meetings with various
sectors on how the families of the victims of extrajudicial killings and enforced disappearances can
maximize the protection program under the Writ.41 The consultative meetings were held in particular
to elaborate on the abovementioned section of the Rule, regarding the accreditation of sanctuaries
for the protection of any person whose right to life, liberty, and security is violated or threatened
with violation as well as any member of his immediate family and any qualified witness. The
meetings were attended by representatives from various human rights, religious, and non-
governmental groups and organizations.42 Officials from the Philippine National Police (PNP),
Armed Forces of the Philippines (AFP), and the Department of National Defense (DND) also
attended the meetings.43 With these consultations, it is hoped that the aforementioned provision
regarding Temporary Protection Orders will finally be given life.

40 Jay Rempillo. ‘SC Holds Consultative Meetings on Amparo’ Available

http://sc.judiciary.gov.ph/news/courtnews%20flash/2007/10/10170702.php
41 Id.
42 Id.
43 Id.

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 As for the Rule being a product of judicial legislation, it is true that conservative views may
regard judicial legislation as a deviant exercise of the Judiciary’s power to make policies, and an
activity that runs counter to the basic tenets of democracy. However, this act is actually
constitutionally mandated, with the Constitution being the most prominent manifestation of our
democracy. Aside from this stable foundation, this kind of policy-making has also become
triumphant in preventing abuses of our human rights, and receptive to the needs and difficulties of
the majority. Standing on its express authority to uphold the Constitution and interpret laws, the
Supreme Court cannot be compelled to restrain from this kind of policy-making.

Recognizing the frailties of our freedom and inadequacy of our laws,44 as well as the poor
implementation of statutes, there is truly a need for a pro-active Judiciary. There is an unmistakable
urgency as compelling state interests and fundamental rights now merge into one cohesive concern.
With no other branch making that bold, courageous stand for human rights, the Judiciary has no
other choice but to do more than before, and promulgate rules analogous to the Rule on the Writ of
Amparo. Driven by the conviction that the Constitution is more than a cacophony of creeds, 45 the
Judiciary is now out of the sidelines, and into the fire.

– o0o –

44 Reynato Puno, The View from the Mountaintop, Keynote Address during the National Consultative Summit on
Extrajudicial Killings and Enforced Disappearances, in A CONSPIRACY OF HOPE: REPORT ON THE NATIONAL
CONSULTATIVE SUMMIT ON EXTRAJUDICIAL KILLINGS AND ENFORCED DISAPPEARANCES 41 (2007).
45 Id.

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