“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
things which are necessary to the
enjoyment of life
 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 has been
endowed by his Creator,” x x x
• 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
xxx
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 nature,
temperament, and lawful desires of
the individual
 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 of liberty which places such
persons outside the protection of law.”
 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 are purely property or commercial
(Tapuz v. Del Rosario G.R. No. 182484 )
•
 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
accountability for the alleged violation or threatened
violation of the right to life, liberty and security of
Lozada.
 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 whereabouts of the
aggrieved party and the identity of
the person responsible for the
threat, act or omission; and
• 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;

• (c) All relevant information in the

possession of the respondent pertaining to
the threat, act or omission against the
aggrieved party; and
• (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

statements from them concerning the
death or disappearance;
• (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

before a competent court.
 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 disappearance
 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 capable of keeping
and securing their safety.
• (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
xxx Hacienda Luisita, Tarlac City, within reasonable
working hours of any day except when the military
camp is on red alert status.
 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
prescribe other conditions to protect the
constitutional rights of all parties. The order
shall expire five (5) days after the date of its
issuance, unless extended.
 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 responsibility or
liability.
 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, the State authorities deliberately
deny that the enforced disappearance ever
occurred
 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
substantial evidence that will require full
and exhaustive proceedings.]
(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

action
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

they do not have cadapan-empeno as
against testimony of witnesses
• 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
sympathizers of the NPA
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 abduction of civilians without
due process of law
 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