Malaya (03.27.12)
“Sec. 1 of the Rule clearly states that ‘the writ shall cover extralegal killings and disappearances or threats thereof.’ Read that as ‘the writ shall cover only extralegal killings and enforced disappearances,’ and you will still be right.”
by Ducky Paredes
A resolution of the Supreme Court of September 25, 2007 and amended in its resolution of October 16, 2007 created the “Writ of Amparo.” As explained by retired Associate Justice of the Supreme Court Vicente V. Mendoza, “Sec. 1 of the Rule clearly states that ‘the writ shall cover extralegal killings and disappearances or threats thereof.’ Read that as ‘the writ shall cover only extralegal killings and enforced disappearances,’ and you will still be right.”
Mendoza explains: “Indeed, as the impetus for the adoption of the writ is the number of abductions and summary executions (so-called “salvaging”) of suspected rebels, militants, journalists, government critics, and student activists and the cases of tortures, coercion and other forms of abuses of persons under arrest or detention. Although these cases are not limited to those committed by agents of the state but include as well those committed by private individuals, it is to the problem of adequacy of existing remedies for human rights violations committed by government agents that the Rule on the Writ of Amparo appears to be particularly addressed.
“Now what is the writ of amparo? Perhaps it would be better if I start by saying what I believe the writ is not. The writ is not an independent action. It is not an extraordinary writ or a prerogative writ like habeas corpus, certiorari, prohibition, mandamus or quo warranto. It is an auxiliary remedy designed to aid a court in the exercise of jurisdiction already granted to it to try cases involving violations of personal freedoms and security.
“In Villavicencio v. Lukban, the Court indicated three remedies which any person suffering from arbitrary personal restraint has: civil actions, criminal prosecutions, and petition for the writ of habeas corpus. Later cases mention a fourth remedy, and that is, administrative proceedings against public officers, who are guilty of abuse of authority. By adopting the Rule on the Writ of Amparo, I do not think the Supreme Court thereby added a separate and independent remedy for violations or threatened violations of individual liberty but only a remedy ancillary to any of the existing remedies.
“The writ of amparo cannot be regarded as a new action without making it duplicate existing forms of actions like habeas corpus and mandamus. More than that, the writ of amparo cannot be regarded as a new action because the constitutional power of the Court to adopt rules of procedure is subject to the limitation that the rules do not “diminish, increase, or modify substantive rights.” A new action can only be provided or created by law or the Constitution by conferring jurisdiction for this purpose on the courts. To consider the writ of amparo an independent action would be to say either that it increases or that it modifies substantive rights. The Rule in fact disclaims any intention to do so. Sec. 24 expressly provides that “[it] shall not diminish, increase or modify rights recognized and protected by the Constitution.”
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So, how could a Manila judge grant a petition by former National Bureau of Investigation (NBI) director Magtanggol Gatdula for a writ of amparo? Gatdula went to Regional Trial Court Branch 26 Judge Silvino Pampilo Jr. for a Writ of Amparo. Gatdua presented two witnesses who testified that armed men who identified themselves as from the NBI were looking for Gatdula.
Based on that, the judge directed Justice Secretary Leila de Lima, NBI officer-in-charge Nonnatus Caesar Rojas and NBI deputy director Reynaldo Esmeralda to “cease and desist from further threatening the petitioner and his family’s lives, liberty and security.”
Pampilo says that “mere communication to petitioner of an intent to inflict harm should already bring about the issuance of a writ of amparo.”
Explains the judge: “Petitioner cannot be expected to wait until such time that he is already shot at or illegally detained to file a petition for the issuance of a writ of amparo. Besides, the rule is proactive, it is anticipatory, serving to prepare or control an expected occurrence or situation.”
What does this do to the image of our justice system? Our Secretary of Justice, who was, at one time with the Human Rights Commission is officially suspected by a sitting judge of planning to eliminate a former NBI Director through an extra-judicial killing?
Has our country gotten that bad or is this judge dead wrong in applying the Writ of Amparo in a case where the writ has no business being cited? Are armed men who identify themselves as being with the National Bureau of Investigation the same as armed men who will not identify themselves and who disclaim any connection with government one and the same thing? Is one in danger and can call on the writ to protect himself against the authorities doing their sworn duty to enforce our laws?
If this is what the writ does, perhaps, it ought to be declared illegal by an act of congress. The writ was proclaimed to protect against extra-judicial killings not to protect those accused of kidnapping, abuse and an ambush of a government official.
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“The nature and time-tested role of amparo has shown that it is an effective and inexpensive instrument for the protection of constitutional rights.1 Amparo, literally “to protect,” originated in Mexico and spread throughout the Western Hemisphere where it has gradually evolved into various forms, depending on the particular needs of each country.2 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:3
“(1) For the protectionofpersonalfreedom,equivalenttothe 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.” Annotation to the Writ of Amparo, an SC Document.
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hvp 03.26.12
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