The Supreme Court promulgated the writ of amparo on Sept.
25, 2007, as a legal
remedy to the increasing incidence of extralegal killings and enforced disappearances
of activists and journalists during the Gloria Macapagal-Arroyo administration.
Extralegal killings are defined as “those committed without due process of law”
including “the illegal taking of life regardless of the motive, summary and arbitrary
executions, ‘salvagings’ even of suspected criminals, and threats to take the life of
persons who are openly critical of erring government officials and the like.”
Enforced disappearances include “an arrest, detention or abduction of a person; the
refusal of the state to disclose the fate or whereabouts of the person concerned; or a
refusal to acknowledge the deprivation of liberty which places such persons outside
the protection of the law.”
The writ, from the Spanish word “amparar” (to protect), was seen as a deterrent to
abuses committed by the military and police.
The writ may be filed at no cost in the Supreme Court, Court of Appeals, Regional
Trial Courts and Sandiganbayan and requires a summary hearing in seven days from
its issuance.
A temporary protection order (TPO) may be issued to the aggrieved party or family. If
the petitioner is an institution, the TPO will cover its officers.
Respondents, whether government officials or private persons, are required to respond
to a petition for the writ in 72 hours.
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Since the inception of the highly controversial Oplan Tokhang last year, the Supreme Court sitting en
banc has already issued two writs of Amparo.
The first writ of Amparo was issued on Jan. 31 for Efren Murillo, who survived the anti-illegal drug
operation conducted on Aug. 21, 2016 in Payatas, Quezon City, and the relatives of garbage
collectors Marcello Daa, Jessie Cule, Raffy Gabo, and Anthony Comendo. The second writ was
granted on Feb. 21, in favor of Christina Macandog Gonzales, widow of Joselito Gonzales, who died
of multiple gunshot wounds on July 5, 2016, during a reported encounter with policemen.
Because of the highlight given by Oplan Tokhang to the writ of Amparo, a discussion on the nature
of the writ and its legal implications is due.
Of Mexican origin, the writ of Amparo (“Amparo” literally means “protection” in Spanish) 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 covers extralegal killings and enforced disappearances or threats thereof.
The governing law on petitions for and the issuance of a writ of Amparo is found in The Rule on the
Writ of Amparo (A.M. No. 07-9-12-SC), which was promulgated by the Supreme Court on October
24, 2007.
The writ of Amparo provides rapid judicial relief as it partakes of a summary proceeding that requires
only substantial evidence -- such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion. It is not an action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full and exhaustive proceedings.
The writ serves both preventive and curative roles in addressing the problem of extralegal killings
and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the
commission of these offenses; it is curative in that it facilitates the subsequent punishment of
perpetrators as it will inevitably yield leads to subsequent investigation and action. In the long run,
the goal of both the preventive and curative roles is to deter the further commission of extralegal
killings and enforced disappearances. (The Secretary of National Defense v. Raymond and
Reynaldo Manalo, G.R. No. 180906, 7 October 2008)
The Amparo 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. There are
no docket and other lawful fees for the petition.
Upon filing of the petition or at any time before final judgment, the court, justice or judge may grant a
Temporary Protection Order, Inspection Order, Production Order, or Witness Protection Order.
In the case of Murillo, the Supreme Court issued a Temporary Protection Order barring the police
from entering the homes and workplaces of the families of the victims. The Court of Appeals has
already made the protection order permanent and ordered the transfer of the police officers involved
to an area outside Quezon City and Rizal.
In the case of Gonzales, the Supreme Court disallowed the respondents from entering within a
radius of one kilometer from the residence and work address of the petitioner in Antipolo City. It also
remanded the case to the Court of Appeals and gave the respondents five working days to make a
verified return.
Since July 1, 2016 to Jan. 31, 2017, there have been over 7,000 deaths linked to the war on drugs --
both from legitimate police operations and vigilante-style or unexplained killings, including deaths
under investigation. In a statement, Chief Justice Ma. Lourdes Sereno lamented that the perception
of the rule of law in the country has diminished due to unresolved killings of drug suspects.
The writ of Amparo eases the problem of unresolved killings of drug suspects as it guarantees the
aggrieved parties their constitutional rights to life, liberty, and security of person. To reiterate, the
goal of the writ is to deter the further commission of extralegal killings and enforced disappearances.
As declared by the Supreme Court in the Manalo case, the writ of Amparo is a tool that gives voice
to preys of silent guns and prisoners behind secret walls.
http://www.conventuslaw.com/report/philippines-understanding-the-writ-of-amparo-in/
Since then, the protection has been an important part of Mexican constitutionalism.81 If, after hearing,
the judge determines that a constitutional right of the petitioner is being violated, he orders the official,
or the official's superiors, to cease the violation and to take the necessary measures to restore the
petitioner to the full enjoyment of the right in question. Amparo thus combines the principles of judicial
review derived from the U.S. with the limitations on judicial power characteristic of the civil law
tradition which prevails in Mexico. It enables courts to enforce the constitution by protecting individual
rights in particular cases, but prevents them from using this power to make law for the entire nation.
The writ of Amparo then spread throughout the Western Hemisphere, gradually evolving into various
forms, in response to the particular needs of each country.83 It became, in the words of a justice of the
Mexican Federal Supreme Court, one piece of Mexico's self-attributed "task of conveying to the world's
legal heritage that institution which, as a shield of human dignity, her own painful history conceived."84
What began as a protection against acts or omissions of public authorities in violation of constitutional
rights later evolved for several purposes: (1) Amparo libertad for the protection of personal freedom,
equivalent to the habeas corpus writ; (2) Amparo contra leyes for the judicial review of the
constitutionality of statutes; (3) Amparo casacion for the judicial review of the constitutionality and
legality of a judicial decision; (4) Amparo administrativo for the judicial review of administrative actions;
and (5) Amparo agrario for the protection of peasants' rights derived from the agrarian reform
process.85
In Latin American countries, except Cuba, the writ of Amparo has been constitutionally adopted to
protect against human rights abuses especially committed in countries under military juntas. In general,
these countries adopted an all-encompassing writ to protect the whole gamut of constitutional rights,
including socio-economic rights.86 Other countries like Colombia, Chile, Germany and Spain, however,
have chosen to limit the protection of the writ of Amparo only to some constitutional guarantees or
fundamental rights.
In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo,
several of the above Amparo protections are guaranteed by our charter. The second paragraph of
Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial
power "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."
However, with the swiftness required to resolve a petition for a writ of Amparo through summary
proceedings and the availability of appropriate interim and permanent reliefs under the Amparo Rule,
this hybrid writ of the common law and civil law traditions - borne out of the Latin American and
Philippine experience of human rights abuses - offers a better remedy to extralegal killings and
enforced disappearances and threats thereof. The remedy 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 action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will require full
and exhaustive proceedings.
.the abduction was perpetrated by armed men who were sufficiently identified by the petitioners
(herein respondents) to be military personnel and CAFGU auxiliaries. Raymond recalled that the six
armed men who barged into his house through the rear door were military men based on their attire
of fatigue pants and army boots, and the CAFGU auxiliaries, namely: Michael de la Cruz, Madning
de la Cruz, Puti de la Cruz and Pula de la Cruz, all members of the CAFGU and residents of Muzon,
San Ildefonso, Bulacan, and the brothers Randy Mendoza and Rudy Mendoza, also CAFGU
members, served as lookouts during the abduction. Raymond was sure that three of the six military
men were Ganata, who headed the abducting team, Hilario, who drove the van, and George.
Subsequent incidents of their long captivity, as narrated by the petitioners, validated their assertion
of the participation of the elements of the 7th Infantry Division, Philippine Army, and their 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, considering that the abductors were looking for Ka
Bestre, who turned out to be Rolando, the brother of petitioners.
The efforts exerted by the Military Command to look into the abduction were, at best, merely
superficial. The investigation of the Provost Marshall of the 7th Infantry Division focused on the one-
sided version of the CAFGU auxiliaries involved. This one-sidedness might be due to the fact that
the Provost Marshall could delve only into the participation of military personnel, but even then the
Provost Marshall should have refrained from outrightly exculpating the CAFGU auxiliaries he
perfunctorily investigated...
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. In fact, he or
any other officer tendered no controversion to the firm claim of Raymond that he (Gen. Palparan)
met them in person in a safehouse in Bulacan and told them what he wanted them and their parents
to do or not to be doing. Gen. Palparan's direct and personal role in the abduction might not have
been shown but 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 and without probable cause.
In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices Buzon,
chairman; Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr., member/ponente.) found no
clear and convincing evidence to establish that M/Sgt. Rizal Hilario had anything to do with the
abduction or the detention. Hilario's involvement could not, indeed, be then established after
Evangeline Francisco, who allegedly saw Hilario drive the van in which the petitioners were boarded
and ferried following the abduction, did not testify. (See the decision of the habeas proceedings at
rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white L-300 van in which the
petitioners were brought away from their houses on February 14, 2006. Raymond also attested that
Hilario participated in subsequent incidents during the captivity of the petitioners, one of which was
when Hilario fetched them from Fort Magsaysay on board a Revo and conveyed them to a
detachment in Pinaud, San Ildefonso, Bulacan where they were detained for at least a week in a
house of strong materials (Exhibit D, rollo, p. 205) and then Hilario (along with Efren) brought them
to Sapang, San Miguel, Bulacan on board the Revo, to an unfinished house inside the compound of
Kapitan where they were kept for more or less three months. (Exhibit D, rollo, p. 205) It was there
where the petitioners came face to face with Gen. Palparan. Hilario and Efren also brought the
petitioners one early morning to the house of the petitioners' parents, where only Raymond was
presented to the parents to relay the message from Gen. Palparan not to join anymore rallies. On
that occasion, Hilario warned the parents that they would not again see their sons should they join
any rallies to denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario was also
among four Master Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen.
Palparan conversed on the occasion when Gen. Palparan required Raymond to take the medicines
for his health. (Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw that
Hilario had a direct hand in their torture.
It is clear, therefore, that the participation of Hilario in the abduction and forced disappearance of the
petitioners was established. The participation of other military personnel like Arman, Ganata,
Cabalse and Caigas, among others, was similarly established.
We now come to the right of the respondents to the privilege of the writ of Amparo. There is no
quarrel that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has
now passed as they have escaped from captivity and surfaced. But while respondents admit that
they are no longer in detention and are physically free, they assert that they are not "free in every
sense of the word"109 as their "movements continue to be restricted for fear that people they have
named in their Judicial Affidavits and testified against (in the case of Raymond) are still at large and
have not been held accountable in any way. These people are directly connected to the Armed
Forces of the Philippines and are, thus, in a position to threaten respondents' rights to life, liberty
and security."110 (emphasis supplied) Respondents claim that they are under threat of being once
again abducted, kept captive or even killed, which constitute a direct violation of their right to
security of person.
Elaborating on the "right to security, in general," respondents point out that this right is "often
associated with liberty;" it is also seen as an "expansion of rights based on the prohibition against
torture and cruel and unusual punishment." Conceding that there is no right to security expressly
mentioned in Article III of the 1987 Constitution, they submit that their rights "to be kept free from
torture and from incommunicado detention and solitary detention places 112 fall under the general
coverage of the right to security of person under the writ of Amparo." They submit that the Court
ought to give an expansive recognition of the right to security of person in view of the State Policy
under Article II of the 1987 Constitution which enunciates that, "The State values the dignity of every
human person and guarantees full respect for human rights." Finally, to justify a liberal interpretation
of the right to security of person, respondents cite the teaching in Moncupa v. Enrile113 that "the right
to liberty may be made more meaningful only if there is no undue restraint by the State on the
exercise of that liberty"114 such as a requirement to "report under unreasonable restrictions that
amounted to a deprivation of liberty"115 or being put under "monitoring and surveillance."116
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.
First, the right to security of person is "freedom from fear." In its "whereas" clauses,
the Universal Declaration of Human Rights (UDHR) enunciates that "a world in which human
beings shall enjoy freedom of speech and belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common people." (emphasis supplied) Some scholars
postulate that "freedom from fear" is not only an aspirational principle, but essentially an individual
international human right.124 It is the "right to security of person" as the word "security" itself means
"freedom from fear."125 Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.126 (emphasis supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil
and Political Rights (ICCPR) also provides for the right to security of person, viz:
1. 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. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the
rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from
being baseless to well-founded as people react differently. The degree of fear can vary from one
person to another with the variation of the prolificacy of their imagination, strength of character or
past experience with the stimulus. Thus, in the Amparo context, it is more correct to say that the
"right to security" is actually the "freedom from threat." Viewed in this light, the "threatened with
violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to
security mentioned in the earlier part of the provision. 127
