mcle lecture on amparo 2012 ibp cl

7/29/2019 Mcle Lecture on Amparo 2012 IBP CL

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Human Rights Legal Mechanisms:The Writ of AMPARO

Rep. Neri Javier ColmenaresMCLE Lecture for theIntegrated Bar of the Philippines


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Escalating Human Rights Violations

Enforced or Involuntary Disappearance

Extra judicial Killings

Impunity

Karen Empeno

Sherlyn Cadapan


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Nicaraguan Definition It may be Provided through Statute under Decree

No. 232 [The Law of Amparo for PersonalFreedom and Security] and the Constitution bythe 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 theState;

b)against a sentence of imprisonment imposedupon a person who has not been detained andwho wishes to be released from its effects.


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Amparo Suits in Mexico

1) "amparo" as a defense of individual rightssuch as life, liberty, and personal dignity;

2) "amparo" against laws deemed un-constitutional ;

3) "amparo" in judicial matters (examine thelegality of judicial decisions);

4) administrative "amparo" (providing jurisdictionagainst administrative enactments

5) "amparo" in agrarian matters (protecting thecommunal ejidal rights of the peasants)..


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1. Petition. The petition for a writ of

amparo is a remedy available to anyperson whose right to life, libertyand security is violated or threatened with violation by an

unlawful act or omission of a publicofficial or employee, or of a privateindividual or entity. The writ shallcover extralegal killings andenforced disappearances or threatsthereof.


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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


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Right to LibertyCase of Manalo and Reyes

Liberty as guaranteed by the

Constitution was defined xxx theright 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


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Release from prison does notmean no more threat to liberty

See Cruz vs Bulacan (Castillo vsCruz G.R. No. 182165 November 25, 2009


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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. t hird, the right to security of person is a guarantee of protection of ones rights by thegovernment.


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In a broad sense, the right to securityof person emanates in a personslegal and uninterrupted enjoyment of his life, his limbs, his body, his health,and his reputation. It includes the rightto exist, and the right to enjoyment of life while existing, and it is invadednot only by a deprivation of life butalso of those things which arenecessary to the enjoyment of lifeaccording to the nature,temperament, and lawful desires of the individual


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Extra judicial killing

As the Amparo Rule was intended toaddress the intractable problem ofextralegal killings and enforceddisappearances, its coverage, in itspresen t form, is confined to these twoinstances or to threats thereof.

Extralegal killings are killingscomm itted without due process oflaw, i.e. , without legal safeguards or

judicial proceedings.


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Secretary of Defense vs Manalo

1. an arrest, detention or abduction of aperson

2. by a government official or organizedgroups or private individuals

acting withthe direct or indirect acquiescence ofthe government;

3. the refusal of the State to disclose the fateor whereabouts of the person concerned

4. or a refusal to acknowledge thedeprivation of liberty which places suchpersons outside the protection of law.


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Government Participation-Crucial (Pardico Case)

Thus is the absence of anallegation or proof that thegovernment or its agents had ahand in Bens disappearance or thatthey failed to exercise extraordinarydiligence in investigating his case,the Court will definitely not hold thegovernment or its agents either asresponsible or accountablepersons, the high court held.


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Amparo does not cover purelyproperty or commercial issues

The threatened demolition of a dwelling byvirtue of a final judgment of the court, whichin this case was affirmed with finality by thisCourt in G.R. Nos. 177448 xxx is notincluded among the enumeration of rights

as stated in the above-quoted Section 1 for which the remedy of a writ of amparo ismade available. Canlas vs NapicoHomeowners Ass ociation ( G.R. No.182795)

What it is not, is a writ to protect concernsthat are purely property or commercial

(Tapuz v. Del Rosario G.R. No. 182484 )


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President as a Respondent

1. amparo does not result inadministrative, civil or criminalsanctions

2. David vs Arroyo obiter

3. immunity provisions


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Lozada vs. ArroyoIt is settled in jurisprudence that the Presidentenjoys immunity from suit during his or her tenure of office or actual incumbency. Conversely, thispresidential privilege of immunity cannot be invokedby a non-sitting president even for acts committedduring 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 privilegeof presidential immunity as a defense to evade

judicial determination of her responsibility or accountability for the alleged violation or threatenedviolation of the right to life, liberty and security of Lozada.


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Section 2 Hierarchy

1. The aggrieved party2. immediate family of the injured party3. relative within the fourth degree4. Any concerned citizen or organization if

there is no known member of theimmediate family or relative of theaggrieved 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


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Sec. 3 Where and When to File

The petition may be filed on any dayand at any time with the Regional TrialCourt of the place where the threat, actor 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


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Sec. 5 Contents of Petition

The petition shall be signed and verifiedand shall allege the following:

(a) The name and personalcircumstances of the petitioner andrespondent;

(b) if the name is unknown or uncertain,the respondent may be described by anassumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation


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(d) The investigation conducted, if

any, specifying the names, personalcircumstances of the investigatingauthority or individuals, as well asthe manner and conduct of theinvestigation,;

(e) The actions and recourses takenby the petitioner to determine thefate or whereabouts of theaggrieved party and the identity of the person responsible for thethreat, act or omission; and


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SEC. 6. Issuance of the Writ. Upon thefiling of the petition, the court, justice or

judge shall immediately order theissuance 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 TOSERVE THE WRIT

h d


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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 securityof the aggrieved party, through any act or omission;

(b) The steps or actions taken by theres pondent to determine the fate orwhereabouts of the aggrieved party andthe person or persons responsible for thethreat, act or omission;

(c) All relevant information in thepossession of the respondent pertaining tothe threat, act or omission against theaggrieved party; and


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(d) If the respondent is a public official

the return shall further state theactions that have been or will still betaken:

(ii) to recover and preserve evidencerelated to the death or disappearanceof the person x x x ;

(iii) to identify witnesses and obtainstatements from them concerning thedeath or disappearance;


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(iv) to determine the cause, manner,

location and time of death or disappearance as well as anypattern or practice that may havebrought about the death or disappearance;

(v) to identify and apprehend theperson or persons involved; and

(vi) to bring the suspected offendersbefore a competent court.


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Sec. 14-Interim Relief

(a) Temporary Protection Order. Thecourt,, upon motion or motu proprio , may order that the petitioner or the aggrieved party and anymember of the immediate family beprotected in a government agency or by an accredited person or privateinstitution capable of keeping andsecuring their safety.


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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 approp riate remedies to address the disappearance


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Witness Protection

The court, justice or judge, upon motionor motu proprio , may refer thewitnesses to the Department of Justicefor admission to the Witness Protection,Security and Benefit Program, xxx

The court, justice or judge may also refer the witnesses to other governmentagencies, or to accre dited persons orprivate institutions capable of keepingan d securing their safety.


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(c) Inspection Order. The court,upon verified motion and afterdue hearing , may order anyperson in possession or control of a designated land or other

property, to permit entry for thepurpose of inspecting, measuring,surveying, or photographing theproperty or any relevant object or operation thereon.


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GATDULA VS. DOJ

RTC Judge Pampilo granted themotion for inspection of the vehicleused by the victim during theambush.

Solicitor General objects on theground that it is irrelevant


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Yano vs. SanchesWhile xxx We could not find any link between

Respondents individual military officers to thedisappearance of Nicolas and Heherson,nonetheless, the fact remains that the two men arestill missing. Hence, We find it equitable to grant

petitioners some reliefs in the interest of humanrights and justice as follows: 1. Inspections of the following camps: Camp

Servillano Aquino, San Miguel, Tarlac City, anymilitary camp of the 7 th Infantry Division located inxxx Hacienda Luisita, Tarlac City, within reasonableworking hours of any day except when the military

camp is on red alert status.


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Opposition on National Security

the court, may conduct a hearing inchambers to determine the merit of theopposition . The movant must show thatthe inspection order is necessary toestablish the right of the aggrieved partyalleged to be threatened or violated. and

Specify the persons authorized to make theinspection and the date, time, place andmanner of making the inspection and mayprescribe other conditions to protect theconstitutional rights of all parties. The order shall expire five (5) days after the date of itsissuance, unless extended.


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c. Production Order

The court, upon verified motionand after due hearing , may order any person in possession, custodyor control of any designateddocuments, papers, x x xphotographs, tangible things, or objects in digitized or electronicform, which constitute or containevidence relevant to the petition or the return, to produce and permittheir inspection, copying or photographing.

SEC 17 Burden of Proof and Standard of Diligence


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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 ap plicable laws xx was observed in the performance of duty.

The respondent public official or employee

cannot invoke the presumption thatofficial duty has been regularlyperformed to evade responsibility or liability.


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Razon vs Tagitis

These difficulties largely arise becausethe State itself the party whoseinvolvement is alleged investigatesenforced disappearances. Past

experiences in other jurisdictions showthat the evidentiary difficulties aregenerally threefold.


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First , there may be a deliberateconcealment of the identities of thedirect perpetrators. Experts note thatabductors are well organized, armed andusually members of the military or policeforces

Second , deliberate concealment ofpertinent evidence of the disappearance is a distinct possibility

Third is the element of denial ; in manycases, the State authorities deliberatelydeny that the enforced disappearance ever occurred


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The [Writ] provides rapid judicial relief as itpartakes of a summary proceeding thatrequires only substantial evidence to make theappropriate reliefs available to the petitioner; itis not an (1) action to determine criminal guiltrequiring proof beyond reasonable doubt, or (2) liability for damages requiring

preponderance of evidence, or(3)administrative responsibility requiring

substantial evidence that will require fulland exhaustive proceedings. ]

Four Kinds of Proceedings or Four Levels of Proof

(GR N 182498 R T i i


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(GR No. 182498, Razon v. Tagitis,December 3, 2009)

we reduce our rules to the most basictest of reason i.e ., to the relevanceof the evidence to the issue at handand its consistency with all other

pieces of adduced evidence. Thus,even hearsay evidence can beadmitted if it satisfies this basicminimum test.


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SEC. 19. Appeal. Any party mayappeal 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 daysfrom the date of notice of the adverse

judgment. The appeal shall be given thesame priority as in habeas corpus cases.


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SEC. 22. Effect of Filing of a Criminal Action . When a criminal action hasbeen commenced, no separate petitionfor the writ shall be filed. The reliefs

under the writ shall be available bymotion in the criminal case . Theprocedure under this Rule shall governthe disposition of the reliefs availableunder the writ of amparo .

- consolidation with pending criminalaction


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Pending Criminal action fatal Guerra Case

The reason why the pendency of acriminal action bars the filing of a petitionfor Amparo is, as the Supreme Court(SC) explains in its annotation to the writ

of amparo, to avoid the difficulties thatmay be encountered when the amparoaction is allowed to proceed separatelyfrom the criminal action, wherein twocourts trying essentially the same subjectmay issue conflicting orders,


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Initial Rulings 1. Bustamante/Munasque- Voluntary

Custody not an absolute defense inamparo

2. Mangayon voluntary custody valid

3. Burgos-failure to present clear proof of involvement of respondents leads todismissal of amparo

4.Cadapan military failed to prove thatthey do not have cadapan-empeno asagainst testimony of witnesses


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5. Judge Floro case- Judge vs Judgemust be resolved within SCadministrative rules

6. Kriss Mccord Amparo is not adefense in deportation proceedings

7. Chee Leong case-amparo cannot curea lost appeal

8. Rubrico TRO cannot be granted inamparo


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9. Bill Luz withdraw amparo petition 10. Mary Tagitis Case (Petitioners

case)

11. Funcion vs RTC Amparo is notremedy for mistrial

12 Fr Robert Reyes==amparo is notavailable if the act is not unlawful


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Secretary Of National Defense vs.Manalo [ G.R. No. 180906, Oct. 7, 2008]

As the Amparo Rule was intended toaddress the intractable problem ofextralegal killings and enforceddisappearances, its coverage, in itspresen t form, is confined to these twoinstances or to threats thereof.

Extralegal killings are killingscomm itted without due process oflaw, i.e. , without legal safeguards or

judicial proceedings.


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Findings

the abduction was perpetrated byarmed me n who were sufficientlyidentified by the petitioners (hereinresp ondents) to be military personnel an d CAFGU auxiliaries

We are convinced, too, that the reasonfor the abduction was the suspicion thatthe petitioners were either members or sympathizers of the NPA


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Refer to investigative agencies

The efforts exerted by the MilitaryCommand to look into theabduction were, at best, merelysuperficial

there need not necessarily be adeprivation of liberty for the right

to security of person to beinvoked.


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(1) Gen. Palparans participation in theabduction was also established. At thevery least, he was aware of thepetitioners captivity at the hands of menin uniform assigned to his command.

(2) x x x his knowledge of the diresituation of the petitioners during theirlong captivity at the hands of militarypersonnel under his command bespokeof his indubitable command policy that

unavoidably encouraged and not merelytolerated the abduction of civilians withoutdue process of law


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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 anddiscovery

4. jurisprudence

mcle lecture on amparo 2012 ibp cl

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