Writ of amparo, Rule on the Writ of Amparo
1. Concept
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. (Section, A.M. No. 07-9-12-SC, Rule on the Writ of Amparo)
a. Coverage
The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Paragraph 2, Section, Ibid.)
| Elements constituting enforced disappearance as defined under RA No. 9851: |
| 1) That there be an arrest, detention, abduction or any form of deprivation of liberty; |
| 2) That it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization; |
| 3) That it be followed by the State or political organization’s refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition; and |
| 4) that the intention for such refusal is to remove subject person from the protection of the law for a prolonged period of time. (Callo v. Morente, En Banc, G.R. No. 230324, 19 September 2017) |
In Re: Petition for Writ of Amparo and Writ of Habeas Corpus in favor of AJ S. Lucena, En Banc, (2020)
• The remedy of amparo, in its present formulation, is confined merely to instances of “extralegal killings” or “enforced disappearances” and to threats thereof. x x x
• Here, there is not much issue that AJ’s situation does not qualify either as an actual or threatened enforced disappearance or extralegal killing. AJ is not missing. Her whereabouts are determinable. By all accounts, she is staying with the Anakbayan and its officers which, at least insofar as AJ’s case is concerned, are not agents or organizations acting on behalf of the State. Indeed, against these facts, petitioners’ invocation of the remedy of cannot pass. x x x
• As she has already attained the age of majority, AJ — at least in the eyes of the State -has earned the right to make independent choices with respect to the places where she wants to stay, as well as to the persons whose company she wants to keep. Such choices, so long as they do not violate any law or any other persons’ rights, has to be respected and let alone, lest we trample upon AJ’s personal liberty — the very freedom supposed to be protected by the writs of amparo and habeas corpus. While we understand that petitioners may feel distressed over AJ’s decision to leave their home and stay with the Anakbayan, their recourse unfortunately does not lie with the Court through the instant petition. The writs of amparo and habeas corpus were never meant to temper the brashness of youth. The resolution of the conflict besetting petitioners and their daughter AJ is simply beyond the competence of the writs applied for.
Secretary of National Defense v. Manalo, En Banc (2008)
• [T]he 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. On the other hand, enforced disappearances are attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; 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 law.
Callo v. Morente (September 2017)
• It is clear that the elements of enforced disappearance are not attendant in this case. There is also no threat of such enforced disappearance. While there is indeed a detention carried out by the State through the Bureau of Immigration, the third and fourth elements are not present. There is no refusal to acknowledge the deprivation of freedom or refusal to give information on the whereabouts of Parker because as Callo admits, Parker is detained in the Immigration Detention Facility of the Bureau of Immigration. The Bureau of Immigration also does not deny this. In fact, the Bureau of Immigration had produced the body of Parker before the RTC in the proceedings for the writ of habeas corpus previously initiated by Parker herself.9 Similarly, there is no intention to remove Parker from the protection of the law for a prolonged period of time. As the Bureau of Immigration explained, Parker has a pending criminal case against her in Davao City, which prevents the Bureau of Immigration from deporting her from the country.
• Simply put, we see no enforced or involuntary disappearance, or any threats thereof, that would warrant the issuance of the writ of amparo. For the issuance of the writ, it is not sufficient that a person’s life is endangered. It is even not sufficient to allege and prove that a person has disappeared. It has to be shown by the required quantum of proof that the disappearance was carried out by, or with the authorization, support or acquiescence of the government or a political organization, and that there is a refusal to acknowledge the same or to give information on the fate or whereabouts of the missing persons. In this case, Parker has not disappeared. Her detention has been sufficiently justified by the Bureau of Immigration, given that there is an SDO and a pending criminal case against her.
Navia v. Padrico, En Banc (June 2012)
• But lest it be overlooked, in an amparo petition, proof of disappearance alone is not enough. It is likewise essential to establish that such disappearance was carried out with the direct or indirect authorization, support or acquiescence of the government. This indispensable element of State participation is not present in this case. The petition does not contain any allegation of State complicity, and none of the evidence presented tend to show that the government or any of its agents orchestrated Ben’s disappearance. In fact, none of its agents, officials, or employees were impleaded or implicated in Virginia’s amparo petition whether as responsible or accountable persons.51 Thus, in 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.
b. 1987 Constitution
SC’s power to promulgate rules. The Rule on the Writ of Amparo was issued by this Court as an exercise of its power to “promulgate rules concerning the protection and enforcement of constitutional rights[.]” Section 1 defines a petition for a writ of amparo as “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 of amparo is, thus, an equitable and extraordinary remedy primarily meant to address concerns such as, but not limited to, extrajudicial killings and enforced disappearances, or threats thereof. (In Re: Petition for Writ of Amparo of VA Sanchez, En Banc, G.R. No. 242257, 15 October 2019)
Amparo protections in the 1987 Constitution. 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.” The Clause accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions of the 1987 Constitution. The Clause is an offspring of the U.S. common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v. Madison. (Secretary of National Defense v. Manalo, En Banc, G.R. No. 180906, 07 October 2008)
| The writ of Amparo is designed to protect and guarantee: |
| 1) The right to life; |
| 2) The right to liberty; |
| 3) The right to security of persons, free from fears and threats that vitiate the quality of life. (Agcaoili, Jr. v. Marcos, En Banc, G.R. No. 232395, 03 July 2018) |
Secretary of National Defense v. Manalo, En Banc (2008)
• While constitutional rights can be protected under the Grave Abuse Clause through remedies of injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under Rule 102, these remedies may not be adequate to address the pestering problem of extralegal killings and enforced disappearances. 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 writ of Amparo 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.
Right to security. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge. (Section 2, Article III, 1987 Constitution)
Secretary of National Defense v. Manalo, En Banc (2008)
• 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” 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.” 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.
• Let us put this right to security under the lens to determine if it has indeed been violated as respondents assert. The right to security or the right to security of person finds a textual hook in Article III, Section 2 of the 1987 Constitution which provides…
• At the core of this guarantee is the immunity of one’s person, including the extensions of his/her person – houses, papers, and effects – against government intrusion. Section 2 not only limits the state’s power over a person’s home and possessions, but more importantly, protects the privacy and sanctity of the person himself. x x x
• 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. It is the “right to security of person” as the word “security” itself means “freedom from fear.”
• 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.
• Second, the right to security of person is a guarantee of bodily and psychological integrity or security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one’s body cannot be searched or invaded without a search warrant. Physical injuries inflicted in the context of extralegal killings and enforced disappearances constitute more than a search or invasion of the body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a crime against persons because they are an affront to the bodily integrity or security of a person.
• Third, the right to security of person is a guarantee of protection of one’s rights by the government. In the context of the writ of Amparo, this right is built into the guarantees of the right to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security of person in this third sense is a corollary of the policy that the State “guarantees full respect for human rights” under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if government does not afford protection to these rights especially when they are under threat. Protection includes conducting effective investigations, organization of the government apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders to the bar of justice. x x x
• In sum, we conclude that respondents’ right to security as “freedom from threat” is violated by the apparent threat to their life, liberty and security of person. Their right to security as a guarantee of protection by the government is likewise violated by the ineffective investigation and protection on the part of the military.
c. Command responsibility
In Re: Petition for the Writ of Amparo and Habeas Data in favor of NH Rodriguez, En Banc (November 2011)
• The doctrine of command responsibility may be used to determine whether respondents are accountable for and have the duty to address the abduction of Rodriguez in order to enable the courts to devise remedial measures to protect his rights. Clearly, nothing precludes this Court from applying the doctrine of command responsibility in amparo proceedings to ascertain responsibility and accountability in extrajudicial killings and enforced disappearances.
• That proceedings under the Rule on the Writ of Amparo do not determine criminal, civil or administrative liability should not abate the applicability of the doctrine of command responsibility. x x x
• Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extraordinary diligence that the Amparo Rule requires. We hold these organizations accountable through their incumbent Chiefs who, under this Decision, shall carry the personal responsibility of seeing to it that extraordinary diligence, in the manner the Amparo Rule requires, is applied in addressing the enforced disappearance of Tagitis.
• As earlier pointed out, amparo proceedings determine (a) responsibility, or the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, and (b) accountability, or the measure of remedies that should be addressed to those (i) who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or (ii) who are imputed with knowledge relating to the enforced disappearance and who carry the burden of disclosure; or (iii) those who carry, but have failed to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. Thus, although there is no determination of criminal, civil or administrative liabilities, the doctrine of command responsibility may nevertheless be applied to ascertain responsibility and accountability within these foregoing definitions. x x x
• Having established the applicability of the doctrine of command responsibility in amparo proceedings, it must now be resolved whether the president, as commander-in-chief of the military, can be held responsible or accountable for extrajudicial killings and enforced disappearances. We rule in the affirmative.
• To hold someone liable under the doctrine of command responsibility, the following elements must obtain:
a. the existence of a superior-subordinate relationship between the accused as superior and the perpetrator of the crime as his subordinate;
b. the superior knew or had reason to know that the crime was about to be or had been committed; and
c. the superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators thereof.
• The president, being the commander-in-chief of all armed forces,85 necessarily possesses control over the military that qualifies him as a superior within the purview of the command responsibility doctrine.
• On the issue of knowledge, it must be pointed out that although international tribunals apply a strict standard of knowledge, i.e., actual knowledge, such may nonetheless be established through circumstantial evidence. In the Philippines, a more liberal view is adopted and superiors may be charged with constructive knowledge. This view is buttressed by the enactment of Executive Order No. 226, otherwise known as the Institutionalization of the Doctrine of ‘Command Responsibility’ in all Government Offices, particularly at all Levels of Command in the Philippine National Police and other Law Enforcement Agencies (E.O. 226). Under E.O. 226, a government official may be held liable for neglect of duty under the doctrine of command responsibility if he has knowledge that a crime or offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before, during, or immediately after its commission. Knowledge of the commission of irregularities, crimes or offenses is presumed when (a) the acts are widespread within the government official’s area of jurisdiction; (b) the acts have been repeatedly or regularly committed within his area of responsibility; or (c) members of his immediate staff or office personnel are involved.
Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief of the armed forces, the president has the power to effectively command, control and discipline the military.
c. Procedure
| Who May File |
| The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: |
| 1) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; |
| 2) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or |
| 3) Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party. (Section 2, A.M. No. 07-9-12-SC, Rule on the Writ of Amparo |
Callo v. Morente (September 2017)
• Thus, while “any person” may file a petition for the writ of habeas corpus, in a petition for the writ of amparo, the order of priority on who can file the petition should be strictly followed. In this case, there was no allegation nor proof that Parker had no immediate family members or any ascendant, descendant, or collateral relative within the fourth civil degree of consanguinity or affinity. In fact, no allegation was made on any of the familial relationship of Parker as only her whereabouts from 2011 were alleged and discussed. Therefore, based on the order of priority, Callo had no legal standing to file this petition.
Same; When filed by the aggrieved party. The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein. (Paragraph 2, Section 2, A.M. No. 07-9-12-SC, Rule on the Writ of Amparo
Same; 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. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. (Section 6, Ibid.)
d. Interim reliefs
| Interim Reliefs |
| Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs: |
| 1) 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. (Section 14[a], Ibid.) |
| 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. (Paragraph 2, Section 14[a], Ibid.) |
| The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge. (Paragraph 3, Section 14[a], Ibid.) |
| 2) Inspection Order. The court, justice or judge, 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. (Section 14[b], Ibid.) |
| The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party. (Paragraph 2, Section 14[b], Ibid.) |
| If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. (Paragraph 3, Section 14[b], Ibid.) |
| The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated. (Paragraph 4, Section 14[b], Ibid.) |
| The inspection order shall specify the person or 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 for justifiable reasons. (Last paragraph, Section 14[b], Ibid.) |
| 3) Production Order. – The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or 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 by or on behalf of the movant. |
| The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. (Section 14[c], Ibid.) |
| The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties. (Paragraph 2, Section 14[c], Ibid.) |
| 4) Witness Protection Order. – 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, pursuant to Republic Act No. 6981. (Section 14[d], Ibid.) |
| 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. (Paragraph 2, Section 14[d], Ibid.) |
Availability of Interim Reliefs to Respondent. Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section. (Section 15, Ibid.)
Same; Motion for inspection. A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent. (Section 15, Ibid.)
Contempt. The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine. (Section 16, Ibid.)
| Burden of Proof and Standard of Diligence Required. |
| 1) The parties shall establish their claims by substantial evidence. (Section 17, Ibid.) |
| 2) The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. (Paragraph 2, Section 17, Ibid.) |
| 3) The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. (Paragraph 3, Section 17, Ibid.) |
| 4) The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. (Section 17, Ibid.) |
Judgment. The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (Section 18, Ibid.)
In Re: Petition for Writ of Amparo of VA Sanchez, En Banc, 15 (October 2019)
• The proceedings for the issuance of writs of amparo are extraordinary. They are significant not only in terms of final relief. In determining whether the petition must be granted, judges act as impartial inquisitors seeking to assure themselves that there is no actual or future threat to the life or liberty of petitioners. In a way, courts hearing writs of amparo assist in ferreting out the truth by providing an antidote to the naturally intimidating atmosphere of police investigations, especially involving communist and other rebels against the government.
