WRIT OF AMPARO
As an offshoot of the recent national summit on extrajudicial killings and enforced disappearances sponsored by the Supreme Court of the Philippines, the new and historical rule on the WRIT OF AMPARO was issued last week by the constitutional court. (See: http://www.supremecourt.gov.ph).
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.
The petition may be filed by the aggrieved party or by any qualified person or entity in the following
order:
(a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;
(b) 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
(c) Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of 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.
The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately.
Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written
return together with supporting affidavits which shall, among other things, contain the following:
(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 or employee, the return shall further state the actions that have been or will still be taken:
(i) to verify the identity of the aggrieved party;
(ii) to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible;
(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 in the death or disappearance; and
(vi) to bring the suspected offenders before a competent court.
The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. A general denial of the allegations in the petition shall not be
allowed.
All defenses shall be raised in the return, otherwise, they shall be deemed waived.
Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant
any of the following reliefs:
(a) 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.
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.
The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge.
(b) 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.
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.
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.
The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated.
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.
(c) 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.
The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.
(d) 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.
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.
Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order.
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.
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.
The parties shall establish their claims by substantial evidence. 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. 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. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade
responsibility or liability.
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.
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.
The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives. A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case.
The new rule shall not preclude the filing of separate criminal, civil or administrative actions.
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 the new rule shall govern the disposition of the reliefs available under the writ of amparo.
When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be
consolidated with the criminal action. When a criminal action and a separate civil action are filed
subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.
The new rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution.
The Rules of Court of the Philippines shall apply suppletorily insofar as it is not inconsistent
with this Rule.
The new rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts. It shall take effect on October 24, 2007, following its publication in three (3) newspapers of general circulation, to coincide with the foundation day of the United Nations.