The writ of Amparo, Philippine style

The writ of amparo, RP style


Not many people know it but the Supreme Court of the Philippines is a Congress by itself. It can legislate, which means it may violate one of the basic principles of a democracy— no taxation without representation.

As a legislature, our Supreme Court has adopted what is called the writ of amparo. The writ of amparo is a concept enshrined in the Mexican Constitution since 1857 and adopted by a dozen other Latin American countries but which in the Philippines nobody has heard about until the 1991 bar examinations when Ateneo law professor Adolf Azcuna incorporated it as a perplexing question. Not surprisingly in the 1991 bar, Ateneo graduates were the topnotchers. Adolf is now an SC justice which may explain why the High Tribunal is suddenly warm to the idea.

The writ of amparo, says our Supreme Court, 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 of extralegal killings and enforced disappearances.

In Mexico, the writ is applied against government officials, particularly the president. Here, the writ is applied against both public officials and private persons, both government corporations and private corporations. In that sense, the writ of amparo becomes a very powerful protection for rights of citizens and of corporations. Amparo is Spanish for protection.

Under this broad meaning and applying it as a layman, I take to use the writ of amparo as intended to protect not just life, not just liberty, not just security—but economic security which to me means your job, your livelihood.

In that sense, I believe the writ of amparo is an awesome tool against corruption, by both government and the private sector. You can argue that you are poor because you have no job or economic security. You have no economic security because the economy is doing poorly. The economy is doing poorly because the government is corrupt. It sounds like an extended logic but it is an argument easy to understand.

As a tool against corruption, the writ of amparo can be construed as a means to lessen government corruption. Lawyers, if they know their marbles, should explore this possibility—using the writ of amparo as a veritable weapon against corruption.

The writ of amparo can be filed, at any time, with any courts in the Philippines—regional trial courts, Sandigan, Court of Appeals, the Supreme Court or any justice of such courts. The writ is enforceable anywhere in the country. There are no docket fees. Thus, it is a pro-poor measure.

The respondent must file within 72 hours a written reply, with supporting affidavits. The respondent must say he did not violate or threaten to violate the right to life, liberty and security of the aggrieved party, through any act or omission. Omission means even if you did not act, it is an act by itself.

One beautiful thing about the writ is its power of discovery. It wants to know what the respondent has done to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission and what information the respondent has in this regard.

If the respondent is a government official, he must state what further actions he will take to verify the identity of the aggrieved party, recover and preserve evidence related to the death or disappearance; identify witnesses and obtain statements from them; 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; identify and apprehend the suspects, and bring the suspects before a competent court.

So if you are the chief of staff of the Armed Forces or the chief of the Philippine National Police, you cannot just claim the dead or missing person is not in your territory (the usual answer in a writ of habeas corpus). You tell the court where the dead or missing person could possibly be, locate it, identify the suspects, apprehend them, gather information and evidence, and bring the suspects to court. In effect, if you are the suspect mastermind, you must turn yourself in, gather evidence against yourself, and help in your own prosecution.

What is your penalty for not doing so? You will be subject to contempt of court. So if you are General Hermogenes Esperon of the Armed Forces of the Philippines or General Avelino Razo of the Philippine National Police, take the contempt of court anytime. It is a lesser penalty than being the suspect yourself.

Also, the complainants or agents of the court can visit, inspect and ransack your office to gather evidence and locate the dead or missing person.

Imagine Gloria Arroyo coming forward and proclaiming herself guilty of hundreds of disappearances and unexplained killings. Or guilty of the poverty of the people. Can that happen? No way, Jose.

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