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(Excerpts from the paper presented at the Regional
Judicial Career Enhancement Program (Level 5) for the
Regional Trial Court and First-Level Trial Court judges
of Region 2, Philippine Judicial Academy, February 1,
2008, Baguio City.)
Justice
Sandra Day O’ Connor of the US Supreme Court, who
retired in 2005, once said that “[C]onstitutions and
statutes don’t protect judicial independence, people
do.” When she mentioned “people,” the good justice was
not solely referring to the public, but also to members
of the bar, to judges and to justices.
Historically, judges and justices have lived up to this
role as protectors of judicial independence. For
example, Sir Edward Coke, Chief Justice of England from
1613 to 1616, asserted judicial independence when he was
appointed to the Bench. King James I was in the habit of
interfering with judgments passed by courts declaring
that he could do so because of his royal authority. When
Coke refused to yield this power, he was summoned by the
king. With boldness, he said the king was not learned in
the laws of England and that only judges could interpret
the law. He added: “The king himself should be under no
man, but under God and the law.”
In 2007,
two Chief Justices struck hard blows for judicial
independence and the rule of law, namely, Chief Justice
Iftekhar Chaudhry of Pakistan and Chief Justice Reynato
S. Puno of the
Philippines.
On March 9, 2007, Pakistan President Musharraf removed
Chaudhry, proceeded to declare him nonfunctional and
placed him under virtual house arrest. Prior to his
removal, Chaudhry was involved in the hearing of cases
relating to disappearances and torture. He is also
acknowledged to be judicially active in pointing out
malfeasance within the government. His removal triggered
massive protests throughout the country and boycott
proceedings of all courts. The protests were led by
lawyers. Justice Jawad Khwaja, a Lahore High Court
judge, and six judges resigned to protest the Chief
Justice’s removal. The police filed a sedition case
against hundreds of Karachi Bar Association members for
setting fire to an effigy of Musharraf. On July 20,
2007, a full 13-member bench of the Supreme Court
reinstated Chief Justice Chaudhry and quashed the charge
against him, sparking jubilant celebrations throughout
the country. This is the first- ever verdict
contradicting military rule in the history of
Pakistan.
In the
Philippines, the Supreme Court of the Philippines led by
Chief Justice Reynato S. Puno sponsored the holding of
the National Consultative Summit on Extrajudicial
Killings and Enforced Disappearances on July 16 and 17,
2007, attended by justices, activists, militant leaders,
police officials, politicians and prelates. At the
summit, the Chief Justice stated that “[I]f there are
compelling reasons for this summit, one of them is to
prevent losing eye contact with the killings and
disappearances, revive our righteous indignation and
spur our wasted search for the elusive resolution to
this pestering problem.” The first proposal in the
summit’s summary of recommendations was for the writ of
amparo to become operational in the Philippines. On
September 25, 2007, the Supreme Court issued A.M.
07-9-12-SC which took effect on October 24, 2007, the
anniversary of the founding of the United Nations.
Roots
“Amparo”
comes from the Spanish word amparar meaning “to
protect.” The writ of amparo, recurso de amparo,
originated from the Mexican legal system. It was
conceived and initiated by federal politician Manuel
Crecencio Rejon in the drafting of the Constitution of
Yucatun in 1840 in his native State of Yucatun, which
had then seceded from Mexico. But Rejon returned to
Mexico City and participated in the drafting on a new
Constitution. Amparo is now in Article 94 of the 1917
Constitution of Mexico and is provided in detail under
its Article 107.
The idea
of a writ of amparo was first introduced to the
Philippines by Delegate Adolfo Azcuna in the 1971
Constitutional Convention and in the 1986 Constitutional
Commission. Despite his best efforts, he did not succeed
in convincing the two bodies to include in our
fundamental law an explicit reference to the writ of
amparo. In the 1986 Constitutional Commission, the
Committee on Judiciary headed by former Chief Justice
Roberto Concepcion explained that the writ of amparo is
deemed included in the provision that empowers the
Supreme Court to “[P]romulgate rules concerning the
protection and enforcement of constitutional rights . .
. .”
But
there is no stopping amparo. The spark has been lit and
the prairie fire is spreading. In one of his speeches,
then- Chief Justice Marcelo Fernan stated that the
Supreme Court would issue rules for the writ of amparo.
At the International Labor Organization (ILO), former
President Corazon C. Aquino mentioned amparo as one
mechanism to protect human rights in the Philippines. On
September 14, 2001, at the Philippine Judicial Academy
workshop on “Realizing Economic, Social and Cultural
Rights,” sponsored by the Philippine Judicial Academy, I
said that it would be a boon for democracy and good
governance should the Supreme Court, consistent with its
libertarian tradition and judicial creativity,
promulgate rules on ley de amparo. It took the tandem of
Justice Adolf Azcuna and Chief Justice Reynato S. Puno
for the Supreme Court to trail blaze by adopting the
rule on the writ of amparo.
Human-rights protector and justice tool
Why is
the writ of amparo both a human-rights protector and a
justice tool?
The
first reason is that the petition for a writ of amparo
is a remedy available to any person where right to life,
liberty and security is violated or threatened. Note
that the basic rights to life, liberty and security,
rights that make man and woman human, are covered. The
right to life refers to the right to existence and the
right to the protection of physical and mental
attributes which a person must have, in order to be able
to enjoy a good life. The right to liberty, writes
Justice Malcolm in Rubi v. Provincial Board of Mindoro,
G.R. L-14078,
March 7, 1914,
cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to
embrace the right of man to enjoy the faculties endowed
by his Creator. The right to security is not mentioned
in the Bill of Rights of the 1987 Constitution but is
mentioned in the Universal Declaration of Human Rights
and the International Covenant on Civil and Political
Rights. But reading the two international instruments,
one gets the idea that the right to security refers to
one’s right not to be subjected to unreasonable searches
and seizures and not to be subjected to arbitrary and
illegal arrests, which is found in Section 2, Article
III of 1987 Constitution.
The
second reason is that the writ of amparo covers not only
government officials but also private individuals or
entities. Entities refer to artificial or juridical
persons since they, too, are capable of committing an
act or omission. The Filipino writ is broader than the
original Mexican amparo because the latter applies only
to public officials. The Filipino writ is consistent
with the 1987 Constitution because the Commission on
Human Rights can investigate violations committed by
public officials and private individuals.
The
third reason is that the petition may be filed not only
by the aggrieved party but also by any concerned
citizen, organization, association or institution if
there is no known member of the immediate family or
relative of the aggrieved party. This is in recognition
of civil-society organizations and the important role
they play in the legal and metalegal struggles of
victims of injustices. Close to the Filipino amparo is
the Argentine amparo, which provides that the petition
“may be filed by the damaged party, the Ombudsman and
the associations which foster such ends.”
The
fourth reason is that the petitioner is exempted from
the payment of the docket fee and other fees when filing
the petition. This is welcome news to the poor because
most of the victims of extralegal killings and
disappearances are the deprived and marginalized. This
provision breathes life to Section 12, Article III, 1987
Constitution that provides “Free access to the courts .
. . shall not be denied to any person by reason of
poverty.”
The
fifth reason is that the rule abandons traditional legal
doctrines and principles that are not helpful to the
objectives of the writ. The rule does not require the
petitioner to exhaust administrative remedies; does not
allow public officials to invoke presumption that
official duty has been regularly performed to evade
responsibility or liability, and does not allow
dismissal of petition but only its archiving if upon its
determination it cannot proceed for a valid cause, like
failure of petitioners or witnesses to appear due to
threats on their lives; and does not allow general
denial.
The
sixth reason is that while the rule abandons
not-so-helpful legal principles, it adopts new legal
paradigms that will enhance the protective character of
the writ. These new legal paradigms are the interim
reliefs that are available to the parties and can be
given immediately after the filing of the petition or at
any time before final judgment. These reliefs are the
temporary-protection order, inspection order, the
production order and the witness-protection order. Under
the rule on temporary-protection order, not only a
government agency can provide protection to the
petitioner or the aggrieved party and any member of the
immediate family, but also an accredited person or
private institution capable of keeping and securing
their safety.
The
seventh and final reason is that the Filipino amparo
discourages public officials to make blanket denials of
custody of victims of enforced disappearances. These
blanket denials were common during the Marcos regime and
contributed a lot in aggravating the problem of
extralegal killings and disappearances. Section 9 of
A.M. 07-9-12-SC commands the respondent to file a
verified return together with supporting affidavits
which shall, among other things, contain (a) 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 threats, acts or omission;
(b) all relevant information in the possession of the
respondent pertaining to the threat, act or omission
against the party; (c) actions that have been or will
still be taken 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, and to determine the
cause, manner, location and time of death or
disappearance.
The good
news that is the Filipino amparo is spreading like
wildfire. Based on news clippings, many have filed
petitions with various courts, including the Supreme
Court. Two success stories are about two petitions filed
on behalf of two disappeared farmers from
Mindanao, namely, Ruel Mañasque and Luisito Bustamante. The two
surfaced after the writ of amparo petitions were filed.
But whether or not a story is one of success, what
matters now is that aggrieved are hopeful that with the
availability of a writ greater than the writ of habeas
corpus, their fears, worries and concerns can be
addressed. For when one hopes, he/she believes that
things can be changed. “Man,” writes Tom Clancy, “is a
creature of hope and invention, both of which belie the
idea that things cannot be changed.”
Triumph
of the force of law
From
former senator Jovito R. Salonga’s book ‘Not By Power Or
Wealth Alone’, I learned that his friend, former Chief
Justice Pedro Yap, has passed away. Though he served as
Chief Justice of the Supreme Court for less than a year,
Chief Justice Yap, father of Lakasdiwa activist Manny
Yap, who was extralegally killed in the 1970s, wrote the
ponencia in the landmark case of Aberca v. Ver, et al.,
160 SCRA 590, where he said that in times of great
upheaval or of social and political stress, when the
temptation is strongest, to yield to the law of force
rather than the force of law, the rule of law must
prevail, or else liberty will perish.
The rule
on the writ of amparo? It is a triumph of the force of
law and a strong reminder to the public, members of the
bar and bench that, as stated in Aberca v. Ver, et al.,
“certain basic rights and liberties are immutable and
cannot be sacrificed to the transient needs or imperious
demands of the ruling power.” |
