The Constitutional Writ of Amparo

WHEN I WAS IN THE first year in law school (2002), Prof. Edwin Rey Sandoval and Prof. Arnold Cacho, my erstwhile mentors in Political Law and Statutory Construction, respectively, have already mentioned this “writ of amparo” during one of our classes. Prof. Cacho even recalls that it was during his bar exams (1991) when this question popped in Political Law (first sunday, first subject). I forgot how he answered said question specifically, what I remember is that, according to Prof. Cacho, most (if not all) of the examinees found a really hard time digging in the question. He added that during their oath-taking ceremonies for the 1991 bar passers, many of them” booed” Justice Azcuna for the simple and plainly obvious reason of being responsible for asking them the question: “What is the writ of amparo.

 

Lately, my fellow barristers have been compiling newspaper clippings and write-ups regarding the “writ of amparo” and its relevance to Republic Act 9327 otherwise known as the Human Security Act of 2007. I have read some of it already including the ones written by Ismael G. Khan, Jr. in the The Philippine Daily Inquirer and Adrian E. Cristobal in the Manila Bulletin.

On the matter of relative write-ups/materials regarding the writ, I know of two articles that Justice Azcuna wrote regarding International Law (relative to writ of amparo):

1) The Writ of Amparo: A Remedy to Enforce Fundamental Rights, Ateneo L.J., Vol. 37 Issue No. 2, June 1993. – I have not read this, as yet.

2) The Supreme Court and Public International Law: 1945-2000, Ateneo L.J., Vol. 46 Issue No. 1, June, 2001. – I have read a photocopy of this.

 

Browsing on the net, I found out that this writ of amparo has increasingly becoming relevant due to two basic current events, among others, to wit: 1) The National Consultative Summit on Extrajudicial Killings and Enforced Disappearances; and 2) The Human Security Act of 2007.

 

Today, I have decided to make a personalized formal inquiry into the colorful picture that makes controversial the “writ of amparo.” The following are my interesting finds. 🙂

An important point to consider is the fact that during the National Consultative Summit on Extrajudicial Killings, in its Plenary Reports, while affirming that there is no specific rule that would operationalize the writ of amparo, the following recommendations were made by the different groups/participants, to wit:

1) To conduct a serious study regarding the writ of amparo to see to it how can it be availed of, as a protective and remedial tool, for the greater protection of the constitutional rights of the victims;

2) To explore the idea of the writ of amparo;

3) To have the writ of amparo fill the “gap” which the writ of habeas corpus (in theory and practice) creates;

4) To strengthen the writ of amparo to include pro-active measures such as the protection of witnesses and order from the court for investigation on the matter.

    Page 4 of Summit Bulletin No. 1 (entitled Justice Azcuna on the Writ of Amparo written by K.M. Martinez and G.Sp. Guerrra) dated 16 July 2007 says that Justice Azcuna was actually the “proponent of the writ of amparo in the constitutional commission that produced the 1987 Constitution now in force.” Furthermore, as proof of his fruitful advocacy as member of the said constitutional commission, Art. VIII, Sec. 5(5) of the 1987 Constitution provides that the Supreme Court may “promulgate rules concerning the protection and enforcement of constitutional rights.”

    Now, the writ of amparo might make a very good timing and entry into force when the Supreme Court finally resolves – as they will be constrained to rule on – the existence and applicability of the writ of amparo to violations of human rights involving those in the implementation of the Human Security Act of 2007. We all know that an en banc Supreme Court has all the powers under the Constitution to promulgate, amend or scrap standing rules regarding practice, procedure and pleadings in all courts of law. Having that in mind, I share the opinion of other people that when the SC decides on the constitutionality of HSA of 2007, it will also be proper to decide on the fate of the writ of amparo.

    What is the legal basis of this writ? As stated above, it is the constitutional mandate. The SC may (“should” is a better connecting word) promulgate rules to protect constitutional rights, etc. That’s the essence of this writ. So, when asked in the bar or anywhere else, just beat about the bush that this writ of amparo seeks to protect constitutional rights. But what about statutory rights? Can we have a statutory writ of amparo? I think so. Why? Simply because it is convenient and because it is not otherwise prohibited, granting the SC will make that writ apply also to “statutory rights”.

    Until then, the Filipino people will have to wait to savor the beauty this writ of amparo promises to offer. Will it rather entertain the political and criminal musings of our generation and the generations to come or will it just be another writ in the annals of our judicial system with or without which the same killing shall nevertheless be perpetrated?

 

 

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Other finds:

1) Writ of Amparo: Mexican Procedure to Protect Human Rights (.gif)

2) Workshop Summation on the Nat’l. Consultative Summit on Extrajudicial Killings (.ppt)

 

 Photo from: Arkibong Bayan

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