Families of victims of enforced disappearances will now have a legal remedy more effective than the writ of habeas corpus to track down their missing kin.
The Supreme Court approved yesterday the rules on the writ of amparo, which take effect on Oct. 24.
Midas Marquez, SC spokesman, said unlike in habeas corpus, a respondent in amparo will not be allowed to deny that the person sought to be produced is not in his custody. Instead the respondent will be required to give a full explanation in a detailed return within 72 hours.
“In the petition for a writ of habeas corpus, once the respondents deny that they have the missing person in custody, then the writ becomes ineffectual,” he said.
“The petition for a writ of habeas corpus will have to be dismissed because it is assumed in that particular remedy that the respondent has the missing person in custody.
“In amparo, general denials are not allowed. Even if that particular missing person is not in the custody of the respondent, the writ of amparo may still be issued.
“The rules state that respondents should not just issue a general denial. They should also state in their return the steps or actions taken to determine the fate or whereabouts of the missing person and the person or persons responsible for the act.”
Marquez said the writ of amparo may be used for cases filed and are pending in court before the effectivity of the rules on Oct. 24.
“This rule shall govern cases involving extralegal killings and enforced disappearances or threats pending in the trial and appellate courts,” read section 26 of the rules on the writ of amparo.
Lawyers and judges will be given an intensive lecture by the Supreme Court on the writ of amparo to prepare them for its effectivity on Oct. 24, Marquez said.
A petition for a writ of amparo may be filed by any member of the disappeared person’s immediate family: spouse, children and parents.
It may also be filed by any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the disappeared.
The petition may be filed any time and any day with the regional trial court in the province or city where the person disappeared, or with the Sandiganbayan, the Court of Appeals, or the Supreme Court.
The writ shall be enforceable anywhere in the Philippines.
The petitioner shall be exempted from paying docket fees, and the justice or judge shall docket the petition and act on it immediately.
The writ of amparo shall also set the date and time for the summary hearing of the petition, which shall not be later than seven days from the date of its issuance.
Clerks of courts who will fail to issue the writ will be cited for contempt of court.
Upon filing of the writ of amparo, the court may grant any of the following:
• A temporary protection order for the protection of the petitioners;
• An inspection order to permit the entry and inspection of any property relevant to the case;
• A production order for the production of evidence; and
• A witness protection order, which will place witnesses under the witness protection order.
In case a respondent in an amparo case invokes national security, the Supreme Court said judges may hear the petition in chambers to determine the merit of the opposition.
The writ of amparo was proposed during the Supreme Court’s National Consultative Summit on Extrajudicial Killings and Enforced Disappearances as an alternative for the writ of habeas corpus.
The rules on the writ of amparo were drafted by the SC’s Committee on the Revision of the Rules of Court, pursuant to a constitutional mandate for the Tribunal to promulgate rules for the protection and enforcement of constitutional rights.
Amparo, which means “protection” in Spanish, originated in Mexico and later spread to the western hemisphere and evolved into various forms, depending on the needs of a particular country.
It evolved into the following:
• Amparo libertad, which is similar to the writ of habeas corpus for the protection of personal freedom;
• Amparo contra leyes for the judicial review of the constitutionality of laws;
• Amparo casacion for the review of the legality of a court’s decision;
• Amparo administrativo for the judicial review of administrative actions; and
• Amparo agrario for the protection of peasant rights derived from the agrarian reform process.
The writ of amparo has been adopted by Latin American countries, except Cuba, to protect against human rights abuses, especially during the time of military juntas, according to the Supreme Court.
In the Philippines, the Constitution does not explicitly provide for the writ of amparo, but several of the amparo protections are readily available under the Constitution, the SC added. — Mike Frialde, Philippine Star
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