for the protection of personal freedom, equivalent to the writ of habeas corpus;
- Amparo contra leyes: for the judicial review of the constitutionality of statutes;
- Amparo casacion: for the judicial review of the legality of a judicial decision;
- Amparo administrativo: for the judicial review of administrative actions; and
- Amparo agrario: for the protection of farmer’s rights derived from the agrarian reform process.
In Latin American countries, except Cuba, the writ of amparo
is expressly provided in their constitutions. It is permanently placed in their basic charters to protect against human rights abuses especially during the time they were governed by military juntas. Generally, these countries adopted the writ to provide for a remedy to protect the whole range of constitutional rights, including social and economic rights.
In the Philippines, the Constitution does not
explicitly provide for the writ of amparo. However, several of the amparo protections are already available under our Constitution. Thus, pursuant to Article VIII, Section 1 of the 1987 Philippine Constitution, the definition of judicial power was expanded to include “the duty of the courts of justice … to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” This is otherwise known as the Grave Abuse Clause, which accords the same general protection to human rights provided by the amparo contra leyes, amparo casacion,
and amparo administrativo.
The Grave Abuse Clause is regulated under Rule 65 of the Rules of Court on certiorari, prohibition and mandamus. Amparo libertad
is comparable to the remedy of habeas corpus.
This is provided and recognized under Article III, Sections 13 and 15, Article VII, Section 18, and Article VIII, Section 5, Paragraph 1 of the 1987 Constitution. In the Rules of Court, habeas corpus is regulated under Rule 102.
The 1987 Constitution enhanced the protection of human rights by giving the Supreme Court the power to “promulgate rules concerning the protection and enforcement of constitutional rights.” This rule-making power unique to the 1987 Constitution is the result of our experience under martial rule.
The adoption of the Amparo
Rule was a result of the two-day National Consultative Summit on Extrajudicial Killings and Enforced Disappearances sponsored by the Supreme Court on July 16-17, 2007.
On October 24, 2007, the Supreme Court promulgated the Amparo
Rule “in light of the prevalence of extralegal killings and enforced disappearances.” As the Amparo
Rule was intended to address the intractable problem of “extralegal killings” and “enforced disappearances,” its coverage, in its present form, is confined to these two instances or to threats thereof. “Extralegal killings” are “killings committed without due process of law, i.e.
, without legal safeguards or judicial proceedings.” On the other hand, “enforced disappearances” are “attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.”
The salient provisions of the present Rule on the Writ of Amparo are as follows:
a) The petition is exempt from the payment of legal fees.
b) The petition may be filed by the aggrieved party or by any qualified person in this order: (a) immediate family member; (b) relative within 4th civil degree; or (c) any concerned citizen or organization.
c) The petition may be filed on any day and at any time with any court (trial or appellate) except the municipal or metropolitan court. Upon filing of the petition, the court shall immediately issue the writ if on its face it ought to issue. The writ shall also set the summary hearing of the petition which shall not be later than seven (7) days from the date of issuance.
d) The respondent, upon receipt of the writ, shall within 72 hours make a return or answer which must be under oath and should exhaustively explain that he did not violate or threaten the right to life, liberty and security of the aggrieved party, and that he should submit all relevant information pertaining to the threat, act or omission complained of.
e) No dilatory motions, such as motion to dismiss, shall be allowed.
f) Upon filing of the petition or at any time before final judgment, the court may grant interim reliefs such as temporary protection order, production order, inspection order, or witness protection order. From the time the petition is submitted for decision, the court shall render judgment within ten (10) days.
In the landmark Amparo case of Secretary of Defense v. Raymond and Reynaldo Manalo,
G.R. No. 180906 promulgated on 7 October 2008, Chief Justice Puno found the respondent Manalo brothers to be victims of enforced disappearances perpetrated by military and paramilitary units. While the brothers were no longer in captivity as they were able to escape at the time they filed their petitions for habeas corpus and amparo, the continuing threat to them to be again arrested, detained and tortured remained strong and thus constitutive of a threat against security of their persons within the purview of Section 1 of the Amparo Rule, thus:
Section 1. Petition
. – 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
In that Manalo brothers case, Chief Justice Puno elaborated on the right to security of person. According to him, this right finds basis in Article III, Section 2 of the 1987 Constitution which provides, viz
Sec. 2. The right of the people to be secure in their persons
, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable
At the core of this guarantee is the immunity of one’s person, including the extensions of his/her person – houses, papers, and effects – against government intrusion. Section 2 not only limits the state’s power over a person’s home and possessions, but more importantly, protects the privacy and sanctity of the person himself. The purpose of this provision was enunciated by the Supreme Court in the early case of People v. CFI of Rizal, Branch IX, Quezon City, viz
The purpose of the constitutional guarantee against unreasonable searches and seizures is to prevent violations of private security in person
and property and unlawful invasion of the security of the home by officers of the law acting under legislative or judicial sanction and to give remedy against such usurpation when attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 ). The right to privacy is an essential condition to the dignity and happiness and to the peace and security of every individual, whether it be of home or of persons and correspondence
. (Tañada and Carreon, Political Law of the Philippines, Vol. 2, 139 ). The constitutional inviolability of this great fundamental right against unreasonable searches and seizures must be deemed absolute as nothing is closer to a man’s soul than the serenity of his privacy and the assurance of his personal security
. Any interference allowable can only be for the best causes and reasons. (emphases supplied
While the right to life under Article III, Section 1 guarantees essentially the right to be alive - upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the quality of this life. In a broad sense, the right to security of person “emanates in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual.”
In my opinion, the above disquisition by the Chief Justice on the right to security of person may provide a fertile ground to justify the inclusion within the ambit of Amparo cases of unjust and inhumane evictions and demolitions. For isn’t the right against unjust and inhumane evictions and demolitions subsumed under the right of the people to be secure in their persons and houses? Aside from this civil and political right to be secure in their persons and houses under Article I of the Bill of Rights, the right against unjust and inhumane evictions and demolitions also find basis in the Social Justice provisions of the Constitution, the Urban Development and Housing Act and a number of international instruments.
The article on Human Rights and Social Justice, specifically Article XIII, Section 10 of the Constitution specifically commands that: SECTION 10.
Urban or rural poor dwellers shall not be evicted nor their dwellings demolished except in accordance with law and in a just and humane manner.
The above constitutional edict is even reflective of the Philippine government’s international obligations to recognize the universal rights of a person to adequate housing and against enforced evictions guaranteed by such instruments as the International Covenant on Economic, Social and Cultural Rights, which in Article 11, provides thus: “Article 11
1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right…”
In its General Comment on the right to adequate housing and against forced evictions, the Office of the High Commissioner on Human Rights stated that ”where eviction is considered justified, it should be carried out in strict compliance with international human rights law and in accordance with general principles of reasonableness and proportionality.” It added that “evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights.”
It is clear therefore that, as a matter of constitutional mandate and international covenant, evictions and demolitions affecting the urban poor may only be done lawfully and in a just and humane manner. In the context of the Urban Development and Housing Act (UDHA), this would mean faithful compliance with the provision of Section 28. Failure to observe the requirements of this section would mean that a demolition and/or eviction is unjust and inhumane. The requirements under Section 28 of the UDHA are as follows:
NOTICE upon affected persons at least 30 days prior to demolition;
- CONSULTATION with the relocatees and the community where they are to be relocated;
- The PRESENCE OF LOCAL GOVERNMENT OFFICIALS or their representatives during the conduct of eviction or demolition;
- Proper IDENTIFICATION of all persons taking part in demolitions;
- Execution only during WEEKDAYS and OFFICE HOURS;
- NO USE OF HEAVY EQUIPMENT (except for permanent/concrete structures); and
- ADEQUATE RELOCATION.
Thus, as illustrated above, by clear provisions of the Constitution, international covenants and statute, the right against unjust and inhumane evictions and demolitions is clearly existing. You may ask: why am I belaboring on this point? If we are pushing for the inclusion of such cases within the coverage of the Rule on Amparo, we must convincingly prove that there is already a right against unjust and inhumane evictions and demolitions recognized under the law and which should be enforceable and demandable through our courts. We must remember that the rule on amparo is a procedural rule and not
a law. The Supreme Court cannot, by enacting rules, create, diminish or modify any substantive right. The right itself must exist under the law to be enforced only by a procedural rule.
Having settled that, we must then proceed to consider whether there is a need for a new remedy, such as the resort to a writ of amparo, considering the already available legal remedies to address cases of violations of rights against unjust and inhumane evictions and demolitions. The question therefore is whether the present Rules of Court are sufficient in providing legal solutions to the mounting cases of unjust and inhumane evictions and demolitions.
Under the present rules, the following are the only available remedies:
If the eviction and/or demolition is only about to be implemented, the affected persons can file a case of Injunction or Prohibition before courts of competent jurisdiction;
- If the eviction and/or demolition has already been conducted, affected persons can file a case for damages;
- In any case, they can likewise file appropriate criminal cases against responsible persons for the unlawful demolition under Section 45 of the UDHA, or applicable provisions of the Revised Penal Code or special criminal laws;
- They can file administrative suits with a proper government authority, such as the Ombudsman, DILG, and the Civil Service Commission.
Section 45 of the UDHA states that any person who violates any provision of that law shall be imposed the penalty of not more than six (6) years of imprisonment or a fine of not less than five thousand (5,000) pesos, but not more than ten thousand (10,000) pesos or both. While this provision appears to be broad enough to cover responsible persons, whether government officials or private individuals who fail to observe the requirements under Section 28 of the UDHA, the same has not been tested in actual litigation. There is even a debate on whom among the government officials or private individuals should actually be answerable to each and every requirement considering the seeming vagueness in the language of certain portions of the law.
Judicial reforms in terms of inexpensive and more expeditious court process, especially in the face of widespread and almost daily occurrence of unlawful demolitions, particularly in the urban poor residential communities in Metro Manila are in order. It is general knowledge that the current available legal remedies, such as injunction or prohibition, are often costly and cumbersome to secure. It is now hoped that the applicability of the inexpensive and the readily available Writ of Amparo may fill the need of the affected urban poor families to make concerned public officials or private entities accountable to their legal duties to conduct lawful, just and humane evictions and demolitions.
Last year, Chief Justice Puno talked about the possibility of expanding the Writ of Amparo. This proposal was recently supported by the Commission on Human Rights. While there are positive signs that the Supreme Court may consider broadening the Writ, there appears to be well-meaning legal practitioners who, while agreeing in principle that the Writ should cover other rights such as the right against unjust and inhumane evictions and demolitions, they are not however ready to concede to an immediate expansion of the Amparo Rule on the argument that the Supreme Court should first focus on perfecting or fine-tuning the current version of the Writ as covering only cases of extralegal killings and enforced disappearances. The point, according to them, is to first plug in the loopholes of the current rule before considering the expansion to cover other rights. Statistics show that from 2007 to 2009, only 33 Amparo cases were filed and only 1 of them went to the Supreme Court. There was even apparent confusion among different courts and justices as to the application of certain provisions of the Amparo rule. There is not even a clear enforcement and monitoring system of Amparo cases.
That argument to first perfect the current system may seem convincing. However, it is my view that problems besetting the present form of the Rule on Amparo may have been largely caused by inadequacies in the Rule or lack of sufficient education of the bench, bar and the public about the intricacies of Amparo Rule. Such matters, I suppose, should not affect the intrinsic merits of including within the Rule cases of unjust and inhumane evictions and demolitions. In fact, it is my considered opinion that Amparo may be better implemented in cases of evictions and demolitions than in situations of extralegal killings and enforced disappearances where respondent authorities may just easily deny liabilities and/or remove traces of evidence of their wrongdoing. In evictions and demolitions, especially in the context of the UDHA, there are specified concerned officials or persons who, through the Writ of Amparo, may easily be held accountable.