The Rule on the Writ of Amparo

September 25, 2007

[A.M. No. 07-9-12-SC.]

THE RULE ON THE WRIT OF AMPARO

R E S O L U T I O N

Acting on the recommendation of the Chairperson of the Committee on Revision of the Rules of Court submitting for this Court's consideration and approval the proposed Rule on the Writ of Amparo, the Court Resolved to APPROVE the same. aEHASI

This Rule shall take effect on October 24, 2007 following its publication in three (3) newspapers of general circulation.

September 25, 2007.

(SGD.) REYNATO S. PUNOChief Justice

(SGD.) LEONARDO A. QUISUMBINGAssociate JusticeSupreme Court of the Philippines

(SGD.) ANGELINA SANDOVAL-GUTIERREZ Associate JusticeSupreme Court of the Philippines

(SGD.) MA. ALICIA AUSTRIA-MARTINEZ Associate JusticeSupreme Court of the Philippines

(SGD.) CONCHITA CARPIO-MORALES Associate JusticeSupreme Court of the Philippines

(SGD.) DANTE O. TINGA Associate JusticeSupreme Court of the Philippines

(SGD.) CANCIO C. GARCIA Associate JusticeSupreme Court of the Philippines

(SGD.) ANTONIO EDUARDO B. NACHURAAssociate JusticeSupreme Court of the Philippines

(SGD.) CONSUELO YNARES-SANTIAGOAssociate JusticeSupreme Court of the Philippines

(SGD.) ANTONIO T. CARPIOAssociate JusticeSupreme Court of the Philippines

(SGD.) RENATO C. CORONAAssociate JusticeSupreme Court of the Philippines

(SGD.) ADOLFO S. AZCUNAAssociate JusticeSupreme Court of the Philippines

(SGD.) MINITA V. CHICO-NAZARIOAssociate JusticeSupreme Court of the Philippines

(on leave)PRESBITERO J. VELASCO, JR.Associate JusticeSupreme Court of the Philippines

(SGD.) RUBEN T. REYESAssociate JusticeSupreme Court of the Philippines

THE RULE ON THE WRIT OF AMPARO

 

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.

SECTION 2. Who May File. — The petition may be filed by the aggrieved party or by any qualified person or entity in the following order:

(a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or

(c) Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein. TSaEcH

SECTION 3. Where to File. — The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines.

When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.

When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.

SECTION 4. No Docket Fees. — The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately.

SECTION 5. Contents of Petition. — The petition shall be signed and verified and shall allege the following:

(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; EIAScH

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs.

SECTION 6. Issuance of the Writ. — Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it.

The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance.

SECTION 7. Penalty for Refusing to Issue or Serve the Writ. — A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions.

SECTION 8. How the Writ is Served. — The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply.

SECTION 9. Return; Contents. — Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following:

(a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; AHTICD

(b) 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 threat, act or omission;

(c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and

(d) If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken:

(i) to verify the identity of the aggrieved party;

(ii) 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;

(iii) to identify witnesses and obtain statements from them concerning the death or disappearance;

(iv) to 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;

(v) to identify and apprehend the person or persons involved in the death or disappearance; and

(vi) to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case.

A general denial of the allegations in the petition shall not be allowed.

SECTION 10. Defenses Not Pleaded Deemed Waived. — All defenses shall be raised in the return, otherwise, they shall be deemed waived.

SECTION 11. Prohibited Pleadings and Motions. — The following pleadings and motions are prohibited:

(a) Motion to dismiss; SDHAEC

(b) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings;

(c) Dilatory motion for postponement;

(d) Motion for a bill of particulars;

(e) Counterclaim or cross-claim;

(f) Third-party complaint;

(g) Reply;

(h) Motion to declare respondent in default;

(i) Intervention;

(j) Memorandum;

(k) Motion for reconsideration of interlocutory orders or interim relief orders; and

(l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

SECTION 12. Effect of Failure to File Return. — In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte.

SECTION 13. Summary Hearing. — The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.

The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus.

SECTION 14. Interim Reliefs. — Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs:

(a) Temporary Protection Order. — The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3 (c) of this Rule, the protection may be extended to the officers involved. IaEScC

The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue.

The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge.

(b) Inspection Order. — The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons.

(c) Production Order. — The court, justice, or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition. SCHTac

The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.

(d) Witness Protection Order. — The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.

The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety.

SECTION 15. Availability of Interim Reliefs to Respondent. — Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section.

A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent.

SECTION 16. Contempt. — The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine.

SECTION 17. Burden of Proof and Standard of Diligence Required. — The parties shall establish their claims by substantial evidence.

The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.

The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.

The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. aTADcH

SECTION 18. Judgment. — The court shall render within ten (10) days from the time the petition is submitted for decision If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.

SECTION 19. Appeal. — Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.

The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.

The appeal shall be given the same priority as in habeas corpus cases.

SECTION 20. Archiving and Revival of Cases. — The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives.

A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case.

The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule not later than the first week of January of every year.

SECTION 21. Institution of Separate Actions. — This Rule shall not preclude the filing of separate criminal, civil or administrative actions.

SECTION 22. Effect of Filing of a Criminal Action. — When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case.

The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

SECTION 23. Consolidation. — When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action. cDCEIA

After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

SECTION 24. Substantive Rights. — This Rule shall not diminish, increase or modify substantive rights recognized and protected the constitution.

SECTION 25. Suppletory Application of the Rules of Court. — The Rules of Court shall apply suppletorily insofar as it is no inconsistent with this Rule.

SECTION 26. Applicability to Pending Cases. — This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts.

SECTION 27. Effectivity. — This Rule shall take effect on October 24, 2007, following its publication in three (3) newspapers of general circulation.

ANNOTATION TO THE WRIT OF AMPARO

The Writ of Amparo. The nature and time-tested role of amparo has shown that it is an effective and inexpensive instrument for the protection of constitutional rights. 1Amparo, literally "to protect," originated in Mexico and spread throughout the Western Hemisphere where it has gradually evolved into various forms, depending on the particular needs of each country. 2 It started as a protection against acts or omissions of public authorities in violation of constitutional rights. Later, however, the writ evolved for several purposes: 3

(1) For the protection of personal freedom, equivalent to the habeas corpus writ (called amparo libertad);

(2) For the judicial review of the constitutionality statutes (called amparo contra leyes);

(3) For the judicial review of the constitutionality and legality of a judicial decision (called amparo casacion); DTEIaC

(4) For the judicial review of administrative actions (called amparo administrativo); and

(5) For the protection of peasants' rights derived from the agrarian reform process (called amparo agrario).

The writ of amparo has been constitutionally adopted by Latin American countries, except Cuba, 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 socio-economic rights.

In the Philippines, the Constitution does not explicitly provide for the writ of amparo. However, several of the amparo protections are 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 settle actual controversies involving rights which are legally demandable and enforceable, and 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." The second clause, otherwise known as the Grave Abuse Clause, accords the same general protection to human rights given by the amparo contra leyes, amparo casacion and amparo administrativo.

Amparo contra leyes, amparo casacion and amparo administrativo are also recognized in form by the 1987 Philippine Constitution. Specifically, under Article VIII, Section 5, the Supreme Court has explicit review powers over judicial decisions akin to amparo casacion. To wit, Section 5 (2) provides that the Supreme Court shall have power to "[r]eview, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts." 4 And in paragraph (a) of Section 5 (2) it is also explicitly provided that the Supreme Court shall have, like amparo contra leyes, the power to review ". . .[a]ll cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question." 5 

Amparo libertad is comparable to the remedy of habeas corpus. Our Rules of Court has adopted the old English rule on the writ of habeas corpus to protect the right to liberty of individuals. There are also constitutional provisions recognizing habeas corpus, i.e. Article III, Sections 13 and 15; 6 Article VII, Section 18; 7 and Article VIII, Section 5, Paragraph 1. 8

The Rules of Court provide the procedure to protect constitutional rights. Rule 65 embodies the Grave Abuse Clause, while Rule 102 governs petition for habeas corpus. Notably, the various socio-economic rights granted by the Constitution are enforced by specific provisions of the Rules of Court, such as the rules on injunction, prohibition, etc. TADIHE

The 1987 Constitution enhanced the protection of human rights by giving the Supreme Court the power to "[p]romulgate rules concerning the protection and enforcement of constitutional rights. . ." 9 This rule-making power unique to the present Constitution, is the result of our experience under the dark years of the martial law regime. Heretofore, the protection of constitutional rights was principally lodged with Congress through the enactment of laws and their implementing rules and regulation. The 1987 Constitution, however, gave the the Supreme Court the additional power to promulgate rules to protect and enforce rights guaranteed by the fundamental law of the land.

In light of the prevalence of extralegal killing and enforced disappearances, the Supreme Court resolved to exercise for the first time its power to promulgate rules to protect our people's constitutional rights. Its Committee on Revision of the Rules of Court agreed that the writ of amparo should not be as comprehensive and all-encompassing as the ones found in some American countries, especially Mexico. These nations are understandably more advanced in their laws as well as in their procedures with respect to the scope of this extraordinary writ. The Committee decided that in our jurisdiction, this writ of amparo should be allowed to evolve through time and jurisprudence and through substantive laws as they may be promulgated by Congress.

The highlights of the proposed Rule, section by section, are as follows:

SEC. 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.

Philippine Version. Since the writ of amparo is still undefined under our Constitution and Rules of Court, Section 1 enumerates the constitutional rights protected by the writ, i.e., only the right to life, liberty and security of persons. In other jurisdictions, the writ protects all constitutional rights. The reason for limiting the coverage of its protection only to the right to life, liberty and security is that other constitutional rights of our people are already enforced through different remedies.

Be that as it may, the Philippine amparo encapsulates a broader coverage. Whereas in other jurisdictions the writ covers only actual violations, the Philippine version is more protective of the right to life, liberty and security in the sense that it covers both actual and threatened violations of such rights. Further, unlike other writs of amparo that provide protection only against unlawful acts or omissions of public officials or employees, our writ covers violations committed by private individuals or entities. "Entities" refer to artificial persons, as they are also capable of perpetrating the act or omission. DaESIC

The writ covers extralegal killings and enforced disappearances or threats thereof. "Extralegal killings" 10 are killings committed without due process of law, i.e. without legal safeguards or judicial proceedings. As such, these will include the illegal taking of life regardless of the motive, summary and arbitrary executions, "salvagings" even of suspected criminals, and threats to take the life of persons who are openly critical of erring government officials and the like. 11 On the other hand, "enforced disappearances" 12 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.

SEC. 2. Who May File. — The petition may be filed by the aggrieved party or by any qualified person or entity in the following order:

(a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or

(c) Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein.

Who May File. This section provides the order which must be followed by those who can sue for the writ. It is necessary for the orderly administration of justice. First, the right to sue belongs to the person whose right to life, liberty and security is being threatened by an unlawful act or omission of a public official or employee or of a private individual or entity (the aggrieved party). However, in cases where the whereabouts of the aggrieved party is unknown, the petition may be filed by qualified persons or entities enumerated in the Rule (the authorized party). A similar order of priority of those who can sue is provided in our rules implementing the law on violence against women and children in conflict with the law. ICacDE

The reason for establishing an order is to prevent the indiscriminate and groundless filing of petitions far amparo which may even prejudice the right to life, liberty or security of the aggrieved party. For instance, the immediate family may be nearing the point of successfully negotiating with the respondent for the release of the aggrieved party. An untimely resort to the writ by a non-member of the family may endanger the life of the aggrieved party.

The Committee is aware that there may also be instances wherein the qualified members of the immediate family or relatives of the aggrieved party might be threatened from filing the petition. As the right to life, liberty and security of a person is at stake, this section shall not preclude the filing by those mentioned in paragraph (c) when authorized by those mentioned in paragraphs (a) or (b) when circumstances require.

SEC. 3. Where to File. — The petition may be filed on any day and at any time with the Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines.

When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.

When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the place where the threat, act or omission was committed or any of its elements occurred.

Day and Time of Filing. Due to the extraordinary nature of the writ which protects the mother of all rights — the right to life — the petition may be filed on any day, including Saturdays, Sundays and holidays; and at any time, from morning until evening.

Courts Where Petition May Be Filed. This section is basically similar to the Rule on petitions for the wait of habeas corpus. It is, however, different because it includes the Sandiganbayan for the reason that public officials and employees will be respondents in amparo petitions. It will be noted that the amparo petition has to be filed with the Regional Trial Court where the act or omission was committed or where any of its elements occurred. The intent is to prevent the filing of the petition in some far-flung area to harass the respondent. Moreover, allowing the amparo petition to be filed in any Regional Trial Court may prejudice the effective dispensation of justice, as in most cases, the witnesses and the evidence are located within the jurisdiction of the Regional Trial Court where the act or omission was committed. SEAHcT

Designation. Originally, the draft Rule required the petition to be filed in the RTC that had "jurisdiction" over the offense. However, the Committee felt that the use of the word "jurisdiction" might be construed as vesting new jurisdiction in our courts, an act that can only be done by Congress. The use of the word "jurisdiction" was discontinued, for the Rule merely establishes a procedure to enforce the right to life, liberty or security of a person and, undoubtedly the Court has the power to promulgate procedural rules to govern proceedings in our courts without disturbing their jurisdiction.

SEC. 4. No Docket Fees. — The petitioner shall be exempted from the payment of the docket and other lawful fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately.

Liberalized Docket Fees. The Committee exempted petitioners from payment of docket and other lawful fees in filing an amparo petition, for this extraordinary writ involves the protection of the right to life, liberty and security of a person. The enforcement of these sacrosanct rights should not be frustrated by lack of finances.

SEC. 5. Contents of Petition. — The petition shall be signed and verified and shall allege the following:

(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for. CTSAaH

The petition may include a general prayer for other just and equitable reliefs.

Contents of the Petition. The petition should be verified to enhance the truthfulness of its allegations and to prevent groundless suits.

Paragraphs (a) and (b) are necessary to identify the petitioner and the respondent. The respondent may be given an assumed appellation such as "John Doe," as long as he or she is particularly described (descriptio personae). Paragraph (c) requires the petitioner to allege the cause of action in as complete a manner a possible. The requirement of affidavit was added, and it can be used as the direct testimony of the affiant. Affidavits can facilitate the resolution of the petition, consistent with the summary nature of the proceedings. Paragraph (d) is necessary to determine whether the act or omission of the respondent satisfies the standard of conduct set by this Rule. Paragraph (e) is intended to prevent the premature use, if not misuse, of the writ for a fishing expedition.

SEC. 6. Issuance of the Writ. — Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ in his or her own hand, and may deputize any officer or person to serve it.

The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7) days from the date of its issuance.

Issuance. The writ isissued as a matter of course when on the face of the petition it ought to issue. The writ will require respondent to file his return, which is the comment or answer to the petition. If the petitioner is able to prove his cause of action after the hearing, the privilege of the writ of amparo shall be granted, i.e., the court will grant the petitioner his appropriate reliefs.

The provision requires that the writ should set the date of hearing of the petition to expedite its resolution. The amparo proceedings enjoy priority and cannot be unreasonably delayed.

SEC. 7. Penalty for Refusing to Issue or Serve the Writ. — A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions. TaCSAD

Penalties. The provision is a modified version of a similar provision in Rule 102, governing petitions for a writ of habeas corpus.

SEC. 8. How the Writ is Served. — The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules of substituted service shall apply.

Manner of Service. The writ should be served against the respondent, preferably in person. If personal service cannot be made, the rules on substituted service shall apply. This will avoid the situation where the respondent would be conveniently assigned on a "secret mission to frustrate personal service.

SEC. 9. Return; Contents. — Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following:

(a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission;

(b) 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 threat, act or omission;

(c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and

(d) If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken;

(i) to verify the identity of the aggrieved party;

(ii) 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; cCSDaI

(iii) to identify witnesses and obtain statements from them concerning the death or disappearance;

(iv) to 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;

(v) to identify and apprehend the person or persons involved in the death or disappearance; and

(vi) to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case.

A general denial of the allegations in the petition shall not be allowed.

Contents of the Return. The section requires a detailed return. The detailed return is important, for it will help determine whether the respondent fulfilled the standard of conduct required by the Rule. It will also avoid the ineffectiveness of the writ of habeas corpus, where often the respondent makes a simple denial in the return that he or she has custody over the missing person, and the petition is dismissed. The requirements under paragraph (d) are based on United Nations standards. 13

No General Denial. No general denial is allowed. The policy is to require revelation of all evidence relevant to the resolution of the petition. A litigation is not a game of guile but a search for truth, which alone is the basis of justice.

SEC. 10. Defenses Not Pleaded Deemed Waived. — All defenses shall be raised in the return, otherwise, they shall be deemed waived.

Waiver. This section is in consonance with the summary nature of the proceedings and to prevent its delay. cHaDIA

SEC. 11. Prohibited Pleadings and Motions. — The following pleadings and motions are prohibited:

(a) Motion to dismiss;

(b) Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings;

(c) Dilatory motion for postponement;

(d) Motion for a bill of particulars;

(e) Counterclaim or cross-claim;

(f) Third-party complaint;

(g) Reply;

(h) Motion to declare respondent in default;

(i) Intervention;

(j) Memorandum;

(k) Motion for reconsideration of interlocutory orders or interim relief orders; and

(l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

Prohibited Pleadings. The enumerated pleadings and motions are prohibited, so that the proceedings in the hearing shall be expedited. The Committee noted that since the right to life, liberty and security of a person is at stake, the proceedings should not be delayed.

This section is similar to that found in the Rule on Violence Against Women and Children in Conflict with the Law (VAWC). 14 However, unlike in VAWC, this Rule allows the filing of motions for new trial and petitions for relief from judgment. The Committee decided that the denial of these remedies may jeopardize the rights of the aggrieved party in certain instances and should not be countenanced.

No Motion to Dismiss. The filing of a motion to dismiss even on the ground of lack of jurisdiction over the subject matter and the parties is proscribed. The reason is to avoid undue delay. The grounds of a motion to dismiss should be included in the return and resolved by the court, using its reasonable discretion as to the time and merit of the motion. aHECST

SEC. 12. Effect of Failure to File Return. — In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte.

Ex Parte Hearing. The Committee decided that the hearing should not be delayed by the failure of the respondent to file a return, otherwise the right to life, liberty and security of a person would be easily frustrated.

SEC. 13. Summary Hearing. — The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.

The hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus.

Summary Nature. The amparo hearing is summary in nature and held from day to day until completed, for time cannot stand still when life, liberty or security is at stake. Be that as it may, the court, justice or judge, using reasonable discretion, may conduct a preliminary conference, if such conference will aid in the speedy disposition of the petition:

 

SEC. 14. Interim Reliefs. — Upon filing of the petition or at any time before final judgment, the court, justice or judge may grant any of the following reliefs:

Interim Reliefs. The interim reliefs available to the parties are distinct features of the writ of amparo. Some of these reliefs can be given immediately after the filing of the petition motu proprio or at any time before final judgment.

(a) Temporary Protection Order. — The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3 (c) of this Rule, the protection may be extended to the officers concerned.

The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue. HASTCa

The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge.

Temporary Protection Order. The grant of a temporary protection order to the petitioner or the aggrieved party and any member of the immediate family is essential because their lives and safety may be at higher risk once they file the amparo petition.

The temporary protection order and witness protection order are distinguishable from the inspection order and production order in that there is no need for verification of these motions. Moreover, unlike the latter, the temporary protection order and witness protection order may be issued motu proprio or ex parte, without need of a hearing in view of their urgent necessity.

To make the temporary protection order as broad and as effective as possible, the Committee decided to include not only government agencies, but also accredited persons and private institutions. For reasons of their own, some aggrieved persons refuse to be protected by government agencies; hence, the need to add persons and private institutions. To ensure their capability, the Supreme Court shall accredit these persons and private institutions.

(b) Inspection Order. — The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons. IcSEAH

Inspection Order. The sensitive nature of an inspection order requires that it shall be the subject of a motion and shall be duly heard. It may be availed of by both the petitioner and the respondent. To prevent its misuse, the Rule requires that the motion also state in sufficient detail the place or places to be inspected. It should also be under oath and should have supporting affidavits. The inspection order shall specify the persons authorized to make the inspection as well as the date, time, place and manner of making the inspection. Other conditions may be imposed to protect the rights of the parties. The order has a limited lifetime of five days, but can be extended under justifiable circumstances.

If the court, justice or judge gravely abuses his or her discretion in issuing the inspection order, as when it will compromise national security, the aggrieved party is not precluded for filing a petition for certiorari with the Supreme Court, which, under the Constitution, may not be deprived of its certiorari jurisdiction.

(c) Production Order. — The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.

Production Order. Like the inspection order, the production order is available to both the petitioner and respondent and, considering its sensitive nature, is only granted upon motion and after hearing. The phrase "objects in digitized or electronic form" was added to cover electronic evidence, since the documents involved may be stored in digital files.

(d) Witness Protection Order. — The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security Land Benefit Program, pursuant to Republic Act No. 6981.

The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. ESHAcI

Witness Protection Order. The witness protection order may be issued upon motion or motu proprio. The witness may be referred to the DOJ pursuant to Republic Act No. 6981. If the witness cannot be accommodated by the DOJ or the witness refuses the protection of the DOJ, the court, justice or judge may refer the witness to another government agency or to an accredited person or private institution.

SEC. 15. Availability of Interim Reliefs to Respondent. — Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section.

A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent.

Interim Reliefs of Respondent. This section enumerates the interim reliefs that may be availed of by the respondent, which are the inspection and production orders.

The interim reliefs will ensure fairness in the proceedings, since there may be instances in which the respondents would need to avail themselves of these reliefs to protect their rights or to prove their defenses, i.e.,when they allege that the aggrieved party is located elsewhere, or when vital documents proving their defenses are in the possession of other persons.

SEC. 16. Contempt. — The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court, to be punished for contempt. The contemnor may be imprisoned or imposed a fine.

Contempt. The power to cite for contempt is an inherent power of a court to compel obedience to its orders and to preserve the integrity of the judiciary. A finding of contempt of court may result from a refusal to make a return; or, if one is filed, it is false and tantamount to not making a return; disobedience to a lawful order; and resistance to a lawful process. A fine of an imprisonment may be imposed on a person found guilty of contempt of court in accordance with the Rules of Court.

SEC. 17. Burden of Proof and Standard of Diligence Required. — The parties shall establish their claims by substantial evidence.

The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. DTcHaA

The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.

The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability.

Diligence Standard. The distinction is made between a private and a public respondent to highlight the difference in the diligence requirement for a public official or employee. Public officials or employees are charged with a higher standard of conduct because it is their legal duty to obey the Constitution, especially its provisions protecting the right to life, liberty and security. The denial of the presumption that official duty has been regularly performed is in accord with current jurisprudence on custodial interrogation and search warrant cases.

SEC. 18. Judgment. — The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.

 

Speedy Judgment. The court, justice or judge is obliged to render judgment within ten (10) days after submission of the petition for decision. The short period is demanded by the extraordinary nature of the writ.

SEC. 19. Appeal. — Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.

The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.

The appeal shall be given the same priority as habeas corpus cases.

Appeal. The provision allows an appeal from final judgments or orders through Rule 45. The Committee considered Rule 41 as a mode of appeal, but a consensus was reached that Rule 45 would best serve the nature of the writ of amparo. The Rule 45 appeal here, however, is different, because it allows questions not only of law but also of fact to be raised. The Committee felt that an amparo proceeding essentially involves a determination of facts considering that its subject is extralegal killings or enforced disappearances, hence, a review of errors of fact should be allowed. The disposition of appeals dealing with amparo cases shall be prioritized like habeas corpus cases. DEcSaI

SEC. 20. Archiving and Revival of Cases. — The court shall not dismiss the petition, but shall archive it, if upon its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to threats on their lives.

A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice, upon failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the case.

The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this Rule, not later than the first week of January of every year.

Liberalized Rule on Dismissal. The rule on dismissal due to failure to prosecute is liberalized. If petitioners cannot proceed to prove their allegations for a justifiable reason like the existence of a threat to their lives or the lives of their witnesses, the court will not dismiss the petition but will archive it. The parties will be notified before a case is archived, as the order has to be justified by a good reason, to be determined after hearing. Archiving can be ordered only during the pendency of the case. The case may be revived within two years from its archiving. After two years, it may be dismissed for failure to prosecute. Since it is the petitioner who would be prejudiced by its final dismissal, the two-year prescriptive period is reckoned from the date of notice to the petitioners of the order of archiving. Two years is deemed a reasonable time for the aggrieved parties to prosecute their petition.

SEC. 21. Institution of Separate Actions. — This Rule shall not preclude the filing of separate criminal, civil or administrative actions.

Prerogative Writ. The writ of amparo partakes of the nature of a prerogative writ. It is not a criminal, civil, or administrative suit. Hence, it does not suspend the filing of criminal, civil or administrative actions.

Originally, the Committee included a provision allowing a claim for damages. It dropped the provision for fear that such a claim would unduly delay the proceeding, considering the possibility of counterclaims and cross-claims being set up. Delay would defeat the summary nature of the amparo proceeding. It was decided, that the aggrieved party should instead file in a claim in a proper civil action.

Similarly, the amparo proceeding is not criminal in nature and will not determine the criminal guilt of the respondent. However, if the evidence so warrants, the amparo court may refer the case to the Department of Justice for criminal prosecution.

SEC. 22. Effect of Filing of a Criminal Action. — When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. TaDAIS

The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo.

Effect of Criminal Proceeding. This section contemplates the situation where a criminal action has already been filed, in which case the commencement of the amparo action is barred. This is to avoid the difficulties that may be encountered when the amparo action is allowed to proceed separately from the criminal action. Two courts trying essentially the same subject may issue conflicting orders.

The amparo reliefs, however, are made available to the aggrieved party through motion in the court where the criminal case is pending. The disposition of such reliefs shall continue to be governed by this Rule.

SEC. 23. Consolidation. — When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

Consolidation. In case a petition for the writ of amparo is filed prior to the institution of a criminal action, or prior to a criminal action and a separate civil action, the petition shall be consolidated with the criminal action. This Rule shall continue to govern the disposition of the reliefs for amparo after consolidation.

SEC. 24. Substantive Rights. — This Rule shall not diminish, increase or modify substantive rights recognized and protected by the Constitution.

No Diminution, Increase or Modification of Substantive Rights. The rule-making power of the Supreme Court has been expanded in Article VIII, Section 5 (5) of the 1987 Constitution. It provides that the Supreme Court shall have the power to "[p]romulgate rules concerning the protection and enforcement of constitutional rights [which] shall not diminish, increase, or modify substantive, rights. . ." 15 caIDSH

The Supreme Court clarified what constitutes procedural rules in Fabian v. Desierto, viz:

[T]he test whether the rule really regulates procedure, that is, the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. If the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be classified as substantive matter; but if it operates as a means of implementing an existing right, then the rule deals merely with procedure. 16

SEC. 25. Suppletory Application of the Rules of Court. — The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule.

Suppletory Application of the Rules of Court. The Rules of Court shall supplement the Rule on amparo as far as it is applicable. This new Rule will prevail and will not be affected by prior inconsistent rules, resolutions, regulations or circulars of the Supreme Court.

SEC. 26. Applicability to Pending Cases. — This Rule shall govern cases involving extralegal killings and enforced disappearances or threats thereof pending in the trial and appellate courts.

Remedial Nature of the Writ. Since the writ is remedial in nature, it is applicable to pending cases of extralegal killings and enforced disappearances or threats thereof, both in the trial and the appellate courts.

SEC. 27. Effectivity. — This Rule shall take effect on October 24, 2007, following its publication in three (3) newspapers of general circulation.

Date of Effectivity. The last section marks the date of effectivity of the Rule and its publication requirement. The Committee deemed it proper that the birth of the Rule in the Philippines should coincide with our celebration of United Nations Day, to manifest a strong affirmation of our commitment towards the internationalization of human rights.

Footnotes

1. Adolfo S. Azcuna, The Writ of Amparo: A Remedy to Enforce Fundamental Rights, 37 ATENEO L.J. 15 (1993).

2. See Article 107 of the Constitution of Mexico; Article 28 (15) of the Constitution of Ecuador; Article 77 of the Constitution of Paraguay; Article 43 of the Constitution of Argentina; Article 49 of the Constitution of Venezuela; Article 48 (3) of the Constitution of Costa Rica; and Article 19 of the Constitution of Bolivia.

3. Supra note 1.

4. 1987 PHIL. CONST. Art. VIII, Subsec. 5 (2).

5. 1987 PHIL. CONST. Art. VIII, Subsec. 5 (2) (a).

6. 1987 PHIL. CONST. Art. III Subsecs. 13 & 15.

7. 1987 PHIL. CONST. Art. VII, Subsec. 18.

8. 1987 PHIL. CONST. Art. VIII, Subsec. 5 (1).

9. 1987 PHIL. CONST. Art. VIII, Subsec. 5 (5).

10. As the term is used in United Nations Instruments.

11. Such as media persons for example.

12. As defined in the Declaration on the Protection of All Persons from Enforced Disappearances. ECaScD

13. See Art. III, United Nations Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.

14. See A.M. No. 04-10-11-SC, Section 22.

15. 1987 PHIL. CONST. Art. VIII, Subsec. 5, ¶ 15 (emphasis supplied).

16. G.R. No. 129742, September 16, 1998, at 22-23 citing 32 AM. JUR. 2d, Federal Practice and Procedure, Subsec. 505, at 936; People v. Smith, 205 P. 2d 444.