THE WRIT OF AMPARO AND AO 197

As NUPL secretary-general and CODAL spokesperson Neri Javier Colmenares put it in an Oct. 18 forum at UP, the writ of amparo is a legal remedy that “could pierce the veil of impunity” shrouding human rights violators in the Philippines. Its effectivity as a legal recourse, however, faces a challenge from President Gloria Macapagal-Arroyo’s recent issuance of AO 197.

BY ALEXANDER MARTIN REMOLLINO
Bulatlat
Vol. VII, No. 37, October 21-27, 2007

As National Union of People’s Lawyers (NUPL) secretary-general and Counsels for the Defense of Liberties (CODAL) spokesperson Neri Javier Colmenares put it in an Oct. 17 forum at the University of the Philippines (UP), the writ of amparo is a legal remedy that “could pierce the veil of impunity” shrouding the perpetrators of extrajudicial killings and enforced disappearances in the Philippines.

Its effectivity as a legal recourse, however, faces a challenge from President Gloria Macapagal-Arroyo’s recent issuance of Administrative Order No. 197. The said administrative order, which was implemented on the same day that the Rule on the Writ of Amparo was approved, provides among other things that:

“1. The Department of National Defense (DND) and the Armed Forces of the Philippines (AFP) shall work closely with Presidential Human Rights Committee (PHRC) subcommittee on killings and disappearances for speedy action on cases and effective reforms to avoid abuses with regular reports to the Commander-in-Chief through the Executive Secretary as PHRC chair, and in consultation with the Court administrator, invited as PHRC subcommittee observer.

“2. The DND/AFP (Department of National Defense/Armed Forces of the Philippines) shall draft legislation in consultation with the Presidential Legislative Liaison Office and Congress allies for safeguards against disclosure of military secrets and undue interference in military operations inimical to national security…”

A.M. No. 07-9-12-SC, approved by the Supreme Court on Sept. 25 and set to take effect on Oct. 24, provides that the writ of amparo shall cover threats or actual cases of “extralegal killings” and enforced disappearances.

Its reach extends beyond that of the writs of habeas corpus and habeas data, as it expressly disallows “general denials” of allegations in petitions for the writ.

The writ of habeas corpus requires the military to physically produce missing persons suspected to be in its custody. The writ of habeas data, meanwhile, requires that the military produce evidence or items containing evidence on the whereabouts of missing persons believed to be in its custody.

In habeas corpus or habeas data petitions, the courts have no power against the military’s denials of allegations.

Amparo petitioners and interim reliefs

Under the Rule of the Writ of Amparo, aggrieved parties or qualified persons may file petitions for the writ in the following order: any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of members of the immediate family; or any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.

The Rule provides that both public officials or employees and private persons may be named as respondents to petitions for the writ of amparo.

Under the Rule on the Writ of Amparo, the following interim reliefs are available to petitioners: temporary protection order, inspection order, production order, and witness protection order.

The temporary protection requires that the petitioner or aggrieved party or any member of the immediate family be extended protection by a government agency or any accredited person or private institution capable of ensuring their safety. The protection may be extended to the officers involved if the petitioner is an organization.

The Supreme Court is to accredit the persons or institutions that would extend temporary protection to the petitioners, aggrieved parties, or members of the immediate family.

The inspection order requires that persons in possession of any designated land or other property allow entry “for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.”

The production order requires that persons in possession, custody or control of 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” to produce these and allow their inspection.

A.M. No. 07-9-12-SC provides that if either the inspection order or the production order is opposed on grounds of “national security or of the privileged nature of the information,” the court, judge or justices issuing the writ shall conduct hearings on the merits of the opposition.

Meanwhile, under the witness protection order, witnesses are to be referred to the Department of Justice (DoJ) for admission to the Witness Protection Program provided for by Republic Act No. 6981.

AO 197 and impunity

The writ of amparo faces a challenge to its effectivity as a legal recourse for victims of “extralegal killings” or enforced disappearances and their relatives with Arroyo’s issuance of AO 197 last Sept. 25.

As Colmenares told reporters who interviewed him on the sidelines of the Oct. 17 forum at UP, there is something problematic in AO 197’s requirement that matters involving killings and disappearances be reported by the DND/AFP to the Commander-in-Chief.

“It paves the way for military officers summoned by the courts (on issues regarding killings and disappearances) to claim executive privilege,” Colmenares said. “The military officer can just say, ‘Well, I cannot answer the question because that forms part of my report to the President, and since it’s part of the report it’s already covered by executive privilege.’ So all investigations, all suspicions, all updates, leads are to be reported to the Commander-in-Chief. That may be interpreted as covered by executive privilege. So that will not only defeat the writ of amparo, but that will also undermine the judicial power of the Supreme Court.”

He also sees a problem in AO 197’s instruction for the drafting of legislation to protect military secrets.

“(With that) how can the judge now issue inspection orders?” Colmenares said.

Any legislation to protect military secrets pursuant to AO 197 may also include ways to get around production orders. The items which constitute or contain evidence relevant to petitions for the writ of amparo may also be classified as part of “military secrets” to be protected.

“Whatever openings may have been created (by the writ of amparo) in fighting impunity may close again,” Colmenares said. Bulatlat