Tuesday, September 25, 2007

The Writ of Amparo

Today, the Supreme Court approved, during its en banc session the proposed rules for the adoption of what is called the writ of amparo.
It is a form of relief granted to persons whose constitutional rights are being threatened. The writ of amparo seeks to "shelter," to act as a refuge, against threats.
The promulgation of the rules for to oprationalize the issuance of this writ of amparo has come in the wake of alarming cases of forced disappearances, extrajudicial killings happening in our country.
Some international groups have pointed to the security forces of the government as having a hand in these violations of human rights.
Anyway, I am certain that not a few (in the legal profession), including of course myself, are unfamiliar with the rules or even concept writ of the writ of amparo.
But this animal called "writ of amparo" gained popularity---or properly notoriety---during the 1991 bar examinations in political law.
Political law is the first bar exam subject on he first Saturday of the bar exams.
And this was the very first question asked for the whole bar examinations:
what is the writ of amparo?
This was obviously a "killer question"
A question like that can easily drive a person to feel ominously bedeviled for the rest of the exams.
It is the legal equivalent of the medical term: dead-on-arrival.
You just arrived for the exam and you're already dead.
At the Ateneo Law School, many professors have this style of injecting so-called "killer questions" during mid-term or final examinations.
It is that question that is purposely designed to "jolt" the examinee, or to psychologically wear him down at the very first encounter of an examination question.
A killer question is usually an "out of this world question", a question least expected by an examinee. It could be the most difficult question of the exam, and the very first exam question.
It happened during the 1991 bar examinations.
And who was the examiner for political law that year, who injected this killer question?
He is now associate justice of the Supreme Court Adolfo S. Azcuna, law practitioner, professor and member of the Ateneo Law Class of 1962.
You could sense a revolting reaction after that political law exam morning among the baffled, bewildered, and bothered examinees.
No one, it seemed, knew even the tiniest thing about what the writ of amparo is. Clueless could perhaps be the best description.
There were those, out of anger, who described the question a irrelevant, outlandish, stupid, etc. What is this anyway? And how does this even come close to the practice of law?
Little did we know, that more than a decade after, the writ of amparo would become one of the most relevant concepts put to life in this juridcition by the Supreme Court.
Under the constitution, the Supreme Court is expressly empowered to promulgate rules for the protection and enforcment of constitutional rights
We have obviously a Surpeme Court sporting a high sense of judicial pro-activism, quickly responding to legal needs of the people, partaining to their basic and fundamental rights, like the right to life, and the right to liberty.
But there is a story behind that eventful bar exam question of 1991.
Not long before (or was it after?) it was posed as a bar exam question, there was a legal paper, a research about the writ of amparo, that was published in the Ateneo Law Journal.
Guess who the author was?


Rolly Cavan. dna5o4@yahoo.com said...

Re: Writ of Amparo

Mr. Editor,

Isn't it that the function of the Supreme Court is to review cases from the Appellate Courts to determine if the Laws are properly applied by the adjudicating courts on cases under appeal - to hold or reverse the decisions of the lower courts?

My understanding of the Supreme Court's primary responsibility is to conduct judicial review hearings to ascertain the precise application of the law to the case in question.

The proactive path that the Puno Court is taking, as a result of the internationally popular issue of extra judicial killings that occured over a number of years, in the Philippines, seem to temp the the Puno Court to legislate a criteria or procedure to fit the alleged crime beyond its expressed authority - where the presumption of innocence is being subordinated to judicial activism.

Jay Dejaresco said...

Actually sir, the supreme court's promulgation of the rules for the issuance of the writ of amparo is an express, explicit authority from the constitution, provided in Section 5 (5), Article VIII of the 1987 constitution.
Rule making on certain areas is granted the Supreme court by the constitution

Rolly Cavan. dna5o4@yahoo.com said...

Mr. Editor,

Protection from ex post facto laws is guaranteed by the Constitution - referring to punishment under a law promulgated after an action.

The 1987 Constitution empowered the Supreme Court to use the legal tool at their disposal, The Writ of Amparo. Is there no question in your mind whether the specific provision in Section 5 of the 1987 Constitution, could pass a legal test when challenged in court?

DJB Rizalist said...

It seems to me the SC is entering uncharted waters. In every Latin American country where amparo and habeas data are used, they were explicitly put in the Constitution. But our SC is not "pro-active" it is activistic and very, very liberally interprets the provision you refer to:

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

How can they avoid "diminishing, increasing or modifying" substantive rights when they claim to be bringing to life a "right to truth" which is nowhere in the bill of rights.

What they are doing is judicial activism in its most radical form because they are usurping legislative and executive powers in a manner that cannot be checked or balanced! Who would do it??

Jay Dejaresco said...

I agree with you that the Court is sailing in uncharted waters. Judicial adventurism I would even call it. But I prefer that our High Court embark on this adverturism or activism, rather than do nothing. I just have a feeling that some minds in the high court are exercising common sense. The reality is, we have an executive branch that not only has failed to stop these extra judicial killings. The executive or its underlings are being suspected of engaging in these extra judicial killings. The other branch, the legislative branch which is tasked to pass the laws to protect its citizens, has not risen to the occassion, and prefers to embark on televisable undertakings. So I am not surpised that the third, and least powerful branch, is saying, "let's do something about this." Right or wrong, history will judge this activist attutide of this Supreme Court. I have a feeling that history will be more considerate, and judge the high court kindly, appreciating that the court once took a bold step towards the protection of the citizens' rights. Procedrually, we are at a dead end. We cannot go to any court and make the Supreme court a respondent. Also, there is no other higher court to which we can file certiorari proceedings to annul an act of the Supreme Court. Theoretically, I think the Congress, can subvert the act of the judiciary by passing a law that would render ineffective the rule on the writ of amparo, or more simply, refuse any additional budget towards enforcing the amparo rules, if any. But who in Congress is complaining?