An amparo success, though not yet complete

The writ of amparo was issued by the Supreme Court in Deduro v. Vinoya (July 4, 2023 but released only last May 8) to protect the petitioner who was Red-tagged by the government. The issuance of the writ is a victory of activists, i.e., journalists, students, laborers, jeepney drivers, and even plain citizens peacefully exercising their freedom of expression via public rallies, writings, speeches, and body language like fist clenching, sneering, gesticulating, and staring.

EXPERTLY PENNED BY JUSTICE RODIL V. ZALAMEDA and concurred in unanimously by his colleagues, the 39-page decision is a well-written treatise that meticulously discussed the (1) purpose, (2) coverage, (3) parties who can avail of the writ, and (4) legal process to obtain it.

On the purpose of the writ, the ponencia explained that retired Justice Adolfo S. Azcuna, as a bar examiner in 1991, asked what the intent of the writ of amparo is and its constitutional basis. Very few answered correctly that the writ was formulated by the Supreme Court to protect and enforce constitutional rights violated by extralegal killings, enforced disappearances, or threats thereof.

Curiosity impelled me to ask the eminent J Azcuna how the writ came about. He replied that it originated from Mexico and “expounded by Prof. Héctor Fix-Zamudio.” As a delegate to the 1971 Constitutional Convention, Azcuna proposed its inclusion in the 1973 Constitution “but failed because only a few understood it then.” And as a member of the 1986 Constitutional Commission, he tried again to include it in the Bill of Rights but the late CJ Roberto Concepcion (who was also a member) convinced him to incorporate it in the powers of the Supreme Court where it is now enshrined. For his untiring spade work, I think J Azcuna deserves the title “Father of the Writ of Amparo in the Philippines.”

AT THIS POINT, IT IS WELL TO DISTINGUISH THE “WRIT OF AMPARO” from the “privilege of the writ of amparo.” The first is issued when the judge finds that “on its face,” the petition and the attached affidavits constitute “prima facie” proof of a violation of the right to life, liberty, or security of the petitioner. Thereafter, the judge shall conduct “summary proceedings” that require only “substantial evidence” for the issuance of the amparo privilege.

To my mind, this is akin to (but not exactly the same as) the ex-parte issuance of the writ of preliminary injunction in civil cases, and later on—after trial on the merits—the issuance of the writ of permanent injunction. The writ of preliminary injunction, like the writ of amparo, may be dissolved or withdrawn anytime and the permanent injunction, like the “privilege,” refused or granted depending on the proof adduced during the ensuing summary hearings. Note however that in civil cases, the proof required is the stricter “preponderance of evidence” while in criminal cases, the strictest “proof beyond reasonable doubt.”

Given this simple explanation, the writ of amparo issued by the Supreme Court in favor of petitioner Siegfred Deduro is a good start but to complete his victory, he must produce “substantial evidence” to show his entitlement to the crucial “privilege of the writ.”

THE COVERAGE OR “CAUSES OF ACTION” OF THE WRIT include (a) extralegal (or extrajudicial) killings, (b) enforced disappearances, and (c) threats thereof. Extralegal killings, as used in United Nations instruments, are “killings … even of suspected criminals … committed without due process of law, i.e., without legal safeguards or judicial proceedings … regardless of the motive …” They can be committed by “both state or non-state actors.”

On the other hand, “enforced or involuntary disappearance,” per Republic Act No. 10353, “refers to the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support, or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by a concealment of the fate or whereabouts of the disappeared person, which places such person outside the protection of the law.”

Jurisprudence (SND v. Manalo, Oct. 7, 2008) says that a threat to “freedom from fear,” i.e., any “threat to the rights to life, liberty, or security is an actionable wrong.” In the amparo context, the right to security is actually freedom from threats that can exist independently of the right to liberty. In other words, there need not necessarily be a deprivation of liberty for the right to security to be violated.

Red-tagging as a communist or a terrorist is a form of harassment that could be a cause to invoke the writ of amparo because the Red-tagged person becomes a target of vigilantes, paramilitary groups, or even state agents. Understandable therefore is the Red-tagged individual’s fear of being killed or illegally abducted.

For lack of space, I can no longer discuss the third (parties) and the fourth (process) items. On the other hand, they are really best taken up by lawyers and law students who are advised to read J Zalameda’s treatise because it could erupt in another bar exam.

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