Amparo and habeas data in the Philippines
In the Philippines, amparo and habeas data are prerogative writs to supplement the inefficacy of the writ of habeas corpus (Rule 102, Revised Rules of Court). Amparo means 'protection,' while habeas data is 'access to information.'[1] Both writs were conceived to solve the extensive Philippine extrajudicial killings and forced disappearances since 1999.[2]
On July 16, 2007, Philippine Chief Justice Reynato S. Puno and Justice Adolfo Azcuna officially declared the legal conception of the Philippine Writ of Amparo ("Recurso de Amparo"), at the historic Manila Hotel National Summit on Extrajudicial Killings and Enforced Disappearances.[3][4]
On August 25, 2007, Reynato Puno declared the legal conception of amparo's twin, the supplemental Philippine Habeas Data. Puno by judicial fiat proclaimed the legal birth of these twin peremptory writs on October, 2007, as his legacy to the Filipino nation. Puno admitted the inefficacy of Habeas Corpus, under Rule 102, Rules of Court, since government officers repeatedly failed to produce the body upon mere submission of the defense of alibi.
By invoking the truth, Habeas Data will not only compel military and government agents to release information about the desaparecidos but require access to military and police files. Reynato Puno's writ of amparo—Spanish for 'protection'—will bar military officers in judicial proceedings to issue denial answers regarding petitions on disappearances or extrajudicial executions, which were legally permitted in Habeas corpus proceedings.[5]
The Supreme Court of the Philippines announced that the draft guidelines (Committee on Revision of Rules) for the writ of amparo were approved on September 23, to be deliberated by the En Banc Court on September 25.[6]
Origin[edit]
Mexican amparo[edit]
Chief Justice Reynato Puno noted that the model for amparo was borrowed from Mexico: the right of amparo is a Mexican legal procedure to protect human rights.[7] Of Mexican origin, thus, “amparo” literally means “protection” in Spanish.[8] de Tocqueville's "Democracy in America" had been available in Mexico, in 1837 and its description of judicial review practice in the U.S. appealed to many Mexican jurists.[9] Mexican justice Manuel Crescencio Rejón, drafted a constitutional provision for his native state, Yucatan, which empowered jurists to protect all persons in the enjoyment of their constitutional and legal rights. This was incorporated into the 1847 national constitution.[10][11] The great right proliferated in the Western Hemisphere, slowly evolving into various fora. Amparo became, in the words of a Mexican Federal Supreme Court Justice, Mexico's “task of conveying to the world’s legal heritage that institution which, as a shield of human dignity, her own painful history conceived.”[12][13]
Amparo's evolution and metamorphosis had been witnessed, for several purposes: "(1) amparo libertad for the protection of personal freedom, equivalent to the habeas corpus right; (2) amparo contra leyes for the judicial review of the constitutionality of statutes; (3) amparo casación for the judicial review of the constitutionality and legality of a judicial decisión; (4) amparo administrativo for the judicial review of administrative actions; and (5) amparo agrario for the protection of peasants’ rights derived from the agrarian reform process."[14]
Latin American countries, except Cuba, used the great right to protect against human rights abuses especially committed in countries under military juntas, adopting an all-encompassing amparo, even to protect socio-economic rights. But other countries like Colombia, Chile, Germany and Spain, opted to limit amparo shield only to some constitutional guarantees or fundamental rights.[15] In the Philippines, while the 1987 Constitution of the Philippines failed to expressly provide for amparo, several amparo protections are already guaranteed, thus: by paragraph 2, Article VIII, Section 1, the "Grave Abuse Clause" - which grants a similar general protection to human rights extended by the amparo contra leyes, amparo casacion, and amparo administrativo. Amparo libertad is similar to habeas corpus in the 1987 Constitution. The Clause is borrowed from the U.S. common law tradition of judicial review (1803 case of Marbury v. Madison).[16][17]
Justice Adolfo Azcuna, a member of two Constitutional Commissions of 1971, and 1986 previously made a study on the Right amparo as published in the Ateneo Law Journal (see Adolfo S. Azcuna, The Right of Amparo: A Remedy to Enforce Fundamental Rights, 37 ATENEO L.J. 15 (1993).).[18]
The "recurso de amparo" is an exhaustive remedy which originated from Latin America's Mexican, Chile and Argentina legal systems, inter alia. Mexico's amparo is found in Articles 103 and 107 of the Mexican Constitution -- the judicial review of governmental action, to empower state courts to protect individuals against state abuses. Amparo was sub-divided into 5 legal departments:
National Summit on Extrajudicial Killings and Enforced Disappearances[edit]
On July 16, 2007, Justices, activists, militant leaders, police officials, politicians and prelates attended the Supreme Court of the Philippines's 2-day summit at the Manila Hotel, Metro Manila to solve extrajudicial killings. Chief Justice Reynato Puno stated that the "National Consultative Summit on Extrajudicial Killings and Forced Disappearances: Searching for Solutions" would help stop the murders. Based on CBCP - Bishop Deogracias Yniguez-church's count, the number of victims of extrajudicial killings was record at 778, while survivors of "political assassinations" was 370; 203 "massacre" victims; 186 desaparecido; 502 tortured, and those illegally arrested.[25]
Puno requested for truce and talks with insurgents: "Let us rather engage in the conspiracy of hope…and hope for peace." Puno forwarded the summit's recommendation to President Gloria Macapagal Arroyo, the Senate and the House of Representatives.[26][27][28]
“Extralegal killings” (UN instruments term) are those committed without due process of law, which include summary and arbitrary executions, “salvagings”, threats to take the life of journalists, inter alia. “Enforced disappearances” (defined by Declaration on the Protection of All Persons from Enforced Disappearances), include: arrest, detention or abduction by a government official or organized groups under the government; the refusal of the State to disclose the fate or whereabouts of missing persons, inter alia.[29]
