Wednesday, July 18, 2007
Writ of Amparo
Concerned about the growing number of cases of disappearance in the country, the Supreme Court (SC) now contemplates introducing the writ of amparo into the legal system to give more protection to constitutional rights of a person as the petition for habeas corpus has proved not very effective remedy in compelling the state to produce person thought to be victim of disappearance.
In the Philippines, relative of missing person usually seeks legal remedy by filing a petition for habeas corpus, a special proceeding under Rule 102 of the Revised Rules of Court, to compel the state to produce person thought to be victim of disappearance.
However, the SC said recently that petitions for habeas corpus usually end up with state agents simply denying they had the missing person in their custody.
Chief Justice Panganiban explained that the writ of amparo would compel state agents to look for the missing person and the agents would be held liable if they did not exert adequate effort in finding the person.
The writ of amparo or amparo (literally means protection), which was asked in a previous bar exams, is typically Mexican having been first adopted in Mexico in 1857. It is broader in scope and application than the writ of habeas corpus in that it protects a person against illegal arrest and violation of human rights.
In Mexican jurisdiction, the amparo procedure has two parts. The preliminary one – suspension incident – tends to prevent the consummation of alleged violations. The court without emitting any opinion as to whether or not the acts stated really do violate an individual right, suspends their effects so that the final decision granting the amparo may have practical effect. In the other part of the procedure the facts alleged are proved and a study is made of them as to whether or not they violate the rights invoked (The Writ of Amparo, The Mexican Procedure to Protect Human Rights by Carlos Sabchez Mejorada).
Under Sec. 5(5) of Art. VIII of the Constitution, the SC is clothed with a law-making power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts. The provision is intended not only to underscore that constitutional rights are mere declaratory but also enforceable. By virtue of this constitutional grant of power, the SC may adopt the writ of amparo in order to effectively shield a person against the violation of human rights by arbitrary authorities.