‘Amparo Dismissals Encourage More Killings’


CA SERIAL DISMISSALS OF AMPARO PETITIONS: ENCOURAGING THE ESCALATION OF EXTRAJUDICIAL KILLINGS AND ENFORCED DISAPPEARANCES

The NUPL strongly criticizes the recent spate of decisions by the Court of Appeals dismissing amparo petitions which are indicative of a failure to comprehend the intent and nature of the new judicial remedy that initially brought a ray of hope for the victims, families and human rights defenders. These decisions unfortunately disregards the actual state of human rights in the Philippines today that has prompted the promulgation of the new remedy in the first place. This spate of decisions will only encourage the re-escalation of extrajudicial killings and enforced disappearances because of the continuing impunity which has unfortunately and unwittingly been judicially engendered further.

Misunderstanding Amparo

The Court of Appeals has recently dismissed amparo petitions for the supposed failure of the victims-petitioners to prove that their rights to life, liberty or security were violated or under threat. In the case of survivor-witness Francis Saez who implicated Gen. Jovito Palparan – the epitome of a vicious and remorseless human rights violator who “got away with it” – to the killing of two human rights workers in Southern Tagalog, the Court of Appeals dismissed the petition because “it appears” to have been precipitated by “fear that something might happen to him, not because of an apparent or visible threats to his life, liberty or security”. The CA also dismissed the amparo petition of Nilo Baculo, a media man who believes he is also under threat. Similar petitions for the writ were also recently dismissed one after the other in the case of activist-farmer Jonas Burgos, peace consultant Elizabeth Principe and – only yesterday – the Gumanoy sisters, daughters of one of the said Southern Tagalog human rights workers.

Firstly, the CA decisions seem to have sorely misunderstood the nature of amparo petitions and the interim relief for a temporary protection order demanded in the Saez and Baculo cases. The rule states under Rule 14 (a) that:

(a) Temporary Protection Order. – The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved.

Clearly, the Court may grant a temporary protection order motu proprio or “on its own initiative or discretion” even without a request or motion from the petitioner. Unlike the other interim reliefs, protection orders may be granted without a hearing. The intent of the rule, therefore, is to facilitate these protection orders rather than make it a burden for the petitioners to prove that they are under threat. The Protection Order is precisely a mantle intended to protect the victim should his claim to threats be true. No injury is caused if the Court will grant it and state that “even if the threat has not yet been fully established by direct evidence, the Court grants you protection and warns any person or entity not to violate your right to life, liberty or security”. The writ of amparo is in the nature of an affirmative action wherein the Court should grant the protection order if the respondents fail to prove that they are not threatening the life of the victim. Dismissing a petition on the unsure ground that the threat “appears” to be baseless is surely not the intent of the amparo rule.

Secondly, The CA decisions’ unreasonable standard of asking the victims for “clear evidence” of “apparent or visible” threats to the life of the petitioner could be misplaced. Judicial decisions will have to be in touch with the reality outside the immaculate walls and towers of the courtyards. There have been 900 extra judicial killings, several hundreds of disappearances, and daily accounts of almost routinary torture of the most heinous kinds in the Philippines since 2001 and there has been very little “visible or apparent” evidence gathered by the police to identify the perpetrators. The only time when the victims will have the opportunity to get a “visible or apparent” evidence of the threats is when a gun is already pointed at them and the trigger is about to be pulled. To place that burden on the victims rather than government agencies is clearly a misreading of the amparo rule.

The Supreme Court declared that the writ of amparo is not a criminal action requiring proof beyond reasonable doubt, nor is it a civil or an administrative proceedings, but a prerogative writ intended to protect human rights. In the above cases, it seems that the Court of Appeals did not find the allegations of petitioners “relevant evidence that a reasonable mind might accept to support a conclusion that there is a real and actual threat” to the life, liberty or security of Saez, a survivor-witness himself who implicated a notorious general for the killing of his two fellow human rights workers and who is being asked to “spy” on his own lawyers who are themselves members of NUPL. The decision considers the report of surveillance, and the “tailing” of the victim as nothing more than a mere baseless “fear”. This brings to mind a report to the Inter-American Commission on Human Rights on September 9, 1985 on the human rights situation of Chile under Gen. Augusto Pinochet:

On March 14, 1980 the teacher Oscar Salazar Jahnsen appeared before the Santiago Appeals Court, and complained of the conspicuous tailing to which he had been subject and expressed his fear of being illegally arrested and requested that he be granted adequate protection. When the respective report was requested from the Minister of the Interior, the Minister replied, “in this Department of State there is no information about this person” (confidential official letter 873 of March 18). x x x Six days later the court rejected the application and on April 28 the teacher Salazar was killed in a “security operation”. Concerning this event the media reported:

according to the versions supplied to the press, the event was the consequence of the tailing of Oscar Salazar for several days. Security officials followed him yesterday from the downtown area and in Lo Cañas Street ordered him to surrender. It was not stated why the arrest had not taken place earlier.

102. The account given indicates that the Judiciary has shown serious negligence in processing the applications submitted to it for safeguarding the personal liberty, the physical integrity, and even the life of many persons opposed to the Government. This attitude has favored, by omission, the condemnable practices of the Government, which have not been investigated with the decisiveness .

The New Template of “Voluntary custody”

In the case of the habeas corpus petition of 17 year old Fatima Gumanoy and the amparo petition of Juvy Ortiz and Jeffry Panganiban, the Court of Appeals dismissed their respective petitions on the ground that the subjects purportedly chose to remain in the custody of the military. This ruling is a far cry from the groundbreaking decision of the Dipolog and Davao RTC which ordered the release from military custody of petitioners Ruil Munasque and Luisito Bustamante both of whom also signed “affidavits of voluntary custody” with the AFP. The courageous Davao and Dipolog RTC judges who, despite Munasque’s and Bustamante’s affidavit professing voluntary custody with the military, released the victims to the custody of their family with an admonition that they can go back to the military’s custody the very next day should they persist on their declaration that they want to remain under the military’s custody. The RTC judges showed a keen perceptiveness of the conditions on the ground, the reality and context of human rights violations and sensitivity to the victims’ plight when they ordered their release.

The basis of the custody of the military must be a legal basis, not upon the whim or request of anyone, even the victim especially since the AFP is not a hotel or a boarding house where anyone can just demand board and lodging. If there is no arrest warrant or commitment order, the Court of Appeals cannot order that a victim remain in the custody of the AFP as in the case of Gumanoy, who is a minor.

Secondly, the Court of Appeals must be conscious or take note of the credible allegations, pervasive public perception and independent findings – both here and abroad – and hundreds of complaints in different national and international fora that the military, police and their agents are involved in human rights violations, abduction and enforced disappearance including torture. This immediately puts a legal responsibility on the courts to frown on claims by subjects that they ‘want’ to be in military custody as testimonies most likely given under duress. A decision dismissing an amparo petition because a subject ‘wants’ to be under the military’s custody, rather than with his family, is based on an unrealistic assessment of the facts and, denies reality and even common human experience. It simply taxes one’s credulity.

In his speech before the Court of Appeals, Chief Justice Reynato Puno reminded the CA justices that amparo is intended to protect human rights and exhorted them to do so when he declared:

The power to interpret law is therefore a power that can make a difference. The power is weak only in the hands of weaklings; the power is puny only to those whose minds no longer dream and dare.

Together with the rulings in Saez, Baculo, Gumanoy, Panganiban and Ortiz and more recently, the rulings in the Jonas Burgos and Elizabeth Principe petitions, it seems that the heralded promise that was amparo is floundering not in any local RTC who might be more in touch with reality but in the ivy towers of the Court of Appeals. After giving the amparo a chance, where else can the victims really go for real justice?

Date : 27 July 2008

Reference : Atty. Neri Javier Colmenares, Secretary General

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