1. Writ of Amparo 3 rd Presentation

2. Discussion of Assignments

3. Preliminaries... The Rule on The Writ of Amparo is contained in A.M. No. 07-9-12-SC Issued on 25 September 2007. Took effect on 24 October 2007. Contains 27 sections.

4. The 27 sections can be broken down into 12 categories: 1. Petition Who May File Where to File No Docket Fees Contents of Petition 2. Issuance and Service of the Writ Penalty for Refusing to Issue or Serve the Writ How the Writ is Served 3. Return Contents Defenses Not Pleaded Deemed Waived Effect of Failure to File Return

5. 4. Prohibited Pleadings and Motions 5. Summary Hearing 6. Interim Reliefs Temporary Protection Order Inspection Order Production Order Witness Protection Order Availability of Interim Reliefs to Respondents 7. Contempt

6. 8. Burden of Proof and Standard of Diligence Required 9. Judgment & Archiving and Revival of Cases 10. Appeal 11. Institution of Separate Actions and Effects of Filing a Criminal Action 12. Final Provisions [Substantive rights, suppletory application of the Rules of Court, applicability to pending cases & effectivity]

7. What is the Philippine writ of amparo? A judicial remedy Available to any person: Whose right to life, liberty and security is violated or threatened with violation By an unlawful act or omission Of a --  Public official or employee, or  Private individual or entity [Sec. 1, Rule on the Writ of Amparo]

8. Who may avail of the remedy? 1.Aggrieved party, or 2.By any qualified person or entity in the following order (which must be observed: 2.1 Any member of the immediate family of the aggrieved party, namely: 2.1.1 The spouse, 2.1.2 Children and 2.1.3 Parents

9. In default of the above-mentioned members of the aggrieved party’s immediate family, any ascendant, descendant or collateral relative of the aggrieved party within the 4th civil degree of consanguinity or affinity may file the petition.

10. If there is no known member of the immediate family or relative of the aggrieved party, then any of the following may file the petition: 1.concerned citizen 2.concerned organization or association, or 3.concerned institution (Sec. 2, Amparo Rule)

11. Take NOTE! The filing of the petition by the aggrieved party suspends the right of all other authorized parties to file a similar petition; b.The filing of a petition by an authorized party on behalf of the aggrieved party suspends the right of all others. (Sec. 2, Amparo Rule)

12. When can the petition be filed? On any day and at any time.

13. In what courts can the petition be filed? The Regional Trial Court (RTC) of the place where the threat, act or omission committed or any of its elements occurred; The Sandiganbayan; The Court of Appeals; The Supreme Court; or With any of the justices of the Sandiganbayan, Court of Appeal or Supreme Court; (Sec. 3, Amparo Rule)

14. Is there a court fee for filing an amparo petition? No. A petition for a writ of amparo is EXEMPT from the payment of the docket and other lawful fees. (Sec. 4, Amparo Rule)

15. Must the petition be verified? Yes. The petition must be signed by counsel and verified by the petitioner. Azcuna, J.: Verification is required “to enhance the truthfulness of the [petition’s] allegations.”

16. Verification A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. (Rule 7, Sec. 4, Rules of Court)

17. Contents of Amparo Petition (1)Petitioner/s personal circumstances; (2)The name and personal circumstances of the person or entity (respondent/s) responsible for the threat, act or omission;

18. Required in order to identify the petitioner and respondent/s. Petitioner can be described as John or Jane Doe but person must be particularly described (description personae).

19. Contents of Amparo Petition (3)Substantive allegations: (i) The right to life, liberty and security of the aggrieved party violated or threatened with violation, (ii) the respondent’s unlawful act or omission that constitutes such violation or threat, and (iii) how such threat or violation is committed with (iv) the attendant circumstances detailed in supporting affidavits.

20. Supporting Affidavits Affidavits “can be used as direct testimony;” Thus, highly recommended that they be in the form of judicial (question and answer) affidavits. “Affidavits can facilitate the resolution of the petition, consistent with amparo’s summary nature.” Azcuna, J., Annotation on Amparo

21. Supporting Affidavits Should be in sufficient detail as to convince the court of the truth of the factual allegations; With supporting documents or corroborating affidavits of lay or expert witnesses.

22. Contents of Amparo Petition (5)The investigation conducted, if any, specifying the following: Names, personal circumstances, and addresses of the investigating authority or individuals; The manner and conduct of the investigation, together with any report; (6)(a) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and (b) the identity of the person responsible for the threat, act or omission;

23. Azcuna, J., Annotation on Amparo “[The requirement of alleging the investigation conducted] is necessary to determine whether the act or omission of the respondent satisfies the standard of conduct set by this Rule. [The next sub-section] is intended to prevent the premature use, if not misuse, of the writ for a fishing expedition.”

24. (7)The relief prayed for. The petition may include a general prayer for other just and equitable remedies. (8) Signed; and (9) Verified. (Sec. 5, Amparo Rule)

25. GROUP WORK # 4

26. Guide Questions 1. Should the petition contain a certification against forum shopping? 2. What is the difference between the issuance of the writ of amparo and the grant of the privilege of the writ of amparo? 3. Is the writ of amparo a civil action, a criminal action, or neither one?

27. Should the petition contain a certification against forum shopping? Nothing in the rules requires a Certification against Forum Shopping. A Motion To Dismiss (on any ground) is not allowed (a prohibited pleading). To err on the side of caution, however, where a Certification against Forum Shopping can be included in the petition, it is better to include one.

28. What is the difference between the issuance of the writ of amparo and the grant of the privilege of the writ of amparo? “The writ [of amparo] is issued as a matter of course when on the face of the petition it ought to issue...If the petitioner is able to prove his cause of action after the hearing, the privilege of the writ of amparo shall be granted, i.e., the court will grant the petitioner his appropriate reliefs.” [Azcuna, J., Annotation on Amparo]

29. What should the court, justice or judge do upon the filing of the amparo petition? 1. Docket it. 2. Determine if, on the face of the petition, the writ of amparo ought to issue. 3. Immediately order the issuance of the writ if on its face it ought to issue, and take the necessary steps to see to it that the writ is duly issued and served:

30. 3.1 The clerk of court shall issue the writ under the seal of the court, or 3.2 In case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. (Sec. 6, Amparo Rule)

31. What appears on the face of the the writ? Date and time of preliminary conference, if any; Date and time of summary hearing; Should not be later than 7 days from date of issuance; Deadline for filing Return, supporting affidavits and documents; Where (which court) to file the Return; Who will hear the petition and decide the case; Name and signature of issuing justice, judge or clerk of court; and Who was/were furnished copies of the writ.

32. What should counsel do when the writ is issued? Compare the writ with the order directing its issuanceThere should be an order for the issuance of the writ before the writ itself is issued. The two should correspond in— How the writ should be served; Who is deputized to serve it; Where the Return should be filed, and who will hear the petition and decide it; The deadline for filing the Return; The date of the Preliminary Conference (if any); The date and time of the Summary Hearing.

33. How should the writ be served? Personal service upon the respondent/s, By a judicial officer or the person deputized by the court, judge or justice. The serving officer must retain a copy on which to make a return of service. If the writ cannot be served personally, the rules on substituted service shall apply. (Sec. 8, Amparo Rule)

34. Rule 14, Sec. 7, Rules of Court By leaving copies at respondent/s residence with some person of suitable age and discretion then residing therein; or By leaving copies at respondent/s office or regular place of business with some competent person in charge thereof.

35. What should the judge or justice do if the writ is not issued or served as s/he had directed? The clerk of court or the person deputized may be punished with contempt, without prejudice to other disciplinary actions. (Sec. 7, Amparo Rule)

36. Where is the writ enforceable? Anywhere in the Philippines. (Sec. 3, Amparo Rule)

37. When should the summary hearing be held? Not later than seven (7) days from its issuance. (Sec. 6, Amparo Rule)

38. What should take place at the summary hearing? The Rule does not say. the amparo court, justice or judge may, before the summary hearing, call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. All it says is that the amparo court, justice or judge may, before the summary hearing, call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.

39. What should respondents do within five working days from receipt of the writ? Within five (5) working days after the service of the writ, the respondent/s shall submit a verified written return; (Sec. 9, Amparo Rule, as amended by A.M. No. 07-9-12- SC, Oct. 16, 2007)

40. Is the 5 day period extendible? Yes, but only on highly meritorious grounds. (Sec. 9, Amparo Rule, as amended by A.M. No. 07-9-12- SC, Oct. 16, 2007)

41. If an extension is granted, how long should it last? How many extensions can be granted? The Rule does not say. The Rule, however, prohibits the filing of dilatory motions for postponement.

42. What should the written return contain? The supporting affidavits of respondent/s and their witnesses; The respondent/s’ lawful defenses (showing that respondent did not violate or threaten with violation the right to life, liberty and security of the aggrieved party, through any act or omission; The steps or actions taken by respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission;

43. What should the written return contain… All relevant information in the possession of respondent pertaining to the threat, act or omission against the aggrieved party; and If the respondent is a public official or employee, the return shall further state the actions that have been or will be taken: To verify the identity of the aggrieved party To recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible;

44. What should the written return contain… To identify witnesses and obtain statements from them concerning the death or disappearance; To determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may have brought about the death or disappearance; To identify and apprehend the person or persons involved in the death or disappearance; and To bring the suspected offenders before a competent court.

45. What should the written return contain… The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case. The return must be signed by counsel and verified by the respondent. (Sec. 9, Amparo Rule)

46. Can the return make a general denial? No. General denials are not allowed. (Sec. 9, Amparo Rule)

47. Justice Azcuna’s annotation Contents of the Return. The section requires a detailed return. The detailed return is important, for it will help determine whether the respondent fulfilled the standard of conduct required by the Rule. It will also avoid the ineffectiveness of the writ of habeas corpus, where often the respondent makes a simple denial in the return that he or she has custody over the missing person, and the petition is dismissed. The requirements under paragraph (d) [duties where the respondent is a public official] are based on United Nations standards.

48. “The Rationale for the Writ of Amparo” (Supreme Court) “In Velasquez and Godinez, the [Inter-American] Court [of Human Rights] held that such [enforced] disappearnces constitutued crimes against humanity under international law; and that, as a result, governments had an affirmative duty to investigate them and to prosecute and punish whoever may be responsible.”

49. “The Rationale for the Writ of Amparo” (Supreme Court) “The Court also found that, because the purpose of a disappearance was to eliminate traces of the government’s role in a serious crime, the standard of proof and burden of persuasion must, after an initial presentation by the Commission, shift to the government to demonstrate that it had done all in its power to redress the wrong. The Court based this reasoning on its dicum that states have an obligation to organize their whole apparatus so that human rights may be adequately protected. “

50. Justice Azcuna’s annotation No General Denial. No general denial is allowed. The policy is to require revelation of all evidence relevant to the resolution of the petition.

51. Can respondent/s raise defenses not alleged in the Return? No. Defenses not raised in the return are deemed waived. (Sec. 10, Amparo Rule)

52. What motions and pleadings are prohibited? Motion to dismiss; Motion for extension of time to file opposition, affidavit, position paper and other pleadings; Note: The period to file the return may be extended for a limited period of FIVE (5) working days with possible extension under A.M. No. 07-9-12-SC, October 16, 2007. Dilatory motion for postponement; Motion for bill of particulars; Counterclaim or cross-claim; Third party complaint;

53. Prohibited Motions and Pleadings Reply; Motion to declare the respondent in default; Intervention; Memorandum; Motion for reconsideration of interlocutory orders or interim reliefs; and Petition for certiorari, mandamus or prohibition against any interlocutory order. (Sec. 11, Amparo Rule as amended by A.M. No. 06-9-12- SC, October 16, 2007)

54. Justice Azcuna’s annotation Prohibited Pleadings. The enumerated pleadings and motions are prohibited, so that the proceedings in the hearing shall be expedited....since the right to life, liberty and security of a person is at stake, the proceedings should not be delayed.

55. Justice Azcuna’s annotation This section is similar to that found in the Rule on Violence Against Women and Children in Conflict with the Law (VAWC). However, unlike in VAWC, this Rule allows the filing of motions for new trial and petitions for relief from judgment. The denial of these remedies may jeopardize the rights of the aggrieved party in certain instances and should not be countenanced.

56. Justice Azcuna’s annotation No Motion to Dismiss. The filing of a motion to dismiss even on the ground of lack of jurisdiction over the subject matter and the parties is proscribed. The reason is to avoid undue delay. The grounds of a motion to dismiss should be included in the return and resolved by the court, using its reasonable discretion as to the time and merit of the motion.

57. Is it right to assume that respondent/s should file their Return with the court that issued the writ? No. This applies only when the writ is issued by the RTC or an RTC judge. The writ should be returned before that court or judge. When the writ is issued by the SB, CA or SC, these courts have the discretion to have the writ returned to them or to a lower court. Sec. 3, Amparo Rule

58. What if respondent/s fail to submit a return? The amparo court, justice or judge shall proceed to hear the petition ex parte. (Sec. 12, Amparo Rule) The respondent/s who refuses to make a return, or who makes a false return, shall be punished for contempt and may be imprisoned or fined. (Sec. 16, Amparo Rule)

59. GROUP WORK # 5

60. Guide Questions 1.

61. Assignment for Next Class Read the provisions of the Rule on Amparo on interim relief. Be prepared to explain them. Compare and contrast the provisions of amparo on inspection and production with the rules on discovery. Be prepared to explain the similarities and differences.