The Writ of Amparo

What is Writ of Amparo?

 It is a 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
of a private individual or entity. The writ shall cover extralegal killings and enforced
disappearances or threats thereof. (The Rule On The Writ Of Amparo, Sec. 1)

Note: The remedy provides rapid judicial relief as it partakes of a summary proceeding that requires only
substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to
determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility requiring substantial evidence that will
require full and exhaustive proceedings. (Deliberations of the Committee on the Revision of the Rules of
Court, Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and Sept. 20, 2008)

Coverage

 It covers extralegal killings and enforced disappearances or threats thereof. It is 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 of a private individual or
entity.
The petition for a writ of amparo is a 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 of a private individual or entity. The writ shall cover
extralegal killings and enforced disappearances or threats thereof.

What are extralegal killings?

 Killings committed without due process of law, legal safeguards or judicial proceedings.
(Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) These include the
illegal taking of life regardless of the motive, summary and arbitrary executions, salvaging
even of suspected criminals, and threats to take the life of persons who are openly critical of
erring government officials and the like.

What are enforced disappearances?

 An arrest, detention or abduction of a person by a government official or organized groups

or private individual acting with the direct or indirect acquiescence of the government; the
refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal
to acknowledge the deprivation of liberty which places such persons outside the protection
of law. (Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)

Writ of Amparo vs. Writ of Habeas Corpus vs. Habeas Data

HABEAS CORPUS AMPARO HABEAS DATA

You have the body
Rule 102
Writ directed to the person
detaining another, commanding him
to produce the body of the prisoner
at a designated time and place, with
the day and cause of his capture and
detention, to do, submit to, and
receive whatsoever the court or
judge awarding the writ shall
consider in that behalf.
Literal interpretation
To protect You have the data
Governing rule
A.M. No. 07-9-12-SC A.M. No. 08-1-16-SC
Description
Remedy available to any Remedy available to any person whose right
person whose right to life, to privacy in life, liberty or security is
liberty, and security is violated or threatened by an unlawful act or
violated or threatened with omission of a public official or employee, or
violation by an unlawful act of a private individual or entity engaged in
or omission of a public the gathering, collecting, or storing of data
official or employee, or of a or information regarding the person, family,
private individual or entity. home and correspondence of the aggrieved
party.

Involves the right to liberty of and
rightful custody by the aggrieved
party.
There is an actual violation of the
aggrieved party’s right.
RTC or any judge thereof, CA or any
member thereof in instances
authorized by law; or SC or any
member thereof.
1. Party for whose relief it is
intended; or
2. Any person on his behalf
May or may not be an officer.
If granted by SC or CA: enforceable
anywhere In the Philippines;
If granted by RTC: enforceable only
within the judicial district
Payment is required
Note: Rule on indigent petitioner
applies.
Served upon the person to whom it
is directed, and if not found or has
not the prisoner in his custody, to
the other person having or
exercising such custody
Officer by whom the prisoner is
imprisoned or the person in whose
custody the prisoner is found
On the day specified in the writ
Coverage
Involves the right to life, liberty, and
security of the aggrieved party and
covers extralegal killings and
enforced disappearances.
Rights violated
There is an actual or threatened
violation of the aggrieved party’s
right.
Where to file
RTC of the place where the threat,
act or omission was committed or
any of its elements occurred; SB or
any justice thereof; CA or any justice
thereof; SC or any justice thereof.
Who may file a petition
In the following order:
1. Any member of the immediate
family
2. Any ascendant, descendant, or
collateral relative of the aggrieved
party within the 4th civil degree of
consanguinity or affinity
3. Any concerned citizen,
organization, association or
institution
Respondent
Public official or employee or a
private individual or entity.
Enforceability of the writ
Enforceable anywhere in the Philippines regardless of who issued the same
Docket fees
Petitioner is exempted from
payment
Service of writ
Served upon the respondent
personally; or substituted service
Person who makes the return
Respondent
When to file a return
Within 5 working days after service
of the writ, the respondent shall file
a verified written return together
with supporting affidavits.
Involves the right to privacy in life,
liberty, and security of the
aggrieved party and covers
extralegal killings and enforced
disappearances.
There is an actual or threatened
violation of the aggrieved party’s
right.
RTC where the petitioner or
respondent resides, or that which
has jurisdiction over the place
where the data or information is
gathered, collected or stored, at the
option of the petitioner; or with SC,
CA or SB when the action concerns
public data files or government
offices.
1. Any aggrieved party;
2. However, in cases of extralegal
killings and enforced
disappearances:
a. Any member of the immediate
family
b. Any ascendant, descendant, or
collateral relative of the aggrieved
party within the 4th civil degree of
consanguinity or affinity
Public official or employee or a
private individual or entity engaged
in the gathering, collecting or
storing of data or information
regarding the person, family, home
and correspondence of the
aggrieved party.
Payment is required.
Note: Rule on indigent petitioner
applies.
Served upon the respondent
personally; or substituted service
Respondent
The respondent shall file a verified
written return together with
supporting affidavits within 5
working days from service of the
writ, which period may be
reasonably extended by the Court

If granted by the SC or CA:
returnable before the court or any
member or before RTC or any judge
thereof;
If granted by RTC: returnable before
such court
Not prohibited.
Liability of the person to whom the writ is directed if he refuses to make a return
Forfeit to the aggrieved party the
sum of P1000, and may also be
punished for contempt.
Date and time of hearing is specified
in the writ.
None
for justifiable reasons.
Return
If issued by RTC: returnable before If issued by RTC: returnable before
such court; such court;
If issued by SB or CA or any of their If issued by SB or CA or any of their
justices: returnable before such justices: returnable before such
court or to any RTC of the place court or to any RTC of the place
where the threat, act or omission where the petitioner or respondent
was committed or any of its resides or that which has
elements occurred; jurisdiction over the place where
If issued by SC or any of its justices: the data or information is gathered,
returnable before such court, or collected or stored;
before SB, CA, or to any RTC of the If issued by SC or any of its justices:
place where the threat, act or returnable before such court, or
omission was committed or any of before SB, CA, or to any RTC of the
its elements occurred place where the petitioner or
respondent resides or that which
has jurisdiction over the place
where the data or information is
gathered, collected or stored
General denial
Not allowed. Not allowed.
Imprisonment or fine for Imprisonment or fine for
committing contempt. committing contempt.
Hearing
5 working days from the date of 5 working days from the date of
notice of the adverse judgment. notice of the judgment or final
order.
Prohibited pleadings
1. Motion to dismiss;
2. Motion for extension of time to file opposition, affidavit, position paper
and other pleadings;
3. Dilatory motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross - claim;
6. Third - party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory orders or interim relief
orders; and
12. Petition for certiorari, mandamus or prohibition against any
interlocutory order.

Writ of Amparo vs. Search Warrant

What is the difference between a Writ of Amparo from a Search Warrant?

 In the October 7, 2008 decision of the Supreme Court in the case of The Secretary of National
Defense vs. Manalo, the Court said that “the production order under the Amparo Rule should not be
confused with a search warrant for law enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the demand of the people
such as respondents. Instead, the Amparo production order may be likened to the production of
documents or things under Section 1, Rule 27 of the Rules of Civil Procedure which provides in
relevant part, viz:

Section 1. Motion for production or inspection order. Upon motion of any party showing good
cause therefor, the court in which an action is pending may (a) order any party to produce and
permit the inspection and copying or photographing, by or on behalf of the moving party, of any
designated documents, papers, books of accounts, letters, photographs, objects or tangible things,
not privileged, which constitute or contain evidence material to any matter involved in the action
and which are in his possession, custody or control.”
 A search warrant is a court order issued by a judge or magistrate judge that authorizes the law
enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate
evidence if it is found. A writ of amparo is a form of constitutional relief.

Contents of Return

What is the content of the verified return?

 Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written
return together with supporting affidavits which shall, among other things, contain the following:

1. The lawful defenses to show that the respondent did not violate or threaten with violation
the right to life, liberty and security of the aggrieved party, through any act or omission;
2. The steps or actions taken by the respondent to determine the fate or whereabouts of the
aggrieved party and the person or persons responsible for the threat, act or omission;
3. All relevant information in the possession of the respondent pertaining to the threat, act or
omission against the aggrieved party; and
4. If the respondent is a public official or employee, the return shall further state the actions
that have been or will still be taken:
a. to verify the identity of the aggrieved party;
b. 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;
c. to identify witnesses and obtain statements from them concerning the death or
disappearance;
d. 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;
e. to identify and apprehend the person or persons involved in the death or
disappearance; and
f. to bring the suspected offenders before a competent court.

5. Other matters relevant to the investigation, its resolution and the prosecution of the case.

Note: A general denial of the allegations in the petition shall not be allowed.
(The Rule On The Writ Of Amparo, Sec. 9)

Effects of failure to file return

What happens when the respondent fails to file a return?

 The court, justice or judge shall proceed to hear the petition ex parte.
(The Rule On The Writ Of Amparo, Sec. 12)

Omnibus waiver rule

What is the Omnibus Waiver Rule?

 The omnibus waiver rules states that all defenses not raised in the return are deemed waived.
(The Rule On The Writ Of Amparo, Sec. 10)

Procedure for hearing

What is the nature of the hearing?

 The hearing on the petition shall be summary. However, the court, justice or judge may call for a
preliminary conference to simplify the issues and determine the possibility of obtaining stipulations
and admissions from the parties. (The Rule On The Writ Of Amparo, Sec. 13)

How long should the hearing last?

 The hearing shall be from day to day until completed and given the same priority as petitions for
habeas corpus. (The Rule On The Writ Of Amparo, Sec. 13)
Institution of separate action

May a separate action be filed after filing a petition for a writ of amparo?

 Yes. It does not preclude the filing of separate criminal, civil or administrative actions.
(The Rule On The Writ Of Amparo, Sec. 21)

Effect of filing of a criminal action

What is the effect if a prior criminal action has been filed?

 When a criminal action has been commenced, no petition for the writ of amparo shall be filed. The
reliefs under the writ shall be available by motion in the criminal case. The procedure under this Rule
shall govern the disposition of the reliefs available under the writ of amparo.
(The Rule On The Writ Of Amparo, Sec. 22)

Consolidation

What happens if criminal action is filed subsequent to a petition for writ of amparo?

 When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be
consolidated with the criminal action. When a criminal action and a separate civil action is filed
subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal action.
After consolidation, the procedure under The Rule On The Writ Of Amparo shall continue to apply to
the disposition of the reliefs in the petition. (The Rule On The Writ Of Amparo, Sec. 23)

Interim Reliefs Available to Petitioner and Respondent

What are interim reliefs available?


PETITIONER RESPONDENT
1. Temporary protection order; 1. Inspection order;
2. Inspection order; 2. Production order. (Sec. 15)
3. Production order;
4. Witness protection order. (Sec. 14)

HOW INITIATED THE COURT SHALL

Temporary Upon motion or motu
Protection Order proprio
Inspection Order Upon verified motion and
after due hearing
Production Order Upon verified motion and
after due hearing
Witness Upon Motion or Motu
Proprio
Order 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.
Order any person in possession or control of a
designated land or other property, to permit
entry for the purpose of inspecting, measuring,
surveying, or photographing the property or any
relevant object or operation thereon.
Order any person in possession, custody or
control of any designated documents, papers,
books, accounts, letters, photographs, objects or
tangible things, or objects in digitized or
electronic form, which constitute or contain
evidence relevant to the petition or the return,
to produce and permit their inspection, copying
or photographing by or on behalf of the movant.
Refer the witnesses to the Department of Justice
for admission to the Witness Protection, Security
and Benefit Program, pursuant to Republic Act
No. 6981. The court, justice or judge may also
refer the witnesses to other government
agencies, or to accredited persons or private
institutions capable of keeping and securing their
safety.
Quantum of Proof in Application for Issuance of Writ of Amparo

What is the quantum of evidence required in a petition for a writ of amparo?

 The parties shall establish their claims by substantial evidence. The respondent who is a private
individual or entity must prove that ordinary diligence as required by the applicable laws, rules and
regulations was observed in the performance of duty. The respondent who is a public official or
employee must prove that extraordinary diligence as required by applicable laws, rules and
regulations was observed in the performance of duty. The respondent public official or employee
cannot invoke the presumption that official duty has been regularly performed to evade
responsibility or liability. (The Rule On The Writ Of Amparo, Sec. 17)

Note: No writ of amparo may be issued unless there is a clear allegation of the supposed factual and legal basis of
the right sought to be protected. A threatened demolition of a dwelling by virtue of a final judgment of the court is
not included among the enumeration of rights as stated in the above-quoted Section 1 for which the remedy of a
writ of amparo is made available. Their claim to their dwelling, assuming they still have any despite the final and
executory judgment adverse to them, does not constitute right to life, liberty and security. There is, therefore, no
legal basis for the issuance of the writ of amparo.

(Canlas v. Napico Homeowners Association, G.R. No. 182795, June 5, 2008).

Sample Problem:

Raymond and Reynaldo Manalo escaped from captivity and surfaced of the armed forces. But while the
two admit that they are no longer in detention and are physically free, they assert, that they are not free in
every sense of the word as their movements continue to be restricted for fear that the people they have
named in their judicial affidavits and testified against are still at large and have not held accountable. The
Manalo brothers claim that they are under the threat of being once again abducted, kept captive or even
killed, which constitute a direct violation of their right to security of person. They filed a petition for writ of
amparo. Should the court granted the petition?

Answer:

Yes, the Manalo brothers’ right to security as freedom from threat is violated by the apparent threat to
their life, liberty and security of person. Their right to security as a guarantee of protection by the
government is likewise violated by the ineffective investigation and protection on the part of the military.
In blatant violation of guarantees to life, liberty and security, these rights are snuffed out from victims of
extralegal killings and enforced disappearances. The writ of amparo is a tool that gives voice to preys of
silent guns and prisoners behind secret walls.

(Secretary of National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008)