RyD Notes | IX. WRIT OF AMPARO (A.M. No.

07-9-12-SC)

IX. WRIT OF AMPARO (A.M. No. 07-9-12-SC)

The nature and time-tested role of amparo has shown that it is an effective and inexpensive instrument for the
protection of constitutional rights. Amparo, literally "to protect," originated in Mexico and spread throughout the
Western Hemisphere where it has gradually evolved into various forms, depending on the particular needs of each
country. It started as a protection against acts or omissions of public authorities in violation of constitutional rights.
Later, however, the writ evolved for several purposes:

(1) For the protection of personal freedom, equivalent to the habeas corpus writ (called amparo libertad);
(2) For the judicial review of the constitutionality statutes (called amparo contra leyes);
(3) For the judicial review of the constitutionality and legality of a judicial decision (called amparo casacion);
(4) For the judicial review of administrative actions (called amparo administrativo); and
(5) For the protection of peasants' rights derived from the agrarian reform process (called amparo agrario).

The writ of amparo has been constitutionally adopted by Latin American countries, except Cuba, to protect against
human rights abuses especially during the time they were governed by military juntas. Generally, these countries
adopted the writ to provide for a remedy to protect the whole range of constitutional rights, including socio-economic
rights.

In the Philippines, the Constitution does not explicitly provide for the writ of amparo. However, several of the amparo
protections are available under our Constitution. Thus, pursuant to Article VIII, Section 1 of the 1987 Philippine
Constitution, the definition of judicial power was expanded to include "the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." The second clause, otherwise known as the Grave Abuse Clause, accords the
same general protection to human rights given by the amparo contra leyes, amparo casacion and amparo
administrativo.

Amparo contra leyes, amparo casacion and amparo administrativo are also recognized in form by the 1987 Philippine
Constitution. Specifically, under Article VIII, Section 5, the Supreme Court has explicit review powers over judicial
decisions akin to amparo casacion. To wit, Section 5 (2) provides that the Supreme Court shall have power to
"[r]eview, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts." And in paragraph (a) of Section 5 (2) it is also explicitly provided that the
Supreme Court shall have, like amparo contra leyes, the power to review ". . .[a]ll cases in which the constitutionality
or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question."

Amparo libertad is comparable to the remedy of habeas corpus. Our Rules of Court has adopted the old English rule
on the writ of habeas corpus to protect the right to liberty of individuals. There are also constitutional provisions
recognizing habeas corpus, i.e. Article III, Sections 13 and 15; 6 Article VII, Section 18; 7 and Article VIII, Section 5,
Paragraph 1. 8

The Rules of Court provide the procedure to protect constitutional rights. Rule 65 embodies the Grave Abuse Clause,
while Rule 102 governs petition for habeas corpus. Notably, the various socio-economic rights granted by the
Constitution are enforced by specific provisions of the Rules of Court, such as the rules on injunction, prohibition, etc.

The 1987 Constitution enhanced the protection of human rights by giving the Supreme Court the power to
"[p]romulgate rules concerning the protection and enforcement of constitutional rights. . ."This rule-making power
unique to the present Constitution, is the result of our experience under the dark years of the martial law regime.
Heretofore, the protection of constitutional rights was principally lodged with Congress through the enactment of laws
and their implementing rules and regulation. The 1987 Constitution, however, gave the Supreme Court the additional
power to promulgate rules to protect and enforce rights guaranteed by the fundamental law of the land.

In light of the prevalence of extralegal killing and enforced disappearances, the Supreme Court resolved to exercise
for the first time its power to promulgate rules to protect our people's constitutional rights. Its Committee on Revision of
the Rules of Court agreed that the writ of amparo should not be as comprehensive and all-encompassing as the ones
found in some American countries, especially Mexico. These nations are understandably more advanced in their laws
as well as in their procedures with respect to the scope of this extraordinary writ. The Committee decided that in our
jurisdiction, this writ of amparo should be allowed to evolve through time and jurisprudence and through substantive
laws as they may be promulgated by Congress.

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 RyD Notes | IX. WRIT OF AMPARO (A.M. No. 07-9-12-SC)

SECTION 1. Petition. — 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.

Since the writ of amparo is still undefined under our Constitution and Rules of Court, Section 1 enumerates the
constitutional rights protected by the writ, i.e., only the right to life, liberty and security of persons. In other jurisdictions,
the writ protects all constitutional rights. The reason for limiting the coverage of its protection only to the right to life,
liberty and security is that other constitutional rights of our people are already enforced through different remedies.

Be that as it may, the Philippine amparo encapsulates a broader coverage. Whereas in other jurisdictions the writ
covers only actual violations, the Philippine version is more protective of the right to life, liberty and security in the
sense that it covers both actual and threatened violations of such rights. Further, unlike other writs of amparo that
provide protection only against unlawful acts or omissions of public officials or employees, our writ covers violations
committed by private individuals or entities. "Entities" refer to artificial persons, as they are also capable of
perpetrating the act or omission.

The writ covers extralegal killings and enforced disappearances or threats thereof. "Extralegal killings" are killings
committed without due process of law, i.e. without legal safeguards or judicial proceedings. As such, these will include
the illegal taking of life regardless of the motive, summary and arbitrary executions, "salvagings" even of suspected
criminals, and threats to take the life of persons who are openly critical of erring government officials and the like. On
the other hand, "enforced disappearances" are attended by the following characteristics: an arrest, detention or
abduction of a person by a government official or organized groups or private individuals 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.

SECTION 2. Who May File. — The petition may be filed by the aggrieved party or by any qualified person or entity in
the following order:

(a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned in the preceding paragraph; or
(c) Any concerned citizen, organization, association or institution, if there is no known member of the
immediate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions.
Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all
others, observing the order established herein.

This section provides the order which must be followed by those who can sue for the writ. It is necessary for the
orderly administration of justice. First, the right to sue belongs to the person whose right to life, liberty and security is
being threatened by an unlawful act or omission of a public official or employee or of a private individual or entity (the
aggrieved party). However, in cases where the whereabouts of the aggrieved party is unknown, the petition may be
filed by qualified persons or entities enumerated in the Rule (the authorized party). A similar order of priority of those
who can sue is provided in our rules implementing the law on violence against women and children in conflict with the
law.

The reason for establishing an order is to prevent the indiscriminate and groundless filing of petitions far amparo
which may even prejudice the right to life, liberty or security of the aggrieved party. For instance, the immediate family
may be nearing the point of successfully negotiating with the respondent for the release of the aggrieved party. An
untimely resort to the writ by a non-member of the family may endanger the life of the aggrieved party.

The Committee is aware that there may also be instances wherein the qualified members of the immediate family or
relatives of the aggrieved party might be threatened from filing the petition. As the right to life, liberty and security of a
person is at stake, this section shall not preclude the filing by those mentioned in paragraph (c) when authorized by
those mentioned in paragraphs (a) or (b) when circumstances require.

SECTION 3. Where to File. — The petition may be filed on any day and at any time with the Regional Trial Court of
the place where the threat, act or omission was committed or any of its elements occurred, or with the

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 RyD Notes | IX. WRIT OF AMPARO (A.M. No. 07-9-12-SC)

Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable
anywhere in the Philippines.

When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such
court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was
committed or any of its elements occurred.

When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice
thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of
the place where the threat, act or omission was committed or any of its elements occurred.

Day and Time of Filing. Due to the extraordinary nature of the writ which protects the mother of all rights — the right to
life — the petition may be filed on any day, including Saturdays, Sundays and holidays; and at any time, from morning
until evening.

Courts Where Petition May Be Filed. This section is basically similar to the Rule on petitions for the writ of habeas
corpus. It is, however, different because it includes the Sandiganbayan for the reason that public officials and
employees will be respondents in amparo petitions. It will be noted that the amparo petition has to be filed with the
Regional Trial Court where the act or omission was committed or where any of its elements occurred . The intent is to
prevent the filing of the petition in some far-flung area to harass the respondent. Moreover, allowing the amparo
petition to be filed in any Regional Trial Court may prejudice the effective dispensation of justice, as in most cases, the
witnesses and the evidence are located within the jurisdiction of the Regional Trial Court where the act or omission
was committed.

Designation. Originally, the draft Rule required the petition to be filed in the RTC that had "jurisdiction" over the
offense. However, the Committee felt that the use of the word "jurisdiction" might be construed as vesting new
jurisdiction in our courts, an act that can only be done by Congress. The use of the word "jurisdiction" was
discontinued, for the Rule merely establishes a procedure to enforce the right to life, liberty or security of a person
and, undoubtedly the Court has the power to promulgate procedural rules to govern proceedings in our courts without
disturbing their jurisdiction.

SECTION 4. No Docket Fees. — The petitioner shall be exempted from the payment of the docket and other lawful
fees when filing the petition. The court, justice or judge shall docket the petition and act upon it immediately.

Liberalized Docket Fees. The Committee exempted petitioners from payment of docket and other lawful fees in filing
an amparo petition, for this extraordinary writ involves the protection of the right to life, liberty and security of a person.
The enforcement of these sacrosanct rights should not be frustrated by lack of finances.

SECTION 5. Contents of Petition. — The petition shall be signed and verified and shall allege the following:

(a) The personal circumstances of the petitioner;

(b) The name and personal circumstances of the respondent responsible for the threat, act or omission, or, if
the name is unknown or uncertain, the respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an
unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the
investigating authority or individuals, as well as the manner and conduct of the investigation, together with any
report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved
party and the identity of the person responsible for the threat, act or omission; and
(f) The relief prayed for.

The petition may include a general prayer for other just and equitable reliefs.

The petition should be verified to enhance the truthfulness of its allegations and to prevent groundless suits.

Paragraphs (a) and (b) are necessary to identify the petitioner and the respondent. The respondent may be given an
assumed appellation such as "John Doe," as long as he or she is particularly described (descriptio personae).
Paragraph (c) requires the petitioner to allege the cause of action in as complete a manner as possible. The

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requirement of affidavit was added, and it can be used as the direct testimony of the affiant. Affidavits can facilitate the
resolution of the petition, consistent with the summary nature of the proceedings. Paragraph (d) is necessary to
determine whether the act or omission of the respondent satisfies the standard of conduct set by this Rule. Paragraph
(e) is intended to prevent the premature use, if not misuse, of the writ for a fishing expedition.

SECTION 6. Issuance of the Writ. — Upon the filing of the petition, the court, justice or judge shall immediately order
the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court;
or 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.

The writ shall also set the date and time for summary hearing of the petition which shall not be later than seven (7)
days from the date of its issuance.

The writ is issued as a matter of course when on the face of the petition it ought to issue. The writ will require
respondent to file his return, which is the comment or answer to the petition. 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.

The provision requires that the writ should set the date of hearing of the petition to expedite its resolution. The amparo
proceedings enjoy priority and cannot be unreasonably delayed.

SECTION 7. Penalty for Refusing to Issue or Serve the Writ. — A clerk of court who refuses to issue the writ after
its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge
for contempt without prejudice to other disciplinary actions.

The provision is a modified version of a similar provision in Rule 102, governing petitions for a writ of habeas corpus.

SECTION 8. How the Writ is Served. — The writ shall be served upon the respondent by a judicial officer or by a
person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case
the writ cannot be served personally on the respondent, the rules on substituted service shall apply.

The writ should be served against the respondent, preferably in person. If personal service cannot be made, the rules
on substituted service shall apply. This will avoid the situation where the respondent would be conveniently assigned
on a "secret mission to frustrate personal service.

SECTION 9. Return; Contents. — Within FIVE (5) WORKING DAYS 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:

(a) 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;
(b) 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;
(c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against
the aggrieved party; and
(d) If the respondent is a public official or employee, the return shall further state the actions that have been or
will still be taken:
(i) to verify the identity of the aggrieved party;
(ii) 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;
(iii) to identify witnesses and obtain statements from them concerning the death or disappearance;
(iv) 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;
(v) to identify and apprehend the person or persons involved in the death or disappearance; and
(vi) to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case.

A general denial of the allegations in the petition shall not be allowed.

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

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 RyD Notes | IX. WRIT OF AMPARO (A.M. No. 07-9-12-SC)

missing person, and the petition is dismissed. The requirements under paragraph (d) are based on United Nations
standards.

No general denial is allowed. The policy is to require revelation of all evidence relevant to the resolution of the petition.
A litigation is not a game of guile but a search for truth, which alone is the basis of justice.

SECTION 10. Defenses Not Pleaded Deemed Waived. — All defenses shall be raised in the return, otherwise, they
shall be deemed waived.
This section is in consonance with the summary nature of the proceedings and to prevent its delay.

SECTION 11. Prohibited Pleadings and Motions. — The following pleadings and motions are prohibited:

(a) Motion to dismiss;

(b) Motion for extension of time to file opposition, affidavit, position paper and other pleadings;
(c) Dilatory motion for postponement;
(d) Motion for a bill of particulars;
(e) Counterclaim or cross-claim;
(f) Third-party complaint;
(g) Reply;
(h) Motion to declare respondent in default;
(i) Intervention;
(j) Memorandum;
(k) Motion for reconsideration of interlocutory orders or interim relief orders; and
(l) Petition for certiorari, mandamus or prohibition against any interlocutory order.

The enumerated pleadings and motions are prohibited, so that the proceedings in the hearing shall be expedited. The
Committee noted that since the right to life, liberty and security of a person is at stake, the proceedings should not be
delayed.

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 Committee decided that the denial of these remedies may jeopardize the rights of the aggrieved party
in certain instances and should not be countenanced.

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

SECTION 12. Effect of Failure to File Return. — In case the respondent fails to file a return, the court, justice or
judge shall proceed to hear the petition ex parte.

The Committee decided that the hearing should not be delayed by the failure of the respondent to file a return,
otherwise the right to life, liberty and security of a person would be easily frustrated.

SECTION 13. Summary 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 hearing shall be from day to day until completed and given the same priority as petitions for habeas corpus.

The amparo hearing is summary in nature and held from day to day until completed, for time cannot stand still when
life, liberty or security is at stake. Be that as it may, the court, justice or judge, using reasonable discretion, may
conduct a preliminary conference, if such conference will aid in the speedy disposition of the petition.

SECTION 14. Interim Reliefs. — Upon filing of the petition or at anytime before final judgment, the court, justice or
judge may grant any of the following reliefs:

(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.

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The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the
petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall
issue.

The personal election by the aggrieved party or by the member of the immediate family of the person or private
institution that shall extend temporary protection shall be respected. Should such person or institution not be
accredited in accordance with this Rule, the court hearing the petition for the writ of amparo may nonetheless allow
the latter to provide immediate temporary protection subject to the undertaking that accreditation by the Supreme
Court shall be applied for as soon as practicable.

The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the
court, justice or judge.

The grant of a temporary protection order to the petitioner or the aggrieved party and any member of the immediate
family is essential because their lives and safety may be at higher risk once they file the amparo petition.

The temporary protection order and witness protection order are distinguishable from the inspection order and
production order in that there is no need for verification of these motions. Moreover, unlike the latter, the temporary
protection order and witness protection order may be issued motu proprio or ex parte, without need of a hearing in
view of their urgent necessity.

To make the temporary protection order as broad and as effective as possible, the Committee decided to include not
only government agencies, but also accredited persons and private institutions. For reasons of their own, some
aggrieved persons refuse to be protected by government agencies; hence, the need to add persons and private
institutions. To ensure their capability, the Supreme Court shall accredit these persons and private institutions.

(b) Inspection Order. — The court, justice or judge, upon verified motion and after due hearing, may 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.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of
witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the information, the court,
justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to
be threatened or violated.

The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place
and manner of making the inspection and may prescribe other conditions to protect the constitutional rights of all
parties. The order shall expire five (5) days after the date of its issuance, unless extended for justifiable reasons.

The sensitive nature of an inspection order requires that it shall be the subject of a motion and shall be duly heard. It
may be availed of by both the petitioner and the respondent. To prevent its misuse, the Rule requires that the motion
also state in sufficient detail the place or places to be inspected. It should also be under oath and should have
supporting affidavits. The inspection order shall specify the persons authorized to make the inspection as well as the
date, time, place and manner of making the inspection. Other conditions may be imposed to protect the rights of the
parties. The order has a limited lifetime of five days, but can be extended under justifiable circumstances.

If the court, justice or judge gravely abuses his or her discretion in issuing the inspection order, as when it will
compromise national security, the aggrieved party is not precluded for filing a petition for certiorari with the Supreme
Court, which, under the Constitution, may not be deprived of its certiorari jurisdiction.

(c) Production Order. — The court, justice, or judge, upon verified motion and after due hearing, may 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.

The motion may be opposed on the ground of national security or of the privileged nature of the information, in which
case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

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The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.

Like the inspection order, the production order is available to both the petitioner and respondent and, considering its
sensitive nature, is only granted upon motion and after hearing. The phrase "objects in digitized or electronic form"
was added to cover electronic evidence, since the documents involved may be stored in digital files.
(d) Witness Protection Order. — The court, justice or judge, upon motion or motu proprio, may 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.

The witness protection order may be issued upon motion or motu proprio. The witness may be referred to the DOJ
pursuant to Republic Act No. 6981. If the witness cannot be accommodated by the DOJ or the witness refuses the
protection of the DOJ, the court, justice or judge may refer the witness to another government agency or to an
accredited person or private institution.

SECTION 15. Availability of Interim Reliefs to Respondent. — Upon verified motion of the respondent and after
due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and
(c) of the preceding section.

A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having
personal knowledge of the defenses of the respondent.

This section enumerates the interim reliefs that may be availed of by the respondent, which are the inspection and
production orders.

The interim reliefs will ensure fairness in the proceedings, since there may be instances in which the respondents
would need to avail themselves of these reliefs to protect their rights or to prove their defenses, i.e., when they allege
that the aggrieved party is located elsewhere, or when vital documents proving their defenses are in the possession of
other persons.

SECTION 16. Contempt. — The court, justice or judge may order the respondent who refuses to make a return, or
who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be
punished for contempt. The contemnor may be imprisoned or imposed a fine.

The power to cite for contempt is an inherent power of a court to compel obedience to its orders and to preserve the
integrity of the judiciary. A finding of contempt of court may result from a refusal to make a return; or, if one is filed, it is
false and tantamount to not making a return; disobedience to a lawful order; and resistance to a lawful process. A fine
of an imprisonment may be imposed on a person found guilty of contempt of court in accordance with the Rules of
Court.

SECTION 17. Burden of Proof and Standard of Diligence Required. — 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 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 distinction is made between a private and a public respondent to highlight the difference in the diligence
requirement for a public official or employee. Public officials or employees are charged with a higher standard of
conduct because it is their legal duty to obey the Constitution, especially its provisions protecting the right to life,
liberty and security. The denial of the presumption that official duty has been regularly performed is in accord with
current jurisprudence on custodial interrogation and search warrant cases.

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SECTION 18. Judgment. — The court shall render within ten (10) days from the time the petition is submitted for
decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the
writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied.

The court, justice or judge is obliged to render judgment within ten (10) days after submission of the petition for
decision. The short period is demanded by the extraordinary nature of the writ.

SECTION 19. Appeal. — Any party may appeal from the final judgment or order to the Supreme Court under Rule 45.
The appeal may raise questions of fact or law or both.

The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.

The appeal shall be given the same priority as in habeas corpus cases.

The provision allows an appeal from final judgments or orders through Rule 45. The Committee considered Rule 41 as
a mode of appeal, but a consensus was reached that Rule 45 would best serve the nature of the writ of amparo. The
Rule 45 appeal here, however, is different, because it allows questions not only of law but also of fact to be raised .
The Committee felt that an amparo proceeding essentially involves a determination of facts considering that its subject
is extralegal killings or enforced disappearances, hence, a review of errors of fact should be allowed. The disposition
of appeals dealing with amparo cases shall be prioritized like habeas corpus cases.

SECTION 20. Archiving and Revival of Cases. — The court shall not dismiss the petition, but shall archive it, if upon
its determination it cannot proceed for a valid cause such as the failure of petitioner or witnesses to appear due to
threats on their lives.

A periodic review of the archived cases shall be made by the amparo court that shall, motu proprio or upon motion by
any party, order their revival when ready for further proceedings. The petition shall be dismissed with prejudice upon
failure to prosecute the case after the lapse of two (2) years from notice to the petitioner of the order archiving the
case.

The clerks of court shall submit to the Office of the Court Administrator a consolidated list of archived cases under this
Rule not later than the first week of January of every year.

The rule on dismissal due to failure to prosecute is liberalized. If petitioners cannot proceed to prove their allegations
for a justifiable reason like the existence of a threat to their lives or the lives of their witnesses, the court will not
dismiss the petition but will archive it. The parties will be notified before a case is archived, as the order has to be
justified by a good reason, to be determined after hearing. Archiving can be ordered only during the pendency of the
case. The case may be revived within two years from its archiving. After two years, it may be dismissed for failure to
prosecute. Since it is the petitioner who would be prejudiced by its final dismissal, the two-year prescriptive period is
reckoned from the date of notice to the petitioners of the order of archiving . Two years is deemed a reasonable time
for the aggrieved parties to prosecute their petition.

SECTION 21. Institution of Separate Actions. — This Rule shall not preclude the filing of separate criminal, civil or
administrative actions.

The writ of amparo partakes of the nature of a prerogative writ. It is not a criminal, civil, or administrative suit. Hence, it
does not suspend the filing of criminal, civil or administrative actions.

Originally, the Committee included a provision allowing a claim for damages. It dropped the provision for fear that such
a claim would unduly delay the proceeding, considering the possibility of counterclaims and cross-claims being set up.
Delay would defeat the summary nature of the amparo proceeding. It was decided, that the aggrieved party should
instead file in a claim in a proper civil action.

Similarly, the amparo proceeding is not criminal in nature and will not determine the criminal guilt of the respondent.
However, if the evidence so warrants, the amparo court may refer the case to the Department of Justice for criminal
prosecution.

SECTION 22. Effect of Filing of a Criminal Action. — When a criminal action has been commenced, no separate
petition for the writ 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.

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This section contemplates the situation where a criminal action has already been filed, in which case the
commencement of the amparo action is barred. This is to avoid the difficulties that may be encountered when the
amparo action is allowed to proceed separately from the criminal action. Two courts trying essentially the same
subject may issue conflicting orders.

The amparo reliefs, however, are made available to the aggrieved party through motion in the court where the criminal
case is pending. The disposition of such reliefs shall continue to be governed by this Rule.

SECTION 23. Consolidation. — 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 are filed subsequent to a petition for a writ of amparo, the latter
shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition.

In case a petition for the writ of amparo is filed prior to the institution of a criminal action, or prior to a criminal action
and a separate civil action, the petition shall be consolidated with the criminal action. This Rule shall continue to
govern the disposition of the reliefs for amparo after consolidation.

SECTION 24. Substantive Rights. — This Rule shall not diminish, increase or modify substantive rights recognized
and protected the constitution.

The rule-making power of the Supreme Court has been expanded in Article VIII, Section 5 (5) of the 1987
Constitution. It provides that the Supreme Court shall have the power to "[p]romulgate rules concerning the protection
and enforcement of constitutional rights [which] shall not diminish, increase, or modify substantive, rights. . ."

The Supreme Court clarified what constitutes procedural rules in Fabian v. Desierto, viz:

[T]he test whether the rule really regulates procedure, that is, the judicial process for enforcing rights and duties
recognized by substantive law and for justly administering remedy and redress for a disregard or infraction of them. If
the rule takes away a vested right, it is not procedural. If the rule creates a right such as the right to appeal, it may be
classified as substantive matter; but if it operates as a means of implementing an existing right, then the rule deals
merely with procedure.

SECTION 25. Suppletory Application of the Rules of Court. — The Rules of Court shall apply suppletorily insofar
as it is no inconsistent with this Rule.

The Rules of Court shall supplement the Rule on amparo as far as it is applicable. This new Rule will prevail and will
not be affected by prior inconsistent rules, resolutions, regulations or circulars of the Supreme Court.

SECTION 26. Applicability to Pending Cases. — This Rule shall govern cases involving extralegal killings and
enforced disappearances or threats thereof pending in the trial and appellate courts.

Since the writ is remedial in nature, it is applicable to pending cases of extralegal killings and enforced
disappearances or threats thereof, both in the trial and the appellate courts.

SECTION 27. Effectivity. — This Rule shall take effect on October 24, 2007, following its publication in three (3)
newspapers of general circulation.

The Committee deemed it proper that the birth of the Rule in the Philippines should coincide with our celebration of
United Nations Day, to manifest a strong affirmation of our commitment towards the internationalization of human
rights.

A remedy available to any person whose right to life, liberty, and security has been violated or is threatened with
violation by a public official or employee or a private individual or a private individual or entity. The writ covers
extralegal killings and enforced disappearances or threats thereof. (S1, Rule on the Writ of Amparo [RWA]).

The threatened demolition of a dwelling by virtue of a final and executory judgment is not included among the
enumeration of rights in S1 RWA. (Canlas v. Napico Homeowners Association, 5 June 2008, en banc).

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 RyD Notes | IX. WRIT OF AMPARO (A.M. No. 07-9-12-SC)

Writ of amparo not available against Brgy. Captain’s alleged trespass of Petitioner’s property since merely a violation
of petitioner’s property rights. (Sps. Pador v. Arcayan, 12 March 2013).

A petition for a writ of amparo is not available in order for a biological mother to recover custody of child from the
DWSD. There is no enforced disappearance within the context of the Rules on the Writ of Amparo. Christina's directly
accusing the respondents of forcibly separating her from her child and placing the latter up for adoption, supposedly
without complying with the necessary legal requisites to qualify the child for adoption, clearly indicates that she is not
searching for a lost child but asserting her parental authority over the child and contesting custody over him. Since it is
extant from the pleadings filed that what is involved is the issue of child custody and the exercise of parental rights
over a child, who, for all intents and purposes, has been legally considered a ward of the State, the Amparo rule
cannot be properly applied. (Caram v. Segui, 5 August 2014).

The coverage of the Writ of Amparo is confined to cases of extralegal killings and enforced disappearances or threats
thereof. Hence the writ cannot be availed of by an alien detained by the Bureau of Immigration by virtue of legal
process. (Mison v. Gallegos, 23 June 2015, e.b.).

Privilege of Writ granted to person “invited” to Mayor‟s place and allegedly tortured. Grant of petition proper even
where petitioner released since writ serves both curative and preventive roles. The writ covers violation of the right to
security. (Mamba v. Bueno, 7 Feb 2017 [e.b.], Reyes, J.)

Under Section 1 of A.M. No. 07-9-12-SC a writ of amparo may lie against a private individual or entity. But even if the
person sought to be held accountable or responsible in an amparo petition is a private individual or entity, still,
government involvement in the disappearance remains an indispensable element. Here, petitioners are mere security
guards at Grand Royale Subdivision in Brgy. Lugam, Malolos City and their principal, the Asian Land, is a private
entity. They do not work for the government and nothing has been presented that would link or connect them to some
covert police, military or governmental operation. As discussed above, to fall within the ambit of A.M. No. 07-9-12-SC
in relation to RA No. 9851, the disappearance must be attended by some governmental involvement. This hallmark of
State participation differentiates an enforced disappearance case from an ordinary case of a missing person. (Navia v
Pardico, 19 June 2012, e.b.).

The inclusion of petitioners' names in the Order of Battle List does not, by itself, constitute an actual threat to their
rights to life, liberty and security as to warrant the issuance of a writ of amparo. (Ladaga v. Mapagu, 13 November
2012)

Court may motu proprio dismiss a petition for writ of amparo, regardless of the filing of a motion to dismiss, if it is clear
that the case falls outside the purview of the Rules on the Writ of Amparo. (Santiago v. Tulfo, 21 Oct 2015, Perlas-
Bernabe, J.).

It may be filed with the RTC of the place where the threat, act or omission was committed or any of its elements
occurred, or the Sandiganbayan, Court of Appeals, Supreme Court or any justice thereof.

The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: (IRC)
(1) Immediate family of aggrieved party: spouse, children and parents.
(2) Ascendant, descendant, or relative within 4th degree.
(3) Concerned citizen or organization if no known immediate family member or relative of the aggrieved party. (S2
RWA).

Petitioner exempt from the payment of docket and other fees when filing the petition. (S4)

CONTENTS OF VERIFIED PETITION: VP IRA (S5)

There is no requirement in §5 of the RWOA that the petition should state the probable whereabouts of the victim. The
application and implementation of the rule of amparo adopted in Mexico or in any other country could only be
persuasive at best. (Republic v. Cayanan, 7 Nov 2017, e.b., Bersamin, J.).

ISSUANCE OF THE WRIT OF AMPARO: Immediate issuance, upon court order, of the writ if on its face it ought to
issue. The CoC shall issue the writ under the seal of the court.

In case of urgent necessity, the justice or judge may issue the writ under his own hand and may deputize any officer
or person to serve it. (S6).

HOW THE WRIT IS SERVED: Served upon respondent by a judicial officer or a deputized person. Personal service or
if cannot be made, then substituted service. (S8)

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President may not be impleaded as respondent because of presidential immunity from suit. (Rubrico v. Macapagal-
Arroyo, G.R. No. 183871, 18 February 2010; Burgos v. Macapagal-Arroyo, 22 June 2010).

May the AFP Chief of Staff and the PNP director be included as respondents in a writ of amparo case solely on the
basis of command responsibility?
Yes but not for the purpose of attaching responsibility to them for the enforced disappearance but only to determine
the author who, at the first instance, is accountable for and has the duty to address the disappearance and
harassments complaint of in order to enable the court to devise remedial measures. (Rubrico v. Macapagal-Arroyo,
G.R. No. 183871, 18 February 2010).
RETURN: The respondent shall file a verified return within 5 working days after service of the writ. The period to file a
return cannot be extended except on highly meritorious grounds.

CONTENTS OF THE RETURN: The return together with supporting affidavits shall, among other things, contain the
following: (PAID)
(a) Lawful defenses.
(b) Action taken to determine the fate or whereabouts of aggrieved party and to determine the responsible
persons.
(c) All relevant information in respondent’s possession about the threat, act, or omission.
(d) If the respondent is a public official or employee, the return shall further state the actions that have been
taken or will be taken:
(i) to verify the identity of the aggrieved party;
(ii) to recover and preserve evidence
(iii) to identify witnesses and obtain their statements.
(iv) to determine the cause and circumstances of the death or disappearance.
(v) to identify and arrest responsible persons.
(vi) to hale suspected offenders before court.

A general denial of the allegations of the petition shall not be allowed.

The RTC judge acted with grave abuse of discretion in ordering the Respondents De Lima et al., to file an answer
rather than a return. A return is different from and serves a different function from an answer. (De Lima v. Gatdula, 19
February 2013).

The effects of the failure to file the return are the following: (WEC)
(1) The respondent waives any defense that he may have had. Under S10 RWA, all defenses shall be raised in the
return; otherwise they shall be deemed waived.
(2) The court shall proceed to hear the petition ex parte. (S12 RWA).
(3) The court may cite for contempt a respondent who refuses to make a return. (S16 RWA).

INTERIM RELIEFS: Upon the filing of the petition or at anytime before final judgment, the court may grant any of the
following reliefs:
(a) TEMPORARY PROTECTION ORDER (TPO). Upon motion or motu proprio, the court may order 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 securing their safety.
(b) INSPECTION ORDER (IO). Upon verified motion and after due hearing, the court may order the inspection or
photographing of property or relevant object or operation thereon. If the motion is opposed on the ground of national
security or evidentiary privilege, the court may conduct an in camera hearing.
(c) PRODUCTION ORDER (PO). Upon verified motion and after due hearing, the court may order production of
designated objects for inspection or copying. If the motion is opposed on the ground of national security or evidentiary
privilege, the court may conduct an in camera hearing.
(d) WITNESS PROTECTION ORDER (WPO). Upon motion or motu proprio, the court may refer witnesses to the DOJ
for admission to the witness protection program. Witnesses may also be referred to other government agencies or
accredited persons or private institutions for safekeeping.

While the RWA provides for the interim reliefs of TPO IO, and PO, these provisional reliefs are intended to assist the
court before it arrives at a judicious determination of the amparo petition. For the appellate court to, in the present
case, still order the inspection of the military camps and order the army units to conduct an investigation into the
disappearance of Nicolas and Heherson after it absolved petitioners is thus not in order. The reliefs granted by the
appellate court to respondents are not in sync with a finding that petitioners could not be held accountable for the
disappearance of the victims. (Yano v. Sanchez, G.R. No. 186640, 11 February 2010 [e.b.]).

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Interim reliefs can only be granted before a final adjudication of the case is made. In any case, it must be underscored
that the privilege of the writ of amparo, once granted, necessarily entails the protection of the aggrieved party. Thus,
since petitioner was granted the privilege of the writ of amparo, there is no need to issue a temporary protection order
independently of the former. The order restricting respondents from going near Rodriguez is subsumed under the
privilege of the writ. (Rodriguez v. Macapagal-Arroyo, 15 November 2011).

The production order under the Amparo Rule should not be confused with a search warrant for law enforcement under
the 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 Rule 27 of the Rules of Civil
Procedure. Hence the government’s argument that the requirements of a search warrant must be complied with prior
to the grant of a production order is without merit. (Sec. of National Defense v. Manalo, 7 October 2008, e.b., Puno,
J.).

SUMMARY HEARING: The hearing on the petition shall be summary. The court may, however, hold a preliminary
conference to simple issues and obtain stipulations and admissions from the parties. The hearing shall be from day to
day until completed and shall be given the same priority as petitions for habeas corpus. (S13 RWA).

Fr. Reyes’ petition for writ of amparo to set aside his inclusion in the HDO list was denied since he should have filed
the appropriate motion in the RTC where the rebellion case filed against him was pending. (Reyes v. Gonzalez, 3
December 2009).

When a criminal action is filed after the filing of the petition for the writ, the latter shall be consolidated with the criminal
action.
When a criminal action and a separate civil action are filed subsequent to a petition for a writ of amparo, the latter
shall be consolidated with the criminal action. (S23 RWA).

Re prohibited papers and pleadings: (MM PC)

 Unlike in the Rule on Summary Procedure, motions to dismiss on whatever ground are prohibited.
 Counterclaims, even if compulsory, are prohibited. Under the Rule on Summary Procedure only permissive
counterclaims are not allowed.
 Apparently, a petition for relief is not prohibited. Under the Rule on Summary Procedure it is.
 Motions for reconsideration of interlocutory orders are prohibited. Motions for Reconsideration of final orders or
judgments are allowed. This is the reverse of what the Rules on Summary Procedure provide.

Any party may appeal from the final judgment or order to the Supreme Court under R45. The period of appeal shall be
5 working days from notice of the adverse judgment. (S19 RWA) While not expressly provided for in the Rules, in case
a motion for reconsideration is filed and denied, the 5-working-day period should be computed from notice of the order
denying the motion for reconsideration. (See S25 RWA). The appeal may raise questions of fact or law or both. (S19
RWA).

Quantum of proof needed for the parties to establish their claims: Substantial evidence or that amount of relevant
evidence which a reasonable mind might accept as adequate to support a conclusion. (S17 RWA; S5 R133).

Technical rules of evidence not strictly observed in writ of amparo case. The fair and proper rule is to consider all the
pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual
rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to
the most basic test of reason – i.e., to the relevance of the evidence to the issue at hand and its consistency with all
other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum
test. The courts should exercise of flexibility in the consideration of evidence, including hearsay evidence, in
extrajudicial killings and enforced disappearance cases. (Razon v. Tagitis, 3 December 2009, Brion, J.)

Standard of diligence required of the respondent in the performance of a duty: Ordinary diligence if the respondent is a
private individual or entity and extraordinary diligence if the respondent is a public official or employee. The
respondent public official or employee cannot invoke the presumption that official duty has been regularly performed
to evade responsibility or liability. (S17 RWA).

The failure to establish that the public official observed extraordinary diligence in the performance of duty does not
result in the automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his
or her claim by substantial evidence. The omission or inaction on the part of the public official provides, however,
some basis for the petitioner to move and for the court to grant certain interim reliefs. (Yano v. Sanchez, G.R. No.
186640, 11 February 2010 [e.b.]).

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Before a concerned citizen may file a petition for writ of amparo in behalf of a non-relative, the petitioner must allege
that there were no known members of the immediate family or relatives of the aggrieved party in line with Sec. 2(c) of
the RWA. Compare with a habeas corpus proceeding, any person may apply for the writ on behalf of the aggrieved
party. (Boac v Cadapan, 31 May 2011).

Contrary to the ruling of the appellate court, there is no need to file a motion for execution for an amparo or habeas
corpus decision. The appellate court erred in ruling that its directive to immediately release Sherlyn, Karen and Merino
was not automatically executory. That would defeat the very purpose of having summary proceedings in amparo
petitions. Summary proceedings, it bears emphasis, are immediately executory without prejudice to further appeals
that may be taken therefrom. (Boac v Cadapan, 31 May 2011).

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