Writ of Amparo vs AO 197

MANILA, Philippines—Last Wednesday, October 24, the world celebrated the birthday of the United Nations. The Supreme Court commemorated the occasion by giving birth to the new “Rule on the Writ of Amparo” that was specially crafted, in the words of the Court, “to manifest a strong affirmation of our commitment towards the internationalization of human rights.”

Military counterattack. While the rule became effective on Oct. 24, it was actually promulgated on Sept. 25. For her part, President Macapagal-Arroyo issued on the same day, Sept. 25, Administrative Order 197 ordering the Department of National Defense and the Armed Forces of the Philippines “to draft legislation . . . for safeguards against disclosure of military secrets and undue interference in military operations inimical to national security.”

Obviously, AO 197 is a military counterattack to outflank and overwhelm the new writ. Consider that amparo was expressly designed to prevent “extralegal killings and enforced disappearances” of private citizens, and, if already committed, to require the perpetrators—usually members of the military and the police—to account for the killings or disappearances.

Extralegal killings are defined by the Court as “those committed without due process of law” including “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,” according to the tribunal, have “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 the law.”

Weapon against military abuses. Stripped of legalese, amparo’s primary purpose is to vindicate human rights violations committed by law enforcement agents against critics of the government and perceived “enemies of the State.”

While AO 197 merely directs the drafting of legislation, it is clear that even prior to the enactment of such proposed law, the President—to prevent unwelcome judicial inquiries—intends to claim her “executive privilege” when AFP officers are served by the courts with the amparo writ.

Coverage of executive privilege. True, “Senate vs Ermita” (April 20, 2006) tackled executive privilege in relation to a Senate investigation, but it included court proceedings within the coverage of the privilege. Written by Justice Conchita Carpio Morales, the unanimous decision said that executive privilege “is the power of the Government to withhold information from the public, the courts and the Congress . . . in relation to certain types of information of a sensitive character,” like military secrets.
“Senate vs Ermita” outlined how the privilege could be invoked. For instance, the invitation or subpoena issued by the legislature should state the general nature of the investigation, the probable questions to be asked, etc. However, there were no similar details on how the privilege could be used in court proceedings.

To reiterate, AO 197 did not invoke executive privilege directly. It spoke of crafting legislation to safeguard military secrets and operations. In other words, the President is asking Congress for a law that can adulterate or shrivel “Senate vs Ermita” by redefining or expanding the scope of the privilege.

Battle royale. The 1987 Constitution did not expressly provide for the writ of amparo. In issuing the rule, the Supreme Court merely invoked its constitutional prerogative “to promulgate rules concerning the protection and enforcement of constitutional rights” which, however, are subject to the caveat that “such rules . . . shall not diminish, increase or modify substantive rights.”

Amparo is the libertarian answer to the rampant human rights violations in the present regime. It was proudly approved by the Supreme Court, in the words of Chief Justice Reynato S. Puno, to “revive our righteous indignation and spur our united search for the elusive solution to this pestering problem.”

Does Congress have the power to defang the new rule on amparo? In “Echagaray vs Secretary of Justice” (Jan. 19, 1999), the Supreme Court flatly said No. “The 1987 Constitution took away the power of Congress to repeal, alter or supplement rules concerning pleading, practice and procedure.” But this holding may not apply if it can be shown that the rule impinged on “substantive rights” which only the legislature can create or change.

“Writ of Amparo vs Administrative Order 197.” The battle could be waged in Congress, in the judiciary, in media and, inevitably, in the court of public opinion. On Oct. 24, the very day the amparo rule took effect, the struggle was immediately ignited by the filing in the Supreme Court of a petition for the writ on behalf of University of the Philippines students Sherlyn Cadapan and Karen Empeño, who were allegedly kidnapped by the military.

Who will blink in this forthcoming battle royale: GMA who is determined to shield her loyal military subalterns, or the Supreme Court that is passionate to protect the paramount “right to life, liberty and security?” Abangan!

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