‘Amparo Dismissals Encourage More Killings’

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

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

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

The New Template of “Voluntary custody”

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

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

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

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

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

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

Date : 27 July 2008

Reference : Atty. Neri Javier Colmenares, Secretary General