Is the Writ of Amparo Effective?

By Claire Delfin
Philippine Human Rights Reporting Project

The road has been long and winding for Edita Burgos in her search for her missing son. April 28 will mark the second year of the disappearance of Jonas Burgos who was abducted by a group of men and one woman in a Quezon City shopping mall. March 29 meantime saw his family quietly ‘celebrate’ his 39th birthday with a mass and a prayer ‘that those behind his abduction will be bothered by their conscience and speak the truth about what happened to Jonas.’

The weekend also saw a report that police have formally charged a former New People’s Army commander with responsibility for the abduction –and somewhat bizarrely, Mrs. Burgos has been named as a co-defendant. She dismisses the latest moves and the charge as ludicrous –pointing out amongst other things that the NPA commander mentioned had been in jail for more than a year at the time of her son’s abduction.

The family blames the 56th Infantry Battalion and the Intelligence Service Group for her son’s abduction –charges denied in turn by the two military units.

Despite several witnesses and a license plate of a maroon Toyota Revo used in the kidnapping subsequently turning up on a military jeep inside an army camp, the investigation into his abduction has resulted in little to date save this very new and highly contested charge.

The family itself led by Mrs. Burgos has been tireless in its own attempts to track down Jonas. And much of their activity has been focused on the courts. But little has gone their way: The family faced a major setback when in July last year, the Court of Appeals ruled against their favor in their petition for a writ of amparo.

The amparo, Spanish word for protection, was conceived to solve the extensive extrajudicial killings and forced disappearances in the country in recent years. It was approved by the Supreme Court in September 2007 following the National Summit on Extrajudicial Killings and Enforced Disappearances.

It was introduced to help remedy the inefficacy of habeas corpus proceedings that usually end up with state agents denying they had any knowledge of a specific disappearance and denying they had the missing person in their custody. The writ sought to compel the state authorities to look for the missing person.

While a very well-intentioned legal remedy, it is something that the Burgos family find ‘elusive.’ Since August last year, they have been waiting for a Supreme Court decision on their plea for the high court to reconsider the Court of Appeals ruling, which stated Mrs. Burgos had failed to show the military was behind the kidnapping of her son and that her evidence was either possibly fabricated or hearsay.

At the same time, the court criticized the police and military for their lackluster investigations into Jonas’s disappearance.

Mrs. Burgos says she was “extremely disappointed” with the decision, but quickly adds that in the absence of any other legal means, she is still hoping to get the writ of amparo and “retain confidence” in the country’s justice system.

Serial dismissals

Lawyer and activist Harry Roque is similarly disappointed with how the writ of amparo has been used since its introduction and lambasted the Court of Appeals in particular for what he says are “serial dismissals of amparo petitions.”

He says appellate justices have been too “stringent in their interpretation” of the burden of proof for the petitioners, effectively defeating the purpose of the writ to protect victims and their families.

“This spate of decisions will only encourage the escalation of extrajudicial killings and enforced disappearances,” claims Roque.

Based on Supreme Court records, as of February 2009, only four of the 31 amparo petitions filed before the appellate court were granted. Twenty-one were dismissed and six others are still pending in court.

Overall, only seven have been granted from a total of 52 petitions filed before the different courts — from the regional trial court up to the Supreme Court.

The Supreme Court collated the reasons for dismissals. Five reasons are cited: “The subjects themselves denied there was enforced disappearance, force, torture, threat or the like on them; the petition was withdrawn as the subject is facing a charge in the lower court; the writ of amparo is not the appropriate remedy; insufficient evidence; or the petitioner failed to show up in the hearings.”

With the reasons cited, the high court debunks claims against the effectiveness of the writ of amparo.

“It’s not right to say it’s not effective. It’s unfair to the courts,” says Attorney Midas Marquez, the high court’s spokesperson.

He adds that it must not be forgotten there were recoveries of missing persons because of the issuance of the writ of amparo. He recalls the first successful case that came two weeks after the rule was promulgated. The case involved a missing youth leader from a militant group who was reunited with his parents right on the first day of the hearing.

On the same day of the reunion, another case was filed in Davao City where a week later, the victim was released unharmed by his abductors.

Not simple

Marquez concedes that it is not always simple for the courts to issue amparo writs as the whole process is not so simple.

“The courts alone can’t do it. These need cooperation from petitioners, respondents, and all those in the judicial sector. The problem is those tasked to enforce the law are the ones violating it,” says Marquez.

Political science professor Miriam Ferrer is one with Marquez. She says it cannot be left to the courts alone. It also needs cooperation from those groups often cited or blamed for the disappearances including the Armed Forces of the Philippines (AFP). It also needs real cooperation from the Office of the President, she says, -her being the commander-in-chief.

“If AFP is protected by its civilian leaders, you cannot expect it to discipline its ranks,” says Ferrer, who is also lead convener of human rights monitoring group Sulong (forward) CARHRIHL (Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law).

But the military rejects the claims that it is somehow responsible for the abduction of Jonas Burgos and others. “These are shotgun accusations that are very inaccurate,” asserts Lt. Col. Ernesto Torres, Armed Forces of the Philippines spokesperson.

Torres says the AFP has always been supportive of all legal instruments, including the amparo writ and habeas corpus, and will support any legal method that will arise to end extrajudicial killings and disappearances

He says the soldiers and officers appear when the courts summon them. They also make their camps available for ocular inspections.

There have also been internal efforts to address the issue, Torres adds. Human rights offices have been set up in various battalions and human rights subjects have been incorporated in military schoolings.

“The truth is that these cases of extrajudicial killings and disappearances have actually gone down, and so have the allegations versus the military,” Torres says.

While Ferrer and Roque agree that cases have actually dropped, they argue that the end of such impunity is not yet in sight. Philippine Human Rights Reporting Project