THE RULE ON THE

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

What is the writ of amparo?

It is a remedy available to any person

whose right to life, liberty, and
security has been violated or is
threatened with violation by an
unlawful act or omission of a public
official or employee, or of a private
individual or entity.
The writ covers extralegal killings and
enforced disappearances or threats
thereof.

What rule governs petitions for and

the issuance of a writ of amparo?

It is governed by A.M. No. 07-9-12-SC

known as The Rule on the Writ of
Amparo, which was approved by the
Supreme Court on September 25,
2007 and took effect on October 24,
2007.

What is the Supreme Courts

basis in issuing the Rule?

The Rule was drafted pursuant to the

Supreme Courts constitutional power
to promulgate rules for the
protection and enforcement of
constitutional rights (Constitution,
Art. VIII, Sec. 5[5]).

Who may file a petition for the

issuance of a writ of amparo?

The petition may be filed by the aggrieved party or by any

qualified person or entity in the following order:
(1) Any member of the immediate family, namely: the
spouse, children and parents of the aggrieved party;
(2) 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
(3) Any concerned citizen, organization, association or
institution, if there is no known member of the immediate
family or relative of the aggrieved party.

Where to file the petition.

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

Is there docket or filing fees for

the petition?

There is NO docket and other fees for

the petition. The court, justice or
judge shall docket the petition and
act upon it immediately.

What are the required contents

of the petition?

The petition shall be signed and verified and shall

allege the following:
(1) Personal circumstances of the petitioner;
(2) Name and personal circumstances of the
respondent responsible for the threat, act or omission
(If the name is unknown or uncertain, the respondent
may be described by an assumed appellation);
(3) Right to life, liberty and security of the aggrieved
party violated or threatened with violation and how
such threat or violation is committed with the
attendant circumstances detailed in supporting
affidavits;

(4) 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;
(5) 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
(6) The relief prayed for.

When is the writ of amparo

issued?

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.

What is the penalty in case of refusal

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.

How is the writ of amparo

served?

The writ is served on 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.

What should the respondent do

after being served with the writ?

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.

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.
All defenses shall be raised in the
return, otherwise, they shall be
deemed waived.

What happens if the respondent

fails to file return?

The court, justice or judge shall

proceed to hear the petition ex parte.

What is the nature of the hearing

on the petition?

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.

What are the interim reliefs

available to the petitioner?

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, the protection may be extended to
the officers involved.

(b) Inspection Order. The court, justice or judge,

may order any person in possession or control of 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 the 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, hearing may be
conducted 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. The inspection order shall specify the
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.

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

(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. 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.

May the respondent avail of

these interim reliefs?

Yes, but only the interim reliefs of

Inspection Order and the Production
Order. These interim orders may be
issued only after a verified motion is
filed by the respondent, supported by
affidavits or testimonies of witnesses
having personal knowledge of the
defenses of the respondent, and
after due hearing.

What is the required burden of

proof and standard of diligence?

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.

Can the respondent invoke the

presumption that official duty has

The regularly
respondent
public official or
been
performed?

employee cannot invoke the

presumption that official duty has
been regularly performed to evade
responsibility or liability.

When should the court render a

decision?

The court shall render judgment

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.

What
happens
if
the
court
cannot
The court shall not dismiss the petition, but
proceed
due to
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cause,
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shall archive
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onshall
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petition
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.

Does the filing of the petition bar the

No. However, when a criminal action
filing of separate criminal, civil or
has been commenced, no separate
administrative actions?

petition for the writ shall be filed, but

the reliefs under the writ shall be
available by motion in the criminal case,
and the procedure under this Rule shall
govern the disposition of the reliefs
available under the 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 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.

How does the writ of amparo

address the limitations of the
remedy
of habeas corpus?
The petition for habeas corpus is not to be

used as a means of obtaining evidence on

the whereabouts of a person, or as a means
of finding out who has specifically abducted
or caused the disappearance of a certain
person. Thus, petitions for habeas corpus
are not granted when the respondents deny
custody of an allegedly detained person and
the petitioner fails to establish the fact of
detention by competent and convincing
evidence.

Under the Rule on the Writ of

Amparo, inspection order and
production order may be availed.
The respondent has to disclose what
has been done by him to determine
the fate or whereabouts of the
aggrieved party and the person or
persons responsible for the threat,
act or omission and what information
the respondent has in this regard.

If the respondent is a government official,

he must state what further actions he will
take to verify the identity of the aggrieved
party, recover and preserve evidence
related to the death or disappearance;
identify witnesses and obtain statements
from them; 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; identify and
apprehend the suspects, and bring the
suspects before a competent court.

What are the other distinctions of

the writ of amparo from the writ of
habeas corpus?

The required contents of the

petition;
Contents of the return;
Required burden of proof;
Docket or filing fees;
Interim reliefs are available in
writ of amparo;

Required contents of the petition

The petition for a writ of amparo allege the

following:
(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the
respondent;
(c) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation;
(d)
The investigation conducted, if any;
(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 for a writ of habeas corpus shall set

forth:
(a) That the person in whose behalf the application
is made is imprisoned or restrained of his liberty;
(b) The officer or name of the person by whom he
is so imprisoned or restrained; or, if both are
unknown or uncertain, such officer or person may
be described by an assumed appellation, and the
person who is served with the writ shall be deemed
the person intended;
(c) The place where he is so imprisoned or
restrained, if known;
(d) A copy of the commitment or cause of
detention of such person, if it can be procured
without impairing the efficiency of the remedy; or,
if the imprisonment or restraint is without any legal
authority, such fact shall appear.

Contents of the return;

For writ of amparo:

(a)
The lawful defenses of the
respondent showing that he did not violate
or threaten with violation the right to life,
liberty and security of the aggrieved party;
(b)
The steps or actions taken by the
respondent to determine the fate or
whereabouts of the aggrieved party and the
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:

to verify the identity of the aggrieved party;

to recover and preserve evidence related to
the death or disappearance of the person;
to identify witnesses and obtain statements
from them;
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;
to identify and apprehend the persons
involved in the death or disappearance;
to bring the suspected offenders before a
competent court.

For writ of habeas corpus:

When the person to be produced is imprisoned or
restrained by an officer, the person who makes the
return shall state therein, and in other cases the
person in whose custody the prisoner is found shall
state, in writing to the court or judge before whom
the writ is returnable, plainly and unequivocably:
(a) Whether he has or has not the party in his
custody or power, or under restraint;
(b) If he has the party in his custody or power, or
under restraint, the authority and the true and
whole cause thereof, set forth at large, with a copy
of the writ, order, execution, or other process, if
any, upon which the party is held;

(c) If the party is in his custody or power or is

restrained by him, and is not produced,
particularly the nature and gravity of the
sickness or infirmity of such party by reason
of which he cannot, without danger, be
brought before the court or judge;
(d) If he has had the party in his custody or
power, or under restraint, and has transferred
such custody or restraint to another,
particularly to whom, at what time, for what
cause, and by what authority such transfer
was made.

Required burden of proof

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 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.

Writ of Habeas Corpus:

The parties shall establish their claims by
clear and convincing evidence and each party
must prove his own affirmative allegations.
However, where the standard and prescribed
procedure in effecting the release has not
been followed, then the burden of proving by
clear and convincing evidence the alleged
release is shifted to the respondents.
Release is an affirmative defense and "each
party must prove his own affirmative
allegations,"[ just as the burden of proof of
self-defense in a killing rests on the accused.
Moreover, evidence of release lies
particularly within respondents' power.
(Dizon et al., vs Vicente Eduardo et al., G.R.
No. L-59118, March 3, 1988)

Docket or filing fees

Writ of amparo:
There is NO docket and other lawful
fees for the petition. The court,
justice or judge shall docket the
petition and act upon it immediately.

Writ of Habeas Corpus:

The proceedings upon a writ of habeas corpus shall
be recorded by the clerk of the court, and upon the
final disposition of such proceedings the court or
judge shall make such order as to costs as the case
requires. The fees of officers and witnesses shall be
included in the costs taxed, but no officer or person
shall have the right to demand payment in advance
of any fees to which he is entitled by virtue of the
proceedings. When a person confined under color of
proceedings in a criminal case is discharged, the
costs shall be taxed against the Republic of the
Philippines, and paid out of its Treasury; when a
person in custody by virtue or under color of
proceedings in a civil case is discharged, the costs
shall be taxed against him, or against the person
who signed the application for the writ, or both, as
the court shall direct.

Interim reliefs are available in

writ of amparo

Temporary Protection Order

Inspection Order
Production Order
Witness Protection Order

May the President be held accountable

under the Rule on the Writ of Amparo
pursuant to the Command Responsibility
Under
current Philippine law and jurisprudence,
Doctrine?
the President cannot be held accountable
because of the presidential immunity from suit.
However, under international laws, primarily
the Geneva Convention of 1977 and the Treaty
of Rome, which adopted the Command
Responsibility Doctrine, the President may be
held accountable when the following elements
are met:

Legal elements of the Command

Responsibility Doctrine

Superior-subordinate relationship
- Applies to both civilian and military
superiors
- No formal subordination is required
- Perpetrator need not be the direct
subordinate; command responsibility
applies to every commander, at every
level in the chain of command
- What matters is effective control, which
means the material ability to prevent
and
punish criminal conduct

Knowledge or reason to know that

crimes were about to be or were
being committed (knew or had
reason to know)
- May be shown through
circumstantial evidence
- Actual knowledge, through:

Reports to the superior

Number, type, and scope of crimes
Number and type of troops involved
Location of accused relative the
crimes

- Reason to know
Information available to the superior
that would warrant further inquiry; is
there a real and present risk?
Factors include:
Criminal reputation of troops
Violent or unstable character
Level of training

Failure to prevent or punish Superior must take all the

necessary and reasonable means
that could be taken given the
degree of effective control over the
subordinates

THANK YOU