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ZALAMEDA, J.:
3. On June 19, 2020, a meeting of the Iloilo Provincial Peace and Order Council (hereafter referred to as "PPOC" for brevity) took place at the Casa Real de Iloilo, Iloilo Provincial Capitol in Iloilo City.After the event, petitioner's alleged connection with the CPP-NPA was further publicized by Bombo Radyo Iloilo and the Philippine News Agency:
4. The said meeting was attended by the media, Governor Arthur Defensor, Jr. of the Province of Iloilo, and other public officials, including military officers belonging to the 3rd ID, under the respondent's command.
5. At the aforementioned meeting, the said military officers of the 3rd ID gave a presentation and discussion wherein they alleged that certain individuals were part of the [CPP-NPA] hierarchy in Panay.
6. Petitioner was explicitly identified as part of the said CPP-NPA hierarchy.[10]
Petitioner further described other incidents where he claimed to be subjected to red-tagging and/or surveillance. These incidents consisted of seeing posters with his image alongside that of other persons who are known activists, lawyers, and members of non-government organizations (NGOs), where they were labeled as criminals, terrorists, and members of the CPP-ÂNPA-National Democratic Front (NDF); being followed by unidentified men from a restaurant to the Bayan-Panay office; and labelling petitioner's organizations as supporters of the CPP-NPA-NDF:
- Print-outs of photographs posted by media outfit Bombo Radyo Iloilo on its social media (Facebook) page – showing the presentation of the military officers from the 3rd ID during the PPOC meeting on June 19, 2020 – are attached hereto as Annexes "A" to "A-3", inclusive. Petitioner's name is shown twice in the image contained in Annex "A-2", and sub-marked as Annexes "A-2-a" and "A-2-b".
- Print-outs of the entire social media (Facebook) page of Bombo Radyo Iloilo containing the aforementioned photographs are also attached hereto as Annexes "B" to "B-4", inclusive.
- The aforementioned PPOC meeting at Casa Real de Iloilo was also the subject of an article published by the Philippine News Agency (PNA) on June 20, 2020 with a photograph taken on the occasion thereof. The caption on the said photograph reads: "Photo courtesy of Philippine Army's 61st Infantry Battalion". x x x
- The 61st Infantry Battalion is a unit forming part of the 3rd ID and also under the over-all command of herein respondent.[11]
Particularly disturbing for petitioner was the awareness that Porquia and Alvarez, two persons whose photos appeared alongside that of petitioner's in posters, met violent deaths. On 30 April 2020, Porquia was shot and killed by at least two gunmen in Barangay Sto. Niño Norte, Arevalo, Iloilo City.[13] Alvarez, on the other hand, was also shot and killed by unidentified gunmen in Bacolod City on 17 August 2020.[14] Notably, Alvarez's name and image were included in another tarpaulin showing alleged communist personalities, which was posted in Moises Padilla, Negros Occidental. Also included in this tarpaulin were the photos of Atty. Benjamin Ramos (Atty. Ramos), Secretary-General of Negros; and Hon. Bernardino Patigas (Hon. Patigas), Councilor of Escalante City and former Secretary-General of the Northern Negros Alliance of Human Rights Advocates. Atty. Ramos was shot and killed on 06 November 2018 in Kabankalan City, while Hon. Patigas met the same fate on 22 April 2019 in Escalante City.[15]
- On December 11, 2017, the petitioner's photograph, along with those of other known activists, lawyers, and members of nonÂgovernment organizations (NGOs), were reflected in posters which alleged that they were criminals, terrorists, and members of the CPP-NPA-NDF.
- The said posters were put in different locations in Iloilo City. A photograph of the said poster is attached here as Annex "K" with the petitioner's image sub-marked as Annex "K-1".
- The posters depicting the images of the petitioner and other activists contained the following captions:
"MGA KAMPON SANG CPP-NPA-NDF SA SYUDAD! NAGAPANG-INTO KAG NAGA-BUTIG SA PUMULUYO! RALLY DIRI, RALLY DIDTO! WALA MAY NAUBRAHAN PARA SA BANWA!"
("DISCIPLES OF THE CPP-NPA-NDF IN THE CITY! FOOLING AND DECEIVING THE PEOPLE! HOLDING RALLIES HERE AND THERE! THEY HAVE DONE NOTHING FOR THE COUNTRY!")
"KRIMINAL, EXTORTIONISTS, SINDIKATO, TERRORISTA."
(CRIMINAL, EXTORTIONISTS, SYNDICATES, TERRORISTS.)
(Annex "K")- Another set of posters depicting the images of lawyers and paraÂlegals of the National Union of Peoples' Lawyers (NUPL) Panay Chapter, photographs of which are attached hetero as Annexes "L" and "L-1" were also put up alongside the aforementioned posters of the petitioner and fellow activists. This second poster contained the following captions:
"CPP-NPA-NDF LAWYERS KAG PARALEGALS, PEKE NGA 'PEOPLE'S LAWYERS!' MGA KAMPON SANG CPP-NPAÂ-NDF! MGA ABOGADO SANG MGA TERORISTA. NUPL KAG KARAPATAN, TUTA SANG CPP-NP-NDF"
("CPP-NPA-NDF lawyers and paralegals, fake "people's lawyers!" Disciples of the CPP-NPA-NDF! Lawyers of terrorists. NUPL and KARAPATAN, puppets of the CPP-NPA-NDF")
(Annex "L")- Apart from that of the petitioner, the posters contained photographs of members of Makabayan Coalition, Bagong Alyansang Makabayan (BAYAN), Karapatan Alliance Philippines, Inc. (KARAPATAN), Kilusang Mayo Uno (KMU), Paghugpong sang mga Mangunguma sa Panay kag Guimaras (PAMANGGAS), ANAKBAYAN, the League of Filipino Students (LFS), Confederation for Unity Recognition and Advancement of Government Employees (COURAGE), Promotion of Church People's Response (PCPR), Kalipunan ng Damayang Mahihirap (KADAMAY), Katilingban sang Imol sa Siyudad (KAISOG), and the National Union of Peoples' Lawyers (NUPL), including, among others:
- The exact same posters were, again, plastered in different places in Iloilo City on March 16, 2019.
- Moreover, on January 23, 2019, during and after a meeting with other human rights activists in a restaurant in Tagbak, Terminal, Brgy. Tagbak, Jaro, Iloilo City, the petitioner and his companions were watched and followed by three unidentified (3) men from the said terminal all the way to the office of BAYAN-Panay in Brgy. Cuartero, Jaro, Iloilo City.
- The said unidentified men even boarded motorcycles and followed the petitioner as he was driving his own vehicle.
- A copy of the police blotter entry, Entry ICPS3-01-3355-2019, containing a report of the aforementioned incident made by Reylan B. Vergara, the petitioner's companion at the time, is attached hereto as Annex "M".
- On August 24, 2019, during a symposium at the University of St. La Salle in Bacolod City, Negros Occidental, military officers from the 303rd Infantry Brigade (hereafter referred to as "303rd IB" for brevity), a unit of the 3rd ID under the over-all command of the respondent, reportedly red-tagged and labelled, as supporters of the CPP-NPA-NDF, various organizations, including the local chapter of the petitioner's own organization, Bayan Muna Party-list. On the same occasion, the local chapters of BAYAN and many other NGOs were also labelled as organizations of the National Democratic Front (NDF). x x x
- Notably, almost all of the organizations whose members were red-tagged in the posters on December 11, 2018 and March 16, 2019 put up in different places in Iloilo City – including BAYAN, NUPL, KARAPATAN, LFS, ANAKBAYAN, COURAGE, KMU, Kabataan Party-list, GABRIELA, and PCPR – were similarly red-tagged by the 303rd IB during the aforementioned symposium.
x x x x
- On August 27, 2020, more posters were put up in public places in Mandurriao, Iloilo City and Brgy. Bita Sur, Oton, Iloilo. These posters also bore the images of the same activists, human rights, advocates, and members of NGOs-including the petitioner-and similarly accused them of being supporters of the CPP-NPAÂ-NDF. x x x
x x x x
- On October 10 and 16, 2020, the petitioner was again red-tagged on social media, particularly, in a Facebook page, designated as "Western Visayas Expose". x x x
- In the aforementioned Facebook page x x x petitioner was explicitly named and accused to be part of the CPP-NPA-NDF, along with other members and incumbent legislators from various party-lists under the Makabayan Coalition, activists, human rights workers, and members of NGOs in Panay and Negros, including: x x x
x x x x
Other reliefs just and equitable under the premises are similarly prayed for.[16]
The protective writ of amparo is a judicial remedy to expeditiously provide relief to violations of a person's constitutional right to life, liberty, and security, and more specifically, to address the problem of extralegal killings and enforced disappearances or threats thereof. Section 1 of A.M. No. 07-9-12-SC provides:Sec. 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 of employee, or of a private individual or entity.To be entitled [to the protective writ of amparo], the applicant must establish that his right to life, liberty and security are being threatened by the acts of the respondent.
The writ shall cover extralegal killings and enforced disappearances or threat thereof. (Emphasis supplied)
It bears stressing that the premise relied upon by the petitioner that there were threats coming from military units under the command of respondent was the meeting held on June 19, 2020, between Governor Defensor, Jr., media and military officials of the [3rd ID], wherein the name of petitioner was identified as part of the CCP (sic)-NPA hierarchy. Further, he also alleged that on different dates, petitioner's photograph, along with those of other known activists, lawyers and member of non government organizations were reflected in posters and put up in different places which alleged that they were criminals, terrorists, and members of the CCP (sic)-NPA-NDF.
Further, he alleged that on January 23, 2019, three (3) unidentified men watched him from Tagbak terminal all the way to the Office of Bayan-Panay in Brgy. Cuartero, Jaro, Iloilo City. He also averred that in a symposium at the University of St. La Salle in Bacolod City, his organization, the Bayan Muna Party list[,] and other NGOs were redÂtagged and labelled by the 303rd Infantry Brigade as supporters of the CCP (sic)-NPA-NDF. He likewise alleged that April 30, 2020, Jose Reynaldo C. Porquia-Bayan Muna Coordinator for Iloilo City[-] was shot and killed by a least two (2) gunmen in Brgy. Sto. Niño Norte, Arevalo, Iloilo City. Lastly, he alleged that on October 10 and 16, 2020, he was again red-Âtagged on social media, particularly in a Facebook page under the account of "Western Visayas Expose."
The contention of petitioner that his name [being] red-tagged or labelled by the military officials as part of the CCP (sic)-NPA hierarchy can be considered as threat to his right to life, liberty and security. This is totally untenable.
In Tapuz v. Del Rosario, the Court laid down the basic principle regarding the rule on the writ of amparo as follows:To start off with the basics, the writ of amparo was originally conceived as a response to the extraordinary rise in the number of killings and enforced disappearances, and to the perceived lack of available and effective remedies to address violations of or threats to the rights to life, liberty or security, as an extraordinary and independent remedy beyond those available under the prevailing Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds. Consequently, the Rule on the Writ of Amparo – in line with the extraordinary character of the writ and the reasonable certainty that its issuance demands – requires that every petition for the issuance of the writ must be supported by justifying allegation of fact, to wit:Applying the foregoing, the alleged red-tagging or labelling made by the military officials under the command of the respondent as mentioned by petitioner[,] as well as the alleged act of the three unidentified men in following the petitioner[,] are not sufficient to constitute as threats to his right to life, liberty and security as defined by law. This conclusion is substantiated by the fact that the alleged surveillance made by three unidentified men transpired on January 23, 2019 or seventeen months after the alleged red-tagging incident occurred and needless to say, the said incident was reported by a certain Reylan Vergara, alleged companion of petitioner and not petitioner himself.
"(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.
Likewise, the other contentions made by petitioner (i.e. Petitioner's photograph reflected in the poster placed in different places, death of Jose Reynaldo Porquia, a Bayan-Muna Coordinator, as well as petitioner being red-tagged in social media) were purely baseless and not supported by evidence as the same failed to show by prima facie evidence that such incidents constitute threats against petitioner's right to life, liberty and security that would warrant the issuance of the writ.
The issuance of Writ of Amparo requires that every petition must be supported by justifying allegations of facts. Since petitioner's allegations lack the substantial evidence require by the said writ, the Court finds the same not meritorious.
WHEREFORE, premises considered, this Court hereby denies the issuance of the Writ of Amparo. The Petition filed by Siegfred Deduro through counsel is DISMISSED.
SO ORDERED.[19]
A. Whether or not the petitioner is entitled to the reliefs prayed for in the subject petition; [and]In claiming entitlement to the issuance of a writ of amparo, petitioner argues that the initial evidence attached to the Petition before the RTC already established a prima facie case sufficient to support the issuance of the writ prayed for. He laid out in detail the nature of the threat to his life, liberty, and security, and this threat is supposedly directly connected to the red-tagging carried out by the 3rd ID, among others. Petitioner posits that similar to habeas corpus proceedings, the allegations in his Petition should have been sufficient to grant the protective writ of amparo in his favor even before the conduct of an actual hearing.
B. Whether or not the Court a quo seriously erred in dismissing the petition outright without requiring the respondent to file a return or even conducting a hearing.[21]
I. | Familiarization with the Rule on the Writ of Amparo |
A. | The Purpose for its Enactment |
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.In contrast, the subsequent evaluation of the petition for the grant of the privilege of the writ of amparo comes after the issuance of the writ, the filing of the return, and the conduct of a summary hearing. This is governed by Section 18 of the Rule, to wit:
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 issuance of the writ was distinguished from the grant of the privilege of the writ of amparo in De Lima v. Gatdula:[37]
The privilege of the Writ of Amparo should be distinguished from the actual order called the Writ of Amparo. The privilege includes availment of the entire procedure outlined in A.M. No. 07-9-12-SC, the Rule on the Writ of Amparo. After examining the petition and its attached affidavits, the Return and the evidence presented in the summary hearing, the judgment should detail the required acts from the respondents that will mitigate, if not totally eradicate, the violation of or the threat to the petitioner's life, liberty or security.
B. | The Coverage of the Rule on the Writ of Amparo: Extrajudicial Killings, Enforced Disappearances, or Threats Thereof |
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 fundamental function of the writ of amparo is to cause the disclosure of details concerning extrajudicial killings and enforced disappearances or threats thereof.[38] The deliberations of the Committee[39] that formulated the Rule are instructive in revealing the intent to limit its application:
The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Emphasis supplied)
CHIEF JUSTICE PUNO: The question really is whether the writ of amparo should merely supplement the existing remedies that are already in place protecting constitutional rights or whether this writ should supplant the existing remedies. For instance, the readings will show that the writ of amparo provides a larger remedy and that the writ of habeas corpus is only a subset of the writ of amparo. We have existing remedies against violation of constitutional rights... injunctions, prohibitions, the different ways by which the constitutionality of a law or an act or omission of the president or even members of congress can be tested and struck down in violating the Constitution. In other countries, the writ of amparo is available even to correct judicial errors. In the case of extrajudicial killings and enforced disappearances, it is obvious that the remedy is very inadequate. It is only the remedy of habeas corpus so perhaps in that particular area we can go ahead and provide for the writ of amparo.[40]The Committee was extremely aware that domestic legislation at the time did not have definitions of extrajudicial killings, enforced disappearances, or threats thereof.
JUSTICE VITUG: I think it would be a very ambitious project if we were to consider [all constitutional rights] in the coverage of the writ of amparo and it may no longer be timely to address the present problem [of extrajudicial killings and enforced disappearances]...and therefore I would appreciate the Chairman's suggestion that perhaps we should take up the most [pressing problem of extrajudicial killings and enforced disappearances first] and allow the writ to evolve.[41]
JUSTICE CALLEJO: I agree with the observation of Justice Vitug after all this writ is supposed to be an extraordinary remedy, akin to a writ of habeas corpus or even more extensive than the writ of habeas corpus. But we should not supplant the present rules now; we have rules on injunction, prohibition, etc. So this very extraordinary remedy is applicable only to specific incidents of extrajudicial killings and enforced disappearances...[42]
JUSTICE TINGA: I am amenable to the idea of confining the proposed rules only to cases [of extrajudicial killings] and enforce[d] disappearances. All violations of the Constitution are wrongs, they are actionable wrongs and there are remedies. But in view of the times there is a need...to make the remedy more attuned to what is needed, the present remedy [of habeas corpus] is not adequate enough, it is not expeditious enough and responsive. That is why we have to revise the rules, so the rules have to be confined to the phenomenon of extrajudicial killings and enforced disappearances.[43]
1. | Extrajudicial Killings |
JUSTICE NAZARIO: ...Chief, this is in regard to your just concluded observations as to the definition of extrajudicial killing. Well in our group, initially we had to struggle with the real definition of extrajudicial killings. So in the end we categorized the term extrajudicial killings into three kinds – the first category was political killings due to the political affiliations or advocacies of the victim, or the method on top or involvement of the state in the commission of the killings. The second category was the summary killings and enforced disappearances committed by non-state actors without recourse to or disregard of legal and judicial processes. Finally the third category was summary killings or "salvagings" committed by institutionalized person or individuals who are suspected criminals. Now, I just don't know whether what the reaction will be, of the committee regarding this categorization of extrajudicial killings.[44]The Committee later adopted the term "extralegal killings" to cover those committed by both state and non-state actors.[45] It largely relied on United Nations instruments for its working definitions:
As the term is used in United Nations Instruments, "extralegal killings" are killings committed without due process of law, i.e. without legal safeguards or judicial proceedings. As such, these 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. The United Nations Rapporteur on Summary or Arbitrary Executions and the United Nations High Commission on Human Rights defined summary executions as those which take place after some sort of judicial or legal proceedings which fall short of international minimum procedural or substantive standards, and arbitrary executions consist in the arbitrary deprivation of life as the result of the killing of a person carried out by order of the government or with its complicity or tolerance or acquiescence without any judicial or legal process.
2. | Enforced Disappearances |
One of the more notable instruments considered by the Committee was the third preambular clause of the Declaration on the Protection of all Persons from Enforced Disappearance, which states that:Two years after the promulgation of the Rule, Congress enacted Republic Act No. (RA) 9851, or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity. It provided the first statutory definition of enforced or involuntary disappearance, thus:Deeply concerned that in many countries, often in a persistent manner, enforced disappearances occur, in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.In addition, the Committee took note of Article 2 of the International Convention for the Protection of all Persons from Enforced Disappearance which states that:For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside of the protection of the law.The Committee, however, resolved to consider possible domestic legislations which shall define the concepts of extralegal killings and enforced disappearances and to yield to such legislative definitions when, and if, such legislation shall come to pass.
The Committee worked on the Rule first, working on the processes and the remedies, as well as the possible orders, prior to discussing the definition. In the end, the Committee decided to let the definition of extralegal killings and enforced disappearances be left without a clear textual definition, because to do so may impair the workings of legislation designed for that purpose. They took notice of the fact that several bills were filed both in the House of Representatives as well as in the Senate of the Republic regarding the matter. In the end, the Committee would decide to define the nature of the petition and its coverage (what would become Section 1 of the Rule) instead of providing an elemental definition of the concept of extrajudicial killings and enforced disappearances. The Court, may, in future cases take note of definitions available through local and international laws and in so doing, amend the Rule as it stands.[46]
Section 3. For purposes of this Act, the term:Subsequently, our Decision in Navia v. Pardico (Navia)[47] enumerated the elements of this first statutory definition, to wit:
x x x x
(g) "Enforced or involuntary disappearance of persons" means the arrest, detention, or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing from the protection of the law for a prolonged period of time.
(a) that there be an arrest, detention, abduction or any form of deprivation of liberty;On 21 December 2012, five years after the effectivity of the Rule and a few months after the promulgation of Navia, RA 10353, or the AntiÂ-Enforced or Involuntary Disappearance Act of 2012, was approved. It modified the definition in RA 9851 and thus provided a second and more recent statutory definition of enforced or involuntary disappearance in Section 3(b), thus:
(b) that it be carried out by, or with the authorization, support or acquiescence of, the State or a political organization;
(c) that it be followed by the State or political organization's refusal to acknowledge or give information on the fate or whereabouts of the person subject of the amparo petition; and,
(d) that the intention for such refusal is to remove subject person from the protection of the law for a prolonged period of time.
Section 3. Definitions. – For purposes of this Act, the following terms shall be defined as follows:Using Navia's template, and following the second and more recent statutory definition under RA 10353, we determine the elements of enforced or involuntary disappearance, as follows:
x x x x
(b) Enforced or involuntary disappearance refers to the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places such person outside the protection of the law.
(a) that there be an arrest, detention, abduction or any form of deprivation of liberty;
(b) that it be carried out by agents of the State or by persons or groups of persons acting with the authorization, support, or acquiescence of the State;
(c) that it be followed by the State or the authorized group of persons' refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person; and,
(d) that the outcome of such refusal or concealment is to place the disappeared person outside the protection of the law.
3. | Threats |
In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from being baseless to well-founded as people react differently. The degree of fear can vary from one person to another with the variation of the prolificacy of their imagination, strength of character or past experience with the stimulus. Thus, in the amparo context, it is more correct to say that the "right to security" is actually the "freedom from threat". Viewed in this light, the "threatened with violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the provision.Red-tagging has been acknowledged by international organizations as a form of harassment and intimidation. As early as 2007, the United Nations Human Rights Council observed the prevalence of a practice in the Philippines where groups at the left of the political spectrum are characterized as front organizations of anti-democratic groups. The report called the practice "vilification," "labelling," or guilt by association.[49]
x x x x
While the right to security of person appears in conjunction with the right to liberty under Article 9, the [United Nations' Human Rights] Committee [(Committee)] has ruled that the right to security of person can exist independently of the right to liberty. In other words, there need not necessarily be a deprivation of liberty for the right to security of person to be invoked. In Delgado Paez v. Colombia, [(Paez)] a case involving death threats to a religion teacher at a secondary school in Leticia, Colombia, whose social views differed from those of the Apostolic Prefect of Leticia, the Committee held, viz.:The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of paragraph one could lead to the view that the right to security arises only in the context of arrest and detention. The travaux préparatoires indicate that the discussions of the first sentence did indeed focus on matters dealt with in the other provisions of article 9. The Universal Declaration of Human Rights, in article 3, refers to the right to life, the right to liberty and the right to security of the person. These elements have been dealt with in separate clauses in the Covenant. Although in the Covenant the only reference to the right of security of person is to be found in article 9, there is no evidence that it was intended to narrow the concept of the right to security only to situations of formal deprivation of liberty. At the same time, States parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because that he or she is not arrested or otherwise detained. States parties are under an obligation to take reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a State party to ignore threats to the personal security of non-detained persons within its jurisdiction would render totally ineffective the guarantees of the Covenant.The Paez ruling was reiterated in Bwalya v. Zambia, which involved a political activist and prisoner of conscience who continued to be intimidated, harassed, and restricted in his movements following his release from detention. In a catena of cases, the ruling of the Committee was of a similar import: Bahamonde v. Equatorial Guinea, involving discrimination, intimidation and persecution of opponents of the ruling party in that state; Tshishimbi v. Zaire, involving the abduction of the complainant's husband who was a supporter of democratic reform in Zaire; Dias v. Angola, involving the murder of the complainant's partner and the harassment he (complainant) suffered because of his investigation of the murder; and Chongwe v. Zambia, involving an assassination attempt on the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford protection of the right to liberty. The ECHR interpreted the "right to security of person" under Article 5 (1) of the European Convention of Human Rights in the leading case on disappearance of persons, Kurt v. Turkey. In this case, the claimant's son had been arrested by state authorities and had not been seen since. The family's requests for information and investigation regarding his whereabouts proved futile. The claimant suggested that this was a violation of her son's right to security of person. The ECHR ruled, viz.:x x x any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since. (Emphases supplied.)[48]
This case involves the phenomenon of "red baiting." It is our version of McCarthyism.More recently, on 23 March 2021, we issued a statement through the Public Information Office, soon after the picture and name of Judge Monique Quisumbing-Ignacio was placed on a tarpaulin along Epifanio Delos Santos Avenue (EDSA) and Shaw Boulevard. The text on the tarpaulin read: "Maraming salamat Judge Monique Quisumbing Ignacio, RTC Br. 209, Mandaluyong City, sa mabilis na paglaya ng kasama nating Lady Ann Salem at Rodrigo Esparago. Tuloy ang laban!!! Mabuhay!!! Mula sa [logo of the Communist Party of the Philippines]."[56] Along with various letters and manifestations concerning threats to judges and killings of lawyers, this Court found the incident as a threat to a judge worthy of an investigation and the issuance of a statement by the En Banc.[57] We declared:
To make it easy for military and paramilitary units to silence or cause untold human rights abuses on vocal dissenters, government agents usually resort to stereotyping or caricaturing individuals. This is accomplished by providing witnesses who, under coercive and intimidating conditions, identify the leaders of organizations critical of the administration as masterminds of ordinary criminal acts. Not only does this make these leaders' lives and liberties vulnerable, a chilling effect on dissent is also generated among similar-minded individuals.
Belief in communism has historically been used as a bogey to create nonexistent exigencies for purposes of national security. History records the many human rights violations that may have been caused by this unsophisticated view of some in the echelons of military power. History, too, teaches that toleration and the creation of wider deliberative spaces are the more lasting and peaceful ways to debunk worn-out ideologies.
x x x x
Petitioners in this case allege facts that threaten their lives and liberty, and, therefore, their security. The Resolution of the majority correctly points out that there is still no tangible offense committed by respondents against petitioners. However, Amparo does not come into existence as a relevant preventive device only when there is certainty of an offense committed. In those cases, preliminary investigation or the judicial determination of probable cause affords a venue for the accused to contest the impending threats [to] his or her liberties.
Rather, Amparo is a remedy designed for events that reside in legal penumbra. Those conditions, which, though ambiguously legal, incrementally create the vulnerabilities that will, with the certainty of experience, lead to the person's harassment, disappearance, or death. Certainly, "red baiting" is quintessentially paradigmatic of these cases.[55]
We acknowledge and share the legitimate concerns of the public, the profession, the judiciary as well as the law enforcers and public servants in general. We are aware that there are wayward elements who, in their zeal to do what they think is necessary, would simply brush aside the limitations in our law as mere obstacles. This should never be countenanced for it is only in the enjoyment of our inalienable and indivisible rights that our freedoms become meaningful.Viewed from this perspective, this Court declares that red-tagging, vilification, labelling, and guilt by association constitute threats to a person's right to life, liberty, or security, under the second paragraph of Section 1 of the Rules, which may justify the issuance of a writ of amparo.
x x x x
Fifth. In all these processes, We will endeavor to coordinate through existing mechanisms with all concerned groups, whether belonging to civil society or law enforcement. We encourage lawyers who have experienced harassment, or whose clients have experienced threats or harassment, to file the necessary motions in pending cases, petitions, or complaints in order that our courts may receive the evidence, determine the facts, and, based on the issues framed, provide the relevant reliefs for each case.
General invocations of policy will be better supported by experience with the system. In so doing, We can assess what revision or institutional change is necessary to effectively and efficiently further protect our basic rights. The Supreme Court has always operated within institutional restraints but it is far from resigned to spectate as clear breaches of constitutional rights are carried out beyond its halls. We remain conscious of Our role to ensure that the rule of law is resilient and effective in a just, fair, and timely manner. The Bench and the Bar, as well as the public, can rest assured that We will continue to unflinchingly comply with Our constitutional duty to act decisively when it is clear that injustices are done.
C. | Parties in a Petition for a Writ of Amparo |
1. | Petitioner |
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.
2. | Respondent |
SECTION 17. Burden of Proof and Standard of Diligence Required. — x x x xPassive certifications issued by government offices to the effect that the aggrieved party was not detained have been considered by this Court as severely inadequate and noncompliant with the requirement of a detailed return. We ruled that these amounted to a general denial for failure to indicate who conducted the search and how thoroughly the allegedly continuous searches were conducted.[58]
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.
D. | Process |
1. | Venue and Docket Fees |
2. | Filing of the Petition |
SECTION 5. Contents of Petition. — The petition shall be signed and verified and shall allege the following:The Annotation to the Writ of Amparo explains the contents of the petition in the following manner:
(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.It should be clarified that the requirement of a supporting affidavit should not be read as an absolute one that necessarily leads to the dismissal of the petition if not strictly followed. There is substantial compliance with the requirement when a verified petition sufficiently details the facts relied upon, or when the petitioner and his or her witnesses personally testify in the summary hearing.[69]
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 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.
3. | Evaluation of the Petition For the Issuance of the Writ |
The framers of the Amparo Rule never intended Section 5 (c) to be complete in every detail in stating the threatened or actual violation of a victim's rights. As in any other initiatory pleading, the pleader must of course state the ultimate facts constituting the cause of action, omitting the evidentiary details. In an Amparo petition, however, this requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may purposely be hidden or covered up by those who caused the disappearance. In this type of situation, to require the level of specificity, detail and precision that the petitioners apparently want to read into the Amparo Rule is to make this Rule a token gesture of judicial concern for violations of the constitutional rights to life, liberty and security.Given the extraordinary circumstances that normally give rise to an amparo petition, we acknowledge that a petitioner may not be able to describe with specificity the circumstances and the persons responsible for alleged threats to his or her right to life, liberty, and security, since these violations or threats are normally purposely hidden or concealed by the perpetrators. Evidently, this view on amparo petitions is meant to give full effect to the remedy for aggrieved individuals or other authorized partyÂ-complainants, who normally do not possess the resources to give precise and exact information on such matters.
To read the Rules of Court requirement on pleadings while addressing the unique Amparo situation, the test in reading the petition should be to determine whether it contains the details available to the petitioner under the circumstances, while presenting a cause of action showing a violation of the victim's rights to life, liberty and security through State or private party action. The petition should likewise be read in its totality, rather than in terms of its isolated component parts, to determine if the required elements — namely, of the disappearance, the State or private action, and the actual or threatened violations of the rights to life, liberty or security — are present.[70]
4. | Effect of the Issuance of the Writ |
a) | Filing of a Return |
SECTION 9. Return; Contents. — x x x xDefenses not raised in the return are deemed waived.[76] Failure to file a return will not delay the proceedings as the petition will be heard ex parte.[77]
(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;The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case.
(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.
A general denial of the allegations in the petition shall not be allowed.
b) | Interim Reliefs |
5. | Summary Hearing: Evaluation of the Grant of the Privilege of the Writ |
6. | Judgment: Grant or Denial of the Privilege of the Writ |
7. | Appeal |
II. | Application |
A. | Classification of Petitioners Allegations as Threats to Life, Liberty, and Security |
B. | Sufficiency of Petitioners Allegations as Threats to Life, Liberty, and Security |
C. | Impleading Additional Respondents |
III. | Conclusion |
This case involves the phenomenon of "red baiting." It is our version of McCarthyism.As Justice Sarmiento has pointed out, our own history is an example of when the premise of suppressing the alleged terrors of Communism led to decades of exploiting power for oppression and death:
To make it easy for military and paramilitary units to silence or cause untold human rights abuses on vocal dissenters, government agents usually resort to stereotyping or caricaturing individuals. This is accomplished by providing witnesses who, under coercive and intimidating conditions, identify the leaders of organizations critical of the administration as masterminds of ordinary criminal acts. Not only does this make these leaders' lives and liberties vulnerable, a chilling effect on dissent is also generated among similar-minded individuals.
Belief in communism has historically been used as a bogey to create non-existent exigencies for purposes of national security. History records the many human rights violations that may have been caused by this unsophisticated view of some in the echelons of military power. History, too, teaches that toleration and the creation of wider deliberative spaces are the more lasting and peaceful ways to debunk worn-out ideologies.. . . .
Petitioners in this case allege facts that threaten their lives and liberty, and, therefore, their security. The Resolution of the majority correctly points out that there is still no tangible offense committed by respondents against petitioners. However, Amparo does not come into existence as a relevant preventive device only when there is certainty of an offense committed. In those cases, preliminary investigation or the judicial determination of probable cause affords a venue for the accused to contest the impending threats [to] his or her liberties.
Rather, Amparo is a remedy designed for events that reside in legal penumbra. Those conditions, which, though ambiguously legal, incrementally create the vulnerabilities that will, with the certainty of experience, lead to the person's harassment, disappearance, or death. Certainly, "red baiting" is quintessentially paradigmatic of these cases.[3] (Citations omitted)
In registering this dissent I hasten to state furthermore that I am not advocating the cause of Communism, much less am I speaking on behalf of the underground National-Democratic; movement. According to Fernando, Communism is an ideology fundamentally at war with our cherished values and traditions. Fernando of course, is entitled to his opinion, but let the matter be, in any event, tested in the democratic marketplace of ideas, and may the better debater win.As astutely stated in the ponencia, a person seeking the protective ambit of a writ of amparo need not await the inimical outcomes of being red-tagged to come to pass to be entitled to the writ.[5] The heightened risk of danger or death brought about being labelled as a Communist, a Communist sympathizer, or even merely being adjacent to a Communist cause[6] should be seriously considered by judges in amparo proceedings.
The shadow the Anti-Subversion Act has cast upon the so-called "legal Left" is particularly ominous. As it is worded, the Act applies to "similar associations," meaning to say groups akin to the CPP which is supposed to stand for a violent takeover of government power. To be sure, it is a matter of opinion whether the legal Left is a "similar association" since like the CPP, it subscribes to radical change, but as it (the Left) would put it, unlike the clandestine organization, it seeks change by the ways of peace (mainly, protest and related mass actions). But let me reiterate, it is a matter of opinion, and opinions, frequently, differ. What is a legitimate protest movement to one may well be a Communist front to another.
In airing this concern, I do not think I can be accused of raising some imagined fear. Arguably, Leftism (and/or genuine Nationalism) and Communism are half-brothers in the sense that both advocate radical change in society, and advocate it passionately. It is true that what Republic Act No. 1700 punishes is Communism, or in its own language, the Communist conspiracy, and not Leftism or Nationalism, but the question is, where does one draw the line? Apparently, the Act has not drawn one, although one exists somewhere. And there lies the rub, especially with a conservative military establishment alleged to be hostile to the Left.
The reenactment of Republic Act No. 1700 (as Executive Order No. 161) did not, of course, cure its defect but as I put it, "reenacted" it. My personal opinion is that we ought to have known better. The nightmarish years of one-man rule are hopefully behind us, but let not their painful lessons be lost on us.
The dictatorial regime rose to power primarily on a premise of a Communist bloodbath that allegedly awaited the Filipino people, while it unleashed its own brand of terror.[4] (Emphasis supplied, citations omitted)