WRIT OF AMPARO, WRIT OF HABEAS DATA AND WRIT OF KALIKASAN

Zymond Rabutazo 1C

WRIT OF AMPARO
A.M. No. 07-9-12-SC Date issued: October 16 2007

DEFINITION

A 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. Amparo literally means to protect

SCOPE

- The writ shall cover extralegal killings and enforced disappearances or threats thereof. - Limited only to the right to life, liberty and security of persons. - covers both actual and threatened violations of such rights committed by both public officials and private individuals or entities.

WHO MAY FILE

-Aggrieved Party Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party; 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 -Authorized Party Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.

FILING
may be filed on any day, including Saturdays, Sundays and holidays; and at any time, from morning until evening. The amparo petition may be filed with: Regional Trial Court having territorial jurisdiction on the place where the act or omission was committed, or where any of its elements occurred. returnable before the RTC or judge. Sandiganbayan may be returnable before such court or any justice thereof, or to any RTC of the place where the violation was committed. Court of Appeals or any of its justices may be returnable before such court or any justice thereof, or to any RTC of the place where the violation was committed. Supreme Court of any of its justices returnable before the SC or any justice thereof, or before the Sandiganbayan or the CA or any of their justices, or to any RTC of the place where the violation took place. No docket and other lawful fees required.

CONTENTS

The petition shall be signed and verified and shall allege the following: 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.

ISSUANCE

Upon filing, the court, justice or judge shall IMMEDIATELY order the issuance of the writ, when on the face of the petition, it ought to issue. A hearing of the petition, which shall not be later than 7 days from the date of issuance, shall be held. Shall be GRANTED if petitioner is able to prove his cause of action

SERVICE

Personal Service made by judicial officer or by a person deputized by the court, justice or judge against the respondent. If personal service cannot be made: Rules on substituted service will apply

RETURN
CONTENTS

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; 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; All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and 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 identified in the petition which may aid in the prosecution of the person or persons responsible; to identify witnesses and obtain statements from them concerning the death or disappearance; 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 person or persons involved in the death or disappearance; and to bring the suspected offenders before a competent court

When to File Return: Within SEVENTY-TWO (72) HOURS after the service of the writ Must be a detailed verified return No general denial is allowed Defenses not pleaded is deemed waived Failure to file the return will give rise to an Ex Parte Hearing Refusal to make a return is punishable by CONTEMPT, the respondent may be imprisoned or be fined.

PROHIBITED PLEADINGS AND MOTIONS

The following pleadings and motions are prohibited:
a. Motion to dismiss; b. Motion for extension of time to file return, opposition, affidavit, position paper and other pleadings; c. Dilatory motion for postponement; d. Motion for a bill of particulars; e. Counterclaim or cross-claim; f. Third-party complaint; g. Reply; h. Motion to declare respondent in default; i. Intervention; j. Memorandum; k. Motion for reconsideration of interlocutory orders or interim relief orders; and l. Petition for certiorari, mandamus or prohibition against any interlocutory order.

HEARING

Summary in nature, but the court may conduct a preliminary conference

INTERIM RELIEFS
1. Temporary Protection Order (TPO) The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of his immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. 2. Inspection Order (IO) The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated 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.

Must stated in sufficient detail the place/s to be inspected Must be under oath and should have supporting affidavits Specify the persons authorized to make the inspection, as well as the date, time and manner of making such inspection If opposed: The amparo court may conduct a hearing in chambers to determine the merit of the opposition LIFETIME: 5 Days, unless extended under justifiable circumstances

INTERIM RELIEFS
3. Production Order (PO) 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.

If opposed: The amparo court may conduct a hearing in chambers to determine the merit of the opposition

4. Witness Protection Order (WPO) 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, pursuant to Republic Act No. 6981.

Interim Reliefs Available to both Petitioner and Respondent 1. Inspection Order - Shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent/s. 2. Protection Order

BURDEN OF PROOF AND STANDARD OF DILIGENCE

Substantial Evidence Standard of Diligence

Private Individual or Entity as Respondent: Prove that ORDINARY DILIGENCE as required by applicable laws, rules and regulations was observed in the performance of duty. Public Official or Employee as Respondent Prove that EXTRA-ORDINARY DILIGENCE as required by applicable laws, rules and regulations was observed in the performance of duty

JUDGMENT

Court shall render judgment within 10 days from the time petition is submitted for decision GRANTED if allegations are proven by substantial evidence, OTHERWISE, it shall be DENIED. FAILURE TO PRESENT SUBSTANTIAL EVIDENCE: Case will be archived, not dismissed

Revival of Archived Petition - A periodic review shall be made by the court and shall motu proprio or upon motion of any party order its revival when ready for further proceedings. Dismissal of Petition after it has been archived - 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.

APPEAL

Any party may appeal from the final judgment or order TO THE SUPREME COURT under Rule 45. May raise questions of fact or law or both. Period of Appeal: Five (5) working days from the date of notice of the adverse judgment. Order to archive petition NOT APPEALABLE. Interlocutory order

INSTITUTION OF SEPARATE ACTIONS

Prerogative Writ: thus, it does not suspend the filing of criminal, civil or administrative actions Not a criminal proceeding Will NOT determine the criminal guilt of respondent, BUT the amparo court may refer the case to the DOJ for criminal prosecution.

EFFECT OF FILING A SEPARATE CRIMINAL ACTION:

If instituted BEFORE the filing of a petition for writ of amparo, NO SEPARATE PETITION for the writ of amparo shall be filed. The reliefs under the writ shall be available BY MOTION in the criminal case. If instituted AFTER the filing of a petition for writ of amparo, the petition for the writ shall be CONSOLIDATED with the criminal action. Criminal and a separate civil action are instituted AFTER a petition for the writ of amparo has already been filed, the petition shall be CONSOLIDATED WITH THE CRIMINAL ACTION.

CASE DOCTRINES
G.R. No. 182165 CASTILLO et. al. vs. CRUZ et. al. The coverage of the writs of amparo and habeas data is limited to the protection of rights to life, liberty and security. And the writs cover not only actual but also threats of unlawful acts or omissions. To thus be covered by the privilege of the writs, respondents must meet the threshold requirement that their right to life, liberty and security is violated or threatened with an unlawful act or omission.

Petitions for writs of amparo and habeas data are extraordinary remedies which cannot be used as tools to stall the execution of a final and executory decision in a property dispute.

A.M. No. 08-1-16-SC Date issued: February 2 2008

WRIT OF HABEAS DATA

WRIT OF HABEAS DATA

The basic attribute of an effective right to informational privacy is the right of individuals to control the flow information concerning or describing them. It is however a right that must be balanced by legitimate concerns. There is therefore a pressing need to provide for judicial remedies (such as the writ of habeas data) that would allow the summary hearing of the unlawful use of data or information and the remedy possible violations of the right to privacy. In general, the Writ of Habeas Data is designed to protect, by means of an individual complaint presented to a constitutional court, the image, privacy, honor, information, self-determination and freedom of information of a person.

WRIT OF HABEAS DATA

Several studies have shown remarkable uses of the habeas data writ- uses that were not really intended by its developers. An unforeseen effect of this juridical remedy is that it has become an excellent Human Rights tool mostly in the countries that are recovering from military dictatorships. The Supreme Court in Argentina held that the habeas data rule applied implicitly to the families of the deceased in a case involving extrajudicial killing and enforced disappearance. This was a recognition of the right of families of the disappeared, usually victims of the military regime, to request access to police and military records otherwise closed to them- and, in essence, establishing a right to truth. This right to truth entitles the families of disappeared persons to know the totality of circumstances surrounding the fates of their relatives and imposes an obligation of investigation on the part of governments. The right to truth is a component of the right to life, liberty and security. The writ of habeas data will provide people with additional remedy that would hopefully terminate the extrajudicial killings and enforced disappearances plaguing the country.

WRIT OF HABEAS DATA

All persons have the right to access information about themselves, especially if it is in the possession of the government. The right to access and control personal information is essential to protect ones privacy, honor and personal identity. The writ of habeas data is a remedy to protect the right to life, liberty or security of a person from violation or threatened violation by an unlawful act or omission of a public official or employee or of a private individual or entity. It complements the remedies of the writ of amparo and writ of habeas corpus. The writ of habeas data can be availed of as an independent remedy to enforce ones right to privacy, more specifically, the right to informational privacy. The remedies against the violation of such right can include updating, rectification, suppression or destruction of the database or information or files in possession or in control of respondents. The right to privacy is a personal right. Hence, generally, it is the aggrieved party who can seek the remedy of the writ for its enforcement.

Writ of Mandamus

Writ of Habeas Data

It is a writ developed to protect the rights of the individual against the State. It is used to command a governmental agency to perform a ministerial function, so that a person may enjoy the benefits of a common government.

In general, the Writ of Habeas Data is designed to protect, by means of an individual complaint presented to a constitutional court, the image, privacy, honor, information, self-determination and freedom of information of a person. The habeas data rule applied implicitly to the families of the deceased in a case involving extrajudicial killing and enforced disappearance. This was a recognition of the right of families of the disappeared, usually victims of the military regime, to request access to police and military records otherwise closed to them- and, in essence, establishing a right to truth. This right to truth entitles the families of disappeared persons to know the totality of circumstances surrounding the fates of their relatives and imposes an obligation of investigation on the part of governments. Family members of disappeared persons have used actions for habeas data to obtain information concerning government conduct, to learn the fate of disappeared persons, ant to exact accountability. This action constitute important means to guarantee the right to privacy and, as a complementary right, the right to truth.

WRIT OF KALIKASAN
Date issued: April 2010

OBJECTIVES OF THE WRIT OF KALIKASAN

1. Protection and promotion of constitutional right to

abalanced and healthful ecology; 2. Provision of access to justice- through simplified, speedy and inexpensive procedure for the en forcement of environmental rights and duties 3. To introduce and adopt innovations and best practice censuring the effective enforcement of remedies and redress for violation of environmental laws; and 4. To enable the courts to monitor and exact compliance with orders and judgments in environmental cases.

CONSTITUTIONAL FRAMEWORK

RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY ( Sec. 16, Art. 2 of Phil. Consti.) The state shall advance theright of the people to a balanced and healthful ecology inaccordance with the rhythm and harmony of nature RIGHT TO HEALTH (Sec. 15, Art. II, Phil. Consti.) The state shall protect and promote the right to health of the people and instill health consciousness among them. RIGHTS OF INDIGENOUS PEOPLES - which include the right to their cultural and spiritual base (in other words, their ancestral land which are the Philippines last living lung).

RULE ON WRIT OF KALIKASAN

Where Rule is found : It is incorporated as Rule VII of TheRules of Procedure for Environmental Cases adopted by the Supreme Court in April 2010. Nature of Writ : Special Civil Action Applicability :Applies when there is damage in violation of environmental law, rule or regulation, where damage isof such magnitude as to prejudice the life, health orproperty of inhabitants in 2 or more cities or provinces Who May File: A natural or juridical person, entityauthorized by law, PO, NGO, or any public interest groupaccredited by or registered with any government agency,on behalf of persons whose constitutional right to abalanced and healthful ecology is violated, or threatenedwith violation. (Note: Requirement of accredition is toguarantee legal existence of group or NGO.)

RULE ON WRIT OF KALIKASAN

Respondent: A public official or employee, or private individual or entity. Contents of Petition: (1) Name/s and personal circumstances of petitioner/s, and of respo ndent/s who if unknown and uncertain, may be described under assumed appellation; (2) The environmental law, rule or regulation violated or threatened to be violated , the act or omission complained of, and the environmental damage sustained. (3) Evidence to be attached: affidavits of witnesses, documentary evidence, scientific or other expert studies, and object evidence; (4) The certification of non-forum shopping (5) The reliefs prayed for which may include a prayer for the issuance of a Temporary Protection Order

RULE ON WRIT OF KALIKASAN

When is a Temporary Environmental Protection Order (or TEPO, which is equivalent to the TRO in ordinary jurisprudence) available? In case of extreme urgency and the applicant will suffer grave injustice and irreparable injury,the court may issue ex parte a TEPO effective for only seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined. Within said period, the court wherethe case is assigned shall conduct a summary hearing todetermine whether the TEPO may be extended until thetermination of the case.

The court should periodically monitor the existence of actswhich are the subject matter of the TEPO, the TEPO can beinglifted anytime as the circumstances may warrant.

RULE ON WRIT OF KALIKASAN

Dissolution of the TEPO: The TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable damage to the party or person enjoined while the applicant may be fully compensated for such damages a she may suffer and subject to the posting of a sufficient bond by the party or person enjoined. Filing Fee:

Pay as you enter rule does not apply; no filing fee required. When to File Return: Within TEN days from receipt of notice Form and Content of Return: Must be verified; General denial of allegations is deemed an admission, thus denials must be specific. Effect of Failure to File Return: Court will hear the case ex parte

RULE ON WRIT OF KALIKASAN

Prohibited Pleadings: (a) Motion to dismiss; (b) Motion for extension of time to file return; (c) Motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; and (h) Motion to declare respondent Why prohibit certain pleadings? To expedite the judicial process.

RULE ON WRIT OF KALIKASAN

Ultimate Reliefs to be prayed for/ granted: Permanent Cease and Desist Order Order for rehabilitation or Restoration of damage Order for respondent to monitor strict compliance with court orders and decisions Order for respondent to make periodic reports on strictcompliance with court orders and decisions. Such other reliefs (except award of damages to individualpetitioners) NOTE: The Court will not grant an award for personal damages which may be claimed in a separate civil action.

FEATURES OF WRIT OF KALIKASAN

Allows discovery procedure in gathering evidence ( such as ocular inspection, production or inspection of documents or things) Applies PRECAUTIONARY PRINCIPLE: When human activities may lead to threats of serious and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be taken to avoid or diminish that threat and lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Thus, this principle modifies the rules on evidence in writ of kalikasan cases where the burden is on the respondents to prove that their activity that may cause damage to the environment is not in fact damaging.

FEATURES OF WRIT OF KALIKASAN

A homegrown judicial remedy available only in the Philippines Summary in nature; expedited disposition of cases Liberal rule on locus standi; organizations can stand in representation of communities or of those who suffered actual damage. No docket fee required to be paid by petitioner to strike a balance between ecological and economic development concerns. Allows submission of memorandum through email.