“The Writ of Amparo and Human Rights Violations: Impunity in the ...

“The Writ of Amparo and HumanRights Violations: Impunity in thePhilippinesNeri Javier ColmenaresUniversity of Melbourne

Victims of Extrajudicial, Summary or ArbitraryExecution under the Arroyo GovernmentJan 21, 2001 – September 30, 2008YEAR TOTAL ORGANIZED WOMEN2001 98 35 112002 118 44 132003 126 32 142004 83 41 92005 187 101 142006 218 108 252007 84 35 1219 8 52008 (Sept.)(Sept.) 19TOTAL 933 404 107

Victims of Enforced or Involuntary Disappearance underArroyo GovernmentYEARTOTALORGANIZED2001 7 1 22002 9 3 22003 11 2 12004 26 10 52005 28 6 02006 78 26 162007 33 13 4(Sept.) 7 5 12008 (Sept.)2008Jan 21, 2001 – September 30, 2008TOTAL 199 67 31WOMEN

EJK per Sector(January 2001 to March 31, 2008)PEASANTWORKERSOthersENTREPRENEURYOUTH ANDSTUDENTSURBAN POORUNBORNMOROMINORLAWYERCHURCHHUM AN RIGHTSINDIGENOUS PEOPLEFISHERFOLKSGOVERNM ENTEM PLOYEES

Evidentiary Patterns1.Most of the victims are activists2.Public Vilification3.Impunity in the execution of the act4.Failure to investigate and prosecute5.Failure to condemn•

Implementation1. Gen. Jovito Palparan “Butcher ofMindoro”- Public statements “inspire thetriggermen”2. Counter Insurgency Program (Coin)(a)Oplan Bantay Laya (Operation PlanGuard Freedom and(b) Target Research (“research among fronttarget members of front organizations andneutralize them”)

Statements by Gen. PalparanThe death of civilians and local officials were‘small sacrifices’ brought about by the military’santi-insurgency campaign (Daily Inquirer 12Sept.2006)“The killings are being attributed to me but Idid not kill them, I just inspire the triggermen.”“I cannot order my soldiers to kill, it’s theirjudgment call, they can do it on their own.”“ Potential vigilante actions by anti communistelements outside the military organizationcannot be stopped completely and the killing ofactivists are necessary incident to (the) conflict

Oplan Bantay Laya1. Neuralization of Sectoral Front Organizations2. Gen. Palparan’s declaration“I want communism totally erased.… to wagethe ongoing counterinsurgency . . . by"neutralizing" not just armed rebels but also aweb of alleged front organizations that includeleftist political parties, human-rights andwomen's organizations, even lawyers andmembers of the clergy. (“Wagging theBuffalo”-September 25, 2006, Newsweek)•

Four Criminalconvictions903 extrajudicial killings,193 enforced disappearances

Presidential Immunity• I. Habeas Corpus• II. Impeachment• III. Executive Privilege

Professor Philip Alston,UN Special Rapporteur onExtrajudicial, Summary orArbitrary ExecutionsProfessor Alstonconcluded that :the government,particularly theAFP, was in astate of denialabout the humanrights violations.

"In parts of Central Luzon, the leaders of leftistorganizations are systematically hunted down.Those who may know their whereabouts may beinterrogated and tortured. A campaign of vilificationdesigned to instill fear into community follows, andthe individual is often killed as a result. Such attacksand the attendant of fear can lead to thedisintegration of organized civil society."•

This practice reflects more than the mere'excesses‘ of a particular commander. Rather,it is a deliberate strategy in keeping with theoverall trajectory of counterinsurgencythinking at the national level...It is, instead,essential to identify and decisively reject at aninstitutional level those innovations incounterinsurgency strategy that have resultedin such level of political killings.

Melo Commission Report•• The NPA purge theory being discredited,the only other theory left is that certainelements within or connected to somemilitary officers are responsible for thekillings. The victims, according toGeneral Palparan and others, wereenemies of the State; hence, theirneutralization.

• This may well be so, but it should be carefully noted• that the victims, were all non-combatants. They were• not killed in armed clashes or engagements with the• military. They were killed, it is said, by motorcycle• riding hooded killers in assassination manner.• Government agencies hardly need reminding that in a• democratic and civilized state such as ours, one must• uphold and observe the rule of law, the principles of• justice, and the system and rules of how it is dispensed• – from investigation to arrest, to inquest, and to trial.• The system may be far from perfect, giving rise to the• temptation to take short-cuts. But precisely, short-cuts• are in defiance of the system of impartial justice. The• rules must be observed at all times.• (Melo Commission Report, page 2)

Judicial Intervention• The Supreme Court called the legislative,executive and the human rights groupsto a “Summit on Extra Judicial Killings”• Problems:• 1. Lack of Investigation• 2. Lack of Witnesses• 3. Failure of Habeas Corpus as a judicialremedy

The Writ of Amparo• Amparo literally means ‘to shelter’or “protection” from the Spanishword Amparar when constitutionalrights are violated by:1.Laws2. Judicial decision in civil and criminalcases3.Acts of any nature by the authorities

Nicaraguan Definition• It may be Provided through Statute under DecreeNo. 232 [The Law of Amparo for PersonalFreedom and Security] and the Constitution bythe Fundamental statute of July 20, 1979.Amparo operates:a)on behalf of a person who has been detained orthreatened with detention upon orders of theState;a)against a sentence of imprisonment imposedupon a person who has not been detained andwho wishes to be released from its effects.

ArgentinaIt provides for the filing of a writ ofamparo against any act or omission of apublic authority which “currently orimminently may damage, limit, modify orthreaten rights and guarantees explicitlyor implicitly recognized by the Constitution,except for individual liberty, which isprotected by habeas corpus.”

SECTION 1.• Petition. – The petition for a writ ofamparo is a remedy available to anyperson whose right to life, libertyand security is violated orthreatened with violation by anunlawful act or omission of a publicofficial or employee, or of a privateindividual or entity. The writ shallcover extralegal killings andenforced disappearances or threatsthereof.

Key Elements of PhilippineAmparo• i. May be filed by the victim, her family or“any concerned citizen or group”• Ii. Filed with “any justice” of the supremecourt and other collegial tribunal at “ anyday, at any time”• III. No docket fees required• IV. Witness Protection under governmentagencies of private institution or person

Access to Information• 1. Requires the military-police to providethe court “all relevant information” on thevictim• 2. Privatization of Investigtion• A. Inspection Order• B. Production Order

Balao Decision• 1. President Arroyo is not immune from anamparo suit and must answer the petition• 2. The Court ordered the respondentsincluding Pres. Arroyo and the Secretary ofDefense, to• (i) DISCLOSE where the victim is kept• (ii) RELEASE him from his unlawfuldetention and• (iii) DESIST from inflicting harm on him

Secretary Of National Defense vs. Manalo [G.R.No. 180906, Oct. 7, 2008]• …the abduction was perpetrated byarmed men who were sufficientlyidentified by the petitioners (hereinrespondents) to be military personneland CAFGU auxiliaries• We are convinced, too, that the reasonfor the abduction was the suspicion thatthe petitioners were either members orsympathizers of the NPA

(1) Gen. Palparan’s participation in theabduction was also established. At thevery least, he was aware of thepetitioners’ captivity at the hands of menin uniform assigned to his command.(2) x x x his knowledge of the diresituation of the petitioners during theirlong captivity at the hands of militarypersonnel under his command bespokeof his indubitable command policy thatunavoidably encouraged and not merelytolerated the abduction of civilians withoutdue process of law

Initial Analysis• 1. Constitutional Norms insufficient in theface of a linear justice system• 2. Judiciary is an arena for judicialintervention for human rights protection• 3. Amparo led to the surfacing of sixdisappeared victims and release of ten morebut did not spur serious investigation andprosecution although the informationgathering mechanisms generated evidence.• 4. qualified presidential immunity throughamparo

Impact of Amparo• 1. Led to the release of illegally abducteddetainees and the surfacing of six victims ofdisappearances (Munasque case etc.)• 2. Spurred investigation in very fewinstances and generated information oncertain cases• 3. Pierced presidential immunity• 4. acceptance of Judicial intervention inhuman rights protection