Today is Monday, May 21, 2018

Respect for the Rights of Others

By SC Justice Ruben T. Reyes

September 25, 2007, or last Tuesday, is a historic date in judicial history. On that day, the Supreme Court led by Chief Justice Reynato S. Puno, unanimously resolved to approve A.M. No. 07-9-12-SC - The Rule on the Writ of Amparo. The Rule institutionalizes an extraordinary legal remedy protective of civil liberties – specifically the right to life, liberty and security – against their actual or threatened violation by public or private entities. For the first time, a sword is unsheathed and wielded, not by any particular individual or group among the citizenry, but by a state organ that is the Judiciary. The promulgation of the Rule is a response to the recently-concluded National Consultative Summit on Extrajudicial Killings and Enforced Disappearances one of whose recommendations is “to study the writ of amparo as a protective and remedial tool for the protection of constitutional rights”.

Because of its novelty in this jurisdiction, everyone wants to know what this legal remedy really is. A brief backgrounder is in order. The law academe ostensibly first encountered the Writ of Amparo in the 1991 Bar examinations in Political Law given by now SC Justice Adolfo Azcuna. Justice Flerida Ruth Romero likens the amparo to a writ of habeas corpus, although the former is broader in scope. By its very etymology, amparo means protection or shelter. The writ of amparo or "recurso de amparo" is an exhaustive remedy which empowers the courts to undertake the judicial review of governmental action so that individuals are protected against state abuses. It was originally conceptualized in Mexico, integrated in its Federal Constitution and later subject of numerous amendments. The juicio de amparo was pioneered by Mexican politician Mariano Otero, who included it in the Acta de Reformas of 1847. This ultimately became Articles 101 and 102 of the Mexican Constitution. The concept of the writ spread among many Latin American countries where the writ was put in good use to counter official and military excesses.

It is interesting to note that in its very heart, the writ of amparo is really a Mexican adaptation of American judicial review as was first enunciated by Chief Justice Marshall in the landmark Marbury vs. Madison. The amparo became the product of each adapting country’s response to its political and social milieu. We, too, have made the amparo our own. Unlike its Mexican and Latin American counterparts, which can only be procured against governmental actions, ours extends to violations of civil liberties through the unlawful act or omission of “a public official or employee or of a private individual or entity.” In this sense, we can rightfully say that our amparo proceedings are remarkably unique.

With the writ institutionalized, persons may now seek judicial relief by way of amparo to protect their civil liberties, obtain information through a writ of habeas data, to compel production of an individual or evidence or to obtain a referral to the government’s witness protection program.

Our adoption of the writ of amparo marks a departure from traditional paradigms that courts find themselves in.

First, the view that the judiciary as a passive, static entity that remains stationary without external stimuli is slowly being modified. Now, we are seeing the emergence of a judiciary that has been assuming a more proactive role in policymaking through its decisions reviewing executive and legislative actions. Truly, the judicial branch is still the least dangerous but is not the least dynamic.

Second, the expansion of rights is no longer the sole province of the legislature. While practice and procedure is admittedly within the powers of the Supreme Court, the transplant of the Amparo remedy signals that the Court, through its rule-making powers, can indirectly broaden and strengthen substantive rights by providing better procedural avenues through which they can be litigated and pursued.

In the long run, the shift to these paradigms will change the way how our country practices democracy. Whether we achieve maturity and improvement remains to be seen but changes shall be felt sooner or later. The Mexican legal scholar Jose de Jesus Gudiño wrote that:

“…Paradigms are a fundamental part of the rationality of the legal system, they legitimate its contents and justify its scope and limits.

“Paradigms are also substituted or superseded with time, not in a radical o mechanical fashion, but, in general, the entering paradigm substitutes the prevailing one gradually, advancing as it acquires new followers, until replacement takes place, and the old one is from then part of the history of law or part of the institution’s past.”

The practice of democracy has always been towards advancing the stature of the governed and in so doing, respect for human rights has always received priority in the democratic hierarchy of values, especially among members of the judiciary.  The invocation of the amparo against private and official abuses is a recognition that respect for these rights, if not honored, can be compelled, if not by other branches of government, then by the courts.  This, I think, is the most radical conclusion that can be drawn from the amparo.

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