T W A: A N L R O L P ?: Paulo Cardinal

THE WRIT OF AMPARO:

A NEW LIGHTHOUSE FOR THE RULE OF LAW IN THE
PHILIPPINES?*
Paulo Cardinal**
SERGEANT: Habeas corpus. Do you know

what habeas corpus is, Miss?
ANNE: Of course… of course I do.
SERGEANT: Well, it doesn’t exist anymore.
It’s gone. We can keep you as long as we
want, wherever we want. Don’t need to ask a
judge anymore, don’t need to ask anybody.
Don’t even need to tell anyone where you’ve
gone. 1
-GLORIOUS 39, written and directed by
Stephen Poliakoff
I. INTRODUCTORY NOTES
This paper attempts, from abroad and with all the risks that distance
may imply, some analysis on the Philippine Writ of Amparo.2 It simultaneously
brings a comparative law approach as well as a historical account of the noble
idea of Amparo while not forgetting some apex principles that underline and
walk hand in hand with it. In Amparo, one also can detect the dichotomy of
the should be opposed to the is.
* Cite as Paulo Cardinal, The Writ of Amparo: A New Lighthouse for the Rule of Law in
the Philippines?, 86 PHIL. L.J. 230, (page cited) (2012).
** Invited Lecturer, Faculty of Law, Macau University. Senior Legal Adviser,
Macau Legislative Assembly. The author expresses his gratitude to Dean Raul Pangalangan
for his support as well as to Deborrah Cardinal in providing important bibliography,
without which this piece would not be able to properly achieve its purposes. We also thank
Luis Pessanha for his valuable comments and suggestions.
1 GLORIOUS 39 (The British Broadcasting Corporation 2009).
2 Phil. Sup. Ct., A.M. No. 07-9-12-SC (2007), Rule on the Writ of Amparo; Phil.
Sup. Ct., A.M. No.08-1-16-SC (2008), Rule on the Writ of Habeas Data.
229
230 PHILIPPINE LAW JOURNAL [VOL 87
We start with an introductory note in order to understand the context

of the Philippine remedy, then proceed with a comparative law approach by
addressing both the aura of the Amparo — the idea of an implicit good— and
its connection to underlying principles of the modern State with the Rule of
Law as a central principle. The geography and history of Amparo will also be
discussed. Finally, we dedicate our words to the genesis of the Philippine Writ
of Amparo, a contextualization of connatural issues, and an overview of its
main traits.
A note to recall what Amparo is: Amparo is an autonomous judicial

mechanism envisaged to protect a plurality of fundamental rights and a
substantive fundamental right per se.
Contrary to traditional popular belief, Amparo has become an

irradiating hope in new corners of the world. It is no longer confined to the
realms of Latin America and a few European States. This previous geopolitical
confinement (and criticism in order to play down efforts to its consecration in
other legal orders) is no longer a reality. On the contrary, Amparo
mechanisms— whether with this christened name proper or not— are
becoming solidly established in virtually all Latin America, in many European
countries, in some African States and it is continuing discovering its way to
Asia, namely to Macau, South Korea, and most recently to the Philippines.
The number of jurisdictions that are creating Amparo mechanisms is

steadily increasing, besides touching new latitudes, and there is no news of
receding jurisdictions — with one possible exception (Macau, and only as a
result of a change of sovereignty exercise of powers)— meaning that, once you
have it (Amparo) you will not want to let it go. The tastes of freedom, the aura
of the rule of law, are true companions to creation, effective implementation,
and development of this noble defender of fundamental rights. The Amparo
claims a special place in the universe of the jurisdiction of freedom.
To recall the words of former President of the Inter-American Court

of Human Rights, Héctor Fix-Zamudio, “I can declare, without any
exaggeration, that the Amparo in its several modalities and designations…
presents itself as contribute [sic] to the human rights procedural law… of the
2013] THE WRIT OF AMPARO 231
same magnitude as the habeas corpus, the constitutional courts and the
ombudsman.”3
It is true, however, that the mere inexistence of Amparo in a given

legal order does not brand such legal order as being outside the real of the
Rechtsstaat club.4 Several examples can attest to this: Portugal, Holland or
Luxembourg, just to name few examples of States belonging to the continental
legal family and that are undoubtedly members of the Rule of Law Nationhood
and do not have the Amparo.
This does not impair, in any way, the extreme relevance and the
emblematic power that is carried by the Amparo institutions nor undermines
the Amparo consecration as a very important element in determining and/or
pointing to the existence of the rule of law in a given legal order.
On a first note, when Amparo is in crisis, the solution is not the

elimination of the remedy, but instead its reform— its adaptation to the
growing attraction it unfolds. One of the problems faced by Amparo is the
huge numbers of writs filed, flooding competent courts.5
3 HÉCTOR FIX-ZAMUDIO AMPARO Y TUTELA: ENSAYOS SOBRE EL DERECHO DE
AMPARO 696 (3rd ed. 2003).

4 ANA ESPINOSA DÍAZ, EL RECURSO DE AMPARO: PROBLEMAS ANTES, Y
DESPUÉS, DE LA REFORMA 2 (2010).

5 See Aragón Reyes, Problemas del Recurso de Amparo, available at
hdl.handle.net/10486/3108; Pablo Pérez Tremps, Tribunal Constitucional, Juez Ordinario y Una
Deuda Pendiente del Legislador, in LA REFORMA DEL RECURSO DE AMPARO, TIRANT LO
BLANCH 145, 177 (2004). See, e.g., for Spain: Jutta Limbach, Función y Significado del Recurso
Constitucional en Alemania, in CUESTIONES CONSTITUCIONALES 67 (2000); for Germany:
Héctor Fix-Zamudio, La Reforma en el Derecho de Amparo, in ENSAYOS SOBRE EL DERECHO
DE AMPARO (2003); for Mexico: Carlos Natarén, Breves Reflexiones Sobre las Funciones del
Amparo para Efectos y Las Propuestas de su Reforma, in LA CIENCIA DEL DERECHO PROCESAL
CONSTITUCIONAL [PAGES CITED] (Pons ed., 2008); for Argentina: Jorge Reinaldo Vanossi,
La Expectativa de Una Nueva “Ley de Amparo”, in LA CIENCIA DEL DERECHO PROCESAL
CONSTITUCIONAL PAGES CITED] (Pons ed., 2008), also available at
biblio.juridicas.unam.mx/libros/6/2561/29.pdf; for Nicaragua: Francisco Rosales Arguello,
Propuesta de Reforma a la Ley de Amparo de Nicaragua, in LA CIENCIA DEL DERECHO PROCESAL
CONSTITUCIONAL [PAGES CITED] (Pons ed., 2008), also available at
biblio.juridicas.unam.mx/libros/6/2561/27.pdf; SAMUEL YUPANQUI & PABLO PÉREZ
TREMPS, LA REFORMA DEL PROCESO DE AMPARO: LA EXPERIENCIA COMPARADA [PAGES
CITED] (2009); Gianluca Gentili, A Comparative Perspective on Direct Access to Constitutional and
Supreme Courts in Africa, Asia, Europe and Latin America: Assessing Advantages for the Italian
Constitutional Court, 29 PENN ST. INT'L L. REV. 709 (2011).
A good example would be the Spanish case, in which, before the

reform, the load of Amparo cases were sometimes over 97% of the total
amount of cases in the Constitutional Court.6 The law, LO 6/2007, introduced
reforms to the organic law of the Constitutional Court and to the Amparo
proceedings by making it possible for the Court to ascertain, via a new added
requisite, the special constitutional transcendence of the Amparo case at stake. This
introduced apparently cum grano salis some objective tone7 with a hint of
certiorari8 to the basically subjective Amparo.9 But, one has again to underline,
the Amparo survived, albeit somehow reshaped, and was not eradicated. The
results of the reform are considered by some to still be underachieved in its
main goal of reducing the number of Amparo appeals.10
A second note that is proper to present here is the fact that the Idea of
Amparo is translated into legal texts, mostly of constitutional nature, under
varied names. Be it Amparo, and in here we can have attached designations, in
legal texts and in doctrine, such as appeal, recourse, action, remedy, Juicio, Writ,
proceeding, be it other designations such as Tutela, Protection, or, somehow
implying a different design, constitutional action of defence, constitutional
complaint,11 constitutional petition, security mandate, extraordinary appeal of
unconstitutionality. All are tools that are designed for an upgrade judicial
mechanism envisaged exclusively for defending, protecting, upholding a set of
fundamental rights, be it of a large number or of a relatively reduced number
6Constitutional Court of Spain, Estadisticas, available at

www.tribunalconstitucional.es/en/tribunal/estadisticas/Pages/Estadistica.aspx (last
modified Sept. 2008).
7 Mario Hernández Ramos, La Especial Trascendencia Constitucional del Recurso de
Amparo y Su Aplicación en la Jurisprudencia del Tribunal Constitucional: Luces y Sombras de Cuatro

Años de Actividad, REVISTA ARANZADI DOCTRINAL 3 (2011).
8 Aragón Reyes, La Reforma de la Ley Orgánica del Tribunal Constituciona, 85 REVISTA
ESPAÑOLA DE DERECHO CONSTITUCIONAL 19-20 (2009).

9 See supra note 4. See also Ramos supra note 7; Reyes supra note 8 at 85; Mario
Hernandez Ramos, Propuesta de desarrollo del nuevo trámite de admisión del recurso de amparo:
aspectos materiales y procedimentales, 73 REVISTA DE LAS CORTES GENERALES 31 (2008); Manuel
Pulido Quecedo, El Requisito de “La Especial Trascendencia Constitucional” en el Recurso de
Amparo, REVISTA ARANZADI DOCTRINAL, (2009). See infra note 10.
10 See supra note 4 at 17.
11 Jutta Limbach, Función y Significado del Recurso Constitucional en Alemania, in
Cuestiones Constitucionales 3, 69 (2000); Héctor Fix-Zamudio, El Juicio de Amparo Mexicano

y el Derecho Constitucional Comparado, in ENSAYOS SOBRE EL DERECHO DE AMPARO 667
(2003).
of fundamental rights endowed with this possibility of judicial protection.12

Hence, it is not a mechanism built around and purporting to defend only a sole
type of fundamental right, as is the most notable case of habeas corpus vis-à-vis
freedom.
Under the umbrella of the Amparo in general, or other terminology

used such as constitutional complaint, when one dives into the specific rules in
place in a given jurisdiction one will find a multitude of concrete solutions. “As
practised, Amparo has been found so flexible to the particular situations of
each country that, while retaining essence, it has developed various procedural
forms.”13
The application of the Amparo in a variety of situations raises not only

technical questions but also basic structural considerations.14 For example, the
scope of the Amparo— does it cover all fundamental rights or does it limit
itself to the formal constitutional rights? Does it apply only to a certain group
of constitutional rights inserted in a given chapter of the constitution? Does it
confine itself to only a reduced number of fundamental rights established in
the constitutional text?
Also, what are the competent courts? Any of the existing ones
irrespective of their standing within the judiciary organization? Only the
Constitutional Court, where it exists, or the Supreme Court? Or, regarding
some cases, a certain kind of courts like administrative ones whereas in other
cases, the competence rests in the Supreme Court?
Against whom can Amparo be brought — against the acts of public

authorities only, or, in some circumstances, can it be used against private
persons? Who are the subjects of Amparo— only individuals or collective
12 Allan Brewer-Carías, The Latin American Amparo Proceeding and the Writ of Amparo
in the Philippines, 1 CITY.U. L.R. 1, 73 (2009). He writes that the Latin American Amparo is
“an extraordinary judicial remedy specifically conceived for the protection of constitutional
rights”.
13 Adolfo Azcuna, The Writ of Amparo: a Remedy to Enforce Fundamental Rights, 37
ATENEO L.J. 2, 15 (1993).

14 Jorge Tinoco, Domestic and International Judicial Protection Of Fundamental Rights: A
Latin American Comparative Perspective, in ONE COUNTRY, TWO SYSTEMS, THREE LEGAL
ORDERS PERSPECTIVES OF EVOLUTION: ESSAYS ON MACAU’S AUTONOMY AFTER THE
RESUMPTION OF SOVEREIGNTY BY CHINA 343 (Cardinal & Oliveira eds., 2009). He says:
“Although the term Amparo is widely known in many countries, when it comes to
explaining its variations, the precision of a surgeon is likely to be needed.”
persons? Even within the ambit of public authorities one can find different
rules. For example, in some jurisdictions, the Amparo can be used against
judicial decisions that are reported to be in direct violation of fundamental
rights whereas in some other, Amparo can be directed only against acts of the
executive realm. Some other distinctions operate in order to reduce the scope
of the Amparo relating not (only) to the body that enacts the act but also
considering the nature of the act at stake. One more possibility that one can
find in some legal systems, is the Amparo against normative acts deemed to be
unconstitutional.
Who can file the Amparo— only the person affected in its
fundamental right, or can someone else petition for the writ in cases when the
subject whose right is violated is in a situation that makes him incapable to
assume his own defense personally?
Can the Amparo be used only in cases of actual violation of

fundamental rights, or can it extend to threats of violations? Can it only repair,
or can it also prevent? If the Amparo is granted, what is the set of powers that
the court can use? And what is the range of powers? Can it be used directly to
solve the problem, or only send the case back to a lower court to decide upon
the problem? Is the Amparo an immediate answer to the violation of a
fundamental right, or does it operate as a last resort, requiring previous
exhaustion of normal remedies?15
Is the Amparo an immediate answer to the violation of the

fundamental right or, on the contrary, it operates as a sort of last resort hence
imposing the previous exhaustion of normal remedies?
One can find different rules and treatment across jurisdictions. In

some, the Amparo is used against judicial decisions that are reported to be in
direct violation of fundamental rights. In others, Amparo is directed only
against acts of the executive realm. Sometimes other distinctions are made by
the body that issues the writ to reduce the scope of the Amparo, such as
15 See supra note 3, at 3; note 12; Gentili, supra note 5, at 705; Tinoco, supra note
14, at 339. See also ALFONSO HERRERA GARCÍA, SINOPSIS COMPARATIVA SOBRE EL
DERECHO DE AMPARO EN EL MUNDO 1223 (YEAR); Paulo Cardinal, O Amparo de Direitos
Fundamentais no Direito Comparado e no Ordenamento Jurídico de Macau, 3 REVISTA JURÍDICA DE
MACAU 51(YEAR); Hector Fix-Zamudio, The Writ of Amparo in Latin America, 13 LAWYER
OF THE AMERICAS 361 (1981).
distinguishing the nature of the act at stake. The Amparo is also used against
normative acts deemed to be unconstitutional.
One can find different rules and treatment across jurisdictions. In

some, the Amparo is used against judicial decisions that are reported to be in
direct violation of fundamental rights. In others, Amparo is directed only
against acts of the executive realm. Sometimes other distinctions are made by
the body that issues the writ to reduce the scope of the Amparo, such as
distinguishing the nature of the act at stake. The Amparo is also used against
normative acts deemed to be unconstitutional.
On a final note, in many legal systems the Amparo is not only a

mechanism for the protection of fundamental rights, but also a fundamental
right in itself.
II. THE AURA OF AMPARO AS HOLDING AN INTRINSIC GOOD
The Amparo carries an aura of uncommon magnitude associated with

principles and values, such as the rule of law, the principle of constitutionality,
and safeguarding fundamental human rights,16 promoting effective
implementation of fundamental rights,17 and the judiciary as the bastion of
fundamental rights.
The existence of the Amparo in a given jurisdiction is an important

indicator of a society built on the paramount values of human dignity and
democracy and a legal system endowed with a pro libertate and pro homine
regimen, having some referring to it as showing “the undeniable expansive
strength and an institution that goes hand in hand with the consolidation of
16 See Gonzalo Aguilar Cavallo, Derechos Fundamentales-Derechos Humanos. ¿Una

Distinción Válida En El Siglo XXI?, in BOLETÍN MEXICANO DE DERECHO COMPARADO
127, 15 (2010). One is aware of possible distinctions between human rights and
fundamental rights, but for the purpose of this paper we use both expressions as synonyms
and can use it interchangeably unless otherwise stated.
17 The Venice Commission, the Council of Europe's advisory body on
constitutional matters, already stated: “The function of constitutional complaint is in

principle the effective protection of fundamental rights by giving remedy to the individuals
in case of violation of their rights by administrative or judicial decisions.”, 024 CDL-AD
(2004).
the democratic freedoms.”18 However, it is only an indicator, not a watertight

proof of those values actually set in place.19
As Allan Brewer-Carías cautions, “[t]he formal regulations of Amparo

are important but not enough to assure the effectiveness of the said remedy,
which really depends on the existence of an effective independent and
autonomous judiciary which may only be possible in democratic societies.”20
The same author states:
This is the basic condition for the enjoyment of constitutional

rights and for their protection, to the point that the judicial protection
of human rights can be achieved in democratic regimes even without
the existence of formal constitutional declarations of rights or of the
provisions for extraordinary means or remedies. Conversely, even
with extensive declarations of rights and the provision of the Amparo
proceeding in the constitutions to assure their protection, the
effectiveness of it depends on the existence of a democratic political
system based on the rule of law, the principle of the separation of
powers, the existence of checks and balances between different
branches of the government, and on the possibility of the State
powers to be effectively controlled, among others, by means of the
judiciary. Only in such situations is it possible for a person to
effectively have his rights protected.21
Bearing in mind these cautions, one should nevertheless underline the

importance of the concept from several stances: historically, symbolically,
18 Diego Valadés, Exordio, EL DERECHO DE AMPARO EN EL MUNDO 12, (Fix-
Zamudio & Ferrer Mac-Gregor eds., 2006). As [AUTHOR QUOTED] puts it: “Systems of
direct access to constitutional and supreme courts are generally considered positively, as
they can supplement the existing avenues for access to constitutional or supreme courts
and provide protection of fundamental rights in so-called "grey areas" not covered by these
types of remedies.” See Gentili, supra note 5.
19 Giancarlo Rolla, Técnicas de Garantia y Cláusulas de Interpretación de los Derechos
Fundamentales: Consideraciones Sobre Las Constituciones de América Latina y de la Unión Europea,

(2006), available at www.crdc.unige.it/docs/articles/messico.pdf (last visited Mar. 2013). He
writes: “The recognition of the fundamental rights must be accompanied by the
codification of instruments of institutional guarantee that can as much be general, as of
sectorial nature.”
20 Brewer-Carías, supra note 12, at 90.
21 Id.
legally, academically, and practically. It is a concept proven to have an

uncommon capacity to be exported as a globalized phenomenon.22
The concept of Amparo is a strong motivating item for academic

research in the field of comparative constitutional law. European academics
studying the Latin American constitutional justice systems are most attracted
by the concept of Amparo.23 On the other hand, as already said elsewhere, the
Amparo is involved in many operations of circulation between legal systems
interacting, influencing and re-influencing, being a paradigm of import/export
and also of re-importation of the institution proper and the concrete solutions
and adaptations to the legal systems in general and to the fundamental rights
and constitutional review systems.24 It is thus a recurrent institution in
transplanted constitutionalism.25
It seems relevant, and of good use, to bring in here some general

considerations on the Amparo and its impact on constitutionality in general
and on fundamental rights in particular.26
Some authors have used plastic expressions labelling the institute such
as the magic that is associated to its name, the strong fascination that
irradiates,27 or the Writ of Amparo as a legal remedy that “could pierce the veil
of impunity,”28 or a undoubted proved capacity in the defence of the
22 Eduardo Ferrer Mac-Gregor, Breves Notas Sobre el Amparo Iberoamericano (Desde el
Derecho Procesal Constitucional Comparado), in EL DERECHO DE AMPARO EN EL MUNDO 12

(Fix-Zamudio & Ferrer Mac-Gregor eds., 2006).
23 Giancarlo Rolla & Eleonora Ceccherini, Sritti di Diritto Costituzionale Comparato
167 (3rd ed. 2005).

24 Paulo Cardinal, La Institución del Recurso de Amparo de los Derechos Fundamentales y
La Juslusofonia: Los Casos de Macau y Cabo Verde, in EL DERECHO DE AMPARO EN EL MUNDO

892 (Fix-Zamudio & Ferrer Mac-Gregor eds., 2006). See also, Tinoco, supra note 14, at 339;
Rolla & Ceccherini, supra note 23.
25 Raul Pangalangan, Transplanted Constitutionalism: The Philippine Debate on the Secular
State and the Rule of Law, 82 PHIL L.J., 1-23 (2008).

26 Paulo Cardinal, Revisiting the Macanese Amparo of Fundamental Rights: A Quest under
the Searchlight of the Principle of Continuity with a Stopover in Comparative Law, 83 PHIL L.J. 833,
833-849 (2009).
27 Garrido Falla, Tratado de Derecho Administrativo, 368 (11th ed.); Alexandre Sousa
Pinheiro & Mário Brito Fernandes, Comentário à IV Revisão Constitucional, 104 A.A.F.D.L.
(1998).
28 Alexander Remollino, The Writ of Amparo and A.O. 197, BULATLAT, Oct. 20,
2007, ¶ 1, available at bulatlat.com/main/2007/10/20/the-writ-of-Amparo-and-ao-197 (last

visited Mar. 2013).
fundamental rights and a evident operationally and efficacy.29 or a reference30

emphasizing that constitutional Amparo is one of the most relevant
contemporary juridical institutions in the defense of the human rights,
democracy and the Rechtsstaat.31
In relation to specific jurisdictions one can find depictions such as, for
Spain, undoubtedly one of the key institutions of the constitutional order,32
regarding Germany, as the “Queen” of the ways of access to the Federal
Constitutional Court and being closely linked to the development of the Idea
of the Rechtsstaat, 33 and also “the constitutional complaint (Article 93 Section
1 Subsection 4 of the Basic Law): it turns the Federal Constitutional Court into
a “citizens’ court.” The access granted by the Federal Constitutional Court to
everyone has profoundly increased the awareness of the citizens of the role of
the Court vis-à-vis public authority.34
Turning to the Latin American model of constitutional justice, the

Amparo takes outstanding status as a privileged mechanism of judicial
guarantee of constitutional rights.35 In South Korea, it is well underlined the
29 Wladimir Brito, O Amparo Constitucional, Special Issue REVISTA JURÍDICA DE
MACAU 87, 94 (Cardinal ed., 1999).

30 Carlos Ayala Corao & Rafael Chavero Gadzik, El Amparo Constitucional en
Venezuela, in EL DERECHO DE AMPARO EN EL MUNDO 649 (Fix-Zamudio & Ferrer Mac-

Gregor eds., 2006).
31 The common law concept of the Rule of Law, also known as État de Droit,
Estado de Direito, and Estado de Derecho, is extensively discussed in academic literature. See
Barry Hager, THE RULE OF LAW: A LEXICON FOR POLICY MAKERS 3, 7 (2000). Hager
writes: “Other linguistic terms arose that more closely track the “the Rule of Law”
formulation, notably the Rechtsstaat of German law and the etat de droit in French thought”
and, yet, “Something more is intended by the words used in European legal traditions than
simply saying that governments too are bound by the laws that govern individuals.” See also
Diego Valadés, The Rule Of Law as a Cultural Problem, 5 MEXICAN LAW REVIEW 1 (2006). He
writes: “In this text, the expression "Rule of Law" does not correspond to what is
commonly understood in English terms, but in the sense of the Spanish estado de derecho or
in the German Rechtsstaat.”
32 Encarna Carmona Cuenca, LA CRISIS DEL RECURSO DE AMPARO: LA
PROTECCIÓN DE LOS DERECHOS FUNDAMENTALES ENTRE EL PODER JUDICIAL Y EL

TRIBUNAL CONSTITUCIONAL 23 (2005).
33 Peter Haberle, El Recurso de Amparo en el Sistema de Jurisdicción Constitucional de la
República Federal de Alemania, in EL DERECHO DE AMPARO EN EL MUNDO 726 (Fix-Zamudio

& Ferrer Mac-Gregor eds., 2006).
34 Peter Haberle, El Recurso de Amparo en el Sistema Germano-Federal de Jurisdicción
Constitucional, Special Issue REVISTA JURÍDICA DE MACAU 182 (1999).

35 See, e.g., Fix-Zamudio, supra note 11, at 847; Tinoco, supra note 14, at 339.
importance of the constitutional petition in strengthening the fundamental

rights, curving abuses of public powers and fulfilling the effective
implementation of (the) fundamental rights.36 Or, shifting continents, a
superior valourative intention ex vi its creation by the Cape Verde
Constitution.37
We could— virtually in an unending way and with plenty of beautifully

putted words — borrow more from so many other authors from several varied
geo-political contexts or could simply endorse a personal statement but we do
believe that the previous references speak for volumes in so many ways that are
already enough per se to convey what we propose to.
One could just add that the Amparo can be seen as a sort of branded
perfume that exhales a fragrance of enchantment when it comes to promoting
and protecting fundamental rights38 and, by the end of the day, in effectively
contributing to the affirmation and consecration of human dignity.39 A dignity
that all humans are entitled to have and to enjoy irrespective of the jurisdiction
they are subjected to.
36 Ahn Kyong-Whan, The Constitutional Court and Legal Changes in Korea: Post 1987
Development, in DERECHO COMPARADO ASIA-MÉXICO CULTURAS Y SISTEMAS JURÍDICOS

COMPARADOS, 59 (Serna de la Garza ed., 2007).
37 José Lopes da Graça, O Recurso de Amparo No Sistema Constitucional Cabo-
Verdiano, 2 DIREITO E CIDADANIA 200 (1998).

38 Naturally, as with all perfumes, by itself it does not singly guarantees that the
subject is with good odor. It contributes too, decisively, but singlehanded cannot guarantee
it.
39 The literature is virtually unending and it does not fit per se in the present paper.
One however cannot but recall the words of Immanuel Kant, “Humanity is itself a dignity,
since Man cannot be utilized merely as a means by other Man neither by others nor by
himself, having to be always utilized as an end, and, in this, it precisely consists its dignity”,
as translated from A METAFÍSICA DOS COSTUMES 413 (2005). On this apex principle
structuring a fundamental rights system (and the organizatory one), Haberle, tells us that
the human dignity is a anthropological-cultural premise of the Constitutional State. PETER
HABERLE, EL ESTADO CONSTITCIONAL 169 (2003). GOMES CANOTILHO & VITAL
MOREIRA, CONSTITUIÇÃO ANOTADA, 198 (4th ed., 2007). Canotilho and Moreira state that
this principle constitutes a standard of universal protection, a pre-condition and basis of the
Republic and the basis of consecration of many fundamental rights endowing them with an
inherent personality among other functions. LUIS DIEZ-PICAZO, SISTEMA DE DERECHOS
FUNDAMENTALES 68 (2nd ed., 2005). Picazo states: “The constitutional democracy is not
considered viable if it does not adopt as permanent criteria of guidance the dignity of the
human person…”. Rolla notes as well the principle’s normative value. GIANCARLO ROLLA,
EL VALOR NORMATIVO DEL PRINCIPIO DE LA DIGNIDAD HUMANA, [PAGES CITED]
(YEAR).
III. THE GEOGRAPHY AND HISTORY OF AMPARO
It seems adequate to attempt to provide in a concise nutshell way both

the geography and the history of the Amparo— encompassing all modalities as
seen in the introductory notes, namely pointing out the increasing globalization
of the idea of Amparo and the two main epicentres of its irradiation, the
Mexican one and the German one.
The Amparo has irradiated to an increasingly number of states and

expanded its traditional geography notably to the Eastern Europe area in a
manner that in what concerns the “individual constitutional appeal” the
openness of the constitutional jurisdiction systems is remarkable most specially
when compared with the western European countries.40
In fact, besides covering the vast majority of Central and South

America,41 the Amparo— although using different nomen iuris and specific
procedural and substantive designs, thus varying in shape and depth— is to be
found in western Europe like in Spain and Germany,42 and also in many central
and eastern European states such as Russia, Slovenia, Poland,43 in Asia44 as in
40 Michele Mistó, La Giustizia Costituzionale nei Paeisi dell´Europa Centro-orientale, in
LA GIUSTIZIA COSTITUZIONALE IN EUROPA 321 (Olivetti & Groppi eds., 2003).

41 See supra note 12, at 78. The Writ of Amparo exists in Argentina, Bolivia, Brazil,
Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala,

Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay and Venezuela. With the
sole exception of Cuba, the Writ of Amparo is regulated as a special judicial means
exclusively designed for the protection of human rights, as Brewer-Carias explains.
42 Further examples include Switzerland, Austria, Liechtenstein, and Andorra.
Compare with France. See Ann Creelman, US-Style Judicial Review for France? A Major Reform of
French Constitutional Law: the QPC, [JOURNAL NAME] [PAGES CITED] (YEAR), also
available at www.primerus.com/files/US-
Style%20Judicial%20Review%20for%20France(2).pdf; Gerald Neuman, Anti-Ashwander:
Constitutional Litigation As A First Resort In France, 43 JOURNAL OF INTERNATIONAL LAW
AND POLITICS 15 (2010).
43 See Gentili, supra note 5. Aside from Poland, the Writ of Amparo can be found
in Albania, Armenia, Czech Republic, Croatia, Estonia, Georgia, Hungary, Latvia,

Macedonia, Montenegro, Poland, Russia, Serbia, Slovakia, Slovenia, and Ukraine. See also
[AUTHOR], EL DERECHO DE AMPARO EN EL MUNDO [PAGES CITED] (Fix-Zamudio &
Ferrer Mac-Gregor eds., 2006). One also includes Turkey in the list of countries that have
included the Writ of Amparo. See, e.g., Council of Europe, Opinion On The Law On The
Establishment And Rules Of Procedure Of The Constitutional Court Of Turkey, adopted by the
South Korea, Taiwan,45 or, very recently, the Philippines, and in Africa, Cape
Verde or Angola.46
With respect to Asia, Macau is a special case since although the general
Amparo is considered by the judiciary to be extinguished, some authors believe
otherwise and some specific Amparos do exist beyond doubt for fundamental
rights and freedoms of assembly and demonstration and privacy and data
protection.47
It is of relevance to leave here some extra words on other Asian cases,

that is, South Korea and Taiwan, namely to dismantle possible lines of
argumentation and denial of the adequacy of such mechanisms of protection
Venice Commission at its 88th Plenary Session (Venice, 14-15 October 2011); Law No.
5982 (2010). Though some authors have included Greece and Belgium to the list of
countries that have adopted the Writ, we do not, yet at least, fully concur with those inclusive
opinions, for a number of reasons—mostly for, generally speaking, a too strong objective
procedure—defending the legal order—rather than a subjective one—primarily defending
one’s subjective fundamental rights.
44 Macau is a special case since although the general Amparo is considered by the
judiciary to be extinguished, some authors believe otherwise and some specific Amparos do
exist beyond doubt for fundamental rights and freedoms of assembly and demonstration
and privacy and data protection. See supra note 26.
45 The cases of Nepal, India, and Sri Lanka can also be included. See Cardinal,
supra note 15, at 51; António Katchi, AS FONTES DO DIREITO EM MACAU 172 (2006); Bipin
Adhikari & B.P. Bhandari, Quest for Additional Substance and Procedures Towards Protection of
Fundamental Rights in Developing Countries, Special Issue REVISTA JURÍDICA DE MACAU 119
(1999). In the case of Azerbaijan, see The Law of Azerbaijan Republic on Constitutional
Court, art. 34. Complaints. Art. 34.1: “Any person who alleges that his/her rights and
freedoms have been violated by the normative legal act of the Legislative and Executive, act
of municipality and courts may submit complaint to Constitutional Court to resolve matters
provided for by paragraphs 1-3 of part III of Article 130 of the Constitution of Azerbaijan
Republic in order to restore his/her human rights and freedoms”.
46 In South Africa, the Writ of Amparo exists by virtue of Article 167 (6)(a) of the
Constitution and of Article 18 of Rules of the Court. See Rules of Court, GN RI675 (2003),
available at www.constitutionalcourt.org.za/site/thecourt/rulesofthecourt.htm#18. See, e.g.,
Gianluca Gentili, A Comparative Perspective on Direct Access to Constitutional and Supreme Courts in
Africa, Asia, Europe and Latin America: Assessing Advantages for the Italian Constitutional Court, 29
PENN ST. INT'L L. REV. 705, 733 (2011). In the case of Cape Verde, see [AUTHOR] La
Institución del Recurso de Amparo de los Derechos Fundamentales y la Juslusofonia – los
casos de Macau y Cabo Verde [PAGES] (YEAR). In the Angola case, the nature of
Amparo as an “extraordinary appeal of unconstitutionality” is established through the
Organic Law of the Constitutional Court and the Organic Law of Constitutional Procedure.
See JOSÉ MELO ALEXANDRINO, ELEMENTOS DE DIREITO PÚBLICO LUSÓFONO, 204 (2011).
47 See supra note 24.
of fundamental rights in the Asia geo-political context and its own cultural and
juridical different background that would rather deny the accommodation of
Amparo institutes in their legal systems.48
But first, it is adequate to point out the forces behind the increasing
globalization of the concept by concisely providing the geography and history
of Amparo, beginning with its birth in the Mexican and German legal systems.
A close look at the basic structural principles of Amparo allows us to

differentiate two main currents within the general concept. The Latin
American current, which originated in Mexico, extends to Central and South
America as well as Capo Verde.49 The other concept is centred on the German
constitutional complaint and found its way to the Central and Eastern
European States as well as South Korea. 50
The origin of the Amparo is generally considered to be nineteenth

century Mexico.51 It emerged first in 1841 in the state constitution of Yucatan,
and later in the federal constitution by virtue of the Reforming Act of 1847. It
was further established in the 1857 Constitution, and finally solidified in the
1917 Constitution laying down the structural basis of Amparo in its articles 103
and 107.52 Mexico directly or indirectly influenced other Latin American
countries in several phases. Even though much of the Mexican Amparo
solutions were not adopted by the other countries,53 the uncontested fact is
48 See also Hager, supra note 31, at 13; Valadés, supra note 31; Haberle, EL ESTADO
CONSTITUCIONAL, 1, 21 (2003).
49 See supra note 14 for a brief history on the influence of the Mexican Writ of
Amparo in Latin America.

51 Eduardo Ferrer Mac-Gregor, Breves Notas Sobre el Amparo Iberoamericano: Desde El
Derecho Procesal Constitucional Comparado, in [TITLE OF BOOK] 15 (2006), also available at

www.redalyc.org/articulo.oa?id=72001513 (last visited Mar. 2013).
52 The current law is complex and extensive, with approximately 240 articles. It
was regulated for the first time in November 1861.

53 One should be a bit cautious in referring to expansion since the model created
in Mexico was never imported by any country in some of its rather relevant traits, such as
the existence of five clearly different sectors: the habeas corpus look alike, the agrarian or
social one, the Amparo against judicial decisions via a French casssation model, the Amparo
against laws and the administrative Amparo.
that “the Mexican Amparo remains the most commonly referred to proceeding
outside Latin America.”54
The Mexican Amparo is said to be the result of the influence of the

North American system of judicial review of constitutionality of statutes. The
legal concept was transplanted from the United States into a Hispanic
environment influenced by some French law. Thus, Héctor Fiz-Zamudio
refers to the creation of Amparo as being the confluence of the common law
and the continental legal family.55
Going further back in time, Spanish law played a decisive role in

formulating the concept of Amparo. Even if indirectly, Aragon law ex vi the
procesos forales and the Justicia Mayor of the mid-13th century influenced the
Amparo, particularly in its textual formation.56 Besides the use of the Spanish
language to name the concept, for Amparo means “protection” or “help” in
Castilian,57 Spain introduced the colonial Amparo or royal Amparos. Portuguese
ancient laws also influenced the Brazilian institutes of habeas corpus and security
mandate, a modality of Amparo, which can be traced to the institute of security
provided by a mandate established in both the Ordinations of the Kingdom of
Portugal and the Philippines Ordinations.58
If one examines the construct of constitutional complaint, one can

find possible antecedents within the German legal system, specifically with the
German Verfassungbeschwerde. As Jutta Limbach points out, these forms of
constitutional complaint include the Reichkammergericht of the Holy Roman-
German Empire — possibility of presenting a complaint against a Prince that
denied juridical protection— and the Saint Paul Church Constitution in the
mid-19th century— the never enforced possibility of reacting to the violation of
a citizen constitutional right before the Reichgerischt.59 The direct antecedent of
the modern constitutional complaint was the creation in the Bavaria
Constitution of 1919 of a judicial mechanism in the Court of the State dealing
54 See supra note 12, at 77-79. See also Hector Fix-Zamudio, Evolución y Perspectivas
del Derecho de Amparo Mexicano y Su Proyección Supranacional, in ENSAYOS SOBRE EL DERECHO
DE AMPARO 795 (2003).
55 Fix-Zamudio supra note 11, at 425.
56 See supra note 28-29
57 Id.
58 See Cardinal, supra note 24, at 893-4; Marcello Caetano, As Garantias Jurisdicionais
No Direito Comparado de Portugal e do Brasil, in ESTUDOS DE DIREITO ADMINISTRATIVO 342

(1974).
59 Limbach, supra note 5, at 3, 69.
with a violation of a right by any public authority. Some authors also add a
possible Austrian influence via the Beschwerde found in the fundamental law of
the Austro-Hungary Empire Supreme Court from 1867 onwards.60
Before we focus on the Amparo in the Philippine context, it is

necessary to delve further into Asian cases in order to pre-empt the argument
that the Amparo is an inadequate mechanism for the protection of
fundamental rights because Asia has an inherently different geo-political and
cultural background from Latin America and Germany.
In South Korea, constitutional complaints are a constitutional

litigation that was adopted when the Constitutional Court was created. Under
the Constitutional Court Act, any person whose constitutionally guaranteed
fundamental rights have been infringed through the exercise or omission of
governmental powers may petition the said court for relief. If a legislative act,
presidential decree, ordinance or other law directly infringes upon an
individual's fundamental rights, said individual may file a constitutional
complaint against the law itself. Since the Korean Amparo is viewed as a
special and supplemental remedy for fundamental rights, those who want to
file a constitutional complaint must exhaust all prior procedures to remedy the
situation, if any is provided for by law. However, the Court has established
some exceptions to this principle. For instance, if a case contains a significant
constitutional issue, the merit of the case can still be heard, despite the fact that
the petitioner did not exhaust all procedures.61 As to the success of this new
mechanism one can say that currently in Korea, “the proportion of
constitutional complaint cases in comparison to the total number of all cases
has been the highest.”62
60 See supra note 28, at 682.

61 As [AUTHOR] said, “Today, the constitutional complaint plays a role that is very
important in order to guarantee the human rights and freedoms in Korea.” Jeon Hak-Seon, L’application
du Principe de Proportionnalité dans la Justice Constitutionnelle en Corée, 7th World Congress of the
International Association of Constitutional Law (2007), available at
www.enelsyn.gr/papers/w15/Paper%20by%20Prof.%20JEON%20Hak-Seon.pdf (last
visited Mar. 2013). See also, Chee Youn Hwang, Critics on the Constitutional Complaint against the
Ordinary Courts’ Judgments in Terms of Balancing and Proportionality Test in Korean Constitutional
Review, 7th World Congress of the International Association of Constitutional Law (2007),
available at
www.enelsyn.gr/papers/w15/Paper%20by%20Dr.%20Hwang,%20Chee%20Youn.pdf;
Ahn Kyong-Whan, supra note 36.
62 Chee Youn Hwang, supra note 61.
In Taiwan, the role of the Judicial Yuan Court, the highest judicial
organ, in improving the human rights through the Amparo is widely
acknowledged.63 The Constitutional Interpretation Procedure Act of 1993,
establishes:
A petition for an interpretation of the Constitution may be filed under

one of the following circumstances:
(2) Where an individual, a legal person, or a political party, having

exhausted all judicial remedies provided by law, alleges that
her/his/its constitutional rights have been infringed upon and thereby
questions the constitutionality of the law or order applied by the court
of last resort in its final decision.
The judicial activism of the high court has been considered a precious
tool in the advancement of rule of law and the protection of fundamental
rights, gaining widespread public support.64
Besides domestic constitutional and legal orders, Amparo also exists in

international law, namely in the scope of the Inter-American system, i.e., the
1969 American Convention on Human Rights and the Inter-American Court
of Human Rights.65 As it was written:
The American Convention on Human Rights … has played an

important role regarding the consolidation of the Amparo proceeding.
In this sense, Amparo is conceived in the Convention as a ‘right to
judicial protection,’ that is, the right of everyone to have ‘a simple and
prompt recourse, or any other effective recourse, before a competent
court or tribunal for protection (que la ampare) against acts that violate
63 CHANG-FA LO, THE LEGAL CULTURE AND SYSTEM OF TAIWAN 26-27, 50
(2006). See also TOM GINSBURG, JUDICIAL REVIEW IN NEW DEMOCRACIES:

CONSTITUTIONAL COURTS IN ASIAN CASES 123 (2003).
64 See Tsung Fu Chen, The Rule of Law in Taiwan, in THE RULE OF LAW:
PERSPECTIVES FROM THE PACIFIC RIM 110 (2000).

65 See Sergio García Ramírez, La Protección de Derechos y Libertades en el Sistema
Jurisdiccional Interamericano: El Amparo Interamericano, in EL DERECHO DE AMPARO EN EL

MUNDO [PAGES CITED] (Fix-Zamudio & Eduardo Ferrer Mac-Gregor ed., 2006);
Brewer-Carías, supra note 12, at 73; Allan Brewer-Carías, CONSTITUTIONAL PROTECTION
OF HUMAN RIGHTS IN LATIN AMERICA: A COMPARATIVE STUDY OF AMPARO
PROCEEDINGS 163 (2009).
his fundamental rights recognised by the Constitution or laws of the

State or by this Convention. 66
Returning now to the present, a closer look to the basic structural

principles can allow us to detect that one can try to differentiate within the big
Amparo idea, two main currents, one that can be labelled the Latin American
one that exists in central and South America, but also for example in Cape
Verde, and usually expresses itself in Spanish and was originated in Mexico,
and another one that is centred around the German constitutional complaint
and found its way basically to the Central and Eastern European States but
also in, for example, South Korea.
On the other hand, it is obvious that the Amparo remedy strives

mostly in jurisdictions within the continental legal family, also named Roman-
German legal family, and, usually from a common law stand point, the civil law
legal family. The genuine cases of generic Amparo ideas and institutions in
common law legal systems are scarce as well as in the so-called mixed or hybrid
legal systems.
In short, one can assure that the Amparo is gaining ground. It is

present in all continents except maybe for Oceania,67 spreading to different
geopolitical contexts. It is a popular institute— so popular that it provoked
serious crisis in some countries by flooding the competent courts with cases,
but never to a point in which its elimination was an option. On the contrary,
in jurisdictions where the mechanism does not exist, there is a tendency to
establish or, in the case of Macau,68 to formally reinstate the concept in the
legal system.69

67 Although one can possibly assert the existence of an Amparo case, in Western
Samoa, Constitution (1960): “Article 4. Remedies for enforcement of rights. (1) Any person
may apply to the Supreme Court by appropriate proceedings to enforce the rights conferred
under the provisions of this Part. (2) The Supreme Court shall have power to make all such
orders as may be necessary and appropriate to secure to the applicant the enjoyment of any
of the rights conferred under the provisions of this Part.”
68 See, e.g., Paulo Cardinal, The Judicial Guarantees of Fundamental Rights in the Macau
Legal System: A Parcours Under the Focus of Continuity and of Autonomy, in ONE COUNTRY, TWO
SYSTEMS, THREE LEGAL ORDERS: PERSPECTIVES OF EVOLUTION: ESSAYS ON MACAU’S
AUTONOMY AFTER THE RESUMPTION OF SOVEREIGNTY BY CHINA 264 (Cardinal & Oliveira
eds., 2009); Jorge Novais, As Restrições Aos Direitos Fundamentais na Ordem Jurídica de Macau,
paper presented at the Segundas Jornadas de Direito e Cidadania da Assembleia Legislativa Direitos
Fundamentais Consolidação e Perspectivas de Evolução (2008); Jorge Godinho & Paulo Cardinal,
The noble idea of Amparo is alive and expanding.70 It is reforming and

adapting to the surrounding circumstances. It is in no way being sentenced to
death, but carries the light of hope with it especially in jurisdictions where the
rule of law is suffering.
IV. THE GENESIS OF THE PHILIPPINE WRIT OF AMPARO
In the Philippine Constitution there is no establishment of the Writ of

Amparo, nor there was in previous constitutions.
The genesis and history of the Philippine Writ of Amparo (and the
writ of habeas data) is dramatic.71 People were being assassinated. People were
The Macau Court of Final Appeal: The First Decade, forthcoming in HONG KONG’S COURT OF
FINAL APPEAL: THE ANDREW LI COURT 1997-2010 (Ghai & Young eds., 2013). The press
has suggested the creation of the Writ of Amparo. See, e.g., SEVERO PORTELA,
DEMOCRATAS, TEMPERADOS E REALISTAS, HOJE MACAU 13 (2008).
69 For example in Portugal there are many scholars advocating the introduction of
the Amparo and there were formal attempts to introduce it in the Constitution albeit to no
success up to now. In fact, a strong recent movement in Portugal can be seen claiming the
introduction of the Amparo, even if with the necessary adaptations including changes in the
constitutional review mechanisms maxime in the non-abstract or concrete one. See, e.g., Jorge
Novais, Em Defesa do Recurso de Amparo Constitucional, 10 Themis 91 (2005); José
Alexandrino, A Estruturação Do Sistema de Direitos, Liberdades e Garantias na Constituição
Portuguesa, 2 Almedina 487-88 (2006); Alexandrino, supra note 46, at 172.; Paulo Cardinal,
Direitos Desamparados?, in BOLETIM DA ORDEM DOS ADVOGADOS DE PORTUGAL 21, 60
(2002); Jorge Miranda, A Fiscalização da Constitucionalidade: Conceitos e Problemas Gerais, in O
Direito de Amparo em Macau e em Direito Comparado, Special Issue, REVISTA JURÍDICA
DE MACAU 78 (Cardinal ed., 1999); GOMES CANOTILHO, CONSTITUIÇÃO DIRIGENTE E
VINCULAÇÃO DO LEGISLADOR, 181-82 (2001); Carla Amado Gomes, À Espera de Ulisses,
REVISTA DO MINISTÉRIO PÚBLICO 84, 66 (2000); CATARINA SANTOS BOTELHO, A TUTELA
DIRECTA DOS DIREITOS FUNDAMENTAIS 135 (2010); Anabela Leão, A Intimação Para a
Protecção de Direitos, Liberdades e Garantias, in ESTUDOS DE DIREITO PÚBLICO 444 (2006). For
authors who discuss the quasi-Amparo, see CARLOS BLANCO DE MORAIS, JUSTIÇA
CONSTITUCIONAL 989, 1040 (2nd ed., 2005); FERNANDO ALVES CORREIA, DIREITO
CONSTITUCIONAL 22 (2001); RUI MEDEIROS, A DECISÃO DE INCONSTITUCIONALIDADE
352 (1999).
70 Alexandrino, supra note 46 at 203.
71 See Vicente Mendoza, A Note on the Writ of Amparo, 82 PHIL L.J. 1 (2008); Felipe
Gozon Jr. & Orosa, Watching the Watchers: A Look into the Drafting of the Writ of Amparo, 82
PHIL. L.J. 8 (2008); RENE SARMIENTO, TOWARDS MORE JUSTICE AND MORE LIBERTY:
UNDERSTANDING WRIT OF AMPARO AND WRIT OF HABEAS DATA (2008); Adolfo Azcuña,
being abducted. Lives were being jeopardized. One could say that in no other
example, at least in recent times, was the creation of Amparo in a given
jurisdiction attended with such pressure and such amount of dramatic need as
in the case of the Philippines.
To better illustrate the above, we borrow the words of then Chief

Justice of the Supreme Court of the Philippines Reynato Puno:
Recently, the Supreme Court En Banc promulgated the Rule on

the Writ of Amparo. The Philippine version of the Writ of Amparo is
designed to protect the most basic right of a human being, which is
one’s right to life, liberty and security guaranteed by all our
The Philippine Writ of Amparo: A New Remedy for Human Rights, paper presented at the World
Conference on Constitutional Justice, Venice Commission of the Council of Europe
(2009), available at www.venice.coe.int/WCCJ/Papers/PHI_Azcuña_E.pdf; Bryan Tiojanco
& Leandro Aguirre, The Scope, Justifications And Limitations Of Extradecisional Judicial Activism
And Governance In The Philippines, 84 PHIL L.J. (2009); Maria Luisa Isabel Rosales, New
Frontiers in the Application of the Writ of Amparo: Is the Philippines Ready?, 55 ATENEO L.J.
[PAGES CITED](2011); Joan Gamboa, Creative Rule-Making in Response to Deficiencies of Existing
Remedies, 52 UST L.R. 43 (2010); Anna Lorem Ramos, The Writs of Amparo and Habeas Data:
Judicial Approaches to Human Rights Implementation in the Philippines, LAW ASIA J., (2011); Flerida
Ruth Romero, The Writ of Amparo: Judiciary's Sword Unsheathed, available at
www.newsflash.org/2004/02/hl/hl106302.htm; REYNALDO AGRANZAMENDEZ,
QUESTIONS AND ANSWERS IN REMEDIAL LAW: 1997 RULES OF CIVIL PROCEDURE, 1991
REVISED RULE ON SUMMARY PROCEDURE, REVISED KATARUNGANG PAMBARANGAY LAW,
RULE ON THE WRIT OF HABEAS CORPUS, RULE ON THE WRIT OF AMPARO, RULE ON THE
WRIT OF HABEAS DATA, 519 (2008); Javier Colmenares, Initial Analysis On The Philippine
Amparo, CODAL, 2007; Ed Albano, Primer on the Rule on the Writ of Amparo, A.M. NO. 07-9-
12-SC, available at www.batasnatin.com/notes-vault-downloads/111/140-primer-on-the-
writ-of-Amparo.html; Jose Maidas Marquez, The Writ of Amparo and Habeas Data: Seven
Months After, paper delivered at the National Workshop on The Writ of Amparo and Writ
of Habeas Data, NUPL (2008) available at nupl.net/home/?p=121. See also supra note 2;
Remollino, supra note 28; Brewer-Carías, supra note 12, at 79-80; Cardinal, supra note 24;
infra note 74; Orosa, infra note 76. See also opinions and data found in various blogs and
newspaper articles Rodel Rodis, Writ of Amparo, available at
pinoywired.com/2009/05/27/writ-of-Amparo; Claire Delfin, Is the Writ of Amparo Effective?,
available at pinoypress.net/2009/04/16/just-how-effective-is-the-writ-of-Amparo; Bruce
van Voorhis, The Hope of 'Amparo' in the Philippines, available
at www.upiasia.com/Human_Rights/2007/10/24/commentary_the_hope_of_Amparo_in
_the_philippines/2364; Christopher Diaz Bonoan, The Writ Of Amparo: RP Style, available at
http://chrisbonoan.blogspot.com/2009/05/writ-of-Amparo.html. See also Raul
Pangalangan, Marcos-Arroyo: Déjà vu on Human Rights, unpublished (2010). It speaks of
Amparo as “an effective and inexpensive instrument for the protection of constitutional
rights”.
Constitutions starting with the 1898 Declaration of Philippine

Independence and the Universal Declaration of Human Rights of
1948. We are studying further how to strengthen the role of the
judiciary as the last bulwark of defense against violation of the
constitutional rights of our people especially their right to life and
liberty by the use of habeas data. It is our fervent hope that with the
help of the writ of habeas corpus, the Writ of Amparo and the writ of
habeas data, we can finally bring to a close the problem of extralegal
killings and enforced disappearances in our country, spectral remains
of the Martial Law regime.72 (Emphasis omitted)
Again, as mere external observers, we will have to resort to the words

written by others that better illuminate the chaotic and undignified status of
human rights, prevalent at the time in the Philippines, that made the Supreme
Court act,73 in the face of the astounding silence of the legislative and executive
powers,74 on this important issue.
The problem of extrajudicial killings and enforced disappearances

is widely recognized to have had been quite rampant in the height of
the Martial Law regime under former President Ferdinand Marcos in
the 1970s. But two decades after his regime was toppled by People
Power in February 1986, the Philippines remained in the watch list of
many international organizations including the United Nations.
Domestic organizations, especially those coming from the left of the
political spectrum and those representing minority groups in the
House of Representatives (e.g. Anakpawis, Bayan Muna and Gabriela,
etc.) and international organizations have issued reports and
72 Reynato Puno, The Writ of Habeas Data, Speech delivered at the UNESCO
Policy Forum and Organizational Meeting of the Information for all Program (IFAP),
Philippine National Committee (Nov. 19, 2007), available at jlp-law.com/blog/writ-of-
habeas-data-by-chief-justice-reynato-puno/
73 See Supreme Court, The Rationale for the Writ of Amparo, 43.
74 “The apparent inaction and silence of the Executive and Legislature, the
besieged legitimacy of the Executive, and the political deadlocks stalling the legislative
machinery, were all plausible independent variables that helped create an atmosphere where
the proverbial referee had to take the ring and call for a recalibration of the rules of the
game. The referee saw that the hits were below the belt, so to speak, and a call was made to
change the rules.” See Gozon & Orosa, supra note 72, at 10. “The problems of the
Executive arising out of questions concerning its legitimacy, and the political deadlocks
stalling the legislative machinery191 no immediate solutions were forthcoming, the Court
decided that it was no longer enough for it to indulge in its traditionally passive role and
that a pro-active stance was necessary.” See Tiojanco & Aguirre, supra note 72, at 103. See
also Ramos, supra note 72, at 88.
statements detailing the problems in the Philippines. Amnesty

International issued a report in August 2006 called ‘Philippines:
Political Killings, Human Rights and the Peace Process’ detailing the
linkages between the problems that beset the country and spoilers of
the peace processes.75
Another author affirms:
Cases of extra judicial killings, enforced disappearances and other

human rights violations in the Philippines have not only been marked
by the heinousness of the crime but also by the impunity with which
they were committed. Many of the extra judicial killings and enforced
disappearances were committed openly, in public places, near police
stations or military camps but no serious investigation of and
prosecution for these crimes have been conducted by the government.
The various Habeas Corpus petitions filed by human rights lawyers to
stem enforced disappearances remain unsuccessful as the respondent-
state security forces merely deny custody of the victims resulting in
the dismissal of these petitions. Attempts by human rights groups to
gather and preserve evidence are met with very little cooperation from
government investigating agencies making it exceedingly difficult for
human rights cases to prosper in court. Worse, many human rights
advocates and lawyers have been the target of attacks themselves
further curtailing the victims’ access to the judicial processes. This is
the context under which the Supreme Court called for a consultative
summit on extra judicial killings and enforced disappearance on July
16-17, 2007.76
The first author quoted then proceeds by resorting to a famous 2007

report by Special Rapporteur Philip Alston of the United Nations Human
Rights Council (“UNHCR”):
In his report to the UNHRC, Mr. Alston noted how the killings
have eliminated civil society leaders, human rights defenders, trade
unionists, land reform advocates and others who are categorized to be
75 Theoben Orosa, The Role of Judiciaries in Promoting Human Rights: The Promulgation
of the Writ of Amparo and the Writ of Habeas Data and the Role of the Philippine Supreme Court in
Human Rights Protection against Extrajudicial Killings and Enforced Disappearance, paper delivered
at the 1st ICIRD (International Conference on International Relations and Human Rights)
Bangkok (May 2011), available at
www.icird.org/files/Papers/ICIRD2011_Theoben%20Jerdan%20C.%20Orosa.pdf.
76 Javier Colmenares, The Writ of Amparo as Mechanism to Curb Impunity: The Case of
the Philippines, 1 (2009).

in the left of the political spectrum and numbers, depending on who

one talks to, ranges from 100 to 800 over a six year period (2001-
2007). Reported killings of journalists were also noted with an increase
from 2-3 in 1986-2002, to somewhere between 7-10 from 2003 to
2006.77
The paper we are now following presents the problem of the

extrajudicial killings, its evolution, attempts to remedy it (such as the criticized
Melo Commission), and the designation by the Supreme Court of certain
courts to be political killing courts.78
In light of the aforementioned disastrous situation, the Supreme Court

called for an unprecedented conference entitled National Consultative Summit on
Extrajudicial Killings and Enforced Disappearances: Searching for Solutions. The summit
was “unparalleled in its impact, it brought together members from the
rightmost to the leftmost together in a clinical and dispassionate setting before
Supreme Court justices to try and work some of the issues out."79 This
summit heralded a new stage in several ways. It presented itself as the
immediate source or precedent act of the approval of the rules establishing the
Writ of Amparo80 as well as the writ of habeas data, signalling a strong move by
the judiciary towards strong regulatory activism, particularly with respect to
environmental writs,81 and blurred the lines that established the borders of
77 See infra note 79.

78 Philip Alston, Report of the Special Rapporteur on Extrajudicial Summary or
Arbitrary Executions (Feb. 2007), available at
www.karapatan.org/files/English_Alston_Report_Mission_to_the_Philippines_HRC8.pdf;
Supreme Court, The Rationale for the Writ of Amparo 41 (2007). See also, Al Parreño, The Asia
Foundation, Report on Philippine Extrajudicial Killings 2001-August 2010 (2011).
79 Id.
80 Supreme Court Annual Report 4, 10 (2007) available at
sc.judiciary.gov.ph/publications/summit/summation2.pdf. Consider the recommendation
to “undertake a serious study of the writ of Amparo to see how it can be availed of, as
protective and remedial tool, for the greater protection of the constitutional rights of the
victims” and “One fruit of the Summit is the passage of the Rule on the Writ on Amparo,
the most powerful weapon yet in the judicial arsenal to protect the constitutional rights to
life, liberty, and security of our people.”
81 “The Supreme Court in its exercise of judicial activism and governance has
deemed too restrictive the confines of an actual case and controversy, and has ventured
outside the canals of decision-making and into the yet uncharted oceans of rulemaking and
convening.” See Tiongco & Aguirre, supra note 72, at 152. Besides the Amparo and the
habeas data, one might add the Writ of Kalikasan, which reinforces human rights judicial
protection since its approval on Apr. 23, 2010. See Rules of Procedure for Environmental
each of the three powers within the system of separation of powers: judicial,
legislative, and executive.82
It is undeniable that, prima facie, one could question the legitimacy of a

court creating rules that seem to be substantive and not merely procedural,
even if apparently based on a constitutional norm of competence. Comparative
law provides very little examples of such rule-creation. This will be further
examined in the next chapter.
Turning back to the genesis of the Philippine Amparo, it is of

relevance to again resort to words, compelling and at times embodying a
certain poetic idea of justice, of the protagonists— in this case, the former
Chief Justice Puno:
I have been asked the reason for blowing the trumpet call for
this Summit on Extrajudicial Killings and Forced Disappearances. In
the beginning, the question did not bother me and with the patience
of Job, I tried my level best to explain its rationale. It seems, however,
that the question has a long life and it [sic] kept on hounding me
whenever I meet people. It dawned on me that the persistence of the
question has its salience for it shows at the very least the surprise with
which people greet the Summit. If you scratch the surface further,
Cases, A.M. No. 09-6-8-SC (2010); Roderick Salazar, Understanding the Mechanics and
Defense Strategies for Rules of Procedure for Environmental Cases, available at
www.chamberofmines.com.ph/b/download/Mining%20Philippines%202011%20Presentat
ion/Session%206/21%20-%20Roderick%20Salazar.pdf; Francis Tolentino, An
Environmental Writ: The Philippines Avatar, 35 IBP JOURNAL 117 (2010); Risa Halagueña,
Developments in Philippine: Access to Environmental Justice, available at
www.effectius.com/yahoo_site_admin/assets/docs/Risa_Halague%C3%B1a_Newsletter1
1.5424002.pdf (last visited Mar. 2013). Halagueña stated: “The Philippine judiciary is
currently riding a wave of change in providing access to justice. It is but apt that it has been
actively pursuing this transformation in the area of environmental justice.” The Writ of
Kalikasan finds its basis in the 1987 Philippine Constitution’s Declaration of Principles and
State Policies: ““The State shall protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony of nature.” See CONST. art.
II, § 16.
82 Jay Rempillo, Rule on the Writ of Amparo Takes Effect (Oct. 2007), available at
sc.judiciary.gov.ph/publications/benchmark/2007/10/100701.php. Rempillo wrote: “Chief

Justice Puno, in his opening remarks… described the writ of Amparo as the Judiciary’s
humble offering to the altar of human rights in the Philippines, saying that critics ‘can
criticize the Judiciary with real and imagined complaints, but they cannot charge it with
inertness, with paralysis and with amnesia in protecting the constitutional rights of our
people’.”
you will discover that a large slice of our people appear to have their
concern over these killings and disappearances already interred by
time. Their sense of shock has been anasthesized [sic] by the
escalation of the killings and disappearances despite the size of the
space given to them by the print media. If there are compelling
reasons for this Summit, one of them is to prevent losing eye contact
with these killings and disappearances, revive our righteous
indignation, and spur our united search for the elusive solution to this
pestering problem. At this moment, we may not know how to solve
this problem, but we do know that the sure way to lose its solution is
to be immobilized by doubt, to be terrorized by the thought that any
effort to lick the problem will no more than amount as an effort to
square the circle. This Summit is envisioned to thus provide a broad
lens, synoptic perspective on our problem of extrajudicial killings and
forced disappearances. We have summoned the most authoritative
scholars representing the rainbow of interests of the different
stakeholders of the justice system, including international experts, all
of whom, we hope, can lead us in this journey, for certainly we do not
expect this journey to be an easy one, a no brain, follow the dot
journey. By calling this Summit, we are affirming our belief in human
rights not only in the abstract; we are affirming that before the
universal altar of human rights there can be no atheism, nor
agnosticism on our part.83
This speech, delivered at the summit in mid-July 2007, can thus be

regarded as the anteroom of the main chamber of a building that was being
built. In fact, not more than two months later,84 the Supreme Court adopted
A.M. No. 07-9-12-SC, setting forth the rule on the Writ of Amparo,85 to take
effect on October 24, 2007.
A new era thus began with respect to human rights in the Philippines.
“The end product blossomed into a new set of rules that could and were
83 Reynato Puno, View from the Mountaintop, Keynote Speech, National

Consultative Summit on Extrajudicial Killings and Enforced Disappearances: Searching for
Solutions, Manila Hotel, Philippines, (July 17, 2007), available at
sc.judiciary.gov.ph/publications/summit/EJK%20Summit%20CJRSP%20Keynote%20Spe
ech.pdf.
84 Approval date of the original rule is on Sept. 25, 2007. The rule was later
amended on Oct. 16 of the same year.

85 The writ of habeas data followed soon after, on January 22, 2008, A.M. No. 08-
1-16-SC. Full text available at

www.supremecourt.gov.ph/rulesofcourt/2008/jan/A.M.No.08-1-16-SC.pdf.
designed to change the game,”86 and thus the writ became “a mighty sword
unsheathed by the Supreme Court to meet head-on the evils of extralegal
killings and disappearances.”87
In the interim, in September 16, 2007, Chief Justice Reynato Puno, in

a Message to the National Union of People’s Lawyers (“NUPL”), announced
the impending approval of the Amparo writ, “The SC Committee on Revision
of the Rules is drafting the first ever rule that will implement the Writ of
Amparo in our country.”
After explaining the pragmatic and immediate genesis of the creation

of the Writ of Amparo in the Philippines, it is now important to trace back its
academic genesis in the country’s doctrines — without forgetting at this point
the role of comparative law in this process.88
A first doctrinarian piece that is usually presented as the starting point

of this creation process is the paper by former Supreme Court Associate
Justice Adolfo S. Azcuña: The Writ of Amparo: A Remedy to Enforce Fundamental
Rights.89 In that short but dense piece, not only is a novel concept presented
and comparative law data produced, but, very interestingly, it shows that
constitutional lawyers around the world believe that it is necessary to establish
procedural devices to protect human rights, and the Philippine Constitution
actually provides for the basis of the Writ of Amparo. This is seen in Article
VIII, Section 5(5) that empowers the Supreme Court to promulgate “rules
concerning the protection and enforcement of constitutional rights.”90
In a paper written by yet another former Supreme Court Chief Justice,

the people’s right to access the courts was examined.91 The Writ of Amparo
therein was characterized as an instrument of the judicial system that serves as
a refuge for the rights of Filipinos. One does not know, however, what impact
86 See supra notes 83 & 85.

87 Sarmiento, supra note 72, at 6.
88 Id, at 15. See also Supreme Court, supra note 74; Javier Colmenares, The Writ of
Amparo: A Comparative Review, (Nov. 15 2007), available at

www.pinoypress.net/2007/11/15/the-write-of-Amparo-a-comparative-review/(last visited
Mar. 2013); Bernas, infra note 93.
89 Azcuña, supra note 72.
90 CONST. art. VIII, § 5(5).
91 Marcelo Fernan, The Judiciary and the Challenges of the Times, 34 ATENEO L.J. 1
(1990).
this piece had on prevailing doctrine and on political discourse regarding the
establishment of Amparo in the legal system.
The genealogy of the Amparo in the Philippines can and, we assume,

should also be traced back to other forums (such as bar examinations), which
may somehow be surprising and humorous. In the words of the
constitutionalist Father Joaquin Bernas: “[s]everal bar examinations ago the
first item in the Bar Examination Questions for Political Law was: What is a
Writ of Amparo? There was a lot of head scratching among the examinees
upon seeing the question. Almost nobody knew anything about the animal or
had ever heard about it.”92 The former Chief Justice of the Supreme Court
Renato Corona has this to say:
The very first question of the 1991 Bar Examinations

dumbfounded the whole legal community: “What is a Constitutional
Writ of Amparo and what is the basis for such a remedy under the
Constitution?”
For weeks thereafter, members of the Bar were talking of nothing

else but Amparo and what “she” had done to tatter further the
examinees’ already frayed nerves, and what they had in the first place
done to Amparo to deserve such an excruciating interrogation.93
After these initial confusions about the “animal” and the “lady” in the
1991 examinations, one can move a step further, again by engaging the help of
others:
Sixteen long years later, the legal community was again abuzz
with that enigmatic Amparo, this time because the Supreme Court en
banc, on October 16, 2007, had issued a Resolution establishing the
Rule on the Writ of Amparo. All of a sudden, it became the
fashionable and favored intellectual phrase to drop in téte-a-tétes
among lawyers. The mind behind that inscrutable question, and the
spirit behind that noble [r]ule, clearly belongs to a man way ahead of
his time in a profession whose cornerstone is dogma: Justice Adolfo
Azcuña.94
92 Joaquin Bernas, Sounding Board: The Mexican Amparo, PHIL. DAILY INQUIRER,
Sept. 3, 2007, available at opinion.inquirer.net/inquireropinion/columns/view/20070903-

86232/The-Mexican-Amparo.
93 Renato Corona, A Tribute to Justice Adolfo S. Azcuña, BENCHMARK ONLINE Feb.
2009, available at sc.judiciary.gov.ph/publications/benchmark/2009/02/020922.php.

94 Id.
But now the Writ of Amparo has become a front-page subject

and might be an important item in the Bar Examinations after this
year. Chief Justice Reynato Puno has shown himself to be passionately
committed to the protection of human rights. In his effort to find
ways of strengthening the protection, he has started exploring the
potential of the Writ of Amparo to fill the gaps in the mantle of
protection offered by current law and jurisprudence. For this purpose
I understand that he has commissioned my classmate and friend
Justice Dolf Azcuna to study what the Supreme Court can do about
making a Writ of Amparo effective in the Philippines. Fittingly so,
since it is no secret that it was Justice Azcuna as Bar Examiner several
years ago who surprised the examinees with the question about the
Writ of Amparo.95
Besides the above, one should also resort to other data and regarding
more formal constitutional forums. Rene Sarmiento summarizes the genesis of
the Amparo in the Philippine legal context in this manner:
The idea of Amparo was first introduced to the Philippines by

Delegate Adolfo Azcuña in the 1971 Constitutional Convention and
in the 1986 Constitutional Commission. Despite his best efforts, he
did not succeed in convincing the two bodies to include in our
fundamental law an explicit reference to the Writ of Amparo.
The allure of Amparo as a judicial remedy was irresistible so that

captivated the fine legal mind of international law professor Adolfo S.
Azcuña. Twice a framer of the Philippine Constitution, first in 1971
and the second in 1986, he introduced in the Constitutional
Convention of 1971 and the Constitutional Commission of 1986, the
remedy of Amparo. In both historic assemblies, Prof. Adolfo S.
Azcuña, planted the seeds of Amparo. It was a blessing in disguise, a
providential synchronicity, that when Prof. Adolfo S. Azcuña became
Associate Justice of the Supreme Court and Senior Justice Reynato S.
Puno became the Chief Justice, two democrats and libertarians,
together with their supportive colleagues, now collectively known as
the Puno Court, approved the Rule on the Writ of Amparo.96
Justice Azcuna said that he had first proposed the adoption of the
Writ of Amparo when he was a delegate to the 1971 Constitutional

96 Sarmiento, supra note 72, at 5, 16-17.
Convention and later in 1986 when he was among the delegates to the
Constitutional Commission. “For 20 years, it (referring to the Writ of
Amparo) was in hibernation because it was felt that it was not needed
since we had remedies to protect human rights such as certiorari,
prohibition, mandamus, and injunction,” he said.97
From the above, one can detect a clear communis opinion regarding the
material authorship of the Amparo in the Philippines being attributable to
Justice Adolfo Azcuña.98 And, along with the driving force of then Chief
Justice Reynato Puno and support of the Supreme Court en banc, the Amparo
found its way to a much discredited legal system.
It is possible still to very briefly bring in here a few more precedent

pieces of the historical puzzle. In fact, Marcelo Fernan, at that time Chief
Justice, stated in a speech that the Supreme Court would issue rules for the
Writ of Amparo; at the International Labor Organization, then President
Corazon Aquino mentioned the Amparo as a mechanism to protect human
rights in the country.99 Rene V. Sarmiento, in a paper entitled Rights, Obligations
and Remedies: International and Domestic Experiences presented in 2001, stated that
it would be a boon for democracy and good governance should the Supreme
Court, consistent with its libertarian tradition and judicial creativity, promulgate
rules on “ley de Amparo.”100
V. CONTEXTUALIZATION ISSUES OR INTERROGATIONS
Having gone through the historical road of the Philippine Amparo and
before proceeding to an overview of its legal regime, it is of relevance to
address two issues proper to legal theory. The first, easy to answer, is related
to geopolitical and legal family contexts. The second, far more difficult to deal
with, is the question of constitutional organic competence to promulgate the
rules, i.e., to analyze if the Supreme Court acted within its competence or if its

98 That seems to be the conclusion in face of the evidence produced, even if
taking into consideration the possible use, here and there, of perhaps a laudatory overtone.
Hence, one can conclude that Azcuña is the "father of Writ of Amparo”. See Florangel
Rosario Braid, Justice Azcuña; Prospects for Peace, MANILA BULLETIN, Feb. 21, 2009, available at
mb.com.ph/node/196825.
99 Id.
100 Id.
act is ultra vires, surpassing its competence and thus invading fields reserved by
law to other governmental departments.
As for the first issue, we deal with two sub-issues of context: the Asian
connection, and the fact that the Philippines is not a member of the Romano-
Germanic legal family.
As we have already emphasized,101 the idea of Amparo has spread to

parts of Asia despite the argument of sceptics that such mechanism of
protection is unfit for its social and cultural background. And we do have the
already aforementioned cases of South Korea, Taiwan, and, formerly Macau,
attesting to the fact that Asia is in no way pre-inoculated against the “virus” of
Amparo.
As to the second issue, it must be remembered that the berth and

focal points of irradiation of the Amparo are located within clear-cut legal
systems belonging to the continental legal family, while the Philippines is a
mixed legal system,102 such as Scotland or South Africa.103 In spite of this, we
do have at least one case of a mixed legal system consecrating the Amparo idea
in South Africa. This is aside from the above-mentioned possibilities within
common law legal systems (e.g., Nepal, India, or Samoa).
It might be said that the procedural formats of the mechanism104 and

its links with other judicial institutions adjust better to a civil law legal system,
but that does not prevent other legal systems from obtaining the same results,
more so now in a globalized world. At the end of the day, what really matters
is the embracement of the rule of law, the placement of fundamental rights as
101 See supra Part II.

102 See RENÉ DAVID & CAMILLE JAUFFRET-SPINOSI, LOS GRANDES SISTEMAS
JURÍDICOS CONTEMPORÁNEOS, 53 (Sánchez Cordero ed., 11th ed. 2010).
103 On mixed legal systems, its concept, intersections and classifications, see
Jacques du Plessis, Comparative Law and the Study of Mixed Legal Systems, in THE OXFORD
HANDBOOK OF COMPARATIVE LAW 478 (Reimann & Zimmermann eds., 2006).
104 Not forgetting that common law, especially from the United States to Mexico,
did probably contributed to the creation of the Amparo, mostly by the institute of the writ
– although, as already seen, the Amparo is nor reducible to a mere writ, “The Amparo
proceeding is a Latin American extraordinary judicial remedy specifically conceived for the
protection of constitutional rights… it has always been configured as a whole judicial
proceeding that normally concludes with a judicial order or writ of ‘protection’. That is
why, in Latin America, Amparo is not merely a writ or a judicial protective order but a
whole judicial proceeding” See supra note 12, at 73-74.
effective priority, and the principle of constitutionality as a reality, among other

things.
The Philippine legal system, neither common law nor civil law, will not
by that characteristic alone reject the transplant. It may have some degree of
difficulty in adapting to these rather specific and technical issues105—after all, it
is a novel legal concept in the Philippines106—but that surely does not impair,
per se, the successful establishment and implementation of the Amparo remedy.
Turning now to the second contextualization problem, as already said

above, it is undeniable that, prima facie, and without any intention of
pronouncing non-academic judgment, one could immediately question the
legitimacy or the appropriateness of a court creating rules that are substantive
and not merely procedural (even if apparently based on a constitutional norm
of competence) such as those respecting the Amparo writ, vis-à-vis the principle
of separation of powers. It is true that the Supreme Court ex vi the Rules states
that it does not diminish, increase, or modify substantive rights recognized and
protected by the Constitution, but this is merely a declaratory statement
pursuant to what is established in the Constitution, lacking in itself any
substantive content.107
105 Something that must be seen as natural and understandable, and in fact it is
assumed: “Its Committee on Revision of the Rules of Court agreed that the Writ of
Amparo should not be as comprehensive and all-encompassing as the ones found in some
American countries, especially Mexico. These nations are understandably more advanced in
their laws as well as in their procedures with respect to the scope of this extraordinary
writ”, Supreme Court, Annotation to the Writ of Amparo, 2-3. For example, in the Macau case,
the situation was afflicted for years with far more regulatory deficit, with solely one article
with just two numbers (short) establishing and regulating two different types of Amparo!
106 The Asia Foundation, Strengthening Human Rights in the Philippines Program
Quarterly Report (January 1, 2008 — March 31, 2008) 2 available at

pdf.usaid.gov/pdf_docs/PDACL540.pdf.
107 A.M. No. 09-6-8-SC, Rules of Procedure for Environmental Cases 49-50, available at
sc.judiciary.gov.ph/Environmental_Rationale.pdf. One can add that some years later, the

Supreme Court took the opportunity to reemphasize, “The Constitution bestows upon the
Supreme Court of the Philippines a peculiar form of authority. Specifically, the Court can
enact rules to enforce constitutional rights, the power of which maybe typically lodged in
the legislative bodies or branches of other jurisdictions.”
We also acknowledge that, after some initial raised eyebrows, there is

now in place a common doctrinarian view affirming the constitutionality of the
Supreme Court’s Writ of Amparo rules.108
Perhaps one can be tempted, also in prima facie mode, to say that it was
a sort of minor wrong to produce a great(er) good (right). That may indeed be
so, but one can never be too cautious in upholding the rule-of-law principle,
or, one might say, in upholding the rule of the Constitution. The ground to
produce such creative rules must be reasonably and adequately sound, even if
not totally crystal clear, and must be proportionally used. We will get back to
the issue later and address the issue and the peculiarity of powers
constitutionally allocated to the Supreme Court.
We already know that no other branch of the political system decided

to do anything in terms of protective and effective creation of norms regarding
the calamity and the absolute indignity of the extra-judicial killings for decades.
This is an important fact, and a fact well substantiated as seen here, albeit in a
summary fashion. The utter disapproval to such hideous cases is never at stake,
one must add.
Let us start with the beginning, that is to say, the Constitution:
Judicial power includes the duty of the courts of justice to

settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the
Government.109 (Emphasis supplied)
The Supreme Court shall have the following powers: . . . (5)

Promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice, and procedure in all courts,
(…). Such rules shall provide a simplified and inexpensive procedure
for the speedy disposition of cases, shall be uniform for all courts of
108 “When the Rule on the Writ of Amparo took effect last October 24, 2007,
quick opposition emerged when “some have decried that the Supreme Court has become
an ‘activist court,’ contrary to its traditional mandate of ‘passivity.’ This objection, however,
was quickly muted because of the majority consensus that the current rule to protect the
right of the people to life, liberty and security, in place at that time, was viewed as
inadequate.” See Tolentino, supra note 82, at 125.
109 CONST. art. VIII, §1.
the same grade, and shall not diminish, increase, or modify

substantive rights.110 (Emphasis supplied)
From the above constitutional normative narrative, one can

immediately formulate some important conclusions: (1) the courts have a
constitutional duty to provide justice to all by protecting constitutional rights
and settling disputes involving fundamental rights; and, (2) the Supreme Court
is endowed with a judicial rule-making function, meaning it has normative
power,111 albeit in limited areas, that might be somehow viewed as traditional112
in certain legal systems with common-law roots.113
This normative function bestowed upon the Supreme Court,

considered auxiliary to its broad judicial power,114 meant that the powers of the
Supreme Court were strengthened in the 1987 Constitution. Even more so
because, as Bernas underlines, both the 1935 and the 1973 Constitutions
provided that rules promulgated by the Supreme Court may be repealed, altered,
or supplemented by the legislature and, no similar provision appears in the 1987
Constitution.115 However, he immediately asks, “Are rules of Court beyond the
reach of Congress?”116 providing a history of the specific constitutional process
and concluding that Congress may act just as in the previous Constitutions.117
110 CONST. art. VIII, §5.

111 See JOAQUIN BERNAS, THE 1987 CONSTITUTION OF THE PHILIPPINES: A
COMMENTARY 969 (2003 ed.); HECTOR DE LEON, PHILIPPINE CONSTITUTIONAL LAW:
PRINCIPLES AND CASES 578 (2004 ed.); HECTOR DE LEON, TEXTBOOK ON THE PHILIPPINE
CONSTITUTION 256 (2005 ed.); ROLANDO SUAREZ, PRINCIPLES, COMMENTS AND CASES IN
CONSTITUTIONAL LAW I 258 (1999); Juan Paolo Fajardo, The Judicial Rule-Making Function: a
Non-Interpretative Perspective of the Role of the Judiciary, 83 PHIL L.J. 749 (2009); Susan Rose-
Ackerman, Diane Desierto, & Natalia Volosin, Hyper-Presidentialism: Separation of Powers
without Checks and Balances in Argentina and the Philippines, 29 BERKELEY J. INT'L L. 246, 321
(2011); Diane Desierto, A Universalist History of the 1987 Philippine Constitution (II) in
HISTORIA CONSTITUCIONAL 427 (2010). See also Sarmiento; Gamboa, supra note 66.
112 Bernas, supra note 111. One should point the traditional adjective only to some
areas, such as administrative supervision of the courts.

113 Rose-Ackerman, et. al., supra note 111. They wrote: “The 1987 Constitution
also gives the Supreme Court the completely new authority to promulgate rules
“concerning the protection and enforcement of constitutional rights.”
114 Bernas, supra note 111.
115 “A formulation unique to the 1987 Constitution, nowhere found in the rule-
making power of the Court as expressed in the 1973 Constitution and the 1935
Constitution.” Bernas, supra note 111 at 972; Desierto, supra note 111 at 435.
116 Bernas, supra note 111 at 969,
117 De Leon, supra note 111 at 258, 592. “Congress retains the power to repeal,
alter or amend such rules of court promulgated by the Supreme Court. While it is the
One imagines that the issue at stake might be more of an emblematic

issue rather than one that deals with a denial of legislative power by the
Congress or any consecration of a system instating a set of reserved normative
powers allocated to the Supreme Court, and, hence, subtracted from any other
organ.
Concentrating now on the rule-making power regarding fundamental

rights, one can recall that “Philippine Supreme Court Chief Justice Puno has
publicly declared that the framers of the 1987 Constitution purposely
expanded the Court’s rule-making power in view of the fundamental
importance of protecting individuals’ constitutionally-guaranteed rights.”118
One must again resort to words pronounced by actors in this process,

in this case, former Chief Justice Puno:
I respectfully submit further that the framers of the 1987

Constitution were gifted with a foresight that allowed them to see that
the dark forces of human rights violators would revisit our country
and wreak havoc on the rights of our people. With this all-seeing eye,
they embedded in our 1987 Constitution a new power and vested it
on our Supreme Court— the power to promulgate rules to protect the
constitutional rights of our people. This is a radical departure from
our 1935 and 1972 Constitutions, for the power to promulgate rules
or laws to protect the constitutional rights of our people is essentially
a legislative power, and yet it was given to the judiciary, more
specifically to the Supreme Court. If this is disconcerting to foreign
constitutional experts who embrace the tenet that separation of
powers is the cornerstone of democracy, it is not so to Filipinos who
survived the authoritarian years, 1971 to 1986. Those were the winter
years of human rights in the Philippines. They taught us the lesson
that in the fight for human rights, it is the judiciary that is our last
bulwark of defense; hence, the people entrusted to the Supreme Court
this right to promulgate rules protecting their constitutional rights.119
inherent power of the Supreme Court to promulgate its rules of procedure, it is equally the
inherent power of Congress to legislate in all matters not withheld from it expressly or by
clear implication by the Constitution…” De Leon also references a Supreme Court ruling
that states: “[t]he 1987 Constitution took away the power of Congress to repeal, alter or
supplement rules concerning pleading, practice and procedure.”
119 Reynato Puno, speech delivered at Silliman University, Dumaguete City (Aug
25, 2007). See also Desierto, supra note 111 at 435-36; Albano, supra note 72, at 15.
It is important to underline that the interpretation of the Supreme

Court’s expanded rule-making power under the provisions of the 1987
Constitution appears to have been adopted outside of specific jurisprudential
pronouncements.120 As affirmed by Bernas, the “Constitution has one open-ended
provision which, in tandem with the Bill of Rights and the Covenant on Civil
and Political Rights, can accommodate expansion. The provision says that the
Supreme Court shall promulgate rules concerning the protection and
enforcement of constitutional rights.”121
Fallible as it may be, one can resort to historical and memory data to
further understand the rationale of this normative competence on fundamental
rights in general, and on the Amparo in particular.
First one can go back to the Supreme Court’s own annotation on the
Writ of Amparo:
The 1987 Constitution enhanced the protection of human rights

by giving the Supreme Court the power to “[p]romulgate rules
concerning the protection and enforcement of constitutional
rights…” This rule-making power unique to the present Constitution
is the result of our experience under the dark years of the martial law
regime. Heretofore, the protection of constitutional rights was
principally lodged with Congress through the enactment of laws and
their implementing rules and regulation. The 1987 Constitution,
however, gave the Supreme Court the additional power to promulgate
rules to protect and enforce rights guaranteed by the fundamental law
of the land.122
And, more specifically related to the Amparo, one can indeed find
some curious references. In fact, one author adds:
120 Desierto, supra note 111 at 436. “There is no case, to date, that interprets the
Constitutional intent behind the expansion of the Court’s rulemaking power under the 1987
Constitution.”
121 See supra note 93. Bernas states: “This is the seed that the Chief Justice hopes
to nurture into a Philippine recurso de Amparo that is fast, simple and efficacious”
122 See supra note 106, at 2. See also Desierto, supra note 111 at 437; Gozon &
Orosa, supra note 72, at 14. As [AUTHOR] writes, “Significantly, the annotation does not
refer to any portion of the Record of the 1986 Constitutional Commission that explains the
expansion of the Court’s rule-making power.”
In the 1986 Constitutional Commission, the Committee on

Judiciary headed by former Chief Justice Roberto Concepcion
explained that the Writ of Amparo is deemed included in the
provision that empowers the Supreme Court to “[p]romulgate rules
concerning the protection and enforcement of constitutional
rights…” and “[T]he Committee on the Judiciary of the Constitutional
Commission of 1986 . . . without objection from the committee
members, was unanimous in its position that the provision in the
Article of the Judiciary . . . included the Writ of Amparo.123
Naturally, one is dealing with a constitutional question involving

several issues, all of great relevance, such as the separation of powers; the
nature, scope, and boundaries of given rule-making powers; and the
effectiveness of fundamental rights.
The principle of separation of powers lies in the heart of any true

democratic system. This is dogma, and it is well known. No further words or
references — be it with respect to actual, historical, juridical, or political
philosophy— are necessary here.
One must also add a truism— that the doctrine of separation of

powers in the modern State is no longer viewed, consecrated, and practiced in
a hermetical mode. On the contrary, more and more space is granted to the
principles of institutional interdependence between the organs of State, along
the separation of powers. What is at stake, in accordance with modern
constitutional doctrine, is no longer just the division of the sovereign power
(that rests in the People), but also the separation of the functions of the State.
Among such functions are the ordinance of the distribution among the several
sovereign bodies and the establishment of checks and balances involving plural
bodies in the establishment and guarantee of fundamental rights. This leads to
the transformation of the classical formulations of the principle of separation
of powers, which conventionally seeks to prevent abuse of power resulting
from the concentration of powers and functions in a sole organ or person.124
123 Sarmiento, supra note 72, Of particular note is footnote 7 on page 13, with
respect to page 5, which reads: “Author’s personal recollection, 1986 Constitutional

Commission.”
124 See GOMES CANOTILHO & VITAL MOREIRA, CONSTITUIÇÃO DA REPÚBLICA
PORTUGUESA ANOTADA 44-45 (2007 ed.).

There is no longer a pure separation of powers,125 with the exception of the

primary and traditional judicial function of rendering justice with respect to
specific cases brought to court.
The principle of effectiveness of fundamental rights126 is also

undoubtedly a cornerstone of the modern constitutional state, which operates
under the Rule of Law. One has to establish rights, for example, by virtue of
the adoption of the Bill of Rights, adherence to human rights treaties, and the
enactment of legislation. However, the State must also create mechanisms for
its popularization and guarantee, be they non-judicial (e.g., the Office of the
Ombudsman or the Commission on Human Rights) or judicial in nature.
One has to declare, to establish in detail, announce to all, and

guarantee each and every fundamental right, both outside and before the court.
In this light, any move clearly made to produce effectiveness of or the
upgrading of fundamental rights is, in itself, a positive move.
A different issue is the methodology used— for instance, if it was in

line with the constitutional powers, or if it did not entail the erosion of other
fundamental principles. This sends us to the other constitutional question
posed: the nature, scope, and boundaries of the given rule-making powers of
the Supreme Court.
The filigree of this constitutional question rests basically on one point

alone: promulgate rules concerning the protection and enforcement of
constitutional rights that shall not diminish, increase, or modify substantive rights.
The Writ of Amparo rules enacted by the Supreme Court do concern

the protection and enforcement of constitutional rights, with one possible
exception— the right to security.
Regarding the right to security, we can tentatively assume that it is a

fundamental right that is connatural and prescient of the right to life. It is a
natural emanation from the apex right to life.
125 See MIRIAM DEFENSOR-SANTIAGO, CONSTITUTIONAL LAW VOL. 1, 528 (2000).
She writes: “However, the separation of powers, under the Constitution, is not absolute.
What is more, it goes hand in hand with the system of checks and balances.”
126 Héctor Fix-Zamudio, Effectiveness Of Human Rights Protection Instruments, 1
MEXICAN LAW REVIEW (2004), available at

info8.juridicas.unam.mx/cont/mlawr/1/arc/arc3.htm.
On the other hand, the emergence of a generic right to security can be

seen in the Bill of Rights under the Constitution:
No person shall be deprived of life, liberty, or property without

due process of law, nor shall any person be denied the equal
protection of the laws.127
The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.128
Section 12(2) No torture, force, violence, threat, intimidation, or

any other means which vitiate the free will shall be used against him.
Secret detention places, solitary, incommunicado, or other similar
forms of detention are prohibited.129
It must be remembered that one should have an integrated approach,

which considers both the Universal Declaration on Human Rights as well as
the International Covenant on Civil and Political Rights in force in the country.
The right to security, though not prominent and not deserving of an
autonomous titled consecration, presents itself as a fundamental right
embodied in the Constitution and, together with the right to life and the right
to liberty, is protected by the Writ of Amparo rules. Thus far, one
constitutional requisite is present and accounted for. 130
Even more complicated is the issue regarding the final constitutional

words: “shall not diminish, increase, or modify substantive rights.” That the
rule increases rights is beyond debate; it creates new and upgraded access for
courts to defend a triumvirate of constitutional rights. The problem, not new
127 CONST. art. III, §1.

128 CONST. art. III, §2; for similar discussion, see Sarmiento, supra note 72, at 7.
129 CONST. art. III, §12(2).
130 Other requisites are also accounted for without further a due: the rules do
provide a simplified and inexpensive procedure for the speedy disposition of cases and are
uniform for all courts, as demanded by section 5 of article VIII of the Constitution.
in this regard,131 is to determine if those new rights have a substantive nature

or a procedural one, or both. One can immediately resort to the following
certifications, “[I]n some cases, however, a right cannot be neatly classified as
substantive or procedural.”132
In our opinion, as already stated or hinted before, both the Amparo in

general and the Philippine Amparo in particular have a structural dual nature.
That is to say, a set of procedural rules aimed at the defense of fundamental
rights while being a fundamental right in itself, much in the same way that
access to justice is a fundamental right in itself, as are the constitutional rights
of the accused.133 People do now have consecrated their right to Amparo
strictly saying.
In adopting a trinity of the traditional political and civil rights into

rights, freedoms, and guarantees, Amparo presents itself in the sub-order of
the guarantees.134 The Amparo is a fundamental right of guarantee. Guarantee
of what, one may ask? Of other fundamental rights, namely the rights stricto
sensu and other freedoms.
As Wladimir Brito concisely and appropriately wrote, the Amparo is

“an institution with a substantive dimension and a procedural one, thus being a
fundamental right-guarantee,”135 and as another author stated, “the right of
Amparo or protection of fundamental rights are part of the constitutional bloc
of rights in Latin America.”136 So, we must ask, accepting Amparo as an

132 “The distinction between remedy and substantive right is incapable of exact
definition.” De Leon, supra note 111 at 259. See also Bernas, supra note 111 at 970; Tiojanco
& Aguirre, supra note 72, at 112. The latter concur with the former, stating: “There,
however, remains considerable disagreement with the idea that substance and procedure
can be so easily separated.”
133 De Leon, supra note 133. “This is particularly true with respect to the
constitutional rights of the accused, which are implemented by the Rules of Court.
134 Cardinal, supra note 24, at 893. See also Paulo Cardinal, O Amparo Macaense de
Direitos Fundamentais vis-à-vis as Decisões Judiciai, in O Direito de Amparo em Macau e em

Direito Comparado, Special Issue REVISTA JURÍDICA DE MACAU 359 (Cardinal ed., 1999).
135 Paulo Cardinal, O Amparo Consitucional, in O Direito de Amparo em Macau e
em Direito Comparado, Special Issue REVISTA JURÍDICA DE MACAU [PAGES CITED]

(Cardinal ed., 1999).
136 Humberto Alcalá, El Derecho y Acción Constitucional de Protección (Amparo) de los
Derechos Fundamentals en Chile a Inicios del Siglo XXI, in EL DERECHO DE AMPARO EN EL

MUNDO 160 (Fix-Zamudio & Ferrer Mac-Gregor eds., 2006). One also should point out
that, besides a right that is substantive, it is also procedural proper, and not a mere writ.
institute with a dual nature, a right that simultaneously is substantive and

procedural, was the Supreme Court within its constitutional powers or not?
One cannot possibly answer partially yes and partially no, thus impossibly
splitting the Amparo and its rules. Let it be stressed that there is no question of
the constitutionality of the rules in themselves, that is to say regarding its
substantive content. The sole issue is the question of the constitutional
competence of the Court to enact rules that create a new right. Hence, we are
not dealing with constitutionality regarding substance but form/organic
competence.
The answer herein provided— although not totally exempted from

some remains-of-the-day doubts, and again underlining that it does not intend to
pass any political judgment — is yes. The Supreme Court acted within its
constitutional boundaries.
Apart from some of the arguments already presented, we wish to bring

in here some added items of argumentation such as historical data, which are
not necessarily compatible with each other or of the same discursive weight.
First, the Amparo is both substantive and procedural. Hence, since it is

not possible in this case to impose a clear-cut division, one must balance
contesting values and opt to consider effective judicial protection principles
and the pro homine principle as relatively prevalent in the adjudicated case, as well
as to appeal to a certain idea of constitutional necessity — in light of other
powers inaction— that will be proportionally addressed and realized.
Second, one believes that besides the power expressly granted by

Section 5, Article VIII of the Constitution, it is possible to find in the
constitutional narrative other important rules and principles that can lend a
helping hand. We are specifically referring to Section 1 of the same
constitutional article — that judicial power includes the duty of the courts of
justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.137 However, we can
also summon another provision: “[t]he State values the dignity of every human
person and guarantees full respect for human rights.”138 This principle can be
137 Sarmiento, supra note 72 at 27. See also Desierto, supra note 111 at 430.
138 CONST. art. II, §11.
an important anchor to horizontally support and reinforce fundamental rights.

One cannot overemphasize the structural role of human dignity in relation to
fundamental rights. The State has, by virtue of this norm, a clear responsibility
to protect human rights and to respect and uphold the human dignity of all.
Third, there is the existence of some precedents dealing precisely with

rights that are really both substantive and procedural in nature and that are also
creations of the Court, such as the rules on the constitutional rights of the
accused.139
Fourth, it may be argued that the foundation of the Amparo can be

traced to the writ of habeas corpus, expressly provided for in the Constitution,
bearing in mind the insufficiency of the said writ and the need to find
something more suitable.
Fifth, one may also invoke the apparent acceptance of the rules of
validity and enforceability in a peaceful and generalized way not only by
society, but also by authorities and officials when served with the Amparo—
government, police, military, etc. This allows us to consider the possible
creation of a customary rule. One can refer to this as something that would have
become transmutated into a sort of a constitutional customary rule.
Sixth, it may be argued that the Supreme Court rules of Amparo

(originally suspected of being ultra vires) have been ratified by way of a formal
act of Congress — precisely by the constitutional organ that would have more
legitimacy to feel its sphere of reserved legislative powers invaded. Republic
Act No. 9745 states:
A writ of habeas corpus or Writ of Amparo or writ of habeas

data proceeding, if any, filed on behalf of the victim of torture or
other cruel, degrading and inhuman treatment or punishment shall be
disposed of expeditiously and any order of release by virtue thereof,
or other appropriate order of a court relative thereto, shall be
executed or complied with immediately.140
As one author states, “it must be noted that Congress has seen fit to
legitimize the Writ of Amparo and habeas data when it promulgated Republic
Act No. 9745” and, “[b]y virtue of Republic Act No. 9745, albeit indirectly,
139 See De Leon, supra note 111 at 259.

140 Rep. Act No. 9745, §10 (2009). This is the Anti-Torture Act of 2009.
Amparo and Habeas Data remedies are now no longer mere judicial creatures
but are congressionally recognized as well.”141 The same acceptance can be
seen ab initio, since when the Rule on the Writ of Amparo was promulgated
and about to take effect, “the Executive Government through the Solicitor
General’s Office petitioned modifications to the Rule. The petition was
granted and the Rule on the Writ of Amparo was modified.”142
One could add a seventh reason, resting on the pillars of comparative

constitutional law. It may be useful to resort to comparative law and provide
certain specific instances, especially those that are characterized by somehow
similar circumstances of non-protective and absent States leading to repeated
violations of human rights without an adequate judicial remedy available to
their citizens.
Probably the most similar and quoted example is a historical one: the
Argentinian case. In fact, by the 1950s, the Amparo was not specifically
established in the Argentinean Constitution, although it was in some
constitutions, such as the ones of Santa Fe and Mendoza. However, the
Amparo had been previously recognized by the Supreme Court in the leading
cases of Siri and Kot SRL.143 The Amparo was later regulated by a special
statute in 1966 and subsequently included in the 1994 national Constitutional
reform.
Nestor Pedro Sagués, after mentioning that the right to Amparo was
considered an implicit constitutional right emerging from Article 33 of the
National Constitution (basically stating that the constitutional declaration of
rights cannot be viewed as negating other fundamental rights not enumerated
— a consecration of the open clause), refers to a praetorian creation of the
Amparo at the national level — an example of meritorian judicial activism in the
141 Orosa, supra note 72.

142 Id.
143 See Corte Suprema de Justicia de la Nación [CSJN] 27/12/1957, “Siri Ángel /
hábeas corpus,” Fallos (1957-239-459); Corte Suprema de Justicia de la Nación [CSJN]

05/09/1958, “Kot, Samuel S.R.L. / hábeas corpus,” Fallos (1958-241-291). The first is
related to the freedom of press and of work and its violation by public authorities and the
other one relates to a violation perpetrated by private person. See also Alemjandro
Verdaguer, Las circunstancias políticas y sociales al momento del reconocimiento del Amparo en
Argentina. Una relectura de los casos “Siri” y “Kot”, in LA CIENCIA DEL DERECHO PROCESAL
CONSTITUCIONAL. ESTUDIOS EN HOMENAJE A HÉCTOR FIX-ZAMUDIO EN SUS CINCUENTA
AÑOS COMO INVESTIGADOR DEL DERECHO 653 (Ferrer Mac-Gregor & Zaldívar eds., 2008).
midst of a military regime — and to the big polemic on discussing the possible
advantage in legislating or not legislating on the Amparo.144
Another comparative law example is Chile, where the Amparo proper

(named Recurso de Protección) is expressly established in Article 20 of the
Constitution. The ordinary regulation however, instead of being enacted by
formal law, is found in administrative rules enacted by the Supreme Court—
via the Autoacordados (“AA”), in the years 1977, 1992, and 1998. The
unconstitutionality of those rules, most prominently the ones other than the
1977 one, is considered a given fact under the Chilean doctrine.145 The creation
of the AA was originally attributed to political inertia and a lack of a formal
reservation of law. After 1980, however, when the Amparo was given
constitutional domicile, the enactment of the AA was deemed in violation of
the constitutional principles and rules on the reservation of law. This
notwithstanding, the AA was tolerated by the legislative bodies perhaps due to
their negligence and non-fulfillment of their responsibilities. It must be noted
that the 1998 version of the AA, in tacitly reducing effective access to the
Amparo, may be said to distort the nature and aim of the Amparo, thus
contradicting international norms in force, specifically, the 1969 American
Convention on Human Rights.146
Finally, one last example is Dominican Republic. In this state, the

Supreme Court admitted ab origine the Amparo action in 1999, that is to say,
before the enactment of formal legislation and in the absence of any reference
to the Amparo in the Constitution.147 Later, in 2006, the Amparo was finally
144 [AUTHOR], El derecho de Amparo en Argentina, in EL DERECHO DE AMPARO EN

EL MUNDO 42-43 (Fix-Zamudio & Ferrer Mac-Gregor eds., 2006).
145 See, e.g., Alcalá, supra note 137, at 202; Diego Palomo Vélez, Recurso de protección
en Chile: luces, sombras y aspectos que requieren cambios, in LA CIENCIA DEL DERECHO PROCESAL
CONSTITUCIONAL. ESTUDIOS EN HOMENAJE A HÉCTOR FIX-ZAMUDIO EN SUS CINCUENTA
AÑOS COMO INVESTIGADOR DEL DERECHO PROCESOS CONSTITUCIONALES DE LIBERTAD
513 (Ferrer Mac-Gregor & Zaldívar eds., 2008).
146 Alcalá, supra note 137, at 202.
147 See Samuel Arias Arzeno, Amparo en la República Dominicana: su Evolución
Jurisprudencial, paper presented at Seminario — Régimen Legal y Perspectiva del Derecho de

la Competencia en la RD, available at www.coladic-rd.org/cms/wp-
content/uploads/2008/07/sa_Amparo_rd_evolucion-jurisprudencial.pdf; Allan Brewer-
Carías, La admisión jurisprudencial de la Acción de Amparo, en Ausencia deRregulación Constitucional
o Legal, en la República Dominicana, 29 REVISTA INSTITUTO INTERAMERICANO DE DERECHOS
HUMANOS 95 (2000).
regulated by a special statute, Law No. 437-06, and very recently, it was also
included in the new Constitution of 2010.148
With everything said and done, one must nevertheless always be

cautious in order to avoid establishing bulldozers to cut through the scope of
constitutionally allocated powers to other organs, and prevent the creation of
the so-called government of judges that goes beyond the constitutional
democratic design of a given State.149 The good intentions of a specific policy
might later easily be turned to bad ones. In any event, Congress should
expressly adopt the Supreme Court rules on Amparo and expand its reach when
deemed adequate or even necessary, by means of legislation, especially with
regard to the scope of rights that will fall under the protective umbrella of the
writ. We will not discuss here the general issues pertaining to this point nor will
we engage in reflections on juristocracy, counter-majoritarianism, etc., since
such would be beyond the scope of this paper.
VI. THE RULE ON THE WRIT OF AMPARO: AN OVERVIEW
The Writ of Amparo is the most potent 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 by public officials or employees and by private individuals
or entities.150
We do not aim to present in this paper an annotated Writ of Amparo

rule scrutinized section by section. Others have already rightly done so.151 We
will limit ourselves to only pinpointing some issues or doubts that we deem of
148 Art. 72.

149 See also Raul Pangalangan, Passion for a Reason, ‘Judicial Activism and its limits’,
PHIL. DAILY INQUIRER, Feb. 1, 2008 available at
opinion.inquirer.net/inquireropinion/columns/view/20080201-116069/Judicial-activism-
and-its-limits; Raul Pangalangan, Government by Judiciary in the Philippines: Ideological and
Doctrinal Framework, in ADMINISTRATIVE LAW AND GOVERNANCE IN ASIA: COMPARATIVE
PERSPECTIVES (Ginsburg & Chen, eds., 2009); Fajardo, supra note 106; Orosa, supra note
70.
150 Secretary of National Defense v. Manalo, G.R. No. 180906, 568 SCRA 1, Oct.
7, 2008.
151 Supreme Court, Annotation to the Writ of Amparo, available at
sc.judiciary.gov.ph/admin%20matters/others/annotation.pdf; FLAG, Primer on the Writ of
Amparo, available at philippines.ahrchk.net/pdf/PrimerOnWritOfAmparo.pdf; Albano, supra
note 72; Colmenares, supra note 72; Ramos, supra note 72, at 89.;Brewer-Carías, supra note
12.
more relevance. However, even before starting the Rule analysis, we must
confess that, when we first stumbled upon the Philippine Amparo, we
regarded it as no more than a mere upgrade of the writ of habeas corpus.152
However, with a closer look one can affirm that this Amparo is more than an
enhanced habeas corpus.
First, contrary to what normally happens in comparative law,153

nowhere in the Amparo Rule can one find the specific requirement of previous
exhaustion of remedies that must be complied with relating to the aggrieved
right. On this extraordinary aspect, it was written elsewhere:
One of the most important liberal provisions of the rule is that

unlike many other Amparos, the Philippine Amparo does not
expressly require exhaustion of remedies before an Amparo court
acquires jurisdiction. This possibly stems from the lessons learned in
many of the Amparos in Latin America which were circumvented by
the exhaustion requirement and was generally used by state security
forces to delay petitions for the writ thereby rendering the remedy
ineffective.154
Let us proceed then and to the beginning, that is to say with the first
section:
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 writ shall cover extralegal killings and enforced

disappearances or threats thereof.155
These first norms merit several comments or annotations since they

immediately establish most of the structural profile of the Philippine Amparo.
152 In contrast, when reading the habeas data writ, we had the distinct impression
that we were dealing with a legal institution designed in a way that surpasses traditional
habeas data.
153 Eduardo Ferrer Mac-Gregor, EL DERECHO DE AMPARO EN EL MUNDO (Fix-
Zamudio & Ferrer Mac-Gregor eds., 2006).

154 Colmenares, supra note 77. See also Albano, supra note 72.
155 Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, §1 (2007).
The remedy is available to any person without any discrimination

whatsoever and, as seen historically, the Rule makes an express clarification—
even if technically unnecessary — that it applies to extralegal killings and
enforced disappearances. A question to pose is whether the writ is available to
collective persons or not. The nature of the rights protected do leave some
room to consider, for instance, a right to security to be enjoyed not only by
natural persons but also by a juridical persons, such as unions, human rights
organizations, or NGOs. With that consideration in mind, and as long the
nature of the right allows it, we believe that the Amparo is also applicable to
juridical persons.156
This broadens the passive standing, that is, the scope of entities
against which an Amparo can be brought may now encompass both private
individuals and juridical entities.157 Thus, it is not limited to acts, omissions, or
threats by public authorities or personnel and/or by private persons, if and
when endowed with public powers, such as when practicing acts of public
power or service within public concessions.158
One can consider the following:
It is true that the Amparo proceeding was originally created to

protect individuals against the State; and that is why some countries
like Mexico remain with that traditional trend; but that initial trend has
not prevented the possibility for the admission of the Amparo
proceeding for the protection of constitutional rights against other
individual’s actions. The current situation is that in the majority of
Latin American countries the admission of the Amparo action against
individuals is accepted, as is the case in Argentina, Bolivia, Chile, the
Dominican Republic, Paraguay, Peru, Venezuela and Uruguay.159
156 See Colmenares, supra note 89, at 11. The extension to juridical persons of the
Amparo remedy can be found in, for example, Austria, Slovakia, Slovenia, Spain, Hungary,
Brazil, Uruguay, Angola, and partially, Argentina and Poland, whereas in Mexico,
Macedonia, or Cape Verde, do not extend the Amparo. See also Ferrer Mac-Gregor, supra
note 54; Herrera Garcia, supra note 15, at 1223.
157 As occurs in Argentina, Bolivia, Paraguay and Peru, Costa Rica, Nicaragua, the
Dominican Republic, Uruguay or Venezuela. See Herrera Garcia, supra note 15; Brewer-
Carías, supra note 12, at 87-88.
158 Id. The legal systems that narrow the Amparo in this aspect are, namely, Cape
Verde, Macau, Germany, Spain, Austria, Hungary, Poland, Angola, Colombia, Ecuador,
Honduras, Brazil, El Salvador, Guatemala, Mexico and Panama.
159 Allan Brewer-Carías, Constitutional Litigation in Venezuela: General Trends of the
Amparo Proceeding and the Effects of the Lack of Judicial Independence, Presentation delivered at the
This broad spectrum is a very positive trait.
It must also be noted that it applies to both actual violations and

threats. This aspect must be underlined, since it is not so generalized, and
carries the potential to become much more effective than if it were merely
limited to actual violations.160 Again, this broad latitude is a rather positive
aspect of the Philippine Amparo.
Idem, as to what regards the specific consecration of omissions and not

just the acts or actions, subjected to the Amparo.161
The system of a closed list of protected rights, in the case of the rights
to life, liberty, and security, is meant to underline the fundamental importance
of such rights. This rather limited scope is not entirely new in the realms on
comparative law — quite the contrary. However, the closed lists in other legal
systems, albeit limited, are more extensive in quantity. The same fundamental
rights are constitutionally established, or the same formulation thereof, but
with some few added exclusions.162 In many legal systems, the Amparo covers
all fundamental rights constitutionally established, plus rights that are created
by international norms and/or ordinary legislation,163 thus extending the
protective web of the Amparo to virtually all and any fundamental right in
force in a given legal system.
This reductionist aspect, albeit understandable in light of specific

historical motivations, can be seen as one of the weaker traits of the Rule on
the Amparo writ. It was stated:
Seminar on Constitutional Litigation: Procedural Protections of Constitutional Guarantees

in the Americas and Beyond, Duquesne University School of Law, Pittsburgh (Nov. 5,
2010).
160 See Ramos, supra note 72, at 91.This trend is also found in Argentina, Bolivia,
Costa Rica, Chile, Ecuador, Guatemala. In many other legal systems there are no specific
provisions covering the mere threat. See Hererra Garcia, supra note 15.
161 Including specifically the omissions one finds, for example Cape Verde, El
Salvador, Argentina, Venezuela, but not in Slovenia, Croatia or Macedonia, as it is usual in

the legal systems that were influenced by the German model of Amparo.
162 See, e.g., the cases of Spain, Austria, Peru, Germany, Nicaragua, Poland, and
Panama.
163 This is the case in Argentina, Bolivia, Costa Rica, Ecuador, Paraguay,
Venezuela, Slovakia, and Slovenia. See supra note 157.

Since the Writ of Amparo is still undefined under our

Constitution and Rules of Court, Section 1 enumerates the
constitutional rights protected by the writ, i.e., only the right to life,
liberty and security of persons. In other jurisdictions, the writ protects
all constitutional rights. The reason for limiting the coverage of its
protection only to the right to life, liberty and security is that other
constitutional rights of our people are already enforced through
different remedies.164
This does not totally convince us since, by the measure of rights

already enforced by other remedies, one should also point to the triumvirate of
rights that were formally already protected by other remedies, namely the writ of
habeas corpus. The point at stake is different: it is to know if the other remedies
are effective or not, and if the enhanced capacity of the Amparo should be
extended, or not, to other fundamental rights.165
A point to note is that, in August 2008, at a forum on economic,

social, and cultural rights, Chief Justice Puno said, “We are also studying the
possibility of widening the coverage of the Writ of Amparo by providing
protection to economic, social, and cultural rights, including protection against
demolitions and bringing the judiciary closer to the poor.”166 So far, this was
not done, and Puno is no longer Chief Justice. If this had been done, the
Amparo would have undoubtedly been enthroned as a transversal guarantee of
all fundamental rights; thus, crossing the original libertarian genesis. Such
would have, we believe, a considerable social and juridical impact.
In any event, one may ask if, by way of a so-called friendly

interpretation towards fundamental rights, the scope of rights can already be
considered broader. In truth, from important fundamental rights such as the
right to life, freedom, and security, and always bearing in mind the
constitutional command of human dignity as an illuminating tool, one believes
that it is possible to ascertain a flow of rights that are connected naturally and
functionally to any of the above three rights, hence being also protected by the
164 Supreme Court, supra note 152.

165 Gozon & Orosa, supra note 72.
166 Abigail Kwok & Tetch Torres, SC Studying Expansion of ‘Writ of Amparo’ Chief
Justice, PHIL. DAILY INQUIRER, Aug. 28, 2008, available at

newsinfo.inquirer.net/breakingnews/nation/view/20080828-157306/SC-studying-
expansion-of-writ-of-Amparo--Chief-Justice See also Rosales, supra note 72, at 1037.
Amparo.167 One quick look at the Bill of Rights inspires us to consider as

possible candidates, for example, the right to property, the right to free of
speech, expression, and a free press, and the right of the people to peaceably
assemble and petition. As already said elsewhere: “These rights are broad
enough to cover a whole gamut of constitutional rights— it remains to be seen
how the Supreme Court shall evolve jurisprudence based on a rule they
promulgated.”168
Moving on to the second point, one finds next the establishment of

who can file the Amparo petition in Section 2 of the Rule. The petition may be
filed by the aggrieved party or — this aspect is especially relevant due to the
nature of the violations169 — by a number of persons, in a given order of
precedence, that can act on behalf of the victim.170 Such persons being family
members, relatives, or any concerned citizen, organization, association or
institution, but only if there is no known member of the immediate family or
relative of the aggrieved party.171 This last aspect is also deemed positive
although, in a possible future revision of the rules, the requisite of no known
member of the family could be eliminated or reduced, which should allow for a
broader sense of active legitimacy (or standing), as well as a more de facto
effective guarantee,172 as long as that “any person” acts in the interest of the
aggrieved party,173 particularly if the aggrieved party is not in a position to
introduce the petition.
Regarding the venue, that is to say, where to file, the Rule provides an
ample overture of competent courts. The petition may be filed 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
167 Id. See also Marquez, supra note 72. . “The Amparo remedy was also successfully
used in a child custody case when the RTC of Tagudin, Ilocos Sur, granted the privilege of
the writ, and the minor, an illegitimate child was awarded to the mother, and the
respondent, the biological father was allowed occasional visitorial rights.”
168 Gozon & Orosa, supra note 72, at 27-28.
169 Supreme Court, supra note 152. “However, in cases where the whereabouts of
the aggrieved party is unknown, the petition may be filed by qualified persons or entities
enumerated in the Rule (the authorized party).”
170 As illustrated in the cases of Costa Rica, Honduras, and Uruguay.
172 Supreme Court, supra note 152.
173 See Ruben Hernandez Valle, El Recurso de Amparo en Costa Rica, in EL DERECHO
DE AMPARO EN EL MUNDO 282 (Fix-Zamudio & Ferrer Mac-Gregor eds., 2006).

Court of Appeals, the Supreme Court, or any justice of such courts.174 The
Rule also provides that the writ shall be enforceable anywhere in the
Philippines.175
The petition may be filed on any day and at any time. This has been
attributed to “the extraordinary nature of the writ which protects the mother
of all rights—the right to life.”176
A rather relevant norm, especially given the fact that the Philippines
has a population of many economically debilitated people,
[I]s the absence of any requirement for the payment of docket

fees under Section 4, which makes the remedy accessible to the
victims insofar as it relieves them of the financial burden to prosecute
their case. Docket fees are usually beyond the reach of the families of
victims, especially since the victim of disappearance or extra-judicial
killings are usually the bread winner.177
In fact, the Rule establishes that the petitioner shall be exempted from
the payment of the docket and other lawful fees when filing the petition, and
the court, justice, or judge shall docket the petition and act upon it
immediately.178
Section 5 deals with the necessary contents of the petition. It

establishes a set of required data related to the identification of the aggrieved
party and of the respondent, the fundamental right at stake, and the relief that
is sought.179 Note that the petition may simply include a general request for
other just and equitable reliefs.

175 This ample and distributed competence can be seen for example in Argentina,
Colombia, and Paraguay. The normal trend, however, is to concentrate the competence in
solely the Constitutional Court or Supreme Court or Constitutional Section of the Supreme
Court in States where the Amparo modality is inspired by the German model, e.g., Austria,
Croatia, Slovenia, Hungary, Russia, Spain, Cape Verde, Costa Rica, and El Salvador.
177 Id. “The Committee exempted petitioners from payment of docket and other
lawful fees in filing an Amparo petition, for this extraordinary writ involves the protection
of the right to life, liberty and security of a person. The enforcement of these sacrosanct
rights should not be frustrated by lack of finances.”
Concerning the issuance of the Writ, it deserves to be mentioned that

the provisions clearly require the setting of a hearing date, no later than seven
days, in order to expedite the resolution of the writ.180 This shows that “[t]he
Amparo proceedings enjoy priority and cannot be unreasonably delayed.”181
Section 9 of the Rule is considered to be where the heart of Amparo

lies.182 It establishes that within 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 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. If the
respondent is a public official or employee, the return shall further state the
actions that have been or will still be taken such as 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, to identify and
apprehend the person or persons involved in the death or disappearance, and
to bring the suspected offenders before a competent court.183
Of special note is also the fact that a general denial of the allegations
in the petition shall not be allowed.184 The Supreme Court emphatically
affirms, “[n]o general denial is allowed. The policy is to require revelation of all
evidence relevant to the resolution of the petition. Litigation is not a game of
guile but a search for truth, which alone is the basis of justice.”185
180Rule on the Writ of Amparo, A.M. No. 07-9-12-SC, §6 (2007).

181See supra note 152.
182 Fajardo, supra note 72, at 759. “One of the most difficult hurdles for the
military and PNP respondents in an Amparo petition is the provision on ‘return’ under
Section 9. And this is where human rights lawyers should hammer the respondents
ensuring that no ‘false returns’ or templates are submitted. In fact, prayer for contempt
must be lodged before the Supreme Court in case a false return is submitted.” See also
Colmenares, supra note 77.
185 Colmenares, supra note 77.
The Rule also establishes the prohibition of certain pleadings and

motions, such as a motion to dismiss, motion for extension of time to file
return, opposition, affidavit, position paper and other pleadings, dilatory
motion for postponement, counterclaim or cross-claim, motion to declare
respondent in default, motion for reconsideration of interlocutory orders or
interim relief orders, or petitions for certiorari, mandamus or prohibition
against any interlocutory order.186 This is done in order to expedite the
procedure: “[t]he enumerated pleadings and motions are prohibited, so that the
proceedings in the hearing shall be expedited. The Committee noted that since
the right to life, liberty and security of a person is at stake, the proceedings
should not be delayed.”187 The same rationale explains Section 12 on the effect
of the respondent’s failure to file a return.
Section 13 basically attests to the nature of the Amparo as a summary

speedy procedure.
The always important interim relief,188 “available to the parties are

distinct features of the Writ of Amparo,”189 are dealt with in Section 14, which
states that upon the filing of the petition or at anytime before final judgment,
the court, justice or judge may grant any of the following:
(1) Temporary Protection Order — the court, be it upon motion or,

importantly, motu proprio, may order that the petitioner or the
aggrieved party and any member of their 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 thereof involved.
188 See Ferrer Mac-Gregor, supra note 154; Herrera Garcia, supra note 15.
189 See supra note 152. Colmenares wrote: “The interim relief provided by the writ
will predictably be a major battleground in Amparo petitions, and will test the will of the
courts and human rights lawyers to battle the recalcitrant attitude of the government and
the AFP against court orders and rules. Every interim relief granted will surely discourage
the commission of abduction since there is now a risk that the abduction will be discovered
especially if the ‘disappeared’ is brought to a military camp.” Albano, on the other hand,
wrote: “while the rule abandons not-so-helpful legal principles, it adopts new legal
paradigms that will enhance the protective character of the writ. These new legal paradigms
are the interim reliefs that are available.”
(2) Inspection Order — the court, 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. The inspection order shall
specify the person or 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 days190 after the date of its
issuance, unless extended for justifiable reasons.
(3) Production Order — the court may order any person in

possession, custody, or control of, e.g., any designated documents,
papers, books, accounts, letters, photographs, objects, even if in
digitized 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. It was elsewhere
noted that
[o]ne of the main functions of the writ is to force evidence from

uncooperative government investigation agencies. The evidence
gathered through inspection orders will not only be important in
Amparo petitions, but even in the prosecution or the filing of
administrative and civil cases against the perpetrators of human rights
abuses.191
Note that 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.
(4) Witness Protection Order — the court, upon motion or motu

proprio, may refer the witnesses to the Department of Justice for
admission to the Witness Protection, Security and Benefit Program,
and may also refer the witnesses to other government agencies, or to
190 In the original version, prior to the amendment, the expiration was two days:
“When the Rule on the Writ of Amparo was promulgated and about to take effect, the
Executive Government through the Solicitor General’s Office petitioned modifications to
the Rule (in particular, the changing of 2 days reply period to 5 days) to give some elbow
room for the Solicitor General’s Office to make consultations and render due service to the
military or other governmental body charged with responsibility and is asked to make
accountability.” See also Orosa, supra note 76.
191 Colmenares, supra note 77.
accredited persons or private institutions capable of keeping and

securing their safety.192
Section 17 merits special mention. The required burden of proof and

standard of diligence set forth therein proscribes the mere invocation of the
presumption that official duty has been regularly performed to evade
responsibility or liability; thus, putting aside an established legal presumption.
The public official or employee must also prove that— as opposed to a private
respondent— extraordinary diligence was observed in the performance of their
duty. An author states:
One novel legal development in the Philippine Amparo is the

inapplicability of the “presumption of regularity” rule. Blanket denials
without the corresponding diligence to investigate the killing or
disappearance are unacceptable under the rule. Furthermore, since
there is no presumption of regularity, the respondent public officials
must prove through evidence that their acts were indeed regular rather
than placing the burden of proving the ‘irregularity’ on the
complainants.193
Appeal is allowed provided that the decision was not from the
Supreme Court, and the appeal may raise both questions of fact and of law.
The appeal is also granted with priority.194
The Rule does not allow the dismissal of the case, but instead its
archive and concomitant possibility of revival upon showing of valid cause,
such as the failure of the petitioner or witnesses to appear due to threats on
their lives.195 Note that a periodic review of the archived cases shall be made by
the Amparo court that shall, either motu proprio or upon motion by any party,
order their revival when ready for further proceedings.196
Section 22 of the Rule is worth mentioning since it disallows the

separate filing of the writ when a criminal action has been commenced, but
193 Id.
provides that the reliefs under the writ shall be available by motion in the
criminal case.197
The Rule also provides that it “shall not diminish, increase or modify
substantive rights recognized and protected by the Constitution.”198 This is
merely a declaratory statement pursuant to what is established in the
Constitution, thus, lacks any substantive content or any sort of mandatory
official interpretation. And, as we have already said, we consider that the
Amparo is, in effect, a new substantial right and not solely, and simply, a new
procedural way to protect fundamental rights.
One final note in this chapter to address an unanswered issue: may the
Writ of Amparo be suspended? Particularly in cases of invasion or rebellion,
when the public safety requires it, as is established in Section 15, Article III of
the Constitution, for the writ of habeas corpus? As stated elsewhere,
[T]he question is, where the privilege of the writ of habeas corpus
has been suspended, is the privilege of the Writ of Amparo likewise to
be deemed suspended and therefore unavailable? I believe it should
be, since it is only an auxiliary process and so cannot remain standing
without the main remedy.199
Tentatively, one might say that, in the absence of such similar express
provision, the Amparo cannot be suspended.200 This conclusion is reinforced
when one takes into consideration the important fundamental rights it is sworn
to protect (e.g., the right to life) and its legal construction as an autonomous
procedure, the only exception being in the case of a pending criminal action.
The procedural autonomy of the Amparo may be seen in its lack of
dependence on other actions, such as that of habeas corpus.
197 Brewer-Carías, supra note 12. He wrote on “an indirect provision as a

condition of inadmissibility of the writ of Amparo”.
199 Vicente Mendoza, A Note on the Writ of Amparo, 82 PHIL L.J. 7 (2008). Also, a
report released by the Commission on Human Rights stated that the number of
extrajudicial killings has significantly dropped to by as much as 70 percent compared to that
of 2005.
200 For example, the new Dominican Republic Constitution expressly establishes
in article 72 that the acts practiced in the so-called states of exception, that unreasonably
affect protected rights that are suspended, are subjected to the Amparo.
However, if one considers the Amparo as capable of being suspended,

the minimum standards that would apply to limit the circumstances of the
suspension would be, by analogy, the ones that apply to the writ of habeas
corpus, such as cases of invasion or rebellion, or when the public safety requires
it. The same preventive mechanisms established in Section 18, Article VII of
the Constitution must likewise be applied— namely, that suspension of the
Amparo can never be done automatically, but only by an act of the President,
with the need of submission of a report to the Congress within 48 hours, and
the possibility of review by the Supreme Court.
VII. BRIEF CONCLUSIONS, SUGGESTIONS, AND WISHES
It is time, finally, to make a balance, present some conclusions and

suggestions, as well as wishes.
Regarding a balance, one can read usually a positive one,201 albeit just
moderately, such as the proved diminishing of the extra-judicial killings and the
release of illegally detained persons, since the Writ of Amparo has resulted in
significant decrease of extralegal killing. In this regard, the Writ of Amparo
may be used by other countries which suffer extralegal killing and enforced
disappearances under the military dictatorship.202
However, there are still some international and domestic criticisms.

For example, on September 2007, the Asian Human Rights Commission
(“AHRC”) criticized the Writ of Amparo and habeas data (Philippines) for being
insufficient:
Though it responds to practical areas it is still necessary that

further action must be taken in addition to this. The legislative bodies,
House of Representatives and Senate, should also initiate its own
actions promptly and without delay. They must enact laws which
ensure protection of rights — laws against torture and enforced
disappearance and laws to afford adequate legal remedies to victims.203
201 See e.g., Marquez, supra note 72; Tiojanco & Aguirre, supra note 72, at 116;
Rosales, supra note 72, at 1022, 1027, 1030, 1035.
202 Kong Hyun Lee, Rapporteur Report for the Asian Constitutional Courts, available at
www.venice.coe.int/WCCJ/Papers/KOR_Kong%20Hyun%20Lee3_E.pdf.
203 GMA News TV, Writ of Amparo Not Enough — Hong Kong Rights Group, available
at www.gmanews.tv/story/62409/Writ-of-Amparo-not-enough--Hong-Kong-rights-group.
See also supra note 107; Ramos, supra note 72, at 109.
It would be important to analyze judicial decisions and ascertain

difficulties, inconsistencies, doubts, etc., but also to point out the positive
aspects. Lawyers should also be heard on their practical difficulties and
successes.
It would also be important to analyze and compare the judicial

decisions of Amparo dictated by the Supreme Court on one hand, and the
other courts, on the other.204 There might be a certain tendency for the other
courts, for a variety of reasons,205 not being as pro Amparo and pro libertate and
pro homine as the Supreme Court.
In fact, Raul Pangalangan comments on a case decided by the Court of

Appeals:
The Supreme Court deliberately fixed a lower standard of

evidence for Amparo petitions to make it easier for the parties to avail
themselves of this remedy, yet strangely enough, now we see this goal
boomerang against the victim. The Supreme Court made it clear that
the Amparo is not a criminal case that would have entailed the highest
standard of evidence, namely, “proof beyond a reasonable doubt.”
Instead, the Supreme Court required the aggrieved party to meet only
the test of “substantial evidence,” which is several notches lower than
that. In other words, the question was not whether Philippine
National Police (PNP) Director General Avelino Razon and his group
should be convicted as kidnappers, but rather whether Lozada´s right
to security was threatened. The Court of Appeals had enough room to
consider the totality of circumstances that led to the threat to
Lozada´s right to security. 206
He then heavily criticizes the Court of Appeals, either directly or by

quoting others:
The Court of Appeals had enough facts to deploy if it wanted to

extend Amparo relief to Lozada. But the Court of Appeals says no go,
despite what the Supreme Court said about the Writ of Amparo being
designed to protect us precisely from such threats to our right to
security. When the Court of Appeals concludes that “the instant
204
Rosales, supra note 72, 1024; Tiojanco & Aguirre, supra note 72 at 117.
205 Colmenares, supra note 77. He explains that some Regional Trial Court judges
are unfamiliar with the Rule.
206 Pangalangan, supra note 150.
Amparo petition does not involve extralegal killings, enforced

disappearances, or threats thereof,” it ignores the plain fact that what
transpired was a threat, nay an aborted attempt, at an enforced
disappearance.”, and more, “When the Supreme Court created the
Writ of Amparo, it said that “this writ … should be allowed to evolve
through time and jurisprudence.” The Court of Appeals dismissal of
the Amparo petition casts a cloud on the Supreme Court’s activist use
of its rule-making power to protect human rights. With the denial of
the protective writ, the Supreme Court, in effect, was shot in the foot
by its own.207
These actions of the lower court do spray indeed a dark cloud over the
noble institution of Amparo.
One first suggestion, along with having a writ promulgated by

legislative act based upon the current Rule, is to broaden the scope of rights to
which the Amparo applies. This broadening can be understood in the
following levels:
Minimally, extending to the rights contained in the constitutional Bill

of Rights.
In medium terms, extensive to those rights and to other constitutional

rights such as in the field of electoral rights, nationality, etc.
Maximally to extend to the entire above-said plus all the fundamental

rights that are established by international law norms and ordinary legislation.
Other minor suggestions regarding the Rule and an eventual

modification were already expressed in the previous chapter, such as in terms
of broadening the terms of standing to file the writ or a clear extension to
juridical persons as beneficiaries of the writ.
The modifications, in terms of upgrading the Amparo’s scope, force,

and efficacy, should also be used so they could abolish or strongly diminish
lacunae, inconsistencies, doubts, etc., that practical implementation found
wanting or even demanding. To do such is not only to technically improve the
rules, but more importantly, to bring clarity and unity in applying values that
should be especially cherished in the field of fundamental rights.
207
Id.
As for the rest, the enormous sea of the rest, one cannot but underline
again, and wish once more, the need of having a writ that is popularized,
properly understood and respected, of having the Rule of Law at the helm, and
of having effective judicial independence.
It is time to finally conclude this paper, and we will do so by resorting

to words of the Supreme Court:
The Amparo rule should be read, too, as a work in progress, as its

directions and finer points remain to evolve through time and
jurisprudence and through the substantive laws that Congress may
promulgate.208
Hence, let us wish the Amparo: vivat, crescat, floreat!
- o0o -
208 Razon v. Tagitis, G.R. No. 182498, 606 SCRA 598, 687 (2009).

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THE WRIT OF AMPARO:

SERGEANT: Habeas corpus. Do you know

We start with an introductory note in order to understand the context

A note to recall what Amparo is: Amparo is an autonomous judicial

Contrary to traditional popular belief, Amparo has become an

The number of jurisdictions that are creating Amparo mechanisms is

To recall the words of former President of the Inter-American Court

It is true, however, that the mere inexistence of Amparo in a given

On a first note, when Amparo is in crisis, the solution is not the

3 HÉCTOR FIX-ZAMUDIO AMPARO Y TUTELA: ENSAYOS SOBRE EL DERECHO DE

AMPARO 696 (3rd ed. 2003).

DESPUÉS, DE LA REFORMA 2 (2010).

A good example would be the Spanish case, in which, before the

6Constitutional Court of Spain, Estadisticas, available at

Amparo y Su Aplicación en la Jurisprudencia del Tribunal Constitucional: Luces y Sombras de Cuatro

ESPAÑOLA DE DERECHO CONSTITUCIONAL 19-20 (2009).

Cuestiones Constitucionales 3, 69 (2000); Héctor Fix-Zamudio, El Juicio de Amparo Mexicano

of fundamental rights endowed with this possibility of judicial protection.12

Under the umbrella of the Amparo in general, or other terminology

The application of the Amparo in a variety of situations raises not only

Against whom can Amparo be brought — against the acts of public

ATENEO L.J. 2, 15 (1993).

Can the Amparo be used only in cases of actual violation of

Is the Amparo an immediate answer to the violation of the

One can find different rules and treatment across jurisdictions. In

One can find different rules and treatment across jurisdictions. In

On a final note, in many legal systems the Amparo is not only a

II. THE AURA OF AMPARO AS HOLDING AN INTRINSIC GOOD

The Amparo carries an aura of uncommon magnitude associated with

The existence of the Amparo in a given jurisdiction is an important

16 See Gonzalo Aguilar Cavallo, Derechos Fundamentales-Derechos Humanos. ¿Una

constitutional matters, already stated: “The function of constitutional complaint is in

the democratic freedoms.”18 However, it is only an indicator, not a watertight

As Allan Brewer-Carías cautions, “[t]he formal regulations of Amparo

This is the basic condition for the enjoyment of constitutional

Bearing in mind these cautions, one should nevertheless underline the

18 Diego Valadés, Exordio, EL DERECHO DE AMPARO EN EL MUNDO 12, (Fix-

Fundamentales: Consideraciones Sobre Las Constituciones de América Latina y de la Unión Europea,

legally, academically, and practically. It is a concept proven to have an

The concept of Amparo is a strong motivating item for academic

It seems relevant, and of good use, to bring in here some general

22 Eduardo Ferrer Mac-Gregor, Breves Notas Sobre el Amparo Iberoamericano (Desde el

Derecho Procesal Constitucional Comparado), in EL DERECHO DE AMPARO EN EL MUNDO 12

167 (3rd ed. 2005).

La Juslusofonia: Los Casos de Macau y Cabo Verde, in EL DERECHO DE AMPARO EN EL MUNDO

State and the Rule of Law, 82 PHIL L.J., 1-23 (2008).

2007, ¶ 1, available at bulatlat.com/main/2007/10/20/the-writ-of-Amparo-and-ao-197 (last

fundamental rights and a evident operationally and efficacy.29 or a reference30

Turning to the Latin American model of constitutional justice, the

29 Wladimir Brito, O Amparo Constitucional, Special Issue REVISTA JURÍDICA DE

MACAU 87, 94 (Cardinal ed., 1999).

Venezuela, in EL DERECHO DE AMPARO EN EL MUNDO 649 (Fix-Zamudio & Ferrer Mac-

PROTECCIÓN DE LOS DERECHOS FUNDAMENTALES ENTRE EL PODER JUDICIAL Y EL

República Federal de Alemania, in EL DERECHO DE AMPARO EN EL MUNDO 726 (Fix-Zamudio

Constitucional, Special Issue REVISTA JURÍDICA DE MACAU 182 (1999).

importance of the constitutional petition in strengthening the fundamental

We could— virtually in an unending way and with plenty of beautifully

Development, in DERECHO COMPARADO ASIA-MÉXICO CULTURAS Y SISTEMAS JURÍDICOS