Posted by: nupl | November 11, 2007

EXECUTIVE’S DISREGARD OF THE WRIT OF AMPARO: CONTEMPTUOUS OF SUPREME COURT POWERS

October 17, 2007

Press Release

NUPL condemns the recent attempt of Pres. Gloria Arroyo to undermine the rule on the writ of amparo by issuing Administrative Order 197 which contains, inter alia, an order directing the Armed Forces of the Philippines to draft legislation to protect “disclosure of military secrets and undue interference in military operations”.

The intent of AO 197 is to preempt any production order issued by the judiciary in response to a writ of amparo petition by shielding from that production order alleged “military secrets”. Section 6 of the Amparo Rule provides that :

(c) Production Order. – The court, justice or judge, upon verified motion and after due hearing, may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

AO 197 intends to nullify the power of the court to issue such order through the passage of a law that will give the military the discretion to decide whether or not the subject of inspection is a ‘military secret’ thereby shielding suspected perpetrators of extra-judicial killings and enforced disappearance from court processes.

AO 197 also intends to preempt “inspection orders” issued under the Writ by the mere claim that an inspection of military camps to look for the victims of enforced disappearance is “undue interference in military operations”.

Pres. Arroyo also prepared the ground to preempt an Amparo court’s subpoena for military officers to testify on the ground of “executive privilege” by inserting the strangely unrelated provision on human rights violations in Par. 1 of AO 197, to wit:

1. The Department of National Defense (DND) and the Armed Forces of the Philippines (AFP) shall work closely with Presidential Human Rights Committee (PHRC) subcommittee on killings and disappearances for speedy action on cases and effective reforms to avoid abuses with regular reports to the Commander-in-Chief x x x

Due to the express requirement to “report” to the commander-in-chief, military officers can claim ‘executive privilege’ since their testimony is the subject of a confidential “report” to the chief executive. Pres. Arroyo’s latest attempt to subvert judicial powers by disregarding inspection and production orders issued in a writ of amparo petition is another impeachable offense committed by the Chief Executive. The NUPL will not allow this blatant contemptuous attempt to undermine judicial power, particularly in the implementation of the powerful writ of amparo.

NUPL urges the judiciary to protect its powers to issue subpoena on witnesses and documents under Sec. 1, Art. VIII 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.” NUPL also urges Congress not to pass a law that directly negates the jurisdiction of the judiciary and preempts its constitutional powers to “[P]romulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts x x x”. The writ of amparo will be an important legal tool in putting a stop to the extra judicial killings and enforced disappearance as long as the judiciary asserts its constitutional powers to stamp out grave abuse of discretion by government officials.

Involve Human Rights groups in witness protection

NUPL also urges the Supreme Court to allow active participation of human rights organizations in the protection of witnesses. Section 14 (a) of the Amparo rule provides:

(a) Temporary Protection Order. – The court x x x may order that the petitioner or the aggrieved party and any member of the immediate family be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. x x x

The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family x x x .

This rule is an indictment of the government’s witness protection program’s lack of credibility and capacity to provide protection to witnesses. Human rights organizations which have gained the trust of victims and families of the victims of human rights violations must be the main criteria in selecting such accredited institutions considering that trust and confidence, not just resources, play a large part in the success of any witness protection program. The military must be prohibited by the judiciary, on pain of contempt, from harassing and arresting refugees in sanctuaries.

The NUPL also asks the Supreme Court to condemn the continuous attacks against lawyers for the exercise of their profession, including those who act as counsel for human rights victims. The active participation of human rights lawyers in the serious prosecution of perpetrators of human rights violations is one of the main legal tools in the battle against impunity. NUPL will pursue its commitment to human rights, made during its founding congress, and continue with more vigor its active participation in the battle against impunity by filing criminal and administrative complaints against and the prosecution of top military officers guilty of human rights violations. #

Reference: Atty. Neri Colmenares—Secretary General

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