Habeas Corpus
Habeas corpus, Latin for “you have the body”, is the name given to a variety of writs for the purpose of bringing a party before a court or judge. It’s purpose is not to determine the prisoner’s guilt or innocence but whether he is restrained of his liberty by due process[1]
Our present rules of court procedure only provides for the writ of habeas corpus ad subjiciendum (we all know it simply as the writ of habeas corpus) which is the common remedy against an alleged illegal detention. Thus, the writ ordinarily extends only to cases of “illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto”.[2] It is more commonly associated with activists being allegedly picked up by military agents but it can have equal application to, say, a child taken by one spouse without the consent of the other or a spouse being placed in a drug rehab center without the consent of the other (the Mark Jimenez case should come to mind).
Amparo
At present, there is a proposed amendment to the rules to allow the use of the writ of amparo. It is unclear if the proposed amendments would cover all aspects of the amparo doctrine. It may be better eventually if our laws do so. The doctrine has a broad scope encompassing not just illegal detention nor actual violations, but also the prevention of possible violations, of human rights and other constitutional guarantees. “The “amparo” suit is an original Mexican institution with no exact equivalent in the common law tradition.
The word “amparo” literally means favor, aid, protection, or shelter. Legally the word encompasses elements of several legal actions of the common law tradition: writ of habeas corpus, injunction, error, mandamus, and certiorari.
There are five types of “amparo” suits: 1) “amparo” as a defense of individual rights such as life, liberty, and personal dignity; 2) “amparo” against laws (defending the individual against un-constitutional laws); 3) “amparo” in judicial matters (examine the legality of judicial decisions); 4) administrative “amparo” (providing jurisdiction against administrative enactments affecting the individual); 5) “amparo” in agrarian matters (protecting the communal [property] rights of peasants).”[3]
The amparo procedure for the protection of human rights has 2 parts: The 1st part aims to prevent the consummation of the alleged violation/s of human rights; and so, without yet deciding on the merits of the case, the court suspends the alleged illegal act/s. The 2nd part of the procedure involves proving the facts alleged and determining whether or not they do violate human rights. The acts subject of the amparo suit include all kinds of actions by any authority, even laws or judicial decisions.[4]
Applying the foregoing to the present reality of our country’s record-breaking killings and abductions of activists, labor leaders, journalists, and even priests, the alleged violators will then be promptly investigated and will not be left to merely deny they have custody of the prisoner (and render useless any procedure to produce the prisoner and make them accountable). The court can order an investigation to determine the truth of the facts alleged. This radically changes the present habeas corpus procedure where the alleged violators can simply deny they have custody and that is that, and everybody should look elsewhere.
As it is more likely that the victims of human rights violations are those who cannot afford costly, complex, inaccessible, burdensome and prolonged procedures, the proposed amendments to our rules must avoid the same. To defend against possible dictatorial leanings of leaders, the right to amparo must not be allowed to be suspended under any circumstance. And owing to the repeated allegations against military personnel, civilian courts must be given jurisdiction over them to avoid further loopholes.
Habeas Data
A companion to the habeas corpus and amparo remedies is the writ of “habeas data’ based on a person’s right to information about himself/herself, whether the information is in the possession of the government or a private entity.[5] The right includes the right to modify (even correct) or remove such information due to its sensitive, erroneous, biased, or discriminatory nature.
In recent years, recourse to the action of habeas data has become a fundamental instrument for investigation into human rights violations committed during past military dictatorships in some South American countries. Families of disappeared persons have used habeas data actions to obtain information concerning government conduct, to learn the fate of disappeared persons, and to exact accountability.[6]
In the end, of course, a writ by any other name is only as strong as the powers of enforcement. It is significant to note that the 2 farmers who last month escaped an alleged 18-month illegal and brutal detention by military soldiers went straight to the Supreme Court to seek protection and not to the lower courts, the police, their local government nor even Malacañang, and at the same time, refused protection under the Witness Protection Program of the DOJ. This act speaks volumes on their faith in the institutions which, by theory and by law, are supposed to protect them.
[1]“Habeas Corpus”. Black’s Law Dictionary. 5th ed. 1979.
[2] Rule 102, Revised Rules of Court. (July 1, 1997).
[3] Avalos, Francisco A. The Mexican Legal System. 2nd ed. Fred B Rothman & Co., 2000.
[4] Mejorada, Carlos Sanchez. The Writ of Amparo. Mexican Procedure to Protect Human Rights. Annals of the American Academy of Political and Social Science, Vol. 243, Essential Human Rights. Sage Publications, Inc. January, 1946. Pp. 107-111
[5] Declaration of Principles on Freedom of Expression, Basic Documents Pertaining To Human Rights The Inter-American System, OEA/Ser.L/V/I.4 rev. 8 (May 22, 2001)
[6] Report On Terrorism And Human Rights, OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr. (October 22, 2002). http://www.cidh.org/Terrorism/Eng/part.k.htm#_ftnref641
No comments:
Post a Comment