Monthly Archives: July 2014

Foreword

Foreword

Reynato S. Puno

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Recommendations for an External Whistleblower Program Against Securities Fraud in the Philippines

Recommendations for an External Whistleblower Program
Against Securities Fraud in the Philippines

Maria Carmen L. Jardeleza

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Structural and Contextual Progressivity of the Philippine Individual Income Tax System

Structural and Contextual Progressivity of the Philippine Individual Income Tax System

Francis Paolo D. Tiopanco
Danjun G. Lucas

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Justiciability of the Right to Food Before Philippine Courts

Justiciability of the Right to Food Before Philippine Courts

Karen Andrea D. Torres

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Philippine Government Corporate Sector: Quo Vadis?

Philippine Government Corporate Sector: Quo Vadis?

Johann Carlos S. Barcena
Ronald O. Chua

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Out of Commission: An Inquiry into the Truth Behind the Presidential Power of Investigation

Out of Commission:
An Inquiry into the Truth Behind the Presidential Power of Investigation

Paolo O. Celeridad

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The Role of Positivism in the Development of International Law

The Role of Positivism in the Development of International Law

Daud S. Hassan

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Foreword

Foreword

Rafael A. Morales

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Duty Bound: Constitutional Provisions Vital & Integral to the Adjudicatory Function of the Supreme Court that are Not Fully and Truly Implemented

Duty Bound: Constitutional Provisions Vital & Integral to the Adjudicatory Function of the Supreme Court that are Not Fully and Truly Implemented

Estelito P. Mendoza

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Time is Up: Assessing the Life Tenure System in the American Supreme Court and the Mandatory Retirement System in the Philippine Supreme Court

Time is Up: Assessing the Life Tenure System in the American Supreme Court and the Mandatory Retirement System in the Philippine Supreme Court

Jonathan T. Pampolina

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A Human Rights Discourse on Campaign Finance in the Philippines: An Analysis of the 1987 Philippine Constitution and International Human Rights Law

A Human Rights Discourse on Campaign Finance in the Philippines:
An Analysis of the 1987 Philippine Constitution and International Human Rights Law

Francis Tom F. Temprosa

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The State of Philippine Law on Geothermal Power: Policies, Projects, Implications

The State of Philippine Law on Geothermal Power:
Policies, Projects, Implications

Darwin P. Angeles

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Unbundling the Bundle: Creation of Wealth and Rationalization of Land Use through Development Rights

Unbundling the Bundle:
Creation of Wealth and Rationalization of Land Use through Development Rights

John David C. Atanacio
Roentgen F. Bronce

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Foreword

Foreword

 Danilo L. Concepcion*[1]

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It is the distinct duty and ultimate undertaking of a law journal to bring the law to its frontiers and even beyond. By a cyclical process of introduction, examination, and reflection, a law journal subjects the law to a clear exposition that shows its various successes, limitations, challenges, and opportunities. The drive towards the development of doctrine must be the objective of any article that seeks to find its place on the pages of any law journal, more so within the volumes of the country’s flagship legal publication.

This first issue of Volume 87 of the Philippine Law Journal (PLJ) carries with it articles that explore the prospects of Philippine law and jurisprudence in the fields of international arbitration, judicial accountability, the rights of the accused, corporation law, taxation, and human rights.

In The Ordre Public Dimensions of Confidentiality and Transparency in International Arbitration: Examining Confidentiality in the light of Governance requirements in international Investment and Trade Arbitration, former Supreme Court Associate Justice Florentino Feliciano discusses the origins, advantages, limitations, and implications of confidentiality in international arbitration proceedings, particularly in light of the exceptions provided by public order (ordre public) that sometimes requires transparency in the interest of justice.

In Politicisation and Judicial Accountability in the Philippines, Associate Professor Dante Gatmaytan examines the accountability and legitimacy problems facing the Supreme Court. This is in light of its recent controversial decisions, which are products of the Court’s increasing politicisation. Such politicisation is in turn rooted in the Court’s expanded power of judicial review.

In Turning Miranda Right Side Up, former Assistant Professor Theodore Te (now Assistant Court Administrator and Chief of the Supreme Court Public Information Office) expounds on the far-reaching influence on American and Philippine jurisprudence of Miranda vs. Arizona, as both jurisdictions rediscover and somehow redefine, clarify, and even narrow down its scope while at the same time preventing efforts to circumvent its controlling doctrine. The article ends with suggestions to make the seminal decision relevant once more

Maria Carmen Jardeleza in The Case for Pockets of Shareholder Activism: Shareholder Proposal in the Philippines presents the challenges and prospects in the country for the application of shareholder proposal rules that give wider proxy access through direct proposals, as done in the United States, which is especially empowering for minority shareholders.

Roentgen Bronce and April Carmela Lacson reveal in When Some Sins are More Equal than Others: A Critique of British American Tobacco v. Camacho and the Rational Basis Test the flaws of the imposition of the rational basis test with regard to reviews of tax appeal cases, especially with regard to excise taxes imposed on cigarettes, due to a probable conflict with the Constitution’s Equal Protection Clause.

And finally, in The Writ of Amparo: A New Lighthouse for the Rule of Law in the Philippines?, Paulo Cardinal traces the history and origins of the Philippine writ of amparo, with an inter-country comparative analysis that focuses on the spirit and idea behind the remedy and its connection to the important principle of the supremacy of the rule of law in a modern state.

Congratulations are thus in order for the Editorial Board of Volume 87 on a job well done so far, and may they continue the PLJ’s traditions of excellence and relevance. Truly, as the country’s premier law review, the PLJ remains a constant symbol of the study of law in the grand manner.


* Dean and Professor of Law, College of Law, University of the Philippines-Diliman (2011-present). Master of Laws (Chevening Scholar), Queen Mary College, University of London (1986). Bachelor of Laws, cum laude, University of the Philippines-Diliman (1983). Bachelor of Science in Agricultural Engineering, summa cum laude, De La Salle-Araneta University (1979).

The Writ of Amparo: A New Lighthouse for the Rule Of Law in the Philippines?

The Writ of Amparo: A New Lighthouse for the Rule Of Law in the Philippines?*

Paulo Cardinal**

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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]

-Glorious39, 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 ideaof 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.

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 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]

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 tone[7] with a hint of certiorari[8] 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 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 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 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. (Read full article in pdf)



* 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] Glorious39 (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.

[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).

[6]Constitutional 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).

[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.”

[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).