|
By Nora O. Gamolo, Senior Desk Editor
For lawyer Neri Colmenares and his organization,
the National Union of People’s Lawyers, President Gloria Arroyo is
undermining the writ of amparo by issuing Administrative Order (AO)
197 that directs the Armed Forces of the Philippines to draft
legislation to protect “disclosure of military secrets and undue
interference in military operations.”
AO 197 preempts any court order to produce
persons or data in response to a writ of amparo petition. For AO 197
shields from the court order whatever the military claims to be
“military secrets,” said Colmenares, secretary-general of the
National Union of People’s Lawyers.
Section 6 of the Amparo Rule provides for the
court’s discretion to issue 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 amparo petition.
The petitioner is permitted, if the military
obeys the court order to, inspect or copy or photograph the
documents.
Colmenares warned that the effect of AO 197 is
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.” This shields suspected perpetrators of extrajudicial
killings and enforced disappearance from court processes.
AO 197 also intends, Colmenares claims, 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.”
The lawyer also charged that President 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.
Under AO 197, the Department of National Defense
(DND) and the Armed Forces of the Philippines (AFP) are to work
closely with Presidential Human Rights Committee (PHRC) subcommittee
on killings and disappearances for the speedy action on cases and to
institute effective reforms. They are to submit regular
reports to the President who is the AFP commander in chief.
The express requirement to “report” to the
commander in chief then allows military officers to claim
“executive privilege” since their testimony is the subject of a
confidential “report” to the chief executive, said Colmenares.
He added that President 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.
To prevent any further undermining of the amparo
rules, 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 “promulgate rules concerning the
protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts.”
NUPL also urges the Supreme Court to allow
active participation of human rights organizations in the protection
of witnesses. Under the amparo rules, the court 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 and securing
their safety.
The Supreme Court, NUPL recommends, should
accredit the persons and private institutions that are empowered to
extend temporary protection to the petitioner or the aggrieved party
and any member of the immediate family.
According to Colmenares, this rule puts to task
the government’s witness protection program for 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 choice in selecting such accredited
institutions. Trust and confidence, not just resources, play a
large part in the success of any witness protection program, NUPL
said. 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 who are exercising 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 vows to pursue its commitment to human
rights, made during its founding Congress. It said it will
continue with more vigor to actively participate in the battle
against impunity by filing criminal and administrative complaints
against and seek the prosecution of top military officers guilty of
human rights violations.
Said Colmenares, “The writ of amparo can only
be an important legal tool in stopping extrajudicial killings and
enforced disappearance as long as the judiciary asserts its
constitutional powers to stamp out grave abuse of discretion.”
|
