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Amparo and Habeas Data Class 11 July 2008. Justice Azcuna’s annotation Contents of the Return. The section requires a detailed return. The detailed return.

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Presentation on theme: "Amparo and Habeas Data Class 11 July 2008. Justice Azcuna’s annotation Contents of the Return. The section requires a detailed return. The detailed return."— Presentation transcript:

1 Amparo and Habeas Data Class 11 July 2008

2 Justice Azcuna’s annotation Contents of the Return. The section requires a detailed return. The detailed return is important, for it will help determine whether the respondent fulfilled the standard of conduct required by the Rule. Contents of the Return. The section requires a detailed return. The detailed return is important, for it will help determine whether the respondent fulfilled the standard of conduct required by the Rule. It will also avoid the ineffectiveness of the writ of habeas corpus, where often the respondent makes a simple denial in the return that he or she has custody over the missing person, and the petition is dismissed. It will also avoid the ineffectiveness of the writ of habeas corpus, where often the respondent makes a simple denial in the return that he or she has custody over the missing person, and the petition is dismissed. The requirements under paragraph (d) [duties where the respondent is a public official] are based on United Nations standards. The requirements under paragraph (d) [duties where the respondent is a public official] are based on United Nations standards.

3 “The Rationale for the Writ of Amparo” (Supreme Court) “In Velasquez and Godinez, the [Inter-American] Court [of Human Rights] held that such [enforced] disappearances constituted crimes against humanity under international law; and that, as a result, governments had an affirmative duty to investigate them and to prosecute and punish whoever may be responsible.” “In Velasquez and Godinez, the [Inter-American] Court [of Human Rights] held that such [enforced] disappearances constituted crimes against humanity under international law; and that, as a result, governments had an affirmative duty to investigate them and to prosecute and punish whoever may be responsible.”

4 “The Rationale for the Writ of Amparo” (Supreme Court) “The Court also found that, because the purpose of a disappearance was to eliminate traces of the government’s role in a serious crime, the standard of proof and burden of persuasion must, after an initial presentation by the Commission, shift to the government to demonstrate that it had done all in its power to redress the wrong. The Court based this reasoning on its dictum that states have an obligation to organize their whole apparatus so that human rights may be adequately protected. “ “The Court also found that, because the purpose of a disappearance was to eliminate traces of the government’s role in a serious crime, the standard of proof and burden of persuasion must, after an initial presentation by the Commission, shift to the government to demonstrate that it had done all in its power to redress the wrong. The Court based this reasoning on its dictum that states have an obligation to organize their whole apparatus so that human rights may be adequately protected. “

5 Questions What does it mean when we say that “the standard of proof and burden of persuasion must, after an initial presentation by the (petitioner), shift to the government to demonstrate that it had done all in its power to redress the wrong”? What does it mean when we say that “the standard of proof and burden of persuasion must, after an initial presentation by the (petitioner), shift to the government to demonstrate that it had done all in its power to redress the wrong”? What does it mean when we say that ”states have an obligation to organize their whole apparatus so that human rights may be adequately protected “? What does it mean when we say that ”states have an obligation to organize their whole apparatus so that human rights may be adequately protected “?

6 Justice Azcuna’s annotation No General Denial. No general denial is allowed. The policy is to require revelation of all evidence relevant to the resolution of the petition. No General Denial. No general denial is allowed. The policy is to require revelation of all evidence relevant to the resolution of the petition.

7 Can respondent/s raise defenses not alleged in the Return? No. Defenses not raised in the return are deemed waived. No. Defenses not raised in the return are deemed waived. –(Sec. 10, Amparo Rule)

8 What motions and pleadings are prohibited? Motion to dismiss; Motion to dismiss; Motion for extension of time to file opposition, affidavit, position paper and other pleadings; Motion for extension of time to file opposition, affidavit, position paper and other pleadings; –Note: The period to file the return may be extended for a limited period of FIVE (5) working days with possible extension under A.M. No SC, October 16, Dilatory motion for postponement; Dilatory motion for postponement; Motion for bill of particulars; Motion for bill of particulars; Counterclaim or cross-claim; Counterclaim or cross-claim; Third party complaint; Third party complaint;

9 Prohibited Motions and Pleadings Reply; Reply; Motion to declare the respondent in default; Motion to declare the respondent in default; Intervention; Intervention; Memorandum; Memorandum; Motion for reconsideration of interlocutory orders or interim reliefs; and Motion for reconsideration of interlocutory orders or interim reliefs; and Petition for certiorari, mandamus or prohibition against any interlocutory order. Petition for certiorari, mandamus or prohibition against any interlocutory order. –(Sec. 11, Amparo Rule as amended by A.M. No SC, October 16, 2007)

10 Justice Azcuna’s annotation Prohibited Pleadings. The enumerated pleadings and motions are prohibited, so that the proceedings in the hearing shall be expedited. Prohibited Pleadings. The enumerated pleadings and motions are prohibited, so that the proceedings in the hearing shall be expedited....since the right to life, liberty and security of a person is at stake, the proceedings should not be delayed....since the right to life, liberty and security of a person is at stake, the proceedings should not be delayed.

11 Justice Azcuna’s annotation This section is similar to that found in the Rule on Violence Against Women and Children in Conflict with the Law (VAWC). This section is similar to that found in the Rule on Violence Against Women and Children in Conflict with the Law (VAWC). However, unlike in VAWC, this Rule allows the filing of motions for new trial and petitions for relief from judgment. However, unlike in VAWC, this Rule allows the filing of motions for new trial and petitions for relief from judgment. The denial of these remedies may jeopardize the rights of the aggrieved party in certain instances and should not be countenanced. The denial of these remedies may jeopardize the rights of the aggrieved party in certain instances and should not be countenanced.

12 Justice Azcuna’s annotation No Motion to Dismiss. The filing of a motion to dismiss even on the ground of lack of jurisdiction over the subject matter and the parties is proscribed. No Motion to Dismiss. The filing of a motion to dismiss even on the ground of lack of jurisdiction over the subject matter and the parties is proscribed. The reason is to avoid undue delay. The reason is to avoid undue delay. The grounds of a motion to dismiss should be included in the return and resolved by the court, using its reasonable discretion as to the time and merit of the motion. The grounds of a motion to dismiss should be included in the return and resolved by the court, using its reasonable discretion as to the time and merit of the motion.

13 What if respondent/s fail to submit a return? The amparo court, justice or judge shall proceed to hear the petition ex parte. The amparo court, justice or judge shall proceed to hear the petition ex parte. –(Sec. 12, Amparo Rule) The respondent/s who refuses to make a return, or who makes a false return, shall be punished for contempt and may be imprisoned or fined. The respondent/s who refuses to make a return, or who makes a false return, shall be punished for contempt and may be imprisoned or fined. –(Sec. 16, Amparo Rule)

14 Group Work (4 per group) Odd-numbered groups: Odd-numbered groups: –Compare and contrast the four kinds of interim relief provided in the Rule on Amparo. Even-numbered groups: Even-numbered groups: –Compare and contrast the provisions of amparo on inspection and production orders with the rules on discovery on inspection and production of evidence.

15 For Next Week Based on facts I will give orally, prepare the following (as the initial step in preparing an amparo petition): –1.1Issue statements; –1.2Non-linear outline of an amparo petition; and –1.3Linear outline of an amparo petition; and –1.4 Judicial affidavit.


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