The Writ of Adimpleo[1]
“The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfil the role assigned to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them.”[2]
Have you ever experienced witnessing someone who has deliberately violated the law or any ordinance and yet he was not later on punished for his act? And what about the officers charged of prosecuting such offense or violation, how could they have missed sanctioning offenders and violators or have tolerated such act when the offense or violation is so ubiquitous or that failure to prosecute would tantamount to a presumption of bad faith or connivance on their part? Now, you cannot help yourself but curse these persons since you are reduced by law to inaction unless you are an interested party in the matter involved or that your right is violated or threatened to be violated by the act. But as concerned citizens like we all law students are, we are not contented with just like that. If there is an unlawful act, punishment should follow. Tolerance is not an option and non-prosecution is disrespect to law, hence, has to be dealt with.
Law is defined as a system of rules and guidelines which are enforced through social institutions to govern good behaviour.[3] It is clear in the said definition that laws are to be enforced. But why do some laws are not enforced? Are they just written words for display or for law students to study and then end there? Are they just rules and guidelines enacted for legislation purposes but passed upon without the intention of really enforcing it and then to be left in oblivion sometime in the near future? Laws should be enforced by whatever means and whenever proper, the only conditions are that there should be no violation of the rights of the people and that it must be executed in accordance with guidelines and procedure defined by it.
What is the Writ of Adimpleo?
Literally, it is the writ to comply, to carry out or to fulfil. It is a legal remedy given to any concerned citizen who has witnessed an unlawful act personally or one who has personal knowledge on such unlawful act, which is nevertheless not punished by authorities although such act is widespread in that the inaction of the authorities would suggest bad faith or connivance on their part, minatur innocentibus qui parcit nocentibus.[4]
Who can file it?
The person coming to the court should be able to show before the court the truthfulness of such act and relate it to the provisions of the law alleged to be violated. He must also be of good moral character and the action being brought is not made in revenge or as an act of hate or to intimidate or to destroy the image or reputation of the person alleged to have violated the law. Otherwise, he could be liable for damages or could be prosecuted for any criminal liability incurred.
Unlike any other existing writs, the payment of docket fees is required so as to prevent the influx of petitions since any concerned citizen is given the right to file this writ. Hence, the docket fee should be relatively high so as the writ would not be used as a means to mock people and the court, hence, the administration of justice.
What is the nature of the act complained of?
The unlawful act should be one which is detrimental to the public peace, public order or public interest, that is, it prejudices not just few individuals or groups of persons but the public in general.
Against whom shall the writ be filed?
The petition may be filed against the public officer or employee who failed to take any action against the violators of the law or those who tolerated the commission of felonies or offenses. If filed against a public officer or employee, the writ shall have the effect of compelling such public officer or employee to do their functions in apprehending the violators, or to cause the institution of proceedings against them. The petition may also be filed against the violators of the law who may be private persons.
Note that filing of a petition against the public officer or employee and filing it against the violators of the law are not mutually exclusive. They are cumulative and may be joined in just one petition.
What shall the petition contain?
Just like other writs, the petition shall be signed and verified. It shall also contain allegations regarding the personal circumstances of the petitioner, the averment that he or she does not have any personal motive against the defendant, and that the act complained of is a blatant violation of the law.
The name and personal circumstances of the respondent responsible for the act or omission shall also be alleged.
The petition shall also contain the detailed violation by an unlawful act or omission of the respondent, and how such violation is committed with the attendant circumstances detailed in supporting affidavits. Again, the unlawful act should be one which is detrimental to the public peace, public order or public interest, that is, it prejudices not just few individuals or groups of persons but the public in general.
Where does one file?
The petition may be filed on any day at any time with the Regional Trial Court of the place where the violation or offense was committed as described in the petition. When the extent of the consequence of the unlawful act complained of is nationwide, the petition may be filed with the Sandiganbayan, the Court of Appeals, the Supreme Court, or any justice of such courts.
The procedures
If trial ensues, it would be non-adversarial. The petitioner need not appear and he may be given protection order in case his bringing out the action will endanger his life or that of his family and relatives.
The court now will call the person being complained of and should be given the opportunity to know the reason why he is being implicated and to submit his defense and position on the act complained of.
The court will also call the authorities responsible for the non-prosecution and be given the chance to explain why such unlawful act has been tolerated and not prosecuted and to give their position why should they not be punished for such inaction. The petitioner need not include in his petition the authorities responsible for the inaction as the court will have the power to point out who are responsible and who should be punished.
The court, then, will determine whether or not the persons implicated – the violator and the responsible authorities – should be sanctioned. If the nature of the case is criminal, criminal charges, then, shall be recommended by the court to the prosecutor for filing. If the charge is administrative, an administrative case shall, then, be filed against the violator and the responsible authorities. The findings of the court where the petition was filed will be binding in the criminal or administrative case as recommended. In case of violation of ordinance, the hearing on the petition for writ of adimpleo shall be sufficient to determine whether or not he should be punished under the ordinance violated.
The parties shall establish their claims by substantial evidence. The decision of the Regional Trial Court will be deemed final. The remedy of the aggrieved party would be certiorari under Rule 65 of the Rules of Court. If it was originally filed in the Sandiganbayan or Court of Appeals, the remedy of the aggrieved party would be Rule 45 of the same Rules.
When should the writ be issued?
The issuance of the writ of adimpleo is the same as that of the writ of amparo. Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court; or in case of urgent necessity, the justice or the judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it.
Any court, judge or justice who maliciously or negligently refuses to take cognizance or entertain any petition without just or lawful cause may be sanctioned administratively by the Supreme Court. In the same way, any clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions.
The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply.
The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) days from the date of its issuance.
The objective of the writ
In almost all countries, their laws are strictly enforced. Unfortunately, it is not the case in our country. Mere spitting in public place in some other countries is already punished and no one is spared. Here, the simple ‘no loading, no unloading’ or ‘no throwing of garbage on the river’ rules are blatantly defied. That means citizens of this country do not fear the law as they know that there would be a big possibility that they will not be prosecuted for their unlawful acts. They do not respect the law, that is. The writ of adimpleo will change that perspective drastically. Any concerned citizen, complying with requirements abovementioned, will now have the right and power to petition the court to compel violators and offenders to comply with the law, hence, respect for the law to which respect is highly due. And to strengthen this drive, the days of the authorities who have been tolerating such unlawful acts since time immemorial are now numbered as the writ of adimpleo attaches liability also to them for their inaction. This writ, then, will encourage vigilance on the part of the authorities in performing their function, specifically the prosecution of violators and offenders, be that petty offense or offense of big proportion.
Now that a legal weapon is given to any person in compelling others to respect the law, each one of us will now have the privilege to help significantly in upholding the true essence of justice in our country.
Basis
The basis of the writ of adimpleo would have to be the Constitution, itself, specifically Article II, Section 5, Article III, Section 4 and Article VIII, Section 5 (5). The pertinent provisions are hereinafter provided respectively:
The maintenance of peace and order, the protection of life, liberty, and property, and promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (Emphasis supplied)
References
The 1987 Philippine Constitution; Writ of Amparo (A.M. No. 07-9-12-SC); Writ of Habeas Data (A.M. No. 08-1-16-SC); Towards More Justice and More Liberty: Understanding Writ of Amparo and Writ of Habeas Data, Rene V. Sarmiento, 2008.; www.wikipedia.com
Aka Writ of Hoy Gising! pwede din siguro Writ of Isumbong mo Kay Tulfo! :D
ReplyDeleteaka Writ of Cachapero (in response to Com. Sarmiento's comment before in one of our classes, and i quote, "malay mo, in the future magkaroon ng Writ of Cachapero")
ReplyDelete