Writ Of Habeas Data.docx

What is the writ of habeas data? It is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. What rule governs petitions for and the issuance of a writ of habeas data? It is governed by The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC – full text), which was approved by the Supreme Court on 22 January 2008. That Rule shall not diminish, increase or modify substantive rights. What is the Supreme Court’s basis in issuing the Rule? The Rule was drafted pursuant to the Supreme Court’s constitutional power to promulgate rules for the protection and enforcement of constitutional rights (Constitution, Art. VIII, Sec. 5[5]). When does the Rule take effect? The Rule takes effect on 2 February 2008, following its publication in three (3) newspapers of general circulation. Who may file a petition for the issuance of a writ of habeas data? The petition may be filed by the aggrieved party. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph. Where can the petition be filed? a. Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. b. Supreme Court; c. Court of Appeals; or d. Sandiganbayan, when the action concerns public data files of government offices. How much is the docket or filing fees for the petition? No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than 15 days from the filing of the petition. What are the required contents of the petition? The verified written petition shall allege the following:

(a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable. When is the writ of habeas data issued? 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 and cause it to be served within three (3) days from its issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance. Is there any penalty in case of refusal to issue or serve the writ? Yes. A 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. How is the writ of habeas data served? The writ shall be served upon the respondent by the officer or 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. After the writ is served, what should the respondent do? The respondent shall file a verified written return together with supporting affidavits within five (5) work days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. What are the contents of the written return? The return shall, among other things, contain the following: (a) The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others;

(b) In case of respondent in charge, in possession or in control of the data or information subject of the petition: (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and (iii) the currency and accuracy of the data or information held; and (c) Other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petition shall not be allowed. What happens if the respondent makes a false return or refuses to make a return; or if any person who disobeys or resists a lawful process or order of the court? That person may be punished with imprisonment or fine. Also, when the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence. Instead of having the hearing in open court, can it be done in chambers? Yes. It can be done when the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. What is the nature of the hearing on the petition? The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. How long does the court have in deciding the petition? The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. What happens after the finality of the judgment? Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be designated by the court, justice or judge within five (5) work days. The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent.

The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ. The court shall set the return for hearing with due notice to the parties and act accordingly. Does the filing of the petition preclude the filing of separate criminal, civil or administrative actions? No. However, when a criminal action has been commenced, no separate petition for the writ shall be filed, but the reliefs under the writ shall be available by motion in the criminal case, and the procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition.

THE RULE ON THE WRIT OF HABEAS DATA [A.M. No. 08-1-16-SC dated 22 January 2008. This Resolution shall take effect on February 2, 2008 following its publication in three (3) newspapers of general circulation.] SECTION 1. Habeas Data. – The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. SEC. 2. Who May File. -Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by: (a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or (b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph. SEC. 3. Where to File. – The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices. SEC. 4. Where Returnable; Enforceable. – When the writ is issued by a Regional Trial Court or any judge thereof, it shall be returnable before such court or judge. When issued by the Court of Appeals or the Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where

the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its justices, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored. The writ of habeas data shall be enforceable anywhere in the Philippines. SEC. 5. Docket Fees. – No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docketed and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition. SEC. 6. Petition. – A verified written petition for a writ of habeas data should contain: (a) The personal circumstances of the petitioner and the respondent; (b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party; (c) The actions and recourses taken by the petitioner to secure the data or information; (d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known; (e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent. In case of threats, the relief may include a prayer for an order enjoining the act complained of; and (f) Such other relevant reliefs as are just and equitable. SEC. 7. Issuance of the Writ. – 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 and cause it to be served within three (3) days from its issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person to serve it. The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance. SEC. 8. Penalty for Refusing to Issue or Serve the Writ. – A 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. SEC. 9. How the Writ Is Served. – The writ shall be served upon the respondent by the officer or 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.

SEC. 10. Return; Contents. – The respondent shall file a verified written return together with supporting affidavits within five (5) work days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons. The return shall, among other things, contain the following: (a) The lawful defenses such as national security, state secrets, privileged communication, confidentiality of the source of information of media and others; (b) In case of respondent in charge, in possession or in control of the data or information subject of the petition: (i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection; (ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and (iii) the currency and accuracy of the data or information held; and (c) Other allegations relevant to the resolution of the proceeding. A general denial of the allegations in the petition shall not be allowed. SEC. 11. Contempt. – The court, justice or judge may punish with imprisonment or fine a respondent who commits contempt by making a false return, or refusing to make a return; or any person who otherwise disobeys or resists a lawful process or order of the court. SEC. 12. When Defenses May Be Heard in Chambers. – A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character. SEC. 13. Prohibited Pleadings and Motions. – The following pleadings and motions are prohibited: (a) Motion to dismiss; (b) Motion for extension of time to file opposition, affidavit, position paper and other pleadings; (c) Dilatory motion for postponement; (d) Motion for a bill of particulars; (e) Counterclaim or cross-claim; (f) Third-party complaint; (g) Reply; (h) Motion to declare respondent in default; (i) Intervention; (j) Memorandum; (k) Motion for reconsideration of interlocutory orders or interim relief orders; and (l) Petition for certiorari, mandamus or prohibition against any interlocutory order. SEC. 14. Return; Filing. – In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence.

SEC. 15. Summary Hearing. – The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. SEC. 16. Judgment. – The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied. Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be designated by the court, justice or judge within five (5) work days. SEC. 17. Return of Service. – The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent. The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ. SEC. 18. Hearing on Officer’s Return. – The court shall set the return for hearing with due notice to the parties and act accordingly. SEC. 19. Appeal. – Any party may appeal from the judgment or final order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. The period of appeal shall be five (5) work days from the date of notice of the judgment or final order. The appeal shall be given the same priority as habeas corpus and amparo cases. SEC. 20. Institution of Separate Actions. – The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions. SEC. 21. Consolidation. – When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action. When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition. SEC. 22. Effect of Filing of a Criminal Action. – When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available to an aggrieved party by motion in the criminal case.

The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data. SEC. 23. Substantive Rights. – This Rule shall not diminish, increase or modify substantive rights. SEC. 24. Suppletory Application of the Rules of Court. – The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule. SEC. 25. Effectivity. – This Rule shall take effect on February 2, 2008 following its publication in three (3) newspapers of general circulation.

In the Philippines, amparo and habeas data are prerogative writs to supplement the inefficacy of the writ of habeas corpus (Rule 102, Revised Rules of Court). Amparo means 'protection,' while habeas data is 'access to information.'[1] Both writs were conceived to solve the extensive Philippine extrajudicial killings and forced disappearances since 1999.[2] On July 16, 2007, Philippine Chief Justice Reynato S. Puno and Justice Adolfo Azcuna officially declared the legal conception of the Philippine Writ of Amparo ("Recurso de Amparo"), at the historic Manila Hotel National Summit on Extrajudicial Killings and Enforced Disappearances.[3][4] On August 25, 2007, Reynato Puno declared the legal conception of amparo's twin, the supplemental Philippine Habeas Data. Puno by judicial fiat proclaimed the legal birth of these twin peremptory writs on October, 2007, as his legacy to the Filipino nation. Puno admitted the inefficacy of Habeas Corpus, under Rule 102, Rules of Court, since government officers repeatedly failed to produce the body upon mere submission of the defense of alibi. By invoking the truth, Habeas Data will not only compel military and government agents to release information about the desaparecidos but require access to military and police files. Reynato Puno's writ of amparo—Spanish for 'protection'—will bar military officers in judicial proceedings to issue denial answers regarding petitions on disappearances or extrajudicial executions, which were legally permitted in Habeas corpus proceedings.[5] The Supreme Court of the Philippines announced that the draft guidelines (Committee on Revision of Rules) for the writ of amparo were approved on September 23, to be deliberated by the En Banc Court on September 25.[6]

QUEZON City, Philippines (November 10) – Senator Leila De Lima filed a petition for Writ of Habeas Data against President Rodrigo Duterte but before we react, do we know what a Writ of Habeas Data? Habeas Data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.

Habeas Data is a Latin phrase that can be translated as “you should have the data”. It is a constitutional right to protect, per lawsuit filed in court, to protect the image, privacy, honor, information, self-determination and freedom of information of a person. The writ aims to protect the privacy of the individual with regards to his or her personal data. It is a right to access personal data in an automated database of the government. Any person who believes that their personal information is being used against them may file a petition to invoke the Writ of Habeas Data. In cases of enforced disappearances, any member of the family of the aggrieved party may file the petition. For petitioning, the aggrieved party needs to indicate what are the circumstances, the manner the right of privacy is violated or threatened and how it affects the right to life, liberty and security. Also the location of the files, the government office and person in charge or in possession of the said information must be stated, if known. A written return will be given by the respondent and will contain the information subjected to be released, its nature and the purpose of its collection. Refusal to release information when a writ is issued will be subjected to punishment by the court. It is an absolute order to release personal information if the aggrieved party proved to the court the violations done to them. Making a false return, or if the respondent give the wrong information on purpose, the court may cite the respondent for contempt. Pleadings and motion are also prohibited. The Writ of Habeas Data, alongside with the Writ of Amparo were both conceived to solve the extensive extrajudicial killing and disappearances in the Philippines since 1999. The Habeas Data was the way for the people to invoke the truth and to force the government to release information about the disappearances of some people. Now, Senator Leila De Lima is invoking this writ to know if the alleged attacks on her person are in violation of her right to privacy.

Police invitation: Euphemism for an unlawful arrest On February 12, 2018, responding to the International Criminal Court (ICC) chief prosecutor’s announcing the start of the preliminary examination of the drug-war killings in the Philippines, President Duterte said that “the war or the drive against drugs will not stop and it will last until the day I step out.”

Though the President denied directly ordering the killings, many believe that his declarations about killing drug pushers/addicts were the impetus or inspiration for the same. State agents, particularly members of the Philippine National Police (PNP), are usually the suspects. Last January 29, 2018, the government relaunched “Oplan Tokhang.” Images of police inviting young people followed by deaths because of “nanlaban” come into mind. One of our greatest constitutionalists, Fr. Joaquin Bernas, SJ, said: “Protection of fundamental liberties is the essence of constitutional democracy. Protection against whom? The state.” He stated this in explaining the Constitution’s Bill of Rights which provided the citizens’ fundamental safeguards against government abuse. What is our protection against state abuse? Let us discuss the starting point: The police invitation to the precinct. How should you react? Politely refuse the invitation. If they insist, ask for a warrant of arrest. If none, do not accommodate their invitation even if they appear friendly. Get their names, take their pictures or videos, have as many people witness what is happening and identify the officers making the invitation, those with them and their vehicles. The police practice of “invitations” has been so abused that our Supreme Court declared it to be an “euphemism for an arrest without a warrant of arrest” (People vs. Dilao G.R. No. L-43259). Republic Act No. 7438, known as “An act defining the rights of persons arrested or under custodial investigation,” expressly makes these “invitations” illegal. In case the police officers show you a “Tokhang list” where your name appears, know that, though signed by their police superiors, it is worthless, not being a warrant of arrest issued by a judge after the determination of probable cause. Take a picture of the list. Later, file a petition for the issuance of the writ of habeas data against the police and their superiors to have your name removed from the list and ultimately to expunge such list from the government’s records. And because a warrantless police invitation is an illegal arrest, tell the inviting-policemen/women to allow you to call your lawyer for assistance. Their refusal is a crime punishable by imprisonment of 8 to 10 years. A criminal case against these officers can be filed later. Show them a copy of Republic Act No. 7438. You will be surprised that many policemen/women do not know the law. Or if they are aware of the law, many rogue officers will deceitfully or ignorantly argue that “invitation” is not included in it. Do not listen to them. Just in case you end up in the precinct, ask people to stay with you. Without any accompaniment, in the midst of these policemen/women, you will be at their mercy. Interrogation will commence. “In such an atmosphere, a man of ordinary or average composure may yield to a skilled investigator or one who, though unskilled, is prone to brutal techniques” (People vs. Dilao), which may include the threat of murder. Do not be alone. The law provides that an “invitee” must be allowed visits by or conferences: (1) with any member of his immediate family; or (2) with any medical doctor or priest or religious minister chosen by him; or (3) by his counsel; or

(4) by any national non-governmental organization duly accredited by the Commission on Human Rights or by any international non-governmental organization duly accredited by the Office of the President. Your immediate family includes your “fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.” (Section 2 (f) of R.A. 7438). Be vigilant. Assert your constitutional and human rights. At every opportunity, share your knowledge of police “invitations” and custodial investigation. In doing so, you may be preventing bad police officers from blackmailing innocent people. More importantly, you may be saving lives. As I have always said: Be concerned because in disregarding or being indifferent to the human rights of others, you may be endangering your own

Writs of amparo and habeas data On August 17, 2007 Puno said that the writ of amparo, would bar the military plea of denial (at a speech at the Volunteers Against Crime and Corruption’s 9th anniversary, Camp Crame). Under the writ, plaintiffs or victims will have the right of access to information on their lawsuits—a constitutional right called the “habeas data” derived from constitutions of Latin America. The final draft of these twin writs (retroactive) will be promulgated on October. Puno tersely summed the writs “In other words, if you have this right, it would be very, very difficult for State agents, State authorities to be able to escape from their culpability.” Puno stated that with the writ of Habeas corpus, the writs of Habeas Data and writ of amparo will further assist “those looking for missing loved ones“. On August 30, 2007, Puno (speech at Silliman University in Dumaguete City, Negros Oriental) promised to institute the writ of habeas data (“you should have the idea” or “you should have the data”). Puno explained that amparo bars alibi, while Habeas Data “can find out what information is held by the officer, rectify or even the destroy erroneous data gathered“. Brazil used the writ, followed by Colombia, Paraguay, Peru, Argentina and Ecuador. The Philippine 1987 Constitution was derived from the 1973 Ferdinand Marcos Constitution, its 1981 amendment, from the 1935 constitution, and from the United States Constitution. The United States Constitution was adopted in its original form on September 17, 1787, by the Constitutional Convention in Philadelphia, Pennsylvania, and later ratified by conventions in each state in the name of “the People.” The U.S. Constitution is the oldest written national constitution except possibly for San Marino ‘s Statutes of 1600, whose status as a true constitution is disputed by scholars. The Writ of Amparo is a remedy to enforce fundamental rights. “among the different procedures that have been established for the protection of human rights, the primary ones that provide direct and immediate protection are habeas corpus and amparo.

The difference between these two writs is that habeas corpus is designed to enforce the right to freedom of the person, whereas amparo is designed to protect those other fundamental human rights enshrined in the Constitution but not covered by the writ of habeas corpus.” The literal translation from Latin of Habeas Data is “you should have the data”. Habeas Data is a constitutional right to protect, per lawsuit filed in court, to protect the image, privacy, honour, information self-determination and freedom of information of a person. Habeas Data can used to discover what information is held about his or her person (via rectification or destruction of the personal data held. Habeas Data originated, inter alia, from the Council of Europe’s 108th Convention on Data Protection of 1981 (aimed at protecting the privacy of the individual regarding the automated processing of personal data; with right to access their personal data held in an automated database.

The writs of amparo and habeas data Published June 27, 2010 11:50pm

The writs of amparo and habeas data, invoked for protection and access to information respectively, were adopted by the Supreme Court upon the initiative of former Chief Justice Reynato Puno during the height of extrajudicial killings and enforced disappearances a few years ago. The SC, in its en banc session on September 25, 2007, promulgated the writ of amparo with the intent of precluding threats to and violations of a person's constitutional right to life, liberty and security. "This rule empowers our courts to issue reliefs that may be granted through judicial orders of protection, production, inspection and other relief to safeguard one's life and liberty. The writ of amparo shall hold public authorities, those who took their oath to defend the constitution and enforce our laws, to a high standard of official conduct and hold them accountable to our people," Puno said when he declared the promulgation.

Four months later, the High Court likewise approved the rules for the writ of habeas data, often dubbed as the twin of the writ of amparo. The writ of habeas data mandates the military and other government agents to release information about victims of extrajudicial killings or enforced disappearances. Both writs trace their origins to Latin American legislation and jurisprudence, such as those of Mexico, Brazil, Peru and Argentina. In October 2008, the SC issued its first amparo decision in favor of brothers Raymond and Reynaldo Manalo, who were reportedly abducted by a paramilitary unit in Bulacan in 2006. The two were able to escape in August 2007, after 18 months of torture. While local human rights group lauded the two writs, the Asian Human Rights Commission said these remain insufficient to address the spate of killings and abductions. The AHRC urged the Senate and the Lower House to enact laws to ensure protection of rights and provide victims with adequate legal remedies.

Writ of habeas data In a speech delivered on November 19, 2007 during the UNESCO Policy Forum and Organizational Meeting of the Information for all Program (IFAP), Philippine Supreme Court Chief Justice Reynato Puno took the opportunity to discuss the legal history of the Writ of Habeas Data, the latest legal instrument adopted by the Supreme Court to protect the basic human rights of the Filipino people in the midst of the cruelty, abuses and acts of hate and impunity committed by Philippine military and police personnel against unarmed and helpless leftist and cause-oriented peasant, labor and student leaders in the poverty-stricken towns and cities of the Philippines.

Puno said that the first and perhaps most famous of the legal instruments for the protection of peoples throughout the world was the petition for a writ of habeas corpus, roughly translated, “You should have the body.”

The writ of habeas corpus was a guarantee against deprivation of liberty of a person. It originated in the Middle Ages in England, recognized in the several versions of the Magna Carta, so that a person held in custody was brought before a judge or court to determine whether the detention is lawful or otherwise.

Aside from the writ of habeas corpus, in the United States, the writs of mandamus, prohibition, and certiorari are used to command a governmental agency to perform a ministerial function, prohibit the commission of an illegal act, or correct an erroneous act committed with grave abuse of discretion, Puno said.

He added that in the Latin American countries, particularly Mexico and Argentina, they crafted the writ of amparo which protects a whole gamut of constitutional rights and that in Taiwan, they have the writ of respondeat superior that makes a superior liable for the acts of the subordinate.

The most recent legal mechanism was the writ of habeas data, according to Puno.

The habeas corpus writ has been used for more than five centuries now. The writ of amparo has been used in Mexico in mid-19th century. Compared to those two, the writ of habeas data has a very short history. The writ of habeas corpus can be traced way back to as early as 1215 in the United Kingdom and subsequently codified in 1679; the writ of amparo first appeared in the State of Yucatan in 1841 and later in the Federal Constitution of Mexico in 1857. The roots of the writ of habeas data can be traced to the Council of Europe’s 108th Convention on Data Protection of 1981, Puno stated.

The writof habeas data as “a procedure designed to safeguard individual freedom from abuse in the information age”, he added. The European Data Protection Convention of 1981 was convened to

develop safeguards to secure the privacy of the individual by way of regulating the processing of personal information or data. In countries like Germany, the use of the writ of habeas data was justified by invoking “the people’s right to individual self-determination”. In Latin American countries, however, it found use “as an aid in solving their perennial problem of protecting the individual against human rights abuses”, he continued.

Looking at the landscape of several Latin American countries, one will find that the writ of habeas data has been embedded as a direct constitutional right. In general, “it is designed to protect – by means of an individual complaint presented to a constitutional court – the image, privacy, honor, information selfdetermination and freedom of information of a person”, he stated.

The first Latin American country to adopt the writ of habeas data is the Federal Republic of Brazil. In 1988, the Brazilian legislature voted a new Constitution, which included a novel right: the right to initiate a habeas data complaint on the part of a citizen. It is expressed as a full constitutional right under Article 5, Title II of the 1988 Brazilian Constitution:

“Habeas Data shall be granted: (1) to ensure the knowledge of information related to the person of the petitioner, contained in records or databanks of government agencies or of agencies of a public character; (2) for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative.”

This constitutional provision was further bolstered by Brazil’s National Congress in a 1997 regulatory law (Congreso Nacional de Brasil, Lei 9507).

Following the Brazilian example, Colombia incorporated the habeas data right in its 1991 Constitution. The 1991 Colombian Constitution, as reformulated in the 1997 version, recognizes the right to “individual privacy” and recognizes that the citizens shall have “the right to know, access, update and

rectify any information gathered about them in databases, both public and private.” In due time, many countries followed suit and adopted the new legal tool in their respective constitutions: Paraguay in 1992, Peru in 1993, Argentina in 1994, and Ecuador in 1996, Puno said.

The 1992 Paraguay Constitution follows the model set by Brazil, but has a stronger protection. Article 135 of the Paraguayan Constitution provides:

“Everyone may have access to information and data available on himself or assets in official or private registries of a public nature. He is also entitled to know how the information is being used and for what purpose. He may request a competent judge to order the updating, rectification, or destruction of these entries if they are wrong of if they are illegitimately affecting his rights.”

Puno stressed that aside from giving individuals the right to find out what information is being kept about them, the writ of habeas data seeks to protect the right to find out what use and for what purpose such data are being collected. The petitioner is also given the opportunity to question the data and demand their

“updating, rectification, or destruction.”

The Peruvian Constitution also recognizes the writ of habeas data. In Article 200, Section 3 of the Constitution of Peru, a similar provision much like Brazil’s and Paraguay’s can be found. More than that, their legislature was quick enough to provide for a regulatory law that took effect on April 18, 1995. The law recognized not only the procedural guarantees of updating one’s data as contained in manual or physical records, but also recognizing one’s right to update one’s “automated” data – those personal data kept and supplied by any “information service, automated or not.” In this model, the habeas data remedy “may be enforced against automated or digitized records”.

In Argentina, the writ of habeas data is not specifically called “habeas data” but is subsumed by the Argentine writ of amparo. Under Article 43 of the Argentine Constitution, entitled “The Writ of Amparo” or protection, it is stated thus:

“Any person may file this action (referring to the writ of habeas data) to obtain information on the data about himself and their purpose, registered in public records or data bases, or in private ones intended to supply information; and in case of false data or discrimination, this action may be filed to request the suppression, rectification, confidentiality or updating of said data. The secret nature of the sources of journalistic information shall not be impaired.”

Puno stated that in Paraguay an action for a writ of habeas data was filed to view police records bringing to light several atrocities that had been committed at that site. In Argentina, the Argentine Supreme Court ruled that the writ of habeas data was available to the families of the deceased in a case involving extralegal killings and enforced disappearances. It gave the victims access to police and military records otherwise closed to them. In essence, the decision established a right to truth.

The “right to truth” is fundamental to citizens of countries in transition to democracy, especially those burdened by legacy of massive human rights violations. This right entitles the families of disappeared persons to know the “totality of truth surrounding the fate of their relatives”. The exercise of the right is particularly crucial in disappearances driven by politics, because they usually involve “secret execution of detainees without any trial, followed by the concealment of the body with the purpose of erasing all material traces of the crime and securing impunity for the perpetrators”.

He stressed that, “truth is the bedrock of all legal systems”, whether the system follows the common law tradition or the civil law tradition. Justice that is not rooted in truth is “injustice in disguise”.

According to Puno, the Supreme Court was studying further how to strengthen the role of the judiciary as “the last bulwark of defense against violation of the constitutional rights of our people especially their right to life and liberty by the use habeas data”.

He expressed the hope that with the help of the writ of habeas corpus, the writ of amparo and the writ of habeas data, the Philippine Judiciary could finally “bring to a close the problem of extralegal killings and enforced disappearances in our country, spectral remains of the Martial Law regime”.