OSWAY, CHERRY EVER ODIEM LLB-IA CONSTITUTIONAL LAW II

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 Courts basis in issuing the Rule? The Rule was drafted pursuant to the Supreme Courts 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 Writ of Habeas Data (by Chief Justice Reynato Puno) Published by Atty. Fred February 23rd, 2008 in Elections and Constitutional Law. 0 Comments (This is a speech delivered by Supreme Court Chief Justice Reynato S. Puno on 19 November 2007, at the UNESCO Policy Forum and Organizational Meeting of the Information for all Program (IFAP), Philippine National Committee.) All over the world, judiciaries have been entertaining complaints and issuing writs pursuant to their task of pacifying disputes and resolving conflicts more importantly, in guaranteeing the protection and vindication of rights of the individual against violations by public authorities and private entities. In the history of law, filing an individual petition before courts to invoke constitutional rights has long been granted a substantive recognition. The first and perhaps most famous of these is the petition for a writ of habeas corpus, roughly translated, You should have the body. The writ of habeas corpus is 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 is brought before a judge or court to determine whether the detention is lawful or otherwise. Aside from the writ of habeas corpus, several writs have been developed to protect the rights of the individual against the State. In the United States of America, 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. In the Latin American countries, particularly Mexico and Argentina, they crafted the writ of amparo which protects a whole gamut of constitutional rights. In Taiwan, they have the writ of respondeat superior that makes a superior liable for the acts of the subordinate. There are other mechanisms to protect human rights, but the most recent of these legal mechanisms is the writ of habeas data. 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.1 The writ of habeas corpus can be traced way back to as early as 1215 in the United Kingdom and subsequently codified in 1679;2 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 Europes 108th Convention on Data Protection of 1981. The writ of habeas data may be said to be the youngest legal mechanism to appear in the legal landscape. A comparative law scholar has described habeas data as a procedure designed to safeguard individual freedom from abuse in the information age.3 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 peoples 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. 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.4 The

scope and concept of this writ vary from country to country; but in general, it is designed to protect by means of an individual complaint presented to a constitutional court the image, privacy, honor, information self-determination and freedom of information of a person. 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, which I quote: 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.5 This constitutional provision was further bolstered by Brazils 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.6 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. 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.7 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.8 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 Brazils and Paraguays 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 ones data as contained in manual or physical records, but also recognizing ones right to update one 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.10 The Argentine version, though not called habeas data, is more comprehensive than other Latin American models. Like the Paraguay model, the Argentine version includes the judicial remedy to enforce ones right to access, rectify, update, or destroy the data. This model also guarantees the confidentiality of personal or private information and makes specific the protection of journalistic privilege, of the lofty democratic role of the press. Several studies in legal literature deal with the varying effects of the writ of habeas data. Legislatures in Latin America and in Europe are constantly reviewing the parameters of the writ and the extent of its regulation. The writ ought to be constantly reviewed, especially in this age of Information Technology, when privacy can easily be pierced by the push of a button. But these studies undeniably show that the writ of habeas data has become an excellent Human Rights tool mostly in the countries that are recovering from military dictatorships.11 In Paraguay, for instance, 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. Indeed, 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. That kind of justice will not stand the test of time, for it is not anchored on reality but on mere images. Recently, the Supreme Court En Banc promulgated the Rule on the Writ of Amparo. The Philippine version of the writ of amparo is designed to protect the most basic right of a human being, which is ones right to life, liberty and security guaranteed by all our Constitutions starting with the 1898 Declaration of Philippine Independence and the Universal Declaration of Human Rights of 1948. We are 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. It is our fervent hope that with the help of the writ of habeas corpus, the writ of amparo and the writ of habeas data, we can finally bring to a close the problem of extralegal killings and enforced disappearances in our country, spectral remains of the Martial Law regime.

How habeas data complements writ of amparo By Leila Salaverria Philippine Daily Inquirer First Posted 00:34:00 02/03/2008 Filed Under: Judiciary (system of justice), Human Rights
MANILA, Philippines -- The writ of habeas data can be used to help resolve cases of extrajudicial killings and enforced disappearances. The rules state that in extrajudicial killings and disappearances, the victim?s immediate family or relatives up to the fourth degree can file a habeas data petition. According to Chief Justice Reynato Puno, the writ of habeas data complements the writ of amparo by helping produce or correct data that is relevant to protect the rights of a person who disappeared or is the victim of an extrajudicial killing. If the police or military, for instance, conduct a haphazard investigation or one with ?illegal or malicious? intent, they could hide or disregard data relevant to the solution of the killing or the disappearance. The writ can be used to produce information so that the families of the victims, especially those of the disappeared, will have a better picture of his fate despite the perpetrators? efforts to hide the details. Particularly crucial in ? ?This writ entitles the families of disappeared persons to know the totality of circumstances surrounding the fates of their relatives and imposes an obligation of investigation on the part of governments. This writ is particularly crucial in cases of political disappearances, which frequently imply secret executions of detainees without any trial, followed by the concealment of the bodies for the purpose of erasing all material traces of the crime and securing impunity for the perpetrators,? Puno said in a speech last Friday. The rules of habeas data prohibit a general denial of the allegations in the petition, and the respondent is required to state his lawful defenses, disclose the information and the purpose of its collection, the steps he took to ensure the security and confidentiality of the information, and the currency and accuracy of the data. When a respondent invokes such lawful defenses as national security or privileged communication, a judge may conduct a hearing in his chambers, which is not open to the public, and with precautions to ensure their secrecy. But the respondent is required to disclose the information to the court. Under the rules, the petitioner is also supposed to explain how his right to privacy is threatened or violated and how it affects his right to life, liberty and security. He should also detail his actions to secure the data, as well as its location. He must name the person in charge of the information. In case he is under threat, he should request for an order to stop the act. No fees for indigents Petitions for a habeas data writ can be filed in the regional trial courts. Petitions can also be brought to the Court of Appeals, Supreme Court or the Sandiganbayan antigraft court in cases where files of government offices are involved. Only indigent petitioners are exempted from paying docket fees. A respondent who refuses to respond to the petition or files a false return, or who disobeys court orders could be cited for contempt and punished with a fine or imprisonment. The rules also prohibit motions that could delay the resolution of the habeas data petition. These include motions to dismiss, for extension to file pleadings, for postponement of hearings, for intervention and for third party complaint.