MCLE – LAOAG CITYPRIMER ON THE RULE ON

THE WRIT OF AMPAROA.M. NO. 07-9-12-SC

By:

DEAN ED VINCENT S. ALBANOCollege of Law

University of Perpetual Help Laguna

Q – What is a petition for a writ of amparo?

Ans: The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with isolation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof. (Sec. 1).

Q – What constitutional rights are protected by the writ of amparo?

Ans: The rights of a person to life, liberty and security are protected by the writ of amparo.

Q – As compared to other jurisdictions which protect all constitutional rights, why is the writ applicable only to life, liberty and security?

Ans: The reason is that there are other remedies to protect the rights of a person, like the writ of habeas corpus and now the writ of habeas data.

Q – How is the rule compared to the same rule in other jurisdictions?

Ans: It is broader in its coverage. In other countries, the writ covers only actual violations. In the Philippines, it covers not only actual acts done but even threatened violations of rights, liberty and security. It even covers acts of private individuals or entities.

Q – The writ covers extrajudicial killings. What do you understand by the concept?

Ans: They are killings committed without due process of law. These include salvagings even of suspected criminals. The reason for this is that, even if a person is a criminal, he is still entitled to enjoy rights under the law and the Constitution.

Q – A, a radio commentator or a newspaper columnist has always been criticizing B, a high government official for his corrupt and illegal acts. B threatened to kill A and his family if he would persist in doing so. Can A file a petition for the issuance of a writ of amparo?

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Ans: Yes, because the rule covers those threats to take the life of a person who openly criticizes a government official. There is a violation of his liberty, or the freedom of expression which he is doing within the bounds of the law. It must be recalled that the SC once said that if a private individual is aware of the sins of a public official and keeps quiet, then, that is equally his sin. (Manuel vs. Pano).

Q – What constitute enforced disappearances?

Ans: They may constitute arrest or detention or abduction of a person by a government official or organized groups or private individuals acting with the acquiescence of the government. It may also come in the form of refusal of the State to disclose the fate or whereabouts of a person or a refusal to acknowledge the deprivation of liberty of a person which places him outside the protection of the law. (An example is the case of Jun Lozada).

Q – Who may file the petition for writ of amparo?

Ans: The petition may be filed by the aggrieved party or by any qualified person or entity in the following order:

(a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;

(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; or

(c) Any concerned citizen, organization, association or institution, if there is no known member of the immediate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all others, observing the order established herein. (Sec. 2).

Q – Why does the rule provide for an order of persons who can file the petition?

Ans: This is to prevent the indiscriminate and groundless filing of the petition that may cause prejudice to the life, liberty or security of the aggrieved party.

Q – Where may the petition be filed?

Ans: It may be filed with the RTC of the place where the threat, act or omission was committed or any of its elements occurred, with the Sandiganbayan, or CA or the SC, or any justice of such courts. (Sec. 3).

Q – If filed with the SB, CA or SC, is it enforceable anywhere in the Philippines?

Ans: Yes, the writ shall be enforceable anywhere in the Philippines. (Sec. 3).

Q – To whom is the writ returnable if filed with the SB or CA?

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Ans: It is returnable to before such courts or any justice thereof, or to the RTC of the place where the threat, act or omission was committed or any of its elements occurred. (Sec. 3).

Q – To whom is it returnable if filed with the RTC?

Ans: It is returnable to the RTC or any judge thereof. (Sec. 3).

Q – To whom is it returnable if filed with the SC?

Ans: It is returnable to the SC or any justice thereof, or to the CA, SB or any of its justices, or the RTC where the threat, act or omission was committed or any its of elements occurred. (Sec. 3).

Q – When the petition is filed, is there a need to pay docket fees?

Ans: No. This is in accordance with the free access to the court clause in the Constitution.

Q – State the contents of the petition.

Ans: The petition shall be signed and verified and shall allege the following:

(a) The personal circumstances of the petitioner;(b) The name and personal circumstances of the respondent responsible for the threat,

act or omission, or, if the name is unknown or uncertain, the respondent may be described by an assumed appellation;

(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report;

(e) The acts and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission; and

(f) The relief prayed for.

The petition may include a general prayer for other just and equitable relies. (Sec. 5).

Q – Explain the reason for the requirement that the petition should be verified.

Ans: This is to enhance the truthfulness of its allegations and to prevent groundless suits which may hamper the administration of justice.

Q – What are the purposes of the rule in requiring that affidavits be attached to the petition?

Ans: The affidavits serve: (1) to stand as the direct testimony of the affiant; (2) to facilitate the resolution of the petition considering the summary nature of the proceedings.

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Q – Why does the rule require that the petitioner should allege the actions and recourses taken by him to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission?

Ans: This is to prevent pre-mature recourse to the writ, if not misuse of the same. It might even be used for purposes of fishing expedition.

Q – What is the duty of the court when a petition for a writ of amparo is filed?

Ans: The court shall issue the writ immediately if on the face of it, it ought to issue. He can even issue it in his hand. (Sec. 6).

Q – When the writ is issued how soon shall it be heard?Ans: The writ shall set the date and time for summary hearing not later than seven (7) days from the date of its issuance. (Sec. 6).

Q – What is the equivalent of the return made by the respondent?

Ans: The return is in itself the comment or answer to the petition. The respondent shall then allege his defense or defenses which if not interposed, will be deemed waived.

Q – Will the writ issue upon the filing of petition?

Ans: Yes, it will issue as a matter of course when on the face of it, it ought to issue.

Q – What happens after the return is filed?

Ans: The court shall conduct a summary hearing and if petitioner is able to prove his cause of action, the privilege of the writ of amparo shall be granted. In granting it, the court will grant appropriate reliefs to the petitioner.

Q – How shall the writ be served?

Ans: It shall be served upon the respondent. If not, it can be served under the rules of substituted service. (Sec. 8).

Q – Why does the rule provide for substituted service?

Ans: To avoid a situation where the person concerned may evade service of the writ, thus, prejudicing the rights of the aggrieved party. The respondent, especially if he is a government official may easily be sent abroad on a mission to thwart the service of the writ and this would hamper the application for the writ to protect the life, liberty and security of the aggrieved party.

Q – What are the contents of the return of the service of the writ? Ans: Within seventy-two (72) hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall, among other things, contain the following:

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(a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty or security of the aggrieved party, through any act or omission;

(b) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission.

(c) All relevant information in the possession of the respondent pertaining to the threat, act or omission against the aggrieved party; and

(d) If the respondent is a public official or employee, the return shall further state the actions that have been or will still be taken:

i. to verify the identity of the aggrieved party;ii. to recover and preserve evidence related to the death or disappearance of the

person identified in the petition which may aid in the prosecution of the person or persons responsible;

iii. to identify witnesses and obtain statements from them concerning the death or disappearance;

iv. to determine the cause, manner, location and time of death or disappearance as well as any pattern or practice that may be brought about by the death or disappearance.

v. to identify and apprehend the person or persons involved in the death or disappearance; and

vi. to bring the suspected offenders before a competent court.

The return shall also state other matters relevant to the investigation, its resolution and the prosecution of the case.

A general denial of the allegations in the petition shall not be allowed. (Sec. 9). (See: Martinez vs. Mendoza).

Q – Explain the rationale for the requirement that the return should be a detailed one.

Ans: This is to help in the determination of whether the respondent fulfilled with the standard conduct required by the rule. It will also prevent the ineffectiveness of the writ of habeas corpus where the respondent would simply deny having custody of the aggrieved party. (See: Martinez vs. Mendoza).

Q – Why does the rule proscribe general denial in the return?

Ans: So that all the pieces of evidence relevant to the resolution of the petition may be presented especially as that the proceeding is a search for the truth.

Q – What is the effect if the respondent does not plead all defenses?

Ans: All defenses shall be raised in the return, otherwise they shall be deemed waived. (Sec. 10).

Q – What is reason for the prohibition of certain motions and pleadings?

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Ans: So that the proceedings may be expedited especially so that the life, liberty and security of a person are at stake. Furthermore, it is like the rule on summary procedure, the proceedings are summary in nature.

Q – If there is a ground for a motion to dismiss on the ground of lack of jurisdiction over the subject matter, may the respondent file such motion?

Ans: No, otherwise, it will cause delay. Instead, he should allege it in the return so the court may resolve it.

Q – Considering that the petition is summary in nature, what motions are prohibited?

Ans: The following pleadings and motions are prohibited:(a) Motion to dismiss;(b) Motion for extension of time to file return, 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.

11).

Q – What is the effect if the respondent fails to make a return?

Ans: The court or judge shall proceed to hear the petition ex parte. (Sec. 12).

Q – What is the reason for the ex parte hearing if the respondent fails to make a return?

Ans: To prevent frustration to the right to life, liberty or security of the petitioner.

Q – What is the nature of the hearing on the petition?

Ans: 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.

The hearing shall be from the day to day until completed and given the same priority as petitions for habeas corpus. (Sec. 13).

Q – Why is the hearing/proceeding summary in nature?

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Ans: This is so because the life, liberty and security of a person are at stake. If delayed and the person is killed, then, the purpose of the rule would be defeated.

Q – What reliefs may the court issue upon the filing of the petition?

Ans: Upon filing of the petition or at anytime before final judgment, the court, justice or judge may grant any of the following reliefs:

(a) Temporary Protection Order. -- The court, justice or judge, upon motion or motu proprio, may order that the petitioner or the aggrieved party and any member of the immediate family may be protected in a government agency or by an accredited person or private institution capable of keeping and securing their safety. If the petitioner is an organization, association or institution referred to in Section 3(c) of this Rule, the protection may be extended to the officers involved.

The Supreme Court shall accredit the persons and private institutions that shall extend temporary protection to the petitioner or the aggrieved party and any member of the immediate family, in accordance with guidelines which it shall issue.

The accredited persons and private institutions shall comply with the rules and conditions that may be imposed by the court, justice or judge.

(b) Inspection Order. -- The court, justice or judge, upon verified motion and after due hearing, may order any person in possession or control of a designated land or other property, to permit entry for the purpose of inspecting, measuring, surveying, or photographing the property or any relevant object or operation thereon.

The motion shall state in detail the place or places to be inspected. It shall be supported by affidavits or testimonies of witnesses having personal knowledge of the enforced disappearance or whereabouts of the aggrieved party.

If the motion is opposed on the ground of national security or of the privileged nature of the information, the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The movant must show that the inspection order is necessary to establish the right of the aggrieved party alleged to be threatened or violated.

The inspection order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection and may

prescribe other conditions to protect the constitutional rights of all parties. The order shall expire five (5) days after the date of its issuance, unless extend for justifiable reasons.

(c) 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 petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant.

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The motion may be opposed on the ground of national security or of the privileged nature of the information, in which case the court, justice or judge may conduct a hearing in chambers to determine the merit of the opposition.

The court, justice or judge shall prescribe other conditions to protect the constitutional rights of all the parties.

(d) Witness Protection Order. -- The court, justice or judge, upon motion or motu proprio, may refer the witnesses to the Department of Justice for admission to the Witness Protection, Security and Benefit Program, pursuant to Republic Act No. 6981.

The court, justice or judge may also refer the witnesses to other government agencies, or to accredited persons or private institutions capable of keeping and securing their safety. (Sec. 14). Note: The reason for this is that, the person may not

want the DOJ protection especially if he is against the government like Mr. Jun Lozada or even Rose Bud.

Q – What is the reason for the granting of a temporary protection order?

Ans: This is so because it is essential to the life, liberty and security, safety of the aggrieved party and even the immediate members of his family once the petition is filed.

Q – May the court issue the temporary protection order without motion?

Ans: Yes, it can be issued motu proprio since the life; liberty and security of the petitioner are at stake.

If there is a motion, it need not be verified.

Q – How do you distinguish a temporary protection order from an inspection and production order?

Ans: Temporary protection order may be issued ex parte or if by motion, the motion need not be verified. Production and inspection orders need hearings before they are issued. The motions are verified.

Q – Why is there a need for a motion when the petitioner seeks for an inspection order?

Ans: This is due to the sensitive nature of the order that there must be a motion and the motion should be duly heard.

Q – What is the remedy if the inspection order is issued with grave abuse of discretion on the part of the judge?

Ans: If the judge abuses his discretion in issuing the writ as when it compromise national security, the aggrieved party may file a petition for certiorari with the Supreme Court.

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Q – Is the inspection order available to both parties?

Ans: Yes, it is available to the petitioner and respondent.

Q – State the reason why a production order may only issue upon motion?

Ans: This is due to its sensitive nature.

Q – May the respondent likewise ask for interim reliefs?

Ans: Yes. Upon verified motion of the respondent and after due hearing, the court, justice or judge may issue an inspection order or production order under paragraphs (b) and (c) of the preceding section.

A motion for inspection order under this section shall be supported by affidavits or testimonies of witnesses having personal knowledge of the defenses of the respondent. (Sec. 15).

Q – State the rationale for the issuance of interim reliefs.

Ans: This is to ensure fairness in the proceedings.

Q – What happens if there is refusal to make a return?

Ans: The court, justice or judge may order the respondent who refuses to make a return, or who makes a false return, or any person who otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. The contemnor may be imprisoned or imposed a fine. (Sec. 16).

Q – What is the degree of proof necessary to establish the claim for the right to the writ?

Ans: The parties shall establish their claims by substantial evidence.

The respondent who is a private individual or entity must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.

The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty.

The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed to evade responsibility or liability. (Sec. 17).

Q – Within what time should the court decide the petition?

Ans: The court shall render judgment within ten (10) days from the time the petition is

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submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be denied. (Sec. 18).

Q – After judgment is rendered, to what court may it be appealed?

Ans: Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both. (This is an exception to the rule that the SC does not review facts, because of the very nature of the petition that the life, liberty and security of a person are in danger of violation or being violated.).

The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.

The appeal shall be given the same priority as in habeas corpus cases. (Sec. 19).

Q – What is the remedy from a judgment or order in a petition for a writ of amparo?

Ans: The remedy is appeal under Rule 45. The rule allows review of facts and law since the proceedings involve determination of facts like its subjects of enforced disappearances and extrajudicial killings. There is a need for a review of facts.

Q – What does the court do if the petitioner or witnesses do not appear during the trial?

Ans: The court shall not dismiss the petition but shall archive the same. (Sec. 20).

Q – Does the filing of the petition preclude the filing of other cases?

Ans: No, it shall not preclude the filing of separate criminal, civil or administrative cases. (Sec. 21).

Q – What is the nature of a writ of amparo?

Ans: It partakes of the nature of a prerogative writ as it is not criminal, civil or administrative in nature. It does not suspend the filing of criminal, civil or administrative actions.

Q – Amparo proceedings are not criminal in nature. What is the evidence that warrants the filing of a criminal action?

Ans: Yes, they are not criminal in nature, but if evidence warrants, then, the court will refer the case to the DOJ for criminal prosecution.

Q – If a criminal case has already been commenced, may the complainant still file a separate petition for a writ of amparo?

Ans: No. When a criminal action has been commenced, no separate petition for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case.

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The procedure under this Rule shall govern the disposition of the reliefs available under the writ of amparo. (Sec. 22).

Q – What is the rationale behind the rule that if criminal proceedings have been commenced, no petition for a writ of amparo shall be filed?

Ans: This is to prevent the difficulties that may be encountered by the petitioner when the amparo action is allowed to proceed separately from the criminal prosecution. The two courts may even render conflicting orders.

Q – What is the effect if a criminal or civil or administrative case is filed after the filing of the petition for a writ of amparo?

Ans: 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 amparo, the latter shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to apply to the disposition of the reliefs in the petition. (Sec. 23).

NOTES

Q – With the promulgation of the writ of amparo, has the writ of habeas corpus been rendered superfluous?

Ans: No, because it is available not only when one has been deprived of his liberty but even when such deprivation is threatened. In fact, it is available in an all-encompassing situation as regards the right to life, liberty and security. In short, it provides for a broader and wider protection to an individual, unlike the writ of habeas corpus which affords protection only to the right to liberty.

Q – Compared to the writ of amparo, what is the core of the power of the writ of habeas corpus?

Ans: The core of the power of the writ of habeas corpus is to command the person to whom the writ is directed to produce the body of the person restrained of liberty before the court or judge designated in the writ at the time and the place specified. Such power is not provided for in the writ of amparo. In the writ of habeas corpus, the protection is limited to the liberty of the person.

Q – If the writ of amparo is issued, what does it do?

Ans: When issued, it does two things, like:

(1) it allows the court to grant the aggrieved party or the petitioner interim reliefs provided for under Sec. 14 which is not available when the writ of habeas corpus is filed.

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(2) it sets the date and time for summary hearing of the petition.

Q – What actions may the court do when a petition for a writ of amparo is filed?

Ans: The court may issue the writ when the petition is filed and when it is warranted; and render a judgment after summary hearing.

Q – Can the writ of amparo issued upon the filing of the petition require the production of the person deprived of liberty and a showing of the legality of his detention?

Ans: No, otherwise, he should file a petition for habeas corpus because that is the function of the writ of habeas corpus, not the writ of amparo.

Q – If a person files a petition for habeas corpus, may the court declare the law unconstitutional?

Ans: Yes. The writ of habeas corpus not only directs the production of the body of the person detained or held in custody; it also allows the judge to inquire into the legality of the detention and, when necessary to the resolution of the issue declare the law under which he is detained unconstitutional. This is so because the hearing in a petition for habeas corpus is not summary in nature but a full-blown one, unlike in a petition for a writ of amparo.

Q – How about is a petition for a writ of amparo is filed, may the court declare the law unconstitutional?

Ans: No. The court merely grants the individual denied of his constitutional rights by government action relief, but not to declare the law behind the state action void or unconstitutional.

Q – Why cannot the court declare the law unconstitutional?

Ans: This is so because Section 13 provides for a summary hearing and has a number of motions commonly barred in summary proceedings (Sec. 17). Section 17 requires more than substantial evidence to support the petition. Hence, an amparo proceeding cannot pass upon the constitutionality of a law that has been raised as a defense in cases where the aggrieved party is deprived of liberty.

Q – What is then the basic function of the writ of amparo?

Ans: Its basic function is to cause the disclosure of the place of detention or incarceration of the aggrieved party, and to pass upon the issue of arbitrary or illegal detention. Hence, it cannot be an amparo contra leges.

Q – Under Sec. 18, if the allegations in the petition are proven by substantial evidence, the court shall grant the privilege of the writ and such reliefs as may be proper and appropriate, otherwise, it shall be denied. How do we reconcile this provision with the provisions of Sec. 6 which states that upon the filing of the petition, the court shall immediately order the issuance of the writ if on its face it ought to issue?

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Ans: The reconciliation may be like this. Upon the filing of the petition, the court determines on the basis of the allegations in the petition, whether or not, it will issue. If upon its face, it ought to issue, then, the court shall issue the writ. In the meantime, the court may grant interim reliefs under Sec. 14. Then, it sets the petition for a summary hearing and renders judgment by which the court decrees the measures necessary for the protection of life, liberty or security, or for the vindication of these rights when violated, as well as other reliefs prayed for. The judgment brings an end to the proceedings. In effect, the issuance of the writ if only preparatory to the judgment especially so that it is directed to the person who may have custody of another or responsible to the threat on the life, liberty and security of a person to make a return and allege his defenses.

Q – Is there a need for a hearing for the issuance of the writ of amparo?

Ans: No, because it can be issued ex parte. Under Sec. 6, the court shall issue the writ immediately upon the filing of the petition if warranted on the basis of the allegations.

Q – If there is a threatened violation of a right and the petition is filed, what is its effect?

Ans: If the writ is issued prior to the hearing, it impedes the perpetration of the threatened act.

Further reconciliation.

The person cited or the person against whom the writ issues prior to the hearing is ordered to provide information on that which is the object of the complaint of the violation of rights. The judgment is issued only after receipt by the court of information from the respondent.

The issuance of the writ ex parte is a notice to the respondent that his acts or omission is the subject of judicial scrutiny and constitutes a possible violation of the protected rights. It is a demand for him to interpose or provide the court with his defenses, if there be any.

Q – What is the extent of the availability of the rule?

Ans: The rule as intended is limited violations of life, liberty or security.

Amparo and Human Rights

Cases decided by the Inter-American Commission on Human Rights. These cases would show that the writ of amparo has been used to in relation to the protection of human rights.

In Emerita Gonzales vs. Costa Rica, Case 11.553, Repost No. 48/96, October 16, 1996, Montoya complained against rules for athlete competitions alleging that they were deliberately discriminatory against women since they provided for un-equal prizes for men and women winners and for fewer categories for women competitors than women competitors. In disputing her claim, the government of Costa Rica argued that the writ of amparo was available domestically to her to protect her rights as in fact; it has been invoked

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by its nationals as well as foreigners. In fact, it was pointed out that the writ of amparo can be used to nullify administrative norms and actions. The rules of procedure of the race could have been questioned by her through a writ of amparo. Since she did not follow this step, she was not entitled to the writ of amparo.

In Alberto Terier vs. Chile, Case No. 5713, Repost No. 56/8, October 16, 1981, there was a complaint against the Chile government that it was refusing him and his wife re-admission into the country. The government assailed the remedy to the Commission arguing that the decision of the Ministry of the Interior to deny re-entity could have been reversed by applying to the courts for a writ of amparo.

In the case of Marcos vs. Manglapus, there was a complaint of the Marcoses that they were refused admission into the Philippines despite their invocation of their right to return to the Philippines. The SC ruled that there is no such right guaranteed by the Constitution to return to one's country but that is a right guaranteed by the Universal Declaration of Human Rights. At the time the SC decision denying them the right to return to the Philippines, the rule on Amparo has not yet been promulgated. Today, if a Filipino is refused admission to the Philippines, he can seek for a writ of amparo for the protection of his liberty or right to return to the Philippines.

Notes:In Argentina, the husband of a woman complained about the procedure to which

visitors to the federal penitentiary where her husband was incarcerated. According to the woman, whenever she and her daughter visited her husband, they were subjected to vaginal searches which according to them were degrading and demeaning, hence, she filed a petition for a writ of amparo demanding that the inspections cease. The CFI denied it ruling that the searches were appropriate for maintaining prison security. The appellate court reversed the order/judgment. The SC of Argentina upheld the measures that were the object of the complaint/petition ruling that they were not flagrantly arbitrary in terms of the law of amparo since there were no other methods for detecting objects in the body of visitors coming into physical contract with inmates. (X vs. Argentina Case No. 10.506, October 15, 1996, Repost No. 38/96).

In Walter Humberto Vasquez vs. Pern, Case No. 11.66, October 16, 1977, Repost No. 46/97, a justice of the Supreme Court of Peru was ousted from office, among the 13 justice removed by President Alberto Fujimori seized control of key branches of the government. He even outlawed all claims for amparo which impugned the effect of the implementation of his Decrees. The result was that the dismissed justices were not able to avail of amparo to assail their dismissal.

Q – Does the Constitution provide for the writ of amparo?

Ans: No, there is no express provision on the writ of amparo.

Q – Where did the writ of amparo originate; give its concept.

Ans: It originated in Mexico. Amparo means to protect, hence, it is an effective and inexpensive means for the protection of constitutional rights. (Adolf S. Azcuna, The Writ of Amparo: A Remedy to Enforce Fundamental Rights, 37 Ateneo, L.J. 15 (1993)).

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Q – Are there provisions in the Constitution providing for the amparo protection?

Ans: Yes, like Section 1, Article VIII of the Constitution which defines the expanded concept of judicial power, to include the duty of the courts of justice to settle all controversies involving rights which are legally demandable and enforceable, and determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. The second clause of Sec. 1 which is the grave abuse clause, accords a general protection to human rights given by amparo casacion, and amparo administrativo.

Q – What is amparo casacion? Is it recognized in the Constitution?

Ans: It is the power of judicial review of the constitutionality and legality of a judicial decision. It is recognized under the provisions of Sec. 5(2) of the Constitution which provides that the Supreme Court shall have the power to review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of Court may provide, final judgments and other orders of lower courts. This is otherwise known as the power of judicial review.

Q – How is the rule-making power of the SC described?

Ans: In Echegaray vs. Secretary of Justice, G.R. No. 132601, January 19, 1999, it was said:

“The rule-making power of this Court was expanded. This court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most important, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice, and procedure is no longer shared by this Court with Congress, more so with the Executive. (People vs. Lacson, G.R. No. 14953, April 1, 2003).

Q – If the writ of amparo is not expressly provided for in the Constitution, can it be said that it is impliedly provided therein?

Ans: Yes. It is deemed provided/included in the provision empowering the SC to promulgate rules concerning the protection and enforcement of constitutional rights.

Q – Can the writ of amparo be both a human rights protector and a justice tool? Explain.

Ans: Yes, for some reasons.

(1) The first reason is that the petition for a writ of amparo is a remedy available to any person where right to life, liberty and security is violated or threatened. Note that the basic rights to life, liberty and security, rights that make man and woman human, are covered. The right to life refers to the right to existence and the right to the protection

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of physical and mental attributes which a person must have, in order to be able to enjoy a good life. The right to liberty, writes Justice Malcolm in Rubi vs. Provincial Board of Mindoro, G.R. No. L-14078, March 7, 1914, cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties endowed by his Creator. The right to security is not mentioned in the Bill of Rights of the 1987 Constitution but is mentioned in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. But reading the two international instruments, one gets the idea that the right to security refers to one's right not to be subjected to unreasonable searches and seizures and not to be subjected to arbitrary and illegal arrests which is found in Section 2, Article III of 1987 Constitution.

(2) The second reason is that the writ of amparo covers not only government officials but also private individuals or entities. Entities refer to artificial or juridical persons since they too are capable of committing an act or omission. The Filipino writ is broader than the original Mexican amparo because the latter applies only to public officials. The broader Filipino writ is consistent with the 1987 Constitution because the Commission on Human Rights can investigate violations committed by public officials and private individuals.

(3) The third reason is that the petition may be filed not only by the aggrieved party but also by any concerned citizen, organization, association or institution if there is no known member of the immediate family or relative of the aggrieved party. This is a recognition of civil society organizations and the important role that they play in the legal and meta-legal struggles of victims of injustices. Close to the Filipino amparo is the Argentine amparo which provides that the petition “may be filed by the damaged party, the Ombudsman and the associations which foster such ends.”

(4) The fourth reason is that the petitioner is exempted from the payment of the docket fee and other fees when filing the petition. This is welcome news to the poor because most of the victims of extralegal killings and disappearances are the deprived and marginalized. This provision breathes life to Section 12, Article III, 1987 Constitution that provides “Free access to the courts... shall not be denied to any person by reason of poverty.”

(5) The fifth reason is that the rule abandons traditional legal doctrines and principles that are not helpful to the objectives of the writ. The rule does not require the petitioner to exhaust administrative remedies, does not allow public officials to invoke presumption that official duty has been regularly performed to evade responsibility or liability and does not allow dismissal of petition but only its archiving if upon its determination it cannot proceed for a valid cause like failure of petitioners or witnesses to appear due to threats on their lives; and, does not allow general denial.

(6) The sixth reason is that while the rule abandons not-so-helpful legal principles, it adopts new legal paradigms that will enhance the protective character of the writ. These new legal paradigms are the interim reliefs that are available to the parties and can be given immediately after the filing of the petition or at any time before final judgment. These reliefs are the temporary security order, inspection order, the protection order and the witness protection order. Under the rule on temporary

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protection order, not only a government agency can provide protection to the petitioner or the aggrieved party and any member of the immediate family but also an accredited person or private institution capable of keeping and securing their safety.

(7) The seventh and final reason is that the Filipino amparo discourages public officials to make blanket denials of custody of victims of enforced disappearances. These blanket denials were common during the Marcos regime and contributed a lot in aggravating the problem of extralegal killings and disappearances. Section 9 of A.M. No. 07-9-12-SC commands the respondent to file a verified return together with supporting affidavits which shall, among others, contain (a) the steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threats, acts or omission; (b) all relevant information in the possession of the respondent pertaining to the threat, act or omission against the party; (c) actions that have been or will still be taken to recover and preserve evidence related to the death or disappearance of the person identified in the petition which may aid in the prosecution of the person or persons responsible and to determine the cause, manner, location and time of death or disappearance.

Q – May the respondent make a return alleging a general denial?

Ans: No. In Dizon vs. Eduardo, 158 SCRA 470 (1988), an enforced disappearance case, Jose W. Diokno, bewailed and bemoaned the inadequacy of the writ of habeas corpus in addressing this problem and suggested ways on how to make the remedy more effective. This inadequacy of the remedy was reflected in the “ponencia” of Chief Justice Claudio Teehankee when he said:

“III. The Court regrets that it cannot grant the relief sought by petitioners. It is not the repository of all remedies for every grievance. But the Court does not state that under the facts and circumstances above set forth, it is far from satisfied and as already indicated shares the grave doubts about public respondents' allegation that they had released the desaparecidos on September 24, 1981, nine days after they were taken into custody. Petitioners' charges of falsification of the detainees' alleged signatures on the certificates of release, compounded by the irregularities and failure of respondents to follow the prescribed procedure in effecting the release for purposes of authentication and to produce and furnish the parents upon request copies of the release certificates (taking one month in the case of Isabel Ramos and three months in the case of Eduardo Dizon) need thorough investigation. If duly determined, they would involve, as indicated by Diokno, prosecution for criminal contempt, falsification of public document, perjury and violation of Article 125 of the Revised Penal Code requiring delivery of detained persons to the judicial authority within the periods therein fixed, and worse. This connotes that the respondents with their subordinates who executed the supporting affidavits, Major Cabauatan and Lt. Maranon, were involved in a grand conspiracy for this purpose. The Court cannot make this determination. It is not a trier of facts, nor does it have the means and facilities to conduct such investigation of the grave charges at bar as well as of the whereabouts and fate of the desaparecidos.”

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SITUATIONS IN WRIT OF AMPARO

1. Rights group on receiving end of amparo (Daily Inquirer, January 28, 2008).

The human rights group Karapatan which has helped abused victims and their families seek protection from state agents under the writ of amparo, has found itself on the receiving end of the writ after being accused of illegally detaining someone.

The wife and relatives of Elizer Orlina filed a petition for a writ of amparo with the SC asking the SC to order the respondents to desist from harming him, his family and relatives and from violating their rights. They also asked the SC to allow them to inspect the safe houses of Karapatan-Southern Tagalog.

They alleged that Elizer has been in the custody of the Karapatan group against his will. They are afraid that unless he is immediately released or his whereabouts known, his life may be in danger. They alleged that petitioner and Elizer were told by Karapatan members that their son was in the custody of the military. Puyos one of the petitioners and Elizer went to Gumaca, Quezon and met with Rodel, their son who voluntarily decided to be placed under the custody of the military, Puyos went home ahead of Elizer who was taken by three (3) Karapatan members without his consent from Lavidez who had custody of Elizer before he was taken.

2. If a law graduate who is reviewing for the Bar Exam impregnates a girl and refuses to marry the girl and the parents would threaten to file a case against him in the Supreme Court to prevent him from taking the Bar Exam, will the writ of amparo issue?

The writ will not issue because there is a valid reason to threaten him. There is a legal right that is enforceable and demandable.

3. After the rendition of a judgment, a judge received a series of text messages threatening him. He even receive an envelop containing a black ribbon. Can he file a petition for the issuance of a writ of amparo?

* * * *There are reports where the NPAs go to communities and demand for money, food

supplies and the like. Can the people go to court and ask for the issuance of the writ of amparo?

Other Situations in Writ of Amparo

1. In Arturo Lozada vs. Arroyo, et al., G.R. No. 181356, filed on February 6, 2008 before the SC, petitioner alleged:

(1) Last January 31, 2008, by virtue of its contempt powers, the Senate of the Republic of the Philippines issued a Warrant of Arrest for Rodolfo Noel I. Lozada, Jr., (“Jun Lozada” for brevity), subject of this petition, for leaving the country on the day he was subpoenaed to testify at the Senate Blue Ribbon Committee hearings

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on the ZTE National Broadband Deal

(2) The ZTE investigation pertains to the alleged corruption involving the First Gentleman and husband of Respondent Pres. Gloria Arroyo on the ZTE Broadband contract;

(3) On February 6, 2008, petitioner and the family of Jun Lozada, was informed by the latter that he was returning home on the said date. He was slated to arrive in the Philippines at 4:40 in the afternoon from Hong Kong via Cathay Pacific Flight No. 919;

(4) At around the said time, members of Jun Lozada's family, as well as the Office of the Senate Sergeant-at-Arms and media practitioners were on hand at the NAIA Terminal I to witness the arrival of Jun Lozada. However, at the appointed time, and despite the fact that Cathay Pacific landed at its scheduled time, Jun Lozada did not disembark and exit through the normal channels such as passing through the Immigration and Customs authorities;

(5) Petitioner failed to meet and locate Jun Lozada. The family members were distraught and disconsolate that Jun Lozada was nowhere to be found. Thereafter, petitioner received reports that Jun Lozada was met by airport security at the plane who were under the direct supervision and control of Gen. Angel Atutubo, Chief Security of NAIA. Petitioner further confirmed that the Office of the Senate Sergeant-at-Arms failed to effect the arrest on Jun Lozada;

(6) According to reports, respondent General Angel Atutubo surrendered Jun Lozada to respondent SPO4 Roger Valeroso. In addition, in today's morning radio reports, respondent PNP Chief Avelino Razon admitted on the air that they have custody over the person of Jun Lozada. This announcement notwithstanding, petitioner has no surfaced;

(7) In a text message in Ligao, Bicol dialect to his family, Jun Lozada said that:

(i) “Ipaayat tulos sa simbahan na iluwas ako nguanang gabi asap. Laguna na ako. ASAP. (Translation Ask the church immediately to get

me out tonight as soon as possible. I’m in Laguna now. AS SOON AS POSSIBLE).

(8) Undersigned counsel tried to get in touch with the authorities including Gen. Atutubo but there were no answers;

(9) The family, distraught and worried, decided to seek redress from the court through the Writ of Amparo to ensure that all possible remedies are availed of considering the controversial nature of the involvement of Jun Lozada.

(10) The right to life, liberty and security of Jun Lozada is threatened when the respondents abducted him from the airport. That the taking was arbitrary and that he did not know where he was being brought are proven by his text message informing his family that he was being taken to Laguna and is pleading that he be

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surfaced with the help of the church;

(11) This is a violation of his constitutional right under Section 1 of Article III of the Constitution which states that no one “shall be deprived of life, liberty and property without due process of law”.

(12) Furthermore, the abduction and detention of Jun Lozada are violations of his other constitutional rights under the Bill of Rights;

(13) The respondents have no legal basis to hold Jun Lozada, especially since there is a standing warrant of arrest issued by the Senate on Jun Lozada.

There was a prayer for the issuance of a writ of amparo.

2. In the case of Cecilia Oreña Drilon, et.al. v. Hon. Ronaldo Puno, et.al., G.R. No. 181067, filed on January 21, 2008 by ABS-CBN News crew, they prayed for the issuance of a writ of amparo alleging that there are continuous threat to their life security and liberty as members of the press even if they are exercising their profession as journalists and newscasters and members of the news crew of ABS-CBN. In their petition, they alleged that;

(1) They were lawfully reforming their journalistic duties as part of the ABS_CBN News and Current Affairs Group on November 29, 2007;

(2) They were covering the Trial of Senator Trillanes and others at the RTC, Makati when the latter decided to walk out from the court room and walked to the Manila Peninsula Hotel, Makati, in protest of what was happening in court;

(3) They were dispatched by ABS-CBN to the hotel to further cover the incident;

(4) There were negotiations between the government authorities and the group of Senator Trillanes for the latter to surrender but initially, there was no positive result, until the government forces displayed force and fired shots and teargas were released into the area;

(5) The journalists were forced to take refuge in the Rizal function room of the hotel together with other people who were in the premises;

(6) When the group of Senator Trillanes finally decided to surrender, the journalists were shocked and dismayed since they were arrested and brought to Camp Bagong Diwa.

(7) Despite their arrest, they were never charged but Gen. Razon even aired threats to the media that if the media will file charges against them they would also filed charges against the media and said;

“Eh kung gusto nilang paratingin sa ganong punto, eh sabihin na lang po…”

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(8) Likewise, Secretary Puno aired the same threats that if members of the media would not heed the advice of the police to leave the place in case of emergency, then, they would be forced to arrest them. Secretary Raul Gonzales aired the same thing.

Are these acts covered by the writ of amparo?

It must be noted that there was a blatant violation of the constitutional rights, liberty and security of the members of the media since they were illegally arrested. The threats and arrest were intended to intimidated, scare, cow, and bully the members of media. In fact, there is a chilling effect on the freedom of expression and the right to information. This is similar to the case of Babst v. Minister of National Defense, 132 SCRA 316 where it was ruled that an invitation given to a journalist by the military to determine her way of thinking based on past writings has a chilling effect, even on future writings and thus, amounts to prior restraint.

Case references:

1. Kapunan, Jr. v. AFP Chief of Staff, et.al., December 6, 1988;2. Gonzales v. Katigbak, 137 SCRA 717;3. In Re: Emil Jurado, Jr., Adm. Matter No. 90-5-2373, July 12, 1990;4. Non v. Dames II, May 20, 1990;5. Miriam College Foundation, Inc. v. CA, et.al., December 5, 2000;6. Zaldivar v. Gonzales, Feb. 1, 1989; and October 7, 1988;7. Adiong v. Comelec, 207 SCRA 7128. Reyes v. Bagatsing, 125 SCRA 553;9. Navarro v. Villegas, 31 SCRA 73010.Hongkong Special Administrative Region v. Hon. Felixberto Olalia, April 19, 200711.People v. Mengote, 210 SCRA 17412.People v. Posadas, 188 SCRA 288;

3. In another case, there was a petition for a writ of amparo filed in behalf Monchito Lusterio, a discharged member of the Philippine Marines who is now in hiding for having been implicated in the Manila Peninsula standoff last November. They sought for the writ to compel the respondents from continuing to disseminate “Wanted” posters that include his name and photographs. He has not been charged. They contended that he was not with the group of Senator Trillanes as he was then working as a security guard.

Does this include the right of an accused who is a fugitive from justice whose picture is being published in newspapers and posted in public places?

WRIT OF HABEAS DATAA: M NO. 08-1-16-SC

EFFECTIVE JANUARY 2, 2008

Q- What is a writ of habeas data?

Ans. 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

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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.

Q- What could be the basis of the writ?

Ans. It can be said that it is based on the principle that the privacy of one’s person, family and home is a sanctified right in the history of constitutional law. (Irene Cortes, The Constitutional Foundations of Privacy, in Emerging Trends (UP Press, 1983). It has been said that a man’s home is his kingdom, which even the king has to respect. (same source); Morfe v. Mutuc, 130 Phil. 415; 22 SCRA 424).

Q- Who may file a petition for a writ of habeas data?

Ans. 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.

Q- Where should the petition be filed?Ans. 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 opinion of the petitioner.

The petitioner 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.

Q- Where is the writ returnable?

Ans. If issued by the RTC, it is returnable to the said Court.

If issued by the CA or the SB, it is returnable to said court or any RTC where the petitioner or respondent or that which has jurisdiction over the place where the data or information is gathered or collected or stored.

If issued by the SC, it is returnable to the same court or CA or SB or RTC 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. (Section 4). It is enforceable anywhere in the Philippines. (Section 4(2).

Q- Does an indigent petitioner need to pay the docket fee if he files the petition?

Ans. No, but subject to the submission of proof of indigency not later than 15 days from filing. (Sec. 5) This is in compliance with the free access to court clause in the Constitution.

Q- State the contents of the petition.

Ans. 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 resources 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;

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(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. 6)

Q- May the writ be issued immediately upon the filing of the petition?Ans. Yes. 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. (Sec. 7). It will set the date and time for the summary hearing of the petition but not later than 10 working days from the date of its issuance. (Sec. 7).

Q- Is there a need for a hearing?

Ans. None, because of the urgency of the matter as it affects the life, security and liberty of the petitioner.

Q- How shall the writ be served.

Ans. 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.

Q- The respondent or respondents are required to make a return of the writ. State the contents of the return.

Ans. 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.

Q- May a respondent who refuses to make a return or make a false return be punished?

Ans. Yes. 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. 10)

Q- When may the defenses be heard in the chambers?

Ans. 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. 12)

Q- The petition is summary in nature. State the prohibited pleadings and motions.

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Ans. 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; (Sec. 13)

Q- What may the court do if the respondent fails to make a return?

Ans. 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. 14)

Q- What is the nature of the hearing of the petition?

Ans. 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. 15)

Q- Within what period should the court render a judgment on the petition and state the contents of the same.

Ans. 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. (Sec. 16)

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) working days.

Q- What shall the sheriff do after enforcement of the writ?

Ans. 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 return how the judgment was enforced and complied with by the respondent, as well s all objections of the parties regarding the manner and regularity of the service of the writ. (Sec. 17)

Q- What is the remedy of an aggrieved party after judgment is rendered?

Ans. 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. (Sec. 19)

Q- State the effect of the filing of the petition in relation to the right to file other actions?

Ans. The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions.

The reason for the rule is that, the writ partakes of the nature of a prerogative writ. It is not a criminal, civil or administrative suit. It does not suspend the filing of a criminal, civil or administrative action.

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Q- State the effect of the filing of a criminal action after the filing of the petition.

Ans. 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. 21)

Q- What is the effect if a criminal action is filed before the petition for a writ of habeas data is filed?

Ans. 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 the 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. 22)

Q- What is the basis of the Supreme in issuing the rule?

Ans. It is based on the constitutional power of the Supreme Court to promulgate rules for the protection and enforcement of constitutional rights. (Art. VIII, Sec. 5(5) Constitution).

Q- Give the history of the writ of habeas data.

Ans. The literal translation from Latin of Habeas Data is “you should have the data”. Habeas Data is a constitutional right granted in several countries in Latin-America. It shows variations 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, honour, information self-de-termination and freedom of information of a person.

Habeas Data can be brought up by any citizen against any manual or automated data regis-ter to find out what information is held about his or her person. That person can request the rectification, actualization or even the destruction of the personal data held. The legal nature of the individual complaint of Habeas Data is that of voluntary jurisdiction, this means that the person whose privacy is being compromised can be the only one to present it. The Courts do not have any power to initiate the process by themselves.

Habeas Data is an individual complaint before a Constitutional Court. The first such complaint is the Habeas Corpus (which is roughly translated as “you should have the body”). Other indi-vidual complaints include the writ of mandamus (USA), amparo (Spain and Mexico), and respondeat superior (Taiwan).

The Habeas Data writ itself has a very short history, but its origins can be traced to certain European legal mechanisms that protected individual privacy. This cannot come as a sur-prise, as Europe is the birthplace of the modern Data Protection. In particular, certain Ger-man constitutional rights can be identified as the direct progenitors of the Habeas Data right. In particular, the right to information self-determination was created by the German Constitu-tional Tribunal by interpretation of the existing rights of human dignity and personality. This is

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a right to know what type of data are stored on manual and automatic databases about an in-dividual, and it implies that there must be transparency on the gathering and processing of such data. The other direct predecessor of the Habeas Data right is the Council of Europe’s 108th Convention on Data Protection of 1981. The purpose of the convention is to secure the privacy of the individual regarding the automated processing of personal data. To achieve this, several rights are given to the individual, including a right to access their personal data held in an automated database.

The first country to implement Habeas Data was the Federal Republic of Brazil. In 1988, the Brazilian legislature voted a new Constitution, which included a novel right never seen before: the Habeas Data individual complaint. It is expressed as a full constitutional right under article 5, LXXI, Title II, of the Constitution.

Following the Brazilian example, Colombia incorporated the Habeas Data right to its new Constitution in 1991. After that, 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.

Implementation of the Rule in Foreign Countries

Brazil: The 1988 Brazilian Constitution stipulates that: “Habeas Data shall be granted: a) 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; b) for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative”.

Paraguay: The 1992 Paraguay constitution follows the example set by Brazil, but enhances the protection in several ways. The Article 135 of the Paraguayan Constitution states: “Every-one may have access to information and data available on himself or assets in official or pri-vate 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, rectifi-cation, or destruction of these entries if they are wrong or if they are illegitimately affecting his rights.”

Argentina: the Argentinian version of Habeas Data is the most complete to date. The article 43 of the Constitution, amended on the 1994 reform, states that: “Any person shall file this action 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, confi-dentiality or updating of said data. The secret nature of the sources of journalistic information shall not be impaired.”

Philippines: On August 25, 2007, Chief Justice Reynato Puno (at the College of Law alumni of Silliman University in Dumaguete City) announced that the Supreme Court of the Philippines was drafting the writ of Habeas Data. By invoking the truth, the new remedy will not only compel military and government agents to release information about the desaparecidos but require access to military and police files. He announced earlier on the draft of the writ of amparo -- the Spanish for protection -- which will prevent military officials in judicial proceedings to simply issue denials on cases of disappearances or extrajudicial

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executions. With the writ of habeas corpus, the writ of Habeas Data and the writ of amparo will further help those looking for missing loved ones.

Q- Why is there a need for the writ?

Ans. The writ is used for the protection of human rights to life, liberty, security especially in this day and age of information technology when privacy of a person can easily be pierced by the push of a button. An unforeseen effect of this writ is that it has become an excellent hu-man rights tool mostly in the countries recovering from the military dictatorships.

Examples:

1.) In Paraguay, an action for habeas data was successfully filed to assert the right to view the records of a police station bringing to light several atrocities that have been committed.

2.) In Argentina, the right to truth was upheld by the Supreme Court of Argentina. When it granted the writ of habeas data applied for by the families of the deceased in cases in-volving extrajudicial killings and enforced disappearances. This was a recognition of the disappeared, usually victims of military regime, to request access to police and mil-itary records which were closed to them.

Q- State the nature of the right to truth.

Ans. The right to truth is a component of the right to life, liberty and security. It is the bedrock of the rule of law, which the State is obligated to protect with all obstinacy under national and international law. (Art. 8, Universal Declaration of Human Rights). No family member can sleep well without knowing the true whereabouts of his or her father, mother, brother, sister, son or daughter. Indeed truth has and will always set us free.

Q- How is the writ of habeas data interrelated with the writ of amparo? Explain.

Ans. It is not only complimentary to the writ of amparo. It is an independent remedy to en-force the right to informational privacy. All persons have the right to access information about themselves, especially if it is in the hands of the government. Any violation of this right ought to give the aggrieved person the remedy to go to court to modify, remove or correct such mis-information. The right to access and control personal information is essential to protect one’s privacy, honor and personal identity, even as it underscores accountability in information gathering.

Q- Can we say that the writ is a guarantee to the right to privacy and the right to truth? Exem-plify.

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Ans. Yes. Recourse to the action for habeas data has become a fundamental instrument for investigations into human rights violations committed during past military dictatorships in the Western Hemisphere. Family members of disappeared persons have used actions for habeas data to obtain information concerning government conduct, to learn the fate of disap-peared persons, and to exact accountability.

Q- State the basic components of the right to privacy.

Ans. The right to privacy involves the most basic rights of individual conduct and choice. It in-cludes the right of a person to prevent intrusion upon certain thoughts and activities, including freedom of speech and freedom to form or join associations. The right includes the constitu-tional freedom from unreasonable searches and sieges and from self-incrimination.

ZONES OF PRIVACY IN PHILIPPINE LAW

1.) Art. III, Sec. 3 (1) – the privacy of communication and correspondence clause;

2.) Art. III, Sec. 1 – the due process clause

3.) Art. III, Sec. 2 – the right against unreasonable searches and seizures clause.

4.) Art. III, Sec. 6 – The liberty of abode clause

5.) Art. III, Sec. 8 – The right to form and join associations clause;

6.) Article III, Sec. 17 – The right against self- incrimination clause.

7.) Article 26, NCC – respect to the dignity, personality, privacy and peace of mind

8.) Article 32, NCC – where a public officer or private individual may be held liable if he violates the rights and liberties of another;

9.) Article 229, RPC which makes it a crime the violation of the secrets by an officer;

10.) Article 290-292, RPC which penalize the revelation of trade and industrial se-crets;

11.) Article 280, RPC on trespass to dwelling.

12.) R.A. 1405, the Secrecy of Bank Deposits Act

13.) The Rules of Court on privileged communications recognize privacy. (Rule 130 (c) Sec. 24).

Philippine Jurisprudence on the Writ of Habeas Data

1. Arnault v. Nazareno, 87 Phil. 29 (1950) where the petitioner invoked the right to privacy before an investigation of the Blue Ribbon Committee of the Senate, in

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dealing with other persons. The SC ruled that there was no violation of the right. Thereafter, there was a shift to a modern jurisprudential theory respecting and upholding the right to privacy.

2. Morfe v. Mutuc, 92 SCRA 424 where there was a petition for declaratory judg-ment challenging the validity of the Anti-graft and Corrupt Practices Act (RA 3019). Under the law, government employees are required to submit their state-ment of assets and liabilities in January of each year. It was challenged as un-lawful invasion of the constitutional right to privacy which is implicit in the prohi-bition against unreasonable searches and seizures and of the right against self-incrimination. The Supreme Court upheld the validity of the law because the law did not call for the disclosure of information, an act that would violate the right to privacy of a person to privacy of a person.

3. Ramirez v. CA, G.R. No. 93833, September 28, 1995, 248 SCRA 590, where the SC recognized the right to privacy of a person. It upheld the person’s pri-vacy to a communication and held that a person who recorded a private conver-sation with another without the knowledge of the other is a violator of the provi-sions of Sec. 1, RA 4200.

4. Ople v. Torres, 354 Phil. 948 (1998), where he SC ruled that the right to privacy does not bar all intrusions into individual privacy. The right is not intended to sti-fle scientific and technological advancements that enhance public service and the common good. It merely requires that the law be narrowly focused and a compelling interest justifies such intrusion. Intrusions into the right must be ac-companied by proper safeguards and well – defined standards to prevent un-constitutional invasions. Any law or order that invades individual privacy will be subjected by this Court to strict security.

5. Tambasan v. People, G.R. No. 89130, July 14, 1995 where the Supreme Court said that the basis of the power to search is public policy. Although public wel-fare is the foundation of the power to search and seize, such power must be ex-ercised and the law enforced without transgressing the constitutional rights of the citizens. In Bagalihog v. Fernandez, 198 SCRA 614, it was held that zeal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the constitution itself abhors.

Cases:

a.) Republic v. SB and Maj. Gen. Josephina Ramos, teal., G.R. No. 104768, July 31, 2003;

b.) Veroy v. Layague, 210 SCRA 97

c.) Aniag v. Comelec, G.R. No. 104961 October 7, 1994.

6. Villaflor v. Summers, 41 Phil. 62 where a woman charged with the crime of adultery can be compelled to undergo physical examination to determine

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whether she was pregnant or not. There was no violation of her right to self-in-crimination.

Cases:

a.) People v. Olvis, September 30, 1987;

7. Zulueta v. CA, et.al., G.R. No. 107383, February 20, 2996 where the SC did not allow the use of documents illegally obtained by the wife of a doctor from his drawer. The intimacies between the husband and wife do not justify any one of them breaking the cabinets and drawers of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his or her integrity or right to privacy as an individual and constitutional protection and the constitutional protection is ever available to him or to her.

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