|
Generations of law students and lawyers, many of whom are
now prominently serving in the Judiciary, are familiar
with the landmark case of US v. Bustos, G.R. No. L-12592,
March 18, 1918. The issue in that case was whether or not
34 citizens of Pampanga are liable for the crime of libel
for preparing, signing and sending a petition to the
Executive Secretary complaining the Justice of the Peace
of Macabebe and Masantol, Pampanga, for malfeasance in
office and asking for his removal. In his ponencia that
remains up to this day a literary gem, Justice George A.
Malcolm wrote, among others, that the liberty to comment
on the conduct of public men is a scalpel and the incision
of its probe relieves the abscesses of officialdom. The
word “scalpel” was used anew in the recent case of Neri v.
Senate Committee on Public Officers and Investigation, et.
al., G.R. No. 180643, March 25, 2008, where Chief Justice
Reynato S. Puno wrote in his dissent that “[A] holistic
view of the doctrine of executive privilege will serve a
hermeneutic scalpel to excise the fat of information that
does not fall within the ambit of the privilege and to
preserve only the confidentiality of the lean meat of
information it protects in the particular setting of the
case at bar.”
The word
“scalpel” means a “thin-bladed knife used especially in
surgery.” The Supreme Court, in its unflinching resolve
to put a stop, punto final, to the repulsive abscesses of
extralegal killings and disappearances, approved two
separate rules, one embodied in A.M. No. 07-9-12 SC and
the other in A.M. No. 08-1-16 SC, that engrafted in the
Philippine legal system the remedial scalpels of amparo
and habeas data. The adoption of these two procedural
mechanisms, judicial remedies and rights rolled into one,
introduces into our country’s judicial circulatory system
the rich history and potency of amparo and habeas data.
Historical
antecedents of amparo and habeas data
Amparo
The writ
of amparo and the writ of habeas data belong to two
different epochs. While amparo has been recognized for
more than five decades, habeas data has a short history.
Amparo
(meaning, “protection” or “shelter”) was first introduced
in Mexico in 1857 as the juicio de amparo. It then
evolved into a unique and complex institution to cover the
protection of human rights (amparo libertad), actions for
judicial review of the constitutionality and legality of
statutes (amparo contra leyes), actions for judicial
review of administrative actions (amparo administratibo),
actions for judicial review of judicial decisions (amparo
casacions) and actions for protection of peasants’ rights
(amparo agrario).
From
Mexico, amparo spread across Latin America, finding its
way into the Constitutions of Guatemala (1879), El
Salvador (1886), Honduras (1894), Nicaragua (1911, 1987),
Brazil (1934), Panama (1941), Costa Rica (1946), Venezuela
(1961), Bolivia, Paraguay, Ecuador (1967), Peru (1970),
Chile (1970), Colombia (1991) and Argentina (1994). In
the Dominican Republic, the Supreme Court admitted the
amparo action in 2000 and was covered by a statute in
2006.
Amparo
merited more international acceptance when it was
incorporated in the American Convention on Human Rights
(1969) as a “right to judicial protection.” Under Article
25 of the Convention, the right means that everyone has
the right to have “a simple and prompt recourse or any
other effective recourse before a competent court or
tribunal for protection [que la ampare] against acts that
violate his fundamental rights recognized by the
Constitution or laws of the State or by this Convention.”
In its Advisory Opinion OC-8/87 of January 30, 1987, the
Inter-American Court on Human Rights stated that this
Article 25 of the American Convention is a “general
provision that gives expression to the procedural
institution known as ‘amparo’ which is a simple and prompt
remedy designated for the protection of all of the rights
recognized in the Constitution and laws of the
Member-States and by the Convention.”
The allure
of amparo as a judicial remedy was irresistible so that it
captivated the fine legal mind of international law
professor Adolfo S. Azcuna. Twice a framer of the
Philippine Constitution, first in 1971 and the second in
1986, he introduced in the Constitutional Convention of
1971 and the Constitutional Commission of 1986 the remedy
of amparo. In both historic assemblies, Professor Azcuna
planted the seeds of amparo. The Committee on the
Judiciary of the Constitutional Commission of 1986, headed
by retired Chief Justice Roberto R. Concepcion and
vice-chaired by Ricardo J. Romulo, without objection from
the committee members, was unanimous in its position that
the provision in the Article on Judiciary which reads
“[P]romulgate rules concerning the protection and
enforcement of constitutional rights...” included the writ
of amparo.
It was a
blessing in disguise, a providential synchronicity, that
when Professor Azcuna became Associate Justice of the
Supreme Court and Senior Justice Puno became the Chief
Justice, two democrats and libertarians, together with
their supportive colleagues, now collectively known as the
Puno Court, approved The Rule on the Writ of Amparo.
Habeas
Data
The writ
of habeas data is the youngest of the three judicial
remedies: habeas corpus, amparo and habeas data. Because
it is young, it appeals to the young. Law scholar Enrique
Falcon describes habeas data as “a procedure designed to
safeguard individual freedom from abuse in the information
age.”
Habeas
data can be rooted in European legal mechanisms that
protected individual privacy. The direct progenitors of
the habeas data are certain German constitutional rights.
The German Constitutional Tribunal created the right to
information self-determination by interpretation of the
rights of human dignity and personality. This is a right
to know what type of data is stored in manual and
automatic databases about an individual. This means that
there must be transparency on the gathering and processing
of such data.
The direct
predecessor of the habeas data is the Council of Europe’s
108th Convention on Data Protection of 1981. This
convention is designed to secure the privacy of the
individual regarding the automated processing of personal
data, and this is made possible by the individual’s right
to access his/her personal data held in an automated
database.
Europe’s
habeas data crossed the Atlantic and was warmly welcomed
in the emerging democracies of
Latin America after the latter’s mournful experiences under military
dictatorships. In 1988 Article 5, LXXI, Title II of the
Federal Republic of Brazil provided for a habeas data
individual complaint, followed by Paraguay that
incorporated the habeas data right in its New Constitution
in 1992. The new remedy was adopted in several
constitutions, namely,
Peru in
1993, Argentina in 1994, Ecuador in 1996 and Colombia in
1997. There are now ongoing initiatives to adopt it in
Guatemala,
Uruguay, Venezuela, Costa Rica, Panama and Mexico.
A Feat of
Judicial No! and Judicial Yes!
On
December 14, 1991, the Philippine Daily Inquirer reported
about one Oriani Fallaci. Fallaci once said that the
most beautiful thing she saw in
Greece
was not the magnificent structures that dotted the
landscape. It was a clump of trees on a hill that bore
knife marks. The marks had been carved into the trees by
the resistance fighters during the Nazi occupation but had
been covered by whitewash during the Greek dictatorship.
But the rains had washed away the whitewash, and the marks
now struggled to break out. The marks were letters, and
they read, “NO.”
It was a
Greek NO! to Nazi fascism. It was Spanish nunca mas! to
military dictatorship in Latin America.
The Rule
on the Writ of Amparo and The Rule on the Writ of Habeas
Data are the Supreme Court’s way of saying No! to the
cancer of extralegal killings and disappearances that
corrodes the rule of law in the Philippines. The two
Rules are also the Supreme Court’s way of saying Yes! and
Yes! to the challenging and forceful message of the
Universal Declaration of Human Rights that the recognition
of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the
foundation of freedom, justice and peace in the world, and
that if man is not to be compelled to have recourse to
rebellion against tyranny and aggression, human rights
should be protected by the rule of law. “The promotion of
human rights,” spoke Pope Benedict XVI on April 18, 2008,
before the UN General Assembly, “remains the most
effective strategy for eliminating inequalities between
countries and social groups, and increasing security.”
Let us
find out why the two Rules are a judicial No! to
extralegal killings and disappearances and a judicial Yes!
to human rights protected by the rule of law.
1. The
writ of amparo is a remedy available to any person whose
right to life, liberty and security is violated or
threatened. 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.
The writ
of habeas data complements the writ of amparo to protect
violations whose rights to life, liberty or security have
been violated or threatened. Through the writ of habeas
data, the victim or the members of his or her family can
compel the respondents to reveal such data or information
necessary to enforce their right to life, liberty or
security.
However,
the writ of habeas data can stand independently of the
writ of amparo. It can be availed of as an independent
remedy to enforce one’s right to informational privacy and
the right to truth. The remedies against the violation of
such rights include the updating, rectification,
suppression or destruction of the database or information
or files in possession or control of respondents.
2. The
writ of amparo and the writ of habeas data cover both
government officials and private individuals or entities.
The Filipino writ of amparo is broader than the Mexican
amparo because the latter applies solely to public
officials. So also the Filipino writ of habeas data. It
is broader than the Brazilian habeas data because the
latter applies only to records or databases of government
agencies or agencies of a public character. The broader
Filipino writs are consistent with the 1987 Constitution
and with the evolving international human-rights law which
view public officials, nongovernment entities and private
individuals as capable of committing human-rights
violations. Amnesty International is one international
human-rights organization that identifies nongovernment
entities as capable of committing human-rights violations.
3. The
petition for the writ of amparo may be filed not only by
the aggrieved party but also by any concerned citizen,
organization, association or institution. The idea of any
concerned citizen filing a petition on behalf of an
aggrieved party brings to the fore the example of bold
compassion shown by the Good Samaritan in the Holy
Scriptures. The idea of civil-society organizations
similarly filing a petition is an acknowledgment that
these people’s organizations have an active role to play
in the life-and-death struggles of victims of lawlessness
and injustice.
4. The
petitioner, rich or poor, in a petition for the writ of
amparo is exempted from the payment of docket fee and
other fees. The petitioner in the petition for the writ
of habeas data, if indigent, is exempted from paying the
same fees. This bias for the poor is good news because
victims of extralegal killings and disappearances are
mainly the voiceless, the faceless, the powerless. Trial
lawyers-turned-judges can confirm the fact that indigent
litigants are so short on cash, although they are long on
gratitude and payment in kind like fruits, vegetables,
fowls and eggs.
5. The
amparo rejects traditional legal doctrines like exhaustion
of administrative remedies and disallows public officials
or employees to invoke presumption that official duty has
been regularly performed to evade responsibility. While
amparo disavows obstructive legal doctrines, it adopts new
templates and paradigms like interim reliefs that consist
of the temporary protection order, inspection order,
protection order and witness protection order. Habeas
data does not enjoy interim reliefs. The court’s judgment
shall include enjoining the act complained of or order the
deletion, destruction or rectification of the erroneous
data or information. Section 6 (f) of The Rules on Habeas
Data contain an innovative provision that can pave the way
for creative reliefs appropriate to habeas data, and it
states: “[S]uch other relevant reliefs as are just and
equitable.”
6. The
amparo and habeas data forbid public officials or
employees from making blanket denials of custody of
victims of enforced disappearance and from making blanket
denials regarding possession or control of data or
information subject of the petition. The return on the
writ of amparo shall contain, among others, 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. The
return on the writ of habeas data shall contain, among
others, a disclosure of the data or information about the
petitions, the nature of such data or information and the
purpose of the collection.
7. The
Judiciary is determined to solve and to stop extralegal
killings and disappearances. In amparo and habeas data,
the court, justice and 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 purpose or
order of the court. In Dizon v. Eduardo, 158 SCRA 470,
the Supreme Court expressed grave doubts as to the truth
of the allegations made by the respondents in their
return, but no punishment or imposition of fine was meted
out to them.
The
potency of amparo and habeas data to contribute to the
improvement of the human-rights climate in the
Philippines
is bright. The Puno Court has fire in its belly, the two
human-rights remedies are complementary and the examples
that can be drawn from our local experience and from Latin
American countries are encouraging. In the Philippines,
success stories are about two petitions filed on behalf of
two disappeared farmers from Mindanao, Ruel Mañasque and
Luisito Bustamante. They surfaced after the petitions
were filed. In Argentina, the Supreme Court ruled in two
important cases on the scope of habeas data. In Urteaga
v. Estado Nacional, the Supreme Court allowed an
individual access to personal information about his
brother who had disappeared during the military
government. In Ganora v. Estado Nacional, the Supreme
Court of Argentina ruled that habeas data can be used
against any kind of public database.
Conclusion
Jose P.
Rizal wrote Dr. Ferdinand Blumentritt on August 7, 1888,
that “[W]e are struggling for our rights, for the rights
of humanity, and if there is a God, He will have to help
us. We are still few and weak, but we shall be stronger
and more numerous.” Almost 10 months later, he wrote
Marcelo H. del Pilar and said that “[W]e . . . fight so
that there may be more justice and more liberty, and for
the sacred rights of man.” If Rizal were alive today, he
surely would be most proud of the writ of amparo and the
writ of habeas data, two human-rights tools adopted by the
Puno Court, so that there will be more justice and more
liberty in the Philippines. |
