Friday, September 28, 2007

Activist Supreme Court Usurping Executive and Legislative Powers With Writs of Amparo and Habeas Data Could Lose Neutrality and Impartiality

ABSCBN News reports SC Approves Use of Writ of Amparo
Full Text at Philippine e-Legal Forum
I am sure that the significance of the above news item is not lost on the Philippine Military and defense establishments, because the "legal innovation" being copied from Latin America is nothing less than a thinly veiled accusation against them by no less than the Supreme Court itself that they are probably responsible for the spate of "extrajudicial killings" and enforced disappearances in the country and are hiding it! Moreover, it is my opinion that the Supreme Court has embarked into uncharted Constitutional matters and is likely to make things a lot worse than they are now because the road to hell is paved with good intentions.

CHIEF JUSTICE REYNATO PUNO has delivered two noteworthy speeches on the role of the Judiciary in the protection of human rights recently.

The first was at the National Summit on Extra Judicial Killings last July. Puno's welcoming remarks The View From The Mountain Top (PDF) is posted at the Supreme Court website under the headline: CJ Puno Defends Judicial Activism in the Protection of Human Rights.

Second was at Silliman University recently. Here are the full text and an audio recording of Chief Justice Puno:
No Turning Back on Human Rights! (Word DOC)

I must salute the Chief Justice for above speech which I found to be a lucid explanation especially of the writs of amparo and habeas data.

He asserts that the 1987 Philippine Constitution does something revolutionary with Separation of Powers because it grants to the Supreme Court certain powers that are normally LEGISLATIVE in character in Artcle VIII Section 5
"In the landmark case of Tolentino v. Secretary of Finance I made the submission that “in imposing to this Court the duty to annul acts of government committed with grave abuse of discretion, the new Constitution transformed the Court from passivity to activism. This transformation, dictated by our distinct experience as a nation, is not merely evolutionary but revolutionary. Under the 1935 and 1973 Constitutions, the Court approached constitutional violations not by finding out what it should not do but what it must do. The Court must discharge its solemn duty by not resuscitating a past that petrifies the present. Secondly, the paucity of power of the Judiciary in checking human rights violations was remedied by stretching its rule making prerogative.

Article VIII, section 5 (5) empowers the Supreme Court to `promulgate rules concerning the protection and enforcement of constitutional rights x x x.’ Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform 1 G.R. No. 115455, 30 October 1995, 249 SCRA 628..- 4 - for all courts of he same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi judicial bodies shall remain effective unless disapproved by the Supreme Court.”
In the Silliman University speech, a most memorable passage has to be the following:
I respectfully submit further that the framers of the 1987 Constitution were gifted with a foresight that allowed them to see that the dark forces of human rights violators would revisit our country and wreak havoc on the rights of our people. With this all-seeing eye, they embedded in our 1987 Constitution a new power and vested it on our Supreme Court – the power to promulgate rules to protect the constitutional rights of our people. This is a radical departure from our 1935 and 1972 Constitutions, for the power to promulgate rules or laws to protect the constitutional rights of our people is essentially a legislative power, and yet it was given to the judiciary, more specifically to the Supreme Court. If this is disconcerting to foreign constitutional experts who embrace the tenet that separation of powers is the cornerstone of democracy, it is not so to Filipinos who survived the authoritarian years, 1971 to 1986. Those were the winter years of human rights in the Philippines. They taught us the lesson that in the fight for human rights, it is the judiciary that is our last bulwark of defense; hence, the people entrusted to the Supreme Court this right to promulgate rules protecting their constitutional rights.
Was legislative power really given to the Supreme Court by the 1987 Constitution? I don't think so! CJ Puno cunningly abbreviated that 1987 provision upon which the Court's activism is based. The whole provision with the words in the x x x restored seems to mean something other than the expansive interpretation he gives it.
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
It really sounds like the Constitution is merely giving the Supreme Court the right to make such changes in the rules and practices of Judiciary (courts, the Bar, etc.)--not the expansive secret weapon that he claims to have now unsheathed.

The approval for courts (even lower than the Supreme Court, including Regional Trial Courts!) to use the writ of amparo is in the nature of legislation of such a high order as to touch upon the realm of constitutive power, since, in his speeches on the subject the Chief Justice has declared that this mere change in the Rules of Court "gives life" to the people's "Right to Truth".

The Chief Justice is conscious of, but is not apologetic about leading a "judicially activist" court, noting the inutility of the political branches of the government to solve the vexing problem of alleged extrajudicial killings and enforced disappearances, and considering it a Constitutionally mandated duty of the Court to exercise the rule making power clearly granted by the Constitution.

I think they are stepping into a minefield here and opening up a Pandora's Box of unpredictable evils. The new rules on the issuance of writ of amparo also constitutes in my opinion an improper usurpation of the Chief Executive's Commander-in-chief powers and the intention to allow the inspection of military facilities looking for desaparecidos could create a host of unforeseeable situations and problems that not even the Supreme Court will be able to remedy.
Moreover, the CJ's claim that "in the fight for human rights" during "the winter years" of Marcos' authoritarianism "our last bulwark of defense" was the judiciary. Yet it is a matter of historical record that the Supreme Court blessed the Martial Law Constitution of the fascist dictator Ferdinand Marcos in the infamous decision, Javellana vs. Executive Secretary.

So I think it is important for the Supreme Court to think over carefully its activist innovations.
And there is more to come yet from the activist Supreme Court.

Someone has recently edited the Wikipedia entry for HABEAS DATA from which the following useful chronological and legal history of the writ of habeas data in various Latin American countries and soon, in the Philippines.
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”.

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

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, confidentiality or updating of said data. The secret nature of the sources of journalistic information shall not be impaired.”[3]

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. Reynato Puno 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 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.
[It always scares me when our native mechanics start tinkering with the Ship of State's Main Engine in order to effect some transcendentally important course correction. Must be the dumb old sailor in me.]

The Writ of Habeas Data originated in Latin America as a Brazilian Constitutional innovation of rather recent vintage--1988, younger by a year than our own present 1987 Constitution. Which however is not where the Philippine version of habeas data will be originated--unlikeBrazil. No. It is being drafted as a new Rule of Court that will soon be promulgated by the almighty Supreme Court of the Philippines as a solution to "extrajudicial killings."

I can't wait to see what Chief Justice Reynato Puno and our most honorable Judges at Padre Faura come up with in this regard. There is very little time to examine the basics of the matter...

Fundamentally speaking, there appears to be a personal private right that is sought to be protected by the writ of habeas data when issued by a Constitutional Court on behalf of a person. That right is the right to know what information about our persons exists, in government agencies and databases, as well as in any publicly or easily accessible "source of information." In Latin American countries above, the right further includes that of assessing by individual self-determination the accuracy and veracity of such data and to demand its correction or suppression.

I hope it is a wrong impression being given in the last paragraph about the Supreme Court's plans for a Philippine-style writ of habeas data. Because it appears that the new "rules" being drawn up by the High Court in fulfillment of its sacred Constitutional duty to protect human rights, may very well be limited by design, letter and spirit, to government, military, police and other "official" databases only. But I claim that would be an unjust limitation on the underlying human right sought to be protected a writ of habeas data, namely the right to know what information other people may have on you. This is a right to review and correct such any false information found by "self-determination."

Associate Justice Dante O. Tinga talked to Ricky Carandang and Marieton Pacheco this morning about it. He discusses some of the details, but I think this matter deserves everyone's circumspection, if not outright skepticism given the not exactly sterling record of the Philippine Courts. And Tinga didn't seem to understand Ricky Carandang's excellent question: Don't the new "Rules of Court" seem to negate any presumption of innocence? Take for example,

SEC. 9. Return Contents. – 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:

(a) The lawful defenses to show that the respondent did not violate or threaten with violation the right to life, liberty and 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.

Blow me down! To comply with the writ, Respondent must prove a negative in 72 hours! This could turn the whole AFP into Clerks of Court, Judge and Justice! But I will reserve a detailed analysis for later, and the Supreme Court sink into self-mockery.

Downloadable MP3




Re Habeas Data

I read your analysis and you may have a point there but again, if Justice Puno bases his interpretation on the provision contained in the 1987 constitution, and he says it's there, why not?

In France, a law exists dated 17 July 1978 concerning habeas data but called technically in France: loi « liberté d’accès aux documents administratifs » regulating the mechanism acknowledging the right of a person to access his personal file that's in the hands of the State, computerized or not, to verify whether the information on his person kept by the State is correct and this law covers all files on the person in existence in any institution.

It was of coursed passed by the French parliament.

This falls under the State doctrine "Libery is a principle, secrecy is the exception".

The Supreme Court justices in France are not authorized by themselves to formulate a "baby" to an existing law and promulgate its execution if it's not in the spirit of the law.

Wait till you see the Napoleon Code which is still the basis of most of the laws in France as well as in several countries in Europe, together with the other laws after the Napoleon Code and today's laws, very, very complicated.

Btw, did you know that Napoleon's legacy, the Napoleon Code, which as I said is the basis of a the laws in many nations in Europe, is one that we can consider one of the most enduring legal legacies in modern history?

Not many inhabitants of Europe today in Europe know that their national laws are based on the Napoleon Code and for that matter their lives are governed by the Napoleon Code.

That's why that man was really brilliant! Which other emperor in Europe could lay claim to that honour today, i.e., having an effect on our daily lives, on nations and on groups of nations, today? Only Emperor Napoleon!


As to writ of Amparo: this is already recognized by the UN and is invoked also by the International Court of Human Rights in Europe based on its recognition by the UN.

Perhaps, that should be how the SC in Pinas should present it: a writ recognized by the UN and therefore one that becomes universally applicable, therefore it covers Pinas to avoid what you fear, SC appropriating for itself some legislative function ?

DJB Rizalist said...

Puno is retiring soon. He just wants a job in Geneva.

DJB Rizalist said...

It's one big grandstanding that is gonna backfire, I predict on the Media. When that writ of habeas data is applied against them by private and public persons!


Why backfire? Habeas data is for the protection individuals - geez, I want to have the right to have access to the data that govt or institutions have on me and to change it if there are errors.

So why should they not like that?

DJB Rizalist said...

Ah, here's how. After they pass the writ of habeas data ANYONE can demand of a newspaper that they show him whatever data they have on him, for the application of self determination regarding accuracy and fairness. And a demand for its destruction.

It is a sword that will cut in many ways. That is what these barrio mechanics are blind to!

The right to truth my foot! The Constitution specifically forbids any diminution or increase of substantive rights.

Puno deleted an important phrase in the provision and changed its meaning thereby.

That's my plain reading of the constitution. They are more dangerous than Esperon!