Saturday, February 2, 2008

How Safe Is Press Freedom From Habeas Data?

Full Text (PDF) Rule on the Writ of Habeas Data at Supreme Court Website.

(I didn't actually know that until just yesterday, did you?) But it is also the day that the Supreme Court establishes its new Rule on the Writ of Habeas Data -- representing an entirely new set of rights and entitlements, imported mainly from Latin American Constitutions and smuggled into the Philippine jurisdiction allegedly to solve the extrajudicial killings problem, which is far worse and still more rampant in those homelands of the term desaparecido.

The 1987 provision empowers the Supreme Court to make RULES of COURT only within certain stringent limits:
1987 Constitution Art VIII Sec. 5(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 under-privileged. 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.
As a simple reader, my plain understanding of this tightrope walk is that the Supreme Court can promulgate rules to protect and enforce only CONSTITUTIONAL rights which must already EXIST, in form and substance, within the Philippine Constitution. Since the Supreme Court shall NOT diminish, increase or modify such substantive rights, no Rule of Court may first define and establish some new right or entitlement not yet found in the Constitution, no matter how desirable or useful such an innovation may be, and then make a new Rule of Court to protect that newly defined Right! After all, Rules of Court are only rules of procedure, not a Magna Catalog of Court-Constructed Human Rights.

DOES the new Rule on the Writ of Habeas Data meet this simple layman's English sort of test?

I am sorry to report that sadly, a detailed examination of the new Rule reveals multiple CULPABLE VIOLATIONS of the Constitution self-evident in the very TEXT of the Rule as promulgated! But don't just take it from me: any one capable of reading English Composition at the high school level can verify this claim for themselves.

Take for example just the very first section of the Rule on the Writ of Habeas Data:
SECTION 1. Habeas Data. The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.
I think the Supreme Court is creating a Legal Monster that will threaten Press and Academic Freedom with unreasonable searches, seizures and destructions of information and data bases. On top of that, the Spiritual violation of the Constitution is culpable, nay palpable, in the very Letter of the Supreme Court's new Rule on habeas data...CAVEAT NUMBER 1: The Court describes its new Rule as a remedy available to any person whose "Right to Privacy in Life, Liberty or Security" is violated or threatened by public or private entities engaged in "gathering, collecting or storing of data or information."

Notice that the Right sought to be protected is NOT the well known "Right to Life, Liberty and the Pursuit of Happiness" of 1776 vintage, but a "Right to Privacy in Life, Liberty or Security".

Is this "Right to Privacy in Life, Liberty or Security" an already existing right? It better be, because the Supreme Court is not allowed to create new rights with its Rule-making power, neither can it decrease, increase or modify the form and substance of our existing Constitutional rights.

UNFORTUNATELY, neither the phrase "Right to privacy" nor "Life, Liberty or Security" nor the two of them together, can be found anywhere in the 1987 Constitution! The word privacy does occur there, exactly once:
Bill of Rights Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.
There is clearly a Constitutional Right to Privacy of Communication and Correspondence, which can be breached by Court Order or the needs of public safety and order. But is this Right identical with the "Right to Privacy in Life, Liberty or Security" which the new Rule on Habeas Data is intended to protect?

Can the Supreme Court honestly claim that the Right to Privacy in Life, Liberty or Security does not decrease, increase or modify the substantive Constitutional Right to Privacy of Communication and Correspondence?

For some reason, I think "life, liberty or security" is a much bigger territory of human existence than that of one's "communications and correspondence. " The ineradicable impression is that the Supreme Court has VASTLY increased the scope of the existing Right to Privacy from mere "communications and correspondence" to "life, liberty and security."

That is patently unconstitutional!

More's the also appears, from just a cursory reading last night, that the Rule on the Writ of Habeas Data vastly expands the rights and powers of RTCs, the Court of Appeals, the Supreme Court and ANY judge that is a Member of these Courts.

Starting today, thousands of unelected Judges suddenly have the right and power to accept petitions for the new Writ, to issue Court Orders enforcing it, to judge its outcome and exercise hitherto unimagined power in the most microscopic of cases anywhere in the Archipelago.

Starting today, thousands of unelected Judges suddenly can order a newspaper, a university research body, the military intelligence establishment, any public or private "entity" that deals in data or information to display, justify, modify or even destroy such data or information upon the "self-determination" of any aggrieved party!

NOW should Defenders of Press Freedom raise the alarm. I shall join you all at the Barricades then!

TARGETS OF HABEAS DATA WRITS: The "entities" who gather information referred to in the Rule on Habeas Data primarily includes the Mass Media, Academia, commerical corporations and NGOs, and of course Government. Indeed there is a suspicious impinging here on the Freedom of Speech and Press Freedom that ought to alert the Press Freedom fighters of REAL danger.

Politicians or government officials might themselves use the Writ of Habeas Data against their favorite tormentors in the Mass Media. Remember that newspapers, tv and radio are precisely in the business of gathering and storing information on all sorts of people and maintain extensive data bases, spread out over many machines, people and places. They could be harassed by writs of habeas data since ANY judge from RTC, the Court Appeals, the Sandiganbayan, or the Supreme Court can process habeas data cases, personally or collegially!


The rest of this illegal and execrable Rule follows, bearing upon it all the words and phrases to nail it to the jail house dooor!

SEC. 2. Who May File. Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and enforced disappearances, the petition may be filed by:

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

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or

SEC. 3. Where to File. The petition may be filed with the Regional Trial Court where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner.

The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices.

SEC. 4. Where Returnable; Enforceable. When the writ is issued by a Regional Trial Court or any judge thereof, it shall be returnable before such court or judge.

When issued by the Court of Appeals or the Sandiganbayan or any of its justices, it may be returnable before such court or any justice thereof, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored.

When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice thereof, or before the Court of Appeals or the Sandiganbayan or any of its justices, or to any Regional Trial Court of the place where the petitioner or respondent resides, or that which has jurisdiction over the place where the data or information is gathered, collected or stored.

The writ of habeas data shall be enforceable anywhere in the Philippines.

Sec. 5. Docket Fees. No docket and other lawful fees shall be required from an indigent petitioner. The petition of the indigent shall be docked and acted upon immediately, without prejudice to subsequent submission of proof of indigency not later than fifteen (15) days from the filing of the petition.

SEC. 6. Petition. A verified written petition for a writ of habeas data should contain:

(a) The personal circumstances of the petitioner and the respondent;

(b) The manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of the aggrieved party;

(c) The actions and recourses taken by the petitioner to secure the data or information;

(d) The location of the files, registers or databases, the government office, and the person in charge, in possession or in control of the data or information, if known;

(e) The reliefs prayed for, which may include the updating, rectification, suppression or destruction of the database or information or files kept by the respondent.

In case of threats, the relief may include a prayer for an order enjoining the act complained of; and

(f) Such other relevant reliefs as are just and equitable.

SEC. 7. Issuance of the Writ. Upon the filing of the petition, the court, justice or judge shall immediately order the issuance of the writ if on its face it ought to issue. The clerk of court shall issue the writ under the seal of the court and cause it to be served within three (3) days from the issuance; or, in case of urgent necessity, the justice or judge may issue the writ under his or her own hand, and may deputize any officer or person serve it.

The writ shall also set the date and time for summary hearing of the petition which shall not be later than ten (10) work days from the date of its issuance.

SEC. 8. Penalty for Refusing to Issue or Serve the Writ. A clerk of court who refuses to issue the writ after its allowance, or a deputized person who refuses to serve the same, shall be punished by the court, justice or judge for contempt without prejudice to other disciplinary actions.

SEC. 9. How the Writ is Served. The writ shall be served upon the respondent by a judicial officer or by a person deputized by the court, justice or judge who shall retain a copy on which to make a return of service. In case the writ cannot be served personally on the respondent, the rules on substituted service shall apply.

SEC. 10. Return; Contents. The respondent shall file a verified written return together with supporting affidavits within five (5) working 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 communications, confidentiality of the source of information of media and others;

(b) In case of respondent in charge, in possession or in control of the data or information subject of the petition;

(i) a disclosure of the data or information about the petitioner, the nature of such data or information, and the purpose for its collection;

(ii) the steps or actions taken by the respondent to ensure the security and confidentiality of the data or information; and,

(iii) the currency and accuracy of the data or information held; and,

(c) Other allegations relevant to the resolution of the proceeding.

A general denial of the allegations in the petition shall not be allowed.

SEC. 11. Contempt. The court, justice or judge may punish with imprisonment or fine a respondent who commits contempt by making a false return, or refusing to make a return; or any person who otherwise disobeys or resist a lawful process or order of the court.

SEC. 12. When Defenses May be Heard in Chambers. A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or information in question shall compromise national security or state secrets, or when the data or information cannot be divulged to the public due to its nature or privileged character.

Sec. 13. Prohibited Pleadings and Motions. The following pleadings and motions are prohibited:

(a) Motion to dismiss;

(b) Motion for extension of time to file 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. 14. Return; Filing. In case the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence.

SEC. 15. Summary Hearing. The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.

SEC. 16. Judgment. - The court shall render judgment within ten (10) days from the time the petition is submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall enjoin the act complained of, or order the deletion, destruction, or rectification of the erroneous data or information and grant other relevant reliefs as may be just and equitable; otherwise, the privilege of the writ shall be denied.

Upon its finality, the judgment shall be enforced by the sheriff or any lawful officers as may be designated by the court, justice or judge within five (5) working days.

SEC. 17. Return of Service. The officer who executed the final judgment shall, within three (3) days from its enforcement, make a verified return to the court. The return shall contain a full statement of the proceedings under the writ and a complete inventory of the database or information, or documents and articles inspected, updated, rectified, or deleted, with copies served on the petitioner and the respondent.

The officer shall state in the return how the judgment was enforced and complied with by the respondent, as well as all objections of the parties regarding the manner and regularity of the service of the writ.

SEC. 18. Hearing on Officers Return. The court shall set the return for hearing with due notice to the parties and act accordingly.

SEC. 19. Appeal. Any party may appeal from the final judgment or order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.

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

The appeal shall be given the same priority as in habeas corpus and amparo cases.

SEC. 20. Institution of Separate Actions. The filing of a petition for the writ of habeas data shall not preclude the filing of separate criminal, civil or administrative actions.

SEC. 21. Consolidation. When a criminal action is filed subsequent to the filing of a petition for the writ, the latter shall be consolidated with the criminal action.

When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action.

After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition.

SEC. 22. Effect of Filing of a Criminal Action.
When a criminal action has been commenced, no separate petition for the writ shall be filed. The relief under the writ shall be available to an aggrieved party by motion in the criminal case.

The procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data.

SEC. 23. Substantive Rights. - This Rule shall not diminish, increase or modify substantive rights.

SEC. 24. Suppletory Application of the Rules of Court. The Rules of Court shall apply suppletorily insofar as it is not inconsistent with this Rule.

SEC. 25. Effectivity. This Rule shall take effect on February 2, 2008, following its publication in three (3) newspapers of general circulation.


blackshama said...

I will have to bring this habeas data issue to the science faculty of the University of the Philippines. Scientists are in the business of collecting data. It is not unusual that that scientific data may favour or not favour a litigant.

If the data deals with natural resource exploitation a petitioner may ask the court for a scientist to provide data.

But ethical practices in science dictates that data may be released only if the study has been published and vetted by peer review. Also ethical and professional practice dictates that data can only be shared with proper agreements to professionals with PROPER CREDENTIALS.

Now do any of the justices of the Supreme Court have credentials in practice of science?

I haven't met any lawyer that appreciates fully how scientists deal with evidence.

Habeas data may impinge on the right of scientists to practice their profession.

It is very insulting for us if journalist or lawyer with barely a trace of scientific literacy demand by legal means access to scientific data.

Expect hell for scientists with all these suits on environmental issues.

The practice of science has gained autonomy from religion. Now it should protect its independence from the lawyers.

BTW DJB, isn't Feb 8 the real Constitution Day?

DJB Rizalist said...

I think there is a real problem with this New Rule. It'll run afoul of the Freedom of Speech, Press and Academic Freedom. Even commercial data bases become demandable! Google and Yahoo will soon be habeas data'ed by indigents and petitioners.

balimbing said...

DJB, you got blackshama going! Hehehe. Why don't you go outdoors and get a little exercise, physical exercise that is.

Your noodle factory is going on overdrive!

Enjoy the weekend!

manuelbuencamino said...


Can you enjoy the right to life, liberty and the Pursuit of Happiness without the right to privacy in life, liberty or security?

Do citizans in pulis states, where their privacy in life, liberty, or security is violated or threatened by public or private entities engaged in gathering, collecting or storing data or information, enjoy the right to life, liberty and the Pursuit of Happiness?

Ikaw naman, DJ, you want pa to impose the Patriot Act on the Philippines.

You are threatened by anything that limits pulis powers and enhances our constitutional rights.

There is nothing crypto about your ideology anymore!

DJB Rizalist said...

This is what I mean by treating the Constitution like a Bible instead of a Social Contract. Either we take the Agreement seriously or we don't. But this constant gerrymandering of rights and violations of the major tenets of that agreement cannot go on without the whole thing becoming meaningless.

BTW, did you see the title to this post. I mean it! Habeas data can be used to harass news and academic research organizations. Press freedom is threatened by habeas data, in my opinion. And both amparo and hd will create a vast area of oppty for corrupt judges.

When the judicial backlog is up to 2 million from the present one million, we'll remember this conversation.

blackshama said...

A habeas data petition is to be filed by environmentalist lawyers in Cebu with regards to the Tanon Strait oil exploration project.

The court is likely to be asked to demand that government scientists provide data on the possible environmental impacts of the project. Of course scientists who are supportive of the environmentalists will gladly provide theirs and the government scientists who may be under a gag order by higher ups will squirm in their seats or just be cited in conntempt.

Scientists who observe the whole train of events are worried since obviously with the state of science in this country, whatever data we have are so preliminary. Our better judgement would say that we need more time to collect data and being good scientists we will never make a categorical conclusion. Will the lawyers and justices buy that?

Of course the environmentalists have the best scientists we have. The government has the best bureaucrats with PhDs!

Expect a battle royale!

DJB Rizalist said...


That is just the ominous beginning because starting Feb.2 literally THOUSANDS of Judges will have new powers to demand searches of data bases of all kinds from public and private entities. It's a vast sunrise industry for them that the Head Office has just established...

manuelbuencamino said...

IT doesn't matter if you treat it as a bible or a Social Contract - Nothing is being changed, no new rights are being added.

The enforcement and protection of constitutional rights is simply being improved.

You're pissing against the wind on this issue.

DJB Rizalist said...

mb, I think habeas data is gonna run afoul of press and academic freedom and will be a greater practical threat to them than anything gonzalez can say or do. He won't last beyond GMA, if that. But amparo and habeas data are here for a long time to come!

Look at the Bible!

manuelbuencamino said...


I really you need to take a shower before you go to the SC to present your case

DJB Rizalist said...

The case should be presented to the Senate Impeachment Court, not the Supreme Court, which is an inferior court under Article XI (Accountabiity of Public Officers).

Wash under the armpits, k?