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Latest:  On 10 February 2010, I filed a petition for prohibition with prayer for injunctive relief docketed as G. R. No. 191032 against the Judicial and Bar Council before the Supreme Court.

There is no provision in the 1987 Constitution that says that the President should appoint the Chief Justice.

All the Constitution provides is that “Members of the Supreme Court x x x” shall be appointed by the President from a list of nominees submitted by the Judicial and Bar Council” (Sec. 9, Art. VIII).

But the Constitution also says that the Supreme Court has the power ”to appoint all officials x x x of the judiciary” (Sec. 5 [6], Art. VIII). And there is no iota of doubt here that the Chief Justice is an “official” of the judiciary, in fact the highest official thereof.

In short, the appointing power of the President extends only to the associate justices (or members) of the Supreme Court, not necessarily to the post of Chief Justice, which the Supreme Court En Banc may legally designate.  Thus, the selection and nominating powers of the Judicial and Bar Council under the Constitution and the consequent appointing power of the President may be exercised only in this case if the person sought to be appointed Chief Justice is not coming from among the incumbent justices of the Supreme Court.

This interpretation is in keeping with the principles of separation of powers and would best serve the independence of our judiciary, free from all political and vested interest.

This is the gist of my letter dated 11 January 2010 to the Chief Justice copy furnished all the associate justices of the Supreme Court. In reply, I received a letter from the Judicial and Bar Council dated 19 January 2010 stating that my constitutional view was duly noted during its en banc meeting of 18 January 2010.

I pray that the Supreme Court asserts its constitutional power to select its own leader upon the retirement of Chief Justice Reynato S. Puno on 17 May 2010 to put to rest all the current debate and constitutional controversy about his replacement that continue to undermine or taint judicial independence.

PUBLISHED: ‘Note Verbale’, Manila Times (Sunday-Career Times) – 2 September 2007 Issue

In the current discussions of the Supreme Court on the writ of amparo (a court order to protect the constitutional rights of a person) to compel state agents to look for missing persons in cases of forced disappearances, there is a move to complement this with the legal process so-called writ of habeas data.

In this modern world, personal data are being collected and obtained on persons with impunity from birth to death.  Nowadays, a person is compelled or obligated to divulge information about himself or herself in the course of his or her personal dealings and day-to-day transactions. Application for government records, services, social security, clearances, permits and licenses as well as availing of third party private services like bank deposits, investments, credit cards, cable and utilities, school admission, employment, medical care, professional services, and similar other transactions too many to mention here would require individuals to reveal their personal information and circumstances. And people are not wary of the disclosure because they are either too busy or lazy to discern their repercussions or perhaps there is a prevailing trust on the integrity of the system of data collection.

But what if these data base systems are utilized by unscrupulous persons or entities to perpetuate some malicious or criminal ends? Who would, and what would, protect ordinary individuals from these types of attacks and exploitation of their privacies?

A legal and judicial process referred to as the ‘writ of habeas data’ exists in some countries precisely to address the concern.  Literally, this Latin term habeas data means “you should have the data”.

Although its form varies from country to country, habeas data is generally a legal relief made available to citizens to protect their individual image, privacy, honor, reputation, information self-determination and freedom of information in a judicial proceeding.

They say that this legal relief is of European origin. For instance, Germany, as early as 1977, has the Persönlichkeitsrecht, a law that covers collection, processing and use of personal data collected by public federal and state authorities, as long as there is no state-regulation, and of non-public offices, as long as they process and use data for commercial or professional aims.  In 1981, there was also the 108th Council of Europe Convention on Data Protection that sought to secure individual privacy regarding the automated processing of personal information.

In 1988, Brazil was the first country in the world to implement habeas data as part of its Constitution. Thereafter, other countries followed suit and adopted it also in their respective constitutions: Colombia in 1991, Paraguay in 1992, Peru in 1993, Argentina in 1994 and Ecuador in 1996. 

Spain, a country that constitutionally recognizes the right to privacy, secrecy of communications and data protection, enacted in 1992 the LORTAD or the “Spanish Data Protection Act” that establishes the rights of the citizens to know the personal data contained in computer files with the right to correct or delete false information. The law requires that personal information may only be disclosed to a third party with the consent of the individual.

Many nations in the world that put premium to privacy rights particularly on the disclosure of personal information have caused the creation of a public office referred to as ‘privacy commissioner or ombudsman”.

As early as 2000, when this author wrote his thesis for the National Defense College of the Philippines (NDCP) on the national identification system, he realized the importance of institutionalizing habeas data in the country’s legal system and the creation of a privacy office, and made them as part of his recommendation.

So the next time someone is kidnapped for ransom or becomes a target of nuisance marketing or a victim of harassment, vexation or even a simple annoyance, the immoral and unethical exploitation and use of personal database systems could easily be identified as the root cause. Meanwhile, it is still perfectly legal to do so.

If the Filipino cannot find immediate refuge from Congress to protect their constitutional right to privacy, perhaps the Supreme Court through its rule-making power could provide the appropriate legal and judicial relief.

PUBLISHED: ‘Note Verbale‘, Manila Times (Sunday-Career Section) – 17 December 2006 Issue

After the defeat of the people’s initiative in the hands of the magistrates of the Supreme Court, the gung-ho minions of Speaker Jose de Venecia Jr. at the House of Representatives practically took advantage of their number in the majority coalition to push for the amendment or revision of the Constitution through a confutative constituent assembly.

From the theoretical standpoint, the move seems justified from the context of a democratic framework. Firstly, congressmen are supposedly the direct representative and the voice of the people in state affairs and governance. Secondly, the principle of ‘majority rule’ has always been the decisive factor in determining the popular will in a democracy.

Representative Douglas Cagas of Davao del Sur captured this sense during the marathon con-ass sessions in reaction to the protestations of spectators when he said for the record: “The point is that we’re lawmakers, and you’re not.” x x x x “Mr. Speaker, before we vote, there will always be differing opinions… That is accorded in a democracy [but] let us exercise our numbers. After all, these debates have been done before,”

But just like a breeze of fresh air these concepts of representation and the rule of majority may be rendered impure by personal and vested interests of the elected representatives.

An elected represented may conveniently disregard the will of his constituency and substitute it with his own and still invoke that his stand on public issues is the voice of the people. What is worse is when the stand is hidden as always under the cloak of promoting the national interest.

The majority of the representatives may patiently allow the voices of dissent to be heard but would never care to listen at all at the end of the day knowing fully well that the die is cast anyway. What is worse is when established rules and precedents are twisted to accomplish the objective and still invoke constitutional adherence and the rule of law.

Christian Monsod, one of the framers of the present Constitution, said that it is precisely for the reason that the 1986 Constitutional Commission adopted the principle that “(T)he Philippines is a democratic and republican state.” The insertion of the word ‘democratic’ is to put emphasis on the active and direct role of the people in the life of the nation.

To boost its arguments for a judicial consideration of the people’s initiative, Sigaw ng Bayan argued along the same line that the Supreme Court should not disregard the signatures of more than six million Filipinos desiring charter change. But where is the popular clamor of those who supposedly signed the petition for people’s initiative now that all moves to change the constitution are dead? 

Even before the people could gather today in a prayer rally in Luneta organized by religious groups and civil society, the majority coalition of Speaker Jose de Venecia in the House of Representatives and President Gloria Macapagal Arroyo had already declared the death of their constitutional initiatives at this time. It could be an effort to thwart the political storm of a people power or to show sensitivity to the popular will or both.  Whatever is the reason is moot.

As the Filipino people gather today in prayer to defend constitutional democracy in this country, the following exhortation from Thomas Jefferson, former US President and principal author of his nation’s Declaration of Independence, sometime in 1810 may be in point:

“A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self- preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property, and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”