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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.

LINK: ‘Note Verbale‘, Manila Times (Sunday-Career Section) - 6 May 2007 Issue

Edmund Burke, noted British political theorist in the eighteenth century, said: “Three Estates in Parliament; but in the Reporters’ Gallery yonder, there sat a Fourth estate more important far than they all.”

On this Burke’s Fourth Estate, British writer and historian, Thomas Carlyle, in his 1841 book On Heroes and Hero Worship further wrote: “It is not a figure of speech, or a witty saying; it is a literal fact, — very momentous to us in these times. Literature is our Parliament too. Printing, which comes necessarily out of Writing, I say often, is equivalent to Democracy: invent Writing, Democracy is inevitable. Writing brings Printing; brings universal everyday extempore Printing, as we see at present. Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in law-making, in all acts of authority.”

The Fourth Estate refers to the public press, the generic term that adverts to journalists and media organizations obtaining and gathering information for public dissemination.

Historically, public press is not free.

Not long after the invention of the printing press, Pope Alexander VI issued a notice in 1501 that required printers to submit a copy of printed matters to church authorities before publication under pain of fines and excommunication.

In 1534, the English monarchy also issued a royal proclamation that required prepublication licensing, a form of censorship that became more inclined to suppress political criticisms than religious heresy. English poet John Milton opposed and attacked this policy of prior restraint in his 1644 work Areopagitica and called on parliament to suppress offensive publications only after their appearance if necessary. Although it took at least half a century before the licensing and censorship laws were abolished, Milton’s advocacy eventually became the cornerstone of present-day concept of press freedom.

In the United States, the development of press freedom that was later enshrined in its Constitution as the First Amendment is generally attributed to the celebrated seditious libel prosecution of New York journalist, John Peter Zenger, in 1735 for publishing political attacks on William Cosby, then governor of New York. His lawyer, Andrew Hamilton, argued that contrary to established English law, there was no libel in publishing the truth. Zenger was acquitted.

Democracy would lose all its sense without the freedom of the press. To ensure that the press is free means empowering the people to be informed at all times on state and global affairs, to make informed judgment on matters that affect their lives as citizens and as a member of society, to keep government and their political leaders constantly accountable for their actions and performance, and to satisfy their insatiable desire for knowledge and quests for truth.

Whatever argument against press freedom in the context of bad, irresponsible or seditious press to justify prior restraint, censorship or control of mass media is an insult to human intelligence and discernment. No individual or group of individuals can lay exclusive claim or has even the monopoly to dictate what people should or should not know or substitute one’s judgment what should be or should not be expressed.  Every story, every content, every news would always stand and fall based on their merits because man is a rational being.

It is true that mass media is so powerful that it is also a convenient haven for propaganda, lies, fabrications, immorality or undue influence. It is for this reason that unscrupulous persons and institutions would exert every attempt and effort to control it because in the natural scheme of things in a free and vibrant press, they would be marginalized and lose altogether their malicious designs.

The world has yet to see a nation oppressed because of press freedom. But almost always histories of oppression start with the muscling of the Fourth Estate.

Those who are afraid of press freedom actually fear for themselves.

PUBLISHED: ‘Note Verbale‘, Manila Times (Sunday-Career Section) – 1 May 2005 Issue

It is ironic that Labor Day celebrations have become the vehicle to highlight the oppressive and inhumane condition of the working class in the country, and anywhere in the world. 

Peter McGuire, the apparent “Father of Labor Day”, began working at age 11 in the streets of New York City sometime in 1863 to help support his family. In those days, many children had to do factory work for low pay 10 to 12 hours a day, even when they were sick and exhausted physically. From that experience, an adult McGuire staged strikes and mounted mass actions to call attention to, and protect, the rights of workers. For his ‘adventurism’, McGuire became known as “disturber of the public peace”.  His mass-led actions culminated in the first Labor Day parade in New York City on September 5, 1882, which US Congress later recognized as a federal holiday.

Even May 1, acknowledged as Labor Day by many countries, was conceived out of a violent labor protest in Haymarket Square in Chicago in 1886, resulting in the death and injury of workers and policemen. This event led the World Workers Central Organization during its 2nd Congress in Paris, France, to declare and commemorate May 1 as Labor Day in 1889.

The Philippines marks Labor Day with the traditional activities, promises and rhetoric assuring a better condition for Filipino workers. Enigmatically, many labor issues that confront McGuire centuries ago have persisted to the present time. Perhaps, this is because labor is always outsmarted by capital in its interface with production. This leaves the government to act as a fulcrum to strike a balance between the many conflicting interests of labor and capital. The government is expected to play an unenviable role in breaking the impasse between these sectors. Government apathy in this regard has led to poverty, hunger, economic collapse, breakdown of peace and order, bloodshed, or even uprising and revolution.

The labor situation in the country demands greater challenges for the government.  In a research prepared by the Commission on Filipinos Overseas, there are at least 7.7 million Filipinos abroad as of December 2003, most of them working for foreign employers.  This influx of Filipino workers abroad puts a pressure on the government to protect their interest to the hilt. If it is difficult enough to harmonize the interest of labor and capital within the country, how much more between our Filipino workers overseas and their employers in a foreign country?  The problem becomes more complicated if we take into account the differences in migration, labor, and socio-economic policies between a foreign state and our country. And this is further complicated by discrimination, prostitution, illegal migration and recruitment, exploitation, corruption, complacency of some diplomatic and consular officials, and indifference, plain and simple.

Given the enormity of the perennial concerns of the Filipino workers, here and abroad, is there any reason to call for a celebration? Or perhaps, it may be more fitting to view May 1, Labor Day, as a commemoration of the continuing struggle of the working class that would seem endless in the course of time.