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LINK: ‘Note Verbale’, Manila Times (Sunday-Career Times) – 17 February 2008 Issue

In October 1918, former Manila Mayor Justo Lukban, with all the best intentions to rid the city of vices, ordered the segregation of some one hundred seventy women of ill repute and made them board two steamers, without their knowledge and consent, so they could be relocated to Davao.

In a habeas corpus petition, the Supreme Court did not “permit a government of the men instead of a government of laws” to be set up in this country. And this was the gist of the landmark case of Villavicencio vs. Lukban decided almost ninety years ago.

In the present state of political turmoil brought about by accusations of corruption involving high officials in government both the accused and their accusers cry for the rule of law, not trial by publicity and subsequently conviction by public opinion.

As citizens of this Republic, shenanigans in government are also entitled to the mantle of protection of the Bill of Rights. And this is what the rule of law is all about because like any malefactor, they are also presumed innocent until proven guilty in a court of law.

In refusing to testify again before the Senate Blue Ribbon Committee on the controversial ZTE-NBN deal, Secretary Romulo Neri publicly invokes the rule of law especially after the Supreme Court granted him a reprieve from arrest. For his part, former Commission on Elections Chairman Benjamin Abalos challenged his accusers to hail him before the courts and prove their accusations. Critics of whistle-blowers and star witnesses, Rodolfo Lozada Jr. and Jose de Venecia III contend that no evidence has been presented thus far sufficient to convict those involved in the anomalous transaction.  Every one knows that a criminal conviction requires proof beyond reasonable doubt. Again, this is what the rule of law is all about.

Obviously, these legal standards have found their way in the country’s Bill of Rights and legal system because they are intended to safeguard individual liberties, particularly of ordinary citizens, from the enormous powers of the State. In the same token, public officials and employees proclaimed as servants of the people are entitled to the same mantle of protection.

The dilemma is ordinary folks are not similarly situated as public functionaries although they enjoy equal protection in the eyes of the law.

The rights of ordinary citizens to the secrecy of bank deposits or against any intrusion on privacy like wire-tapping or to invoke privilege communications in certain cases or not to be bound by certain evidences that are part of the ‘poisonous tree’, so to speak, are part of the processes to guarantee individual freedom, which the government could easily abuse.

But it is in a sense an irony of the rule of law if the same legal standards, system and processes are equally applied to public servants because the chance of getting them caught and convicted of their misdeeds becomes a mere fairy tale depending on the scale of the conspiracy and the level of official position they occupy. Sheer cover up, the ‘old-boys’ club’ attitude, and plain blind loyalties and obedience to powerful and influential men in government would make it almost impossible to convict government felons of grand corruption beyond reasonable doubt. And so they remain scot-free and continue to perpetuate themselves in power.

Thus, the rule of law intended to guarantee the rights of Juan de la Cruz could be the same rule of law that gives unscrupulous public officials the cloak of legal protection, perhaps just a strand short of immunity from legal prosecution.

It is easy to understand why a high position in government is a most coveted job. It is the easiest route to power, fame and wealth without the usual investment, except whom you know coupled with the willingness to cooperate.

In the Villavicencio case, the Supreme Court said that “Law defines power”. It was certainly decreed in 1919 in the context that this country is a government of laws and not of men. But nowadays the same statement could assume another import, in the negative sense.

Is there any other viable alternative to the bar of public opinion in a situation called the misrule of law?

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.