Writ of amparo; nature; special proceeding.

The remedy of
the Writ ofAmparo is an equitable and extraordinary remedy
to safeguard the right of the people to life, liberty and
security as enshrined in the 1987 Constitution. The Rule on
the Writ of Amparo was issued as an exercise of the Supreme
Courts power to promulgate rules concerning the protection
and enforcement of constitutional rights. It aims to address
concerns such as, among others, extrajudicial killings and
enforced disappearances.
xxx
It is clear from this rule that this type of summary procedure
only applies to MTC/MTCC/MCTCs. It is mind-boggling how this
rule could possibly apply to proceedings in an RTC. Aside
from that, this Court limited the application of summary
procedure to certain civil and criminal cases. A writ of
Amparois a special proceeding. It is a remedy by which a
party seeks to establish a status, a right or particular fact. It
is not a civil nor a criminal action, hence, the application of
the Revised Rule on Summary Procedure is seriously
misplaced. Secretary Leila M. De Lima, Director Nonnatus R.
Rojas and Deputy Director Reynaldo O. Esmeralda v.
Magtanggol B. Gatdula; G.R. No. 204528. February 19, 2013
Writ of amparo; procedure. Due to the delicate and urgent
nature of these controversies, the procedure was devised to
afford swift but decisive relief. It is initiated through a petition
to be filed in a Regional Trial Court, Sandiganbayan, the Court
of Appeals, or the Supreme Court. The judge or justice then
makes an immediate evaluation of the facts as alleged in
the petition and the affidavits submitted with the attendant
circumstances detailed. After evaluation, the judge has the
option to issue the Writ ofAmparo or immediately dismiss the
case. Dismissal is proper if the petition and the supporting
affidavits do not show that the petitioners right to lie liberty
or security is under threat or the acts complained of are not
unlawful. On the other hand, the issuance of the writ itself
sets in motion presumptive judicial protection for the
petitioner. The court compels the respondents to appear
before a court of law to show whether the grounds for more
permanent protection and interim relies are necessary.

The respondents are required to file a Return after the

issuance of the writ through the clerk of court. The Return
serves as the responsive pleading to the petition. Unlike an
Answer, the Return has other purposes aside form identifying
the issues in the case, Respondents are also required to
detail the actions they had taken to determine the fate or
whereabouts of the aggrieved party.
If the respondents are public officials or employees, they are
also required to state the actions they had taken to: (i) verify
the identity of the aggrieved party; (ii) recover and preserve
evidence related to the death or disappearance of the person
identified in the petition; (iii) identify witnesses and obtain
statements concerning the death or disappearance; (iv)
determine the cause, manner, location, and time of death or
disappearance as well as any patter or practice that may
have brought about the death or disappearance; and (v)
bring the suspected offenders before a competent court.
Clearly these matters are important to the judge so that s/he
can calibrate the means and methods that will be required to
further the protections, if any, that will be due to the
petitioner.
There will be a summary hearing only after the Return is filed
to determine the merits of the petition and whether interim
reliefs are warranted. If the Return is not filed, the hearing
will be done ex parte. After the hearing, the court will render
the judgment within ten (10) days from the time the petition
is submitted for decision.
If the allegations are proven with substantial evidence, the
court shall grant the privilege of the writ and such reliefs as
may be proper ans appropriate. The judgment should contain
measures which the judge views as essential for the
continued protection of the petitioner in the Amparo case.
These measures must be detailed enough o that the judge
may be able to verify and monitor the actions taken by the
respondents. It is this judgment that could be subject to
appeal to the Supreme Court via Rule 45. After the measures
have served their purpose, the judgment will be satisfied.
InAmparo cases, this is when the threats to the petitioners
life, liberty and security cease to exist as evaluated by the

court that renders the judgment. Parenthetically, the case

may also be terminated through consolidation should a
subsequent case be filed either criminal or civil. Until the
full satisfaction of the judgment, the extraordinary remedy of
Amparo allows vigilant judicial monitoring to ensure the
protection of constitutional rights.Secretary Leila M. De Lima,
Director Nonnatus R. Rojas and Deputy Director Reynaldo O.
Esmeralda v. Magtanggol B. Gatdula; G.R. No. 204528.
February 19, 2013
Writ of Amparo; writ is an interlocutory order. The Decision
dated 20 March 2012 assailed by the petitioners could not be
the judgment or final order that is appealable under Section
19 of the Rule on the Writ ofAmparo. x x x
This Decision pertained to the issuance of the writ under
Section 6 of the Rule on the Writ of Amparo, not the
judgment under Section 18. The Decision is thus an
interlocutory order, as suggested by the fact that temporary
protection, production and inspection orders were given
together with the decision. The temporary protection,
production and inspection orders are interim reliefs that may
be granted by the court upon filing of the petition but before
final judgment is rendered. Secretary Leila M. De Lima,
Director Nonnatus R. Rojas and Deputy Director Reynaldo O.
Esmeralda v. Magtanggol B. Gatdula; G.R. No. 204528.
February 19, 2013
Writ of Amparo; the Return is the proper responsive pleading;
memorandum is a prohibited pleading. First the insistence on
filing an Answer was inappropriate. It is the Return that
serves as the responsive pleading for petitions for the
issuance of Writs of Amparo. The requirement to file an
Answer is contrary to the intention of the Court to provide a
speedy remedy to those whose right to life, liberty and
security are violated or are threatened to be violated. In utter
disregard of the Rule on the Writ of Amparo, Judge Pampilo
insisted on issuing summons and requiring an Answer.
xxx
The Return in Amparo cases allows the respondents to frame
the issues subject to a hearing. Hence, it should be done
prior to the hearing, not after. A memorandum, on the other

hand, is a synthesis of the claims of the party litigants and is

a final pleading usually required before the case is submitted
for decision. One cannot substitute for the other since these
submissions have different functions in facilitating the suit.
More importantly, a memorandum is a prohibited pleading
under the Rule on the writ of Amparo. Secretary Leila M. De
Lima, Director Nonnatus R. Rojas and Deputy Director
Reynaldo O. Esmeralda v. Magtanggol B. Gatdula; G.R. No.
204528. February 19, 2013
Writ of Amparo; difference between the privilege of the Writ
of Amparo and the actual order called the Writ of Amparo.
The privilege of the Writ of Amparo should be distinguished
from the actual order called the Writ of Amparo. The privilege
includes the availment of the entire procedure outlined in
A.M. No. 07-9-12-SC, the rule on the Writ of Amparo. After
examining the petition and its attached affidavits, the Return
and the evidence presented in the summary hearing, the
judgment should detail the required acts from the respondent
that will mitigate, if not totally eradicate, the violation of or
threat to the petitioners life, liberty or security.
A judgment which simply grants the privilege of the writ
cannot be executed. It is tantamount to a failure of the judge
to intervene and grant judicial succor to the petitioner.
Petitions filed to avail of the privilege of the Writ of Amparo
arise out of very real and concrete circumstances. Judicial
responses cannot be as tragically symbolic or ritualistic as
granting the privilege of the Writ of Amparo. Secretary Leila
M. De Lima, Director Nonnatus R. Rojas and Deputy Director
Reynaldo O. Esmeralda v. Magtanggol B. Gatdula; G.R. No.
204528. February 19, 2013
Habeas Data
(This is a speech delivered by Supreme Court Chief Justice
Reynato S. Puno on 19 November 2007, at the UNESCO Policy
Forum and Organizational Meeting of the Information for all
Program (IFAP), Philippine National Committee.)
All over the world, judiciaries have been entertaining
complaints and issuing writs pursuant to their task of

pacifying disputes and resolving conflicts more

importantly, in guaranteeing the protection and vindication of
rights of the individual against violations by public authorities
and private entities.
In the history of law, filing an individual petition before courts
to invoke constitutional rights has long been granted a
substantive recognition. The first and perhaps most famous
of these is the petition for a writ of habeas corpus, roughly
translated, You should have the body. The writ of habeas
corpus is a guarantee against deprivation of liberty of a
person. It originated in the Middle Ages in England,
recognized in the several versions of the Magna Carta, so
that a person held in custody is brought before a judge or
court to determine whether the detention is lawful or
otherwise.
Aside from the writ of habeas corpus, several writs have been
developed to protect the rights of the individual against the
State. In the United States of America, the writs of
mandamus, prohibition, and certiorari are used to command
a governmental agency to perform a ministerial function,
prohibit the commission of an illegal act, or correct an
erroneous act committed with grave abuse of discretion. In
the Latin American countries, particularly Mexico and
Argentina, they crafted the writ of amparo which protects a
whole gamut of constitutional rights. In Taiwan, they have the
writ of respondeat superior that makes a superior liable for
the acts of the subordinate. There are other mechanisms to
protect human rights, but the most recent of these legal
mechanisms is the writ of habeas data.
The habeas corpus writ has been used for more than five
centuries now. The writ of amparo has been used in Mexico in
mid-19th century. Compared to those two, the writ of habeas
data has a very short history.1 The writ of habeas corpus can
be traced way back to as early as 1215 in the United
Kingdom and subsequently codified in 1679;2 the writ of
amparo first appeared in the State of Yucatan in 1841 and

later in the Federal Constitution of Mexico in 1857. The roots

of the writ of habeas data can be traced to the Council of
Europes 108th Convention on Data Protection of 1981. The
writ of habeas data may be said to be the youngest legal
mechanism to appear in the legal landscape. A comparative
law scholar has described habeas data as a procedure
designed to safeguard individual freedom from abuse in the
information age.3
The European Data Protection Convention of 1981 was
convened to develop safeguards to secure the privacy of the
individual by way of regulating the processing of personal
information or data. In countries like Germany, the use of the
writ of habeas data was justified by invoking the peoples
right to individual self-determination. In Latin American
countries, however, it found use as an aid in solving their
perennial problem of protecting the individual against human
rights abuses.
Looking at the landscape of several Latin American countries,
one will find that the writ of habeas data has been embedded
as a direct constitutional right.4 The scope and concept of
this writ vary from country to country; but in general, it is
designed to protect by means of an individual complaint
presented to a constitutional court the image, privacy,
honor, information self-determination and freedom of
information of a person.
The first Latin American country to adopt the writ of habeas
data is the Federal Republic of Brazil. In 1988, the Brazilian
legislature voted a new Constitution, which included a novel
right: the right to initiate a habeas data complaint on the part
of a citizen. It is expressed as a full constitutional right under
Article 5, Title II of the 1988 Brazilian Constitution, which I
quote:
Habeas Data shall be granted: (1) 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; (2) for the correction of data,

when the petitioner does not prefer to do so through a
confidential process, either judicial or administrative.5
This constitutional provision was further bolstered by Brazils
National Congress in a 1997 regulatory law (Congreso
Nacional de Brasil, Lei 9507).
Following the Brazilian example, Colombia incorporated the
habeas data right in its 1991 Constitution. The 1991
Colombian Constitution, as reformulated in the 1997 version,
recognizes the right to individual privacy and recognizes that
the citizens shall have the right to know, access, update
and rectify any information gathered about them in
databases, both public and private.6 In due time, many
countries followed suit and adopted the new legal tool in
their respective constitutions: Paraguay in 1992, Peru in
1993, Argentina in 1994, and Ecuador in 1996.
The 1992 Paraguay Constitution follows the model set by
Brazil, but has a stronger protection. Article 135 of the
Paraguayan Constitution provides:
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 of if they are
illegitimately affecting his rights.7
Aside from giving individuals the right to find out what
information is being kept about them, the writ of habeas data
seeks to protect the right to find out what use and for what
purpose such data are being collected. The petitioner is also
given the opportunity to question the data and demand their
updating, rectification, or destruction.8
The Peruvian Constitution also recognizes the writ of habeas
data. In Article 200, Section 3 of the Constitution of Peru, a

similar provision much like Brazils and Paraguays can be

found. More than that, their legislature was quick enough to
provide for a regulatory law that took effect on April 18,
1995. The law recognized not only the procedural guarantees
of updating ones data as contained in manual or physical
records, but also recognizing ones right to update one
automated data those personal data kept and supplied by
any information service, automated or not. In this model, the
habeas data remedy may be enforced against automated or
digitized records.
In Argentina, the writ of habeas data is not specifically called
habeas data but is subsumed by the Argentine writ of
amparo. Under Article 43 of the Argentine Constitution,
entitled The Writ of Amparo or protection, it is stated thus:
Any person may file this action (referring to the writ of
habeas data) 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.10
The Argentine version, though not called habeas data, is
more comprehensive than other Latin American models. Like
the Paraguay model, the Argentine version includes the
judicial remedy to enforce ones right to access, rectify,
update, or destroy the data. This model also guarantees the
confidentiality of personal or private information and makes
specific the protection of journalistic privilege, of the lofty
democratic role of the press.
Several studies in legal literature deal with the varying
effects of the writ of habeas data. Legislatures in Latin
America and in Europe are constantly reviewing the
parameters of the writ and the extent of its regulation. The
writ ought to be constantly reviewed, especially in this age of

Information Technology, when privacy can easily be pierced

by the push of a button. But these studies undeniably show
that the writ of habeas data has become an excellent
Human Rights tool mostly in the countries that are recovering
from military dictatorships.11
In Paraguay, for instance, an action for a writ of habeas data
was filed to view police records bringing to light several
atrocities that had been committed at that site. In Argentina,
the Argentine Supreme Court ruled that the writ of habeas
data was available to the families of the deceased in a case
involving extralegal killings and enforced disappearances. It
gave the victims access to police and military records
otherwise closed to them. In essence, the decision
established a right to truth.
The right to truth is fundamental to citizens of countries in
transition to democracy, especially those burdened by legacy
of massive human rights violations. This right entitles the
families of disappeared persons to know the totality of truth
surrounding the fate of their relatives. The exercise of the
right is particularly crucial in disappearances driven by
politics, because they usually involve secret execution of
detainees without any trial, followed by the concealment of
the body with the purpose of erasing all material traces of
the crime and securing impunity for the perpetrators. Indeed,
truth is the bedrock of all legal systems, whether the system
follows the common law tradition or the civil law tradition.
Justice that is not rooted in truth is injustice in disguise. That
kind of justice will not stand the test of time, for it is not
anchored on reality but on mere images.
Recently, the Supreme Court En Banc promulgated the Rule
on the Writ of Amparo. The Philippine version of the writ of
amparo is designed to protect the most basic right of a
human being, which is ones right to life, liberty and
security guaranteed by all our Constitutions starting with the
1898 Declaration of Philippine Independence and the
Universal Declaration of Human Rights of 1948. We are

studying further how to strengthen the role of the judiciary as

the last bulwark of defense against violation of the
constitutional rights of our people especially their right to life
and liberty by the use habeas data. It is our fervent hope that
with the help of the writ of habeas corpus, the writ of amparo
and the writ of habeas data, we can finally bring to a close
the
problem
of
extralegal
killings
and
enforced
disappearances in our country, spectral remains of the
Martial Law regime.
A pleasant day to all.

Footnotes:
1 See Andres Guadamuz, Habeas Data and the European
Data Protection Directive, THE JOURNAL OF INFORMATION,
LAW AND TECHNOLOGY (JILT) (2001).
2 The Habeas Corpus Act of 1679. See 1 BLACKSTONE,
COMMENTARIES 131 (1st ed. 1765-1769).
3 ENRIQUE FALCON, HABEAS DATA: CONCEPTO Y
PROCEDIMIENTO 23 (1996) (translation provided).
4 Andreas Guadamuz, Habeas Data: An Update on Latin
America Data Protection Constitutional Right, paper
presented during the 16th BILETA Annual Conference,
Edinburgh, Scotland, April 910, 2001.
5 1988 Constitution of the Federal Republic of Brazil, Art. 5,
71.
Available
online
at:
http://www.georgetown.edu/LatAmerPolitical/Constitutions/Br
azil/brtitle2.html (last accessed November 15, 2007).
6 1997 Colombian Constitution, Art. 15 (Constitucion Politica
de
Colombia),
available
online
at
http://
www.georgetown.edu/LatAmerPolitical/Constitutions/Colombi
a/Colombia.html (last accessed November 15, 2007).
7 1992 Paraguay Constitution, Art. 135, translated by Peter
Heller,
available
online
at
http://www.uniwuezburg.de/law/pa00t__.html (last accessed November 15,
2007).
8 Id.
9 1993 Peruvian Political Constitution (Constitucion Politica
del Peru), Art. 2, 6.

10 Constitution of the Argentine Nation of 1853, as amended

by the 1994 Constitutional Reform, Article 43 (as translated
by the Argentine Congress).

11 Guadamuz, Habeas Data, n.43.