REPUBLIC ACT NO.

4200

AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED

VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES

Section 1. It shall be unlawful for any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie
or tape recorder, or however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in
the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or
any other such record, or copies thereof, of any communication or spoken word secured either
before or after the effective date of this Act in the manner prohibited by this law; or to replay the
same for any other person or persons; or to communicate the contents thereof, either verbally or
in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person:
Provided, That the use of such record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned in Sec. 3 hereof, shall not be covered by this
prohibition.

Sec. 2. Any person who wilfully or knowingly does or who shall aid, permit, or cause to be done
any of the acts declared to be unlawful in the preceding Sec. or who violates the provisions of the
following Sec. or of any order issued thereunder, or aids, permits, or causes such violation shall,
upon conviction thereof, be punished by imprisonment for not less than six months or more than
six years and with the accessory penalty of perpetual absolute disqualification from public office
if the offender be a public official at the time of the commission of the offense, and, if the
offender is an alien he shall be subject to deportation proceedings.

Sec. 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any
peace officer, who is authorized by a written order of the Court, to execute any of the acts
declared to be unlawful in the two preceding Secs in cases involving the crimes of treason,
espionage, provoking war and disloyalty in case of war, piracy, mutiny in the high seas,
rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy
to commit sedition, inciting to sedition, kidnapping as defined by the Revised Penal Code, and
violations of Commonwealth Act No. 616, punishing espionage and other offenses against
national security: Provided, That such written order shall only be issued or granted upon written
application and the examination under oath or affirmation of the applicant and the witnesses he
may produce and a showing: (1) that there are reasonable grounds to believe that any of the
crimes enumerated hereinabove has been committed or is being committed or is about to be
committed: Provided, however, That in cases involving the offenses of rebellion, conspiracy and
proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, and
inciting to sedition, such authority shall be granted only upon prior proof that a rebellion or acts
of sedition, as the case may be, have actually been or are being committed; (2) that there are
reasonable grounds to believe that evidence will be obtained essential to the conviction of any
person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no
other means readily available for obtaining such evidence.

The order granted or issued shall specify: (1) the identity of the person or persons whose
communications, conversations, discussions, or spoken words are to be overheard, intercepted, or
recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the
telephone number involved and its location; (2) the identity of the peace officer authorized to
overhear, intercept, or record the communications, conversations, discussions, or spoken words;
(3) the offense or offenses committed or sought to be prevented; and (4) the period of the
authorization. The authorization shall be effective for the period specified in the order which
shall not exceed sixty (60) days from the date of issuance of the order, unless extended or
renewed by the court upon being satisfied that such extension or renewal is in the public interest.

All recordings made under court authorization shall, within forty-eight hours after the expiration
of the period fixed in the order, be deposited with the court in a sealed envelope or sealed
package, and shall be accompanied by an affidavit of the peace officer granted such authority
stating the number of recordings made, the dates and times covered by each recording, the
number of tapes, discs, or records included in the deposit, and certifying that no duplicates or
copies of the whole or any part thereof have been made, or if made, that all such duplicates or
copies are included in the envelope or package deposited with the court. The envelope or
package so deposited shall not be opened, or the recordings replayed, or used in evidence, or
their contents revealed, except upon order of the court, which shall not be granted except upon
motion, with due notice and opportunity to be heard to the person or persons whose conversation
or communications have been recorded.

The court referred to in this Sec. shall be understood to mean the Court of First Instance within
whose territorial jurisdiction the acts for which authority is applied for are to be executed.

Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport,
effect, or meaning of the same or any part thereof, or any information therein contained obtained
or secured by any person in violation of the preceding Sec.s of this Act shall not be admissible in
evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation.

Sec. 5. All laws inconsistent with the provisions of this Act are hereby repealed or accordingly
amended.

Sec. 6. This Act shall take effect upon its approval.

Approved: June 19, 1965

ANTI-WIRE-TAPPING LAW

Republic Act 4200 is probably the most quoted law nowadays. Thus, it is worthy to examine the
said law and discuss its pertinent provisions.
Section 1 of R.A. 4200 entitled, ” An Act to Prohibit and Penalized Wire Tapping and Other
Related Violations of Private Communication and Other Purposes,” provides that it shall be
unlawful for any person, not being authorized by all the parties to any private communication or
spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly
overhear, intercept, or record such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or
however otherwise described.

In Ramirez vs. Court of Appeals, [G.R. No. 93833 (Sept. 28, 1995)], petitioner Ramirez
vigorously argues, that the applicable provision of Republic Act 4200 does not apply to the
taping of a private conversation by one of the parties to the conversation. She contends that the
provision merely refers to the unauthorized taping of a private conversation by a party other than
those involved in the communication. In relation to this, petitioner avers that the substance or
content of the conversation must be alleged in the Information, otherwise the facts charged
would not constitute a violation of R.A. 4200. Finally, petitioner agues that R.A. 4200 penalizes
the taping of a “private communication,” not a “private conversation” and that consequently, her
act of secretly taping her conversation with private respondent was not illegal under the said act.

The Supreme Court disagreed with the petitioner. It stated that Section 1 of R.A. 4200 “clearly
and unequivocally makes it illegal for any person, not authorized by all the parties to any private
communication to secretly record such communication by means of a tape recorder. The law
makes no distinction as to whether the party sought to be penalized by the statute ought to be a
party other than or different from those involved in the private communication. The statute’s
intent to penalize all persons unauthorized to make such recording is underscored by the use of
the qualifier “any”. Consequently, …….even a (person) privy to a communication who records
his private conversation with another without the knowledge of the latter (will) qualify as a
“violator” under this provision of R.A. 4200.”

The Supreme Court held further that the nature of the conversations is immaterial to a violation
of the statute. It held that:

“The substance of the same need not be specifically alleged in the information. What R.A.
4200 penalizes are the acts of secretly overhearing, intercepting or recording private
communications by means of the devices enumerated therein. The mere allegation that an
individual made a secret recording of a private communication by means of a tape recorder
would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General
pointed out in his COMMENT before the respondent court: “Nowhere (in the said law) is it
required that before one can be regarded as a violator, the nature of the conversation, as well as
its communication to a third person should be professed.”

Curiously, in Gaanan vs. Intermediate Appellate Court, [145 SCRA 112 (1986)], a case
which dealt with the issue of telephone wiretapping, the Supreme Court held that the use of a
telephone extension for the purpose of overhearing a private conversation without authorization
did not violate R.A. 4200 because a telephone extension devise was neither among those
“device(s) or arrangement(s)” enumerated therein, following the principle that “penal statutes
must be construed strictly in favor of the accused.”
WHEN IS WIRETAPPING ALLOWED?

Under Section 3 of R.A. 4200, a peace officer, who is authorized by a written order of the
Court, may execute any of the acts declared to be unlawful in the two preceding sections in
cases involving the crimes of treason, espionage, provoking war and disloyalty in case of
war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to commit
rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition,
kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act
No. 616, punishing espionage and other offenses against national security. Such written
order shall only be issued or granted upon written application and the examination under oath or
affirmation of the applicant and the witnesses he may produce and a showing: (1) that there are
reasonable grounds to believe that any of the crimes enumerated hereinabove has been
committed or is being committed or is about to be committed: Provided, however, That in cases
involving the offenses of rebellion, conspiracy and proposal to commit rebellion, inciting to
rebellion, sedition, conspiracy to commit sedition, and inciting to sedition, such authority shall
be granted only upon prior proof that a rebellion or acts of sedition, as the case may be, have
actually been or are being committed; (2) that there are reasonable grounds to believe that
evidence will be obtained essential to the conviction of any person for, or to the solution of, or to
the prevention of, any of such crimes; and (3) that there are no other means readily available for
obtaining such evidence.

INADMISSIBILITY OF WIRETAPPED EVIDENCE

Section 4 of R.A. 4200 declares that any communication or spoken word, or the existence,
contents, substance, purport, effect, or meaning of the same or any part thereof, or any
information therein contained obtained or secured by any person in violation of the preceding
sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial,
legislative or administrative hearing or investigation.

Privacy is a constitutional right. One's privacy can't be intruded into without a lawful court order.
Secretly overhearing, recording or intercepting private communications with recording
equipment. The list provided for in the law isn't exclusive; so tape recorders, dictaphones and
radios must give way to the technology we now use.

A mere allegation that you made a secret recording of a private conversation is enough to
be considered a violation of RA 4200. The substance of the conversation and its
communication to a third person isn't required. Possession of the recorded material is also an
offense, as well as its copying and replaying. The exception is with regard to material used as
evidence in a civil or criminal investigation. It therefore doesn't apply to security systems (CCTV
cameras, etc.) in an establishment or home.

The penalty for violating this law is imprisonment for 6 months to 6 years and, if the violator is a
government official at the time the offense was committed, perpetual absolute disqualification
from public office. In case of aliens, they'll be subjected to deportation proceedings.

For a valid court order to be granted, the crimes committed (or to be committed) by the suspects
should be the following:
1.) Treason
2.) Espionage
3.) Provoking war and disloyalty in case of war
4.) Piracy
5.) Mutiny on the high seas
6.) Rebellion
7.) Conspiracy to commit rebellion
8.) Inciting to rebellion
9.) Sedition
10.) Inciting to sedition
11.) Kidnapping
12.) Violations of CA 616 (espionage and other offenses against national security)

To apply for a court order, examination of the witnesses must show the following:

1.) There are reasonable grounds to believe that the above crimes were committed, are being
committed or are about to be committed. In case of rebellion, conspiracy to commit rebellion,
sedition, conspiracy to commit sedition and inciting to sedition, the order will be granted only if
there is prior proof that a rebellion, etc., has actually been or is being committed.

2.) There are reasonable ground to believe that the evidence obtained will secure a conviction for
the suspects or provide a solution to or prevention of any such crimes.

3.) There are no other readily available means of gathering evidence.

The contents of the order are as follows:

1.) The identity of the persons in question

2.) The identity of the officers authorized to conduct surveillance

3.) The offense committed or about to be committed

4.) The period of authorization (60 days, extendable or renewable if public interest is on the line)

Within 48 hours after the end of the period the recorded matter is to be delivered in a sealed
package to the court that issued the order, together with an affidavit executed by the officer who
did the surveillance. The affidavit should state the number of recordings, the time each recording
was made, the number of recorded material (tapes, disks, USBs, etc.) and certify that no copies
were made and if there are such copies, they're included in the package. Only the court can order
an opening of the package for examination.

Information gathered in violation of RA 4200 can't be admitted in evidence.

 THE WRIT OF HABEAS DATA

A.M. No. 08-1-16-SC

Introduction: Habeas Data as a Legal Notion1

The writ of habeas data is a relatively new legal notion compared to the traditional writ
of habeas corpus and the recently promulgated writ of amparo. It is essentially considered as the
youngest legal mechanism to safeguard the privacy of an individual.

Habeas data literally means ‘you should have the data’, and is defined by Latin American
legal scholars as a writ “designed to protect through a petition or complaint, the image, privacy,
honor, information self-determination and freedom of information of a person”.

Historical Background and Countries which Adopted the Writ of Habeas Data

Although many will argue that its origin stemmed from Europe, particularly the Council
of Europe’s 108th Convention on Data Protection of 1981. The European Data Protection
Convention of 1981 was convened to develop the safeguards to secure the privacy of the
individual by way of regulating the processing of personal information or data.

1
Primer on the Writ of Habeas Data; Atty. Neri Javier Colmenares
 In Latin American countries, it finds its application as an aid in protecting the individual
against human rights abuses. The first Latin American nation to adopt the writ of habeas data
was the Federal Republic of Brazil. It is Brazil which directly and expressly enshrined its
provisions into law through Law 824 [December 28, 1984, Rio de Janeiro] and subsequently
under Article 5, LXXII of its Constitution which states that habeas data is granted:

a) to ensure knowledge of information relating to the person of the petitioner, contained

in records or data banks of government entities or of public entities; and b) for the
correction of data, if the petitioner does not prefer to do so through confidential, judicial
or administrative proceedings.

It must be stressed that the legal concept of habeas data which Brazil [and many Latin
American countries] implemented, is in fact substantially different from the data protection
concepts of European countries. The Brazilian writ guarantees the petitioner the exercise of his
or her right based on three factors:

(i) the right of individuals to access public registries

(ii) the right to notification
(iii) the right to complement or correct the information contained in the registries

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 country of Colombia incorporated the habeas data right in its 1991 Constitution and
reformulated in the 1997 version of its Constitution where it recognizes the citizen’s right the
right to know, access, update and rectify any information gathered about them in databases, both
public and private. Paraguay enshrined a similar provision under Art. 135 of the 1992 Paraguay
Constitution, to wit:

“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 or if they are
illegitimately affecting his rights.”
 It is noteworthy that the Paraguayan habeas data gives the aggrieved party the right to
demand rectification or destruction of information based on the broad ground that the
information ‘illegitimately affects his rights’ even if they are not entirely wrong.

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”.

In Peru, a regulatory law that took effect on April 18, 1995 supported Article 200,
Section 3 of the Constitution of Peru which recognizes “one’s right to update one’s ‘automated
data’—those personal data kept and supplied by any ‘information sevice, automated or not.”

The Argentine Supreme court held that the writ is a proper remedy in a case involving
extralegal killings and enforced disappearances which give the victims access to police and
military records otherwise closed to them. The Argentine Constitution in reference to the writ of
habeas data under Article 43 of its Constitution provides:

“Any person shall file this action 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.”

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 one’s 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.
 Many Latin American countries also came up with their particular rules on habeas data2,
many containing the following common provisions in general:

(i) The respondent is usually the government or public officials and does not involve
personal ‘registries’ or information banks
(ii) The writ does not impair the secret nature of media sources

Habeas data should not only provide remedy for those whose rights are violated but
should result in normative changes in the gathering and use of information on individuals. Even
if it is doubtful that such normative developments will necessarily take place soon, human rights
lawyers abroad use this latest legal tool towards:

a. Forcing the State and those gathering or collecting data or information to use legal means
in that endeavor.
b. Restricting the use of the data or information gathered only for legitimate ends and not to
harass political opponents or violate constitutional rights.
c. Ensuring the security and confidentiality of the data or information gathered and stored.
d. Forcing the State to discard all unnecessary, dated or irrelevant data
e. Ensuring the accountability of the State and the public official for the misuse or abuse of
any data or information gathered.

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.”

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

2
Peru in 1993, Argentina in 1994, Ecuador in 1996, and Colombia in 1997. There are projects to incorporate the
new right in Guatemala, Uruguay, Venezuela and Costa Rica, and several important writers and political groups
support the implementation of the figure both in Panama and in Mexico [Habeas Data vs. European Data Protection,
by Andres Guadamuz, 2001].
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 one’s 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 regime3.

3
Speech given by Chief Justice Reynato Puno
 The Philippine Habeas Data

The Rule on Habeas Data, promulgated by the Supreme Court on January 22, 2008
through AM 08-1-16 and took effect on February 2, 2008. was born in the midst of worsening
human rights condition in the country through extra-judicial killings, enforced disappearance and
torture. The government of Pres. Gloria Arroyo, through its security forces were believed to be
compiling dossiers on the opposition, listing many individuals in the Order of Battle under Oplan
Bantay Laya and filing various criminal charges against political opponents and members of the
media, considered as political harassment suits.

Habeas data was, therefore, promulgated within the context of government compilation
of information on individuals on the basis of non transparent and credible sources promoting fear
among many that the said information will be used and abused to harass legitimate dissenters. It
was issued at the time that efforts to impose a national ID system has fanned fears among human
rights advocates of government’s attempt to establish an Orwellian ‘big brother’ to stifle dissent.

Purpose of Habeas Data

 The writ in general is designed to safeguard individual freedom from abuse in the
information age by means of an individual complaint presented in a constitutional court.
Specifically, it protects the image, privacy, honor, information, self-determination, and freedom
of information of a person4.

It is a procedure designed to safeguard individual freedom from abuse in the information

5
age .

It bears reiteration that like the writ of amparo, habeas data was conceived as a response,
given the lack of effective and available remedies, to address the extraordinary rise in the number
of killings and enforced disappearances. Its intent is to address violations of or threats to the
rights to life, liberty or security as a remedy independently from those provided under prevailing
Rules6.

According to Chief Justice Reynato Puno, the writ of habeas data complements the
writ of amparo by helping produce or correct data that is relevant to protect the rights of a
person who disappeared or is the victim of an extrajudicial killing.

If the police or military, for instance, conduct a haphazard investigation or one with
illegal or malicious intent, they could hide or disregard data relevant to the solution of the killing
or the disappearance. The writ can be used to produce information so that the families of the
victims, especially those of the disappeared, will have a better picture of his fate despite the
perpetrators’ efforts to hide the details

4
The Philippine Supreme Court’s bulletin.
5
Chief Justice Ricardo Puno
6
Tapuz v. Del Rosario, G. R. No. 182484, June 17, 2008, 554 SCRA 768, 784
 Overview of the Writ of Habeas Data

This writ entitles the families of disappeared persons to know the totality of
circumstances surrounding the fates of their relatives and imposes an obligation of investigation
on the part of governments. This writ is particularly crucial in cases of political disappearances,
which frequently imply secret executions of detainees without any trial, followed by the
concealment of the bodies for the purpose of erasing all material traces of the crime and securing
impunity for the perpetrators,? Puno said in a speech last Friday.

The rules of habeas data prohibit a general denial of the allegations in the petition, and
the respondent is required to state his lawful defenses, disclose the information and the purpose
of its collection, the steps he took to ensure the security and confidentiality of the information,
and the currency and accuracy of the data.

When a respondent invokes such lawful defenses as national security or privileged

communication, a judge may conduct a hearing in his chambers, which is not open to the public,
and with precautions to ensure their secrecy. But the respondent is required to disclose the
information to the court.

Under the rules, the petitioner is also supposed to explain how his right to privacy is
threatened or violated and how it affects his right to life, liberty and security. He should also
detail his actions to secure the data, as well as its location. He must name the person in charge of
the information. In case he is under threat, he should request for an order to stop the act.

Petitions for a habeas data writ can be filed in the regional trial courts. Petitions can also
be brought to the Court of Appeals, Supreme Court or the Sandiganbayan antigraft court in cases
where files of government offices are involved.

Only indigent petitioners are exempted from paying docket fees.

A respondent who refuses to respond to the petition or files a false return, or who disobeys court
orders could be cited for contempt and punished with a fine or imprisonment.

The rules also prohibit motions that could delay the resolution of the habeas data petition. These
include motions to dismiss, for extension to file pleadings, for postponement of hearings, for
intervention and for third party complaint.
 Compared with Writ of Amparo

In the Philippines, amparo and habeas data are prerogative writs to supplement the
inefficacy of the writ of habeas corpus (Rule 102, Revised Rules of Court). Amparo means
protection, while habeas data is access to information. Both writs were conceived to solve the
extensive Philippine extrajudicial killings and forced disappearances since 1999.

The coverage of the writs is limited to the protection of rights to life, liberty
and security. And the writs cover not only actual but also threats of unlawful acts or omissions.

Habeas data essentially allows families of victims of enforced disappearance to petition

the courts to compel the government and security officials to allow access to documents about
the missing.

The writ of Amparo, on the other hand, denies state officials the defense of denial with
which they normally evade petitions for habeas corpus that families of missing persons file and
compels them instead to exert efforts to find these missing persons or face sanctions.

Q: What is the nature and scope of the Philippine Habeas data ?

Section 1 provides that:

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 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.
 The rule [as to parties] allows any individual to file the petition on the ground that “his
right to privacy in life, liberty or security is violated or threatened”. This provision may be
interpreted to refer to an act or omission which violates or threatens the right to privacy of an
individual which in turn, results in violating or threatening his or her right to life, liberty or
security.

Note that under the Rule, the respondent may be:

(i) a public official or employee; or

(ii) a private individual or entity, who is engaged in the gathering, collecting, or storing of
data “regarding a the person, family, home and correspondence.”

The rule requires that the act or omission causing the violation must be unlawful. Even if
this provision is open to varying interpretations, it is best that the petition must allege the
unlawfulness of an act or omission to fulfill this required element. However, it is posited that any
gathering, collecting, storing or using of data on an individual, without that individual’s consent,
is presumed unlawful unless the respondent proves that the data is current, accurate, its
confidentiality assured, and was legally acquired or gathered for a legitimate or legal purpose.

Although the Court did not expressly provide that the confidentiality of sources by media
is excluded from the writ, the same may be deemed excluded not only because it is not
‘unlawful’ but also because that will clash with the constitutional freedom of the press. The
media may be a respondent in a habeas data petition, but it can raise as a defense the
confidentiality of its sources, and therefore privileged, as the habeas data rule provides.

CASES:

CASTILLO vs. CRUZ, G.R. No. 182165

November 25, 2009, En Banc, Carpio Morales, J.

 Oddly, respondents also seek the issuance of a writ of habeas data when it is not even
alleged that petitioners are gathering, collecting or storing data or information regarding their
person, family, home and correspondence.

It thus appears that respondents are not without recourse and have in fact taken full
advantage of the legal system with the filing of civil, criminal and administrative charges. It
need not be underlined that respondents’ petitions for writs of amparo and habeas data are
extraordinary remedies which cannot be used as tools to stall the execution of a final and
executory decision in a property dispute.

At all events, respondents’ filing of the petitions for writs of amparo and habeas data
should have been barred, for criminal proceedings against them had commenced after they were
arrested in flagrante delicto and proceeded against in accordance with Section 6, Rule 112 of the
Rules of Court. Validity of the arrest or the proceedings conducted thereafter is a defense that
may be set up by respondents during trial and not before a petition for writs of amparo
and habeas data. The reliefs afforded by the writs may, however, be made available to the
aggrieved party by motion in the criminal proceedings.

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND

HABEAS DATA IN FAVOR OF NORIEL H. RODRIGUEZ, NORIEL H. RODRIGUEZ,
Petitioner, – versus -GLORIA MACAPAGAL-ARROYO, et.al.

GR NO. 191805, NOVEMBER 15, 2011

Facts: Petitioner Noriel Rodriguez is a member of Alyansa Dagiti Mannalon Iti Cagayan
(Kagimungan), a peasant organization affiliated with Kilusang Magbubukid ng
Pilipinas (KMP). He claims that the military tagged KMP as an enemy of the State under the
Oplan Bantay Laya, making its members targets of extrajudicial killings and enforced
disappearances.

Rodriguez was abducted by military men and was tortured repeatedly when he refused to
confess to his membership in the NPA. When released, he filed a Petition for the Writ of Amparo
and and Petition for the Writ of Habeas Datawith Prayers for Protection Orders, Inspection of
Place, and Production of Documents and Personal Properties. The petition was filed against
former Pres. Arroyo, et al. The writs were granted but the CA dropped Pres Arroyo as party-
respondent, as she may not be sued in any case during her tenure of office or actual incumbency.

Respondents in this case argued that Petitioner had not presented any adequate and
competent evidence, much less substantial evidence, to establish his claim that public
respondents had violated, were violating or threatening to violate his rights to life, liberty and
security, as well as his right to privacy. Hence, he was not entitled to the privilege of the writs
of amparo and habeas data or to the corresponding interim reliefs (i.e. inspection order,
production order and temporary protection order) provided under the rule on the writ
of amparo and the rule on the writ of habeas data

Issues:

1. Whether the interim reliefs prayed for by Rodriguez may be granted after the writs
of amparo and habeas data have already been issued in his favor.

NO. In the petition in G.R. No. 191805, Rodriguez prays for the issuance of a
temporary protection order. It must be underscored that this interim relief is only
available before final judgment. We held in Yano v. Sanchez[68] that “[t]hese provisional
reliefs are intended to assist the court before it arrives at a judicious determination of
the amparo petition.” Being interim reliefs, they can only be granted before a final
adjudication of the case is made. In any case, it must be underscored that the privilege of
the writ of amparo, once granted, necessarily entails the protection of the aggrieved party.
Thus, since we grant petitioner the privilege of the writ of amparo, there is no need to issue
a temporary protection order independently of the former. The order restricting respondents
from going near Rodriguez is subsumed under the privilege of the writ.

2. Who may be held liable for Rodriguez’s right to life, liberty and security? Is the president
immune from suit?

It bears stressing that since there is no determination of administrative, civil or

criminal liability in amparo and habeas data proceedings, courts can only go as far as
ascertaining responsibility or accountability for the enforced disappearance or
extrajudicial killing. Thus, in the case at bar, the Court of Appeals, in its Decision found
 respondents in G.R. No. 191805 – with the exception of Calog, Palacpac or Harry – to be
accountable for the violations of Rodriguez’s right to life, liberty and security committed by
the 17th Infantry Battalion, 5th Infantry Division of the Philippine Army. The Court of
Appeals dismissed the petition with respect to former President Arroyo on account of her
presidential immunity from suit. Rodriguez contends, though, that she should remain a
respondent in this case to enable the courts to determine whether she is responsible or
accountable therefor. In this regard, it must be clarified that the Court of Appeals’ rationale
for dropping her from the list of respondents no longer stands since her presidential
immunity is limited only to her incumbency.

MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and RUBEN A.

SAPITULA v. ROSARIO GOPEZ LIM

G.R. No. 184769, October 5, 2010

Issue: May an employee invoke the remedies available under such writ where an employer
decides to transfer her workplace on the basis of copies of an anonymous letter posted therein ─
imputing to her disloyalty to the company and calling for her to leave, which imputation it
investigated but fails to inform her of the details thereof?

Held: in the case of Castillo v. Cruz, SC underscores the emphasis laid down in Tapuz v. del
Rosario that the writs of amparo and habeas data will NOT issue to protect purely property or
commercial concerns nor when the grounds invoked in support of the petitions therefor are vague
or doubtful7.Employment constitutes a property right under the context of the due process clause
of the Constitution8. It is evident that respondent’s reservations on the real reasons for her
transfer – a legitimate concern respecting the terms and conditions of one’s employment – are

7
Castillo v. Cruz, supra
8
Romagos v. Metro Cebu Water District, G. R. No. 156100, September 12, 2007, 533 SCRA 50, 60 citing National
Power Corporation v. Zozobrado, G. R. No. 153022, April 10, 2006, 487 SCRA 16, 24.
what prompted her to adopt the extraordinary remedy of habeas data. Jurisdiction over such
concerns is inarguably lodged by law with the NLRC and the Labor Arbiters.
In another vein, there is no showing from the facts presented that petitioners committed
any unjustifiable or unlawful violation of respondent’s right to privacy vis-a-vis the right to life,
liberty or security. To argue that petitioners’ refusal to disclose the contents of reports allegedly
received on the threats to respondent’s safety amounts to a violation of her right to privacy is at
best speculative. Respondent in fact trivializes these threats and accusations from unknown
individuals in her earlier-quoted portion of her July 10, 2008 letter as “highly suspicious,
doubtful or are just mere jokes if they existed at all.” And she even suspects that her transfer to
another place of work “betray[s] the real intent of management]” and could be a “punitive
move.” Her posture unwittingly concedes that the issue is labor-related.

Saez v. Arroyo; Luz v. Esperon

March 11, 2008

In separate two-page resolutions, both dated March 11, 2008, the Court En Banc resolved
to grant two separate petitions both for writs of habeas data and amparo, filed by Ayala
Foundation, Inc. Executive Vice President Guillermo M. Luz and Anakpawis party list member
Francis Saez, on March 3 and March 5, 2008, respectively. The respondents in both cases,
which include Armed Forces of the Philippines Chief of Staff Gen. Hermogenes Esperon,
Philippine National Police Director-General Avelino Razon, and other government officials,
were thus ordered to make verified returns of the said writs before the Court of Appeals, Manila
within five working days from service of the writs. The Court of Appeals, Manila was likewise
ordered to separately hear each petition and decide such, in accordance with the Rules. In
addition, the Presiding Justice of the Court of Appeals, Manila was instructed to raffle the cases
among the members of the appellate court.

In his petition, Luz prays that Gen. Esperon and involved military agents appear before
the Court to confirm or deny whether the military has been conducting surveillance operations on
him for his suspected involvement in a plot to oust President Gloria Macapagal Arroyo,
particularly that of his alleged participation in the execution of what is known as the “Pen coup.”

For his part, Saez sought for the Court to compel respondents President Arroyo, Gen.
Esperon, and other involved persons produce before them the “Order of Battle” containing his
name. He prays that his name be taken out from this “list of persons who are considered as
targets for neutralization by the [AFP].” He likewise prays for the destruction of documents he
claims the AFP had intimidated him into signing, saying he is a rebel returnee and that he has
agreed to become an intelligence asset.
 De Venecia v. AFP
April 1, 2008

The Supreme Court has issued a writ of habeas data in the petition for the same filed by
Jose De Venecia III to enjoin various government officials and agencies from carrying out wire-
tapping and surveillance activities over his private communications and publicly airing any
illegally obtained recordings.
In a two-page resolution dated April 1, 2008, the Supreme Court En Banc issued a writ of habeas
data in the petition filed by De Venecia against the Armed Forces of the Philippines on March
26, 2008. The respondents, which include AFP Chief of Staff Gen. Hermogenes Esperon,
Philippine National Police Director-General Avelino Razon, Senator Juan Ponce Enrile, and
former Commission on Elections Chair Benjamin S. Abalos, have thus been ordered to make
verified returns of the said writ before the Court of Appeals, Manila within five working days
from service of the writ. The Court of Appeals, Manila has likewise been ordered to hear the
petition on April 15, 2008 at 1:30 p.m. and decide such in accordance with the Rules. In
addition, the Presiding Justice of the Court of Appeals, Manila has been instructed to raffle the
case among the members of the appellate court.

In his petition, De Venecia prays that the respondent government officials be ordered to
cease all alleged harassment and surveillance activities against him and produce before the Court
all materials, including recordings and transcriptions, in their possession obtained through
alleged wiretapping activities conducted on his private communications. He also prays that
Senator Juan Ponce Enrile be enjoined from publicly broadcasting supposed wiretapped
conversations that would discredit his testimony relating to the National Broadband Network-
Zhong Xing Telecomunications Equipment (NBN-ZTE) deal presently under investigation by
the Senate. He likewise prays that they be ordered to desist from committing any other act that
constitutes unjustified and unwarranted invasion of his constitutional right to security and
privacy.

De Venecia cites as a major basis for his petition Senator Enrile’s threat, in the course of
the March 11 Senate investigation, to publicly broadcast a purported “tape” recording of De
Venecia’s private phone conversations, which De Venecia alleges is for the purpose of
discrediting his testimony before the Senate on the NBN-ZTE deal. He claims that such violates
RA 4200, the Anti-Wiretapping Act, as well as his constitutional rights.

G.R. No. 193636 July 24, 2012

MARYNETTE R. GAMBOA, Petitioner,
vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-Provincial Director of Ilocos
Norte, and P/SUPT. WILLIAM 0. FANG, in his capacity as Chief, Intelligence Division,
PNP Provincial Office, Ilocos Norte,Respondents.

The Supreme Court affirmed a Regional Trial Court’s decision insofar as it denied the petition
for habeas data filed by former Dingras, Ilocos Norte Mayor Marynette R. Gamboa against the
Philippine National Police in Ilocos Norte (PNP-Ilocos Norte) which had tagged her as a having
a private army.
The Court held that although the right of privacy protected by the writ ofhabeas data is
considered a fundamental right, “the right of privacy may nevertheless succumb to an opposing
or overriding state interest deemed legitimate and compelling.”

Gamboa filed the petition for the issuance of a writ of habeas data in the Laoag City Regional
Trial Court (RTC) against the PNP-Ilocos Norte for allegedly violating her right to privacy and
maligning her reputation when the latter submitted information to the Zeñarosa Commission,
classifying her “as someone who keeps a private army group. Purportedly without the benefit of
data verification.”

The Zeñarosa Commission was created under former President Gloria Macapagal-Arroyo to
address the alleged existence of private armies in the country. Upon the conclusion of its
investigation, the Zeñarosa Commission released and submitted its report to the Office of the
President. The report was later leaked to third parties and the media.

In her petition, Gamboa prayed for the “(a) destruction of the unverified reports from the PNP-
Ilocos Norte database; (b) withdrawal of all information forwarded to higher PNP officials; (c)
rectification of the damage done to her honor; (d) ordering respondents to refrain from
forwarding unverified reports against her; and (e) restraining respondents from making baseless
reports.”

In denying the petition for review, the Supreme Court held that “the state of dismantling private
army groups far outweighs the alleged intrusion on the private life of Gamboa, especially when
the collection and forwarding by the PNP of information against her was pursuant to a lawful
mandate.”

The Court explained that “the fact the PNP released information to the Zeñarosa Commission
without prior communication to Gamboa and without affording her the opportunity to refute the
same cannot be interpreted as a violation or threat to her right to privacy since that act is an
inherent and crucial component of intelligence-gathering and investigation.” In refuting
Gamboa’s allegation that there was no validation process, the Court said that “safeguards were
put in place to make sure that information collected maintained its integrity and accuracy.”

Pending the enactment of legislation on data protection, the Court declined to make any further
determination as to the propriety of sharing information during specific stages of intelligence
gathering. To do otherwise would supplant the discretion of investigative bodies in the
accomplishment of their functions, resulting in an undue encroachment on their competence.

The Court also stressed that Gamboa failed to establish that respondents were responsible for this
unintended disclosure. In any event, there are other reliefs available to her to address the
purported damage to her reputation, making a resort to the extraordinary remedy of the writ
of habeas data unnecessary and improper.

The Court ruled that Gamboa was unable to prove through substantial evidence that her inclusion
in the list of individuals maintaining private armies made her and her supporters susceptible to
harassment and to increased police surveillance. In this regard, respondents sufficiently
explained that the investigations conducted against her were in relation to the criminal cases in
which she was implicated. As public officials, they enjoy the presumption of regularity, which
she failed to overcome. The Court also noted that Gamboa herself admitted that the PNP had a
validation system, which was used to update information on individuals associated with private
armies and ensure that the data mirrored the situation on the field.

IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE
WRIT OF HABEAS DATA IN FAVOR OF MELISSA C. ROXAS, MELISSA C. ROXAS,

Petitioner, -versus-GLORIA MACAPAGAL-ARROYO, etc. Respondents.

G.R. No. 189155 September 7, 2010

FACTS: Melissa Roxas, an American citizen of Filipino descent, while in the United States,
enrolled in an exposure program to the Philippines with the group Bagong Alyansang
Makabayan-United States of America (BAYAN- USA) of which she is a member.

On 19 May 2009, after doing survey work in Tarlac, Roxas and her companions rested in the
house of Mr. Jesus Paolo in Sitio Bagong Sikat. While Roxas and her companions were resting,
15 heavily armed men in civilian clothes forcibly entered the house and dragged them inside a
van. When they alighted from the van, she was informed that she is being detained for being a
member of Communist Party of the Philippines-New People’s Army (CPP-NPA). She was then
separated from her companions and was brought to a room, from where she could hear sounds of
gunfire, noise of planes taking off and landing, and some construction bustle.

She was interrogated and tortured for 5 straight days to convince her to abandon her communist
beliefs. She was informed by a person named “RC” that those who tortured her came from the
“Special Operations Group” and that she was abducted because her name is included in the
“Order of Battle.”

On 25 May 2009, Roxas was finally released and was given a cellular phone with a sim card. She
was sternly warned not to report the incident to the group Karapatan or something untoward will
happen to her and her family. After her release, Roxas continued to receive calls from RC thru
the cell phone given to her. Out of apprehension, she threw the phone and the sim card.

Hence, on 01 June 2009, Roxas filed a petition for the issuance of Writs of Amparo and Habeas
Data before the Supreme Court, impleading the high-ranking officials of military and Philippine
National Police (PNP), on the belief that it was the government agents who were behind her
abduction and torture.
On 09 June 2009, the Supreme Court issued the writs and referred the case to the Court of
Appeals for hearing, reception of evidence and appropriate action. The Court of Appeals granted
the privilege of writs of amparo and habeas data. However, the court a quo absolved the
respondents because it was not convinced that the respondents were responsible for the
abduction and torture of Roxas.

Aggrieved, Roxas filed an appeal with the Supreme Court.

PERTINENT ISSUES:
1. Whether or not the doctrine of command responsibility is applicable in an amparo petition.
2. Whether or not circumstantial evidence with regard to the identity and affiliation of the
perpetrators is enough ground for the issuance of the privilege of the writ of amparo.
3. Whether or not substantial evidence to prove actual or threatened violation of the right to
privacy in life, liberty or security of the victim is necessary before the privilege of the
writ may be extended.

ANSWERS:
1. No.
2. It depends. Direct evidence of identity, when obtainable must be preferred over mere
circumstantial evidence.
3. Yes.

SUPREME COURT RULINGS:

1. DOCTRINE OF COMMAND RESPONSIBILITY AND THE WRIT OF AMPARO

Command responsibility as justification in impleading respondents is legally inaccurate – The
use of the doctrine of command responsibility as justification in impleading the respondents in
her amparo petition, is legally inaccurate, if not incorrect. Such doctrine is a rule of substantive
law that establishes liability and, by this account, cannot be a proper legal basis to implead a
party-respondent in an amparo petition.

The Writ of Amparo as a protective remedy – As held in the case of Rubrico v. Arroyo, the writ
of amparo is a protective remedy aimed at providing judicial relief consisting of the appropriate
remedial measures and directives that may be crafted by the court, in order to address specific
violations or threats of violation of the constitutional rights to life, liberty or security. It does not
fix liability for such disappearance, killing or threats, whether that may be criminal, civil or
administrative under the applicable substantive law. Since the application of command
responsibility presupposes an imputation of individual liability, it is more aptly invoked in a full-
blown criminal or administrative case rather than in a summary amparo proceeding. However,
the inapplicability of the doctrine of command responsibility does not preclude impleading
military or police commanders on the ground that the complained acts in the petition were
committed with their direct or indirect acquiescence. In which case, commanders may be
impleaded — not actually on the basis of command responsibility—but rather on the ground of
their responsibility, or at least accountability.

2. EVIDENCE REQUIRED IN AMPARO PROCEEDINGS

In amparo proceedings, direct evidence of identity must be preferred over mere circumstantial
evidence – In amparo proceedings, the weight that may be accorded to parallel circumstances as
evidence of military involvement depends largely on the availability or non-availability of other
pieces of evidence that has the potential of directly proving the identity and affiliation of the
perpetrators. Direct evidence of identity, when obtainable, must be preferred over mere
circumstantial evidence based on patterns and similarity, because the former indubitably offers
greater certainty as to the true identity and affiliation of the perpetrators.

3. EVIDENCE REQURED IN HABEAS DATA PROCEEDINGS

Substantial evidence of an actual or threatened violation of the right to privacy in life, liberty
or security of the victim is an indispensable requirement before the privilege of the writ may be
extended – An indispensable requirement before the privilege of the writ may be extended is the
showing, at least by substantial evidence, of an actual or threatened violation of the right to
privacy in life, liberty or security of the victim. In the case at bar, Roxas failed to show that there
is an actual or threatened violation of such right. Hence, until such time that any of the
respondents were found to be actually responsible for the abduction and torture of Roxas, any
inference regarding the existence of reports being kept in violation of the petitioner’s right to
privacy becomes farfetched, and premature. The Court must, at least in the meantime, strike
down the grant of the privilege of the writ of habeas data.

DISPOSITIVE:
The Supreme Court affirmed the decision of the Court of Appeals. However, it modified the
directive of the Court of the Appeals for further investigation, as follows:
1. Appointing the CHR as the lead agency tasked with conducting further investigation
regarding the abduction and torture of the petitioner. Accordingly, the CHR shall, under the
norm of extraordinary diligence, take or continue to take the necessary steps: (a) to identify
the persons described in the cartographic sketches submitted by the petitioner, as well as their
whereabouts; and (b) to pursue any other leads relevant to petitioner’s abduction and torture.
2. Directing the incumbent Chief of the Philippine National Police (PNP), or his successor, and
the incumbent Chief of Staff of the AFP, or his successor, to extend assistance to the ongoing
investigation of the CHR, including but not limited to furnishing the latter a copy of its
personnel records circa the time of the petitioner’s abduction and torture, subject to
reasonable regulations consistent with the Constitution and existing laws.
3. Further directing the incumbent Chief of the PNP, or his successor, to furnish to this Court,
the Court of Appeals, and the petitioner or her representative, a copy of the reports of its
investigations and their recommendations, other than those that are already part of the
records of this case, within ninety (90) days from receipt of this decision.
4. Further directing the CHR to (a) furnish to the Court of Appeals within ninety (90) days from
receipt of this decision, a copy of the reports on its investigation and its corresponding
recommendations; and to (b) provide or continue to provide protection to the petitioner
during her stay or visit to the Philippines, until such time as may hereinafter be determined
by this Court.

The Supreme Court likewise referred the case back to the Court of Appeals, for the purposes of
monitoring compliance with the above directives and determining whether, in light of any recent
reports or recommendations, there would already be sufficient evidence to hold any of the public
respondents responsible or, at least, accountable. After making such determination, the Court of
Appeals shall submit its own report with recommendation to the Supreme Court for its
consideration. It was declared that the Court of Appeals will continue to have jurisdiction over
this case in order to accomplish its tasks under this decision.
.

Q: Who has standing to file the petition?

Section 2 provides that it is the “aggrieved party” who has standing to file the Petition:

Sec. 2. Who may File--Any aggrieved party may file a petition for the writ of habeas
data. However, in cases of extra-judicial killings and enforced disappearance, the
petition may be filed by:

(a) any member of the immediate family of the aggrieved party, namely: the
spouse, children or parents; or
(b) any ascendant, descendant or collateral relative of the aggrieved party within
the fourt civil degree of consanguinity or affinity, in default of those mentioned in
the preceding paragraph.

If a petition is filed, therefore, on the basis that the violation or threats to the right to privacy
is related to or results or may result in extra-judicial killing or enforced disappearance, the
petition may be filed by third parties. In this situation, it is important to allege the threat of
extrajudicial killing or enforced disappearance in the petition in order to grant third parties the
standing to file the petition. Note that unlike in Amparo, human rights organizations or
institutions are no longer allowed to file the petition, possibly in recognition of the privacy aspect
of a habeas data petition.

Q: Where to file a Petition for a writ of habeas data?

Under Section 3:

Section 3: Where to File--The petition may be filed, at the ‘option of the petitioner’,
with:

(i) The “regional trial court where the respondent or petitioner resides9”
(ii) The regional trial court which has jurisdiction over the place “where the data
or information is gathered, collected or stored.”
(iii) The Supreme Court, Court of Appeals or the Sandiganbayan when the action
“concerns public data files of government offices’.

If the petition involves ‘public data files of government offices’ [which is interpreted to
mean that the respondent is a government personnel or official in charge of a public registry’ the
petitioner is allowed three options for venue including the filing before the Supreme Court.
Otherwise, the petitioner’s venue is restricted to the Regional Trial Courts.

BAR QUESTION:A wants to file a Petition for Writ of Habeas Data against the AFP in
connection with threats to his life allegedly made by AFP intelligence officers. A needs copies of
AFP highly classified intelligence reports collected by Sgt. Santos who is from AFP. A can file
his petition with:

a) RTC where AFP is located;

b) RTC where Sgt. Santos resides;

c) Supreme Court;

d) Court of Appeals.

Q: Can a petition be filed before a Justice of the Supreme Court, Sandiganbayan or the
Court of Appeals?

9
This is akin to the venue in the habeas data rules of Argentina and many Latin American countries.
 Reading Section 4 [and even Section 14], it seems that it may be filed [by implication]
before a justice of a collegial tribunal:

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, ti
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.

Notwithstanding the venue chosen, the writ is enforceable “anywhere in the Philippines”.

The hearing on the writ is summary in nature. Under Section 14, however, the court, justice
or judge may call for a preliminary conference to simplify the issues and determine the
possibility of obtaining stipulations and admission from the parties.

Q: How much is the docket fee for the filing of the Petition ?

Section 5 states that:

 Section 5. Docket Fees—No docket and other lawful fees are required from an
indigent petitioner. The petition of the indigent shall be docketed and acted upon
immediately without prejudice to the subsequent submission of proof of indigency not
later than 15 days from the filing of the petition.

The Petitioner may, therefore, file the petition and submit proof of indigency later. Should
the court find the proof insufficient, it is hoped that the court merely orders the payment of
docket fees rather than dismissing the petition.

Q: What should the Petition contain ?

Section 6 of the Rule provides that:

Sec. 6 Petition--A verified 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.

 Firstly, the petition must be verified.

Secondly, the Petition must show the connection between the violation of the right to privacy
and the threat or violation of the petitioner’s right to life, liberty or property.

Thirdly, it seems from the provision that the petitioner must alleged in the petition if he or
she has made attempts to secure the data or have it amended or destroyed before the filing of a
petition. This is interpreted by the writer to be an optional requirement, particularly since the
petitioner may not know who in particular controls the data.

It must be noted that the location of the file and the name of the person in charge must be
alleged in the petition only if ‘known’ to the petitioner. The rule therefore allows for a petition
to prosper even if the specific location or respondent is not exactly known.

Lastly, the reliefs must categorically state what is prayed for. Considering that knowledge of
the actual content may not be available to the petitioner upon filing, the Petitioner may ask for
the destruction of the entire file available or those portions which violate or threatens his or her
right to privacy.

CASE:

DANIEL MASANGKAY TAPUZ V HON. JUDGE ELMO DEL ROSARIO

G.R. No. 182484 | June 17, 2007 | J. Brion

FACTS:
 1. The private respondents spouses Sanson filed with the Aklan MCTC a complaint for
forcible entry and damages with a prayer for the issuance of a writ of preliminary
mandatory injunction against the petitioners and other John Does numbering about 120.
2. The private respondents alleged in their complaint that: (1) they are the registered owners
of the disputed land; (2) they were the disputed land’s prior possessors when the
petitioners – armed with bolos and carrying suspected firearms and together with
unidentified persons – entered the disputed land by force and intimidation, without the
private respondents’ permission and against the objections of the private respondents’
security men, and built thereon a nipa and bamboo structure.
3. In their Answer, the petitioners denied the material allegations and essentially claimed
that: (1) they are the actual and prior possessors of the disputed land; (2) on the contrary,
the private respondents are the intruders; and (3) the private respondents’ certificate of
title to the disputed property is spurious. They asked for the dismissal of the complaint
and interposed a counterclaim for damages.
4. The MCTC, after due proceedings, rendered a decision in the private respondents’ favor,
finding prior possession through the construction of perimeter fence in 1993.
5. The petitioners appealed the MCTC decision to RTC.
6. On appeal, Judge Marin granted the private respondents’ motion for the issuance of a writ
of preliminary mandatory injunction upon posting of a bond. The writ – authorizing the
immediate implementation of the MCTC decision – was actually issued by respondent
Judge del Rosario after the private respondents had complied with the imposed condition.
The petitioners moved to reconsider the issuance of the writ; the private respondents, on
the other hand, filed a motion for demolition.
7. The respondent Judge subsequently denied the petitioners’ MR and to Defer Enforcement
of Preliminary Mandatory Injunction.
8. Meanwhile, the petitioners opposed the motion for demolition. The respondent Judge
nevertheless issued via a Special Order a writ of demolition to be implemented fifteen
(15) days after the Sheriff’s written notice to the petitioners to voluntarily demolish their
house/s to allow the private respondents to effectively take actual possession of the land.
9. The petitioners thereafter filed a Petition for Review of the Permanent Mandatory
Injunction and Order of Demolition in CA.
10. Meanwhile, respondent Sheriff issued the Notice to Vacate and for Demolition. Hence,
the present petition for certiorari with writs of amparo and habeas data.

ISSUE: W/N petition for certiorari with writ of amparo and habeas data is proper

HELD: No. We find the petitions for certiorari and issuance of a writ of habeas data fatally
defective, both in substance and in form. The petition for the issuance of the writ of amparo, on
the other hand, is fatally defective with respect to content and substance.

Based on the outlined material antecedents that led to the petition, that the petition for certiorari
to nullify the assailed RTC orders has been filed out of time. Based on the same material
antecedents, we find too that the petitioners have been guilty of willful and deliberate
misrepresentation before this Court and, at the very least, of forum shopping. In sum, the petition
for certiorari should be dismissed for the cited formal deficiencies, for violation of the non-forum
shopping rule, for having been filed out of time, and for substantive deficiencies.
To start off with the basics, the writ of amparo was originally conceived as a response to the
extraordinary rise in the number of killings and enforced disappearances, and to the perceived
lack of available and effective remedies to address these extraordinary concerns. It is intended to
address violations of or threats to the rights to life, liberty or security, as an extraordinary and
independent remedy beyond those available under the prevailing Rules, or as a remedy
supplemental to these Rules. What it is not, is a writ to protect concerns that are purely property
or commercial. Neither is it a writ that we shall issue on amorphous and uncertain grounds.
Consequently, the Rule on the Writ of Amparo – in line with the extraordinary character of the
writ and the reasonable certainty that its issuance demands – requires that every petition for the
issuance of the Writ must be supported by justifying allegations of fact.

On the whole, what is clear from these statements – both sworn and unsworn – is the overriding
involvement of property issues as the petition traces its roots to questions of physical possession
of the property disputed by the private parties. If at all, issues relating to the right to life or to
liberty can hardly be discerned except to the extent that the occurrence of past violence has been
alleged. The right to security, on the other hand, is alleged only to the extent of the threats and
harassments implied from the presence of “armed men bare to the waist” and the alleged
pointing and firing of weapons. Notably, none of the supporting affidavits compellingly show
that the threat to the rights to life, liberty and security of the petitioners is imminent or is
continuing.

These allegations obviously lack what the Rule on Writ of Habeas Data requires as a minimum,
thus rendering the petition fatally deficient. Specifically, we see no concrete allegations of
unjustified or unlawful violation of the right to privacy related to the right to life, liberty or
security. The petition likewise has not alleged, much less demonstrated, any need for information
under the control of police authorities other than those it has already set forth as integral annexes.
The necessity or justification for the issuance of the writ, based on the insufficiency of previous
efforts made to secure information, has not also been shown. In sum, the prayer for the issuance
of a writ of habeas data is nothing more than the “fishing expedition” that this Court – in the
course of drafting the Rule on habeas data – had in mind in defining what the purpose of a writ
of habeas data is not. In these lights, the outright denial of the petition for the issuance of the writ
of habeas data is fully in order. PETITION DENIED.

Q: When is a writ issued ?

Section 7 states that :

 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 shall issue the writ under the seal of the court and cause it to be served within three
(3) days from its issuance; or in case of urgent necessity, the justice or judge may issue
the writ under his or her hand, and may deputize any officer or person to 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 issuance.

The rule requires courts to ‘immediately’ issue a writ if, from the ‘face’ of the petition, it
ought to issue. Although no period for the issuance of the writ was set by the rule, it is expected
that the writ should issue forthwith since all the court is required to look into is simply if it ought
to issue ‘on its face’.

If there is utmost urgency, Petitioner has the option of asking the court, through the
Petition, to deputize petitioner’s counsel or representative to serve the writ on respondents.
Under Section 9, in case the “writ cannot be served personally on the respondent, the rules on
substituted service shall apply”. Section 8 provides for penalties for the Clerk of Court or the
deputized person who refuses to serve the writ.

CASE:

IN THE MATTER OF PETITION FOR WRITS OF AMPARO AND HABEAS DATA

IN FAVOR OF CARIVEL CARDENO, etc. versus GLORIA MACAPAGAL ARROYO

The Supreme Court (SC) has granted the petition for writs of amparo and habeas data
filed by the family of Gregan Cardeño, a translator for American forces in Mindanao, who was
found dead last February 2 inside his room at the Joint Special Operation Task Force (JSOTFP)
military headquarters in Marawi City, Lanao del Sur10.

10
http://bulatlat.com/main/2010/06/26/sc-grants-amparo-habeas-data-plea-of-gi-interpreter%E2%80%99s-family/
 In a one-page notice, the SC informed the parties to the case of its June 15 resolution
granting the petition of the Cardeño family and referring the case to Court of Appeals Presiding
Justice Andres Reyes Jr. for immediate raffling.

The high court also directed the respondents – President Gloria Macapagal-Arroyo, in her
capacity as commander in chief; the Visiting Forces Agreement Commission; Philippine
National Police Director General Jesus Versoza; the JSOTFP; a certain Captain Boyer and
Master Sergeant Gines of the US military; General Benjamin Dolorfino, chief of the Western
Mindanao Command; Brigadier General Rey Aldo of the 103rd Infantry Brigade; Colonel Felix
Castro, also of the 103rd IB; Senior Police Officers 3 Ali Rangiris and Mayaman Angintaopan of
the Marawi police; Police Officer 2 Mago, an intelligence officer; Captain Michael Kay;
Lieutenant Junior Grade Theresa Donelly of the US Barracks, 103rd IB; Tomas Rivera III and
Skylink, a subcontractor of the US Army with which Cardeño applied for the job – to submit a
verified return of the writs within five days upon receipt of the resolution.

The respondents were also ordered to file their respective comments on the petition
within the same period. The SC also tasked the appellate court to hear the petition on July 1 and
decide on the issue 10 days after its submission for decision.

In their petition, the Cardeños, through their lawyer Rex Fernandez, also asked the Court
to issue a protective order enjoining the respondents from continuously harassing them to
discourage them from pursuing their case. They said their petition stemmed from suspicions of a
cover up of the real cause of Cardeño’s death, which authorities insist was a suicide but his
relatives believe to be murder.

The human rights organization Karapatan, whose help the Cardeño family sought,
conducted a fact-finding mission on March 3 and 4 but was not allowed access to where the
interpreted was found dead. Records show Cardeño was officially listed by Skylink as a security
guard even if he had been hired as an interpreter. He flew out of Edwin Andrews Air Based in
Zamboanga City, supposedly for Camp Siongco in Awang, Datu Odin Sinsuat, Maguindanao,
but was instead taken to JSOTFP military headquarters inside the Army’s 103rd Infantry Brigade
headquarters in Marawi City. He was founded dead in his room February 2. The US military and
Skylink claimed he committed suicide by hanging himself with a bed sheet. However, his
relatives have cited lapses in the investigation of the death and noted that the US troops and
Skylink transported Cardeño’s body to Zamboanga City without any death certificate, and with
no permit or documentation from any authority, in violation of the Visiting Forces Agreement.
They also said a court-issued protective order had become necessary after the killing of Major
Javier Ignacio, who had been helping them investigate the case.

Ignacio, who recommended Cardeño for the job, was shot dead March 25 by still
unidentified motorcycle riding men in Camins, Zamboanga City.

Q: What if there is a refusal to issue or serve the Writ?

 Section 8 provides that:

Section 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.

Q: How is the writ served?

Section 9 provides that:

Section 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.

Q: After the writ is served, what should the respondent file?

Section 10 provides that:

Section 10—Return. The respondent shall file a verified written return together with
supporting affidavits within five work 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 defense such as national security, state secrets, privileged
communication, confidentiality of the source of information of media and others
(b) In case of respondent in charge, in possession or in control of the said 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; and
c) other allegations relevant to the resolution of the proceeding.
A general denial of the allegations in the petitions shall not be allowed.

Firstly, the return must also be verified by the respondent. The use of template ‘returns’ is
therefore disallowed considering that the allegations in the return must be based on respondents
personal knowledge or authentic/official record. With regards the period, since the return must
be filed within five days from service, under ordinary circumstances the return could be filed, at
most, on the 8th day from the issuance of the writ counting the maximum three days for the clerk
to serve the same. The respondent, however, is given the right to ask for an extension which
may or may not be granted by the court.

Secondly, the return must specify its lawful defenses to the Petition. The court
enumerated possible defenses which include national security, state secrets, privileged
communication and others. It is unclear what ‘other’ lawful defenses are available to the
respondent. This writer asserts that the allegation or even proof of a lawful defense does not
automatically moot the petition since the court may decide that even if the information is
“confidential” or a “state secret”, the information must be destroyed if it violates or threatens the
petitioner’s right to privacy in life, liberty or security.

It must be reiterated that the media may be a respondent under the writ except that it
could set up as a defense the ‘confidentiality’ of the source of information. Many Latin
American habeas data rules expressly contain a provision such as that in Argentina which states
that “(T)he secret nature of the sources of journalistic information shall not be impaired.”
 Thirdly, the return must state the ‘currency and accuracy of the data or information’.
This could be the focal point of the petition since if respondent fails to prove that the data is
current and accurate, the prayer for its rectification or destruction should be granted. This writer
asserts that the collection and storage of data on an individual, without that individual’s consent,
should be presumed a violation of his or her constitutional right to privacy. Unless the
respondent proves, inter alia, that it was lawfully collected and for a legitimate purpose, its
storage secured, and that the data is current and accurate, the petitioner retains the right to have
the same rectified or destroyed. Any findings that the data is false or fabricated is fatal to the
respondent’s cause.

Q: Is there a penalty for refusing to make or making a false return?

Yes. The respondent may be punished for failing to make a return or making a false
return to wit:

Section 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
return; or any person who otherwise disobeys or resist a lawful process or order of the
court.

Q: How will the hearing be conducted in cases of ‘sensitive’ data?

Sec. 12 When Defenses May be Hear 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
information cannot be divulged to the public due to its nature or privileged character.

The “in chamber hearing” is not automatic. The Respondent has to convince the court
that the claim to privilege, confidentiality or national security has basis. Any generalized
allegation that the information is a ‘state secret’ or ‘confidential’ is tantamount to a general
denial and should therefore not be allowed.

Conclusion

Even if the rule allows for private individuals as respondents, the writ of habeas data may
be one of the main remedies for those whose right to life, liberty or security are threatened or
violated by acts or omission of public officials. The Philippine habeas data may vary from the
other Latin American habeas data precisely because it is informed by conditions obtaining in the
country today. The habeas data rule, similar to the amparo rule, may be interpreted differently in
the future, as jurisprudence on the same develops, but in the current context it should be used by
victims of harassment and other human rights violations committed by the state and its security
forces.

It is hoped that the Court will give full play to the use of habeas data as a venue for victims
of human rights violations seek redress for the violations and extract accountability for the abuse
of information collected, stored and used by the State.

Writs, compared:

Habeas Corpus Amparo Habeas Data

Nature, All cases of illegal confinement and
scope, detention which any person is
function deprived of his liberty; or rightful
custody of any person is withheld
from the person entitled (102.1)
Actual violation before writ issues.
Note Villavicencio v. Lukban on
applicability of the writ in case of
constructive restraint
Limitations May be suspended in cases of
invasion or rebellion when public
safety requires it (Consti. Art. III Sec.
15)
Who may file By a petition signed and verified
by the party for whose relief it is
intended,
or by some person on his behalf
(102.3)
Involves right to life, liberty and
security violated or threatened with
violation by an unlawful act or
omission of a public official or
employee or a private individual or
entity
It covers extralegal killings and
enforced disappearances or threats
thereof. (RWA Sec.1)
Shall not diminish, increase or
modify substantive rights (RWA Sec.
24)
Petition filed by the aggrieved party
or by any qualified person or entity
in the following order:
a. Any member of the immediate
family
b. Any ascendant, descendant or
Involves the right to privacy in life,
liberty or security of the aggrieved
party and covers extralegal killings
and enforced disappearances (RWD
Sec.1)
Shall not diminish, increase or modify
substantive rights (RWD Sec. 23)
Any aggrieved party may file a
petition for the WHD
However, in cases of extralegal
killings and enforced disappearances,
the petition may be filed by (also
successive):

Where filed Granted by:
SC or any member thereof, on any
day and at any time
CA or any member thereof in
instances authorized by law
RTC or a judge thereof, on any day
and at any time, enforceable only
within his judicial district (102.2)
MTC OR FIRST LEVEL COURTS in the
absence of RTC judges in a judicial
region (section 35 BP 129)
Where If SC or CA issued, anywhere in the
enforceable Philippines
If granted by the RTC or judge
thereof, it is enforceable in any part
of the judicial region (Section 21, BP
129 which modified the term judicial
district in Section 2, Rule 102 into
judicial region) where the judge sits
Where If the one that granted the writ:
returnable Is the SC or CA, or a member
thereof, returnable before such
court
or any member thereof
or an RTC
An RTC, or a judge thereof,
returnable before himself (102.2)
Docket Fees upon the final disposition of such
proceedings the court or judge shall
make such order as to costs as the
case requires (102.19)
Essential Signed and verified either by the
allegations/ party for whose relief it is intended
Contents of or by some person on his behalf,
petition setting forth:
*The person in whose behalf whose
the application is made is
imprisoned or restrained of his
liberty
*Name of the person detaining
another or assumed appellation
*Place where he is imprisoned or
collateral relative of the aggrieved
within the 4th civil degree of
consanguinity or affinity
c. Any concerned citizen,
organization, association or
institution
Filing by the aggrieved or
representative suspends the right of
all others (RWA Sec. 2)
Filed on any day and at any time:
SB, CA, SC, or any justice of such
courts
RTC of place where the threat, act,
or omission was committed or any
element occurred (RWA Sec. 3)
Writ shall be enforceable anywhere
in the Philippines (RWA Sec. 3)
If the one that granted the writ:
SC or any of its justices: before such
court or any justice thereof, or
before the SB or CA or any of their
justices, or to any RTC of the place
where the threat, act or omission
was committed or any of its
elements occurred
The SB or CA or any of their justices,
before such court or any justice
thereof, or to any RTC of the place
where the threat, act, or omission
was committed or any of its
elements occurred
RTC, returnable before such court or
judge (RWA Sec. 3)
NONE absolutely. Petitioner shall be
exempted from the payment of the
docket and other lawful fees. Court,
justice or judge shall docket the
petition and act upon it immediately
(RWA Sec 4)
Signed and verified and shall allege:
*The personal circumstances of the
petitioner
*Name or appellation and
circumstances of the respondent
*The right to life, liberty, and
security violated or threatened with
violation,
*The investigation conducted, if any,
plus circumstances of each
*The actions and recourses taken by
a. Any member of the immediate
family of the aggrieved
b. Any ascendant, descendant or
collateral relative of the aggrieved
party within the 4th civil degree of
consanguinity or affinity, (RWD Sec.
2)
Petition may be filed with RTC
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 petitioner
If public data files of government
offices, petition shall be filed with
the SC, CA, or SB (RWD Sec. 3)
Writ shall be enforceable anywhere
in the Philippines (RWD Sec. 3)
If issued by:
The SC or any of its justices, before
such Court or any justice thereof, or
CA or SB or any of its justices, or the
RTC of the place where the petitioner
or respondent resides / has
jurisdiction over the place where the
data or information is gathered,
stored or collected
The CA or SB or any of its justices,
before such court or any justice
thereof, or the RTC (same with
scenario: SC issued and then
returned in RTC)
RTC, returnable before such court or
judge (RWD Sec. 4)
None for indigent petitioner
Petition shall be docketed and acted
upon immediately, w/o prejudice to
subsequent submission of proof of
indigency not later than 15 days from
filing (RWD Sec. 5)
Verified and written petition shall
contain:
*Personal circumstances of
petitioner and respondent
*Manner the right to privacy is
violated or threatened and its effects
*Actions and recourses taken by the
petitioner to secure the data or
information
*The location of the files, registers,
or databases, the government office,
 restrained of his liberty
*Cause of detention, or allegation
that there’s none (102.3)
When proper Court or judge must, when a petition
is presented and it appears that it
ought to issue,
grant the same and then:
>the clerk of court (CoC) shall issue
the writ under the seal of the court;
or
>in case of emergency, the judge
may issue the writ under his own
hand, and may depute any officer or
person to serve it (102.5)
Also proper to be issued when the
court or judge has examined into the
cause of restraint of the prisoner,
and is satisfied that he is unlawfully
imprisoned (102.5)
How and who Writ may be served in any province
serves by the (a) sheriff, (b) other proper
officer, or (c) or person deputed by
the court or judge
Service is made by leaving the
original with the person to whom it
is directed and preserving a copy on
which to make return of service
(personal service)
If that person cannot be found, or
has not the prisoner in his custody,
service shall be made on any other
person having or exercising such
custody (substituted service)(102.7)
Respondent May or may not be an officer
How The officer to whom the writ is
executed and directed shall convey the person so
returned imprisoned or restrained before:
the judge allowing the writ,
or, in his absence or disability,
before some other judge of the same
court
on the day specified in the writ,
unless person directed to be
produced is sick or infirm, and
cannot, without danger, be brought
therein
officer shall then make due return
of the writ, with the day and cause
of the caption and restraint
according to the command thereof
(102.8)
When to file On the day specified on the writ
return
Contents of When the person to be produced is
the petitioner
*Relief prayed for
*May include a general prayer for
other just and equitable reliefs
(RWA Sec. 5)
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
>CoC shall issue the writ under the
seal of the court; or
>In case of urgent necessity, the
justice or the judge may issue the
writ under his or her own hand,
…and may deputize any officer or
person to serve it
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
(so personally, but if di pede,
substituted)
(RWA Sec. 8)
Respondent is a public official or
employee
or private individual or entity
Respondent files the return
Within 5 working days after service
of the writ
Within 5 working days after service
and the person in charge or control
*The reliefs prayed for
*Such other relevant reliefs as are
just and equitable (RWD Sec. 6)
Upon 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.
>CoC shall issue the writ under the
seal of the court and cause it to be
served within 3 days from 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 to
serve it (RWD Sec. 7)
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
(so personally, but if di pede,
substituted)
(RWD Sec. 9)
A public official or employee
or a private individual or entity
engaged in gathering, collecting or
storing data
Respondent files the return
Same with WA
*Lawful defenses such as national
return imprisoned or restrained by an
officer the person who makes the
return shall state, and in other cases
the person in whose custody the
prisoner is found shall state in
writing to the court or judge before
whom the writ is returnable:
*Truth of custody/power over the
aggrieved
*If has custody or power, or under
restraint, the authority and the
cause thereof, with a copy of the
writ, order, execution or other
process, if any upon which the party
is held;
*If the party is in his custody or
power, and is not produced,
particularly the nature and gravity of
the sickness or infirmity
*If he has had the party in his
custody or power, and has
transferred such custody or restraint
to another, particularly to whom, at
what time, for what cause, and by
what authority such transfer was
made. (102.10)
Formalities of Return or statement shall be signed
return and sworn to by the person who
makes it if the prisoner is not
produced,
Unless the return is made and signed
by a sworn public officer in his
official capacity (102.11)
Penalties CoC who refuses to issue the writ
after allowance and demand,
For refusing Or a person to whom a writ is
to issue or directed, who:
serve neglects/refuses to obey or make
return of the same according to the
command thereof,
or makes false return,
or upon demand made by or on
For faulty behalf of the prisoner, refuses to
return deliver to the person demanding,
within 6 hours a true copy of the
warrant or order of commitment,
shall forfeit to the party aggrieved
the sum of P1000, recoverable in a
proper action, and may also be
punished for contempt (102.16)
Is period of
return
extendable?
Is a general Yes. No prohibition in Rule.
denial
allowed?
Defenses not
pleaded
Effect of
of the writ, the respondent shall file
a verified written return together
with supporting affidavits which
shall, , contain:
*Lawful defenses
*The steps or actions taken to
determine the fate or whereabouts
of the aggrieved party
*All relevant information in the
possession of the respondent
pertaining to the threat, act or
omission against the aggrieved party
*If the respondent is a public official
or employee, the return shall
further state acts:
>To verify identity of aggrieved
party
>To recover and preserve evidence
>To identify and collect witness
statements
>To determine cause, manner,
location, and time of death or
disappearance
>To identify and apprehend persons
involved
>Bring suspected offenders before a
competent court (RWA Sec.9)
… the respondent shall file a verified
written return together with
supporting affidavits… (RWA Sec. 9)
CoC 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 (RWA Sec. 7)
The court, justice, or judge may
order the respondent who refuses
to make a return, or who makes a
false return, or any person who
otherwise disobeys or resist a lawful
process or order of the court to be
punished for contempt
Contemnor may be imprisoned or
imposed a fine (RWA Sec. 16)
No, not even on highly meritorious
grounds.
No, by virtue if A.M. No. 07-9-12-SC
If not raised in return deemed
waived (RWA Sec 10)
Court or justice shall proceed to
security, state secrets, privileged
communications, confidentiality of
the source of information of media
etc.
*In case of respondent in charge, in
possession or in control of the data
or information subject of the
petition:
>A disclosure of the data or
information about the petitioner, the
nature of such data or information,
and the purpose for its collection
>The steps or actions taken by the
respondent to ensure the security
and confidentiality of the data or
information
>The currency and accuracy of the
data or information held
*Other allegations relevant to the
resolution of the proceeding (RWD
Sec.10)
Respondent shall file a verified
written return together with
supporting … (RWD Sec. 10)
COC 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 (RWD Sec. 8)
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 resists a lawful process or order of
the court (RWD Sec. 11)
Yes, by the court, for justifiable
reasons (RWD Sec. 10)
No, by virtue of RWD Sec. 10, last
sentence.
Court, judge, or justice shall hear the
failure to file hear the petition ex parte (RWA Sec. motion ex parte, granting the
return 12) petitioner such reliefs as the petition
may warrant
Unless the court in its discretion
requires the petitioner to submit
evidence (RWD Sec. 14)
Nature of Summary. However, the court, Summary. With possibility of
Hearing justice, or judge may call for a preliminary conference similar to the
preliminary conference to simplify writ of amparo (RWD Sec. 14)
the issues and look at possibility of Hearing on chambers may be
obtaining stipulations and conducted where respondent
admissions from the parties. invokes the defense of national
Hearing shall be from day to day security or state secrets, or the data
until completed; same priority as is of public or privileged character
petitions for WHC (RWD Sec. 12)
Date and As specified in the writ Not later than 7 days from the Not later than 10 working days from
time of issuance of the writ the date of issuance writ
hearing
Prohibited Motion to dismiss Same as writ of amparo (RWD Sec.
pleadings Motion for extension of time to file 13)
opposition
Affidavit
position paper and other pleadings
Dilatory motion for postponement
Motion for bill of particulars
Counterclaims or cross-claims
Third-party complaint
Reply
Motion to declare respondent in
default
Intervention
Memorandum
Motion for reconsideration of
interlocutory orders or interim relief
orders
petition for certiorari, mandamus, or
prohibition (RWA Sec.11)
Burden of Preponderance of evidence Establish claims by substantial Substantial evidence required to
Proof evidence prove the allegations in the petition
if respondent is a private individual (RWD Sec. 16)
or entity, ordinary diligence
if public official or employee,
extraordinary diligence
Presumption Yes. Consonant wit 102.13, stating Public official or employee cannot
of Official that if warrant of commitment is in invoke the presumption that official
duty pursuance with law, serves as prima duty has been regularly performed
facie cause of restraint (RWA Sec. 17)
Judgment The court shall render judgment Within 10 days from the time the
within 10 days from the time the petition is submitted for decision
petition is submitted for decision (RWD Sec. 16)
(RWA Sec. 18)
Appeals Within 48 hours from notice of the 5 working days from the date of 5 working days from the date of
judgment of final order appealed notice of adverse judgment; Rule 45 notice of adverse judgment; Rule 45
filed with the SC filed with the SC
Consolidation May be consolidated with a criminal May be consolidated with a criminal
of actions action filed subsequent to the action filed subsequent to the
petition (RWA Sec. 23) petition (RWD Sec. 21)
Effect of filing No more separate petition shall be Same as WA
criminal filed. Reliefs available by motion in
action the criminal case (RWA Sec. 22)