Careless Whisper: Sex,Lies,Videos and the Law

I’m not exactly frantic when the sex video featuring cosmetic surgeon Dr.Hayden Kho and starlet Katrina Halili came out spreading like a wild fire in the Internet. In fact on the very first day when the video came out, a friend even boasted (short of teasing me) that he had already watched the video several times and still could not believe that it was indeed Starstruck survivor Katrina Halili. To me it was just one of those cheap showbiz scandals similar, but not identical, to the Kris Aquino-Joey Marquez affair years ago. (Remember STD?) Well for one, with the emerging trend of cyber technology and the proliferation of techie gadgets, most young couples these days are into sex videos. Society refuses to accept this but this is the naked truth in this time and age. Personally I have nothing against it as long it remains private and a purely consensual act. But more importantly they should be responsible adults always aware of the consequences of their actions. Some couples have their reasons for doing it, some purely out of love, while others simply as an adventure, for whatever reason that too should remain private. Unfortunately for the erstwhile lovers they crossed the line.

Prior to the release of the infamous sex video, a less inflammable video was released popularly known as the “careless whisper” dance video. (Pardon the pun!) At first Katrina denied that it was her who was in that video. The content however showed a woman strip dancing with Hayden to the sensual tune of George Michael’s Careless Whisper. Later she recanted and admitted that it was her and that they were actually rehearsing for an upcoming performance for Celebrity Duets wherein Hayden was one of the celebrity contestants. Honestly, I do not intend to watch any of those infamous videos. I guess watching the news and reading dallies are enough facts and evidence regarding the existence of said videos. No need to belabor this point.

What concerns me though are the legal ramifications amidst this controversy. Are there enough laws to protect women against “perverts of the highest kind"? (Whatever that means, only the morally upright Senator Bong Revilla knows) or what possible crime(s) did Hayden Kho allegedly commit if viewed within purview of the Revised Penal Code or any special laws?

In so far as criminal liability is concerned, our Revised Penal Code (RPC) is too outdated, if not inutile, to cover crimes involving the use of technological gadgets or devises. What we have so far are general crimes or offenses involving acts, which in the language of the law, cause annoyance, irritation, vexation or disturbance to the mind of another person. Article 287 (par. 2) of the RPC for instance deals with the crime of unjust vexation and punishes the offender by arresto menor or a fine ranging from five (5) to two (2) hundred pesos or both. Law textbooks define unjust vexation “as any human conduct which, although not productive of some physical or material harm would, however unjustly annoy or vex an innocent person.” Clearly this crime is too elastic and toothless at best which covers almost any act as long as the element of annoyance is present. There are some who suggested that Article 359 of the RPC is somewhat applicable. Said provision refers to the crime of slander by deed. By definition, slander by deed is a crime against honor by which the offender performs any act which cast dishonor, discredit, or contempt upon another person. Among the essential elements in this crime is that the offender must perform the act in the presence of other person or persons with the intent to humiliate the offended party. Nevertheless taking into account the all-pervasive nature of the Internet, the penalty for this crime may not be commensurate to the degree of degradation and humiliation it has caused to the victims.

The only possible avenue perhaps, is to resort to a special law.

For this reason, a criminal complaint has already been filed against Kho allegedly for violating Republic Act No. 9262 also known as “Anti-Violence Against Women and Their Children Act of 2004.” What is novel under this law is its broad application with regard to the relationship of the parties. Thus Section three (3) (a) of said act pertinently states that, “Violence against women and their children refers to any act or series of acts committed by any person against a woman who is his wife, or against a woman with whom the person has or had sexual or dating relationship…” Clearly to find application, the relationship of the parties may not necessarily be that of a husband and wife, or founded upon a valid or common law (live-in) marriage. This is evident from the letter and intent of the law when it speaks of “dating relationship.” The law however excludes mere casual acquaintance or ordinary socialization between two individuals in a business or social context. To come under the phrase “dating relationship,” the parties should have at least dated or involved romantically one time or the other, or on a continuing basis during the course of the relationship.

The act of videotaping or filming of an otherwise intimate sexual encounter sans consent of the woman may well be considered as a serious affront to women’s rights. Note that the type of violence punishable under said law is not limited to sexual or physical abuse but psychological as well. Thus the law clearly defines Psychological violence as “acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to…public ridicule or humiliations…” Under this form of violence, the offender is made to suffer the penalty of prision mayor or imprisonment of six (6) years and one (1) day to twelve (12) years. Fair enough if you ask me, otherwise Hayden Kho can always invoke the criminal law principle of Nullum crimen nulla poena sine lege (There is no crime, when there is no law punishing it) to escape criminal liability.

Another possible legal remedy is to file for a separate or independent civil action for violation of privacy rights under the Civil Code. But the privacy issue here is not the focal point of the controversy, the best you can get out of this legal principle as applied to this particular case is civil liability. Yes, we are not talking here of imprisonment assuming Kho may be found liable in the courts of law for invasion of privacy.

Ironically a law maker even cited the right to privacy as enshrined in the Bill of Rights as the basis for Kho’s probable liability. This is an erroneous interpretation to say the least. The right to privacy as enshrined in the Constitution is a protection against governmental intrusion and not against private individuals. Simply put, assuming Kho violated the privacy of his victims, his liability should come under the Civil Code and not the Constitution since he is a private individual.

The salient provision which deals with privacy rights is Article 26 of the Civil Code which states, “Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons…” This provision obviously recognizes and protects the sacredness of human personality against various forms of violation to privacy rights. With the increasing invasive capability of electronic gadgets or devises nowadays, the right to privacy is said to be the constant victim of unreasonable intrusions in this society. The protection of privacy rights under this provision is not limited to locational or physical privacy it also covers psychological privacy of every person. Thus, the law speaks of, “peace of mind of his neighbors and other persons.”

Essentially, if two consenting adults decided to make a sex video exclusively for their own consumption and for whatever reason, such is covered within their right to privacy. In any case it should be respected because it is protected by law. But while the law protects the privacy of private individuals, the law also imposes reasonable limitations for its exercise. What makes it prohibited under the law for example is if it is made under scandalous circumstances or if the other party did not consent to the act of videotaping or recording. In any case the law certainly recognizes any forms of privacy as long as it is not contrary to law, morals, public policy etc.

In the ultimate analysis, whether criminal or civil liability, consent is an essential element to determine the fate of Hayden Kho. Having said this, the pressing question that comes to mind is: Did Katrina consent to the act, not the act of sexual intercourse, but obviously to the video recording? Note that the operative word here is “consent.” According to news reports and interviews Katrina vehemently denies that she had knowledge whatsoever with Kho’s act of videotaping their sexual encounter much less giving her consent. If this is indeed true, then Hayden Kho is in a difficult position here. Sink or swim, he has to come up with a legal defense which will establish a consensual act and then shift the blame to those who allegedly stole and uploaded the videos in the internet. From what I heard, the legal counsel of Kho opted to put an insanity defense or that he was too high on drugs when he videotaped or recorded the sexual encounter. Sounds like a legal cop-out? Well let’s give Dr.Hayden Kho the presumption of innocence for now, after all even the “pervert of the highest kind” deserves this constitutional presumption.

PS
What about the culprit(s) who allegedly stole the videos from the hard drive and eventually uploaded it in the Internet for public viewing? To be sure, our laws (i.e. The E-Commerce Law) are not sufficient enough when we talk about cyber technology let alone cyber or Internet crimes. The acts of uploading and downloading of videos through the Internet are technical terms or should I say too “teki” for our lawmakers. This to my mind is a proper subject for Legislative investigation in aid of legislation in its purest sense.

The road to success is under repair...

The other day as I went to check on my email, a friend left several offline messages in my YM account. Unfortunately he told me with much hesitation that the college dean rejected my job application as a Political Science Instructor in the University where he is currently teaching. I was surprised at first but just to satisfy my ego I asked what was the basis for my outright rejection. Initially he riposte that my job application for a teaching item was a bit late. Accordingly the college had already conducted the necessary teaching demos for this coming school year. But having this thinking of never accepting anything as a fact at face value, I decided to probe deeper. Finally my friend admitted that my rejection was due to my transcript of records as a political science graduate. For personal reasons I will dispense with the technical grounds cited by the school for my denial lest I will be accused of ingratiating myself too much. Nonetheless here is the catch. I'm a graduate of BASILAN STATE COLLEGE (BaSC for brevity)a learning institution which even you readers probably have not heard of ever since you were born. But the sad thing is, ask anyone about my beloved hometown and you will definitely get the same answers, “the land of Abu Sayaff” or maybe “the kidnapping capital of the Philippines.” I guess the name Basilan alone is sufficient ground for discrimination in our own country, what more if you are a graduate of BASILAN STATE COLLEGE? Frankly speaking, it would be a prima facie evidence of incompetence and mediocrity for employment in the academe.

Taking up my Bachelors degree at the BaSC was a personal choice and a challenge. My mom gave me the option to study in one of the prestigious Universities in our region on the condition that I will be taking up education as my undergraduate course. In fact my older brother finished his AB degree and law studies at Silliman University while my other sibling finished her degree at UP Dilliman. But given my inclination or should I say my fetish to learn about the rudiments of a government, I took the plunge and decided to pursue my degree at the BaSC. Later after graduation, I pursued my law studies here in Manila and again I was initially discriminated by my classmates whether graduates of prestigious schools and even from the not so reputable schools located in the Metro. The discrimination however ended when no one read the famous case of Roe v. Wade during one of our class recitations, and it so happen that said case was discussed to us back in my college days. So I was called to recite the case and the rest of course is history.

My alma mater taught me so many things in life, lessons which you cannot learn within the four corners of the classroom. I was a late bloomer so to speak in the esoteric of academics. It was during my stay at the BaSC that I came to realize my potential as a student and as a person determined to shape his destiny through education. It was also in that institution where I discovered my passion for the law and politics after joining the debating team and winning the best debater award. These were all small academic achievements but to me these were big ones. Reaping them has to be one of the major turning points of my life. My humble achievements in law school would not have been possible without these preparations. For this. I'm deeply indebted to my alma mater.

Like any other educational institutions in remote areas my school is bereft of the usual well-respected professors and luminaries in the realm of political science. What we have back then were mostly professors and part-time instructors who graduated in the same institution for obvious reasons. Due to lack of funding from the government, our school library had no sufficient updated books and reading materials let alone cyber technology to feed our mediocre minds with adequate knowledge. We were always in a state of educational poverty. But despite of this situation, I never considered this a s a setback to achieve my goals. I managed to buy some books mostly concentrated on political literature and law. I also learned to use the internet to download reading materials which may be utilized for classrooms discussions.

I do not wish to diminish the reputation of my school in any way, but this is a sad reality that we Filipinos must be concerned. Our educational system has been consistently pushed to the sidelines by the government. The prestigious educational institutions which offer the best kind of education are concentrated mostly in the urban areas. Obviously only the rich and the brightest are the only ones qualified to avail to this kind of education. If you are below mediocrity and a denizen of a place known for lawless elements, better settle for a lesser kind of education that the government has to offer. Your philosophy in life must be “learn to be contented with what you have.” This however is not the end of it, after graduating from college you will again experience a more excruciating ordeal in applying for jobs like what happened to me just recently. But I still thank the Lord that somehow my parents supported my law studies here in Manila. But how about my fellow Basilenos? I can only surmise that the only option left for them is to either resort to hard manual toil to earn a decent living or join the ASG to earn pesos more than what their diploma and degree could in reality give them. I myself cannot blame them from this misfortune. By joining the ranks of this lawless group, they could proudly say to themselves, “Hey, my degree makes me way qualified for this job.” At least, at that point, they felt superior- a word that they were deprived of in terms of education, opportunity and chance. Whether we like it or not, it becomes a vicious cycle. And only a few takes to counter the waves. I am proud to say I am one of them.

Unfortunately, while I take on the challenge to counter the waves of hopelessness, society has once again frustrated me. I only wish for a chance to prove my abilities, capabilities and worth,. Perhaps a single job interview to hear my side of the story won't take too much of their precious time. I am still hoping however that the discrimination stigma has not yet overwhelmingly grappled society. I believe that my message could traverse academic membership. I do not wish for empathy. I only hail for equal opportunities from the academic community, society and the government.

I have to admit that with this recent frustration, I am no way in my best element right now. When everything has been stripped away from you (love, self-respect and dignity), somehow you get emotional.I do not deny being in that state right now, I am however hoping that like my feeble emotions, this discrimination too shall pass.

Postscript: The other day I was strolling down the streets of Manila when I noticed a college student wearing a shirt which says “The road to success is under repair.” Suddenly, I felt heavy fist blows. What if my particular road to success is beyond ordinary repair? What if no amount of extraordinary repair can restore my road? I hope this writing can make a small difference so that I can soon update you that the road to my success is slowly undergoing repair.

PBA09p6031r5

THE WRIT OF HABEAS CORPUS: An Introduction [The writ series part 2]

Constitutional Foundations

For a country which has not forgotten and is still haunted by the recesses of the infamous martial regime, the great premium afforded to protection of personal freedom and liberty is explicable. The writ of habeas corpus, an ancient writ known as the Great Writ of Liberty, is the first and probably the most famous means of invoking constitutional rights against deprivation of personal liberty before the courts of justice.

This constitutional guarantee for the availability of the writ in the country however roots itself way before the martial law regime. The Philippine Bill of 1902 appears to have made the first imprimatur. From then on, the writ of habeas corpus has undoubtedly undergone radical changes under the 1987 Constitution. Our present constitution prohibits the suspension of the privilege of the writ except in cases of great national stress1. It is to be noted that it is the privilege of the writ that is being suspended in certain cases and not the writ itself. The Constitutional Commission, finding justifications from the experience under the authoritarian rule of former President Marcos, incorporated into the fundamental law new safeguards intended to give a better protection to liberty. The power to suspend the privilege now has ceased to be an almost executive prerogative.2

The 1987 Constitution also has authorized the Supreme Court to promulgate rules to protect constitutional rights thus giving birth to Rule 102 of the Rules of Court extending, except as otherwise provide by law, to all cases of illegal confinement or detention by which any person is deprived of his liberty. In the second part of the same provision, however, habeas corpus may also be resorted to or extends in cases where "the rightful custody of any person is withheld from the person entitled thereto." Thus, although the writ of habeas corpus ought not to be issued if the restraint is voluntary, the Supreme Court have held time and again that the said writ is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of her own free will.3 In relation to habeas corpus cases for the custody of minors, the Supreme Court has also promulgated A.M. No. 03-04-04-SC, April 22, 2003.

Purposes and Objectives

In general, the purpose of the writ of habeas corpus is to determine whether or not a particular person is legally held. A prime specification of an application for a writ of habeas corpus, in fact, is an actual and effective, and not merely nominal or moral, illegal restraint of liberty. The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. 4 Resort to the writ is not to inquire into the criminal act of which a complaint is made but unto the right of liberty, notwithstanding the act, and the immediate purpose to be served is relief from illegal restraint.5 Thus, held by the Supreme Court in one case, “the primary, if not the only object of the writ of habeas corpus ad subjuciendum is to determine the legality of the restraint under which a person is held.”

In custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy; rather, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a child. 6
Proceedings in habeas corpus however are separate and distinct from the main case from which the proceedings spring. In fact, they rarely touch the merits of the case and require no pronouncement with respect thereto. The proceedings merely deal with the detention of the prisoner and stop with the authority by virtue of which he is detained.7

Sufficiency of Rules

Habeas corpus is a writ directed to a person detaining another, commanding the former to produce the body of the latter at a designated time and place.8 As mentioned, the prime specification of an application for a writ of habeas corpus is restraint of liberty. And the Supreme Court has held time and again that any restraint which will preclude freedom of action is sufficient. Fundamentally, in order to justify the grant of the writ of habeas corpus, the restraint of liberty must be in the nature of an illegal and involuntary deprivation of freedom of action. This is the basic requisite under the first part of Section 1, Rule 102, of the Revised Rules of Court. It can be opined however that such basic requisite is encompassing in itself. To be sure, the standard of “lawfulness or legality” is a broad and elastic one.9 To illustrate this notion, the Supreme Court has held, “Freedom may be lost due to external moral compulsion, to be founded or groundless fear, to erroneous belief in the existence of the will. If the actual effect of such psychological spell is to place a person at the mercy of another, the victim is entitled to the protection of courts of justice as much as the individual who is illegally duress of liberty by deprived or physical coercion.” 10
With the extension via Rule 102 of the Rules of Court, the writ has been recognized as serving to provide a “prompt and efficacious remedy for whatever society deems to be intolerable restraint,” according to the Supreme Court. In fact, habeas corpus has been used as a (1) means to effect release from the custody of a private party including custody of a minor child; (2) for the release from detention by virtue of an unlawful arrest; (3) for release from confinement by immigration authorities prior to deportation; (4) to question the legality of petitioner’s arrest; (5) to effect release from imprisonment of civil contempt; or for contempt of Congress; 6) as a means of challenging duration of confinement as affected by prisoner’s good-conduct credits; (7) as a means of attack on orders for commitment to mental institutions; and 8) aliens’ means of challenging exclusion and deportation orders.11
As the remedy of habeas corpus finds justification in every intolerable restraint, encompassing and broad at it is, society has often times abused if not misused the remedy. Over time, the writ has become primarily a means by one court of general jurisdiction exercises post-conviction review over the judgment of another court of like authority. In other words, habeas corpus proceeding is seen as a mode of collateral attack at a final judgment of conviction.12 Thus held by the Supreme Court, habeas corpus is not in the nature of a writ of error; nor intended as substitute for the trial court’s function. It cannot take the place of appeal, certiorari or writ of error. The writ cannot be used to investigate and consider questions of error that might be raised relating to procedure or on the merits. The inquiry in a habeas corpus proceeding is addressed to the question of whether the proceedings and the assailed order are, for any reason, null and void. The writ is not ordinarily granted where the law provides for other remedies in the regular course, and in the absence of exceptional circumstances. 13 In the early case of Abriol v. Homeres, for example, the Court stated the general rule that the writ of habeas corpus is not a writ of error, and should not be thus used. The writ of habeas corpus, whereas permitting a collateral challenge of the jurisdiction of the court or tribunal issuing the process or judgment by which an individual is deprived of his liberty, cannot be distorted by extending the inquiry to mere errors of trial courts acting squarely within their jurisdiction. The reason for this is explained very simply in the case of Velasco v. Court of Appeals: a habeas corpus petition reaches the body, but not the record of the case. A record must be allowed to remain extant, and cannot be revised, modified, altered or amended by the simple expedient of resort to habeas corpus proceedings.

In many instances, the writ is being availed of even before trial. To counter and warn such errant avail of the writ, the Supreme Court has held that, habeas corpus should not be granted in advance of trial. The orderly course of trial must be pursued and the usual remedies exhausted before resorting to the writ where exceptional circumstances are extant.14 In another case, it was held that habeas corpus cannot be issued as a writ of error or as a means of reviewing errors of law and irregularities not involving the questions of jurisdiction occurring during the course of the trial, subject to the caveat that constitutional safeguards of human life and liberty must be preserved, and not destroyed.
To stress further, the Highest Court also held that where restraint is under legal process, mere errors and irregularities, which do not render the proceedings void, are not grounds for relief by habeas corpus because in such cases, the restraint is not illegal.

The broad provision however is tried to be safeguarded by the Supreme Court herself through jurisprudence. After all, decisions of the Supreme Court become part of the law of the land. In fact, in the following cases, the Court, in some way set boundaries on habeas corpus petitions. In Feria v. Court of Appeals the Court was inclined to allow the presentation of new evidence in a petition for the issuance of a writ of habeas corpus, this was an exceptional situation. In that case, the Court laid down the general rule, which states that the burden of proving illegal restraint by the respondent rests on the petitioner who attacks such restraint. Where the return is not subject to exception, that is, where it sets forth a process which, on its face, shows good ground for the detention of the prisoner, it is incumbent on petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process. In the recent case of Calvan v. Court of Appeals, the Court summarized the scope of review allowable in a petition for the issuance of the writ of habeas corpus. The inquiry on a writ of habeas corpus would be addressed, not to errors committed by a court within its jurisdiction, but to the question of whether the proceeding or judgment under which a person has been restrained is a complete nullity. The probe may thus proceed to check on the power and authority, itself an equivalent test of jurisdiction, of the court or the judge to render the order that so serves as the basis of imprisonment or detention. It is the nullity of an assailed judgment of conviction which makes it susceptible to collateral attack through the filing of a petition for the issuance of the writ of habeas corpus.

In the end, the Supreme Court has but one thing to convey, “A writ of habeas corpus, which is regarded as a “palladium of liberty” is a prerogative writ which does not issue as a matter of right but in the sound discretion of the court or judge. It, is, however, a writ of right on proper formalities being made by proof. Jurisprudence has undoubtedly limited the elasticity of the provision to a point. However the promulgation of implementing guidelines which would give light to the coverage of the rule, prohibitions on the use of the remedy, the clear definition of what constitutes “illegal restraint on liberty” or “under custody,” among others would be highly appreciated.

Who May File Petition?

The rule provides that every person unlawfully imprisoned or restrained of his liberty under any pretense of whatever may prosecute a writ of habeas corpus, in order to inquire into the lawful cause of such imprisonment or restraint. Sec. 3 of Rule 102 of the Rules of Court merely states that the petition may be “signed and verified either by the party for whose relief it is intended or by some person on his behalf.” This implies that any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application has a standing to file the petition. As an exception however, if the application for the writ is made in the prisoner’s behalf by a third person but the former repudiates the action taken, the writ will be denied. The rule surely affords the detained person each and every chance to counter his detention by himself or on his behalf. This rule finds justification in the interpretation that technically, habeas corpus proceeding is in no sense a suit between private parties. It is an inquisition by the government, at the instance of an individual, but in the name and capacity of the sovereign. It is analogized to a proceeding in rem for the purpose of fixing the status of a person. 15

Form of Petition

All that is required of a habeas corpus petition is that it be signed and verified by either the party for whose relief it is intended or by some person on his behalf and to set forth and allege the facts relating to the petitioner’s detention. Taking into consideration the importance and urgency of the subject matter of a habeas corpus petition, its form under the Rules is of scant consideration. In fact, in one case, the Court has ruled that even a petition-letter will do. On these aspects, we subscribe the rule to be at a certain level, sufficient. However, no harm can be done if this too can be bettered in an implementing rule.
Jurisdiction

Courts have concurrent jurisdiction to hear habeas corpus petitions except in cases of custody of minors. It may be granted by the Supreme Court or any member thereof or a Regional Trial Court or a Judge hereof. In the absence of all the Regional Trial Judges in a province or city, any Metropolitan, Municipal or Municipal Circuit Trial Judge may hear and decide the petitions but Regional Trial Courts may issue writs of habeas corpus enforceable only in their respective regions.16 At this point, suggestions have been in some legal discourses about habeas corpus petitions that the jurisdiction to entertain such petitions as post-conviction remedy should be similar to Rule 47 of the 1997 Rules of Civil Procedure, relating to annulment of judgment or final orders and resolutions which is necessarily in consonance with the doctrine of hierarchy courts. It is suggested that this would avoid the unseemly and anomalous spectacle of having one court review on habeas the final judgment of a co-equal and coordinate court.17

Habeas Corpus Proceeding in Case of Custody of Minors.

As to habeas corpus proceedings on custody minors, there can be no debate that the subsequent rule promulgated (A.M. No. 03-04-04-SC, April 22, 2003) is but a reinforcement of our laws’ adherence to the protection of children. The sufficiency or insufficiency of the rules are cured and supplemented by other existing laws. In that regard the Child and Youth Welfare Code unequivocally provides that in all questions regarding the care and custody, among others, of the child, his welfare shall be the paramount consideration. In the same vein, the Family Code authorizes the courts to, if the welfare of the child so demands, deprive the parents concerned of parental authority over the child or adopt such measures as may be proper under the circumstances.

Habeas Corpus Proceeding in Deportation Cases

While however the promulgation of an independent set of implementing rules for habeas corpus proceedings in case of custody of minors has been answered via A.M. No. 03-04-04-SC, April 22, 2003, it is our submission however that an separate rule too on habeas corpus proceedings on deportation cases, i.,e, for release from confinement by immigration authorities prior to deportation and aliens’ means of challenging exclusion and deportation orders also be had in the future. After all, the question on whether or not there is illegal restraint on this matter is subjective to the powers and authority of the Bureau of Immigration. To a point, since there is appreciation of our immigration law, it is different from the other issues cognizable in a habeas corpus petition. Habeas corpus, not prohibition, is the proper remedy for reviewing proceedings for the deportation of aliens. 18 The Bureau of Immigration is without authority to issue a warrant for the arrest of a person prior to an order of deportation but the illegality may be cured by the subsequent filing of deportation proceedings. In one case, the Supreme Court has held that, “The writ of habeas corpus cannot be issued in cases in which the Bureau of Immigration has duly ordered the deportation of undocumented aliens, specifically those found guilty of illegally entering the Philippines with the use of tampered and previously cancelled passports.” 19 Also, Court has held, “When an alien is detained by the Bureau of Immigration for deportation pursuant to an order of deportation by the Deportation Board, the Regional Trial Courts have no power to release such alien on bail even in habeas corpus proceeding because there is no law authorizing it.”20 These guidelines, in our end, can be envisioned in an independent implementing rule

The Writ Of Amparo: RP style [The writ series part 1]

Sometime last year amidst reports on extrajudicial killings and enforced disappearances under the Arroyo administration, a friend from the local media asked me point blank about the so called writ of amparo. I was dumbfounded and could not give a sensible legal opinion. To my surprise, he told me to write an article about this matter and if possible post it in my blog for educational purposes and posterity. I must admit though that remedial law is one of the hardest subjects in law school so I was quite reluctant to discuss anything concerning legal remedies or procedure let alone write a legal opinion about it. Nevertheless since this remedy has constitutional underpinnings which sought to protect the right to life, liberty and security of persons under the bill of rights, I therefore decided to have a brief academic discussion on this topic.

Introduction/History

Oriented towards providing safeguards and guarantees to constitutional rights, every State in the world has its own version of petitions where individuals can seek vindication of their violated fundamental rights. The writ of habeas corpus, discussed above, is probably the oldest and most famous of all. The writ of habeas corpus is said to have been used for more than five centuries now. The writ of amparo however seconds in history. The writ of amparo hails from a Spanish etymology “amparar” which means to protect. Verily, the writ of amparo finds it roots in Mexico in the mid 19th century. Here in the Philippines, while the 1987 Constitution does not explicitly provide for the writ of amparo, several of the above amparo protections are guaranteed by our charter. The second paragraph of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” Also, the court’s promulgation of said Rule is but “an exercise for the first time of the Court’s expanded power to promulgate rules to protect our people’s constitutional rights, which made its maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial law regime.” Since its promulgation in September 25, 2007, the Writ of Amparo has been tested for several times. However, it was only in October 7, 2008 where the Supreme Court decided its first landmark amparo judgment entitled Secretary of Defense, et al., v. Manalo affirming the December 26, 2007 decision of the Court of Appeals in favor of Raymond and Reynaldo Manalo who were abducted by the Citizen’s Armed Forces Geographical Unit (CAFGU) in San Ildefonso, Bulacan in February 2006 and were able to escape their abductors after eighteen months of detention and torture. Aptly, the ponencia, no other than the Supreme Court Chief Justice initialed the decision by: While victims of enforced disappearances are separated from the rest of the world behind secret walls, they are not separated from the constitutional protection of their basic rights. The constitution is an overarching sky that covers all in its protection.
Purposes and Objectives

The writ of amparo is a remedy to enforce fundamental rights. A certain point delineates the writ of amparo and the writ of habeas corpus. The latter is designed to enforce the right of freedom of the person where as the former is designed to protect those other fundamental human rights, enshrined in the Constitution but not covered by the writ of habeas corpus. Section 1 of the Rule on the Writ of Amparo states that a “Petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee or a private individual or entity. The writ shall cover extra legal killings and enforced disappearances or threats thereof.” In the promulgation of the said rule, Chief Justice Reynato Puno announced that “…the rule will place the constitutional right to life, liberty and security above violation and threats of violation. This rule will provide the victims of extralegal killings and enforced disappearances the protection they need and the promise of vindication of their rights. This rule empowers our Courts to issue reliefs that may be granted through judicial orders of protection, production, inspection and other relief to safeguard one’s life and liberty. The writ of amparo shall hold public authorities, those who took their oath to defend the constitution and enforce our laws, to a high standard of official conduct and hold them accountable to our people. The sovereign Filipino people should be assured that if their right to life and liberty is threatened or violated, they will find vindication in our courts of justice.” The same sentiment has been penned in a case duly decided by the Supreme Court. Thus, discussed by the Court, “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.”
In its first landmark amparo case, the Court has held, “The writ of amparo serves both preventive and curative roles in addressing the problem of extralegal killings and enforced disappearances.” The Court further said that “It is preventive in that it breaks the expectation of impunity in the commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators as it will inevitably yield leads to subsequent investigation and action. In the long run, the goal of both the preventive and curative roles is to deter the further commission of extralegal killings and enforced disappearances.”

However, the Court has forewarned petitioners, in Masangkay v. Judge del Rosario that “when recourses in the ordinary course of law fail because of deficient legal representation or the use of improper remedial measures, neither the writ of certiorari nor that of amparo - extraordinary though they may be - will suffice to serve as a curative substitute. The writ of amparo, particularly, should not issue when applied for as a substitute for the appeal or certiorari process, or when it will inordinately interfere with these processes.”

Sufficiency of Rules

Under the Rule, the writ shall cover extra judicial killings and enforced disappearances. Of course, the Rule itself, like any other law, cannot be constrained to embody and explicate on itself the purpose and objective of the law. Jurisprudence has its own compulsion to do so. Thus, in the landmark case of the Manalo brothers, the Court explicated, “As the Amparo Rule was intended to address the intractable problem of “extralegal killings” and “enforced disappearances,” its coverage, in its present form, is confined to these two instances or to threats thereof. “Extralegal killings” are “killings committed without due process of law, i.e., without legal safeguards or judicial proceedings.” On the other hand, “enforced disappearances” are “attended by the following characteristics: an arrest, detention or abduction of a person by a government official or organized groups or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the deprivation of liberty which places such persons outside the protection of law.” In the same case, the Court also has elaborated and amplified what is meant by right to life, liberty and security and their violation which may warrant an amparo proceeding. The Court explains, “While the right to life under Article III, Section 1 of the Constitution guarantees essentially the right to be alive - upon which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee of the secure quality of this life, viz: “The life to which each person has a right is not a life lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the assurance that the government he established and consented to, will protect the security of his person and property. The ideal of security in life and property… pervades the whole history of man. It touches every aspect of man’s existence.” In a broad sense, the right to security of person “emanates in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only by a deprivation of life but also of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual.” In that regard the Court has set guidelines, (1) the right to security of person is “freedom from fear’; (2) the right to security of person is a guarantee of bodily and psychological integrity or security; (3) Third, the right to security of person is a guarantee of protection of one’s rights by the government.
Moreover, in the Masangkay the court further clarified that: What it (referring to the writ) 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, to wit:

x x x (c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an unlawful act or omission of the respondent, and how such threat or violation is committed with the attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of the investigating authority or individuals, as well as the manner and conduct of the investigation, together with any report; x x x

The writ shall issue if the Court is preliminarily satisfied with the prima facie existence of the ultimate facts determinable from the supporting affidavits that detail the circumstances of how and to what extent a threat to or violation of the rights to life, liberty and security of the aggrieved party was or is being committed. In other words, there must be prima facie showing of violation or threat of violation of right to life, liberty and security however in said case 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. In this case, the Court has stressed the sufficiency of petition in order that a writ of amparo may issue. Moreover, the Court likewise held that “Rather than acts of terrorism that pose a continuing threat to the persons of the petitioners, the violent incidents alleged appear to us to be purely property-related and focused on the disputed land. Thus, if the petitioners wish to seek redress and hold the alleged perpetrators criminally accountable, the remedy may lie more in the realm of ordinary criminal prosecution rather than on the use of the extraordinary remedy of the writ of amparo.”

In that case, the Court also made specific mention of Sec. 21 of The Rule on The Writ of Amparo, “(The rule) provides for rules on the institution of separate actions, for the effect of earlier-filed criminal actions, and for the consolidation of petitions for the issuance of a writ of amparo with a subsequently filed criminal and civil action. These rules were adopted to promote an orderly procedure for dealing with petitions for the issuance of the writ of amparo when the parties resort to other parallel recourses. Where, as in this case, there is an ongoing civil process dealing directly with the possessory dispute and the reported acts of violence and harassment, we see no point in separately and directly intervening through a writ of amparo in the absence of any clear prima facie showing that the right to life, liberty or security – the personal concern that the writ is intended to protect - is immediately in danger or threatened, or that the danger or threat is continuing. We see no legal bar, however, to an application for the issuance of the writ, in a proper case, by motion in a pending case on appeal or on certiorari, applying by analogy the provisions on the co-existence of the writ with a separately filed criminal case.”

The Philippine version of the writ of amparo is also seen to supplant or better remedy the escape that state agents do in cases of petitions for writ of habeas corpus. As noted in the previous pages of this work, the writ of habeas corpus applies “to all cases of illegal confinement or detention.” It is therefore required that there be a person in “custody.” With that requirement on mind, state agents now usually end up simply denying they have the missing person in their custody. The writ, as explicated by, former Chief Justice Artemio Panganiban would compel state agents to look for the missing person and hold them accountable if the court would find that they exerted not enough efforts to find such person. Thus, under Section 9 of the same Rule, it is provided that “Within 72 hours after service of the writ, the respondent shall file a verified written return together with supporting affidavits which shall among others contain the following:
“(b) The steps or actions taken by the respondent to determine the fate or whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission.”

In our ends, we find the Rule sufficient at this point. However, with the passing of time, the Rule on the Writ of Amparo shall be bolstered further by jurisprudence. Even the Supreme Court believes in continuous review of this protective writ as well as the habeas corpus and habeas data in order to successfully achieve their respective ends. It has been commented however by the international community and to which we subscribe that the protective writs are insufficient to resolve the general problems of extralegal killings and enforced disappearances on the Philippines. It must be catalyzed by a collective and cooperative action on all levels of the government and society as well especially the legislature. It is also our submission, as the proposed constitutional amendments are at hype, that the constitutional provisions pertaining to Social Justice and the Commission on Human Rights be given of highest consideration. The two previous writs we have discussed and the writ of habeas data which we are about to talk about all afford protection to individual rights. However, because of the Court’s ruling in Carino v. Commission on Human Rights which declared the said commission to be bereft of quasi-judicial functions and merely possesses examining or investigatory powers, the Commission is rendered like a toothless tiger. The Commission therefore has no substantial power to provide remedies and deter violation of human rights which is the very object for which the writs of habeas corpus, amparo and habeas data have been promulgated.