Primer on Con-Com draft: Part 4

Con-Com 2018 Member

(4th in a series)

Q: What is the point in having a section on the privilege of the writ of habeas corpus in the Bill of Rights, considering that it is among the emergency powers of the President?

A: The writ of habeas corpus is a writ of liberty and it is a legal guarantee that whoever is wrongfully detained is speedily freed from detention. As such its availability properly belongs to the Bill of Rights.

Q: What are the proposed grounds justifying the suspension of the privilege of the writ?

A: While under the 1987 Constitution, only invasion and rebellion were the recognized grounds, with the chapeau requirement that public safety so required such a suspension,  “lawless violence” is now an added ground.  The addition of this ground does not prejudice the freedoms and liberties of people, for freedoms and liberties mean little when the State itself is in mortal danger.  An act of terrorism or a series of acts of terrorism may not constitute rebellion, much less invasion, but should be sufficient for the State to take the protective measure of suspending the privilege of the writ.

Q: The writs of amparo and habeas data are now mentioned. What is the significance of this?

A: These two writs started as rules promulgated by the Supreme Court pursuant to the rule-making power of the Court under the 1987 Constitution.  With their mention in the Constitution, they are now given constitutional status and can neither be rescinded by a new Supreme Court rule, nor negated by contradicting federal or regional legislation.

Q: Why “privilege of the writ”?

A: What is suspended is properly speaking not the writ—which simply means order, specifically an order issued by the court, but its privilege.  When a person who is detained challenges the legality of her detention in court, the court issues an order to the detaining office or officer to explain the reason for the detention and to produce the person of the petitioner before the court.  This is the writ.  If the court, after listening to the petitioner and to the respondent, is convinced that the detention is not warranted, it orders the release of the petitioner.  This is the privilege of the writ.  It is this that is suspended under the circumstances mentioned in the section.

Q: What is the writ of amparo?

A: It is an order issues in cases of enforced disappearances, or when there is a threat to the life, liberty or security of a person by any person or group, government agent or not.  When a person has been forcibly taken and cannot be located, the writ of amparo compels the persons or groups known to have taken him to explain where he is and to produce him.  No general denials such as “Wala siya sa amin” or “Hindi namin alam kung saan siya” are  allowed.  Or when a person catches wind of a threat on the part either of state agents or others to capture him or worse, harm or kill him, the writ of amparo compels the parties suspected of plotting to appear before the court.  The privilege of the writ consists in commanding such persons to stay away from the petitioner, to desist from the planned action and whatever else the court may deem appropriate to protect the petitioner.

Q: What is the writ of habeas data?

A: Let us assume that the PDEA has secretly gathered information against you and you are marked as a suspect in drug trafficking.  You protest your innocence because you have never been so engaged.  But you very well know that acting on the information (data) it has, PDEA could very well be planning your capture or, worse, your demise “pag ikaw ay nanlaban”.  By petitioning the court for a writ of habeas data, you are able to compel PDEA to produce in court whatever information and data it may have against you.  The privilege of the writ may consist in the deletion of the data or the correction of errors when so warranted.

Q: Will persons not be able to negate the effects of the suspension of the privilege of the writ of habeas corpus by resorting to amparo or, when appropriate, habeas data?

A: Not really, because “unless prejudicial to public order” guarantees against this.  When a person is detained by virtue of a lawful suspension of the privilege of the writ of habeas corpus, it would be prejudicial to public order to release him through a writ of amparo.  Furthermore, the writs of amparo and habeas data have a wider scope than habeas corpus, and so the protection they afford should be available even when the privilege of the writ of habeas corpus is suspended.

Topics: writ of habeas corpus , Bill of Rights , 1987 Constitution , writs of amparo
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