In his speech entitled “The Writ of Habeas Data” delivered on November 19, 2007 in a UNESCO Policy Forum held in Manila, Philippine Supreme Court Chief Justice Reynato S. Puno, equated the writ of habeas data with the “right to truth” and described it as “fundamental to citizens of countries in transition to democracy, especially those burdened by legacy of massive human rights violations”.
The writ of habeas data “entitles the families of disappeared persons to know the totality of truth surrounding the fate of their relatives”.
Truth is the “bedrock of all legal systems”, Puno stated.
Justice that is not rooted in truth is “injustice in disguise”, not anchored on reality but on “mere images”.
According to Puno, compared to the writ of habeas corpus and the writ of amparo, the writ of habeas data has a very short history.
The writ of habeas corpus can be traced way back to as early as 1215 in the United Kingdom and subsequently codified in 1679.
The writ of amparo first appeared in the State of Yucatan in 1841 and later in the Federal Constitution of Mexico in 1857.
The roots of the writ of habeas data can be traced to the Council of Europe’s 108th Convention on Data Protection of 1981.
The writ of habeas data may be said to be “the youngest legal mechanism to appear in the legal landscape”.
Puno described it as “a procedure designed to safeguard individual freedom from abuse in the information age.”
He added that the European Data Protection Convention of 1981 was convened “to develop safeguards to secure the privacy of the individual by way of regulating the processing of personal information or data”.
In countries like Germany, the use of the writ of habeas data was justified “by invoking the people’s right to individual self-determination”.
In Latin American countries, however, it found use as an aid in solving “their perennial problem of protecting the individual against human rights abuses”.
In several Latin American countries, the writ of habeas data has been embedded “as a direct constitutional right”, according to Puno.
Although the scope and concept of the writ may vary from country to country, in general, the writ is designed “to protect – by means of an individual complaint presented to a constitutional court – the image, privacy, honor, information self-determination and freedom of information of a person”.
According to Puno, the first Latin American country to adopt the writ of habeas data was the Federal Republic of Brazil.
In 1988, the Brazilian legislature voted a new Constitution, which included the right to initiate a habeas data complaint on the part of a citizen.
Article 5, Title II of the 1988 Brazilian Constitution reads:
"Habeas Data shall be granted: (1) to ensure the knowledge of information related to the person of the petitioner, contained in records or databanks of government agencies or of agencies of a public character; (2) for the correction of data, when the petitioner does not prefer to do so through a confidential process, either judicial or administrative."
Colombia incorporated the habeas data right in its 1991 Constitution. As reformulated in the 1997 version of its Constitution, Colombia recognizes the right to individual privacy and recognizes that the citizens shall have “the right to know, access, update and rectify any information gathered about them in databases, both public and private.”
Puno added that the 1992 Paraguay Constitution follows the model set by Brazil, but has a stronger protection.
Article 135 of the Paraguayan Constitution provides:
"Everyone may have access to information and data available on himself or assets in official or private registries of a public nature. He is also entitled to know how the information is being used and for what purpose. He may request a competent judge to order the updating, rectification, or destruction of these entries if they are wrong of if they are illegitimately affecting his rights."
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 Article 200, Section 3 of the Constitution of Peru, a similar provision much like Brazil’s and Paraguay’s can be found, according to Puno. A regulatory law that took effect on April 18, 1995 supported the provision.
The law recognized not only “the procedural guarantees of updating one’s data as contained in manual or physical records”, but also recognizing “one’s right to update one’s ‘automated’ data – those personal data kept and supplied by any ‘information service, automated or not.’”
In Argentina, the writ of habeas data is subsumed by the Argentine writ of amparo.
Article 43 of the Argentine Constitution provides:
"Any person may file this action (referring to the writ of habeas data) to obtain information on the data about himself and their purpose, registered in public records or data bases, or in private ones intended to supply information; and in case of false data or discrimination, this action may be filed to request the suppression, rectification, confidentiality or updating of said data. The secret nature of the sources of journalistic information shall not be impaired."
Puno reported that in Paraguay, an action for a writ of habeas data may be filed “to view police records” bringing to light several atrocities that had been committed at that site.
In Argentina, the Argentine Supreme Court ruled that the writ of habeas data was available to the families of the deceased in a case involving extralegal killings and enforced disappearances. It gave the victims “access to police and military records otherwise closed to them”.
In essence, the writ of habeas data establishes “a right to truth”, Puno concluded.
Atty. Manuel J. Laserna Jr.
Las Pinas City, Philippines
January 23, 2008
