N. EX POST FACTO LAWS AND BILL OF ATTAINDER

N.  EX POST FACTO LAWS AND BILL OF ATTAINDER

 

Section 22, Art. III. No ex post facto law or bill of attainder shall be enacted.

Kinds of Ex Post Facto Laws

 

(1)   One which makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

 

(2)   One which aggravates the crime or makes it greater than when it was committed.

 

(3)   One which changes the punishment and inflicts a greater punishment than that which the law annexed to the crime when it was committed.

 

(4)   One which alters the legal rules of evidence and receives less testimony than the law required at the time of the commission of the offense in order to convict the accused.

 

(5)   One which assumes to regulate civil rights and remedies only BUT, in effect, imposes a penalty or deprivation of a right, which, when done, was lawful.

 

(6)   One which deprives a person accused of a crime of some lawful protection to which he has become entitled such as the protection of a former conviction or acquittal, or a proclamation of amnesty. (In Re Kay Villegas Kami)

 

Characteristics of Ex Post Facto Law

 

(a)   Must refer to criminal matters

(b)   Prejudicial to the accused

(c)    Retroactive in application

 

·         In Lacson v. Exec. Sec., the Court held that in general, ex post facto law prohibits retrospectivity of penal laws.  RA No. 8249 is not a penal law.... The contention that the new law diluted their right to a two-tiered appeal is incorrect because “the right to appeal is not a natural right but statutory in nature that can be regulated by law.  RA 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of ex post facto law.”

 

·         In Calder v. Bull, the Court said that when the law alters the legal rules of evidence or mode of trial, it is an ex post facto law.  Exception:  (Beazell v. Ohio)  unless the changes operate only in limited and unsubstantial manner to the disadvantage of the accused.

 

·         In Bayot v. Sandiganbayan, the accused was convicted by the Sandiganbayan for estafa on May 30, 1980.  Accused appealed.  On March 16, 1982, BP Blg. 195 was passed authorizing suspension of public officers against whom an information may be pending at any stage.  On July 22, 1982, the court suspended the accused.  The Supreme Court ruled that Art. 24 of the Revised Penal Code that suspension of an officer during trial shall not be considered a penalty.  The suspension in the case is merely a preventive and not a penal measure which therefore does not come under the ex post facto prohibition.

 

 

BILL OF ATTAINDER

Bill of attainder – is a legislative act which inflicts punishment without judicial trial.  If the punishment be less than death, the act is termed a bill of pains and penalties.” (Cummings v. Missouri)

 

(All Bills of Attainder are Ex Post Facto Laws)

 

Elements of Bill of Attainder

 

1.     There must be a law.

2.     The law imposes a penal burden on a named individual or easily ascertainable members of a group.

3.     There is a direct imposition of penal burden without judicial trial.

 

 

 

O.  PRIVACY OF COMMUNICATION

 

Section 3(1), Art. III. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.

Forms of Correspondences  and Communication Covered

 

1.     letters

2.     messages

3.     telephone calls

4.     telegrams, and

5.     the likes

 

Intrusion into the Privacy of Communication May Be Allowed

 

1.     Upon lawful order of the court, or

2.     When public safety or order requires otherwise as prescribed by law.

 

·         When intrusion is made without a judicial order, it would have to be based upon a government official's assessment that public safety and order demand such intrusion.

 

Public Order and Safety – the security of human lives, liberty, and property against the activities of invaders, insurrectionists, and rebels.

 

·         RA No. 4200 known as the Anti-Wiretapping Law provides penalties for specific violations of private communication.  Under Sec. 3 of the Act allows court-authorized taps, under specific conditions for 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 rebellion, sedition, conspiracy to commit sedition, inciting to sedition, kidnapping.

 

 

P.  RIGHT TO PRIVACY

 

·           In Ople v. Torres, the right to privacy being a fundamental right, the government has the burden of proof to show that a statute (AO no. 308 in this case) is justified by some compelling state interest and that it is narrowly drawn.

 

“In no uncertain terms, we also underscores that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common good. It merely requires that the law be narrowly focused.” Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions.

 

·         In Roe v. Wade, the Court held that abortions are permissible for any reason a woman chooses, up until the "point at which the fetus becomes ‘viable,’ that is, potentially able to live outside the mother's womb.

 

(a)   The Constitution does not explicitly mention any right to privacy but the Court has recognized that such right does exist in the Constitution. The Court deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny. Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest.”

(b)   The right to privacy is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. But a woman’s right to terminate her pregnancy at whatever time, in whatever way and for whatever reason she alone chooses is NOT absolute. While recognizing the right to privacy, the Court also acknowledges that some state regulation in areas protected by a right is appropriate. A state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.

 

 

Q.  WRIT OF HABEAS DATA

 

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 of 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.

 

·         It is governed by The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC – full text), which was approved by the Supreme Court on 22 January 2008. That Rule shall not diminish, increase or modify substantive rights.

 

 

Constitutional Basis

Section 5(5), Art. VIII. Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

 

·         The Rule takes effect on 2 February 2008, following its publication in three (3) newspapers of general circulation.

 

Who may file a petition for the issuance of a writ of habeas data?

 

·         General rule:  The aggrieved party.

 

·         Exceptions:  In cases of extralegal killings and enforced disappearances, the petition may be filed by:

 

(1)   Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or

 

(2)   Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the preceding paragraph.

 

Where can the petition be filed?

 

(1)   Regional Trial Court 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 the petitioner.

 

(2)   Supreme Court;

 

(3)   Court of Appeals; or

 

(4)   Sandiganbayan, when the action concerns public data files of government offices.

 

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

 

 

The verified written petition shall allege the following:

 

(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.

 

 

When is the writ of habeas data issued?

 

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 of court 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 own 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 its issuance.

 

·         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.

 

·         The writ shall be served upon the respondent by the officer or 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.

 

·         The respondent shall file a verified written return together with supporting affidavits within five (5) work days from service of the writ, which period may be reasonably extended by the Court for justifiable reasons.

 

Contents of Return

 

(a)   The lawful defenses 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 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 held; and

 

(c)    Other allegations relevant to the resolution of the proceeding.

 

·         When the respondent fails to file a return, the court, justice or judge shall proceed to hear the petition ex parte, granting the petitioner such relief as the petition may warrant unless the court in its discretion requires the petitioner to submit evidence.

 

·         Instead of having the hearing in open court, it can be done in chambers when 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 data or information cannot be divulged to the public due to its nature or privileged character.

 

·         The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties.

 

·         Upon its finality, the judgment shall be enforced by the sheriff or any lawful officer as may be designated by the court, justice or judge within five (5) work days.

 

·         When a criminal action has been commenced, no separate petition for the writ shall be filed, but the reliefs under the writ shall be available by motion in the criminal case, and the procedure under this Rule shall govern the disposition of the reliefs available under the writ of habeas data.

 

·         When a criminal action and a separate civil action are filed subsequent to a petition for a writ of habeas data, the petition shall be consolidated with the criminal action. After consolidation, the procedure under this Rule shall continue to govern the disposition of the reliefs in the petition.

 

·         The introduction of the Writ of Habeas Data into Philippine Justice System complemented several writs used in the Philippines. These writs which protect the rights of the individual against the state are as follows:

 

·         The Writ of Habeas Corpus – a writ ordering a person who detained another to produce the body and bring it before a judge or court. Its purpose is to determine whether the detention is lawful or not;

 

·         The Writ of Mandamus – a writ ordering a governmental agency to perform a ministerial function;

 

·         The Writ of Prohibition – a writ ordering a person to prohibit the commission of an illegal act;

 

·         The Writ of Certiorari – a writ ordering a person to correct an erroneous act committed with grave abuse of discretion; and

 

·         The Writ of Amparo – a writ designed to protect the most basic right of a human being. These are the right to life, liberty and security guaranteed by the Constitution.