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SCHOOL OF LAW

Angeles University Foundation

THE WRITS OF AMPARO & HABEAS DATA

EXECUTIVE PRIVILEGE
in relation to the
OVERSIGHT FUNCTIONS OF CONGRESS
AND LEGISLATIVE INQUIRY

POLITICAL ASYLUM

A Term Paper accomplished as Final Requirement


in Public International Law (PIL) under

ATTY. TEODORO JUMAMIL


LAW PROFESSOR

Submitted by

JOEY ANDREW G. GUERRERO


AUF LAW-II 03/26/09
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Introduction

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The way of the world is to make laws, but follow custom.

This sentence once appeared in the dissertations of Montaigne, considered by the world as the father of the
literary essay and one of the most influential philosophers during the French Renaissance.

While Montaigne may be remembered now because of his accomplishments in literature, his writings
sometimes cannot hide the fact that he trained under the great legal minds of his era.

The above-quoted declaration depicts such an example.

The realization of the soundness of Montaignes statement dawned upon this student when he studied
Public International Law. Even though written statutes exist, it cannot be denied that such laws before enactment
were once upon a time mere customs observed by various societies, even nations.

It is in this score that Montaignes advise makes sense. It is common knowledge that statutes are enacted
continuously. Thus, laws in any state can easily number up to the thousands. One, indeed, can easily get confused.

In these cases, as Montaigne puts it, it would seem better to follow custom. For the simple reason that,
sooner or later, such custom will be, if not already, written into law anyway.

Indeed, the spheres of International Law and Constitutional law are overwhelmed by profound intricacies
especially when it concerns Philippine law. The Constitution, in our setting ranks as the supreme law of the land. As
such, any subsequently enacted statute must be consistent with its provisions.

However, even our own Constitution recognize that customary international law can be deemed part of the
law of the land through incorporation. Thus, a custom practiced by a relevant number of nations for a considerate
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amount of time may possibly be treated in the same plane as a written law in our jurisdiction.

In fact, generally accepted principles of international law are sometimes even transformed into our own
laws by the Legislature. This practice exemplifies the impact of international customs on our written laws.

The following themes as far as practicable will be expounded to the utmost of ability. Though to a
reasonable mind, except possibly for political asylum, the writs of habeas data and amparo as well as executive
privilege may be considered more as subjects in the vast realm of Constitutional law, yet this student will attempt to
highlight their origins in international law. After all, these topics were really assigned as a requirement to hurdle the
law school course in Public International Law.

Considering the intimacy between Constitutional law and International law as emphasized by the preceding
paragraphs, however, this student believes that this undertaking will hardly be problematic.

1
WikiQuote, Michel de Montaigne, http://en.wikiquote.org/wiki/Michel_de_Montaigne.

2
Sec. 2, Art. II, The 1987 Philippine Constitution.
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THE WRITS OF AMPARO & HABEAS DATA

Historical Background

Before the writs of Amparo and Habeas Data, the only writ available in our judicial system as a remedy
primarily for the protection of the constitutional rights of life and liberty is the Writ of Habeas Corpus.

Habeas Corpus in latin literally means You shall have the body. It is a legal action, or writ, through which
a person can seek relief from unlawful detention. It protects the individual from harming him or herself, or from
being harmed by the judicial system. The writ of habeas corpus has historically been an important instrument for the
3
safeguarding of individual freedom against arbitrary state action.

A writ of habeas corpus is issued by a court and addressed to a custodian demanding that his prisoner be
brought before the court, together with proof of authority, allowing the court to determine whether that custodian
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has lawful authority to hold that person.

If it is found that the custodian has no lawful authority, the prisoner shall be released from custody. The
prisoner, or another person on their behalf (for example, where the prisoner is being held incommunicado), may
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petition the court for a writ of habeas corpus.

However, both the 1935 and 1973 Philippine Constitutions vest upon the President or the Prime Minister the
power to suspend this extraordinary writ on occasions of invasion, insurrection, or rebellion or imminent danger
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thereof, when the public safety requires it.

The infamous President Ferdinand E. Marcos used this particular provision to suspend the writ of habeas
corpus in 1971 which ultimately paved the way for the proclamation of Martial law.

As a result, Philippine History became witness to the proliferation of the dangers which the writ of habeas
corpus, if only effective in those days, may have reasonably prevented. Apparently, countless political adversaries
including civilians and journalists were either surreptitiously detained or kidnapped without cause by the military,
some never to be seen again by their loved ones.

3
Wikipedia, Habeas Corpus, http://en.wikipedia.org/wiki/Habeas_corpus.

4
Ibid.

5
Wikipedia, Habeas Corpus, http://en.wikipedia.org/wiki/Habeas_corpus.

6
Sec. 10 (2), Art. VII, The 1935 Philippine Constitution.

Sec. 12, Art. IX, The 1973 Philippine Constitution.


4

Anyone who lived during that period of Martial Law will tell you that those times were the darkest times in
Philippine history. The common citizens were at the mercy of a man who had every intention of holding on to power
as if it was life itself. Those were dark times indeed. As the writ of habeas corpus was suspended, the military picked
up and incarcerated many innocent civilians on trumped up charges of sedition. More often than not, these people
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were convicted without trial, and denied the due process of law.

When Martial law was ended by the 1986 People Power Revolution in Edsa, legislators ensure that certain
safeguards would be inserted in the New Constitution to avoid another experience of the horrid events that
transpired during the Martial Law era.

Hence, the 1987 Philippine Constitution now provides that while the President may still suspend the writ of
Habeas Corpus and declare Martial Law, such proclamation can only last for a period not exceeding 60 days. Within
48 hours, the President is tasked to submit a report to Congress. The Congress then, acting jointly, would have the
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power either to extend or revoke such declaration by majority vote.

Days, months, years and even decades passed. At first glance, the safeguards enshrined in the Constitution
seemed to have maintained their purpose. The writ of Habeas Corpus was never again suspended and Martial Law
to this date has not been again proclaimed. The gross violations of life and liberty, however, did not stop.

The violators employed more drastic means in the form of extrajudicial killings and forced disappearances to
silence their political enemies. To these new methods of violence, the Writ of Habeas Corpus proved ineffective.

Extralegal killings are those committed without due process of law, which include summary and arbitrary
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executions known by many by the term salvagings.

An enforced disappearance occurs when force is used (by, for example, agents of a state) to cause a person
to vanish from public view, followed by a refusal to acknowledge the deprivation of liberty (and/or by concealment of
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the fate or whereabouts of the disappeared person), thereby placing the victim outside the protection of law.

In this situation, even if a petition for Habeas Corpus is filed in behalf of the victim and subsequently the
court issues such writ, the custodian would just refuse to confirm that he is in fact detaining the said person.

This excuse, to circumvent the rules on Habeas Corpus, became the usual alibi of government defendants
who were otherwise guilty of utilizing extrajudicial killings and enforced disappearances against innocent civilians.

7
The 1986 Edsa Revolution Website, The Philippines Under Martial Law,
http://library.thinkquest.org/15816/thebeginning.article4.html.

8
Sec. 18, Art. VII, The 1987 Philippine Constitution.

9
Wikipedia, The Writ of Amparo and Habeas Data (Philippines),
http://en.wikipedia.org/wiki/Writ_of_Amparo_and_Habeas_Data_(Philippines).

10
Wikipedia, Forced disappearances, http://en.wikipedia.org/wiki/Disappearances.
5

Thus, the need for the issuance of additional legal remedies to supplement the inefficacy of the writ of
Habeas Corpus arose. It is for this reason that the Supreme Court in 2007 brought into existence the Writs of
Amparo and Habeas Data in the Philippine Legal System.

International Origins

While considered as still innovative concepts in the Philippine setting, the Writs of Amparo and Habeas Data
have long before existed in the legal systems of other international personalities.

The Writ of Amparo

Amparo, literally to protect, originated in Mexico and spread throughout the Western Hemisphere where it
has gradually evolved into various forms, depending on the particular needs of each country. It started as a
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protection against acts or omissions of public authorities in violation of constitutional rights.

Later, however, the writ evolved for several purposes: (1) For the protection of personal freedom,
equivalent to the habeas corpus writ (called amparo libertad); (2) For the judicial review of the constitutionality
ofstatutes (called amparo contra leyes); (3) For the judicial review of the constitutionality and legality of a judicial
decision (called amparo casacion); (4) For the judicial review of administrative actions (called amparo
administrativo); and (5) For the protection of peasants rights derived from the agrarian reform process (called
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amparo agrario).

The writ of amparo has been constitutionally adopted by Latin American countries, except Cuba, to protect
against human rights abuses especially during the time they were governed by military juntas. Generally, these
countries adopted the writ to provide for a remedy to protect the whole range of constitutional rights, including
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socio-economic rights.

The Writ of Habeas Data

Conversely, the concept of the writ of Habeas Data was also borrowed from international entities.

The literal translation from Latin of Habeas Data is you have the data. Habeas Data is a constitutional
right granted in several countries in Latin-America. It shows variations from country to country, but in general, it is
designed to protect, by means of an individual complaint presented to a constitutional court, the image, privacy,
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honour, information self-determination and freedom of information of a person.

11
The Supreme Court of the Philippines Website. Annotation to the Writ of Amparo.
http://sc.judiciary.gov.ph/Annotation_amparo.pdf.

12
Ibid.

13
The Supreme Court of the Philippines Website, Annotation to the Writ of Amparo,
http://sc.judiciary.gov.ph/Annotation_amparo.pdf.

14
Wikipedia, Habeas data, http://en.wikipedia.org/wiki/Habeas_data.
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The Habeas Data has a very short history. The roots of the writ of habeas data can be traced to the Council
of Europes 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. A comparative law scholar has described habeas data as a
procedure designed to safeguard individual freedom from abuse in the information age. The European Data
Protection Convention of 1981 was convened to develop safeguards to secure the privacy of the individual by way of
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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 peoples right to
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individual self-determination.

In Latin American countries, however, it found use as an aid in solving their perennial problem of protecting
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the individual against human rights abuses.

Philippine Setting

The 1987 Constitution enhanced the protection of human rights by giving the Supreme Court the power to
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promulgate rules concerning the protection and enforcement of constitutional rights

This rule-making power unique to the present Constitution, is the result of our experience under the dark
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years of the martial law regime.

Before, the protection of constitutional rights was principally lodged with Congress through the enactment
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of laws and their implementing rules and regulation.

The 1987 Constitution, however, gave the the Supreme Court the additional power to promulgate rules to
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protect and enforce rights guaranteed by the fundamental law of the land. In light of the prevalence of extralegal
killing and enforced disappearances, the Supreme Court resolved to exercise for the first time its power to
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promulgate rules to protect our peoples constitutional rights.

15
Chief Justice Reynato Puno (2007), The Writ of Habeas Data,
http://www.humanrights.gov.ph/docs/Puno_Writ_of_Habeas_Data_11-19-07-speech.pdf.

16
Ibid.

17
Ibid.

18
Sec. 5 (5), Art. VIII, The 1987 Philippine Constitution.

19
The Supreme Court of the Philippines Website, Annotation to the Writ of Amparo,
http://sc.judiciary.gov.ph/Annotation_amparo.pdf.

20
Ibid.

21
Ibid.

22
Ibid.
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Hence, the reason why the Writs of Amparo and Habeas Data are now already included as extraordinary
remedies in our legal system for the protection of life and liberty.

The Writ of Amparo

On September 25, 2007, Chief Justice Reynato Puno officially announced the approval or promulgation of
the Writ of Amparo:

"Today, the Supreme Court promulgated the rule that 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 for 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
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our courts of justice."

The Writ of Amparo took effect on October 24, 2007.

The Supreme Court Committee on Revision of the Rules of Court agreed that the writ of amparo should not
be as comprehensive and all-encompassing as the ones found in some countries, especially Mexico. These nations
are understandably more advanced in their laws as well as in their procedures with respect to the scope of this
extraordinary writ. The Committee decided that in our jurisdiction, this writ of amparo should be allowed to evolve
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through time and jurisprudence and through substantive laws as they may be promulgated by Congress.

Since the writ of amparo is still undefined under our Constitution and our Rules of Court, the rule
enumerates the constitutional rights protected by the writ, i.e., only the right to life, liberty and security of persons.
In other jurisdictions, the writ protects all constitutional rights. The reason for limiting the coverage of its protection
only to the right to life, liberty and security is that other constitutional rights of our people are already enforced
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through different remedies.

Be that as it may, the Philippine amparo encapsulates a broader coverage. Whereas in other jurisdictions
the writ covers only actual violations, the Philippine version is more protective of the right to life, liberty and security
in the sense that it covers both actual and threatened violations of such rights. Further, unlike other writs of amparo
that provide protection only against unlawful acts or omissions of public officials or employees, our writ covers

23
Jay Rempillo (2007), SC Approves Rule on Writ of Amparo, http://sc.judiciary.gov.ph/news/courtnews
flash/2007/09/09250701.php.

24
The Supreme Court of the Philippines Website, Annotation to the Writ of Amparo,
http://sc.judiciary.gov.ph/Annotation_amparo.pdf.

25
Ibid.
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violations committed by private individuals or entities. Entities refer to artificial persons, as they are also capable of
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perpetrating the act or omission.

The Writ of Habeas Data

On August 25, 2007, Chief Justice Reynato Puno at the College of Law alumni of Silliman University in
Dumaguete City announced that the Supreme Court of the Philippines was drafting the writ of Habeas Data. By
invoking the truth, the new remedy will not only compel military and government agents to release information about
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the desaparecidos but require access to military and police files.

On January 22, 2008, the Supreme Court En Banc approved the rules for the writ of Habeas Data to
protect a persons right to privacy and allow a person to control any information concerning them." It was made
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effective on February 2, 2008.

Chief Justice Puno describes this right to truth as fundamental to citizens of countries in transition to
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democracy burdened by a legacy of massive human rights violations.

The exercise of this 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 tradition. Justice that is not rooted in truth is injustice in disguise. That kind of justice will not stand
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the test of time, for it is not anchored in reality but on mere images, noted the Chief Justice.

Enforcement of the Writs of Amparo and Habeas Data

The Writ of Habeas Corpus, now reinforced by the Writs of Amparo and Habeas Data were designed to
combat the prevalence of extrajudicial killings and enforced disappearances as well as threats throughout the
country.

26
The Supreme Court of the Philippines Website, Annotation to the Writ of Amparo,
http://sc.judiciary.gov.ph/Annotation_amparo.pdf.

27
Wikipedia, Habeas data, http://en.wikipedia.org/wiki/Habeas_data.

28
Wikipedia, The Writ of Amparo and Habeas Data (Philippines),
http://en.wikipedia.org/wiki/Writ_of_Amparo_and_Habeas_Data_(Philippines).

29
Gleo Guerra (2007), Writ of Habeas Data in the Offing as Protection in Information Age,
http://sc.judiciary.gov.ph/publications/benchmark/2007/11/110703.php.

30
Gleo Guerra (2007), Writ of Habeas Data in the Offing as Protection in Information Age,
http://sc.judiciary.gov.ph/publications/benchmark/2007/11/110703.php.
9

Filing

The Writ of Amparo may be filed on any day at any time in the Regional Trial Courts where the acts or
omissions complained of were committed, or the Sandiganbayan, Court of Appeals, and the Supreme Court as the
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case may be.

In Habeas Data, the same also applies. It may be filed, at the option of the petitioner, with the Regional
Trial Court where petitioner or respondent resides or where the data or information is gathered, collected or stored.
However, the petition must be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the
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action concerns public data files of government offices.

Both the writs of Amparo and Habeas Data may be filed by the aggrieved party himself or by an authorized
party such as his immediate family or when impossible, his relatives. In the case of Amparo, if an immediate family
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member or a relative is unavailable, any concerned citizen may file the petition.

The reason for establishing an order is to prevent the indiscriminate and groundless filing of petitions for
amparo which may even prejudice the right to life, liberty or security of the aggrieved party. For instance, the
immediate family may be nearing the point of successfully negotiating with the respondent for the release of the
aggrieved party. An untimely resort to the writ by a nonmember of the family may endanger the life of the aggrieved
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party.

Docket Fees

No fees are required for an Amparo petition. In a petition for the Writ of Habeas Data, no docket and other
lawful fees are required only if the petitioner is an indigent. The indigent petitioner would then have 15 days to
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submit proof of his indigency.

The Committee exempted petitioners from payment of docket and other lawful fees in filing an amparo
petition, for this extraordinary writ involves the protection of the right to life, liberty and security of a person. The
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enforcement of these sacrosanct rights should not be frustrated by lack of finances.

31
Sec. 3, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

32
Sec. 3, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/A.M.No.08-1-16-
SC.pdf.

33
Sec. 2, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 2, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


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

34
The Supreme Court of the Philippines Website, Annotation to the Writ of Amparo,
http://sc.judiciary.gov.ph/Annotation_amparo.pdf.

35
Sec. 4, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 5, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


A.M.No.08-1-16-SC.pdf.
10

Effect of Institution

The filing of an Amparo or Habeas Data petition will not preclude the filing of separate criminal, civil, or
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administrative actions.

The writ of amparo partakes of the nature of a prerogative writ. It is not a criminal, civil, or administrative
38
suit. Hence, it does not suspend the filing of criminal, civil or administrative actions.

However, the Amparo or Habeas Data petition will be consolidated with a subsequently filed criminal or
39
separate civil action.

If the criminal action is filed first, a separate petition for Amparo or Habeas Data would not be allowed
40
anymore. In such case, the reliefs under the writs shall be available by motion in the criminal case.

This is to avoid the difficulties that may be encountered when the amparo action is allowed to proceed
41
separately from the criminal action. Two courts trying essentially the same subject may issue conflicting orders.

Remedies Available

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The Rule on the Writ of Amparo emphasizes the following reliefs:

1. Temporary Protection Order and Witness Protection Order which empowers the court
to order a government agency or a private person or an accredited institution to give
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protection to the aggrieved parties, their family or the organization who filed the petition.

36
The Supreme Court of the Philippines Website, Annotation to the Writ of Amparo,
http://sc.judiciary.gov.ph/Annotation_amparo.pdf.

37
Sec. 21, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 20, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


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

38
The Supreme Court of the Philippines Website, Annotation to the Writ of Amparo,
http://sc.judiciary.gov.ph/Annotation_amparo.pdf.

39
Sec. 23, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 21, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


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

40
Sec. 22, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 22, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


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

41
The Supreme Court of the Philippines Website, Annotation to the Writ of Amparo,
http://sc.judiciary.gov.ph/Annotation_amparo.pdf.

42
Sec. 14, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.
11

The grant of a temporary protection order to the petitioner or the aggrieved party and any
member of the immediate family is essential because their lives and safety may be at higher
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risk once they file the amparo petition.

2. Inspection Order which empowers the court to allow entry into a public or private property
for the purpose of inspecting, surveying, measuring or photographing the property or any
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relevant object thereon.

3. Production Order which empowers the court to order any person to produce documents,
papers, letters, photographs, objects or tangible things and those in digitized or electronic
46
forms.

Procedure

After the filing of an Amparo or Habeas Data petition requesting any legal remedy available, the court,
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justice or judge would immediately order the issuance of the writ if on its face it ought to issue.

The respondent, upon issuance and service of the Writ, is required to submit a return within five working
48
days.

The return in an Amparo proceeding should be in writing and supported by affidavit containing respondents
lawful defenses to show that he did not commit any violation to the life liberty and security of the aggrieved party.
Such return should also note the steps or actions taken by the respondent to determine the fate or whereabuts of
the aggrieved party and the persons resposible for the threat, act or omission. Moreover, all relevant information in
the possession of respondent pertaining to the threat, act or ommission against the aggrieved party as well as the

43
Atty. Neri Javier Colmenares (2007), The Writ of Amparo: A Comparative Review,
http://www.bayan.ph/downloads/THE_WRIT_OF_AMPARO_A_COMPARATIVE_REVIEW_BY_CODAL.pdf.

44
The Supreme Court of the Philippines Website, Annotation to the Writ of Amparo,
http://sc.judiciary.gov.ph/Annotation_amparo.pdf.

45
Atty. Neri Javier Colmenares (2007), The Writ of Amparo: A Comparative Review,
http://www.bayan.ph/downloads/THE_WRIT_OF_AMPARO_A_COMPARATIVE_REVIEW_BY_CODAL.pdf.

46
Ibid.

47
Sec. 6, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 7, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


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

48
Sec. 9, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 10, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


A.M.No.08-1-16-SC.pdf.
12

actions that had been or will be taken by the respondent if he happens to be a public official or employee should also
49
be stated.

On the other hand, the return in an action for Habeas Data should contain the lawful defenses of
respondent such as but not limited to national security, state secrets, privileged communication, and confidentiality.
In case the respondent is indeed in charge, in possession or in control of the data or information subject of the
petition, he is required to state in the return a full disclosure of the data or information about the petitioner including
the nature of such information and the purpose of its collection. Furthermore, the steps or actions taken by the
respondent to ensure the security and confidentiality of the data or information held and the currency and accuracy
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of such as well as other allegations relevant to the resolution of the case should also be noted.

Consequently, if respondent fails to file the return in both instances, the court may proceed to hear the case
51
ex parte.

52
The hearing on such petitions is summary in nature. Within 10 days from the time petition is submitted
for decision, the court shall render judgment and determine the granting of the reliefs requested based on
53
substantial evidence. Otherwise, petition shall be denied. However, any party may appeal from the judgment or
final order to the Supreme Court under rule 45 on questions of facts or law or both. The period for appeal shall be
54
five working days from notice of judgment.

Contempt

Punishment for contempt by way of a penalty of imprisonment or a fine may be imposed by the court,
justice, or judge if the respondent refuses to make a return or submits a false return as well as if any person

49
Sec. 9, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

50
Sec. 10, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/
A.M.No.08-1-16-SC.pdf.

51
Sec. 12, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 14, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


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

52
Sec. 13, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 15, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


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

53
Sec. 18, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 16, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


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

54
Sec. 19, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 19, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


A.M.No.08-1-16-SC.pdf.
13

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otherwise disobeys or resists a lawful process or order of the court to be punished for contempt. Contempt may
also serve as punishment for the refusal to issue or serve the writs by the clerk of court or any deputized person
56
respectively.

Summary

In a nutshell, the Writ of Amparo renders the alibi of non-custody nugatory because it forces the
government officials or the military to prove that indeed they are not in custody of the person in whose favor the writ
was issued and if not, to explain the questioned diappearance and preserve an evidence that might lead to the
57
prosecution of those responsible.

In this line, the Writ of Habeas Data also compels the production of Government or military records and the
58
divulgence of any information that can help find out what indeed happened to the victim.

Together, the addition of these two novel remedies in our legal system attempt to alleviate, if not abolish,
the detrimental effects of extra-judicial killings and enforced disappearances including the threats that may
accompany such forms of violence in this jurisdiction. Noble goals, notwithstanding, the status of their
accomplishment remains to be seen.

EXECUTIVE PRIVILEGE
In relation to the OVERSIGHT FUNCTIONS of CONGRESS and LEGISLATIVE INQUIRY

International Origins

The Philippine Goverment exists as an embodiment of the doctrine of Separation of Powers, which traces its
roots in Ancient Greece and Rome. However, our concept of such doctrine was adopted mainly from the United
States.

It cannot be denied that once upon a time Americans dominated and occuupied our territories, even the
whole country. This occurrence in Philippine history perhaps ranks as the main reason why American culture has

55
Sec. 16, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 11, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


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

56
Sec. 7, The Rule on the Writ of Amparo, http://www.inquirer.net/verbatim/rules-writ-of-amparo.pdf.

Sec. 8, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/


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

57
Sec. 9, The Rule on the Writ of Amparo,
http://www.chanrobles.com/writofamparo_amendedsections9and11.html.

58
Sec. 10, The Rule on the Writ of Habeas Data, http://sc.judiciary.gov.ph/rulesofcourt/2008/jan/A.M.No.08-1-
16-SC.pdf.
14

such an impact on our way of life. The legal realm is of no exception. Hence, even our own Constitution has several
provisions that were taken directly from ther United States Constitution.

Separation of powers is a political doctrine under which the executive, legislative and judicial branches of
government are kept distinct, to prevent abuse of power. This US form of separation of powers is widely known as
59
"checks and balances".

Separation of powers is not absolute; it is instead qualified by the doctrine of checks and balances. James
Madison, the Father of the American Constitution, wrote that the three branches "should not be so far separated as
to have no constitutional control over each other." The system of checks and balances is designed to allow each
60
branch to restrain abuse by another branch.

It is in the light of this doctrine that Executive Privilege will be discussed herein in relation to the Oversight
Functions of Congress and Legislative Inquiry.

Philippine Setting

Pursuant to the doctrine of Separation of Powers, our government consists of the executive, legislative, and
judicial branches. Basically, the Executive branch implements the law, the Legislative branch enacts the law, and the
Judicial branch interprets the law. Each branch is distinct and independent.

Hence, because of the divergence of the powers bestowed upon them, no branch can claim to be above the
other. This does not mean, though, that the doctrine of Separation of Powers is infallible. Indeed, it is still prone to
abuse.

The Martial Law Era ranks as an explicit example. During that time, the Executive Department was able to
abuse its power and practically render powerless the Legislative and Judicial departments of government because of
certain flaws in the law.

To prevent a repeat of history, the 1987 Constitution provided for safeguards that will provide a more
efficient system of checks and balances. As emphasized earlier, the separation of powers doctrine cannot be
effective if its corollary doctrine of checks and balances is not ably implemented.

Included in such safeguards are the Oversight functions of Congress and its power of Legislative Inquiry.

Oversight Functions of Congress

Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its
understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight concerns
post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with program objectives,

59
Wikipedia, Separation of Powers under the United States Constitution,
http://en.wikipedia.org/wiki/Separation_of_powers_under_the_United_States_Constitution.

60
Ibid.
15

(b) to determine whether agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to
prevent executive usurpation of legislative authority, and (e) to assess executive conformity with the congressional
perception of public interest. The power of oversight has been held to be intrinsic in the grant of legislative power
61
itself and integral to the checks and balances inherent in a democratic system of government.

The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three
categories, namely: (1) supervision, which connotes a continuing and informed awareness on the part of a
congressional committee regarding executive operations in a given administrative area; (2) scrutiny, primarily
intended to determine economy and efficiency of the operation of government activities, exercised through budget
hearings, the question hour and the power of confirmation; and (3) investigation, which is also known as the
62
inquiry in aid of legislation.

Pursuant to its Oversight power, the Congress may conduct a question hour. The basis for this exercise
can be found in Sec. 22, Art. VI, of the 1987 Constitution which states:

SECTION 22. The heads of departments may upon their own initiative, with the consent
of the President, or upon the request of either House, as the rules of each House shall provide,
appear before and be heard by such House on any matter pertaining to their departments. Written
questions shall be submitted to the President of the Senate or the Speaker of the House of
Representatives at least three days before their scheduled appearance. Interpellations shall not be
limited to written questions, but may cover matters related thereto. When the security of the State
or the public interest so requires and the President so states in writing, the appearance shall be
conducted in executive session.

The Question Hour is distinct from Legislative Inquiry. As such, their differences will be highlighted in
the subsequent paragraphs.

Legislative Inquiry

The Congressional power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution:

SECTION 21. The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

61
Philippine E-legal Forum, Primer on Separation of Powers, Inquiry in Aid of Legislation, http://jlp-
law.com/blog/primer-separation-of-powers-inquiry-in-aid-legislation/.

62
Ibid.
16

Even without this express Constitutional provision, the power of inquiry is inherent in the power to legislate.
The power of inquiry, with process to enforce it, is grounded on the necessity of information in the legislative
process. If the information possessed by executive officials on the operation of their offices is necessary for wise
legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to
63
compel the disclosure thereof.

Under the separation of powers, Congress has the right to obtain information from any source even from
officials of departments and agencies in the executive branch. It is this very separation that makes the congressional
right to obtain information from the executive so essential, if the functions of the Congress as the elected
64
representatives of the people are adequately to be carried out.

Question Hour vs. Legislative Inquiry

Section 21 (inquiry in aid of legislation) and Section 22 (question hour) of Article VI of the Constitution are
closely related and complementary to each other, but they do not pertain to the same power of Congress. One
specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that
may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which
is to obtain information in pursuit of the oversight function of Congress. While attendance was meant to be
65
discretionary in the question hour, it was compulsory in inquiries in aid of legislation.

In fact, a person who refuses to attend a congressional hearing in relation to the exercise of the power of
legislative inquiry in aid of legislation may be cited for contempt.

Limitations

This is not to say that the power of legislative inquiry is without limitation. Any abuse in the exercise of
such power is subject to review by the Supreme Court which has the power to determine if there has been grave
66
abuse of discretion amounting to lack or excess of jurisdiction in any instrumentality of the government.

As now contained in the 1987 Constitution (Section 21, Article VI), the power of Congress to investigate is
circumscribed by three limitations, namely: (a) it must be in aid of its legislative functions, (b) it must be conducted

63
Philippine E-legal Forum, Primer on Separation of Powers, Inquiry in Aid of Legislation, http://jlp-
law.com/blog/primer-separation-of-powers-inquiry-in-aid-legislation/.

64
Ibid.

65
Ibid.

66
Sec. 1, Art. VIII, The 1987 Philippine Constitution.
17

in accordance with duly published rules of procedure, and (c) the persons appearing therein are afforded their
67
constitutional rights, including the right to be represented by counsel and the right against self-incrimination.

In addition, even where the inquiry is in aid of legislation, there are still recognized exemptions to the power
of inquiry, which exemptions fall under the rubric of executive privilege. 68

Executive Privilege

Executive privilege is the implied constitutional power of the President to withhold information requested by
other branches of the government. The Constitution does not expressly grant this power to the President but courts
have long recognized implied Presidential powers if necessary and proper in carrying out powers and functions
69
expressly granted to the Executive under the Constitution.

Executive privilege is not a clear or unitary concept, although it has been defined as the power of the
Government to withhold information from the public, the courts, and the Congress or the right of the President and
70
high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public.

Executive privilege is properly invoked in relation to specific categories of information and not to categories
of persons. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in
71
relation to certain types of information of a sensitive character.

The matters covered under executive privilege include: (1) Information between inter-government
agencies prior to the conclusion of treaties and executive agreements; (2) Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings; and (3) Matters affecting national security and
72
public order.

When an official is being summoned by Congress on a matter which, in his own judgment, might be covered
by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the
possible need for invoking the privilege. This is necessary in order to provide the President or the Executive Secretary
with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse

67
Philippine E-legal Forum, Primer on Separation of Powers, Inquiry in Aid of Legislation, http://jlp-
law.com/blog/primer-separation-of-powers-inquiry-in-aid-legislation/.

68
Ibid.

69
Justice Antonio Carpio (2008), The Limits of Executive Privilege, http://www.abs-cbnnews.com/views-and-
analysis/03/28/08/limits-executive-privilege-0.

70
Philippine E-legal Forum, Primer on Separation of Powers, Inquiry in Aid of Legislation, http://jlp-
law.com/blog/primer-separation-of-powers-inquiry-in-aid-legislation/.

71
Ibid.

72
Ibid.
18

of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no
longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the
73
necessary legal means to compel his appearance.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must be clearly
asserted. An implied claim of privilege is invalid per se. The validity of claims of privilege must be assessed on a case
74
to case basis, examining the ground invoked therefore, and the particular circumstances surrounding it.

Executive Order 464

As stated earlier, executive privilege is not expressly granted by the Constitution. To remedy thi problem,
the President issued Executive Order 464. In the case of Senate vs. Ermita (April 20, 2006) the constitutionality of
Executive Orer 464 was challenged. The Supreme Court strucked down and declared as unconstitutional some of the
provisions of the said order.

75
The conclusion of the Supreme Court in the said case is summarized as follows:

Congress undoubtedly has a right to information from the executive branch whenever it is
sought in aid of legislation. If the executive branch withholds such information on the ground that it
is privileged, it must so assert it and state the reason therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for information without need of clearly asserting a right to do so and/or
proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of
Congress to conduct inquiries in aid of legislation is frustrated. That is impermissible.

Resort to any means then by which officials of the executive branch could refuse to divulge
information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of
our legislature to inquire into the operations of government, but we shall have given up something
of much greater value -- our right as a people to take part in government.

Legislative Inquiry vs. Executive Privilege

The power of inquiry (inquiry in aid of legislation) of Congress is expressly recognized in Section 21 of
Article VI of the Constitution. An exemption to such Congressional power falls under the rubric of executive privilege,

73
Philippine E-legal Forum, Primer on Separation of Powers, Inquiry in Aid of Legislation, http://jlp-
law.com/blog/primer-separation-of-powers-inquiry-in-aid-legislation/.

74
Ibid.

75
Philippine E-legal Forum, Executive Order 464 Senate vs. Ermita, http:// jlp-law.com/blog/executive-order-
464-senate-philippines-ermita/.
19

which is also a constitutional concept. Executive privilege, however, is recognized only in relation to certain types of
information of a sensitive character. The validity of a claim thereof depends on the ground invoked to justify it and
the context in which it is made. Executive officials are NOT exempt from the duty to disclose information by the mere
76
fact of being executive officials.

Summary

It is clear that executive privilege is granted to the President only being the lone head of the Executive
Department. Without this, the President may not be able to do the duties and responsibilities that accompanies the
office for fear of interference from the other branches of government.

However, this privilege may not be abused by the Executive Department. This is clear from the ruling of the
Supreme Court in Senate vs. Ermita. The Power of Legislative Inquiry pursuant to the Oversight functions of
Congress must not be circumvented by merely invoking executive privilege.

Whether this is enough to prevent such abuse continues to be a debatable issue to this day.

POLITICAL ASYLUM

International Origins

As early as 1948, the Universal Declaration of Human Rights as adopted by resolution by the United Nations
77
already provided for an individuals right to asylum.

The Right of asylum (or political asylum) is an ancient juridical notion, under which a person persecuted for
political opinions or religious beliefs in his or her own country may be protected by another sovereign authority, a
78
foreign country, or Church sanctuaries (as in medieval times).

This right has its roots in a longstanding Western traditionalthough it was already recognized by the
Egyptians, the Greeks and the HebrewsDescartes went to the Netherlands, Voltaire to England, Hobbes to France
(followed by many English nobles during the English Civil War), etc; each state offered protection to foreign
79
persecuted persons.

76
Philippine E-legal Forum, Executive Order 464 Senate vs. Ermita, http:// jlp-law.com/blog/executive-order-
464-senate-philippines-ermita/.

77
Art. 14, 1948 Universal Declaration of Human Rights.

78
Wikipedia, Right of Asylum, http://en.wikipedia.org/wiki/Right_of_asylum.

79
Ibid.
20

International Implementation

Prevailing laws about political asylum vary. As a general rule, someone must indicate that he or she wishes
to seek asylum upon entering a country, although in some cases an asylum application may be filed later, as might
be the case when someone travels on a routine trip and learns that it would be dangerous to return. The application
for political asylum can include a wide range of supporting information, and people may have up to a year or more to
gather the documents and support they need. If rejected, that applicant may be deported if he or she is in the
country illegally, or the applicant may be asked to go through another application process to receive a resident alien
80
card or extended visa.

Many countries around the world take the right to political asylum very seriously, and international
organizations have spelled out rules and regulations in an attempt to keep political asylum laws uniform. Many
organizations will also help people who believe that they are entitled to the right to political asylum, offering legal
81
assistance, housing and job placement, and assistance with filing for permanent residency or citizenship.

Philippine Setting

Hard law refers to binding international legal norms or those which have coercive character. Soft law,
on the other hand, refers to norms that are non-binding in character but still have legal relevance.Although the 1948
Universal Declaration of Human Rights can be categorized as a soft law when it was adopted by the United Nations
decades ago, it nonetheless ripened into hard law already by the signing and ratification of the Philippines of two
binding covenants -- the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights.

Hence, the right to political asylum is now considered a general principle of international law or customary
82
international law. As such, the Constitution provides that it should be deemed part of the law of the land. This
ranks as the primary reason why notwithstanding the fact that political asylum was never written in our laws, it is still
part of our legal system.

Relevant Cases

Many Filipinos have already sought political asylum in foreign jurisdictions. An example would be Jose Maria
Sison who was infamous for being the activist who reorganized the Communist Party of the Philippines. Since 1987
when he went into exile in the Netherlands after the Marcos era, Sison sought for political asylum there as a political

80
Wisegeek, What is Political Asylum, http://www.wisegeek.com/what-is-political-asylum.htm.

81
Ibid.

82
Sec. 2, Art. II, The 1987 Philippine Constitution.
21

refugee. However, his asylum status was put into question when he was labeled as a terrorist and charged with
83
orchestrating some murders in the Philippines in 2001. His prosecution in Europe at present is still on-going.

Just recently, former Agriculture Undersecretary Joc-Joc Bolante who is allegedly involved as the architect in
a P728-million fertilizer scam allegedly diverted to President Gloria Macapagal-Arroyos campaign funds in the 2004
Presidential Elections sought for political asylum in the United States because allegedly of political persecution. The
United States Court of Appeals rejected his petition ruling that he was unable to prove with sufficient evidence that
84
he is in fact under political persecution. In the Philippines, a case has yet to be decided by the Supreme Court to
put political asylum in clearer terms insofar as this jurisdiction is concerned.

Conclusion and Recommendations

The discussion of the Writs of Amparo and Habeas Data, Executive Privilege in relation to the Oversight
Functions of Congress and Legislative Inquiry as well as Political Asylum must now come to an end for lack of time
and space.

The following conclusions and recommendations of this law student are volunteered:

1) As regards the Writs of Amparo and Habeas Data, the mere promulgation of these rules by our Supreme Court
will not be sufficient to put a stop to extralegal killings, enforced disappearances as well as the threats that
accompany them.
Writing a legal rule is one thing, but implementing it is definitely another. The entire process of enforcing these
writs will not only be dependent upon the wordings of the promulgated rules but also on the actions of the
court, judge, or justice hearing the case. It is imperative that such one must possess the cold neutrality of an
impartial judge. He must also be able to withstand the threats and pressure of powerful government officials.
Otherwise, a corrupt, biased, and frail judge will just nullify the good intentions of the subject writs.
2) As regards Executive Privilege in relaton to the Oversight Functions of Congress and Legislative Inquiry, the
mere declaration of unconstitutionality of some E.O. 464 provisions is not enough.
While such declaration may have stopped the abuse of executive privilege as an excuse in congressional
hearings in aid of legislation, it did not provide a solution for blatant lying by those summoned by Congress.
Deterrent circumstances such as this must be avoided by applying more stringent rules in order for the Congress
to enact more accurate and updated legislations.
3) As regards Political Asylum, the Legislature or the Judiciary must find a way to make this customary international
law clearer in our jurisdiction.

In attaining these goals, of course, the help of the Almighty ranks mandatory. Who knows? Maybe, just
maybe, honest public officials who will serve public interest more than their own may come to our rescue. Sometimes
miracles do happen.

83
Wikipedia, Jose Maria Sison, http://en.wikipedia.org/wiki/Jose_Maria_Sison.

84
The Daily PCIJ, U.S. Court of Appeals Rejects Bolante Asylum Petition, http://www.pcij.org/blog/?p=3102.