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RELATED LAW ARTICLES
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Reserva Troncal
Art. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.
About the Origin, Propositus, Reservor or Reservista and the Reservees or Reservatarios
About the Origin
- The origin of the property must be an ascendant or brother or sister
- The origin must be a Legitimate relative because reserve troncal exist only in the legitimate family.
- The transmission from the origin to the propositus must be by gratuitous title
About the Propositus
- The propositus is the descendant (brother or sister) whose death gives rise to the reserve, and from whom therefore the third degree is counted
- While propositus is still alive, there is no reserva yet, therefore he is the absolute owner of the property, with full freedom to alienate or encumber. Thus, he may even destroy the property or exchange or sell the property he received gratuitously, and because of such sale he receives cash, there is no reserva even if said cash is later on inherited by the ascendant by operation of law. This is so because the cash is not the same property that he had acquired gratuitously.
- The propositus must be a legitimate descendant (or legitimate half-brother or half-sister) of the origin of the property.
- Inasmuch as the propositus is the full owner of the property while he is alive, he may even defeat the existence of any possible reserva by simply not giving the property involved to his ascendant, by way of inheritance, thru operation of law. This may do by an effective partition or otherwise.
About the Reservor or Reservista
- The reservoir is the ascendant who inherits from the propositus by operation of law. It is he who has the obligation to reserve
- If he inherited the property from the descendant not by legal succession nor by virtue of the legitime, there is no obligation to reserve. This happens for example when he inherits the free portion by virtue of a will.
- Kind of ownership possessed by the reservor
The resrvor is a full owner, subject to a resolutory condition. The resolutory condition is this: If at reservor’s death, there should still exist relatives within the third degree of the propositus, and belonging to the line from which the property came, the reservor’s ownership over the property is terminated. Hence, the property is not part any more of his estate (and therefore not subject to the payment of his own debts). Instead, ownership is transferred to the relatives hereinabove referred to.
In Cabardo vs Villanueva 44 Phil. 186, the Supreme Court among other things said: Supposing the property in question to be of reservable character, an interest on the part of the reservoir Lorenzo Abordo and his heirs therein terminated with his death. Said property therefore does not pertain to his estate at all..in other words the property..is not, properly speaking, a part of the estate in administration at all.
About the Reservees or Reservatarios
- The reserves are the relatives within the third degree (from the propositus) who will become the full owner of the property the moment the reservoir dies, because by such death, the reserve is extinguished. Indeed the only requisites for the passing of title from the reservista (reservoir) to the reservatario (reserve) are: (1) death of the reservista; and (2) the fact that the reservista had survived the reservatario. (Cano vs Director of Lands, etal.., L-10701, Jan 16, 1959).
- Th resrvees inherit the property from the propositus, not from the reservor. We say from the propositus because had the propositus so desired it, there would not have been any reserva. Indeed, the propositus as arbiter of the reserva could have prevented the reserva’s ever coming into existence by, for example, disposing of the properties, or substituting the same, while he was still alive, considering that he was the full owner of said properties. Thus, it has been correctly ruled that the reservee is not the resrvor’s successor mortis causa; nor is the reservable property part of the reservor’s estate; the reservee receives the property as a conditional heir of the propositus, said property merely reverting to the line of origin from which it has temporarily and accidentally strayed during the reservor’s life time. It is also well settled that the reservable property cannot be transmitted by the reservor to his own successor’s mortis causa so long as a reservee exist.
Extinguishment of the Reserva - When does the obligation to reserve cease?
- Death of the reservor
- Death of All the would be reservees Ahead of the reservor (reservista)
- Loss of the reservable properties, provided the reservoir had no fault or negligence. (Thus, Loss must be Accidental.)
- Prescription (as when the reservoir or stranger holds property adversely). ( Reservor – 30 years for real: 8 years for personal property, because of his bad faith)
See Justice Paras Book on Succession |
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Supreme Court News
The Writ of Habeas Data*
by
Chief Justice Reynato S. Puno
Supreme Court
All over the world, judiciaries have been entertaining complaints and
issuing writs pursuant to their task of pacifying disputes and resolving
conflicts—more importantly, in guaranteeing the protection and vindication
of rights of the individual against violations by public authorities and private
entities.
In the history of law, filing an individual petition before courts to
invoke constitutional rights has long been granted a substantive recognition.
The first and perhaps most famous of these is the petition for a writ of
habeas corpus, roughly translated, “You should have the body.” The writ of
habeas corpus is a guarantee against deprivation of liberty of a person. It
originated in the Middle Ages in England, recognized in the several versions
of the Magna Carta, so that a person held in custody is brought before a
judge or court to determine whether the detention is lawful or otherwise.
Aside from the writ of habeas corpus, several writs have been
developed to protect the rights of the individual against the State. In the
United States of America, the writs of mandamus, prohibition, and certiorari
are used to command a governmental agency to perform a ministerial
function, prohibit the commission of an illegal act, or correct an erroneous
act committed with grave abuse of discretion. In the Latin American
* Delivered on November 19, 2007, UNESCO Policy Forum and Organizational Meeting of the
Information for all Program (IFAP), Philippine National Committee.
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countries, particularly Mexico and Argentina, they crafted the writ of
amparo which protects a whole gamut of constitutional rights. In Taiwan,
they have the writ of respondeat superior that makes a superior liable for
the acts of the subordinate. There are other mechanisms to protect human
rights, but the most recent of these legal mechanisms is the writ of habeas
data.
The habeas corpus writ has been used for more than five centuries
now. The writ of amparo has been used in Mexico in mid-19th century.
Compared to those two, the writ of habeas data has a very short history.1
The writ of habeas corpus can be traced way back to as early as 1215 in the
United Kingdom and subsequently codified in 1679;2 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. A comparative law scholar has
described habeas data as “a procedure designed to safeguard individual
freedom from abuse in the information age.”3
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
1 See Andres Guadamuz, Habeas Data and the European Data Protection Directive, THE JOURNAL
OF INFORMATION, LAW AND TECHNOLOGY (JILT) (2001).
2 The Habeas Corpus Act of 1679. See 1 BLACKSTONE, COMMENTARIES 131 (1st ed. 1765-1769).
3 ENRIQUE FALCON, HABEAS DATA: CONCEPTO Y PROCEDIMIENTO 23 (1996) (translation provided).
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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.
Looking at the landscape of several Latin American countries, one
will find that the writ of habeas data has been embedded as a direct
constitutional right.4 The scope and concept of this writ vary 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, honor,
information self-determination and freedom of information of a person.
The first Latin American country to adopt the writ of habeas data is
the Federal Republic of Brazil. In 1988, the Brazilian legislature voted a new
Constitution, which included a novel right: the right to initiate a habeas data
complaint on the part of a citizen. It is expressed as a full constitutional right
under Article 5, Title II of the 1988 Brazilian Constitution, which I quote:
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.5
This constitutional provision was further bolstered by Brazil’s
National Congress in a 1997 regulatory law (Congreso Nacional de Brasil,
Lei 9507).
4 Andreas Guadamuz, Habeas Data: An Update on Latin America Data Protection Constitutional
Right, paper presented during the 16th BILETA Annual Conference, Edinburgh, Scotland, April 9-
10, 2001.
5 1988 Constitution of the Federal Republic of Brazil, Art. 5, §71. Available online at:
http://www.georgetown.edu/LatAmerPolitical/Constitutions/Brazil/brtitle2.html (last accessed
November 15, 2007).
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Following the Brazilian example, Colombia incorporated the habeas
data right in its 1991 Constitution. The 1991 Colombian Constitution, as
reformulated in the 1997 version, 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.”6 In due time, many countries followed suit and adopted the
new legal tool in their respective constitutions: Paraguay in 1992, Peru in
1993, Argentina in 1994, and Ecuador in 1996.
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.7
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.”8
6 1997 Colombian Constitution, Art. 15 (Constitucion Politica de Colombia), available online at
http://www.georgetown.edu/LatAmerPolitical/Constitutions/Colombia/Colombia.html (last
accessed November 15, 2007).
7 1992 Paraguay Constitution, Art. 135, translated by Peter Heller, available online at
http://www.uni-wuezburg.de/law/pa00t__.html (last accessed November 15, 2007).
8 Id.
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The Peruvian Constitution also recognizes the writ of habeas data. In
Article 200, Section 3 of the Constitution of Peru, a similar provision much
like Brazil’s and Paraguay’s can be found. More than that, their legislature
was quick enough to provide for a regulatory law that took effect on April
18, 1995. 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.”9 In
this model, the habeas data remedy may be enforced against automated or
digitized records.
In Argentina, the writ of habeas data is not specifically called
“habeas data” but is subsumed by the Argentine writ of amparo. Under
Article 43 of the Argentine Constitution, entitled “The Writ of Amparo” or
protection, it is stated thus:
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.10
The Argentine version, though not called habeas data, is more
comprehensive than other Latin American models. Like the Paraguay
model, the Argentine version includes the judicial remedy to enforce one’s
right to access, rectify, update, or destroy the data. This model also
9 1993 Peruvian Political Constitution (Constitucion Politica del Peru), Art. 2, §6.
10 Constitution of the Argentine Nation of 1853, as amended by the 1994 Constitutional Reform,
Article 43 (as translated by the Argentine Congress).
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guarantees the confidentiality of personal or private information and makes
specific the protection of journalistic privilege, of the lofty democratic role
of the press.
Several studies in legal literature deal with the varying effects of the
writ of habeas data. Legislatures in Latin America and in Europe are
constantly reviewing the parameters of the writ and the extent of its
regulation. The writ ought to be constantly reviewed, especially in this age
of Information Technology, when privacy can easily be pierced by the push
of a button. But these studies undeniably show that the writ of habeas data
has become “an excellent Human Rights tool mostly in the countries that are
recovering from military dictatorships.”11
In Paraguay, for instance, an action for a writ of habeas data was 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 decision established a right to truth.
The right to truth is fundamental to citizens of countries in transition
to democracy, especially those burdened by legacy of massive human rights
violations. This right entitles the families of disappeared persons to know the
totality of truth surrounding the fate of their relatives. The exercise of the
right is particularly crucial in disappearances driven by politics, because they
11 Guadamuz, Habeas Data, n.43.
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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 law tradition. Justice that is not rooted in truth is
injustice in disguise. That kind of justice will not stand the test of time, for it
is not anchored on reality but on mere images.
Recently, the Supreme Court En Banc promulgated the Rule on the
Writ of Amparo. The Philippine version of the writ of amparo is designed to
protect the most basic right of a human being, which is one’s right to life,
liberty and security guaranteed by all our Constitutions starting with the
1898 Declaration of Philippine Independence and the Universal
Declaration of Human Rights of 1948. We are studying further how to
strengthen the role of the judiciary as the last bulwark of defense against
violation of the constitutional rights of our people especially their right to
life and liberty by the use habeas data. It is our fervent hope that with the
help of the writ of habeas corpus, the writ of amparo and the writ of habeas
data, we can finally bring to a close the problem of extralegal killings and
enforced disappearances in our country, spectral remains of the Martial Law
regime.
A pleasant day to all.
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