REPUBLIC OF THE PHILIPPINESSUPREME COURT

MANILA

JOSE DE VENECIA III, CA-G.R. No. 00008 Petitioners,

- versus -

Armed Forces Of the Philippines (AFP), GEN. HERMOGENES ESPERON, in his capacity asAFP Chief , INTELLIGENCE SERVICE OF THEAFP (ISAFP), PHILIPPINE NATIONAL POLICE (PNP), P/DIRECTOR AVELINO RAZON, in his capacity as PNP Chief, SENATOR JUAN PONCE ENRILE, BENJAMINS. ABALOS, SR., JOHN AND JANE DOES, and ALL PERSONS ACTING ON THEIR BEHALF OR UPON THEIR INSTRUCTIONS OR ORDERS, Respondents. x ------------------------------------------------------------------ x

PETITION FOR WRIT OF HABEAS DATA

Petitioner, by counsel, respectfully states:

Parties

1. Petitioner Jose De Venecia III is of legal age, Filipino, and a resident of 1329

Palm Avenue, Dasmariñas Village, Makati City.

2. Public respondent Armed Forces of the Philippines (AFP), headed by Gen.

Hermogenes Esperon, is the military defense organization of the Republic of the

Philippines. It may be served with orders and processes at AFP-GHQ, Camp

Emilio Aguinaldo, Cubao, Quezon City.

3. Public respondent Intelligence Service of the Armed Forces of the Philippines

(ISAFP) is a support unit of the AFP engaged in intelligence and information

gathering. It may be served orders and processes at AFP-GHQ, Camp Emilio

Aguinaldo, Cubao, Quezon City.

4. Public respondent Philippine National Police (PNP), headed by P/Director

Avelino Razon, is the government organization tasked to implement the criminal

laws of the country and to ensure the safety of the public against the commission

of crimes and other offenses. It may be served with orders and other court

processes through the Office of the Chief of the PNP, Camp Crame, Cubao,

Quezon City.

5. Respondent Juan Ponce Enrile is an elected Senator of the Republic of the

Philippines. He may be served with orders and other court processes at Room 503

GSIS Bldg., Financial Center, Roxas Blvd., Pasay City.

6. Respondent Benjamin Abalos, Sr. is the former Chairman of the Commission on

Elections. He may be served orders and other court processes at Kanlaon Street,

Mandaluyong City.

7. Respondent John and Jane Does are persons acting for or on behalf of any of the

named respondents, or upon their instructions and/or orders.

Nature of the Case

8. This is a petition under A.M. No. 08-1-16-SC promulgated on 22 January 2008,

and which took effect on 2 February 2008.

9. Petitioner's right to privacy had been violated and is being violated by the

unlawful acts of public officials, hence, his recourse by way of the present petition

as sanctioned by Section 1 of A.M. No. 08-1-16-SC.

Statements of Facts

10. Petitioner divulged apparent wrong-doings and testified before the Senate during

its hearings regarding the Government's National Broadband Network (NBN)

Project and exposed the anomalous contract entered into by the Republic of the

Philippines and Zhong Xing Telecommunications Equipment (ZTE) Corporation

of China. The NBN is the proposed public telecommunications infrastructure to

deliver voice, data, video, and internet services to link government agencies and

offices to one another.

11. After petitioner and the other witnesses had revealed to the Senate the perceived

corruption that attended the NBN deal and the active involvement of President

Gloria Macapagal-Arroyo and her husband, First Gentleman Jose Miguel ”Mike”

Arroyo in that contract, petitioner started to receive death threats.

12. In his testimony before the Senate, petitioner likewise implicated respondent

former Commission on Elections Chairman Benjamin Abalos, Sr. as the public

official who facilitated the NBN-ZTE deal, and who requested for and received

bribe money from ZTE officials. In the course of his testimony, petitioner

identified and affirmed an affidavit, which highlighted the material points of

respondent Abalos' involvement in the deal.

A copy of the affidavit executed by petitioner is attached as Annex A.

13. As stated in his affidavit, petitioner, whose company, Armsterdam Holdings,

Incorporated (AHI) had submitted an unsolicited proposal for a Build-Own-and-

Operate scheme for the creation of the National Broadband Network.

14. Sometime in February 2007 or thereabouts, however, things turned sour between

AHI and the Abalos-ZTE group. In particular, petitioner narrated in his affidavit:

A few days later, however, Chairman Abalos called me up and started

screaming shouting invectives at me. He said “Salbahe kang bata ka. Putang ina

mo, kung alam lang ng tatay mo ang ginagawa mo, putang ina mo.” I was

bewildered where all of this was coming from, until in the middle of his ranting,

he said that “I tapped your telephone.” I responded, “Isn't that illegal?” He said,

“gusto mo ng transcript?'” and I said I certainly would like to have a copy.

Apparently, he got angry because he found out from my phone calls that I had

mentioned to several AHI personnel, as well as AHI's partners that we were

having difficulty with the NBN contract because he (Chairman Abalos) wanted a

$130 million dollar kickback from the project. While this was extant from

Chairman Abalos' foul language while we talked, I never received a copy of the

alleged transcript of the conversation which Chairman Abalos said he would send.

Petitioner also received reliable information that the operatives of the AFP,

ISAFP, and PNP were monitoring his movements and tapping his private

conversations in telephone and cellular lines in his home and work. Petitioner did

not doubt the capability of the AFP, PNP, and particularly the ISAFP, to conduct

wiretapping operations.

15. Sometime in February 2008, petitioner received word that a recording of what

purported to be a wiretapped telephone conversation between himself and another

key witness against the anomalous NBN-ZTE deal, Mr. Rodolfo Noel Lozada, Jr.

(Jun Lozada), was uploaded in the popular internet website, YouTube. Said

purported conversation may be viewed at http://www.youtube.com/watch?

v=A06pJm7Fp2Q. Petitioner suddenly recalled the “threat” uttered by respondent

Abalos, to the effect that the latter had petitioner's telephone wiretapped.

16. The Senate investigation hearings, which commenced in September 2007,

continued to the following months and up to the present. During the last Senate

hearing on 11 March 2008, the issue of wiretapping was again brought up in the

course of questioning by Senator Panfilio Lacson, thus:

SEN. LACSON. Just a quick question for Mr. De Venecia bago natin

iwanan. When did you first find out that your cellphone was being

wiretapped?

MR. DE VENECIA. I was called by Chairman Abalos after the

Shenzen visit. Okay. It's a few days after February 13, Mr. Chairman,

when I received the call from Chairman Abalos where he was

screaming at me for talking about the $130 million overpricing.

SEN. LACSON. Were you able to listen to some wiretapped

conversations between you and several other personalities? For

example, with Chairman Abalos.

MR. DE VENECIA. Well, I asked him for a transcript when he told me

he wiretapped the phone and he never gave me a transcript. And then I

saw the Crying Babies wiretapped – between myself and Jun Lozada.

And I hadn't bothered listening to any – of all the other conversations

because I don't want to dignify wiretapped conversations.

SEN. LACSON. Did you have a chance to listen to a portion of that

conversation with Chairman Abalos that was played this morning?

MR. DE VENECIA. No, I had not.

SEN. LACSON. 'Yong context nag-a-apply yatang messenger sa iyo,

do you remember that na he wanted to be part of the operations na

maski messenger man lang. In gist [sic], of course, in gist [sic].

MR. DE VENECIA. When he offered me the $10 million and I said

“No,” I said, “I can invite you to be an independent director of

Armsterdam Holdings if it wins the bidding for the broadband

network.”

SEN. LACSON. I would suggest you listen to some conversations, so,

next time around, you can more or less confirm the context of your

conversation or conversations with Chairman Abalos and other

personalities.

MR. DE VENECIA. Yes, I will, Your Honor.

A copy of the relevant portions of the transcripts of stenographic notes of the Senate

Investigation conducted on March 11, 2008 (4:23 p.m.) is attached as Annex B.

17. Petitioner subsequently found out that Senator Lacson was referring to another

recording of what purported to be a wiretapped telephone conversation between

the former and respondent Abalos, also uploaded to YouTube. The same recording

may be viewed at http://www.youtube.com/watch?v=r8wKGrEYb0U&NR=1.

18. In the same Senate hearing of 11 March 2008, the matter of wiretapped

conversations again surfaced when respondent Senator Juan Ponce Enrile

questioned petitioner about several telephone conversations that he purportedly

had with several other persons. Thereafter, respondent Senator Enrile threatened

to broadcast recordings of wiretapped conversations between petitioner and

several other persons. Relevant portions of the questioning of Senator Enrile are

hereunder quoted:

SEN. ENRILE. Okay. Did you talk to someone – a certain Farley to

find a way to influence Secretary Formoso?

MR. DE VENECIA. No, I have not.

SEN. ENRILE. Over the phone?

MR. DE VENECIA. No,but Farley Ampil – if you're referring to Farley

Ampil, works for my old company, Broadband Philippines.

SEN. ENRILE. Correct, I know that.

MR. DE VENECIA. Yes.

SEN. ENRILE. I talked to him.

MR. DE VENECIA. Yes.

SEN. ENRILE. And he told me – he identified your voice in that

conversation.

MR. DE VENECIA. What conversation is that, Your Honor?

SEN. ENRILE. I'm going to play it here one day.

MR. DE VENECIA. Is that a -

SEN. ENRILE. You called him.

MR. DE VENECIA. Is that a wiretapped conversation?

SEN. ENRILE. I don't know.

MR. DE VENECIA. It might have.

SEN. ENRILE. It came to me, I will explain to you. I'll play it. You can

file the case and I'll face the music. I see you know Farley Ampil.

MR. DE VENECIA. Yes, Farley Ampil used to be working for

Broadband Philippines.

SEN. ENRILE. And you called him up, you asked him if he could – if

there's a way to, if he knows Undersecretary Formoso and he said – he

told you “Yeah, I know him. I can handle him.” Do you remember that

conversation?

MR. DE VENECIA. I've never asked Atty. Ampil to handle anything

for me in government, Your Honor.

SEN. ENRILE. No, I'm asking only about Formoso.

MR. DE VENECIA. Well, Asec. Formoso is an employee of the

government, Your Honor.

SEN. ENRILE. Yeah, okay. And do you remember also in that in the

same conversation you talked to a certain Sonny and talked about a

letter that is going to be sent to Larry Mendoza and Sonny said to you,

“Well, we have finished the letter. We're sending it and we removed

you[r] name from the executive summary.”

MR. DE VENECIA. There was no such discussion between me and

Sonny Garcia on the removal of my name on the – I believe this is the

letter that you're referring to that Sonny Garcia had written to Secretary

Mendoza and also you've implicated the Office of the Speaker in one of

the hearings, Your Honor. So my name was not mentioned. If I

remember correctly, Sonny Garcia said that he was referred to the

DOTC by the – one person from the Office of the Speaker. That's how I

remember it. But if he – Sonny Garacia works for me so I really don't

know what he said. If he used my name because he works for me, then

that's probable.

SEN. ENRILE. Anyway, I'm going to ask permission of the committee

to play that tape here, and I stand by it. This came to me by – it was

delivered to me, and I have it transcribed. I will supply the members of

the committee of the transcription.

MR. DE VENECIA. Yes, Your Honor.

A copy of the relevant portions of the transcripts of stenographic notes of

the Senate Investigation conducted on March 11, 2008 (7:18, 7:28 p.m.) is attached

as Annex C.

19. It is readily deducible from the foregoing quoted exchange that: a. respondent

Senator Enrile was confronting petitioner with purported statements and

conversations that he allegedly had over the telephone; b. respondent Senator

Enrile violated petitioner's constitutionally guaranteed right to privacy of

communication and correpondence, when he divulged what he believed to be

conversations between petitioner and othe persons, culled from an illegal “tape”

recording; and c. respondent Senator Enrile threatened to reveal more unlawful

wiretapped telephone conversations involving petitioner.

20. Petitioner never gave his consent to anyone to record any of his telephone

conversations with any person.

Ground Relied Upon for the Allowance of the Petitioner

I.

THE CONTINUED PUBLIC BROADCASTING, PUBLICATION, AND REFERENCE

TO PURPORTED ILLEGAL WIRETAPPED TELEPHONE CONVERSATIONS

INVOLVING PETITIONER, AS WELL AS THE CONTINUING THREATS TO

PUBLICLY DIVULGE MORE OF THESE PURPORTEDLY WIRETAPPED

CONVERSATIONS, VIOLATE PETITIONER'S CONSTITUTIONALLY-

GUARANTEED RIGHT TO PRIVACY.

Discussion

21. Section 1 of the Rule on the writ of Habeas Data states:

Section 1. Habeas Data. - The 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.

22. In the present case, at the very least, there had been and now again exists a serious

threatened violation of petitioner's right to privacy properly subject of the writ of

habeas data.

23. Section 3 of the Bill of Rights of our Constitution, among others, upholds every

citizen's right to privacy:

Section 3. (1) 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.

Any evidence obtained in violation of this or the preceding section shall be

inadmissible for any purpose in any proceedings.

24. This Honorable Court has consistently held:

Zones of privacy are recognized and protected in our laws. Within these zones,

any form of intrusion is impermissible unless excused by law and in accordance with

customary legal process. The meticulous regard we accord to these zones arises not only

from our conviction that the right to privacy is a “constitutional right” and “the right most

valued by the civilized men,” but also from our adherence to the Universal Declaration of

Human Rights which mandates that, “no one shall be subjected to arbitrary interference

with his privacy” and “everyone has the right to the protection of the law against such

interference or attacks.”

Our Bill of Rights, enshrined in Article III of the Constitution, provides at least

two guarantees that explicitly create zones of privacy. It highlights a person's “right to be

let alone” or the “right to determine what, how much, to whom, and when information

about himself shall be disclosed. Section 2 guarantees “the right of the peopleto be secure

in their persons, houses, papers, and effects against unreasonable searches and seizures of

whatever nature and for any purpose.” Section 3 renders inviolable the “privacy of

communication and correspondence” and further cautions that “any evidence obtained in

violation of this or the preceding section shall be inadmissible for any purpose in any

proceeding.

25. In Lourdes T. Marquez vs. Hon. Aniano A. Desierto, et al,. this Honorable Court

had occasion to rule:

Zones of privacy are recognized and protected in our laws. The Civil Code

provides that “[e]very person shall respect the dignity, personality, privacy, and peace of

mind of his neighbors and other persons” and punishes as actionable torts several acts for

meddling and prying into the privacy of another. It also holds a public officer or

employee or any private individual liable for damages for any violation of the rights and

liberties of another person, and recognizes the privacy of letters and other private

communications. The Revised Penal Code makes a crime of the violation of secrets by an

officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of

privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank

Deposits Act, and the Intellectual Property Code.

26. Respondent Senator Enrile publicly confronted petitioner regarding statements

that the latter purportedly made in the course of various telephone conversations.

Respondent Senator Enrile further made mention and invoked as his source a

supposed “tape” recording of such conversation. Worse, in the course of the

Senate hearing of 11 March 2008, he publicly threatened to publicly air the

purported tape recordings of wiretapped telephone conversations involving

petitioner. These acts of Senator Enrile, constitutes violations of Republic Act No.

4200, otherwise known as the Anti-Wiretapping Act, which provides penal

sanctions for defined instances of invasions of privacy, thus:

Section 1. It shall be unlawful for any person, not being

authorized by all the parties to any private communication or

spoken word, to tap any wire or cable, or by using any other

device or arrangement, to secretly overhear, intercept, or record

such communication or spoken word by using a device

commonly known as a dictaphone or dictagraph or detectaphone

or walkie-talkie or tape recorder, or however otherwise

described:

It shall also be unlawful for any person, be he a participant or not

in the act or acts penalized in the next preceding sentence, to

knowingly possess any tape record, wire record, disc record, or

any other such record, or copies thereof, of any communication

or spoken word secured either before or after the effective date of

this Act in the manner prohibited by this law; or to replay the

same for any other person or persons; or to communicate the

contents thereof, either verbally or in writing, or to furnish

transcriptions thereof, whether complete or partial, to any other

person: Provided, That the use of such record or any copies

thereof as evidence in any civil, criminal investigation or trial of

offenses mentioned in Sec. 3 hereof, shall not be covered by this

prohibition.

Sec. 2. Any person who wilfully or knowingly does or who shall

aid, permit, or cause to be done any of the acts declared to be

unlawful in the preceding Sec. or who violates the provisions of

the following Sec. or of any order issued thereunder, or aids,

permits, or causes such violation shall, upon conviction thereof,

be punished by imprisonment for not less than six months or

more than six years and with the accessory penalty of perpetual

absolute disqualification from public office if the offender be a

public official at the time of the commission of the offense, and,

if the offender is an alien he shall be subject to deportation

proceedings.

27. Respondent Senator Enrile categorically admitted in the course of the Senate

investigation on the NBN-ZTE deal last 11 March 2008 that he is in possession of

the purported “tape” recording of supposed conversations between petitioner and

other persons.

28. If only upon this basis, the Honorable Court is duty bound to issue the writ prayed

for. Clearly, petitioner's right to privacy is threatened by an unlawful act of a

public official, no less than an elected Senator of the Republic.

29. The writ prayed for likewise ought to issue against respondent Abalos, who, while

not anymore a public officer, having since resigned his post as Chairman of the

Commission on Elections in the face of impeachment charges leveled against him,

was the first person from whom petitioner learned that his telephone

conversations were purportedly being recorded without his consent. In fact, it is

petitioner's sworn testimony before the Senate that respondent Abalos himself

admitted that he was the one who caused the wiretapping of petitioner's cellular

phone.

30. The writ must likewise issue against respondents AFP, PNP, and ISAFP,

considering that these are the known government military arms with wiretapping

capabilities, and are known to perform such wiretapping activities in the regular

course of their operations.

31. Respondents' collective actions constitute unwarranted intrusions on petitioner's

right to security and privacy. It should be noted that the circulation of supposed

wiretapped materials purportedly bearing petitioner's conversations with other

persons signifies the blatant and unjustified incursion on petitioner's private

conversation.

Petitioner should not be held hostage by these schemes that are all directed

at encroaching upon the privacy of his communication while at the same time

damaging the credibility of the testimony he provided to the Senate. Respondents

should thus be directed to produce these illegally obtained wiretapped

conversations and ultimately be held liable for their criminal acts.

32. Upon the foregoing, it is plain that petitioner is entitled to the reliefs being prayed

for in this Petition as it is clear that his right to privacy and security are threatened

by the unlawful acts of respondents.

Respondents should produce the wiretapped conversations and thereafter be held liable

for their criminal act of gathering data and information against petitioner without the

authority required by law.

They should also be ordered to desist from committing any other act that constitutes

unjustified and unwarranted invasion of petitioner's constitutional right to security and

privacy.

RELIEF

WHEREFORE, it is respectfully prayed that after due proceedings, judgment be

rendered:

a) Enjoining respondents to produce all materials including recordings and

transcriptions thereof, in their possession obtained through their wiretapping

activities on petitioner's private communication;

b) Enjoining respondent Senator Juan Ponce Enrile from carrying out his threat to

publicly broadcast supposed wiretapped conversations involving petitioner; and

c) Ordering respondents to cease all their harassment and surveillance activities

against petitioner.

Petitioner prays for further reliefs just or equitable under the circumstances.

Makati City for Manila, 26 March, 2008.