by: Atty. Gregorio B. Austral, CPA
The Right Against Unreasonable Search and Seizure: A Search for the Proper Basis of Protection in the Absence of a Constitution
(Part III)
AUTHOR’S NOTE:
I am sharing to you a paper which I have written in my masteral degree subject in International Law and Policy at the San Sebastian College Recoletos-Manila Graduate School of Law. Due to space and layout limitations, the references are omitted. Complete citations are available in the original text of the paper.
IV. THE SEARCH FOR THE BASIS OF PEOPLE’S RIGHTS DURING THE INTERREGNUM
The foregoing status of every Filipino’s rights during the interregnum seems to have never occurred in the people’s minds when they installed the revolutionary government through EDSA People Power. The Court in Republic v Sandiganbayan recognizes the people’s right of revolution as an inherent right of a people to cast out their rulers, change their policy or effect radical reforms in their system of government or institutions by force or a general uprising when the legal and constitutional methods of making such change have proved inadequate or are so obscured as to be unavailable.
Carpio bluntly described the status of the same people’s rights who installed the revolutionary government as something that is subjugated at the mercy of the revolutionary government. Thus, armed with a noble aim of recovering the ill-gotten wealth of the dictator, the PCGG, with Aquino’s marching order, intruded the houses of Marcos’ cronies and their cohorts and violated their sanctity without regard to the privacy of the persons residing therein since there was no Bill of Rights to speak of during the interregnum.
The declaration in Republic v Sandiganbayan of the absence of municipal or national law that can protect the people’s rights is worrisome, if not problematic, and seems to contradict to the Court’s ruling in the same case that recognizes that “the locus of positive law-making power lies with the people of the state” and from there is derived “the right of the people to abolish, to reform and to alter any existing form of government without regard to the existing constitution.” How come the people who catapulted Aquino into power lost their constitutionally protected rights during the interregnum caused by the transition from the 1973 Constitution to the Freedom Constitution?
Justice Carpio’s positivist approach of the Bill of Rights in the Constitution disregards the nature of human rights as natural rights. They are possessed by every citizen without being granted by the state for they are conferred upon him by the Creator as a human being so that he may live a happy life. A citizen’s rights under a democratic state belong to man by virtue of his nature, are viewed as inherent and inalienable, existing independently of all human authority. Examples are the right to life, liberty, and property, and the right to love.
I beg to differ with Justice Carpio’s view that the Filipino people who were the very same people who installed Aquino’s revolutionary government lost their rights as human beings simply by the abrogation of the 1973 Constitution. With this thesis, the Filipino people who are the very source of the power of Aquino’s revolutionary government have sacrificed the core of their humanity and traded their rights to create a government that wantonly tramples upon their rights, which Father Bernas aptly described as the “vice of disregarding the Bill of Rights.”
Although the Supreme Court did not renege on its duty as the vanguard of the people’s rights, it filled the perceived lacuna of human rights in the Philippines by using international law as a sword. This approach follows what Professor Nollkaemper described as the concept of direct effect of international law. As a sword, international law pierced the boundary of the national legal order. The holding in Republic v Sandiganbayan paved the way for the importation of human rights in the Philippines under a positivist approach from international instruments such as the International Covenant on Civil and Political Rights (“ICCPR”) and the Universal Declaration of Human Rights (“UDHR”).
The problem with Justice Carpio’s positivist approach to human rights despite their being a birthright of the Filipino people is the need for an enacted source before the Court can cover an aggrieved individual with its protective mantle, or in its absence, the necessity to import the rights from somewhere else. The ratio decidendi in Republic v Sandiganbayan throws away a decade of jurisprudence which forms part of the law of the land, the Rules of Court promulgated by the Supreme Court itself, the laws and statutes enacted by Congress as well as the administrative rules and regulations that shielded the people from the abusive conduct of those who are in power.
In Justice Puno’s Separate Opinion quoting the American Revolution patriots, he stressed that “liberties do not result from charters; charters rather are in the nature of declarations of pre-existing rights.” Puno described the UDHR as a systematic attempt to secure universal recognition of a whole gamut of human rights but stressed that it is not a treaty and its provisions are not binding law but is a compromise of conflicting ideological, philosophical, political, economic, social and juridical ideas which resulted from the collective effort of 58 states on matters generally considered desirable and imperative.