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 IV)
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.
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.
On the other hand, the Philippines ratified the ICCPR on October 23, 1986. Treaties become legally binding once ratified according to the provisions of the constitution of the State Parties. In the Philippines, treaties become valid and binding when concurred in by at least two-thirds of all Senate members. On the day of the raid on March 3, 1986, none of the two international instruments could effectively provide for protection to Dimaano following Carpio’s positivist view since the UDHR is not a treaty and its provisions are not binding law while the ICCPR had no valid and binding effect yet at that time. The Court, therefore, committed a grave error that opened the floodgates to the practice of importing laws from other jurisdictions that have no binding effect in the country.
Although Republic v Sandiganbayan appears to be a flawed positivist approach to human rights, the ponencia passed the crucible of logic at the Supreme Court’s hallowed grounds mostly because the esteemed jurors concurred in the result, and not necessarily in the ratio decidendi. However, Justice Puno’s well-argued naturalist approach to human rights comes out more persuasive in the resolution of the issue on the legality of the search of Dimaano’s residence. I concur with his view that the rights enunciated in the Bill of Rights under the 1973 Constitution were not totally obliterated and taken away from the Filipino people during the interregnum. There was a need to use international law as a sword. This thesis is grounded on the fact that even though Aquino’s revolutionary government replaced the Marcos government, the change only involved a change of personalities but not a change of structure since the offices of the executive branch have been retained, the judiciary has been allowed to function, the military, as well as the constitutional commissions and local governments, have remained intact.
Whether Aquino’s revolutionary government intended to disregard the Bill of Rights completely is something that we can readily decipher from its actions and issuances, and the answer is in the negative. No less than the Provisional Constitution has explicit statements recognizing the individual rights protected under the 1973 Constitution. Although signed after the raid and the questioned seizure, the said Constitution expressly adopted the Bill of Rights under the 1973 Constitution. It was among the provision declared therein to remain in force and effect. This express pronouncement was contextualized under Whereas Clause which states that the direct mandate of the people demands restoration of democracy and protection of basic rights, among others, and that during the transition to a New Constitution it must be guaranteed that the government will respect basic human rights and fundamental freedoms.
It is to be noted further that under Section 1, Article IV of the Freedom Constitution, “all existing laws, decrees, executive orders, proclamations, letters of instruction, implementing rules and regulations, and other executive issuances not inconsistent with this Proclamation shall remain operative until amended, modified, or repealed by the President or the regular legislative body to be established under the New Constitution.”
The foregoing textual provisions of the Freedom Constitution refute Justice Carpio’s pronouncement that there was no municipal or national law that can protect the people’s rights since, after all, the Bill of Rights and related issuances and jurisprudence remained intact during the interregnum.