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 V – Last Part)
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.
V. FILLING THE VOID IN CASE OF A LACUNA
The unintended consequence in Republic v Sandiganbayan can now be put to rest under the 1987 Constitution. But just in case history repeats itself as we now have a predisposition to resort to people power if we are placed under a repressive regime, and in the absence of a saving clause under a transitory constitution, what legal order shall govern?
My thesis is that in the absence of a similar provision under the Freedom Constitution, the human rights protected under our current constitution shall continue to be enjoyed with no diminution by the Filipino people for as long as the ruling power espouses a democratic society. The automatic abrogation of political laws extensively explained in Macariola v Judge Asuncion and in the earlier case of Roa v Collector of Customs contemplates a transfer or change of sovereignty and not a change of government as in the case of Republic v Sandiganbayan.
The change brought about by overthrowing a dictator by the governed, like in the EDSA Revolution, is not a change in sovereignty but merely a change of government. Sovereignty resides in the same people possessed of their birthright as human beings. The government’s change should not result in people losing the essence of their humanity that any democratic government has the moral and legal duty to protect. The adoption of a new constitution by a revolutionary government, with or without a saving clause for the Bill of Rights, should not result in a state of lacuna where the Court is left scavenging for a source. For as long as the new government embraces democracy as its governance philosophy, there should be no substantial change in the legal order for the protection of human rights.
VI. THE RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE IN THE STATE OF LACUNA
Professor Romel Regalado Bagares cited Go Kim Cham v Valdez in pointing out that ‘the proceedings of the legislative, executive and judicial departments of a de facto government are good and valid and those judicial acts and proceedings that are not political in nature ‘remained good and valid’ even after liberation. As I argued earlier, the rights protected under the Bill of Rights are possessed by the Filipino people independently of such constitutional provision. The Bill of Rights is a mere affirmation of the existence of these rights rather than a grant or concession by the State to its citizens. Hence, the continuum of these rights as the Philippines transitions from one constitution to another is never broken.
For as long as courts function in a state of lacuna, the Rules of Court remains not as a source but as a mechanism for the enforcement of the right against unreasonable search and seizure. The 1985 Rules of Criminal Procedure prior to its 2000 amendment exhaustively provided for the rules on the issuance of a search warrant and the general rules for search and seizure. The 2000 Rules of Criminal Procedure supplied some refinements in the rules.
The Philippines has an abundance of jurisprudence on the right against unreasonable searches and seizures. U.S. v Arceo traced back the sanctity of a person’s house to the time-honored hallmark of free societies highlighting that the lowly peasant could proudly proclaim his humble abode as his castle, from which he could exclude the mighty monarch. The Court’s pronouncements that the right is extended to all persons, including aliens, whether accused of crime or not and even to artificial persons, like corporations, remain as precedents tested by time and by changes in the political landscape in the country. The requirements of a valid search warrant or warrant of arrest that have also been etched as part of the law of the land remain as non-negotiable requisites for any allowable derogation of a person’s right to the sanctity of his home.
Stonehill v Diokno stays as the seminal case adopting the exclusionary rule. Even in the later case of Disini v Executive Secretary where the Cybercrime Prevention Act of 2012 and may be considered as a case decided in the advent of advanced technology, the Court has consistently recognized the right against unreasonable searches and seizures as a protected zone of privacy.
VII. CONCLUSION
While it is apparent that Republic v Sandiganbayan provided an opportunity for the proponents of the legal positivist theory and of the natural law doctrine to lay their arguments once again in the arena of reason, the outcome of the case supports the universality and indivisibility of human rights that any established government has the duty to protect. Although the two camps are poles apart, there is a consensus on the existence of a right that calls for protection.
In their zeal to advance our people’s aspirations as a nation, state actors may have resorted to a means that cannot be justified with noble objectives. At this point, the judiciary is called upon to fulfill a crucial duty not just to preserve law and order, but more importantly, to protect the essence of humanity given flesh in the gamut of human rights.