Constitutional Law Chapter V – The Right to Privacy

CONSTITUTIONAL LAW

CHAPTER V – THE RIGHT TO PRIVACY

Section 3. 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 proceeding.

Read:

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically suspended one (1) month before and two (2) months after the holding of any election).

Please observe the procedure in obtaining the “The Warrant [or Order] of Surveillance”, not found in the 1987 Philippine Constitution.

SURVEILLANCE OF SUSPECTS AND INTERCEPTION AND RECORDING OF COMMUNICATIONS OF SUSPECTS OR CHARGED OF TERRORISM

Section 7. Surveillance of suspects and interception and recording of communications. The provisions of RA 4200 (Anti-Wiretapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form or kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways or means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.

Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

Section 8. Formal Application for Judicial Authorization.- The written order of the authorizing division of the Court of Appeals to track down, tap, listen, intercept, and record communications, messages, conversations, discussions, or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism, shall only be granted by the authorizing division of the Court of Appeals UPON AN EX-PARTE written application of a police or law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex-parte application, and upon examination under oath and affirmation of the applicant and the witnesses who may produce to establish:

  • That there is probable cause to believe based on personal knowledge of facts and circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed;
  • That there is probable cause to  believe based on personal knowledge of facts and circumstances that evidence which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of any such crimes, will be obtained; and
  • That there is no other effective means readily available for acquiring such evidence.

Sec. 9. Classification and Contents of the Order of the Court. The written order granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original application of the applicant, including his application to extend or renew, if any, and the written authorizations of the Anti-Terrorism Council shall be deemed and are hereby declared as classified information: Provided, That the person being surveilled or whose communications, letters, papers, messages, conversations, discussions, spoken or written words and effects have been monitored, listened to, bugged or recorded by law enforcement authorities has the right to be informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference before the Court of Appeals which issued said written order. The written order of the authorizing division of the court of Appeals shall specify the following:

  • The identity, such as name and address, if known, of the charged of suspected persons whose communications, messages, conversations, discussions, or spoken or written words are to be tracked down, tapped, listened to, intercepted or recorded and, in case of radio, electronic, or telephone (whether wireless or otherwise) communications, messages, conversations, discussions, or spoken or written words, the electronic transmission systems or the telephone numbers to be tracked down, tapped, listened to, intercepted, and recorded and their locations if the person suspected of the crime of terrorism or conspiracy to commit terrorism is not fully known, such person shall be subject to continuous surveillance  provided there is reasonable ground to do so;
  • The identity (name and address, and the police or law enforcement organization) of the members of his team judicially authorized to track down, tap, listen to, intercept, and record the communications, messages, conversations, discussions, or spoken or written words;
  • The offense or offenses committed, or being committed, or sought to be prevented; and
  • The length of time which the authorization shall be used or carried out.

Section. 10. Effective Period of Judicial Authorization.  Any authorization granted by the authorizing division of the court of Appeals…shall only be effective for the length of time specified in the written order of the authorizing division of the Court of Appeals, which shall not exceed 30 days from the date of receipt of the written order of the authorizing division of the court of Appeals by the applicant police or law enforcement official.

The CA may extend or renew the said authorization for another non-extendible period, which shall not exceed 30 days from the expiration of the original period…The ex-parte application for renewal has been duly authorized by the Anti-terrorism Council in writing.

If no case is filed within the 30-day period, the applicant police or law enforcement official shall immediately notify the person subject  of the surveillance, interception, and recording of the termination of the said surveillance, interception and recording. [Penalty to be imposed on the police official who fails to inform the person subject of surveillance of the termination of the surveillance, monitoring, interception and recording shall be penalized to 10 years and 1 day to 12 years.

Section 15. Evidentiary Value of Deposited Materials. Any listened to, intercepted, and recorded communications, messages, conversations…WHICH HAVE BEEN SECURED IN VIOLATION OF THE PERTINENT PROVISIONS OF THIS ACT, SHALL ABSOLUTELY NOT BE ADMISSIBLE AND USABLE AS EVIDENCE AGAINST ANYBODY IN ANY JUDICIAL, QUASI-JUDICIAL, LEGISLATIVE, OR ADMINISTRATIVE INVESTIGATION, INQUIRY, PROCEEDING, OR HEARING.

JUDICIAL AUTHORIZATION TO EXAMINE BANK DEPOSITS, ACCOUNTS,  AND RECORDS OF SUSPECTED OR CHARGED TERRORISTS

Section 27. judicial authorization required to examine bank deposits, accounts and records.

The justices of CA designated as special court to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that:

  • A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • Of a judicially declared and outlawed terrorist organization or group of persons;
  • Of a member of such judicially declared and outlawed organization, association or group of persons, may authorize in writing any police or law enforcement officer and the members of his team duly authorized in writing by the anti-terrorism council to:

1.            examine or cause the examination of, the deposits, placements, trust accounts, assets, and records in a bank or financial institution; and

2.            gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals.

Sec. 28. Application to examine deposits, accounts and records.

The written order of the CA authorizing the examination of bank deposits, placements, trust accounts, assets and records:

  • A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • Of a judicially declared and outlawed terrorist organization or group of persons;
  • Of a member of such judicially declared and outlawed organization, association or group of persons, in a bank or financial institution-

-SHALL ONLY BE GRANTED BY THE AUTHORIZING DIVISION OF THE CA UPON AN EX-PARTE APPLICATION TO THAT EFFECT OF A POLICE OR LAW ENFORCEMENT OFFICIAL who has been duly authorized by the Anti-Terrorism Council to file such ex-parte application and upon examination under oath or affirmation of the applicant and his witnesses he may produce to establish the facts that will justify the need and urgency of examining and freezing the bank deposits, placements, trust accounts, assets and records:

  • Of A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • Of a judicially declared and outlawed terrorist organization or group of persons;
  • Of a member of such judicially declared and outlawed organization, association or group of persons.

Section 35. Evidentiary value of deposited bank materials.- Any information, data, excerpts, summaries, notes, memoranda, work sheets, reports or documents acquired from the examination of the bank deposits, placements, trust accounts, assets and records of:

  • A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • Of a judicially declared and outlawed terrorist organization or group of persons;
  • Of a member of such judicially declared and outlawed organization, association or group of persons,

-which have been secured in violation of the provisions of this Act, shall absolutely not be admissible and usable as evidence against anybody in any judicial, quasi-judicial, legislative or administrative investigation, inquiry, proceeding or hearing.

1. PEOPLE VS. CABALQUINTO, September 19, 2006, 502 SCRA 419

2. ZULUETA VS. CA, February 10, 1996

The wife forcibly opened the drawers at the clinic of her doctor-husband and took diaries, checks and greeting cards  of his alleged paramours. Thereafter, she used the same in their legal separation case. Said documents are inadmissible in evidence. This is so because the intimacies of husband and wife does not justify the breaking of cabinets to determine marital infidelity.

3. OPLE VS. TORRES, July 23, 1998

Puno, J.

Facts:

          On December 12, 1996, then President FIDEL V. RAMOS issued Administrative Order No. 308 entitled “ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM”.

The AO seeks to have all Filipino citizens and foreign residents to have a Population Reference Number (PRN) generated by the National Statistics Office (NSO) through the use of BIOMETRICS TECHNOLOGY .

The AO was questioned by Senator Ople on the following grounds:

1.            The establishment of the PRN without any law is an unconstitutional usurpation of the legislative powers of the Congress of the Philippines;

2.            The appropriation of public funds for the implementation of the said AO is unconstitutional since Congress has the exclusive authority to appropriate funds for such expenditure; and

3.            The AO violates  the citizen’s right to privacy protected by the Bill of Rights of the Constitution.

Held:

1.            The AO establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizens and foreign residents and therefore, it is supposed to be a law passed by Congress that implements it, not by an Administrative Order issued by the President. Administrative Power,  which is supposed to be exercised by the President, is concerned with the work of applying policies and enforcing orders as determined by  proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. Prescinding from the foregoing precepts, AO 308 involves a subject that is  not appropriate to be covered by an Administrative Order. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of the government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. The subject of AO 308 therefore is beyond the power of the President to issue and it is a usurpation of legislative power.

2.            The AO likewise violates the right to privacy since its main purpose is to provide a “common reference number to establish a linkage among concerned agencies through the use of BIOMETRICS TECHNOLOGY. Biometry is the science of the application of statistical methods to biological facts; a mathematical analysis of a biological data. It is the confirmation of an individual’s identity through a fingerprint, retinal scan, hand geometry or  facial features. Through the PRN, the government offices has the chance of building a huge and formidable information base through the electronic linkage of the files of every citizen. The data, however, may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist.

Further, the AO does not even tells us in clear and unequivocal terms how these informations gathered shall be handled. It does not provide who shall control and access the data and under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. The computer linkage gives other government agencies access to the information. YET, THERE ARE NO CONTROLS TO GUARD AGAINST LEAKAGE OF INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL PROGRAMS OF THE PARTICULAR COMPUTER SYSTEM IS BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR PENALTY, CAN MAKE USE OF THE DATA FOR WHATEVER PURPOSE, OR WORSE, MANIPULATE THE DATA STORED WITHIN THE SYSTEM.

AO No. 308 is unconstitutional since it falls short of assuring that personal information gathered about our people will be used only for specified purposes thereby violating the citizen’s right to privacy.

KILUSANG MAYO UNO VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006

BAYAN MUNA VS. EXECUTIVE SECRETARY EDUARDO ERMITA, ET AL., April 19, 2006 & June 20, 2006

Carpio, J.

President Gloria Macapagal-Arroyo issued Presidential Proclamation No. 420 that mandates the Adoption of a Unified, Multi-purpose Identification System by all Government Agencies in the Executive Department. This is so despite the fact that the Supreme Court held in an En Banc decision in 1998 OPLE VS. EXECUTIVE SECRETARY RUBEN TORRES Administrative Order No. 308[National computerized Identification Reference System] issued by then President Fidel V. Ramos that the same is unconstitutional because “a national ID card system requires legislation because it creates a new national data collection and  card issuance system, where none existed before”. The Supreme Court likewise held that EO 308 as unconstitutional for it violates the citizen’s right to privacy.

Based on the Ople ruling, the petitioners claimed that Proclamation No. 420 is unconstitutional on two (2) grounds:

a.            usurpation of legislative powers; and

b.            it infringes on the citizen’s right to privacy

Held:

The said Executive Order No. 420 does not violate the citizen’s right to privacy since it does not require all the citizens to be issued a national ID as what happened in AO 308. Only those dealing or employed with the said government entities who are required to provide the required information for the issuance of the said ID.

CAMILO L. SABIO vs. GORDON, G.R. No. 174340,  October 17, 2006, 504 SCRA 704

Sandoval-Gutierrez, J.

The Facts:

On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455),[1][4] “directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation (POTC),  Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors.”

On May 8, 2006, Chief of Staff  Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and Committee on Public Services.  The purpose of the public meeting was to deliberate on Senate Res. No. 455.[2][6]

On May 9, 2006, Chairman Sabio and other commissioners of the PCGG declined the invitation because of prior commitment.[3][7] At the same time, they invoked Section 4(b) of           E.O. No. 1 earlier quoted.

On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises where he was detained.

Hence, Chairman Sabio filed with the Supreme Court a petition for habeas corpus against the Senate Committee on Government Corporations and Public Enterprises and Committee on Public Services, their Chairmen, Senators Richard Gordon and Joker P. Arroyo and Members.

I S S U E S:

Is the investigation conducted on the petitioners violative of their right to privacy?

H E L D:

The claim of immunity is without merit.

Zones of privacy are recognized and protected in our laws.[4][46]  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 civilized men,”[5][47] 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.”[6][48]

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.”[7][49]   Section 2  guarantees  “the  right  of  the  people  to 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.”

In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion.[8][50]   Applying this determination to these cases, the important inquiries are: first, did the directors and officers of Philcomsat Holdings Corporation exhibit a reasonable expectation of privacy?; and second, did the government  violate  such  expectation?

The answers are in the negative. Petitioners were invited in the Senate’s public hearing to deliberate on Senate Res. No. 455, particularly   “on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their respective board of directors.”   Obviously, the inquiry focus on petitioners’ acts committed in the discharge of their duties as officers and directors of the said corporations, particularly Philcomsat Holdings Corporation.  Consequently, they have no reasonable expectation of privacy over matters involving their offices in a corporation where the government has interest. Certainly, such matters are of public concern and over which the people have the right to information.

This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest.   In Morfe v. Mutuc,[9][51] the Court, in line with Whalen v. Roe,[10][52] employed the rational basis relationship test when it held that there was no infringement of the individual’s right to privacy as the requirement to disclosure information is for a valid purpose, i.e., to curtail and minimize the opportunities for official corruption, maintain a standard of honesty in public service, and promote morality in public administration.[11][53] In Valmonte v. Belmonte,[12][54] the Court remarked that as public figures, the Members of the  former Batasang Pambansa enjoy a more limited right to privacy as compared to ordinary individuals, and their actions are subject to closer scrutiny.  Taking this into consideration, the Court ruled that the right of the people to access information on matters of public concern prevails over the right to privacy of financial transactions.  

Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporations, as well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate remedial measures and policy determination regarding PCGG’s efficacy.  There being no reasonable expectation of privacy on the part of those directors and officers over the subject covered by Senate Res. No. 455, it follows that their right to privacy has not been violated by respondent Senate Committees.

Let it be stressed at this point that so  long as the constitutional rights of witnesses, like Chairman Sabio and his Commissioners,  will be respected by respondent Senate Committees, it their duty to cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The unremitting obligation of every citizen is to respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify fully with respect to matters within the realm of proper investigation.

In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG’s nominees to Philcomsat Holdings Corporation, as well as its directors and officers, must comply with the Subpoenae Ad Testificandum issued by respondent Senate Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455.

Reference:

Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)

College of Law, University of the Cordilleras

Baguio City


[1][4]      Annex “E” of the Petition in G.R. No. 174318.

[2][6]      Annex “F” of the Petition in G.R. No. 174318.

[3][7]      Annex “G” of the Petition in G.R. No. 174318.

[4][46]     Marquez v. Desierto, G.R. No. 135882, June 27, 2001, 359 SCRA 772.

[5][47]               See Morfe v. Mutuc  No. L-20387, January 31, 1968, 22 SCRA 424.

[6][48]     Article 12 of the Universal Declaration of Human Rights. See also Article 17 (1) and (2) of the International Covenant on Civil and Political Rights.

[7][49]     Constitutional and Legal Systems of ASEAN Countries, Sison, Academy of ASEAN Law and Jurisprudence, 1990, at 221, citing I.R. Cortes, The Constitutional Foundations of Privacy, 7 (1970).

[8][50]     Burrows v. Superior Court of San Bernardino County, 13 Cal. 3d 238, 529 P 2d 590 (1974).   See Katz v. United states (1967), 389 U.S. 347, 350-352, 88 S. Ct. 507, 19 L. Ed. 2d 576; People v. Krivda (1971) 5 Cal. 3d 357, 364, 96 Cal. Rptr. 62, 486 P. 2d 1262; 8 Cal. 3d 623-624,105 Cal. Rptr. 521, 504 P. 2d 457. INSERT  Herrera’s Handbook on Arrest, Search and Seizure.

[9][51]     Supra.

[10][52]    429 U.S. 589 (1977).

[11][53]    Justice Puno, Lecture on Legislative Inquiry and Right to Privacy, p. 60.

[12][54]    170 SCRA 256 (1989)

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About Magz

First of all, I am not a lawyer. I'm a graduate of AB Political Science and went to the College of Law but stopped going to law school for some reasons. I'm a passionate teacher who has been teaching English to speakers of other languages and a person who likes writing and blogging. I lost some important files and software when my computer broke down so the reason I created this website is to preserve the notes, reviewers and digests I collected when I was at the law school and at the same time, I want to help out law students who do not have enough time to go and read books in the library.

Posted on May 13, 2011, in Constitutional Law and tagged . Bookmark the permalink. 1 Comment.

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