Pre-Bar Quizzer in Political Law – PART 2: Constitution of Liberty 41 – 50

41. Under the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007, may police authorities the 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 of a person without violating the right to privacy?

          Yes under Sections 7 and 8 of the law which provides:

          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.

          Section 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.

 

42. Under the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007, may police authorities examine the bank accounts of individuals without violating their right to privacy?

          Yes under Sections 27 and 28 of the said law. It provides:  

          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.

 

43. May a wife validly seize the diaries, checks and greeting cards of the alleged paramours of her husband and use the same as evidence in a legal separation case between them?

          As held in ZULUETA VS. CA, February 10, 1996, the evidence obtained by the wife who forcibly opened the drawers at the clinic of her doctor-husband and took diaries, checks and greeting cards of his alleged paramours is inadmissible as evidence.   This is so because the intimacies of husband and wife does not justify the breaking of cabinets to determine marital infidelity.

 

43. Is the freedom of speech and expression affected by the Human Security Act?

          Yes, under Section 26 of the law, it provides that persons who have been charged with terrorism or conspiracy to commit terrorism—even if they have been granted bail because evidence of guilt is not strong—can be: “Prohibited from using any cellular phones, computers, or other means of communications with people outside their residence.”

 

44. What is the rule on criticisms on the acts of public officers?

          A public official should not be too onion-skinned with reference to comments upon his official acts. The interest of the government and the society demands full discussion of public affairs. (US vs. Bustos, 37 Phil. 731)

 

45. May the above rule applicable to private individuals who are public figures or private individuals who are candidates for public office?

         As held by the Supreme Court in the case of BAGUIO MIDLAND COURIER & CECILLE AFABLE VS. COURT OF APPEALS & RAMON LABO, JR., 444 SCRA 28 [November 25, 2004 , the article involving a private individual running for Mayor of Baguio City is still within the mantle of protection guaranteed by the freedom of expression provided in the Constitution since it is the public’s right to be informed of the mental, moral and physical fitness of candidates for public office. This was recognized as early as the case of US VS. SEDANO, 14 Phil. 338 [1909] and the case of NEW YORK TIMES VS. SULLIVAN, 376 U.S. 254 where the US Supreme Court held:

          “It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the State and to society of such discussions is so vast, and the advantages derived so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great and the chance of injury to private character so small, that such discussion must be privileged.”

                   Clearly, the questioned articles constitute fair comment on a matter of public interest as it dealt with the character of the private respondent who was running for the top elective post in Baguio City at that time.

 

46. May the COMELEC validly prohibit columnists, radio announcers and TV commentator for commenting for or against any issue during the plebiscite period since they can air their views in a program sponsored by the COMELEC itself?

No, such would be an undue interference on the freedom of expression. IT IS STILL A RESTRICTION ON THE COLUMNIST, ANNOUNCER OR COMMENTATOR’S CHOICE OF THE FORUM WHERE HE MAY EXPRESS HIS VIEW. Plebiscite issues are matters of public concern and importance. The people’s right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, INCLUDING THE FORUM. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised. (PABLITO V. SANIDAD VS. COMELEC, G.R. NO. 90878, January 29, 1990)

 

47. What are the requisites that a newspaper must comply in order that its news item on an ongoing trial in court will not be actionable for being libelous?

          In Elizalde vs. Gutierrez,76 SCRA 448, it was held that in order that any news item relating to a judicial proceeding will not be actionable, the same must be [a] a true and fair report of the actual proceedings; [b] must be done in good faith; and [c] no comments nor remarks shall be made by the writer}

 

48. What are the tests of obscenity?

          The three (3) tests as held in Miller vs. California, 37 L. Ed. 2d 419 are:

  1. Whether the average person applying to contemporary community standards would find the work appeals to prurient interest;
  2. Whether the work depicts or describes a patently offensive sexual conduct;
  3. Whether the work as a whole lacks serious literary , artistic, political or scientific value.

          

49. May the City Mayor order the confiscation without a search warrant magazines which he believes to be obscene? What is the correct procedure for him to follow?

          No.   (Pita vs. CA, 178 SCRA 362). A City Mayor may not order the warrantless seizure of magazines which he believes to be obscene; otherwise, he will become the complainant, prosecutor and judge at the same time. He should obtain a search warrant from a judge by following the procedure laid down by the Rules on how to secure a search warrant.

 

50. May public school teachers validly file mass leaves, instead of going on strike, after their demand to the government was not met.

          In GESITE et al. vs. COURT OF APPEALS, 444 SCRA 51 held that “these mass actions were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers’ duty to perform, undertaken for essentially economic reasons.” It is undisputed fact that there was a work stoppage and that petitioners’ purpose was to realize their demands by withholding their services. The fact that the conventional term “strike” was not used by the striking employees to describe their common course of action is inconsequential, SINCE THE SUBSTANCE OF THE SITUATION, AND NOT ITS APPEARANCE, WILL BE DEEMED CONTROLLING.

          The right of government employees to organize IS LIMITED TO THE FORMATIONS OF UNIONS OR ASSOCIATIONS ONLY, WITHOUT INCLUDING THE RIGHT TO STRIKE. (Bangalisan vs. CA, 276 SCRA 619)

 

Source:

Pre-Bar Quizzer in Political Law (Doctrinal Rulings, Requisites and Definitions)

July, 2008 by Atty. Larry D. Gacayan

College of Law, University of the Cordilleras

Baguio City

 

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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 July 8, 2014, in Political Law and tagged . Bookmark the permalink. 2 Comments.

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