SY 2011-2012, Second Semester
- OG @ http.gov.ph
- blog#2 privacy issue
- scenario regarding search & seizures in connection with child pornography in the Philippines
If the government through a mere executive order (EO No. 4) would publish a newly enacted law in the internet at http.gov.ph in lieu of publishing it in the Official Gazette and newspaper of general circulation, I submit it does not satisfy the publication requirement of the law. I think a legislative enactment for the amendment Art. II of the New Civil Code is needed in order for it to be binding.
However, if the intention of the Executive Order No. 4 to publish the Law in the internet for internet research or for information purposes only and the newly enacted Law will still be publish in the Official Gazette and newspaper of general circulation as required for its effectivity, I think an amendment is no longer required.
On the contrary, if the intent of the executive order is indeed in lieu of the publication requirement, it can always be a legal issue open for the Supreme Court’s wise interpretation and fair determination.
So much so, I am convinced that lawmakers of the Philippines should enact laws that would upgrade the present process not only in terms of publication requirement like the present controversy in order to conform with the new trends in technology. It is likewise necessary for the branches of the government to be innovative for the benefit of everyone.
WHETHER OR NOT PUBLICATION OF SUPREME COURT DECISIONS IN THE INTERNET WOULD BE AN INFRINGEMENT ON THE RIGHT TO PRIVACY OF THE PARTIES TO THE CASES DECIDED BY THE SUPREME COURT
Privacy is a basic right given to any Filipino as bestowed by virtue of the Constitutions’s Bill of Rights.
However, the right mentioned under Sections One, Two and Three (Sec.1,2 & 3) of the Constitution pertains to upholding the dignity of persons against unreasonable searches and seizures; the right to private communication and correspondence; and their inadmissibility in court proceedings if obtained in violation of said right.
The issue at hand is whether or not publication of SC decisions is considered a violation of the privacy right of persons whether natural or juridical specifically the parties to the cases being published.
The Supreme Court decisions are considered official acts. They are in fact being published already in books.
Section Seven (Sec. 7) of the Constitution also states that “the right of the people to information on matters of public concern shall be recognized. Access to official records, or to documents and paper pertaining to official acts, transactions, or decisions, as well as to government research data used as basic for policy development, shall be afforded the citizen, subject to such limitation as may be provided by law.
I am in favor of publication of SC decisions in the internet for easy access to everyone. I do not think such would be an invasion of privacy right of a person. Once a person was subjected to the jurisdiction of the court, that person is bound to it and its processes including publications of its outcome.
I believe public knowledge is more superior than private right when it comes to this issue for as long as the national security is not jeopardized.
Aside from judges, lawyers, law makers, law students, law researchers and among others, even ordinary people may benefit from this. People may be more knowledgeable about laws and procedures and on how the judiciary appreciates and interprets laws when they have free and easy access to jurisprudence. They will be more aware on how to properly react in their everyday encounter with law and life. I am positive that this is a win-win solution for more peace and order in the society. I believe publishing our jurisprudence in the internet brings more advantage than disadvantages.
As long as we view this issue positively, the “parties” are heroes and positive instruments. However, to those who believes otherwise, the “parties” are victims.
A person is detained in the immigration office of a Philippine airport and is being subjected to a random search of his luggage and belongings. A laptop was found and it was opened against the will of the owner. Some pictures of a person depicted as a child as well as some digitally animated images in an explicit sexual activity was found in a file therein.
The person is then charged with violation of Sec. 4 par. (j) of R. A. 9775 or Anti-Child Pornography Act of 2009 for possessing forms of child pornography.
Whether or not there is a violation of the right of a person against unlawful search and seizures.
Yes. Under the given scenario, there is a clear violation of the right of a person against unlawful search and seizures.
Art. III, Sec. 2 and 3 states that “The right of the people to be secure in their person, houses, papers, and effects against unreasonable search and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complaint and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized “(Sec 2)
“The privacy of communications and correspondence shall be inviolable except upon lawful order of the court, or when public safety requires otherwise, as prescribed by law.”
“Any evidence obtained in violation of this or the preceding sections shall be inadmissible for any purpose in any proceeding” (Sec.3)
It is clear under the Constitution that in order for the search of the belongings including the laptop of the person and its contents to be valid, the searching officer must be armed with a valid search warrant as provided by law. Failure to secure such is in violation of the law and whatever evidence obtained therwith is considered “fruits of the poisonous tree”.
The warrant-less search in the case of “en flagrante delicto” is inapplicable in this case because the searching officer has previously no personal knowledge that an offense has been committed. The knowledge about the alleged violation came only after he compelled the owner to open the laptop.
Moreover, there is no waiver in this case because the opening of the files in the laptop is not voluntary.
In a random search which is only limited to visual inspection, “plainview doctrine” is also not applicable in this case. The “plainview doctrine” presupposes that there is prior justification of the search. There shloud also be an element of inadvertent discovery of the evidence and the things found has immediate apparent illegality of the evidence before the police officer.
In the scenario given, there was no prior justification of the search because the alleged offender was not being arrested for a certain crime or offense. The contents of the laptop was not discovered accidentally in plain view when his belongings was being inspected.
In addition, the defense that “police power” is being exercise in the process cannot be invoked in this case because police power in the interest of public security is only applicable where ther is reason to belive that there is plot to destabilize the government or when there are reports of terrorist attack. That is the only time the authorities are justified to search without warrant the persons’ belongings even his electronic gadgets or laptop especially on airports, seaports, highways or any other places whether public or otherwise.
However, in ordinary situation, persons may lose the protection of the search and seizure clause when they go to public places like malls, hotels, arports and among others. It is a standard operating procedures for security purposes when the operators subjects their passengers, clients or customers to check ups of their luggages and belongings. The inspection however is limited only to visual searches.
The case of compelling a person to open his files in his laptop and search its contents is not within the “visual search” in a normal security protocol where there is no state of emergency.
Therefore, the files containing “child pornographic pictures” in the laptop which was illegally obtained as in this case cannot be used as evidence against the owner.