Thursday, July 12, 2007

A perspective on liberty in the age of terror

Liberty in the words of Justice Stevens

In October 1991, then United States Supreme Court Associate Justice John Paul Stevens delivered his keynote address in the University of Chicago Law School to celebrate the bicentennial of the Bill of Rights and the centennial of the University. Justice Stevens entitled his remarks “The Bill of Rights: A Century of Progress.”

In his remarks, Justice Stevens not only gave us an intellectual discourse on the progressive development of the bill of rights in the United States, more importantly he discussed as well the continuing judicial interpretation of the idea of “liberty” in constitutional law.

The Bill of Rights of the United States has had more than two centuries of development. A feat that would surely surprise the founding fathers of the American constitution, since their original intent was to have no bill of rights at all.

It was not that the delegates to the Constitutional Convention in 1787 were opposed to freedom of press, freedom of religion, and the rest. As George Washington later said in defending their monumental non-action, probably every one of them supported the principles later embodied in the first ten amendments to the Constitution. They did not vote against a bill of rights in order to subvert liberty, but from simpler and less sinister motives: (a.) They thought the bill of rights was unnecessary; (b.) They thought a bill of rights would be more or less useless; (c.) They thought a bill of rights might prove to be dangerous; and (d.) They were tired and ready to go home.

Realizing though the value of incorporating a bill of rights in the constitution, James Madison presented on May 25, 1789 before the United States Congress his proposed amendments on the Bill of Rights. It was subsequently adopted by Congress and ratified by several states.

In its first two centuries of existence, Justice Stevens in his aforementioned remarks described the nature of their development, as follows:

In the first century of existence, the Bill of Rights was, in some respects, comparable to the Magna Carta- a relatively static symbol of the general idea that the federal government has an obligation to obey the law of the land.

In the second century of its life, however the Bill of Rights became a dynamic force in the development of American law. The United States Supreme Court played a major role in that development.


In this century, most of the significant cases raising Bill of Rights issues have, in the final analysis, actually interpreted the word “liberty” in the Fourteenth amendment. Indeed, the impact of that amendment on the Bill of Rights has also led to an expansion of the meaning of the word “liberty” as it is used in the Fifth amendment……. Thus, through the process of judicial construction, the Bill of Rights has become a shield against invidious discrimination by the Federal Government as well as a shield against the misuse of state power.”

Having remarked on the progress of the judicial interpretation of “liberty” in the bill of rights in the two centuries of its existence, Justice Stevens further pointed how such development has been manifested throughout the years. He made mention of the following:

· The general requirement that there must “due process” which appears in both the fifth and the fourteenth amendments-arguably should not encompass such specific guarantees as the right to speedy trial, the right to counsel, or the right to compulsory process because the Sixth amendment would be redundant if those rights were already protected by the fifth amendment’s general guarantee of due process.

· The Due Process Clause of the fourteenth amendment does require the states not only to comply with specific procedural protections in the Bill of Rights, but also to respect certain substantive guarantees. The Court’s interpretation of that clause makes some state action entirely invalid regardless of the procedures the state may employ in enforcing its command.

· The Due Process Clause of the fourteenth amendment provides substantive as well as procedural protection and also the proposition that the term “liberty” embraces the right of free speech.

· The concept of liberty includes unenumerated rights, e.g. the right to counsel in the fifth amendment includes the right to competent counsel; the individual freedom of conscience protected by the first amendment embraces the right to select ant religious faith or none at all.; right to marry; the right to travel; the right to exercise dominion over one’s body, and the right whether to bear a child.


Liberty: The Philippine perspective

In the case of Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills Co., Inc., the Supreme Court said that, the bill of rights is designed to preserve the ideals of liberty, equality and security against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments and the scorn and derision of those who have no patience with general principles. The purpose of the Bill of Rights is to withdraw subjects from vicissitudes of political controversy, to place them beyond the reach of majorities, and to establish them as legal principles to be applied by the courts.

Chief Justice Enrique Fernando in his 1974 treatise on the Philippine Constitution classified the Bill of Rights into three , to wit:

· Liberty and property as limited by police power, taxation, and eminent domain and as safeguarded by the due process, equal protection, and non-impairment;

· Intellectual Liberty comprising freedom of religion, freedom of speech and press, freedom of assembly and freedom of association; and

· Physical Liberty in which are included the privilege of the writ of habeas corpus, freedom of person, home, and possessions including the right of privacy, and the rights of an accused.

Applying the said classification to the 1987 Constitution’s Bill of Rights:

Liberty and property as limited by police power, taxation, and eminent domain and as safeguarded by the due process and equality clause:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.
Section 9. Private property shall not be taken for public use without just compensation. Section 10. No law impairing the obligation of contracts shall be passed.

Intellectual Liberty:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Section 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

Physical Liberty:

Section 2. 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 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 complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Section 3. (1) 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. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to the rehabilitation of victims of torture or similar practices, and their families. Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.

Section 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.

Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it.

Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

Section 17. No person shall be compelled to be a witness against himself.

Section 18. (1) No person shall be detained solely by reason of his political beliefs and aspirations. (2) No involuntary servitude in any form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.

Section 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.

Section 22. No ex post facto law or bill of attainder shall be enacted.

The juridical concept of liberty, according to Chief Justice Fernando was nothing new, to wit:

“The earliest and most comprehensive formulation under the previous organic acts, is found in Justice Malcolm’s opinion, speaking for the Supreme Court in Rubi vs. Provincial Board (39 Philippine Reports 660): Civil liberty may be said to mean that measure of freedom which may be enjoyed in a civilized community, consistently with the peaceful enjoyment of like freedom in others. The right to liberty guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary personal restraint or servitude.”

Unlike the American constitution’s Bill of Rights which has endured more than two centuries of discourse and challenges, the Philippines’ Bill of Rights did not go through the process of transformation from a static symbol to a dynamic force as Justice Stevens described it.

The Philippines’ Bill of Rights, being an adaptation of western influences has never been seen as a symbol, instead, it is viewed as a dynamic assurance that liberty is alive and well and can be exercised by all.

The Supreme Court in the case of Ordonez vs. Director of Prisons said:

Liberty is not derived from the sufferance of the government or its magnanimity or even from the Constitution itself, which merely affirms but does not grant it. Liberty is a right that inheres is every one of us as a member of the human family. When a person is deprived of his right, all of us are diminished and debased for liberty is total and indivisible.

In Republic vs. Sandiganbayan , the High Court further said:

Being substantially a copy of the American Bill of Rights, the history of our Bill of Rights dates back to the roots of the American Bill of Rights. The latter is a charter of the individual's liberties and a limitation upon the power of the state 182 which traces its roots to the English Magna Carta of 1215, a first in English history for a written instrument to be secured from a sovereign ruler by the bulk of the politically articulate community that intended to lay down binding rules of law that the ruler himself may not violate. "In Magna Carta is to be found the germ of the root principle that there are fundamental individual rights that the State — sovereign though it is — may not infringe." 183 (emphasis supplied)

In Sales v. Sandiganbayan, et al., 184 quoting Allado v. Diokno, this Court ruled that the Bill of Rights guarantees the preservation of our natural rights, viz:

"The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory use of political power. This bundle of rights guarantees the preservation of our natural rights which include personal liberty and security against invasion by the government or any of its branches or instrumentalities."


Liberty in the age of terror

While the Bill of Rights now stands as a sentinel to ensure the protection of liberties, there is now a growing school of thought that traditional views on liberties is passé in a post 9-11 scenario, where terrorism and extremism are the buzz words. This historical phase is important as it will greatly contribute to the so-called development of liberty in the life of the Philippines’ Bill of Rights.

This debate is well reflected with the passage of the so-called “Human Security Act of 2007.”

Republic Act 9372, otherwise known as the “Human Security Act,” is probably the most dangerous piece of legislation passed by the Philippine Congress. It is replete with provisions that violate the Constitutional guarantees to freedom of speech, freedom of communication and correspondence, right to travel as well as an individual’s right to be secure in their things and in their person. Some of the law’s onerous provisions include the following:

First, the restriction on the person’s right to travel is not reasonable as it may be undertaken even when the evidence of guilt is not strong. The person under house arrest may be prohibited from using the Internet, cell phone, telephone or any other means of communication, thereby effectively rendering him incommunicado. This curtailment of mobility may be stopped only upon acquittal. In the meantime, the person has already been unduly deprived of necessary communication with family or friends.

Second, police, military or any government law officer, without incurring any criminal liability, may engage in wiretapping, to the detriment of the people’s inviolable right to privacy. This may be done through an ex parte written application before the Court of Appeals.

Third, though it is only a precautionary measure, RA 9372 does not preclude the fact of possible infringement into private conversations among citizens who are merely exercising their right to freedom of expression. Though there is a provision of informing the person that he is being placed under surveillance, it is a belated mechanism where the probability of violation of civil rights may have already been committed.

Fourth, even the legitimate exercise of one’s right for redress of grievances may be considered as “terrorism,” by reason solely of one’s membership in an organization, association or group of persons that has been proscribed as “terrorist,” even if the charge may be baseless or manufactured.

Fifth, a person may be arrested and detained without judicial warrant of arrest for a period of three (3) days, where the arresting officer shall not incur any liability. This may be utilized as a means to harass those who are critical of the government, or even those who may be the subject of mere personal enmity by police officers and other law enforcers.

Sixth, though there is a requisite procedure before detention (i.e., presentation before the judge and the written report of such judge), for a person merely exercising freedom of expression, being penalized with three (3) days of imprisonment without sanction on the arresting officer is an insult to the civil liberties we enjoy as a people.

Seventh, bank deposits, accounts and records may be examined through a mere ex parte written application by the police and military officers. The written application and order of the court allowing such examination is considered classified information.

Eighth, this is also applicable in the disposition of the frozen bank deposits, placements, trust accounts, assets and records of a suspect. Should the person be later on adjudged innocent, there is already a deprivation of the enjoyment of one’s assets. No matter how much recompense the person may be given in exchange, this does not erase the stigma and the hardship that his family already went through.

According to the provisions of the law, which I would like to describe as a law on “panic,” there is no clear definition of who a terrorist is. A person may be labeled as a terrorist by reason solely because of his political or religious belief and his defense thereof. The law’s definition of terrorism is too broad and too sweeping, covering many crimes that are already punishable under existing laws. The law also blurs the distinction between real acts of terrorism and ordinary crimes. Worse, it can be interpreted to include all acts in pursuit of legitimate dissent. In a time of intense crisis and undisguised political repression, the law can and will be used to illegalize the legitimate activities of critics and opponents of the current administration.

The vagueness of defining a terrorist is not limited to the Philippines alone. Since 1995, the United Nations has yet to come up with a clear definition of who or what a terrorist is.


Final Statement

Liberty in its phases has its history and connotation. In ending his treatise on the bill of rights, Justice Stevens cited the words of Justice Cardozo on the progress in the development of the law:

…is neither a straight line nor a curve. It’s a series of dots and dashes. Progress comes per saltum, by successive compromises between extremes, compromises often, if I may borrow Professor Cohen’s phrase, between positivism and idealism. The notion that a jurist can dispense with any consideration as to what the law ought to be arises from the fiction that the law is a complete and closed system, and that judges and jurists are mere automata to record its will or phonographs to announce its provisions. Ideas of justice will no more submit to be banished from the theory of law than from its administration.

In this period of our history where there is a clash of ideas as to the context of liberty in the age of terrorism, there is anticipation on whether the sound judgment of the courts in interpreting the bill of rights will lead to progress or otherwise. We can only hope that such interpretation will be seen as a series of dots and dashes and not as a curve downward.

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