THE CONSTITU TUTIO TION NAL FOUN UND DA TIO TION N OF PRI RIVAC VACY Y by Ireene R. Cor Ir Corttes, U.P. Law Cent nteer, Diliman Diliman,, Qu Quezo ezon n City ty,, Philippines Philippines,,
Dea ean n 1970 70,,
113 p. This of works
boo ook k ; is an answer on th thee subj ubjeect
to th thee
of priva ivaccy,
tort law and whic ich h has in recent in American
const stitut itutiional
dear artth
a broa oad d
in Ph Phiilippin pinee f iel ield in English
yeaars been gai ye ain nin ing g
law. It comes
legal
literatur turee
and Am Ameerica can n
inc ncrrea easi sin ng
signific nificaanc ncee
at a ti time when the issu suee of ci civ vil
liberti ertiee& is fo forremos ostt in th the public mind and the threa reatt to indivi ndivid dual consti ti-tuti tio onal rights is so imm mmeedi diaate that th thee aut uth hor's concer ncern n over the inevita evitabl blee incursio incu rsions ns relevan evance ce
against
priva vaccy
bro rou ught
in th thee ligh ghtt of recent
about
by co com mputer eriiza zattion
politica iticall
seems see ms to lose
dev eveelopme pment ntss.
In this book th thee auth tho or share aress not only her grasp of con consstitution tional al law but also lso her acute perce ception ption of inro inroaads agains nstt the indivi individu duaal's const onstiitution,,] rig igh hts. ts. A combina inattion jeect has bee j een n scciet ety y
of th thee sociclog ogic icaal
adopt pted ed
is appar ppareent
not
so tha thatt only
and le lega gali list st
thee releva th evan ncy to those
approac roach hes
of th thee work
to th thee sub ub--
to con conte temp mpor oraary
in the leg egal al profess ofessio ion n
butt al bu also so to
the lay aym man. The book deal ealss not onl nly y with settle d doc octtrine and juris isp pru ru-dence but ven enttures into pro rob blem areas brou oug ght about by the in inccessa san nt advancee of te vanc tech chn nol olo ogy and the comp mpllexit exitiies of modern society. Such an approach
is unf ortu rtuna nattely
Privacy Pri of the right
lacki acking ng
in mos ostt Ph Phil iliippine
legal liter terat atur uree.
as a lega egall concept was first dev eveelop lopeed in tort law aw.. Violatio tion n to priva vaccy or "th thee ri rig ght to be le left ft alo alon ne" was considere ered d to
be a tra tran nsgr greession of pro rop per erty ty ri rig ghts. The sco scop pe of th thee ri righ ghtt of privac vacy y in priivat pr vatee law ha hass sinc incee th then en broa road dened particu icullarly in th thee Am Ameerica can n jurisdictI ctIO On. Whil Whilee the New Civil Code an and d speci eciaal laws prov roviide adequat quatee pro ro-tection ction,, liti tig gation tionss in invol volv ving th thee righ ghtt of priva rivaccy in our juri jurissdiction is prac ac-ticaally ni tic nill. The main thrust of thi hiss book is th thee dev eveelo lopm pmeent and the the fo fou undatio ion ns of th thee right of privac vacy y in constit titut ution ionaal law in Amer erican ican and Phi hilip lippi pin ne jurissdiction juri ictions. s. Priva Pri vaccy in th the pub publlic law conc nceept was or origi igin nall lly y conc co nceeive ved d in .re rela lati tio on with other specifi cificc constitu tituti tio onal guara rant nteees owing large argelly to the f act act that th thee term "priva vaccy" does not app ppea earr in th thee Uni nitted St Staates risw swo old v. C onnect icut icut th Fed Fe der eraal Constituti titutio on. It was onl nly y in 1965 in Gri thaat the rig ight ht of pri priva vacy cy was es esttabli blisshed by the United .as an independ nden entt cons co nsti titu tuti tio onal right. Uniik Unii k e the Uni Unite ted d States Const stituti itutio on, taiins an express ref ere ta ren nce to priva vaccy in
State St atess
Supreme
Court
the Ph Phiilippin lippinee Constitut titutio ion n conArticle 13, se secti ctio on 1 (5 (5) which
provides for the inviolability of communication and correspondence. The other f acets of privacy are protected by the constitutional guarantee against unreasonable guarantee right
searches against
the
to due process,
and liberty
seizures,
self-incrimination,
of abode,
if not the whole
for the Philippine Supreme Court independent constitution right.
the
right
the
of association
Bill of Rights.
to establish
constitutional
It remain,
the right
and
the
however,.
of privacy
as an
The author is very much concerned over the fact that the Constitution alllows an exemption to the inviolability of communication and correspondence
not only upon lawf ul order
of the court but also "when
public
safety or order require otherwise." This has opened the door to abuse by ministerial off icers particularly those belonging to the law enforcement agencies and if unabated the author f oresees the realization of the Orwellian spectre symbolized by the omniscient Big Brother and the omnipresent telescreen. Statutory limitations on the powers of government functionaries in this regard lik e the Anti-Wiretapping Act do not provide adequate protection from abuse, f or, as the author notes, what Congress has enacted it can repeal or amend, apart f rom the f act that there is no guarantee that the law shall be implemented The American
book makes jurisprudence
properly
if at all.
a review of recent developments in Philippine and touching on the many facets of the right of privacy.
The impact of K at z v. Unit d States on the guarantee against unreasonable searches and seizures, the case of Camara v. Mu.nicipal C ourt and S ee v. aspect of administrative searches and the Cit y o f Seatt le on the particular Miranda and Escobedo and crimination are analyzed.
Rochin
rulings
The author shares in the general decisioll in Stonehill v. Diok no which M oncado
v. Peo ple' s
C our t.
Dissatisfaction
on the
right
against
self -in-
sense of relief generated by the reversed the unpopular ruling in is expressed,
however,
with the
ruling in the old case of M agoncia v. Palacio to the eff ect that in cases where contraband is seized in the course of an illegal search the same should not be returned to the owner but could be used as' evidence. While theauthor shares th eopinion that the contraband should not be returned she vigcrously maintains that it should not be used as evidence f or, "between allowing a crime to go unpublished and allowing the state to play an ignoble part through the use of evidence i gally obtained the f ormer is the lesser evil." Emphasis is placed or the right against self -incrimination. The author doubts the wisdom, of the present rule obtaining in this jurisdiction that a conf ession made by the def endant in a criminal case is admissible in evidenoe without direct affirmative proof that it has been freely and voluntarily macie. Apart from the fact that it is out of line with recent developments in criminal procedure the rule becomes the more objection-
able when the method of in-custody interrogation by local law-enforcement agencies is considered. The author also comes out against the use of the polygraph and similar devices which she condemns as a nullification of the constitutional guarantee against self-incrimination. A theme which underlies the work is an apprehension over, if not fear of , government, particularly of a strong executive. While this could be attributed to the author's stand on the question of the power distribution of constitutional powers it finds particular relevance to the present problems of our political system which, however, derive not only fr the existing const tutional distribution of powers but primarily from the peculiar political style of a unique breed of government officials. The book comes out with several proposals the most significant of which is the adoption of clearer and more comprehensive constitutional provision guaranteeing the inviolability of communication and correspondence and the outlawing of extra-judicial conf essions and admissions. would be dangerous, however, to presume that the adoption of these proposals will actually produce the results expected for as the author herself admits in connection with the Anti-Wiretapping Act, "It would be naive to think that the enactment of a law by itself eff ectively puts an end to the practices prohibited by it and makes.' real the protection it provides." It is but an affirmation of the rule borne out of experience that legal ref orms attain their objects only within the context of a favorable political climate. It
NOE B. BAGA Member Student Editorial Board Philippine Law Journal
