The unnecessary brother of the right against unreasonable searches and seizures is the right to privacy of communications and correspondence:
We refer to Sec. 3 as the unnecessary brother because Sec. 2 should already necessarily include the right of privacy of communication and correspondence according to U.S jurisprudence.
So why include Sec. 3 if there is already Sec. 2 and The Fourth Amendment of the U.S., which is basically the same with our Sec. 2, already covers communication and correspondence? Probably for the sake of being thorough.
Father Bernas explains that at the time of formulation of Sec. 3 (1935), the U.S. interpretation on searches and seizures (1928) does not include an advanced form of wiretapping where police officers would not need to enter the house or office of suspects for it to work. Thankfully, the U.S. has reversed that ruling. Anyway, thus, the Philippines added the now Sec. 3 to include all kinds of intrusion of privacy, including intangible ones. It wasn’t removed despite the current U.S. interpretation probably for the sake of consistency and assurance. Because who knows, maybe one day the U.S. may reverse their current interpretation.
What type of communication and correspondence does the provision cover?
CONCEPT OF COMMUNICATIONS AND CORRESPONDENCE
According to Father Bernas’ book, the provision covers communications and correspondence in a general sense. This would cover letters, messages, mail, telephone calls, telegrams, and the like. Does it include messages in social media? Most likely.
“At the 1935 Constitutional Convention, Delegate Laurel said that the object of the provision was to provide adequate protection for “letters and messages” carried by the agencies of the government lest “their privacy be wantonly violated and great harm [be] inflicted upon the citizens.” If the impression given by this explanation is that the protection is meant only for written communication sent through the mails, the impression is corrected by Laurel himself. When he was asked whether the protection covered telephone calls, he replied that the terms communication and correspondence were “used in a general sense.”
-The 1987 Constitution of the Republic of the Philippines by Fr. Joaquin Bernas, 1987
Intrusion, when and how allowed
The provision itself states the circumstances where intrusion is allowed:
1. Upon lawful order of the court
2. When public safety or order requires as prescribed by law
Lawful Order of the Court
The complications presented by the first allowable intrusion (upon lawful order of the court) is that there are no guidelines unlike in what we see in Sec.2 where there should be probable cause, particularity of description, etc. There also seems to be no case that faced this problem. But, Father Bernas offered that the rule on probable cause should still be followed since Sec. 3 is just still a part of Sec. 2 based on the U.S.’ Fourth Amendment. Particularly describing the communications and correspondence should also be observed, except in cases of wire-taps wherein it would be impossible to describe the contents of a communication yet to be made.
“When intrusion is sought through an order of a court, upon what grounds may the court allow intrusion? The text does not give any ground. It is submitted that the requirement of probable cause in the preceding section should be followed. After all, as may be seen in the development of American jurisprudence on the subject, the privacy right is but an aspect of the right to be secure in one’s person.“
-The 1987 Constitution of the Republic of the Philippines by Fr. Joaquin Bernas, 1987
“Should the order also particularly describe the communication or correspondence sought to be seized? When the correspondence sought is written correspondence, it would seem that there should be no inconvenience in requiring particularity of description. But if the intrusion is to be done through wire-taps, how is the description to be made? Evidently, it would be impossible to describe the contents of a communication that has not yet been made. Hence, it would be unreasonable to require a description of the contents of the communication. But the identity of the person or persons whose communication is to be intercepted, and the identity of the offense or offenses sought to be prevented, and the period of the authorization given can be specified. In fact, an attempt in this direction is made by Section 3 of R.A. 4200, the Anti-Wiretapping Law, and similar safeguards also found in Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. Section 2518, which was discussed in the wiretapping case of United States v. US. District Ct., Eastern Michigan.“
-The 1987 Constitution of the Republic of the Philippines by Fr. Joaquin Bernas, 1987
When Public Safety or Order Requires, as Prescribed by Law
As for the second allowable intrusion, it is pretty self-explanatory. There should be a danger to public safety or order AND there should be a law that allows a government official to decide whether to intrude into one’s privacy of communication and correspondence.
Father Bernas explains the addition of “as prescribed by law”:
“The effect of this addition, made in the interest of safeguarding liberty, is not only that the discretion of the executive officer is limitable by law but also that a public officer who exercises this power must be able to point to a law under which he acts. To hold otherwise would be to opt for a government of men and not of laws. Every police agent would feel authorized to snoop. Moreover, it goes without saying that “abuse of discretion amounting to lack or excess of jurisdiction” can be checked through judicial review.“
-The 1987 Constitution of the Republic of the Philippines by Fr. Joaquin Bernas, 1987
EXCLUSIONARY RULE
The exclusionary rule here is basically the same with the exclusionary rule discussed under Sec. 2, but only applied to invasions of communication and correspondence instead of illegal search and seizures.
Thus, if an agent of the government/public officer violates Sec. 3, the effects are the same with that of a violation of Sec. 2:
1. The evidence shall be inadmissible for ANY PURPOSE in ANY PROCEEDING (including civil and administrative)
2. When can the suspect object to the admissibility of the evidence? During the trial, not during appeal.
3. What happens to the illegally seized items?
If not stolen or contraband, returned after the resolution of the case.
If stolen, contraband, or for public policy, it will not be returned.
If destroyed, the court is not mandated to grant affirmative relief.
In all accounts, the items may be used as evidence if a case is filed against the officer responsible for the illegal seizure.
4. Does the exclusionary rule cover witness accounts? No.
5. What happens to the erring officer? He may be held liable depending on the seriousness of his errors
BUT THEN, it should also be noted that the Bill of Rights, where the exclusionary rule is located, applies only to actions of state officials (People v. Marti).
Thus, evidence obtained by a private individual is still admissible in any proceeding.
The only remedy of the person whose privacy was invaded is to seek damages against the private individual that violated the person’s privacy of communication and correspondence. Article 32 (11) of the Civil Code says so:
[ARTICLE 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:
….
(11) The privacy of communication and correspondence]
That’s it. We’ll move on to freedom of speech and expression tomorrow.
The Bartender 