By J. Regalado E. Maambong
countries, the Philippines among them, face clashes in their
commitment to preserve liberty in the face of security issues,
particularly those related to the need to counter terrorism.
ideal situation is to look at the issues of liberty and security, as
not being in conflict, but rather, to address the question on how to
have both security and liberty, and not one or the other.
is distressing to note that some government officials in our country,
notably the advisers to the President, favor the position, subject to
much debate, that individuals have to be willing to give up many of
their civil liberties to enable the government to provide security.
this frame of mind, I would say that terrorists shall have succeeded
in their efforts. I read a statement which says that “indeed,
if civil liberties are compromised the terrorists will have won.”
The only difference is that it would be the government providing the
question may be asked whether a crisis like war (or ongoing
conflict with NPA’s or Muslim separatists), or terrorism or
coup d’etat, justify a momentary infringement of
civil liberties? This is a hard question considering the enunciated
principle that the Constitution is a law for rulers and people,
equally applicable in war and in peace, covering all classes of men,
at all times, and under all circumstances.
we have to concede that abstract principles which are behind the Bill
of Rights are ineffectual when crisis, like war comes along.
But to counter terrorism, likewise, concerns nothing less than the
survival of the country and its people. The consideration of
constitutionality is hardly a primordial consideration. Can we,
therefore, loosen certain constitutional restraints if only to
preserve the country? Newspaper accounts reflect the fear of
Filipinos that the costs to maintain survival, exceed the benefits
when it includes a sacrifice of civil liberties.
is not debatable that in times of war, constitutional restraints on
civil liberties and constitutional freedoms can be loosened
somewhat. In fact, Justice Holmes (if my notes serve me
right) who said: “When a nation is at war many things
that might be said in time of peace are such a hindrance to its
effort that their utterance will not be endured so long as men
fight…”. And so, with war as a justification, a
person was convicted for doing nothing more than distributing
pamphlets that criticized the compulsory draft to join the U.S. armed
forces. Likewise, in 1942, all persons of Japanese ancestry in
the U.S. were detained for the duration of the war in “relocation
camps” to prevent espionage, by presidential order to the
Secretary of War.
are not at war, however, and presidential war powers cannot be used.
But in much the same way, the matter of a country’s survival is
nothing short of war, and we have to bear the risk of collateral
damage as in combat operations rather than apply high standards for
protecting privacy as constitutional strictures take precedence. The
choice between strict constitutionality and national survival is not
easy. Especially, if you happen to be the President and the burden of
decision stops with you. What President Bush of the United States
said rings true. To protect the state against terrorism he had two
choices: either to amend the Constitution, or to ignore it.
Apparently, he has chosen to ignore it in some occasions. Our
President (Gloria Macapagal-Arroyo), in fact, also did. But
the Supreme Court would have none of it, as shown in a series of
no one can dispute that we have to facilitate more extensive
clandestine surveillance and this includes wire-tapping, regardless
of the cost, to prevent terrorism. But already there are reactions
against going even this far.
is therefore imperative that there should be a substantial loosening
of constitutional restraints on domestic intelligence, in a manner
which must conform to the 1987 Philippine Constitution and our
statutory laws. I do not think we should wait for the frequency and
intensity of future terror attacks inside our country before we
loosen restraints. But, at the same time, we have to consider
successive Supreme Court decisions of recent vintage, which, in
effect, held that the perceived threats to national security which
motivated the violations of civil liberties during emergency
situations in those particular instances, were overblown and
the mood of government, which resulted in these decisions – and
one cannot avoid the term – was seen as repressive.
We have witnessed official threats and raids on mass media;
curtailment of free speech; accelerating invasions of privacy through
wire-tapping, electronic eavesdropping, and the new menaces of
computer banks; indiscriminate government dossiers; and even
preventive detention. Including much violence, these reflect open or
covert government policy, not casual, sporadic or accidental
interferences with the proper functioning of democratic life. The
government has delivered it’s message – no more noise;
no more trouble – under the assumption that an increase in
liberty means an inevitable decrease in security and vice-versa. This
is not a true relationship, of course. We can either enhance or
reduce both liberty and security.
the situation will not improve, Supreme Court decisions
notwithstanding, if the man in the street is bombarded by the harsh
rhetoric of the new Pied Pipers of revolution, those who blithely,
even playfully urge a call to arms. Witness the Manila Peninsula
incident. Although there was, in fact, little chance of apocalyptic
confrontation, the visible – and increasing – fear
of violence and destabilization feeds deep-seated apprehensions by
the military, police and other law enforcers and provokes more
severe counter measures from the government. The everyday affronts to
our sense of justice are amply documented. We may see only one man’s
freedom diminished, but it reduces the rights of all of us.
is, I believe, a middle-ground solution that has been offered.
Admittedly a difficult one, Congress should provide a guide or
procedure in a detailed manner as to how specific civil liberties are
sustained and preserved against particularized national security
concerns or crisis. They have done this in the United States with the
passage of several laws, providing guidelines, apparently with much
why the detailed guidelines or procedures? For one, because while the
protection of the Bill of Rights may be loosened a little bit in
times of crisis, civil liberties should not be infringed at all,
because the dangers to liberty we have experienced during martial
rule, are too frightful to contemplate. For the other, we cannot
expect to always have wise and humane rulers, attached to
constitutional principles. Without strict guidelines to follow, there
is a constant danger from wicked men, with hatred of liberty and
contempt of law, especially from rulers, ambitious of power.
or procedures, of course, are easier said than done. The guidelines
in our Human Security Act (R.A. 9372, March 6, 2007) or
anti-terrorism bill are reportedly impossible to follow and,
therefore, considered by many law enforcers as a dismal failure.
some, so many of said guidelines are so stringent and burdensome
that it has rendered the law a “toothless tiger”.
On the other hand, the law need not fearfully threaten individuals
unnecessarily, so long as careful measures are institutionalized, for
instance, to keep secret the irrelevant but embarrassing information
that may inadvertently be acquired as a by-product of monitoring.
is important, however, to distinguish between two types of
constitutional constraints on civil liberties. One is political
censorship, such as the suppression of dissent. There is absolutely
no justification for this. And there is no need for it. Why? Because
counterterrorism does not benefit from suppression of free speech,
like closure of newspaper publishing houses and jailing of
journalists or suspected dissidents, not to mention their elimination
with “extreme prejudice.”
other type, I submit, involves tolerable compromises of individual
privacy. This involves secret surveillance, monitoring of
communications, and searches, even seizures. This offers the biggest
payoff and counterterrorist intelligence cannot do without them.
I favor a very unpopular re-study of a national identification system
shot down by the Supreme Court in a past decision. And not without
reason. However, I must say the constitutional arguments advanced
against this sort of identification not to mention the cost and
overlaps with other existing ID’s, are immensely popular but,
to me, unpersuasive. For one thing, national identification systems
are common in other democratic countries. Perhaps there is something
they know which is good, but we don’t. Secondly, as a member of
the past Constitutional Commission of 1986, I do not recall that our
Constitution confers the right to be unidentified to the
favor even more intrusive information-gathering, even if
controversial, as long as it helps to avert future terroristic
attacks and thus, save lives and properties of Filipinos, because it
will certainly head off more draconian blows and reactions against
civil liberties, from the government (especially if it panics).
My research is limited, but I know that solid humane democracies,
among them, the United Kingdom, France and others, have far more
permissive rules for gathering information on people than the
Philippines, and their citizens seem to live with these rules without
all these, you have to trust the government against abuse or
availment of otherwise constitutional procedures for political
purposes. I must admit that there may be, of course, a crisis of
confidence considering the existence of a robust opposition in this
country. Somehow, Congress must find a way. Otherwise, affected
citizens will continue to complain to the Supreme Court because of
violations of civil liberties caused by hysterical assessments of
security risk. Constitutional protection through the writ of
habeas corpus and the writ of amparo are quite fashionable
these days to force government to conform strictly to our democratic
and constitutional regime.