Today is Monday, May 21, 2018

A Perspective of Security vs. Liberty

By J. Regalado E. Maambong

Many 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.

The 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.

It 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.

With 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 terror.

A 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.

But 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.

It 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.

We 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 decisions.

Yet 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.

It 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 factually unfounded.

Understandably, 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.

But 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.

There 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 success.

But 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.

Guidelines 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.

To 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.

It 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.”

The 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.

Similarly, 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 government.

I 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 great unease.

For 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.

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