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Primer on ConCom draft Constitution

ConCom 2018 Member

Q: Section 1 of Article III is completely new.  What is its significance?

A: First, the rights enumerated under the article are demandable not only against the State but even against non-State actors.  It has been traditional doctrine that the rights guaranteed by the Bill of Rights are demandable only against the State.  So a curious neighbor who rummages through your belongings for evidence of your addiction would not be violating the guarantee against unreasonable searches and seizures unless your neighbor was a police officer or a law enforcer.  Under this new section, however, one can invoke the Bill of Rights against private trespassers of those rights.  Second, the Philippines adheres by this section to the concept of “minimum legal standards,” where the minimum is not what domestic law affords but what international human rights standards provide.

Q: What is this new “right to privacy”?

A: It is a not a new right.  The right to privacy has long been recognized by Philippine jurisprudence and longer still by American jurisprudence.  But while it was considered a “penumbral right” in the past, it is now a constitutional right.  It is highly significant that where there is any interference whatsoever in personal and domestic relations, judicial relief may now be sought—injunction, prohibition or analogous remedies.  Likewise important is the fact that “privacy” covers “data”. 

 Q: Why was there need to have an express provision on data?

A: Considering the amount of data about oneself floating around in cyberspace, the protection of data has become a matter of constitutional importance, hence this provision.  It is a constitutionalization of the Data Privacy Protection Act’s key guarantees.  The improper, unauthorized and exploitative use of data belonging to another can have very serious consequences, identity theft being merely one among these.

 Q: How does the draft’s provision on searches and seizures differ from that of the 1987 Constitution?

A: In the realization that some surveillance methods are now so sophisticated that physical searches have become superfluous, the draft has endeavored to keep up with technological development.  It now provides that surveillance “through technological, electronic or other means” now require a surveillance warrant.  There is, however, a difference: While no search may take place before the issuance of a warrant (unless falling under any of the established exceptions allowing for warrantless searches), the warrant may issue after the surveillance, with the result that only such matters as are covered by the warrant that has been the object of surveillance may become matters of evidence.

Q: Local governments are now directed to establish freedom parks.  Will public gatherings and assemblies elsewhere no longer be allowed?

A: They will still be allowed, but for such gatherings, a permit will be needed in accordance with established jurisprudence unless the property used is private property.  Even with respect to freedom parks, some coordination will be needed so that groups do not simultaneously use the provided space of free expression.

Q: In what does the phrase “and the public expression of fundamental religious belief” have in respect to the free exercise clause?

A: In some jurisdictions, the public display of religious allegiances or sectarian beliefs is forbidden.  Under the draft constitution, there shall be no such prohibitions or limits.  Every person will be free to display and exhibit symbols or signs of religious affiliation, or also of unbelief and non-religion.  We are distancing ourselves from those regimes that prohibit the display of religious symbols.  Philippine public space shall be free space insofar as the display or exhibit of fundamental religious (or a-religious) beliefs is concerned.

Topics: right to privacy , Philippine jurisprudence , 1987 Constitution , Data Privacy Protection Act
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