By: Fidel Banzon

11/04/09
Show of force
(Part I)

In the afternoon of October 23, while a Barangay Assembly is being held at

Brgy. Tongonan, this city, 19th Infantry Battalion Col. Allan F. Martin with
Energy Development Corporation (EDC) Security Officer Arthur J. Veloso, Jr.
and 1st Lieutenant Narciso Tampal, accompanied by squads of enlisted men
surrounded the Two-Storey Health Center building. Col. Martin with Security
Officer Veloso and 1st Lt. Tampal went straight to the Office of the Punong
Barangay.
Their purpose was questioning the propriety of the act of Punong Barangay
Isagani R. Baòez who early that morning conducted a confrontation hearing
of the case filed by Brgy. Kagawad Rogelio N. Potoy against the Lockheed
Security Guard named Jaime Araneta . The hearing was about the illegal act
of the security guard, who on October 14 searched the government vehicle
loaded with boxing ring and platform used by the Barangay Government of
Tongonan. The Sanggunian Kabataan held their semi-annual sports
development program for the youths on October 13.
The security guard conducted a warrantless search of the government
vehicle; which vehicle at that time is accompanied by a person in authority,
Kagawad Potoy who had been designated by the Punong Barangay to return
the borrowed equipment to the General Services Department of the city
government.
Kagawad Potoy introduced himself as one of the members of the sanggunian
of the Barangay Government and informed the security guard the boxing
ring and platform owned by the city government is to be returned; however,
the guard proceeded in searching the vehicle turning over the canvas.
Kagawad Potoy who was afraid to be shot by the guard remained on the seat
and just waited for the go signal to leave.
Immediately upon return to Barangay Hall, the incident was reported to the
Punong Barangay; hence, Kagawad Potoy was asked to file a complaint.
During the hearing the security guard explained that it is the order of his
superior to search vehicles passing the gate. The Punong Barangay
admonished the security guard that his act was beyond his duty and
responsibility as security guard of EDC. He is not cloth with power and
authority to conduct searches of vehicles. Their duty is to protect the
properties and interests of EDC and there is no law for them to stop the
vehicles using the barangay road, moreover to conduct warrantless search.
The security guard apologized for his act and he was forgiven with a warning
not to repeat the same.
To my mind, security guards manning the gate may not know that they are
violating the Bill of Rights, Article III of the Constitution that states:
“Section 1. No person shall be deprived of life, liberty or property without
due process of law, nor shall any person be denied the equal protection of
the laws.”
The annotation of Joaquin G. Bernas, S.J. in the book he authored, The 1987
Constitution of the Republic of the Philippines: A Commentary, page 94
commented:
“Marcelo H. del Pilar, one of the leading writers of the Philippine Propaganda
Movement, speaking before a gathering of Freemasons, said: ‘The perfection
of humanity is not possible without freedom for the individual. Thus, the
existence of social institutions and all political organizations and relationships
are justified insofar as they have for their primary aim the defense and
protection of freedom.’ For the proper defense and protection of freedom,
however, a political institution must possess power. Hence, government
becomes the delicate art of balancing the power of government and freedom
of the governed.”
The security guard may not know that he is encroaching, if not usurping, the
power delegated by Congress to the Barangay legislative body. In page 95 of
the same book, it states:
“Police power has been characterized as ‘the most essential, insistent and
the least limitable of powers, extending as it does to all the great public
needs.’ Negatively, it has been defined as ‘the inherent and plenary power in
the State which enables it to prohibit all that is hurtful to the comfort,
safety, and welfare of society.’ The most frequently cited definition,
however, has been Chief Justice Shaw’s classic statement which calls police
power ‘[t]he power vested in the legislature by the constitution to make,
ordain, and establish all manner of wholesome and reasonable laws,
statutes, and ordinances, either with penalties or without, not repugnant to
the constitution, as they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same.’”
Security guards of Lockheed has no legislative power to close the road and
their acts of stopping, searching, confiscating driver’s licenses and
prohibiting foreigners to enter the territorial jurisdiction of the civil
government of Barangay Tongonan is repugnant to the Constitution. That
power to close roads is delegated to the legislative bodies of the local
government unit. The Local Government Code states:
“Section 21. Closure and Opening of Roads.- (a) A local government unit
may, pursuant to an ordinance, permanently or temporarily close or open
any local road, alley, park, or square falling within its jurisdiction. xxx.”
It is the Sanggunian that is vested by law to close the barangay road. There
is no law that authorizes anybody, except the sanggunian, to close
temporarily or permanently the barangay road moreover prohibiting visitors
to the barangay or to confiscate driver’s licenses.
Why I included the acts of confiscating driver’s licenses and prohibiting
foreigners to enter the Barangay? There are driver’s who are too afraid to
file a formal complaint but orally aired their grievances against the security
guards who required them to leave their licenses before entering the
barangay to attend their business with the barangay officials.
Yesterday, in front of Brgy. Chairman Xerxes Solon, Mr. Eamiguel, an
American citizen and a nephew of Dr. Anatalia Eamiguel Enecio, with his
American wife, told me they were refused to enter the Barangay by the
security guard for the reason EDC does not allow visitors to come in to the
community. That is depriving the foreigners exercising their liberty to visit
the barangay. There is no law that authorizes the security guards to prohibit
free access of the barangay road neither there is a law that prohibits anyone
to enter the barangay site. The security guard of Lockheed has been abusing
the rights of the people, like in the case of the Brgy. Kagawad Potoy, though
he introduced self was withheld and the government vehicle illegally
searched.
The Bill of Rights, Article III states: “Section 2. The right of the people to be
secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be
inviolable, xxx”
In the same book of Constitutionalist Bernas, in page 173, he commented:
“As to searches in check points, Aniag, Jr. v. Commission on Elections
recalling what was earlier said in Valmonte v. de Villa, had this to say:
“An extensive search without warrant could only be resorted to if the officers
conducting the search had reasonable or probable cause to believe before
the search that either the motorist was a law offender or that they would
find the instrumentality or evidence pertaining to the commission of a crime
in the vehicle to be searched. The existence of probable cause justifying the
warrantless search is determined by the facts of each case. Thus, we upheld
the validity of a warrantless search in situations where the smell of
marijuana emanated from a plastic bag owned by the accused, or where the
accused was acting suspiciously, and attempted to flee. (178 SCRA 216
[1989]; 237 SCRA 424 [1994])
“In Aniag, Jr., however, the search of a car made by police officers twenty
meters from the entrance to the Batasan complex was not justified by any
earlier confidential report or by the behavior or appearance of the motorist.”
The vehicle is owned by the Barangay Government and the passenger is a
Barangay Official who is not a law offender. Thus, the search made by the
security guard is illegal, notwithstanding his acting without any police
authority to do so.
It is worth quoting the decision of Justice Malcom in Rubi v. Provincial Board
of Mindoro, 39 Phil. 660, 705 (1919) cited by Constitutionalist Bernas, in
page 100 of the same book, he wrote:
“Civil liberty may be said to mean the measure of freedom which may be
enjoyed in a civilized community, consistently with the peaceful enjoyment
of the like freedom in others. The right to liberty guaranteed by the
Constitution includes that right to exist and the right to be free from
arbitrary personal restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the faculties to which he has
been endowed by his Creator, subject only to such restraints as are
necessary to the common welfare. xxx The chief elements of the guaranty
are the right to contract, the right to choose one’s employment, the right to
labor and the right of locomotion.”
What locomotion means? It is a movement or the power to move from one
place to another. Very clear from the above that the security guard had
violated the rights of the visitors, likewise Kagawad Potoy. That gate at the
barangay road was constructed without law authorizing it. It is illegal in the
first instance.
To be continued to answer the question: Is failure of Kagawad Potoy to
object to the illegal search an implied waiver of his constitutional right?.
(Email g_duna@yahoo.com This e-mail address is being protected from
spam bots, you need JavaScript enabled to view it )