ERIC F. ACOSTA AND NATHANIEL G. DELA PAZ v. HON. PAQUITO N. OCHOA: SEARCHES AND SEIZURES IN RELATION TO REGULATION OF PRIVATE INDIVIDUAL FIREARM OWNERSHIP AND POSSESSION

^{Photo is credited to Getty Images}

By: Ristel Mae B. Tagudando[1]

I. GUN OWNERSHIP AND POSSESSION IN THE PHILIPPINES

Ownership and/or possession of firearms in the Philippines is a mere privilege; therefore, is not a matter of right.[2] It is contrary to the policy adopted by the US, wherein the Second Amendment of the US Constitution protects Americans’ right to bear arms.  As quoted by Justice Leonen, in the Philippines, “There is no constitutional right to bear arms. Neither is the ownership or possession of a firearm a property right. Persons intending to use a firearm can only either accept or decline the government’s terms for its use.”[3]

One of the present and principal laws in firearm regulation in the country is  Republic Act (RA) No. 10591, also known as “Comprehensive Firearms and Ammunition Regulation Act” which was enacted into law, along with its Implementing Rules and Regulations (IRR)’s approval in 2013.

II. SUMMARY OF THE CASE

The petitioners who are licensed gun owners assailed the constitutionality of R.A. No. 10591. The statute regulates the ownership and possession of firearms and ammunitions by private individuals., as well as manufacturing, dealing, and etc.; RA 10591 and its IRR regulates ownership and possession by setting qualifications and processes.

It was raised before the Supreme Court for its violation of the right to bear arms on the grounds of requiring license to own and operate a firearms and violation of Article III Section 2 of the Constitution which provides the protection against unreasonable searches and seizures.

As for the Court, it was reiterated, as in the case of Chavez, that  the right of individuals to bear arms is not absolute, but is subject to regulation. The maintenance of peace and order and the protection of the people against violence are constitutional duties of the State, and the right to bear arms is to be construed in connection and in harmony with these constitutional duties.[4] However, the grant of license is without prejudice to the inviolability of the home. The signing of Consent of Voluntary Presentation for Inspection is a violation of Article III Section 2 of the Constitution. What is of supreme importance is the right of the people against unreasonable searches and seizures. And the government, in the guise of regulation, cannot conduct inspections of applicants for firearm licenses unless armed with a search warrant.[5]

III. REASONABLE SEARCH AND SEIZURE TO CAP ABUSE

In Caballes v. CA, the Court discussed the parameters for giving a valid consent to search one’s home, that the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. A consent to a must be shown by clear and convincing evidence.  In the determination of such evidence,  the characteristics of the person giving consent and the environment must be given perusal, to wit: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive police procedures; (6) the defendant’s belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given.[6]

And in requiring a waiver in the pro forma Individual Application for New Firearm Registration, the Philippine National Police appears to recognize the inviolability of the home. Nevertheless, signing the Consent of Voluntary Presentation for Inspection does not result in a true and valid consented search. Section 9 of Republic Act No. 10591 and its corresponding provision in the Implementing Rules are unconstitutional for being violative of Article III, Section 2 of the Constitution. The Court extensively discussed Section 9 of the subject statute authorizing warrantless inspections of houses is unreasonable and, hence, requires a search warrant. It was considered overbroad as it failed to provide the scope and limitations of the inspections.  

IV.  ERADICATING GUN VIOLENCE WITHOUT PREJUDICE

Indeed, there is a need to put a stricter regulation of individual firearm ownership and possession in the country. The Philippines has gained a lot of negative reputation, and one of it is gun violence.[7] In 2016, every day in the newspapers are people being killed;[8] it may be committed by an unknown assailant, a uniformed personnel, or a private individual who either has intention or lost calm. However, it must be crucial as well that any person not be put at disadvantaged, such as violating their protection against unreasonable searches and seizures without warrant.

With such decision by the Supreme Court, innocent private individuals—whether an owner or not—are spared from the many possible ways that the uniformed men may abuse their authority. For example,  uniformed personnel may just enter into the private home of an individual who may be an owner or not, to threaten; and if not, the latter may be planted with evidence, like in the number of cases in the country.[9]

Lastly, as William Pitt once said, “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.”

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_{[1] UST Faculty of Civil Law, 2G, UST Law Review Understudy}

_{[2] (Aranas, 2019)}

_{[3] Acosta v. Ochoa, G.R. No. 211559. October 15, 2019.}

_{[4] Chavez v. Romulo. G.R. No. 157036. June 9, 2004}

_{[5] Acosta v. Ochoa, G.R. No. 211559. October 15, 2019.}

_{[6] Caballes v. Court of Appeals, G.R. No. 136292. January 15, 2002}

_{[7] (KCET, n.d.)}

_{[8] (Aljazeera, 2016)}

_{[9] (The Guardian, 2019)}

REPRESENTATIVES EDCEL C. LAGMAN, et al v. SENATE PRESIDENT AQUILINO PIMENTEL III, et al: CHECKING ON CHECKS AND BALANCES

^{Photo is credited to Vinnie Neuberg.}

_{By: Ristel Mae B. Tagudando[1]}

I. CONSTITUTION ON CONGRESS POWER TO EXTEND MARTIAL LAW

The Congress has the power, granted by the 1987  to shorten or extend the President’s proclamation of martial law or suspension of the privilege of the writ of habeas corpus. This supported by the pertinent part in Section 18, Article VII of the 1987 Constitution which states that the Congress may revoke such proclamation or suspension, which shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

II. CONGRESSIONAL CHECK

The President requested the Congress to extend the effectivity of Proclamation No. 216,  which declares a state of martial law and suspending the privilege of the writ of habeas corpus in the whole of Mindanao for a period not exceeding sixty (60) days, to address the rebellion mounted by members of the Maute Group and Abu Sayyaf Group (ASG).

Both the Senate and the House of Representatives were asked by the President to further extend the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus in the entire Mindanao for one year, or for such period as the Congress may determine. In a joint session, the Senate and the House of Representatives,  adopted the resolution further extending the period of martial law and suspension of the privilege of the writ of habeas corpus in the entire Mindanao for one year.

The Court ruled that the Congress has the power to extend and determine the period of martial law and the suspension of the privilege of the writ of habeas corpus. The Congressional check on the President’s martial law and suspension power consists of first,  the power to review the President’s proclamation of martial law or suspension of the privilege of the writ of habeas corpus, and to revoke such proclamation or suspension. Such review is “automatic in the sense that it may be activated by Congress itself at any time after the proclamation or suspension is made.” The Congress’ decision to revoke the proclamation or suspension[2]  and cannot be set aside by the President. Second, the power to approve any extension of the proclamation or suspension, upon the President’s initiative, for such period as it may determine, if the invasion or rebellion persists and public safety requires it.

Such extension of the proclamation or suspension, when approved by the Congress, the becomes a “joint executive and legislative act” or a “collective judgment” between the President and the Congress.

III. GRANTED TO TOLL ABUSE OF COMMANDER-IN-CHIEF’S ARMED FORCES

The Congress was granted the power to shorten or extend the President’s proclamation of martial law or suspension of the privilege of the writ of habeas corpus in the 1987 Constitution, particularly expressed on Section 18, Article VII. Unlike under the 1935[3] and 1973[4] Constitutions, the Congress had no power to review or limit the Executive’s exercise of the authority to declare martial law or to suspend the privilege of the writ of habeas corpus.

Due to the country’s martial law experience under the Marcos regime, such power was subsequently established in the 1987 Constitution as part of a system of checks and balance designed to forestall any potential abuse of an extraordinary power lodged in the President as Commander-in- Chief of the country’s armed forces.

IV.  MORE REASONABLE AND WEIGHED

The Philippines, at present,  following  the global order in pursuit of both economic security and security of the State, is still based on several myths, one of is that such can mainly be pursued through military means, which explains the astronomical budgets allocated to it. [5] As a result, incidentally have also contributed to a significant number of abuses by the uniformed, such as during Marcos regime, and currently, more so under Duterte’s administration. [6]

This recent case shall render a cap on the possible abuses of the power vested on the President as regards the armed forces as the Congress has the review the President’s proclamation and to approve any extension beforehand.

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_{[1] UST Faculty of Civil Law, 2G, UST Law Review Understudy}

_{[2]  Citing Lagman v. Medialdea, supra note 18}

_{[3] Section 10, Article VII (Executive Department) of the 1935 Constitution states: “The President shall be commander-in-chief of all armed forces of the Philippines, and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under Martial Law.”}

_{[4] Section 12, Article IX (The Prime Minister and the Cabinet) of the 1973 Constitution reads: “The Prime Minister shall be commander-in-chief of all armed forces of the Philippines, and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, or rebellion, or imminent danger thereof when the public safety requires, it he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.”}

_{[5] Nyamilepedia. (2020, August 29). Evolving Perspectives on Human Rights,The Shifting Global Paradigm . Retrieved November 30, 2020, from https://www.nyamile.com/2020/08/29/evolving-perspectives-on-human-rightsthe-shifting-global-paradigm/}

_{[6] Abusive Philippine ‘Drug War’ Gets Military Reinforcements. (2020, October 28). Retrieved November 30, 2020, from https://www.hrw.org/news/2017/02/01/abusive-philippine-drug-war-gets-military-reinforcements}

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