By: Fidel D.

Banzon
11/05/09
Show of force
(Part I)
Continuation from last issue...

“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 drivers 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?
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