Q. No. 20 | Political Law | Bar 2023
Bartolome is the Deputy Chief of Mission of the Embassy of Argentina. One week before the expiry date of the appointment of Bartolome in the Mission, he went on a three-day vacation in Brazil, a country known for its rich biodiversity and abundant natural resources.
Determined to carry along a precious gift to his wife, Bartolome packed into his luggage a protected species of orchid found only in Brazil.
Sniffing dogs at the Rio de Janeiro International Airport sensed something in his checked-in luggage, drawing the attention of airport officials.
When asked to open the luggage, Bartolome presented his diplomatic identification and refused to submit to any inspection.
Airport officials informed him of the penal sanctions for transporting illegal items suspected in any luggage.
May Bartolome validly invoke diplomatic immunity and inviolability of his personal luggage? Explain briefly.
Ads.
RE: reasonable searches and seizures fall outside the scope of the prohibition and are not forbidden.
As a component of the right to privacy,62 the fundamental right against unlawful searches and seizures is guaranteed by no less than the Constitution. Article III, Section 2 of the Constitution provides:
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, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. 63
Ads.
To underscore the importance of an individual's right against unlawful searches and seizures, Article III, Section 3(2) of the Constitution considers any evidence obtained in violation of this right as inadmissible. 64
The Constitutional guarantee does not prohibit all forms of searches and seizures.65 It is only directed against those that are unreasonable.66 Conversely, reasonable searches and seizures fall outside the scope of the prohibition and are not forbidden. 67
Ads.
People v. Cogaed71 clarified that there are exceptional circumstances "when searches are reasonable even when warrantless."72 The following are recognized instances of permissible warrantless searches laid down in jurisprudence: (1) a "warrantless search incidental to a lawful arrest,"73 (2) search of "evidence in 'plain view,"' (3) "search of a moving vehicle," (4) "consented warrantless search[es]," (5) "customs search," (6) "stop and frisk," and (7) "exigent and emergency circumstances."74 (**)
RELATED
RE: Airport screening search is a constitutionally reasonable administrative search.
While the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures is guaranteed by Section 2, Article III of the 1987 Constitution,[22] a routine security check being conducted in air[23] and sea[24] ports has been a recognized exception. —— This is in addition to a string of jurisprudence ruling that search and seizure may be made without a warrant and the evidence obtained therefrom may be admissible in the following instances: (See footnotes nos. 71 to 74 above).
Ads.
The search and seizure of an illegal drug during a routine airport inspection made pursuant to the aviation security procedures has been sustained by this Court in a number of cases.[19] In the leading case of People v. Johnson,[20] we held:
“Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nation's airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures[21][.]”
Searches and seizures are ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.[32] However, because administrative searches primarily ensure public safety instead of detecting criminal wrongdoing, they do not require individual suspicion.[33] Where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as "reasonable."[34] In particular, airport searches have received judicial sanction essentially because of the magnitude and pervasiveness of the danger to the public safety and the overriding concern has been the threat of death or serious bodily injury to members of the public posed by the introduction of inherently lethal weapons or bombs.[35]
Ads.
Although the US Supreme Court has not specifically held that airport screening searches are constitutionally reasonable administrative searches, it has suggested that they qualify as such.[36] Airport security searches can be deemed lawful administrative searches because (1) these searches constitute relatively limited intrusions geared toward finding particular items (weapons, explosives, and incendiary devices) that pose grave danger to airplanes and air travelers; (2) the scrutiny of carry-on luggage is no more intrusive (in both its scope and intensity) than is necessary to achieve the legitimate aims of the screening process (that is, to ensure air travel safety); (3) airline passengers have advance notice that their carry-on luggage will be subjected to these security measures, thus giving passengers the opportunity to place their personal effects in checked luggage; (4) all passengers are subject to the same screening procedures; and (5) passengers are aware that they can avoid the screening process altogether by electing not to board the plane.[37] Moreover, abuse is unlikely because of its public nature.[38]
Ads.
RE: Permissible (Airport) Administrative Search
As a permissible administrative search, the scope of airport routine check is not limitless.[39] Airport screening procedures are conducted for two primary reasons: first, to prevent passengers from carrying weapons or explosives onto the aircraft; and second, to deter passengers from even attempting to do so.[40] The oft-cited case of United States v. Davis[41] sets the appropriate standards for evaluating airport screening searches as constitutionally reasonable administrative searches, thus:
[S]earches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched.
Ads.
As we have seen, screening searches of airline passengers are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings. The essential purpose of the scheme is not to detect weapons or explosives or to apprehend those who carry them, but to deter persons carrying such material from seeking to board at all.
Ads.
Of course, routine airport screening searches will lead to discovery of contraband and apprehension of law violators. This practical consequence does not alter the essentially administrative nature of the screening process, however, or render the searches unconstitutional. x x x. Ads.
Hence, an airport search remains a valid administrative search only so long as the scope of the administrative search exception is not exceeded; "once a search is conducted for a criminal investigatory purpose, it can no longer be justified under an administrative search rationale."[49] Where an action is taken that cannot serve the administrative purpose, either because the threat necessitating the administrative search has been dismissed or because the action is simply unrelated to the administrative goal, the action clearly exceeds the scope of the permissible search.[50] To the extent that airport administrative searches are used for purposes other than screening luggage and passengers for weapons or explosives, they fall outside the rationale by which they have been approved as an exception to the warrant requirement, and the evidence obtained during such a search should be excluded.[51]
Ads.
Furthermore, to be constitutionally permissible, warrantless and suspicionless airport screening searches must meet the Fourth Amendment standard of reasonableness.[52] "What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself."[53] There can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.[54] In other words, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.[55] Specifically, the Court must balance an individual's right to be free of intrusion with "society's interest in safe air travel."[56] On this score, Davis again has provided a guidepost. There it was held that an airport security search is considered as reasonable if: (1) the search is no more extensive or intensive than necessary, in light of current technology, to satisfy the administrative need that justifies it, that is to detect the presence of weapons or explosives; (2) the search is confined in good faith to that purpose; and (3) a potential passenger may avoid the search by choosing not to fly.[57]
Ads.
Lawyer t-shirt
RE: Airport search is reasonable when limited in scope to the object of the Anti-Hijacking program, not the war on illegal drugs.
Unlike a routine search where a prohibited drug was found by chance, a search on the person of the passenger or on his personal belongings in a deliberate and conscious effort to discover an illegal drug is not authorized under the exception to the warrant and probable cause requirement.[75] The Court is not empowered to suspend constitutional guarantees so that the government may more effectively wage a "war on drugs." If that war is to be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime.[76] (***)
Ads.
RE: Jure Imoerii vs. Jure gestions
As it stands now, the application of the doctrine of immunity from suit has been restricted to sovereign or governmental activities (jure imperii). The mantle of state immunity cannot be extended to commercial, private and proprietary acts Jure gestionis ).
Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act involved - whether the entity claiming immunity performs governmental, as opposed to proprietary, functions. As held in United States of America v. Ruiz –
Ads.
The restrictive application of State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. Stated differently, a State may be said to have descended to the level of an individual and can thus be deemed to have tacitly given its consent to b e sued only when it enters into business contracts. It does not apply where the contract relates to the exercise of its soverdgn functions.1 (Emphases supplied. Citations omitted)
From the Philippine perspective, what determines its ability to impose its law upon the foreign entity would be the act of the foreign entity - on whether the act is an aspect of its sovereign function or a private act.
RELATED
Ads.
RE: Diplomatic Immunity
PRELIMINARY
Sovereign immunity serves as a bar for the foreign sovereign to be subjected to the trial process. Supported both by local jurisprudence, as well s international law (which forms part of the Philippine legal structure), the doctrine should not be reversed in this particular case.
SOVEREIGN IMMUNITY IN PHILIPPINE LAW
Sovereign immunity in Philippine law has been lengthily discussed by the Court in China National Machinery & Equipment Corp. v. Hon. Santamaria in the following manner:
Ads.
This Court explained the doctrine of sovereign immunity in Holy See v. Rosario, to wit:
There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jurc imperii of a state, but not with regard to private acts or acts jure gestionis.
x x x x
The restrictive theory came about because of the entry of sovereign states into purely commercial activities remotely connected with the discharge of governmental functions. This is particularly true with respect to the Communist states which took control of nationalized business activities and international trading.
In JUSMAG v. National Labor Relations Commission, this Court affirmed the Philippines' adherence to the restrictive theory as follows:
The doctrine of state immunity from suit has undergone further metamorphosis. The view evolved that the existence of a contract docs not, per se, mean that sovereign states may, at all times, be sued in local comis. The complexity of relationships between sovereign states, brought about by their increasing commercial activities, mothered a more restrictive application of the doctrine. (*****)
RE: What then is the status of the international official with respect to his private acts?
[…] acts performed in an official capacity by either a diplomatic envoy or an international official are not attributable to him as an individual but are imputed to the entity he represents, the state in the case of the diplomat, and the organization in the case of the international official.23
RE: "restrictive theory" limiting the immunity of states under international law.
Even in the United States this theory seems to be the prevailing rule. The Foreign Sovereign Immunities Act was passed adopting the "restrictive theory" limiting the immunity of states under international law essentially to activities of a kind not carried on by private persons. Then the International Organizations Immunities Act came into effect which gives to designated international organizations the same immunity from suit and every form of judicial process as is enjoyed by foreign governments. This gives the impression that the Foreign Sovereign Immunities Act has the effect of applying the restrictive theory also to international organizations generally. However, aside from the fact that there was no indication in its legislative history that Congress contemplated that result, and considering that the Convention on Privileges and Immunities of the United Nations exempts the United Nations "from every form of legal process," conflict with the United States obligations under the Convention was sought to be avoided by interpreting the Foreign Sovereign Immunities Act, and the restrictive theory, as not applying to suits against the United Nations.26 (****)
RE: SOVEREIGN IMMUNITY AS A POLITICAL DECISION
In Vinuya v. Romulo, we stated that "the question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches."16 Immunity then, unlike in other jurisdictions, is determined not by the courts of law but by the executive branches. Indeed, this was extensively discussed in Chief Justice Puno's concurring opinion in Liang v. People, to wit:
Petitioner's argument that a determination by the Department of Foreign Affairs that he is entitled to diplomatic immunity is a political question binding on the courts, is anchored on the ruling enunciated in the case of WHO, et al. vs. Aquino, et al., viz:
"It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, the Solicitor General in this case, or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that in such cases the judicial department of the government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction."
FOOTNOTES
73 The Revised Rules of Criminal Procedure allows a warrantless search incidental to a lawful arrest. RULES OF COURT, Rule 126, sec. 13 provides: Section 13. Search incident to lawful arrest. - A person lawfully arrested may be searched for dangerous weapons or anything that may have been used or constitute proof in the commission of an offense without a search warrant.
74 People v. Cogaed, 740 Phil. 212, 228 (2014) [Per J. Leonen, Third Division], citing People v. Aruta, 351 Phil. 868, 879-880 (1998) [Per J. Romero, Third Division].
[19] See People v. Cadidia, 719 Phil. 538 (2013); Sales v. People, 703 Phil. 133 (2013); People v. Suzuki, 460 Phil. 146 (2003); People v. Canton, 442 Phil. 743 (2002); and People v. Johnson, 401 Phil. 734 (2000).
[21] People v. Johnson, id. at 743, as cited in People v. Cadidia, supra note 19, at 556; Sales v. People, supra note 19, at 140; People v. Suzuki, supra note 19, at 159-160; and People v. Canton, supra note 19, at 758-759. See also Saluday v. People, G.R. No. 215305, April 3, 2018; People v. Gumilao, G.R. No. 208755, October 5, 2016 (Resolution); and Dela Cruz v. People, 653 Phil. 653, 683 (2016).
[32] United States v. McCarty, supra note 28, citing United States v. Aukai, supra note 28 (quoting City of Indianapolis v. Edmond, 531 U.S. 32 [2000]).
[34] See United States v. McCarty, supra note 28, citing United States v. Aukai, supra note 28 (quoting Chandler v. Miller, 520 U.S. 305 [1997]).
[36] United States v. Aukai, supra note 28, citing City of Indianapolis v. Edmond, supra note 32; Chandler v. Miller, supra note 34; and Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). See also Corbett v. Tramp. Sec. Admin, supra note 31; United States v. McCarty, 2011 U.S. App. LEXIS 18874 (2011) and supra note 28; and Vanbrocklen v. United States, 2009 U.S. Dist. LEXIS 24854 (2009).
[40] United States v. Marquez, 410 F.3d 612 (2005), citing United States v. Davis, 482 F.2d 893 (1973).
[49] United States v. McCarty, supra note 28, citing United States v. $ 124,570 U.S. Currency, supra note 43. See also Higerd v. State, supra note 28; and United States v. Fofana, supra note 28.
[55] Bruce v. Beary, 498 F.3d 1232 (2007), citing United States v. Davis, supra note 40. See also Gilmore v. Gonzales, 435 F.3d 1125 (2006).
[56] United States v. Pulido-Baquerizo, supra note 53. See also Higerd v. State, supra note 28; United States v. Fofana, supra note 28; United States v. Marquez, supra note 40; and State v. Hanson, supra note 35.
[57] See also United States v. McCarty, supra note 28; Higerd v. State, supra note 28; United States v. Fofana, supra note 28; United States v. Aukai, supra note 28; Gilmore v. Gonzales, supra note 55; State v. Book, 165 Ohio App. 3d 511 (2006); United States v. Marquez, supra note 40; United States v. PulidoBaquerizo, supra note 53; and United States v. Henry, 615 F.2d 1223 (1980).
*** EOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EANNA O'COCHLAIN, ACCUSED-APPELLANT, G.R. No. 229071. December 10, 2018
29 But see id. at 259. It is important to note that the submission of international officials to local jurisdiction for private acts is not completely accepted in doctrine and theory. Jenks, in particular, has argued for complete jurisdictional immunity, as has Hammarskjold.
MOST REV. PEDRO D. ARIGO et al. vs. SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, et al. G.R. No. 206510, September 16, 2014
Commentaires