Martial law’s specter looms in checkpoints

In confronting the various threats posed by these perilous times, should there be a tradeoff between the rule of law and the exigencies of public safety and order? Should the safeguards against government abuses—which are enshrined in our Constitution as a continuing repudiation of the abuses during the Marcos era—give way to the expediency of the hour?

Last Sept. 21, on the 42nd anniversary of the imposition of martial law, I was in Tagum City, Davao del Norte, for a brief visit. Returning to Davao City in the evening of that day, the bus I was riding stopped at the checkpoint in Barangay Lasang. It was manned by members of the Task Force Davao (TFD), a team organized in the aftermath of the bomb explosions at the Davao airport in 2003.

As the bus pulled over at the designated area, the TFD officer assigned there ordered all the passengers to disembark. Everyone obeyed. The officer searched the bags of a number of passengers, flashing a light to see what was inside as the area was poorly lit. The officer also randomly frisked the passengers. Then he boarded the bus and searched it.

After the inspection, the TFD officer found neither drugs nor dangerous weapons. The inspection yielded nothing suspicious.

Such is the scenario I always encounter whenever I travel from Tagum to Davao. If only to keep the city and its residents safe from thugs and terrorists, I’m all for the checkpoint. There is, however, something wrong with the procedure involved. Certainly, the extensive search provides a safety net for the people against those who mean to sow discord in the city. But such extensiveness upends the constitutional rule against a warrantless search.

“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…” states Article III, Section 2 of the 1987 Philippine Constitution.

What this constitutional provision proscribes is not merely search, but unreasonable search. While the general rule is “no search warrant, no search,” there are exceptions to it, one of which is a search in a moving vehicle.

Over the years, the Supreme Court has relaxed the rule against warrantless search in moving vehicles. The reason is that “it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”

Yet the rule does not grant unbridled license to government authorities to do just about anything during the search. There are still limits by which the warrantless search in a moving vehicle should be done. As the Supreme Court explained in Caballes vs CA, “Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case.”

The Supreme Court clarifies that this warrantless “stop and search” of a moving vehicle, which is commonplace at police or military checkpoints, is not illegal per se, and is justified when “it is warranted by the exigencies of public order and conducted in a way least intrusive to motorists.” It adds: “A checkpoint may either be a mere routine inspection or it may involve an extensive search.”

Routine inspections of vehicles are permissible, but according to the Supreme Court, these should be limited to, among others, a visual search or inspection. Also, the occupants should not be subjected to physical or body search.

What if the vehicle is extensively searched? The Supreme Court says: “When a vehicle is stopped and subjected to an extensive search, such a warrantless search would be constitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender or they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched.”

The extensive search usually conducted at the TFD checkpoint, I submit, goes beyond what is constitutionally allowed. Yet what is more worrisome is not that the search is unconstitutional. It is that in the name of peace and order, we seem to be more than willing to give government authorities great leeway even at the expense of giving up our civil liberties.

But adherence to the rule of law should not be always at odds with the pursuit of public order and safety. Liberty and authority are not irreconcilable enemies, then Justice Isagani Cruz argued in his dissenting opinion in Guanzon vs De Villa.

“The two must in fact coexist, for only in a well-ordered society can rights be properly enjoyed. Implicit in that theory, however, is the other imperative: that the highest function of authority is to insure liberty,” said Cruz, now deceased.

Therefore, authority must give way to liberty when the former encroaches upon the liberties protected by the Constitution. If the authority utterly disregards liberty, the task is left to the people to be vigilant of their rights.

How haunting are Cruz’s words: “Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire…”

Arvin Antonio V. Ortiz, 25, is a full-time high school teacher of social studies at Holy Cross of Davao Inc. and a third-year student at the University of Mindanao College of Law.