汤头条

  View printer friendly version

CALL TO ORDER

At 9:39 a.m., the President of the Constitutional Commission, the Honorable Cecilia Mu帽oz Palma, called the session to order.

NATIONAL ANTHEM AND PRAYER

The National Anthem was sung followed by a prayer led by Mr. Florenz D. Regalado, to  wit:

Almighty Father, You have called us to be one people-inhabitants of numerous islands, speaking diverse languages, heirs to various traditions, and yet sharing a common faith in You, the one God, Creator of heaven and earth, and aspiring for a life of freedom, justice and peace.  

In this land You have so graciously blessed, You have brought together Christian and Muslim and others who also believe in Your divine presence and unfailing providence.

We ask You to be with us in grace and power as we strive to forge the unity of our nation and create a new life for our people.

Enlighten us with Your wisdom, strengthen us with Your power, purify us with Your grace, as we endeavor to set down in writing the basic law of our land, so that it may be a living sign of Your justice and righteousness among us, and a means for making Your salvation a reality for all our people.

We make our prayer through Christ our Lord.

Amen.

ROLL CALL

Upon direction of the Chair, the Secretary-General of the Commission called the Roll and the following Members responded:

Aquino, F. S.	Jamir, A. M. K.
Bacani, T. C.	Monsod, C. S.
Bennagen, P. L.	Nieva, M. T. F.
Bernas, J. G.	Nolledo, J. N.
Rosario Braid, F.	Mu帽oz Palma, C.
Brocka, L. O.	Quesada, M. L. M.
Calderon, J. D.	Rama, N. G.
De Castro, C. M.	Regalao, F. D.
Colayco, J. C.	De los Reyes, R. F.
Garcia, E. G.	Rigos, C. A.
Rodrigo, F. A.	Sumulong, L. M.
Romulo, D. R.	Tre帽as, E. B.
Rosales, D. R.	Uka, L. L.
Suarez, J. E.	Villacorta, W. V.

With 28 Members present, the Chair declared the presence of a quorum.

The following Members appeared after the Roll Call: 

Abubakar, Y. R.	Lerum, E. R.
Alonto, A. D.	Maambong, R. E.
Azcuna, A. S.	Natividad, T. C.
Bengzon, J. F. S.	Ople, B. F.
Concepcion, R. R.	Padilla, A. B.
Davide, H. G.	Sarmiento, R. V.
Foz, V. B.	Tadeo, J. S. L.
Gascon, J. L. M. C.	Tan, C.
Guingona, S. V. C.	Tingson, G. J.
Laurel, J. B.

Mr. Villegas was on official mission.

READING AND APPROVAL OF THE JOURNAL

On motion of Mr. Calderon, there being no objection, the reading of the Journal of the previous session was dispensed with and the said Journal was approved by the Body.

REFERENCE OF BUSINESS

On motion of Mr. Calderon, there being no objection, the Body proceeded to the Reference of Business.

REFERRAL TO COMMITTEES OF COMMUNICATIONS

Upon direction of the Chair, the Secretary-General of the Commission read the titles of the following communications which were, in urn, referred by the Chair to the committees hereunder indicated:

Communication No. 215 鈥� Constitutional Commission of 1986

Letter from the Trade Union Congress of the Philippines signed by Messrs. Jeremias U. Montemayor, Democrito T. Mendoza and Ernesto F. Herrera, submitting its "Position Paper on the Draft of the Philippine Constitution, Part II".

TO THE STEERING COMMITTEE

Communication No. 216 鈥� Constitutional Commission of 1986

Letter from Mr. Ramon R. J. Jamasali of Finance Ministry Intelligence Bureau, proposing provisions on the civil service

TO THE COMMITTEE ON CONSTITUTIONAL COMMISSIONS AND AGENCIES

Communication No. 217 鈥� Constitutional Commission of 1986

Letter from Mr. Pedro O. Valdez, 1971 Constitutional Convention Delegate, reiterating his position on the superiority of the parliamentary system over the presidential system of constitutional government

TO THE COMMITTEE ON THE EXECUTIVE

Communication No. 218 鈥� Constitutional Commission of 1986

Letter from Dr. Fe Canlas-Dizon of the Philippine Medical Association, submitting Resolution No. 04-86-7 of the Board of Governors of the Association proposing provisions manifesting the State's concern for the welfare of the children and the youth

TO THE COMMITTEE ON PREAMBLE, NATIONAL TERRITORY AND DECLARATION OF PRINCIPLES

Communication No. 219 鈥� Constitutional Commission of 1986

Letter from Dr. Juanito Z. Obal of the Philippine Dental Association, submitting a resolution proposing the inclusion of provisions for the protection of Filipino children, youth and mothers

TO THE COMMITTEE ON PREAMBLE, NATIONAL TERRITORY AND DECLARATION OF PRINCIPLES

Communication No. 220 鈥� Constitutional Commission of 1986

Letter from Mr. Christian Estrada of 317 Taylo, Pasay City, opposing the principle of separation of Church and State, and proposing the teaching of religion in schools

TO THE COMMITTEE ON GENERAL PROVISIONS

Communication No. 221 鈥� Constitutional Commission of 1986

Letter from Msgr. Josefino Iledan, VC of Kabankalan, Negros Occidental, sending a resolution signed by more than two thousand residents of Negros Occidental proposing a provision that the State acknowledge the importance of religion in character-building and allow religious instruction in all levels of education

TO THE COMMITTEE ON PREAMBLE, NATIONAL TERRITORY AND DECLARATION OF PRINCIPLES

Communication No. 222 鈥� Constitutional Commission of 1986

Letter from Ms. Paula Carolina S. Malay and Mr. Romulo R. Intia of Salinlahi Foundation, Inc., 15 General de Jesus St., Heroes Hill, Quezon City, enclosing resolutions and related articles on the promotion of children's rights and welfare

TO THE COMMITTEE ON PREAMBLE, NATIONAL TERRITORY AND DECLARATION OF PRINCIPLES

Communication No. 223 鈥� Constitutional Commission of 1986

Letter from Mr. Nicolas L. Alonzo for the Barangay Council of Mangal, Sumisip, Basilan, suggesting provisions of autonomy of local governments (barangay)

TO THE COMMITTEE ON LOCAL GOVERNMENTS

Communication No. 224 鈥� Constitutional Commission of 1986

Letter from the Kilusang Magbubukid ng Pilipinas signed by Mr. Rafael Mariano, submitting its position papers on agrarian reform and countryside development

TO THE COMMITTEE ON SOCIAL JUSTICE

Communication No. 225 鈥� Constitutional Commission of 1986

Letter from the Honorable Commissioner Cirilo A. Rigos transmitting a letter of Rev. Tito E. Paseo of the Philippine Independent Church stating his stand on the separation of Church and State

TO THE COMMITTEE ON GENERAL PROVISIONS.

Communication No. 226 鈥� Constitutional Commission of 1986

Letter from the Equality for all Filipinos, Inc., (EQUAFIL) signed by Mr. Wenceslao Vinzons Tan, proposing inclusion of provisions which would give substance to Filipinos and citizenship

TO THE COMMITTEE ON CITIZENSHIP, BILL OF RIGHTS, POLITICAL RIGHTS AND OBLIGATIONS AND HUMAN RIGHTS

Communication No. 227 鈥� Constitutional Commission of 1986

Letter from Mr. Telibert C. Laoc, Project Director, Consultation on the Constitution, NAMFREL-Cebu, enclosing the results of the municipal and parochial consultations conducted by the Ateneo Center for Social Policy (ACSP), Lakas ng Sambayanan and NAMFREL-Cebu in the Province of Cebu.

TO THE STEERING COMMITTEE

SUSPENSION OF SESSION

The Chair suspended the session.

It was 9:49 a.m.

RESUMPTION OF SESSION

At 9:50 a.m., the session was resumed.

CONSIDERATION OF COMMITTEE REPORT NO. 23 ON PROPOSED RESOLUTION NO. 486

On motion of Mr. Rama, there being no objection, the Body proceeded to the consideration of Committee Report No. 23 on Proposed Resolution No. 486, entitled:   

Resolution to incorporate in the new Constitution an Article on the Bill of Rights.

Upon request of Mr. Rama, the Chair recognized Mr. Bernas for the sponsorship.

SPONSORSHIP REMARKS OF MR. BERNAS

At the outset, Mr. Bernas manifested that his sponsorship remarks would be limited to general reflections on the Bill of Rights and to a brief explanation of the changes over the 1935 and 1973 Constitutional provisions of this Article.

On the general reflections, Mr. Bernas stated that the protection of fundamental liberties against the State are of the essence of constitutional democracy. The Bill of Rights, he said, governs the relationship between the individual and the State and not the relationship between private individuals, and declares some forbidden zones in the private sphere inaccessible to any power holder. He stated that the Committee's proposal contains the three concepts of the Bill of Rights 鈥� namely, civil liberties, to which belong freedom from arbitrary confinement, inviolability of the domicile, freedom from arbitrary searches and seizures, privacy of correspondence, freedom of movement, free exercise of religion, and free choices involving family relations; political freedoms which include freedoms relative to participation in the political process, freedom of assembly and association, the right vote, the right of equal access to office, the freedom to participate in the formation of public opinion and separation of church and state; and economic rights which cover everything that come under the heading of "economic self-determination", free pursuit of economic activity in general, free choice of profession, free competition and free disposal of property.

He noted that in the hierarchy of freedoms under existing jurisprudence, economic freedoms rank lowest and are the freedoms where reasonable invasion by the state is easily allowed.

The principal characteristic of these traditional freedoms of liberal constitutionalism as declared in the Bill of Rights, Mr. Bernas stated, is that they guarantee freedoms from the state and protection against the state, and as guarantees and protection, need no implementing action by the Legislature.

He mentioned that social and economic rights have arisen in recent years, largely through the influence of socialism and the teachings of the Popes, though he would consider such rights principally within the concern of the Committee on Social Justice. Making a distinction between economic and social rights from the traditional liberties embodied in the Bill of Rights, Mr. Bernas maintained that the former are not rights which operate without implementing legislation but are more properly claims or demands on the State and therefore would need implementing action by the State inasmuch as without such action they generally cannot be enforced against anybody by judicial action.

He stated that although social and economic rights are not the principal concerns of the proposal, they were incorporated in certain instances where certain economic rights and claims on the State are intimately related to traditional rights.

Thereafter, Mr. Bernas made a brief rundown on the innovations proposed by the Committee.

On Section 1, he stated that it contains the phrase "fertilized ovum", the intention of the Committee being to preclude the Supreme Court from following the United States doctrine which does not begin to weigh the life of the unborn against that of the mother until the fetus has reached a viable stage of development. Mr. Bernas explained that in American doctrine, the only requirement for allowing abortion during the first six months of pregnancy is that it will not be harmful to the mother and that it is only after the sixth month that the life of the fetus is weighed against the life of the mother. The innovation, he stated, says that from the moment of fertilization, the ovum should be treated as life whose worth must be weighed against the life of the mother, not necessarily saying that they are of equal worth.

Section 2 is the same as in the 1973 Constitution.

Section 3 reverts to the 1935 formula by eliminating the clause "or such other responsible officer as may be authorized by law" found in the 1973 Constitution. The word "personally" was added so that warrants under the proposal can be issued only by judges. He noted that once the Constitution is approved, the Presidential Commission on Good Government will no longer have the authority to issue warrants and search and seizure orders as it is not a judicial body and proposals to clip the powers of this Commission would be unnecessary.

Section 4 dropped the word "or" in the 1973 version such that intrusion into communication becomes allowable only upon order of the court on stated grounds.   

Section 5 used the phrase "and of changing the same" which is in the 1936 Constitution and added the phrase "within the limits prescribed by law" to ensure that whether the rights be impaired on order or without order of the court, the impairment must be in accordance with the prescription of law.

Section 6 is the same as in the 1973 Constitution.

Section 7 added the word "union" which would allow unions in both private corporations and in government entities/agencies.

Sections 8 and 9 are the same as in the 1973 Constitution.

Sections 10, 11,12, 13 and 14 are the same provisions found in the 1935 and 1973 Constitutions.

Section 15 dropped "insurrection" and "imminent danger of insurrection, invasion or rebellion" and limits the grounds for the suspension of the privilege of the writ of habeas corpus.

Sections 16 and 17 preserve the provisions of the 1973 Constitution.

Section 18 was harmonized with the recommendation on the death penalty such that all offenses will be bailable before conviction by sufficient sureties. The section also contains a provision that in addition to bail, temporary release may be obtained on recognizance as may be provided by law.

Section 19 preserves the provision of the 1973 Constitution. Section 20 segregated the clause on self-incrimination from the rest of the provision found in Section 20 of the 1973 Constitution. The Miranda doctrine in Section 20 of the 1973 Constitution has been reworded and placed in Section 21 of the new proposal, which provision now imposes a duty on the investigating officer to inform the person under investigation of his rights to remain silent and to have counsel. Such rights cannot be waived, except in writing and in the presence of counsel.

Mr. Bernas stated that the Committee spent the most time on this Article because efforts were really exerted to prevent the recurrence of things which happened during martial law.  

On the second paragraph of Section 21, Mr. Bernas stated that "admission" has been added to "confession." He also stated that the last two sentences are not self-executory but are intimately related to the previous sentences.

On Section 22, Mr. Bernas recalled that the Committee was divided on said section not on whether the death penalty should be abolished but on whether the abolition should be done by the Constitution, in which case it could not be restored or abolished by the Legislature. He stated that the majority of the members voted for the Constitutional abolition of the death penalty, the reason being that capital punishment is inhuman for the convict and his family who are traumatized by the waiting.

He stressed that life should not be destroyed in the hope that other lives might be saved, because assuming mastery over the life of another man is presumptuous. He stated that death penalty as an institution which has been there since time immemorial, should not be a deterrent from it being reviewed, because human life is more valuable than an institution which was intended precisely to save human life.

Finally, on Section 24, he stated that it expands the 1973 provision by including quasi-judicial bodies. He also stated that the matter of giving adequate assistance is not self-executory but would need implementing legislation.

INTERPELLATION OF MR. NOLLEDO

In reply to Mr. Nolledo's observation that Section 3 contains two parts, the first on the right of the people against unreasonable searches and seizures, and the second on the authority that will issue the search warrant or warrant of arrest, Mr. Bernas stated that the first part actually states what the right is, while the second part states how the right is protected.

On the application of said section to the Presidential Commission on Good Government (PCGG) relative to the issuance of search warrants and seizure orders, Mr. Bernas stated that a search is generally unreasonable if it is made without a warrant except in instances where jurisprudence allows searches without a warrant.

With respect to Section 5, Mr. Bernas stated that the impairment of the liberty of abode is determined by administrative authorities as to whether it is in the interest of national security, public safety or public health, provided that they act within the limits prescribed by law.

Or the limitations enshrined in Section 6 pertaining to the exercise of the right to information on matters of public concern, Mr. Bernas stated that said limitations, whether procedural or substantial, must be necessarily reasonable. He, however, expressed willingness to consider limitations to the manner of its exercise at the proper time.

On the observation that citizens are denied the right to know the real terms and conditions entered into by authorities with foreign countries, Mr. Bernas stated that, although he had no serious objections to limiting it to procedure, matters of national security should be thoroughly discussed before giving the public access to them.

Mr. Nolledo then adverted to the two resolutions he filed which were not given due course by the Committee, namely, the resolution providing that the right of peace-loving citizens to bear arms shall not be abridged; and the resolution guaranteeing the right of asylum to foreigners who are denied basic freedoms in their countries as well as the right to non-extradition. He then requested the Committee to reconsider its decision on the above mentioned resolutions.

INTERPELLATION OF MR. RAMA

On Mr. Rama's query relative to the basis of the Committee's statement that the death penalty had not discouraged crime, Mr. Bernas pointed out that penologists who appeared before the Committee stated that there was no conclusive evidence showing that the death penalty had deterred the commission of crimes.  

On whether the abolition of the death penalty would affect the crime rate of the country, Mr. Bernas stated that the position of those who voted in favor of this provision was that other penalties rather than the death penalty, could be availed of. He opined that this provision should really be included in the Constitution because if it is not explicitly stated therein, the Legislature could not do anything about it either. He also stated that his real reason for supporting the abolition of the death penalty is his respect for life.

On the contention that the death penalty is imposed by constituted authorities and that governments do send their people to war to defend the State, Mr. Bernas stressed that war is a different matter from the execution of a person as a penalty for committing a crime.

On the suggestion to conduct a survey on the perceptions of people with respect to the abolition of the death penalty in relation to the crime rate, Mr. Garcia pointed out that authoritative studies done by Amnesty International and by the United Nations show that crime rates in different countries that have retained or abolished the death penalty do not indicate that the threat of execution has prevented capital crimes. He further stated that changes in crime rates depend on many factors apart from the existence or use of the death penalty which, in fact, brings out the conditions in society that lead to the commission of the crime.

REMARKS OF MR. LAUREL

At this juncture, Mr. Laurel expressed support for the proposal to abolish the death penalty.

Adverting to a case wherein doctors prolong life even when the patient is clinically dead, Mr. Laurel observed that some people are just too willing to give up life. He maintained that a person who committed a crime should be punished but not executed because the taking away of one's life should be left to God. In this connection, in a case where judgment had been a mistake because the death penalty had been imposed on an innocent person while the guilty one had been absolved, he stated, that if the Commission were to make a choice, it would absolve the person rather than execute him.

Mr. Laurel then acknowledged and thanked the Committee for its splendid work during his absence.

INTERPELLATION OF MR. DE LOS REYES

In reply to Mr. de los Reyes' initial inquiry, Mr. Sarmiento confirmed that according to the Director of the Bureau of Prisons, there are 600 death row prisoners awaiting the implementation of the death penalty imposed on them and that if implemented, the State would practically be killing them en masse.

On the argument against the abolition of the death penalty that the offended parties or their families or even law enforcement agencies might just decide to take the law into their hands thus having more salvaging and lawlessness, Mr. Bernas acknowledged that while this is possible, revenge is possible in cases of erroneous acquittals.

In addition, Mr. Garcia stated that in many countries of the Third World, specifically in Latin America, governments that have accepted the death penalty are in fact practicing extrajudicial executions.

On Mr. de los Reyes' suggestion that he is for abolishing the death penalty through the Constitution, but that there should be a provision to allow future legislatures some amount of flexibility if they find that the abolition of the death penalty failed to prevent crimes, Mr. Bernas stated that the suggestion could be considered during the period of amendments.

At this juncture, Mr. Colayco manifested that on the question whether death penalty is a deterrent or not, Mr. David P. Phillips, who wrote the book Strong and Weak Research Designs for Detecting the Impact of Capital Punishment on Homicide and Mr. Ernest Van Den Haag, author of an article on the same subject, agreed that the mere fact that the death penalty is in the law books is not a sufficient deterrent. He informed that a study conducted on the subject showed that actual execution temporarily reduced the incidence of homicide cases but soon afterwards it increased.

Mr. Colayco then invited attention to the recent execution of two Australians who smuggled drugs into Malaysia, which executions could deter the repetition of the crime. He maintained that at least in certain areas of criminality, the death penalty should be retained and it was for this reason that he, with three others in the Committee, suggested the limitation of its coverage in order that future legislatures could further study the matter. He recalled that in the 1950s, the English Parliament made basically the same suggestion to suspend the death penalty for a certain period during which Parliament could make its own studies whether to abolish the death penalty or keep it in the statute books.   

On whether the Committee had recommended the grant of bail despite suspension of the privilege of the writ of habeas corpus, Mr. Bernas stated that although Committee Report No. 23 does not contain such provision, a forthcoming report of the Committee on the Executive contains a provision guaranteeing the right to bail even if the privilege of the writ of habeas corpus is suspended. However, he stated that he would not have objection to incorporating the same concept in the Bill of Rights.

On Section 22, in reply to Mr. de los Reyes' inquiry why there is no provision on inhuman, degrading and cruel treatment during detention but before conviction, Mr. Bernas explained that it is covered in Section 21 which deals even with situations before a trial begins or before charges are filed. He stated that contrary to Mr. de los Reyes' observation that Section 21 does not refer to detention prisoners, Section 21 which contains the provision "No force, violence, threat or intimidation shall be used against him" was made a separate section because the Committee wanted to make it more general than just for the purpose of preventing involuntary confessions.

At any rate, Mr. Bernas stated that the Committee would entertain amendments at the proper time.

On the sentence in Section 21 which reads "These rights cannot be waived except in writing and in the presence of counsel," Mr. Bernas affirmed that the act of waiver must be done with the assistance of counsel. And on the problem of availability of lawyers in order that this provision may be implemented, Mr. Colayco explained that under the present system of judicial administration, executive municipal judges may appoint an attorney de officio for the purpose.

Mr. Bernas stated that what is implicit in the provision is a command that in localities where there are no lawyers, the State is under obligation to bring the person detained to some place where there is a lawyer.

Additionally, Mr. Sarmiento stated that the Committee took into account the Supreme Court decisions in People vs. Galit and Moncupa vs. Morales, to the effect that before an accused can waive these rights, he should be assisted by a lawyer.

On Section 2, on the exercise of the power of eminent domain, Mr. de los Reyes stated that upon deposit by the government of ten per cent of the assessed value, it can take over the property and that the owner has practically no right to put an accurate value on his property because while the State readily agrees to a lower valuation, it will make its own assessment if the owner places the correct amount.

On the meaning of "just compensation", Mr. Bernas stated that existing jurisprudence defines it as the price which the property will command if the seller is not bound to sell and the buyer is not bound to buy. He stressed that this is a question of fact, the final determination of which is left to the court. He pointed out that the existing presidential decree on the matter of just compensation is not binding on the courts because it is a question of fact which is always subject to review by the courts.

Mr. Laurel adopted the explanation of Mr. Bernas, adding that a question of fact should be determined on a case-to-case basis.

SPEECH EN CONTRA OF MR. REGALADO

Taking a turn en contra, Mr. Regalado recalled that in 1949, the British Royal Commission on Capital Punishment was created to recommend to Parliament whether the death penalty should be abolished and it took four years for it to submit a report while in the State of Massachusetts in 1957, a Special Commission was created for the same purpose and it took two years for it to submit a report. He lamented the fact that the Constitutional Commission took only a few committee hearings to recommend the abolition of the capital punishment and, if approved, in less than two months would enshrine such a policy in the very fundamental law of the land.

He urged that this highly controversial issue, which had been debated for centuries in different fora and sectors, should be prudently considered. He added that since the unpredictability of socio-economic and political climate requires a more flexible response to this problem, the matter should be addressed to the Legislature rather than to the Constitutional Commission.

Explaining his opposition to the abolition of the death penalty, he opined that the term "life imprisonment" or reclusion perpetua is a misnomer because it has a duration of only 30 years with an allowance for good conduct, which penalty would be reduced further if the special time allowances for loyalty and special workmanship would be considered.

On the deterrence of death penalty, Mr. Regalado adverted to different articles and researches, specifically of Rev. Thomas Riley, who stated that all human beings, including those suffering from mental aberrations, fear the loss of their lives, that death penalty cannot but have a powerful influence on the voluntary direction of human activity. He added that generally, even imprisonment alone was never effective for the purpose of rehabilitation.

On the theory that God alone has the right to take away human life, he affirmed Bishop Riley's argument that the State derives its authority ultimately from God, which authority is exercised in His name: thus, it would not be inconsistent for the State to claim such right to life in circumstances which are not against the will of God.

Furthermore, on the contention that the right of man to life is anterior to the existence of the State, he underscored that if man through his own fault endangered the right of the State to exercise its divine functions, the State should likewise not be deprived of the indispensable right to defend or protect society.

He also pointed out that the abuses in the imposition of the death penalty should not obscure the justifications therefor. He stated that the abolition of such penalty could make it easier for those engaged in organized crime to do their thing indiscriminately. He stressed that the authority of the state carries with it the right to inflict the death penalty if only to protect the society from elements that endanger its very foundation, especially at this time when crimes of all kinds are increasing numerically while moral law is diminishing.

On the danger of imposing the death penalty to innocent persons, he opined that there are enough safeguards in procedural laws that make such possibility remote. He stated, however, that such kind of penalty is imposed only on extreme and serious cases, such as those provided in the Revised Penal Code, namely, treason, qualified piracy, parricide, murder, infanticide, kidnapping, robbery with homicide, rape with homicide or qualified rape, and arson resulting in death. Under special laws, he also pointed out that there are only five capital offenses, namely espionage, certain subversive acts, certain acts regarding narcotics, certain acts inimical to civil aviation and carnapping with murder.

He noted that although during the past regime, the death penalty was imposed even on minor offenses, such error should not be attributed to the law.

INTERPELLATION OF MR. TRE脩AS

In reply to Mr. Tre帽as query on Section 21, Mr. Bernas affirmed that any confession or admission obtained in violation of this or the preceding Sections are inadmissible for purposes of any proceeding.

On the proceeding against the person who violated such provision, Mr. Bernas explained that what could be abused in such proceeding is the manner of obtaining the confession and not the content thereof.

On the contention of Mr. Tre帽as that in proving the manner of confession, the content thereof would be involved, Mr. Bernas underscored that the content would be inadmissible.

Mr. Bernas, however, suggested that certain points to clarify the matter could be considered in the period of amendments.

On the definition of the term 鈥渏ust compensation", which had been interpreted by the courts in relation to the presidential decree which modified the term found in the 1935 and 1973 Constitutions, Mr. Bernas stated that constitutional principles could not be modified by decrees. He opined that in qualifying "just compensation" as either the assessed value of the property or the tax declaration, whichever is lower, the decree merely laid down the prima facie determination, subject to review by the courts.

Mr. Bernas stressed that "just compensation" refers to the market value of the property.

INTERPELLATION OF MRS. ROSARIO BRAID

On Section 6, in reply to Mrs. Rosario Braid's query on the meaning of the phrase "right to information on matters of public concern", Mr. Bernas explained that information refers to anything that affects public interest.

Mrs. Rosario Braid pointed out that such concept of information should encompass an adequate, accurate, balanced and productive information. Additionally, she opined that the right to communicate should also be incorporated in the meaning thereof, so that the people could initiate or demand information; hence, a two-way communication.

On Section 9, which provides for the freedom of speech and freedom of the press, she observed that it only protects the small minority of the elite who can have access to the media but not the lower class who had always been deprived of information. She also noted that most of the provisions in the Bill of Rights concern political rights which do not provide adequate opportunity for active participation of the great majority.

She expressed hope that such rights to education, food, sound and clean environment, and health should be well considered.

In reply, Mr. Bernas stated that the principal concern of the Bill of Rights is strictly on the traditional freedoms of liberal constitutionalism, which include the guaranteed freedom from the State and protection against the State. He stated that said freedoms do not require implementing action by the Legislature. He also distinguished between social and economic rights which have evolved through the recent years and the traditional liberties in the Bill of Rights, whereby the former require implementing action by the State, and should rather be included in other Articles.

INTERPELLATION OF MR. RODRIGO

Adverting to the proposed Section 4 which was a reproduction of the provision in the 1973 Constitution except for the deletion of the word "or" between "court" and "when", Mr. Rodrigo inquired if under the present proposal, an intelligence agency of the military could bug a telephone call without violating said provision, to which Mr. Bernas replied that it could only be done when ordered by the court.

On whether a tape recording of the telephone conversation between the former President and Mr. Tolentino during the aborted revolt, could be used as evidence, Mr. Bernas stated that under the 1973 Constitution, it could be used as evidence but not under the present proposal.

On Mr. Rodrigo's query whether the provision would hamper the intelligence work of the military, Mr. Bernas opined that the matter can be handled within the limits of the provision. He explained that the United States has also an Anti-Wire Tapping Act but in the case of United States vs. United States District Court of Eastern Michigan it was decided that wire tapping can be done upon order of the court provided that there is probable cause and particularity of description like specifying the subject matters which could be tapped.

Mr. Bernas explained further that under the provision, a court order would-be necessary all the time and the Legislature cannot legislate otherwise.

Mr. Rodrigo contended that on matters of national security and public order the situation may not allow time to ask a judge to issue an order.

However, Mr. Bernas maintained that although the matters tapped without court order could not be used as evidence against the persons involved, they could be used by the security forces to take the necessary preventive measures.

On Section 4, Mr. Bernas explained that the Committee deleted "or" in the proviso "The privacy of communication and correspondence shall be inviolable except upon lawful order of the court (or) when public safety or order requires otherwise" but retained the same in Section 5 because the former deals with communication while the latter refers to physical movement.

COMMENTS OF MR. DE CASTRO

On Section 22, Mr. de Castro commented that the Body should ponder well on whether the death penalty should be abolished considering that penologists are divided on the issue even after years of extensive study.

He then urged the Body to consider the recommendation of Messrs. de los Reyes and Regalado to refer the matter to the National Assembly for further study.

INTERPELLATION OF MR. SUAREZ

On Mr. Suarez' question on the meaning of "fertilized ovum" in relation to "person" in Section 1, Mr. Bernas admitted that he is not fully satisfied with the phrase and would join the efforts at finding a better phrase. He stressed, however, that the main purpose is to stop the Supreme Court from adopting the American doctrine on abortion laid down in the case of Roe vs. Wade to the effect that during the first six months abortion is allowed provided that the method used would not endanger the life of the mother.

Mr. Bernas stated that the fertilized ovum is not considered a person and, when deprived of life, the one responsible therefor should be charged with the crime of abortion and not of murder or homicide which applies only to life outside the womb.

At this juncture, Mr. Bacani added that the Committee agreed to use "fertilized ovum" to emphasize that the right to life begins with conception and although . not yet a person, it is already entitled to human life. He then read, for the record, the study made by Fr. Robert Henley, a specialist in fetal physiology at Georgetown University.

COMMENTS OF MR. PADILLA

Mr. Padilla stated that under the Civil Code, a "fertilized ovum" is not yet a person although it may already have the right to life, for which reason, the Revised Penal Code penalizes abortion.   

He opined that since the matter is already sufficiently covered by both the Civil Code and the Penal Code, there is no need to place it in the Constitution. He added that the matter of "fertilized ovum" or "death penalty" should be left to the domain of the Legislature.

On Mr. Romulo's query whether a nurse who accidentally spills a "fertilized ovum" in a test tube is guilty of abortion, Mr. Padilla stated that the accident may be an exempting circumstance under Article 12, Paragraph 4 of the Penal Code provided that all the requisites are present. If the act was intentional, Mr. Padilla stated that it is punishable even if the act done is different from what was intended under Article 4(1) of the Revised Penal Code.

On Mr. Bernas' query whether adoption of the U.S. Supreme Court decision in the case of Roe vs. Wade would do away with many of the Philippine abortion laws, Mr. Padilla stated that the Supreme Court cannot amend the laws but will have to rule whether or not they are unconstitutional.

Mr. Bernas stated that in the case of Roe vs. Wade the United States Supreme Court declared abortion laws unconstitutional as these were considered violations of the right to privacy.

Mr. Padilla maintained that invoking the U.S. Supreme Court decision and allowing the Philippine Supreme Court to follow it in a particular abortion case would be purely hypothetical.

INTERPELLATION OF MR. BROCKA

In reply to the query of Mr. Brocka, the Sponsor denied that abortion, under any and all circumstances, would be a crime or violation of human rights.

Mr. Bernas affirmed that abortion cannot be considered a violation of human rights in situations where the physical or psychological well-being of the mother would be endangered by an unwanted pregnancy as in a case where the mother's life is threatened by pregnancy or a pregnancy resulting from rape. Mr. Bernas also explained that the only object of the provision is to take away the complete liberty of the woman to get rid of the fetus even if it would not in any way endanger her health or her life.

Mr. Brocka then suggested wording the provision in such a way as to make it clear that the intention is to ban illegal abortion.

Mr. Bernas pointed out that the argument in Roe vs. Wade is the privacy of the mother's womb. He stated that if the mother decides to get rid of the fetus at any time within the first six months, the doctor would be allowed to perform the abortion as long as it could be done safely and even if no medical impediment exists.

On Mr. Brocka's inquiry if the term "fertilized ovum" would go into the Constitution in the event the Body fails to find better substitute, Mr. Bernas replied in the affirmative.

Thereafter, Mr. Brocka maintained that the term should not be used in the Constitution as there is no clear medical consensus that "fertilized ovum" is considered human life.

SUSPENSION OF SESSION

On motion of Mr. Rama, the Chair suspended the session until two-thirty in the afternoon.

It was 12:14 p.m.

RESUMPTION OF SESSION

At 2:51 p.m., the session was resumed.

INTERPELLATION OF MR. RIGOS

In reply to Mr. Rigos' query on whether the Committee had considered the effect of extending the "right to life" to the "fertilized ovum" on the sensibilities of the religious minorities which do not look at the fertilized ovum as having reached a stage that can be considered as human life, Mr. Bernas stated that precisely the Committee used the phrase "fertilized ovum" in order to avoid a debates the only purpose being, to avoid the over-liberal American doctrine that the mother is absolutely free to undergo abortion during the first six months of pregnancy.

On the suggestion to leave such objective to legislation, Mr. Bernas stated that if the Body would reject the over-liberal American doctrine, then such phrase would no longer be necessary.

Mr. Bacani pointed out, however, that the reason why it could not be left to legislation is because the Committee would like to have a clear-cut stand on the matter, thereby preventing legislation from changing the laws on abortion later on.

On the contention that religious authorities may differ in opinion as to when life exactly commences, Mr. Bacani maintained that the matter of abortion is not a question of religious boundaries. He pointed out that there are, in fact, several religious groups, though not Catholic, which are against abortion.

Mr. Rigos stated that, although the Protestant Church is against abortion, it just wants to make a distinction between abortion and miscarriage, to which Mr. Bacani replied that there is nothing in the provision against miscarriage.

With regard to the cultural values involved, Mr. Rigos maintained that this aspect could be covered by legislation.

(At this juncture, the President relinquished the Chair to the Honorable Florenz D. Regalado.)

INTERPELLATION OF MS. AQUINO

Ms. Aquino observed that there has always been strong support for the view that life does not begin until birth, so much so that the moment the sanction to the fertilized ovum is constitutionalized, it might disturb settled jurisprudence in civil law. She stressed that it is settled jurisprudence that the human personality, rather than the right of a person, does not ripen until one is born alive.

She opined that Mr. Bacani's allusion to life being present at conception was meant to give recognition to the potential rather than the actual and, therefore, the Commission should not preempt a question that is within the domain of the Constitution.

She contended that, although it may be true that the unfertilized egg has life and, if fertilized, takes on human proportions, the law and the Constitution should deal with reality, not obscurity. She stated that although it may also be true that when the sperm merges with the egg, it may live, there is also the possibility that it may die. In this connection, she maintained that the Constitution should not deal with speculation, considering the fact that life takes time to develop and that a fetus represents nothing more than a potentiality for life.

Commenting on Mr. Bernas' remark with regard to the over-liberal American doctrine, Ms. Aquino stated that Filipino culture would not allow an unqualified and unconditional abortion. She then reiterated that this particular provision does not rightfully belong to the Constitution.

INQUIRY OF MR. NOLLEDO

In reply to Mr. Nolledo's query whether the fertilized ovum has life, Ms. Aquino replied that, although the question should be better addressed to one knowledgeable in the field of medicine, the egg itself has life and that it takes human proportion only upon meeting the sperm.

On whether a fertilized ovum would be considered a human being, Ms. Aquino stated that it could be, in the sense that it begins to assume the proportions of a human person who has a presumptive personality capable of inheritance and all other purposes favorable to it, although the perfection of its personality is contingent upon being born alive.

Mr. Nolledo then inquired where speculation lies in the recommendation of the Committee that the right to life extends to the fertilized ovum.

On the contention that a fertilized egg could die at any time in the same manner that human beings die at any time and therefore have the right to life, Ms. Aquino disagreed and maintained that the Commission is not in a position to settle the question of whether a fertilized egg has the right to life or not, considering that even experts in the fields of medicine and theology could not settle the question. She opined that it would be a tragedy for the Commission to preempt this question by putting it in the Constitution thereby providing ambiguities which may even disturb settled jurisprudence.

Mr. Nolledo argued that there is no ambiguity in the sense that a fertilized egg, in the normal course of events, would eventually develop into a human being with a right to life which should be recognized by the Constitution.

On whether he agrees that the status of jurisprudence in civil law is that the right of a person is vested upon a child only when it is born alive and that it begins to appropriate interest or lay claim to enforceable rights only then, Mr. Nolledo replied that under that settled jurisprudence there is an expressed provision on the presumptive personality. He pointed out, however, that the Constitutional Commission, in drafting the fundamental law of the land, should not be bound by settled jurisprudence, Supreme Court rulings or opinions of recognized luminaries. He stressed that the Constitution should prevail over settled jurisprudence.   

Commenting on the remarks of Ms. Aquino, Mr. Bacani took exception to the contention that it is a matter of speculation whether or not a fertilized egg has the right to life. He maintained that, even scientifically, there is no doubt that on the eighth week, it is no longer a speculation.

Mr. Bacani read into the record an article which recounted the life of an advocate of abortion who, after abortion was legalized in New York, worked in an abortion clinic and later realized, upon witnessing 60,000 abortions, that human life exists within the womb from the very onset of pregnancy.

Mr. Bernas perceived that within the Commission there is a great respect for life. He opined that when a law is subject to innumerable interpretations and likely to be misunderstood and misinterpreted, it is a bad law. He believed that the phrase, as worded, was not felicitous and even if it is deleted, it could not be denied that there has been an overwhelming concern for life.

INTERPELLATION OF MR. RODRIGO

In his interpellation, Mr. Rodrigo stressed that the Bill of Rights are rights of individuals vis-a-vis the State which cannot be violated by the State. He stated that what the Bill of Rights tries to prevent is the violation of such rights by the State and not by individuals. Relative thereto, he raised the question whether abortion has something to do with the Bill of Rights in the sense that this is an act not by the State but by individuals.

In reply, Mr. Bernas stated that if there is an abortion law in the country which covers only the period of third trimester, to that extent would be assault of the State.

Mr. Rodrigo maintained that what the Bill of Rights tries to prevent are assaults by the State. He opined that abortion has no relation whatsoever to the Bill of Rights.

In reply, Mr. Bernas, while agreeing that the Bill of Rights is generally a bill governing the relation between the State and the individual, pointed out that it also contains certain commands to the State which are not strictly guarantees like the one in Section 10.

Finally, Mr. Rodrigo observed that Section 10 is not worded as a command to the State unlike the other provisions.

INTERPELLATION OF MRS. QUESADA

In her interpellation, Mrs. Quesada informed that she was one of the proponents of Resolution No. 175 seeking the inclusion of a section that would express the right to life of the human embryo with due regard to the equal right to life of the mother. She inquired why such Resolution was not considered in the formulation of the Bill of Rights.

In reply, Mr. Bernas stated that the words "human embryo" could provoke debates which should be avoided. He stated, however, that the Committee would be open to a reformulation.

On the right to life, Mrs. Quesada sought the opinion of the Committee as to how an individual could invoke such right if he is denied it on account of neglect or absence of adequate basic services. She cited as an example that because of inadequacy in the delivery of health services, persons are helpless and are thereby denied the right to life.

In reply, Mr. Bernas opined that the points raised by Mrs. Quesada could be very well taken up in the Declaration of Principles, which, although not self-executory, could be carried out by legislation.

On the suggestion to enshrine such proposal in the Bill of Rights, Mr. Bernas pointed out that the proposal refers to those which the State must do and therefore could not be included in the Bill of Rights because it is a list of things which the State may not do.

Mrs. Quesada maintained that the concept of the Bill of Rights should be expanded so as to give a strong-guarantee that nobody should be denied the right to health which in the final analysis is the right to life. She suggested that the Bill of Rights cover all fundamental rights that have been enshrined in the Universal Declaration of Human Rights and in the International Covenant of Economic, Social and Cultural Rights.

In reply, Mr. Bernas explained that the reason why the Bill of Rights had been limited was because any other rights could be taken up in the other Committees.

On whether Section 14 could be invoked by those engaged in voluntary services, Mr. Bernas pointed out that Section 14 covers any kind of voluntary service and the question raised referred to volunteer workers who could be covered by labor or social justice legislation.

INTERPELLATION OF MR. OPLE

In his interpellation, Mr. Ople informed that he was one of the authors of Resolution No. 242 which condemned death penalty as a cruel and inhuman punishment.   

With respect to the so-called extrajudicial execution which is another threat to human life, Mr. Ople pointed out that in the countryside, there are millions who live in terror for fear of their lives because of the problem of insurgency.

Adverting to the Escalante Massacre, Mr. Ople pointed out that military men were not hesitant to shoot the civilians either because of a silent policy or of tolerance by their superiors who perceived the necessity of such action for national security.

On the suggestion to put similar sanctions against the members of the military who would commit such flagrant abuses against the right to life, including extra-judicial executions or salvagings, Mr. Bernas stated that the matter would be entertained during the period of amendments.

In addition, Mr. Garcia stressed that cases of hamletting and prolonged zoning by the military in the countryside should, likewise; be considered in the Bill of Rights.

REMARKS OF MR. UKA

Thereafter, on the abolition of the death penalty, Mr. Uka observed that more concern was accorded the murderer and not the poor victim and his family, which to him, is unfair.

He pointed out that Jesus was not referring to murderers when he said, "Father, forgive them for they know not what they do." He stated that murderers certainly know what they do and sometimes plan the murders.

He underscored, however, that the issue is the right of the murderer to life, on whether it is justified to kill a killer.

He pointed out that in many countries, people are afraid to commit crimes because of public executions. He opined that in the Philippines, the high crime rate would still increase if the death penalty is abolished. He stated that the penalty of reclusion perpetua is not really a life sentence because pardon could be granted to those who have been rehabilitated. He also stated that with the abolition of the death penalty, recidivists might keep on killing resulting in endless family feuds or vendettas.

He, however, suggested that the matter of abolishing the death penalty be left to the Legislature instead of providing it in the Constitution.

Reacting, thereto, Mr. Garcia stated that now is the opportune time to create a situation where lasting peace, national unity and reconciliation can prevail, after long years of authoritarian rule during which the climate of resentment and hate heightened, and that the abolition of the death penalty is one step towards such peaceful society.

He pointed out that historically, the death penalty was more often imposed on the oppressed and poor than on the wealthy and politically influential members of dominant racial and religious groups.

Finally, he pointed out that said punishment used to protect society from crime has not been shown to have substantial deterrent effect. On the contrary, he stated that as in the Latin American countries, the brutal suppression of the minority through judicial executions and arbitrary killings had precipitated violence that caused political instability. He believed that while terror and fear should be eliminated, trust and faith should be extended to reform people who commit crimes.

INTERPELLATION OF MR. NATIVIDAD

On Section 21 which provides for certain rights of the accused, in reply to Mr. Natividad's query, Mr. Bernas affirmed that said provision originated from the Miranda ruling but is not a verbatim reproduction of the provision in the 1973 Constitution. He also affirmed that it provides for the duty of the investigating officer to inform the offender of his constitutional rights before such investigation.

On whether a confession made by a criminal before he is informed of his rights or informed in the absence of a counsel, would be admissible as evidence under Section 21, Mr. Bernas replied that to be admissible, the confession should be made again in the presence of a counsel. He explained however that if physical evidence such as a gun, was recovered as a consequence of the voluntary confession, said evidence would be admissible.

On the compensation for and rehabilitation of victims of tortures and similar practices, Mr. Natividad adverted to the fact that in other countries they also provide compensation for victims of violent crimes. In view thereof, he proposed that the phrase 鈥渧ictims of violent crimes鈥� be included in the provision, in order that innocent bystanders caught in the cross-fires or in the fight against criminal elements may also be compensated, in reply to which Mr. Bernas stated that the suggestion would be left to the decision of the Body.

On "cruel, degrading or inhuman punishment" in Section 22, Mr. Natividad cited American jurisprudence and stated that subhuman conditions and extreme overcrowding in prisons, isolation cells and the practice of beating prisoners are included in the concept of cruel and unusual punishment. He then suggested that the Committee, in its interpretation of "cruel and unusual punishment", include these practices.

Mr. Bernas, however, pointed out that the purpose of Section 22 is to provide a norm for invalidating a penalty that is imposed by law which is cruel, inhuman and degrading.

Mr. Natividad stressed that his only purpose is to abate inhuman treatment of prisoners because in the United States, when the conditions pervading in prison are inhuman, the court could order the release or transfer of inmates therein or the prison itself may be closed to stop the imposition of cruel and inhuman punishment, to which Mr. Bernas stated that the Committee would welcome an amendment to that effect.

REMARKS OF MR. PADILLA

Adverting to Mr. Natividad's query on whether the voluntary confession of a person caught in flag rante delicto would be admissible in evidence, Mr. Padilla opined that under Section 29, Rule 130 of the Rules of Court, confession is admissible in evidence. However, he maintained that if a person is arrested, detained and placed under custodial investigation by either the police or military, he should be protected under the Miranda doctrine as provided for in Section 21. In this case, Mr. Padilla stated that the rights of the person placed under custodial investigation must be stressed rather than the duty of the investigating officer.

INTERPELLATION OF MS. TAN

On Section 21, in reply to Ms. Tan's query as to how independence as a qualification of a lawyer could be proven and on the applicability of Section 22, Mr. Bernas stated that a lawyer may be taking orders from people whose interests are adverse to that of his client, in which case, confessions or admissions obtained would not be admissible in evidence.   

INTERPELLATION OF MR. SUAREZ

In reply to Mr. Suarez' query on whether the provision 鈥渢he Legislature shall enact a law punishing any violation of this section鈥� in Section 21 is relevant to the Article on the Bill of Rights, Mr. Bernas stated that the Committee decided to retain it so as not to lose the emphasis that it placed in protecting the rights of the accused, although he personally believes that it could be dispensed with. He added that with this provision the Legislature could even add other related matters as violations of the Section.

On the meaning of the provision "compensation for and rehabilitation of victims of tortures or similar practices and of their families shall be provided by law", Mr. Bernas stated that it means that the Legislature has to pass a law implementing it, otherwise, the victims could not get compensation.

INTERPELLATION OF MR. MAAMBONG

On Mr. Maambong's query whether the rights under the Constitution could be classified under the following categories: 1) rights which would protect the citizens against the government itself; 2) rights of citizens to protect themselves against other citizens; and 3) rights to protect citizens against other human or inhuman enemies such as unemployment, starvation, pestilence and others, Mr. Bernas, with regard to the first classification, answered affirmatively, and added that it is the inherent right of the people to revolt; on the second, he stated that the matter falls under the New Civil Code and the Revised Penal Code; and on the third, that there are more economic and social rights which the citizens could demand from the State.

Mr. Bernas agreed with Mr. Maambong's observation that even the third classification is a valid one, although rights under it could not be strictly enforced in court because these are more of obligations on the part of the government which it may or may not do.

Mr. Bernas also agreed with Mr. Maambong's observation that even if such rights are placed in clear terms, there is still no absolute perfection as far as the Bill of Rights is concerned.

Mr. Maambong noted that under the Constitution are three classifications of rights, the first being the general provisions on liberty and property; the second, those rights under the equal protection of the laws clause; and the third, the specific individual rights affecting the liberty of the individuals. The first, he cited, would cover civil, political, social, cultural and economic rights though the latter are not in the Bill of Rights.

As to whether economic rights can be found elsewhere in the Constitution, Mr. Bernas stated that some of the provisions of the Bill of Rights deal with economic rights such as the right to property.

As to whether economic equality, which would fall under protection to labor, is also found in the Bill of Rights, Mr. Bernas answered in the affirmative. He stated that every commentator on the Constitution has made his own classification according to his purpose and that classification has become mainly a pedagogical instrument.

Mr. Bernas affirmed that the Bill of Rights would not limit people to the rights as stated in the Article but are reflected in the other sections of the Constitution as on the matter of political equality which falls under the provision on the Commission on Elections and on the matter of social and cultural equality which are reflected in the other sections.

Mr. Maambong then adverted to a statement of Mr. Bernas contained in his lecture on political rights under the new Constitution, which statement reads: "A Constitution as we understand it is a written instrument by which the powers of government are established, limited and defined and by which these same powers are distributed among the various departments for their safe and useful exercise for the benefit of the body politic. Constitutional law, on the other hand, is broader than just the written instrument. It is a body of rules resulting from the interpretation of the Constitution, interpretations arising from actual conflicts that are brought before the courts. Included in constitutional law also are the contemporary constructions which the Executive department gives to the written instrument." Mr. Maambong concluded that there are rights which are not clearly stated in the Constitution but which exist due to interpretations of the Supreme Court or the Executive department. Mr. Bernas agreed with Mr. Maambong's statement stressing that the main thing in the Constitution is the text or the letter around which is built a whole body of law.

As to whether the Supreme Court or the Executive department can actually grant people rights not found in the Constitution, Mr. Bernas stated that the Executive and Judicial departments can make their readings of the meaning of the Constitution and determine the scope of the letter.

Adverting to Section 22 of the proposal, Mr. Maambong noted that the provision has undergone many revisions in phraseology starting with the 1935 Constitution which used the term "cruel and unusual", the 1973 Constitution "cruel or unusual" and under the proposal "cruel, degrading or inhuman". As to the reason for changing the word "unusual" to "inhuman", Mr. Bernas explained that the Committee avoided the use of the former as it gave the interpretation that one cannot innovate as far as penology is concerned. To allow penology to develop, he stated, the Committee decided not to prohibit unusual punishments in the sense that they are new or novel.

As to whether unemployment provisions of the law, public assistance for the disabled and the aged would fall under the third kind of classification, Mr. Bernas explained that they would and as such would require implementing legislation and would become enforceable rights if the Legislature passes a law making them demandable rights.

INTERPELLATION OF MR. FOZ

Mr. Bernas affirmed that the 1973 Constitutional provision on the freedom of speech and of the press is traceable to the First Amendment of the U.S. Constitution. Mr. Foz explained that this provision in the U.S. Constitution was influenced by the experience of the 13 colonies which, in turn, was influenced by an incident in England during the time of the poet John Milton who rebelled against a law which would license printing and publishing. He noted that the provision, as presently worded in the 1973 Constitution and the U.S. Constitution, gives the impression that the freedom of speech and of the press is an absolute freedom that is being granted though this is not so in reality inasmuch as the Revised Penal Code contains provisions on libel and inciting to rebellion which are, in fact, legal provisions which abridge these freedoms. As to whether the Committee has ever tried to define freedom of expression and freedom of speech and of the press, Mr. Bernas replied that the Committee did not think it would be necessary or advisable since it would rather prefer retaining the original language which has been enriched by a large body of jurisprudence. He opined that it is a dynamic right which is difficult to put into simple formulas.

Mr. Bernas affirmed that Philippine courts had been influenced by American decisions or rulings on the freedom of speech and of the press.

As to whether the Committee entertained the thought of rewriting the provision, Mr. Bernas manifested the Committee's preference to keep the original provision though it would entertain a rewritten provision if Mr. Foz is prepared to do it.

INTERPELLATION OF MR. VILLACORTA

Mr. Villacorta inquired if Section 6 would include access to results of government research projects and whether the phrase "official records and documents and papers pertaining to official acts, transactions or decisions" would include such results, in reply to which Mr. Bernas stated that access to official records is subject to limitations. Mr. Bernas manifested his hesitation to make a general rule on whether the limitations are purely procedural or substantive, or whether the government can prohibit access to certain types of information.

Mr. Villacorta stressed that the public has the right to know or to be informed about official transactions as well as on data which concern them if they themselves are the subjects of surveys. He recalled that researches during the past dispensation were conducted and manipulated to serve the interest of the state and to legitimize and perpetuate its power and such findings were used as bases of policy formulation.

Mr. Bernas expressed difficulty on areas where there may be proprietary rights involved.

As to whether sovereignty and popular interest should prevail over proprietary rights of research, Mr. Bernas replied in the affirmative.

Mr. Villacorta then cited that research findings on nutrition were suppressed by the past dispensation as it showed that the Filipinos are among the most malnourished. Mr. Bernas stated that in this particular case, findings should be made accessible to the public.

As to Mr. Villacorta's proposal to add to the provision a clause pertaining to government research, Mr. Bernas stated that the Committee shall have to wait for the proposed amendment by addition.

CLARIFICATORY QUESTION OF MR. FOZ

Thereafter, Mr. Foz, on a follow-up to the same provision, inquired whether a Securities and Exchange Commission regulation which classifies as confidential the financial reports of certain corporations would have no legal basis, to which Mr. Bernas replied that someone more familiar with concrete circumstances in this matter should answer the question.

Mr. Foz then adverted to the case of a U.P. Law Center researcher who tried to secure data on the financial operations of multinational drug companies but who was denied access to the files at the SEC even though such financial reports are required by the Corporation Code. Mr. Bernas stated that this would be an unreasonable limitation which would be against public interest.

Mrs. Quesada, also on a follow-up to the same provision, adverted to a case involving the University of the Philippines which was commissioned by a Ministry to conduct a research on the national implementation of primary health care.

The findings turned out to be derogatory to the official pronouncement. Mrs. Quesada recalled that the research body refused to reveal the results as the study was commissioned by a government agency. As to whether the research body would be violating any rule should it release the results of the study, Mr. Bernas opined it would not commit a violation inasmuch as the matter is of public concern. He reasoned that the study was commissioned by the government for the purpose of discovering what is good for the nation and maintained that the people has the right to know.

INTERPELLATION OF MR. PADILLA

Mr. Padilla prefaced his interpellation by stating that he agrees with the elimination of the word "insurrection" as it is considered rebellion under the Penal Code. He noted, however, that the phrase "or imminent danger thereof" has been deleted in the proposal. He questioned whether the phrase should have been retained considering the fact that rebellion does not arise until there is an actual armed uprising against the government. As to whether the Committee on the Executive also recommended deleting the phrase, Mr. Bernas replied in the affirmative stating moreover that the proper place to discuss the issue is in the Article on the Executive, particularly under the Commander-in-Chief provisions.

Mr. Padilla, by way of a rejoinder, maintained that the deletion of the phrase "or imminent danger thereof" would mean that the privilege of the writ of habeas corpus may not be suspended until there is an actual rebellion. He stated that to wait until such a situation exists might render the powers of the President as Commander-in-Chief ineffective and would make it difficult if not too late to suspend the writ of habeas corpus, which even if suspended, contrary to Supreme Court decisions, does not necessarily carry with it the denial of the right to bail. As to whether the Committee would consider reinstating the phrase, Mr. Bernas explained that the reason for its elimination is that it is a vague concept and it is difficult to evaluate and may be open to abuse by the Executive. He stated that the Committee, following the lead of the Committee on the Executive, would prefer to limit the grounds for the suspension of the privilege to actual invasion and actual rebellion.

Mr. Padilla stated that the words "imminent danger thereof contemplate not only a danger of invasion or rebellion but that the danger is imminent. He stressed that a suspension of the writ of habeas corpus, which may be precautionary although it curtails certain rights of individuals, is for the purpose of defending and protecting the security of the State. He maintained that if there is real danger and it is imminent, then it should cover the situation.

Replying thereto, Mr. Bernas stated that putting such a provision as a ground for the protection of the security of the nation would not be necessary. He 'expressed willingness, however, to consider amendments on the floor.

Mr. Bernas agreed with Mr. Padilla's suggestion to transpose the Miranda decision by making it follow the provision on warrant of arrest or unreason- able search and seizure.

On the observation that the original text of the 1973 Constitution relative to the duty of the investigating officer and the right of the arrested person is better worded than the proposed provision, Mr. Bernas likewise expressed willingness to entertain amendments at the appropriate time.

On whether an appeal by the State or the offended party from a judgment of acquittal violates the rule on double jeopardy in Section 23, Mr. Bernas explained that it is not a departure from existing jurisprudence but is more strict in that it requires not just abuse of discretion but that it must be clearly against the evidence. He agreed that the exercise of that right by the state or by the offended party should be restrictive not only through a petition for a review on certiorari, but also on certain grounds that are really in excess or lack of jurisdiction.

On whether allowing an appeal from a judgment of acquittal rendered by a trial court in order to protect the rights of the offended party and of the State against arbitrary judgments of acquittal rendered by corrupt judges, would improve the administration of justice, Mr. Bernas replied that he had already stated his position when the Article on the Judiciary was voted upon and should Mr. Padilla want to raise the matter for reconsideration, he could perhaps present an appropriate motion on the floor.  

Mr. Padilla observed that-the proposal has eliminated the provision in the 1935 and 1973 Constitutions providing that one is entitled to bail before conviction but the court may deny such right in a capital offense where the evidence of guilt is strong. He then made it of record that he agreed with the observations of Messrs. Colayco and Regalado that capital punishment should be retained as provided for in the Revised Penal Code and in the Rules of Court.

On the rationale for the abolition of capital punishment, Mr. Bacani stated that the Catholic Bishops opposed capital punishment on the ground that the death penalty is not the only effective and possible means to safeguard the life and well-being of the citizens.

Mr. Padilla maintained, however, that the State is not deprived of the right, even from a moral standpoint of imposing or prescribing capital punishment because it has the delegated authority from the Creator to impose, under certain circumstances, the death penalty.

Replying thereto, Mr. Bacani stressed that the State has the delegation from God to do what is needed for it to do for the sake of the common good.

On the suggestion that the matter be left to the Legislature to determine under certain conditions whether the retention of the death penalty or its abolition would be for the common good, Mr. Bacani maintained that the development of the moral sense of the people dictates that now is the time for such a prohibition in the Constitution.

On the suggestion that capital punishment should be prohibited because under the criminal law, there should be no penalty unless prescribed by law, Mr. Bernas reiterated that the Committee has recommended the prohibition against the imposition of death penalty, a decision on which should be left to the Body.

On the suggestion that to avoid extra-judicial executions, the punishment reserved for capital offenses, when attended by qualifying circumstances, should be retained to avoid retaliation, Mr. Garcia disagreed on the ground that it is the government which perpetrates extra-judicial executions because of a sense of overpowering capability to impose authority over its citizens without respect for the process.

Mr. Padilla maintained, however, that eliminating the provision on death penalty would increase not only extra-judicial executions by arbitrary and dictatorial regimes but also private executions by aggrieved parties who may take the law into their hands because of a feeling that they did not receive retributive justice.

INTERPELLATION OF MS. AQUINO

Ms. Aquino inquired whether Section 21 contemplates both the tactical and custodial interrogations considering that the 1973 Constitution, from which the formulation was taken, does not carry any distinction between the two. She pointed out that during martial law, military investigators flouted with impunity the provisions of Section 21 on the ground that Section 20 of the 1973 Constitution did not provide that the same rights would be applicable to tactical interrogation.

With the permission of the Chair, Mr. Tadeo sought further clarification on the practice of the military of conducting tactical interrogations, stating that such investigations were usually done on the pretext of routinary procedures, in reply to which, Mr. Colayco stated that Section 21 is an expanded version of the provision of the 1973 Constitution inspired by the complaint of Mr. Garcia that it has been the practice of military investigators to prohibit the assistance of counsel to persons suspected of being subversives on the ground that custodial investigation is different from tactical interrogation. He explained that under the old rule the rights against self-incrimination and to be informed of his right to counsel and to remain silent, were limited to that portion of the investigation when the suspect was already under technical custody or what was referred to as custodial investigation. Under the proposed Section 21, he pointed out that such mantle of protection was extended to the time immediately after the commission of an offense. This extension, he stated, removes any reference to custodial investigation to avoid other interpretations.

On whether Section 21 would prescribe temporary detention incidental to preliminary interrogation, Mr. Colayco stated that it would depend, because, under the rules, a person who is about to commit, in the act of committing, or after committing an offense may be arrested without any warrant of arrest. He pointed out that under the law, while he could be detained without a warrant of arrest, he must be released unless the case is brought to the court within the period prescribed by the Revised Code. He stressed that during the time when he is under custody, even without the warrant of arrest, Section 21 would apply.

On the other queries of Ms. Aquino, Mr. Colayco affirmed that Section 21 prescribes temporary detention incidental to preliminary interrogation. He pointed out that the word "custodial" was not used in the 1973 Constitution or in the proposed Section 21.

INTERPELLATION OF MRS. ROSARIO BRAID

In reply to the query of Mrs. Rosario Braid whether the Bill of Rights would provide protection for the rights of minorities and groups who seek redress for disparaging remarks from media, Mr. Bernas stated that the Committee would entertain amendments to that effect.

INTERPELLATION OF MR. TADEO

On Section 5, Mr. Tadeo observed that the provision as worded opens the gate to the practice of hamletting which in the past had been used in the name of national security. He suggested the deletion of the words "or when necessary in the interest of national security, public safety, or public health" so that whatever should be determined would be left exclusively to the courts.

In reply, Mr. Bernas stated that the Committee intends to set the limits within those prescribed by law precisely to ban hamletting. He stated that the Committee would be willing to entertain amendments to make sure that hamletting is banned.

INTERPELLATION OF MR. SUAREZ

In reply to the query of Mr. Suarez, Mr. Bernas affirmed that the word "personally" refers to the judge who must conduct the examination by himself and not through a commissioner or deputy clerk of court.

On the deletion of the phrase "through searching questions" which was originally proposed, Mr. Bernas stated that the Committee felt that it could still be so understood even without the phrase.

On whether the provision contemplates a situation where the judge could conduct the examination even in his residence or in a place outside the court premises, Mr. Colayco stressed that the application should be filed in court because it has to be registered, duly stamped and recorded in the book and it contemplates not only the court premises but also the courtroom itself.

Mr. Bernas stated that the words "searching questions" have not been used in the Rules of Court.

On Section 19 regarding trial in absentia, Mr. Bernas stated that this has reference to the period of trial but the accused should be present at the promulgation of the sentence. He affirmed that failure of the accused to appear is unjustifiable if notices had already been served to him. He opined that this would cover the period until the prosecution rest its case.

COMMENTS OF MR. NATIVIDAD

Commenting on the remarks of Ms. Aquino and Mr. Tadeo who presented situations where custodial and tactical interrogations had been conducted, Mr. Natividad opined that the investigators concerned could not have been from the police organization but from the military forces. He pointed out that there is no such thing as tactical questioning in police work because the police engages only in interrogations or interviews where the constitutional rights of the suspect are respected.

COMMENTS OF MR. DE CASTRO

Relative to Mr. Natividad's comments, Mr. De Castro agreed that there is no such thing as tactical investigation by the police because this practice could only be done in time of war.

TERMINATION OF THE PERIOD OF SPONSORSHIP AND DEBATE

On motion of Mr. Monsod, there being no objection, the Body closed the period of sponsorship and debate.

CHANGE OF REFERRAL

Mr. Monsod informed that Proposed Resolution No. 479, entitled "Resolution to incorporate in the Declaration of Principles the recognition of rural development and agrarian reform as priorities of the State", has been referred by the Committee on Social Justice to the Committee on Preamble, National Territory and Declaration of Principles.

ADJOURNMENT OF SESSION

On motion of Mr. Monsod, there being no objection, the Chair declared the session adjourned until nine-thirty in the morning of the following day.

It was 6:01 p.m.

I hereby certify to the correctness of the foregoing.

(SGD.) FLERIDA RUTH P. ROMERO
Secretary-General

ATTESTED:

(SGD.) CECILIA MU脩OZ PALMA
             President

Approved on July 18, 1986