VIII. We come now to a discussion on one of the novel legal intrusions on the rights to privacy that has been sanctioned by the Anti-Terrorism Law.
Section 7 of the Anti-Terrorism Law provides for the requisites under which surveillance of private communications shall be allowed, as follows:
1. It must be done by a police or law enforcement official and the members of his team.
2. There must be a written order of the Court of Appeals
3. The authority given by the Court of Appeals shall be listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose,
4. The object of the surveillance shall be any communication, message, conversation, discussion, or spoken or written words
5. The subject shall be communications between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.
The law, however, provides exceptions with respect to the surveillance, interception and recording of communications between the following:
1, lawyers and clients,
2. doctors and patients, and
3. journalists and their sources and confidential business correspondence.
This is one of the controversial provisions of the law, because it excludes surveillance of private communications covered by this law from the application of the Anti-wire Tapping Law or Republic Act No. 4200. The issue is will this provision violate the Constitution, particularly, Art. III section 3? It states as follows:
Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
The requirement of an order from the Court of Appeals stated in the Anti-Terrorism Law appears to fit the exception provided by the Constitution on the inviolability of the privacy of communication and corresppondence. Thus, the argument that this provision is unconstitutional appears to be very weak.
Further, in securing this order from the Court of Appeals, the law provides a rigorous procedure in Section 8. The provision states that the authority shall be granted by the authorizing division of the Court of Appeals only upon compliance with the following requirements:
1. An ex parte written application of a police or of a law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex parte application,
2. Upon examination under oath or affirmation of the applicant and the witnesses he may produce to establish:
(a) that there is probable cause to believe based on personal knowledge of facts or circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed;
(b) that there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of, any such crimes, will be obtained; and,
(c) that there is no other effective means readily available for acquiring such evidence.
The procedure appears to mirror the provisions of Section2 Article III of the Constitution with respect to the issuance of search and arrest warrants, except that the Anti-Terrorism Law required a higher court, the Court of Appeals, as the court from where the authority for surveillance may be secured. Section 2 Article III of the Constitution states:
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, 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.
By wording this provision in a simlar manner, Congress incorporates by analogy to the Anti-Terrorism Law the wealth of jurisprudence that has evolved in the Philippines relating to the procedure of the examination of the applicant and his witnesses and the finding of probable cause.
Thus, this novel legal intrusion sanctioned by the Anti-Terrorism may survive the anticipated constitutional challenge from the human rights activists.