The right of privacy

E·N·Q·U·I·R·Y
DEMAREE J.B. RAVAL

The right of privacy
Sunday, 09 14, 2003

The brothers Arroyo must be sitting smugly these days, thinking they have flummoxed the Senate committees investigating the Jose Pidal accounts by invoking the right of privacy. With a little help from another Arroyo, who is heading the primary committee conducting the investigation, the brothers have managed to throw the rest of the Senate to search for a corpus of precedents with which they could beat out of the sealed lips of the brothers any further information regarding the shadowy Jose Pidal.

For sure, our Constitution does recognize the right of privacy, which is the right of a person to be let alone, and allows him to determine what, how much, to whom and when he could disclose information about himself. As Dean Irene Cortes of the UP College of Law, who later sat honorably as a justice of the Supreme Court (SC), as early as 1970 wrote in her book, The Constitutional Foundations of Privacy, the right of privacy, while explicitly employed in the provision guaranteeing privacy of communication and correspondence, appears in other provisions though not couched in privacy terms, as an analysis of cases interpreting the guarantees against unreasonable search and seizure and self-incrimination show. Dean Cortes asserted that the right of privacy can also be anchored on the constitutionally protected liberty of abode, the right of association and the right of due process, if not in the whole Bill of Rights.

In American jurisprudence, the right of privacy is recognized in the Penumbra Doctrine defined in Griswold v. Connecticut, where it was declared that “the right of privacy is rooted in, and exist in the ‘penumbra’ of various specific constitutional provisions which have been deemed to create zones of privacy” such as the guaranty of free speech and press, freedom of association, right against unreasonable searches and seizures, and the privilege against self-incrimination.

If at all, a respite is all the brothers Arroyo will get from their ruse to shroud Jose Pidal with a mantle of mystery and secrecy. This, ironically, provides the incubation time for the problem to fester until it swells into one monstrous smelly sore that has to be excised from the body politic. Once the committees resolve that the right of privacy cannot override the much weightier right of the public to be informed and that of the Senate to legislate, the inevitable conclusion is that the brothers will have to reveal who Jose Pidal really is, and disclose as well the details of his bank accounts.

It was Iggy Arroyo who opened himself up to the inquiry. Until his admission that he is Jose Pidal, he had every right to keep his mouth clamped as tightly as his bank accounts, to forego testimony. But when he chose to submit himself to the inquiry freely and voluntarily, he opened himself up to further questions just like any other witness or resource person before the committees.

To Sen. Ed Angara, for instance, what had previously been a private matter has become one of public interest whose details must be pursued to their logical conclusion. The law of evidence is replete of instances where persons like Iggy who, once they let the proverbial cat out of the bag, were forced, under pain of contempt, to supply details albeit grudgingly via further questions or on cross-examination. When Iggy admitted to his being Jose Pidal, he may no longer validly refuse to answer related and pertinent questions.

A voluntary confession was made as to who Jose Pidal is, and on the deposits made into the accounts. In law, this is evidence of the highest order, since it is supported by the presumption that no person of normal mind will deliberately and knowingly confess he is the person to whom a misdemeanor or a crime is attributed unless prompted by truth and conscience. The brothers Arroyo made the confession that one of them is Jose Pidal; that is enough to hold them to a waiver of their right of privacy.

Precedents abound with respect to the waiver of the right of privacy, or when that right may be disregarded during legislative investigations. A common thread weaves the cases, that is, public interest is paramount over the individual right of privacy. The Senate has a public duty to perform and when the individual before it invokes the right of privacy, that right may not hold up to the duty of the Senate to legislate based on facts it can ferret out of its investigations.

The case of Arnault vs. Nazareno is instructive on the balancing of interests that the Senate (and most certainly later, the SC) will be forced to undertake. The Senate then was investigating Arnault who, in the sale of the Tambobong Estate, was suspected of having given a bribe to a relative of then President Quirino. Arnault refused to divulge the identity of the bribe taker and was committed to prison to languish there until the day when he shall have told the truth. When Arnault asked to be released, the SC had occasion to recognize the ascendancy of the Senate’s duty to investigate in aid of legislation over the private right of Arnault not to disclose. The court said: “The witness in this case has been vociferous and militant in claiming constitutional rights and privileges but patently recreant to his duties and obligations to the government, which protects those rights under the law. When a specific right and a specific obligation conflict with each other and one is doubtful or uncertain while to the other is clear and imperative, the former must give way to the latter.”

It is much too obvious, from the cover-up displayed during the hearings, that Jose Pidal refers to a person other than Iggy. Whoever insists that Iggy is Jose Pidal is parroting the argument of Arnault 50 years ago. Maybe, just maybe, the Senate committees – very much like the way Arnault was handled – will find it necessary to cite for contempt not only Iggy for his refusal to divulge the details of the bank accounts, but also Mike Arroyo himself for not identifying the real Jose Pidal.


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