2016 (Political Law) Bar Exam Questions: Question 6

[Answer/discuss the question below, or see 2016 bar exam Political Law Instructions; 2016 Political Law Questions: 1, 2, 3, 4, 57, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20; See also 2016 Bar Exam: Information, Discussions, Tips, Questions and Results]

-VI-

Pornographic materials in the form of tabloids, magazines and other printed materials, proliferate and are being sold openly in the streets of Masaya City. The City Mayor organized a task force which confiscated these materials. He then ordered that the materials be burned in public. Dominador, publisher of the magazine, “Plaything”, filed a suit, raising the following constitutional issues: (a) the confiscation of the materials constituted an illegal search and seizure, because the same was done without a valid search warrant; and (b) the confiscation, as well as the proposed destruction of the materials, is a denial of the right to disseminate information, and thus, violates the constitutional right to freedom of expression. Is either or both contentions proper? Explain your answer. (5%)

2 comments

  1. Both contentions lack merit. The City is in the valid exercise of police power; hence probable cause is more than apparent to seize and burn the pornographic materials in question. No Warrant is necessary, therefore. On the other hand, free speech is not an absolute right to include obscene publications. The State, thus has the power to regulate it as in this case.

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  2. The contentions Dominador will prosper for illegal search and seizure, because it was done without a valid search warrant and the confiscation, as well as the proposed destruction of the materials, is a denial of the right to disseminate information, and thus, violates the constitutional right to freedom of expression.

    Under the Constitution, on the other hand provides that;

    SEC. 3. “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 not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, 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.”

    It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonable and subject to challenge, but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must be on account of a crime committed. We reject outright the argument that there is no constitutional nor legal provision which would free the accused of all criminal responsibility because there had been no warrant and that “violation of penal law must be punished.” For starters, there is no “accused” here to speak of, who ought to be “punished”. Second, to say that the Mayor could have validly ordered the confiscation without a lawful search warrant because, in his opinion, “violation of penal laws” has been committed, is to make the Mayor and judge rolled into one. And precisely, this is the very complaint of the petitioner for filing a suit, raising the following constitutional issues;

    1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, that pornographic materials in the form of tabloids, magazines and other printed materials, proliferate and are being sold openly in the streets are in order;

    2. The authorities must convince the court that the materials sought to be seized are “obscene”, and pose a clear and present danger of an evil substantive enough to warrant State interference and action;

    3. The judge must determine whether or not the same are indeed “obscene:” the question is to be resolved on a case-to-case basis and on His Honor’s sound discretion.

    4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;

    5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code;

    6. Any conviction is subject to appeal. The appellate court may assess whether or not the properties seized are indeed “obscene”.

    These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse of official power under the Civil Code” or the Revised Penal code.To that extent, the case is moot and academic.

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