Using mobile phones in banks is a Constitutional right

[bohica]

Bohi's comments:  Would like to solicit feedback from members of the legal community here in PT.

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Picture this: You are in line at your local bank, waiting for your turn to pay that darn mobile phone bill.

As you read the mysterious charges billed to you, the intolerable ring tone you chose is heard from your pocket. You struggle to answer your phone, making sure the cash doesn’t fall from your other hand. As you swipe your finger sideways on the screen, a guard gives you a dirty look and motions that you can’t answer the phone.
 
Has this happened to you? If it has, welcome to the club. Well, as for me, I want that club to be extinct.
 
As you read on, I will try to convince you that talking on the phone while in the bank is a Constitutional right that is equal to your right to free speech.
 
First: Banks in the Philippines operate only by sheer permission from the government. That permission is by virtue of a license issued under Section 6 of the General Banking Act (R.A. 8791). The government represented here is the Bankgo Sentral ng Pilipinas (BSP).
 
There is a maxim that water cannot rise higher than its source. Following that logic, banks cannot rise higher than the government (source of the license). Moreover, the government cannot rise higher than the Constitution (sources of policies, rights and powers).
 
Second: Now that I have made you thirsty with all that water talk, let’s shift the argument to how your mobile phone is protected by the Constitution. Under the Bill of Rights (Article III), we have two (2) supporting provisions to quell the overprotective security guards.

We have in first place, Section 3 which states:
 
“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.”
 
In second place, there is Section 4 which declares:
 
“No law shall be passed abridging the freedom of speech. . .”.
 
So we have, in our musette bag, these two all powerful Constitutional provisions to arm ourselves against strange taps on our shoulder from men wearing caps and wielding shotguns.
 
Here is how to argue:
 
Banks cannot issue laws, much less regulations. Banks can only follow what the BSP dictates. The BSP dictates the rules and regulations through their issuances such as circulars and memoranda, among others. The BSP is dictated by their enabling laws (General Banking Act and The Central Bank Act, RA 7653).
 
Now I ask, where is this regulation where banks can stop us from using our phones? Banks cannot prevent us from exercising our legal rights. Banks are only empowered by the BSP, which is then empowered by the government, which is then empowered by the Constitution.
 
Did I just confuse you? Okay, remember that water and source logic? Let’s put it together.
 
No law (or anything lower than that) cannot be passed by the Congress to prevent or suppress our right to communication and free speech. These two rights are very sacrosanct in a democracy, no matter how awful the speeches maybe. As you talk on your phone (just not so loud), you are actually effecting what the Constitution allows you to. There is no argument that these freedoms that are guaranteed and protected by the Constitution cannot be weighed down by some “banking rule.”
 
One may argue that banks are private entities and the Bill of Rights cannot apply to them. Well, to that I say, (scroll up now), banks exist by virtue of a license granted by the government. With that license carries an obligation to follow ALL government laws, rules and regulations. Since banks operate by permission, the permission giver (grammar police, please grant me an exemption) operates by law which is lower than its source, the Constitution.
 
Before this posting, I made a diligent search at the BSP site for any circulars or issuances against use of mobile phones in banks. What I found were actually issuances promoting the use of mobile phones for banking.
 
There is the E-Money Platform and even a mobile phone bank.
 
I surmise that banks are preventing the use of mobile phones to prevent bank robberies. That logic is as stretchy as Mister Fantastic’s arms. We can’t use the “ends justifies the means” sense to defend this. It is actually the reverse in law.
 
To prevent crime, one CANNOT suppress Constitutional Rights. That is what martial law is for. Has there been any link of mobile phone use to bank robberies? If we use that reason, then we should ban knifes in restaurants because they can be used for harm. We should ban barbeque grills because the matches used to start the charcoal can cause fires. What controls our society is “the means justifies the end.”
 
The use of mobile phones in public should be in harmony with common courtesy and respect not some “rule.” I admit that, when my phone rang a couple of times while I was in the bank, I just politely stepped out and started my meter (I am still a lawyer). But that move was brought about because of my deference of others and attorney-client privilege (I have to keep it confidential).
 
In summation, no one can stop me from using my mobile phone! Except, of course, over-charging mobile phone companies. — KDM, GMA News

[Raizen44]

Good day to you sir, and I hope that I respond to your query.
I hope that you don't mind if I answer you in a different format as comparedd to how you asked your questions.

True, the Supreme Court has decided on a lot, and I mean A LOT of cases upholding the Bill of Rights, specially the freedom of speech and that your right that your communication and correspondence be kept secret. however, in the case at bar, it does not apply.

First off, no right is absolute. As to your right to your communication and correspondence being kept inviolable, what it means is that your privacy cannot be intruded upon. Hindi pwedeng basahin ng iba ang sulat mo o makinig/i-wiretap para mapakingan ang pakikipagusap mo sa telepono. Hindi kasama yung kung saan at kelan ka tatawag o tatanggap ng tawag.

Banks, much like malls and other commercial places, are essentially private property in which people are allowed entry. As such, they may implement such rules as they me deem necessary, or even simply want to implement, within their premises. It is their right since they own the place. Put simply, kung sa bahay mo,pwedeka magpatuadng kngano regulasyon ang st mo ipaua dahi pag-aari mo un, as long as di sya labag sa batas. May karapatan ka rin mamili kung sino ang gusto at ayaw mo papasukin sa bahay o lupain na pagmamay-ari mo. Such does not infringe upon your or anyone else's right to privacy to communication and correspondence, much less free speech.

Right to free speech means that you have the right to say what you want without the government restraining you, however, it is also not absolute. However, if you start shouting inside a bank (just an example, but I think you'll get my point), the bank of course has the right see you out the door. Again, their place.

lastly, Banking laws regulate the course as to how banks conduct business, the regulations they must follow, and sanctions in the event of punishable acts. It does not apply as to regulations imposed by the banks upon those within their premises. Just as you have your rights, they also have theirs. They may refuse entry to those who refuse to submit to the regulations they chose to implement within their premises. Much like Malls did not need a law for them to refuse entry to those who refuse to submit to the inspection and frisking conducted by their guards.

[elmeroctavo]

i also believe circular ito ng phil national police ito. dahil narerealize nila na hindi na sila ganung ka effective hehehe

[denwoodrow]

These regulations do not impugn one's right to privacy and freedom of speech. They're merely regulating use, not undermining it, once someone is inside the premises in favor of the all-too important public welfare.

[jamesbond]

i also believe circular ito ng phil national police ito. dahil narerealize nila na hindi na sila ganung ka effective hehehe

These regulations do not impugn one's right to privacy and freedom of speech. They're merely regulating use, not undermining it, once someone is inside the premises in favor of the all-too important public welfare.

very well said gentlemen... i unanimously concur...

[yp.kurosaki]

Safe pa rin naman ata sagutin yung call sa loob which many people can hear instead na lalabas ka pa to answer the call and then di na nila alam if "kasabwat na holdaper" ang kausap mo kasi di nila madinig.

[charliehouse]

We must take into account kung private ba or gov't banks ito: Kung private then they have all the rights reserved to them na ipagbawal ang paggamit ng mobile phones, take note private property po ito while freedom of speech is protected, the right to property is also protected. Kagaya lang rin yan sa bisita mong gustong mag videoke o magpatugtug ng justine beiber songs sa bahay mo tapos ayaw mo hence may karapatan kang paalisin ang hindot na bisita.

Kung gov't banks naman hence pwede ito ngunit one may argue that it is a valid exercise of the police power of the state i.e for public welfare and security.

Note: Police power is the most pervasive among the inherent powers of the state to the extent that it can even limit/restrict some constitutional rights.