BANKS: PROTECTING OUR MONEY, ROBBING OUR RIGHTS

Nonito Q. Pasuelo, Jr.

Researcher

Introduction and Background of the Study

The advent of cell phones during the late nineties through

2000 and onward the Philippines had earned the distinction as

the texting capital of Asia if not throughout the world. Let it

be recalled that before cell phones were introduced in the

Philippine market, handheld and battery operated video game

gadgets like the Nintendo, Game Boy and the popular Brick Game

were then, very common. Practically, such gadgets had been

considered obsolete as cell phones became more available and

affordable.1

Since then, cell phones became common possessions of

teenage, adults, middle and old aged Filipinos. Cell phones

then, and now, are considered necessities rather than luxuries

or status symbols. They are indications of Filipino adherence to

the importance of communications. Filipinos cannot go to

schools, offices, businesses, farms, work places and travels

without bringing with them their cell phones.

1
http://www.allvoices.com/contributed-news/12945942-cell-phone-use-in-the-philippines. March 1, 2014

1
Overseas Filipino Workers (OFWs) are better connected with their

families back home in the Philippines through cell phones.

Consistent communications between homes and work places abroad

are maintained which promote the closeness and intact characters

of Filipino families. Both parents are in constant

communications with each other. This enables them to discuss

matters affecting the family and to be able to provide immediate

and prompt solutions despite of the absence of either parent.

Children keep their warm affections with their parent working

overseas through cellular communications.

All these circumstances and considerations point to the

revolutionizing impacts of cell phones in the day to day lives

of Filipinos. Round the clock and easy access to communication

through mobile phones has significantly improved the socio-

cultural, economic, political and technological well beings of

Filipinos. They are now better informed and updated with the

latest innovations, trends, processes and products that are made

available in the market.2

As gleaned from a New World Bank report, the 2011 worldwide

mobile subscriptions of six billion and nearly five billion of

which were in developing countries where the Philippines is one

of them. In same year the Philippines had registered 96% of

total mobile cellular subscriptions were prepaid.

The affordability of texting rates as provided by three giant

industry players continues to democratize access of

communications to cell phone owners/users.3

2 http://en.wikipilipinas.org/index.php?title=Cellphone_Use_in_the_Philippines. March 2, 2014

3 http://technology.inquirer.net/14162/philippines-cited-for-mobile-phone-use. March 2, 2014

2
 With the birth of such technological advancements come

different issues regarding the use of such devices, issues

ranging from unwarranted abuse and failure to exercise due care

and responsibility to policies which prohibits the use said

device giving rise to violation of certain constitutional rights

such as the freedom of expression and communication.

Freedom of expression is a principle contained in various

human rights documents. Its objective is to ensure that people

are able to communicate and express opinions, in public,

private, either written or spoken, without the interference of

the state or others. It is not an absolute right; therefore it

generally only has applicability where the purpose of expression

is lawful, and where the act of expression does not infringe the

human rights of others4.

Freedom of expression occupies a preferred position in the

hierarchy of rights. This right has largely been associated with

the right to dissent and freedom of thought.

In the dissenting opinion of Justice Cruz in the case of

National Press Club vs. COMELEC5 , the definition of freedom of

expression is offered:

Milton defined freedom of speech as "the liberty to know,

to utter, and to argue freely according to conscience, above all

liberties." In this context, the definition is understood to

embrace all the other cognate rights involved in the

communication of ideas falling under the more comprehensive

concept of freedom of expression. These rights include the

4
https://www.apc.org/en/glossary/term/318 February 19, 2014
5
G.R. No.142653, March 5, 1992

3
equally important freedom of the press, the right of assembly

and petition, the right to information on matter of public

concern, the freedom of religion insofar as it affects the right

to proselytize and profess one's faith or lack of it, and the

right to form associations as an instrument for the ventilation

of views bearing on the public welfare.

Wendell Philips offered his own reverence for freedom of

expression when he called it "at once the instrument and the

guaranty and the bright consummate flower of all liberty." Like

Milton, he was according it an honored place in the hierarchy of

fundamental liberties recognized in the Bill of Rights. And well

they might, for this is truly the most cherished and vital of

all individual liberties in the democratic milieu. It is no

happenstance that it is this freedom that is first curtailed

when the free society falls under a repressive regime, as

demonstrated by the government take-over of the press, radio and

television when martial law was declared in this country on that

tragic day of September 21, 1972. The reason for this precaution

is that freedom of expression is the sharpest and handiest

weapon to blunt the edge of oppression. No less significantly,

it may be wielded by every citizen in the land, be he peasant or

poet and, regrettably, including the demagogue and the dolt

who has the will and the heart to use it.

As an individual particle of sovereignty, according to

Justice Laurel, every citizen has a right to offer his opinion

and suggestions in the discussion of the problems confronting

the community or the nation. This is not only a right but a

duty. From the mass of various and disparate ideas proposed, the

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people can, in their collective wisdom and after full

deliberation, choose what they may consider the best remedies to

the difficulties they face. These may not turn out to be the

best solutions, as we have learned often enough from past bitter

experience. But the scope alone of the options, let alone the

latitude with which they are considered, can insure a far better

choice than that made by the heedless dictator in the narrow

confines of his mind and the loneliness of his pinnacle of

power.

The citizen can articulate his views, for whatever they may

be worth, through the many methods by which ideas are

communicated from mind to mind. Thus, he may speak or write or

sing or dance, for all these are forms of expression protected

by the Constitution. So is silence, which "persuades when

speaking fails." Symbolisms can also signify meanings without

words, like the open hand of friendship or the clenched fist of

defiance or the red flag of belligerence. The individual can

convey his message in a poem or a novel or a tract or in a

public speech or through a moving picture or a stage play. In

such diverse ways may he be heard. There is of course no

guaranty that he will be heeded, for acceptability will depend

on the quality of his thoughts and of his persona, as well as

the mood and motivation of his audience. But whatever form he

employs, he is entitled to the protection of the Constitution

against any attempt to muzzle his thoughts.

5
 In the more recent case of Estrada vs. Disierto6, Justice

Puno cited the raison d etre of freedom of expression and

speech as follows:

The indispensability of the people's freedom of speech and

of assembly to democracy is now self-evident. The reasons are

well put by Emerson: first, freedom of expression is essential

as a means of assuring individual fulfilment; second, it is an

essential process for advancing knowledge and discovering truth;

third, it is essential to provide for participation in decision-

making by all members of society; and fourth, it is a method of

achieving a more adaptable and hence, a more stable community of

maintaining the precarious balance between healthy cleavage and

necessary consensus." In this sense, freedom of speech and of

assembly provides a framework in which the "conflict necessary

to the progress of a society can take place without destroying

the society." In Hague v. Committee for Industrial Organization,

this function of free speech and assembly was echoed in the

amicus curiae brief filed by the Bill of Rights Committee of the

American Bar Association which emphasized that "the basis of the

right of assembly is the substitution of the expression of

opinion and belief by talk rather than force; and this means

talk for all and by all." In the relatively recent case of

Subayco v. Sandiganbayan, this Court similarly stressed that "

it should be clear even to those with intellectual deficits that

when the sovereign people assemble to petition for redress of

grievances, all should listen. For in a democracy, it is the

people who count; those who are deaf to their grievances are

ciphers."

6
G.R. Nos. 146710-15. March 2, 2001

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 Freedom of communication, as an extension of freedom of

expression is a cornerstone of democratic rights and freedoms.

In its very first session in 1946, before any human rights

declarations or treaties had been adopted, the UN General

Assembly adopted resolution 59(I) stating "Freedom of

communication is a fundamental human right and the touchstone of

all the freedoms to which the United Nations is consecrated."

Freedom to communicate is essential in enabling democracy to

work and public participation in decision-making. Citizens

cannot exercise their right to vote effectively or take part in

public decision-making if they do not have free access to

information and ideas and are not able to express their views

freely7.

Freedom of communication is thus not only important for

individual dignity but also to participation, accountability and

democracy. Violations of freedom of expression often go hand in

hand with other violations, in particular the right to freedom

of association and assembly8.

Communication represents an essential and very important

human need as well as a basic human right. Without having the

possibility to communicate and talk to other people, no

individual, community, group or any other institution would be

able to exist, or prosper. Strictly speaking the ability to

communicate or the general right of communication make it

possible to exchange opinions, thoughts and meanings. So it

enables people to express themselves and show their own points

of view. Consequently communication makes people who and what

7
http://www.hrea.org/index.php?base_id=147 February 19, 2014
8
http://www.hrea.org/index.php?base_id=249 February 19, 2014

7
they are and particularly strengthens human dignity. By having

the right to communicate and express personal thoughts, ideas,

and opinions, people feel themselves treated equally in other

words: Communication validates human equality. Thus the

protection and implementation of communication rights represents

an essential part of the general topic of human rights9.

In the in Philippines fact, the freedom of communication is

a constitutionally protected principle. Under Article II

Declaration of state principles and policies Sec. 24 of the 1987

constitution The State recognizes the vital role of

communication and information in nation-building 10

Furthermore under the Bill of rights:

SEC. 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.

SEC. 4. No law shall be passed abridging the freedom of

speech, of expression, or of the press, or the right of the

people peaceably to assemble and petition the government for

redress of grievances.

SEC. 7. The right of the people to information on matters

of public concern shall be recognized. Access to official

records, and to documents, and papers pertaining to official

9
http://www.crisinfo.org/. February 19, 2014, 2:34 am
10
The 1987 Constitution of the Republic of the Philippines: A Commentary. ISBN 978-971-23-5326-0

8
acts, transaction, or decisions, as well as to government

research data used as basis for policy development, shall be

afforded the citizen, subject to such limitations as may be

provided by law11.

The freedom of communication is not only restricted to

gestures, face to face encounters, or in telegraphs, it also

concerns the exchange of information through channels such as

the internet, television, and the use of telephones including

cellular phones. Thus, the protection of the right to express

and communicate includes those done in such channels.

However, in recent times, together with the advent of

sophisticated technology and the issue of public order and

security, certain banks both in the Philippines and abroad,

promulgated policies that prohibit their clients in using their

cellular phones inside bank premises.

The Metropolitan Bank and Trust Co. (Metrobank) is

enforcing a cell phone ban policy on clients transacting

business in all of its nationwide branches. In a memorandum to

branch managers, Metrobank said the cell phone ban policy is

being imposed for the security of the bank branches and of the

clients12.

A city in central Argentina has banned the use of cell

phones inside banks, punishable by 15 days in jail.

The law applies to bank employees, customers and anyone

inside a bank. Juan Brugge, one of the lawmakers who wrote the

11
The 1987 Constitution of the Republic of the Philippines: A Commentary. ISBN 978-971-23-5326-0
12
Villanueva, Marichu. Banks ban cellphone use. August 13, 2002

9
bill, said the measure complements national legislation,

particularly regulations by Argentina's central bank.

Security has been cited as the reason behind similar bans

elsewhere. Some bank officials have noted that robbers have used

cell phones to communicate with lookouts outside the building.

The use of cell phone cameras to help case a bank also is a

concern.

Banks in Mexico City, Chicago and elsewhere were reported

as having banned cell phones as early as 200613.

On April 4, 2011, the Legislative Assembly of the State of

Rio de Janeiro in Brazil enacted Law No. 5,939 prohibiting the

use of cell phones, radio transmitters, palmtops, and similar

equipment inside bank branches in the state. The author of the

bill, State Deputy Domingos Brazo, was quoted as saying that

people may continue to enter the bank branches with their

devices, but their use is prohibited inside, the idea being to

avoid the exchange of information among criminals and avoid

theft and robbery14.

Henceforth, this study is conducted to determine the pros

and cons of banning the use of cell phone in banks and whether

such bank policy indeed robs their clients, even employees of

their constitutional right to freedom of expression and

communication.

13
http://edition.cnn.com/2010/WORLD/americas/11/18/argentina.cell.phone.ban/index.html. February 17, 2013
14
http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205402615_text. February 17, 2013

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 Statement of the problem

The primary concern of this study is to determine

whether the bank policy of banning the use of cell phone in

their premises is a constitutional breach of the freedom of

expression and communication.

More specifically it aims to determine the pros and

cons of such bank policy.

Hypothesis

The banning of cell phone in bank premises is

violative of the freedom of expression and communication, hence,

it is unconstitutional.

Definition of terms

For the purpose of clarity and understanding, certain terms

were defined according to their precise and conceptual meaning.

Bank- a financial institution and a financial intermediary

that accepts deposits and channels those deposits into lending

activities, either directly by loaning or indirectly through

11
capital markets. A bank links together customers that have

capital deficits and customers with capital surpluses.15

In this study, bank refers to a financial institution

that adopted a policy of prohibiting the use of cellular phones

within their premises.

Cellular phone- a phone that can make and receive telephone

calls over a radio link while moving around a wide geographic

area. It does so by connecting to a cellular network provided by

a mobile phone operator, allowing access to the public telephone

network.16

In this study, cellular phone refers to the device

prohibited for use by banks within their premises.

Discussion

For security reasons

The main reason why cellular phones and other similar

devices are banned in banks, and in fact, also in other

establishments that concerns with monetary transactions such as

pawnshops are for security purposes, this is due to the

increasing number of bank robberies connected with the use of

cellular phones.

In the United States, A Florida man tried to rob a bank on

using a cellphone with a pen taped to it.

15
http://en.wikipedia.org/wiki/Bank. March 19, 2014
16
http://en.wikipedia.org/wiki/Mobile_phone March 19, 2014

12
 Michael Hamson Sr. was arrested after trying to pass off

the harmless device as an explosive at a Bank of America branch

in Tampa.

Police say the 59-year-old walked in slid a teller a note

that claimed he had a bomb then lifted his shirt to reveal a

container with the phone and pen strapped to it.

The Hillsborough County Sheriff says the teller gave Hamson

an undisclosed amount of cash before he dashed out of the bank17

A similar incident a young woman has robbed four Wachovia

bank branches in Northern Virginia in a span of 4 weeks, all

while seemingly immersed in cell phone chats, a video footage

showed the woman to be almost uninterested as a teller hands her

a stack of cash, and she continues talking on her phone as she

turns and walks out of the bank.

The cell phone walked in carrying a box and talking on a

cell phone. She moved directly to the teller counter and

displayed the shoebox-size box, which had a note taped on it

demanding cash. Police would not disclose the wording of the

note.

As in the other cases, the robber exchanged few or no words

with the teller, because she apparently was busy talking to

someone else. She scooped up the cash, started walking and kept

talking.

17
http://www.dailymail.co.uk/news/article-2542177/Man-tries-rob-bank-cell-phone-taped-pen-told-tellers-
bomb.html. March 12, 2014

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 In the most recent robbery, however, there was a twist: a

gun.

During her brief visit to the Wachovia branch at 43780 Parkhurst

Plaza in Ashburn, the woman carried a purse and simply opened it

up, showing the gun to the teller. Then she handed over a note

demanding cash, with the cell phone still firmly attached to her

ear.

It appeared to witnesses that there was someone on the

other end of the robber's line. If she's not conversing with a

co-conspirator, investigators have theorized, she could just be

using the phone as a prop. Some might argue that people who stay

on a cell phone throughout a bank transaction tend to draw

attention to themselves.18

Such incidents gave rise for banks to take precautionary

measures to protect their property as well as to preserve the

welfare of their customers. Cell phones were used either as a

prop to appear as it were some kind of an explosive device and

generally, because the person inside might be conspiring with

other criminals and acting as a correspondent to report the

situation inside the bank in order to devise a plan to carry out

their evil motives. One can never know what people on the other

line are doing.

A criminal could be on a phone at a teller window, robbing

the bank or passing a bad check. Meanwhile, an accomplice

outside has an eye peeled for police to foil an arrest attempt.

18
http://www.washingtonpost.com/wp-dyn/content/article/2005/11/10/AR2005111002009.html. March 15, 2014

14
That would possibly be the communication banks are trying to

stop.

If trends in bank robberies and phone shipments sustain

momentum, a security movement now in its infancy could pick up

more apostles.

Moreover, certain banks adhere to this policy because of

local legislation.

In October of 2002 The Sangguniang Panglungsod of the City

of Makati enacted CITY ORDINANCE NO. 2002-121 which prohibits

"the use of cellular phones or similar devices inside

banks, pawnshops, money exchange and similar establishments in

the City of Makati."

The Ordinance, likewise mentioned "the technology of

cellular phones and similar devices has given rise to the

possibility of exploitation and misuse by lawless and

unscrupulous individuals as means of communication when carrying

out their criminal activities." Further to this, banks and other

establishments mentioned in the ordinance are mandated to post

signs at the premises entrances informing the clients of this

prohibition.

However, such legislation was criticized for being

discriminatory for cell phone users and infringes the regulatory

authority of the Bangko Sentral ng Pilipinas (BSP) and National

Telecommunications Commission (NTC).

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Mobile Banking

Mobile banking is a system that allows customers of

a financial institution to conduct a number of financial

transactions through a mobile device such as a mobile

phone or personal digital assistant.

The earliest mobile banking services were offered over SMS,

a service known as SMS banking. With the introduction of smart

phones with WAP support enabling the use of the mobile web in

1999, the first European banks started to offer mobile banking

on this platform to their customers.

Mobile banking has until recently (2010) most often been

performed via SMS or the mobile web. A recent study (May 2012)

by Mapa Research suggests that over a third of banks have mobile

device detection upon visiting the banks' main website19

Banks such as the Bank of the Philippine Islands (BPI),

Banco de Oro (BDO), Chinabank and other financial institutions

alike have adopted such service to its customers. The irony is,

cell phones are banned in banks however they have mobile banking

in which clients could perform transactions using their cell

phones.

Reports suggest that the next generation of "phishing"

scams, focused on mobile banking, has begun, and it has the

potential to do much more damage than earlier versions.

As mobile-banking applications have increased in

popularity, so has the risk of downloading and installing a

fraudulent app that could draw your account information and,

potentially, any other data stored on ones mobile device.

19
http://en.wikipedia.org/wiki/Mobile_banking. March 16, 2014

16
 The trend still is in its infancy, but there already have

been instances of potential fraud.

Google Inc. pulled 50 applications from its Android Market

online app store in response to concerns that they may be

malicious. All the apps were uploaded by the same developer and

claimed to offer access to bank accounts from a wide variety of

institutions, from big companies like J.P. Morgan Chase &

Co., HSBC Holdings PLC, U.S. Bancorp, to local credit unions.

The issue already has gotten the attention of banks' fraud

departments, which are charged with monitoring for such

incidents and warning customers.20

Under the regulatory powers of the Government

Banks operate by sheer permission from the government

through the Bangko Sentral ng Pilipinas (BSP) by virtue of a

license issued under Section 6 of the General Banking Act or

AN ACT PROVIDING FOR THE REGULATION OF THE ORGANIZATION AND

OPERATIONS OF BANKS, QUASI-BANKS, TRUST ENTITIES AND FOR OTHER

PURPOSES (R.A. 8791).

SECTION 6. Authority to Engage in Banking and Quasi-Banking

Functions. No person or entity shall engage in banking

operations or quasi-banking functions without authority from the

Bangko Sentral: Provided, however, That an entity authorized by

the Bangko Sentral to perform universal or commercial banking

20
http://online.wsj.com/news/articles/SB10001424052748704343104575033380555965818. March 15, 2014

17
functions shall likewise have the authority to engage in quasi-

banking functions.

There is a maxim that steam cannot rise higher than its

source. It means that it is essentially a state function to

determine if the limit of authority granted by the Constitution

was exceeded, and therefore illegal. Following that logic, banks

cannot rise higher than the government which is the source of

the license. Moreover, the government cannot rise higher than

the Constitution, the very source of its power.

Therefore, banks could just not lay down policies which

exceed beyond their limit, More so, local legislations which

encroach upon or constitutional rights.

Constitutionally Protected

The main argument used in this study is that our freedom of

privacy, expression and communication is constitutionally

protected.

Under the Bill of Rights (Article III), 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.

and Section 4 which declares:

No law shall be passed abridging the freedom of speech.

Generally, the right to privacy and or, privacy of

communication is equated with the right to be alone.

18
 In 1928, Brandeis, already a Supreme Court Justice,

incorporated the right to be let alone in his dissent

in Olmstead v. United States,21 viz:

The protection guaranteed by the Amendments is

much broader in scope. The makers of our Constitution

undertook to secure conditions favorable to the

pursuit of happiness. They recognized the significance

of mans spiritual nature, of his feelings, and of his

intellect. They knew that only a part of the pain,

pleasure and satisfactions of life are to be found in

material things. They sought to protect Americans in

their beliefs, their thoughts, their emotions and

their sensations. They conferred, as against the

Government, the right to be let alone the most

comprehensive of rights, and the right most valued by

civilized men. To protect that right, every

unjustifiable intrusion by the Government upon the

privacy of the individual, whatever the means

employed, must be deemed a violation of the Fourth

Amendment. And the use, as evidence in a criminal

proceeding, of facts ascertained by such intrusion

must be deemed a violation of the Fifth. [emphasis

supplied]

In 1960, torts scholar William Prosser published in

the California Law Review22 his article Privacy based on his

thorough review of the various decisions of the United States

21
277 U.S. 438 (1928).
22
48 California Law Review, No. 3 (August 1960), p. 383.

19
courts and of the privacy laws. He observed then that the law

of privacy comprises four distinct kinds of invasion of four

different interests of the plaintiff, which are tied together by

the common name, but otherwise have almost nothing in common

except that each represents an interference with the right of

the plaintiff, in the phrase coined by Judge Cooley, to be let

alone.23 He identified the four torts as: (a) the intrusion

upon the plaintiffs seclusion or solitude, or into his private

affairs; (b) the public disclosure of embarrassing private facts

about the plaintiff; (c) the publicity that places the plaintiff

in a false light in the public eye; and (d) the appropriation,

for the defendants advantage, of the plaintiffs name or

likeness.24

Based on the above-mentioned four torts on the

invasion of the right to be alone, the banning of the use of

cell phones in banks premises clearly falls within the premise

of a and c.

(a) The intrusion upon the plaintiffs seclusion or

solitude, or into his private affairs. Clearly to ban a person

from using his cell phone, which is his own personal and private

property is definitely an intrusion upon his private affairs. A

person communicates via phone his personal transactions and

daily activities. Preventing such communication would hinder a

person from the performance of his or her obligations.

(c) The publicity that places the plaintiff in a false

light in the public eye. The contention that the use of cell

phones in banks is for the purpose of executing an evil plot

23
Id., p. 389.
24
Id.; see also Richards and Solove, op. cit., pp. 148-149.

20
would put persons doing such in an unlikely image, it is like

saying that all people in banks using cell phones are criminals.

Conclusion

On the grounds that:

1. Banks operate under permission by government through the

Bangko Sentral ng Pilipinas (BSP) thus, they cannot

enforce policies beyond their limits. And,

2. Since the freedom of privacy, communication and

expression is inviolable.

Therefore, the policy of banning the use of cell phones in

bank premises is UNCONSTITUTIONAL. The prevention of crime,

should not in any way, suppress our constitutional rights.

21