Using mobile phones in banks is a Constitutional right

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 
 

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Atty. Rod Vera is a managing partner of the Vera and Associates law firm. This piece originally appeared on the Manila Speak blog. We are re-posting it here with the author's permission.