MANILA, Philippines — A provision of the Anti-Terrorism Act of 2020 allowing the detention of suspected terrorists without a warrant came under the scrutiny of Supreme Court justices in the resumption of oral arguments on Tuesday.
One of the most assailed provisions of Republic Act 11479, Section 29 allows law enforcers or military personnel to take custody of suspected terrorists for 14 days, extendible by another 10 days, before bringing them before judicial authorities.
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OSG: Continued detention after a valid warrantless arrest
Associate Justice Jhosep Lopez, the first to interpellate the government lawyers, asked Assistant Solicitor General Marissa Galandines whether taking into custody under the written authority of the Anti-Terrorism Council is the same as issuing a warrant.
“The law itself says they can put into custody a person suspected only of committing any of these crimes and it is in a written order,” the justice pointed out.
Galandines asserted that the written order of Section 29 is for the continued detention of a suspect who was arrested following a valid warrantless arrest.
She added that government lawyers looked into the proceedings of lawmakers, and it was clear from the interpellation of Sen. Panfilo Lacson, author of the law, that the provisions "was for the ATC to issue a written order for the continued detention and not for the issuance of an arrest order."
Circumstance for warrantless arrests
Rule 9.2 of the law’s Implementing Rules and Regulations discusses when security personnel may arrest without a warrant, as related to circumstances listed under Rule 113 of the Rules of Court.
This specific rule provides that a warrantless arrest is deemed valid if the person has committed, is actually committing, or is attempting to commit an offense; if a crime has just been committed; or if the person is an escaped prisoner.
Associate Justice Samuel Gaerlan pressed: Isn’t the IRR inclusion of Rules of Court grounds on warrantless arrest an admission that Section 29 is unconstitutional?
"Are you not asking the court to unreasonably stretch the interpretation of the law in order for it be valid?" Gaerlan said.
Petitioners have raised that the IRR, although containing the same problematic provisions of the law, attempted to cure defects of the measure.
Galandines disputed this.
"We submit that Section 29 is clear. Section 29 follows a valid warrantless arrest as enumerated in Rule 113 of the Rules of Court.”
Detention period longer than during Marcos' Martial Law
Justice Lopez also pointed out that under Section 18, Article VII of the Constitution, in case of invasion or rebellion, when public safety requires it, the privilege of the writ of habeas corpus may be suspended or martial law declared.
During this period, authorities must bring detained persons to judicial authorities within three days.
But even without martial, authorities can detain a person of up to 24 days with the anti-terrorism law in place.
“We are not under any situation where there is a suspension of the privilege we are under ordinary times and now you are talking about rebellion and invasion. What makes you think that violation of ATA law is even higher than rebellion or invasion when rebellion or invasion ... life of the nation itself it is at stake?” Lopez prodded.
Galandines said the Constitution contemplates the extraordinary situation when the privilege of the writ of habeas corpus is suspended, while the ATA does not contemplate such. She also asserted that terrorism is an extraordinary crime.
The government later said Sec. 18 Art. VII of the 1986 Constitution “came about because of fear that martial law will again be proclaimed by the sitting president.”
When asked whether the present constitution may be insufficient as it was intended to meet exigencies of the martial law, Galandines replied: “Not that we have to change the constitution your honor, but it’s just that Congress, in its wisdom, provided for a different period in cases of terrorism.”
Associate Justice Edgardo Delos Santos meanwhile pointed out that under the current rules, offenders convicted of light felonies may face imprisonment of one to 30 days. The maximum period, under crimes punishable by arresto menor, is only six days shy of the maximum period of detention under Section 29 of the law.
Under the ATA, too, detained suspects will not be given a chance to refute allegations against them. A conviction on light felonies also occurs only after a full trial, the justice noted.
“Will this not be violative of the constitutional prohibition that no person shall be held to answer for a criminal offense without due process of law because, effectively, a person detained would be deprived of liberty even without a judgement by court of law finding him guilty beyond reasonable doubt?” Delos Santos said.
Galandines claimed that detention under Section 29 is “class of its own” but did not expound.
She later defended the prolonged period of detention by citing the gravity of the suspected offense.
"It renders… the period of detention is proportionate to the crime committed which is or the crime sought to be prevented which terrorism and therefore we submit, your honor, that this could to be compared to a light offense."
Safeguards?
Galandines, under interpellation of Associate Justice Ricardo Rosario, also asserted that the law contains “sufficient safeguards” like requiring state agents to inform the Commission on Human Rights and judges nearest to the place of arrest of the prolonged detention.
But she later admitted that a person freed after the 28-day detention may be arrested again under the same provision.
This was among the arguments raised by petitioners led by retired Senior Associate Justice Antonio Carpio. They said the law opens up suspects to an endless cycle of arrests and detention even without charges.
In their petition, they said: “On the 25th day, the ATC may order the re-arrest of the designated individual or member of an organization that remains designated/proscribed as a terrorist since the designation or proscription order is still valid.”
Responding to Justice Delos Santos’ question, she said: "If that same suspect would commit an act that would justify again a valid warrantless arrest then that suspect can again be arrested."
The oral arguments on the petitions against anti-terrorism law will continue on May 11, 2:30 p.m.