‘Mere suspicion’ not ground for arrest under terror law – DOJ official
By Marlon Ramos
Philippine Daily Inquirer
2020-10-18 05:16:43

MANILA, Philippines — The “mere suspicion” that an individual is committing, has committed or about to commit a terror act will not justify that person’s warrantless arrest, a senior Department of Justice (DOJ) official who helped formulate the rules or guidelines in implementing the Anti-Terrorism Act said on Saturday.

Critics, including human rights lawyers and legal luminaries, have challenged the constitutionality of the anti-terror law in the Supreme Court, citing among other alleged illegal provisions, the arrest of alleged terrorists on mere suspicion.

The implementing rules and regulations (IRR) of the antiterrorism law, enacted as Republic Act No. 11479 by President Rodrigo Duterte on July 3, were approved by the Anti-Terrorism Council (ATC) on Wednesday and made public by the DOJ on Friday night.

CONTINUING OBJECTION A total of 37 petitions are questioning the constitutionality of the Anti-Terrorism Act at the Supreme Court, their resistance embodied by one of the protesters who gathered for a rally on the University of the Philippines Diliman campus on July 7. —GRIG C. MONTEGRANDE

What ATC can, can’t do

Justice Undersecretary Adrian Sugay told the Inquirer in a phone interview that contrary to claims by opponents of the law, the arrest of any terror suspect should satisfy the requirements for a finding of probable cause as mandated by the Rules of Court and existing jurisprudence.

Asked whether plain suspicion or inkling that a person had violated the antiterror law was enough to be arrested without a court-issued warrant, the justice official said: “Just a mere suspicion, in our interpretation of Section 29 of the antiterror act, will not be sufficient.”

Sugay also clarified that the ATC, composed of nine Cabinet secretaries and headed by the executive secretary, was not authorized to order the arrest of a terror suspect as claimed by those opposing the law.

“What the ATC authorizes is detention [of a terror suspect] for an extended period,” he said in the Inquirer interview.

Rule 3.10 of the IRR states that the ATC will only have “purely executive functions.”

“Nothing in the Act shall be interpreted to empower the ATC to exercise a judicial or quasi-judicial authority,” the IRR explicitly said.

Section 29, one of the most contentious provision of the law, states in part that “any law enforcement agent or military personnel, who, having been duly authorized in writing by the ATC has taken custody of a person suspected of committing any of the acts defined and penalized under … this Act, shall … deliver said suspected person to the proper judicial authority within a period of fourteen (14) calendar days counted from the moment the said suspected person has been apprehended or arrested, detained and taken into custody by the law enforcement agent or military personnel.”

Warrantless arrest

But that provision also allows the extension of the period of detention of a suspected terrorist without warrant for another 10 days “if it is … necessary to preserve evidence related to terrorism or complete the investigation” and to “prevent the commission of another terrorism, and the investigation is being conducted properly and without delay.”

In all, a terror suspect may be held in detention without a warrant for up to 24 days.

Rule 9.2 of the IRR says that a law enforcement agent may arrest without warrant “a suspect who has committed, is actually committing or is attempting to commit any acts defined and penalized” under the law “in the presence of the arresting officer.”

It also permits the warrantless arrest of a suspect if “based on personal knowledge of the arresting officers, there is probable cause that said suspect was the perpetrator of any of the acts defined and penalized” under the law.

Likewise, a terror suspect may be held without warrant if he or she is a prisoner who “has escaped from a penal establishment … while his/her case … is pending, or has escaped while being transferred from one confinement to another.”

Individuals and groups questioning the law, particularly the National Union of Peoples’ Lawyers (NUPL), had repeatedly claimed that Section 29 flouted the Constitution that prohibited warrantless arrest.

Shared fears

“It also changes the rules by permitting warrantless arrests based on mere suspicion of criminal activity. This goes against the very essence of the constitutional right to liberty and due process,” the NUPL had argued.

Lawyer and broadcast personality Mel Sta. Maria, dean of Far Eastern University’s Institute of Law, expressed the same fear in the separate petition that he and fellow law professors filed in the high tribunal.

Sta. Maria said Section 29 only “attempted to legitimize warrantless arrests on the basis of mere suspicion” as it encroached on the exclusive “judicial power and prerogative” of the courts.

Another petitioner, Albay Rep. Edcel Lagman, said that in addition to the 24-day warrantless detention, the law allows a six-month ransacking of bank accounts and a 90-day surveillance and wiretapping.

The new law also removes the safeguard in the repealed Human Security Act that penalized erring officers with a P500,000 per day fine for each day a person spends in wrongful detention.

Sugay said the DOJ panel and the ATC considered the legal issues raised in the 37 petitions against the antiterror law in the Supreme Court in crafting the IRR.

He assured lawmakers that the IRR was consistent with the provisions of the antiterror law.

“It was very clear to us that our work was to make sure that we work within the parameters of the law and that it is implemented properly,” Sugay said.

“As far as we are concerned, we stayed within the parameters of the law and hopefully, we are able to clarify [and] to interpret it the best way possible,” he said.

Justice Secretary Menardo Guevarra said the IRR was registered online in the Office of the National Administrative Register of the University of the Philippines’ Law Center on Friday as required by law.

He said the IRR had also been posted on the DOJ website and was printed in two leading newspapers on Saturday to meet the requirement to publish the guidelines within 90 days after the enactment of the law.

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