Human Rights Treatise On Constitutional Law

Human Rights Treatise
on
Constitutional Law
a. publication
by
the
Ateneo Human Rights Center
Human Rights Treatise on
Constitutional Law
Ateneo Human Rights Center I30 H.V. de la Costa, SJ. Street Salcedo Village, Makati City L227
ACKNOWLEDGMENT
of Canada Fund,
The Ateneo Human Rights center acknowledges the support
friends of Ateneo Human Rights Center.
. Amparita s. Sta. Maria for the concept cover, and the staff and
Amparita S. Sta. Maria Ma. Generose T. Mislang

Carlos P. Medina, Jr.
EDITORIAL BOARD
Any part of this publication may be reproduced or quoted or ^ for non-commercial purposes with appropriate acknowledgment.
Copyright 1997.
Published by the Ateneo Human Rights center,l3o H. V. de la Costa, SJ. St., Salcedo Village, Makati City LZZT philippines
tsBN 971-889H3_0
Human Rights Treatise on Constitutional Law
HOLD DEPARTURE ORDERS AND THE RIGHT TO TRAVEL PRIOR TO OR DURING PRELIMINARY INVESTIGATION
BEATO ALESSANDRO C. DE LA CRUZ, M"
INTRODUCTION
In the recent spate of criminalify, the need for the detention of suspects in order to face criminal indictment was clearly illustrated by the "Eleven Little Indians Controversy." This case started when eleven Indian nationils, alleged members of an international syndicate, were arrested by agents of the National Bureau of Investigation (NBI) at a drug laboratory in Las Pifias on July 4, 1994. Seized from the Indians were 6,976 kilos of methaqualone, a downer popularly known as Madrax. However, 20 days after, and just as State Prosecutor Reynaldo Lugtu sued them, the Commission on Immigration and Deportation (CID) approved the self-deportation of the I I Indians stating that there were no pending criminal complaints against them. Then CID Commissioner Zaltro Respicio said that the order was "a normal procedure because the parties (had applied for) self-deportation."r
Faced by this dilemma of suspects escaping with impunity before criminal cases can be filed against them, the CID issued Law Instructions Nos. 7 and 5 on April 21, 1988 and August 28, 1990, respectively. These set forth the guidelines and bases for the issuance of Hold Departure Orders (HDOs) in aid of criminal prosecution. With HDOs, investigation and enforcement agencies like the
NBI have been able to restrain the departure of persons suspected of criminal
liability provided there is compliance with the law instructions.
even before their preliminary investigations could be conducted - by mere application of investigation agencies after or even before mustering initial evidence linking the suspects to the
crime.
In a startling newspaper account, the CID placed the number of people barred from leaving the country at more than 10,000.2 The more sensational cases of the recent period - the Lenny Villa Hazing, the Eugene Tan Double Murders, and the Vizconde Massacre - were just examples of cases wherein HDOs were employed as a means of restraint on the right to travel in aid of criminal prosecution. The accused in these cases were prevented from leaving the country
administrative warant. Being such, they have not eluded judicial scrutiny. Our Supreme Court has ruled that an HDO is a necessary consequence of the nature and function of a bail bond.3 In
Juris Doclor 1996. Ateneo de Manila Universitv School of Law. Ricky S Torres. I4/hoctunl/, pf{tllpplNE FREi PRESS, Sept. 10, 1994, p. 10. Intelcla Tops BI llotd Order List, THE PHILIPPINE STAR, Ianuary 21,1996, p. I ' Manoloc. Jr. v. Court ofAppeals,142 SCRA 153 (1986) [hereinafter citedas Manotocl
1.
As a form of restraint on the constitutional right to travel, HDOs are akin to
an
'
Constitutional Right to Travel
another case, it has been considered as a valid restriction on a person's right to travel so that he may be dealt with in accordance with law.a
To accept HDOs as valid restraint on foreign travel is to subordinate the constitutional guarantee ofthe right to travel.
Under the 1935 Constitution, the rights to travel andto liberty of abode were treated
under a single provision. Article
III, Section I (4) thereof read:
"The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired."s
This was primarily adopted from the United States Constitution which included the right to travel under the broad concept of"liberty" in the Due Process clause and the "liberfy ofabode" provision. It did not elaborate on the limiting phrase "within the limits prescribed by law" as it left this to the legislature to define.
Under the 1973 Constitution, the old provision was amended to include an express provision on the right to travel alongside the right of abode. It also expanded the restrictions to include limitations upon the lawful order of the court or when necessary in the interest of national securify, public safety or public health. Thus, the text read:
"The liberty of abode and of travel shall not be impaired except upon lawful order of the court or when necessary in the interest of national security, public safety, or public health."6
Unlike the general vague limitation presented by the 1935 Constitution, the amended provision included a limiting phrase which prescribed narrower constrictions on the right to travel. This limiting phrase, however, must not be interpreted in such a way as to clothe the executive, or its subordinates, with the unbridled power to impair these fundamental rights and nullify the same upon its independent judgment that such infringement is dictated by the interest of national security, public safety or public health. Rather, the phrase must be interpreted to mean that the liberty of travel is subject to the police power of the State. The legislature may regulate the exercise of such right through laws enacted for the protection and preservation of the national securify, or for the promotion of public health and safety.T
Under the 1987 Constitution, the right to travel was expressly delineated from the right abode by giving it a different treatment, to wit:
a
of
'n PHILIPPINE
'
Silverio v. Court ofAppeals,195 SCRA 766 (1991) [hereinafter cited as Si/verio]. CONSTITUTION, Sec. t (4) (1935) [hereinafter cited as pHIL. CONST.] PHIL. CONST ., Att. tV, Sec 5 (1973). NEpTALI GONZALES, pHILIpptNE CoNSTITUTIONAL LAw 448 (t925).
"The liberty of abode and of changing the same rvithin the limits prescribed by law shall not be impaired except upon lawful order ofthe court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law."8
The limitations on the right to travel must be interpreted to mean that while the liberty of travel may be impaired even without a court order, the appropriate executive officers or administrative authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of "national security, public safety, or public health as may be provided by law", a limiting phrase which did not appear in the previous Constitution. Apparently, this phraseology is a reaction to the ban on international travel imposed under the previous regime when there was a Travel Processing Center, which issued certificates of eligibility to travel upon application of an interested party.e
It has also been declared that this provision must by no means be construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them. When by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be
employed by such court or of{icer.r0
Aside from the express recognition of the right to travel in the Bill of Rights, such right is also a generally accepted principle of international law considered by our Constitution as forming part of the law of the land.rr The Universal Declaration of Human Rights and the Intemational Covenant on Civil and Political Rights treat the right to freedom of movement within the territory of a state, the right to leave a country, and the right to enter one's country as separate and distinct rights. Under the Universal Declaration of Human Rights to which the Philippines is a signatory, Art. 13, (l) and (2), to wit:
the twin context of the right to travel is enshrined in
"Art.
13 Everyone has the right borders ofeach state.
(l).
to freedom of movement and residence within the
(2) Everyone
has the right to leave any country including his own, and to return to his country."
o,,,Supro
PtilL. CONST.. Arr. Iil, Sec.6 (1987) note 4. citing the case ofsa/or ga v. Hermoso & Trave! Processing Center.97 SCRA "' ld. at765. citing Rule 135, Section 6 ofthe Rules ofCourt.
'
( I 980)
PHIL. CONST.. Art. X, Sec. 2 ( 1987).
Constitutional Right to Trrvel
Under the Declaration, the right to travel is based on the principle that the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace of the world.12 As such, it extends "to all residents regardless of nationality and everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the Constitution or by law."l3
Similarly, under the International Covenant on Civil una potlti.ut Rights, which has been ratified by the Philippines, the right to travel is provided in the following:
(l) Everyone lawfully within the territory of a State shall, within that territory, has the right to liberty of movement and freedom to choose his residence.
"Article 12. (2) Everyone shall be free to
leave any country, including his own.
(3) The above-mentioned right shall not be subject to any restriction except those which are provided by law, are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
(4) No
one shall be arbitrarily deprived of the right to enter his country."
Under the Covenant, the right to travel and the right to return are also distinct and
separate, each enjoying a different protection against arbitrary depriyation.
LIMITATIONS ON THE RIGHT TO TRAVEL

Starting with the 1973 Constitution, the framers thereof provided for specific grounds upon which the right to travel could be limited through the exercise of the inherent police power of the State. The 1973 Constitution provided for four grounds which limited both the liberty of abode and travel could be limited, namely: (l) lawful order of the court; (2) national security; (3) public
safety; and (4) public health. Under the 1987 Constitution, these grounds were reiterated. However, an express provision was added to emphasize that legislation is necessary to elucidate the last three grounds. The phrase, "as may be provided by law" vested the Congress with the authority to determine how the said right should be impaired based on the aforesaid grounds. Congress alone could enact the specific restrictions on the right to travel and this finds support under American jurisprudence. Mr. Justice Black in his separate opinion in the case of Zemel v.
Raskra emphasized:
'2 Lohel
ti Kant Kt,ong
Kant Ktongf.
A. Martinez, Constitutiondl as Well as Human Right to Travel,97 SCRA 129 (1980). v. Presidenlial Commission on Good Goternnrent, 156 SCRA 222, at232 (1987) [hereinafter cited
as
''
381 t-ts,
at 22 [hereinafter cited as kmel].
"Our Constitution has ordained that laws restricting the liberty of our people can be enacted by the Congress and by the Congress only. I do not think our Constitution intended that this vital legislative function could be farmed out in large blocks to any govemmental official, whoever he might be or to any government
department or bureau whatever administrative expertise it might be thought to have. The Congress was created on the assumption that enactment of this free country's laws could be safely entrusted to the representatives of the people in Congress, and to no other official or government agency. The people who are called on to obey laws have a constitutional right to have them passed only in this constitutional way."
Both American and Philippine jurisprudence are in agreement that "a lawful order of the a valid directive from a coult ofjustice to impede the right to travel so that its contemplates court" processes are not rendered nugatory. Thus, a person facing criminal charges may be restrained by from leaving the country or, if abroad, compelled to return. A lessee may be judicially ih" "ourt ejected for violation oJ contractual duties. The judge may prevent a person from entering certain premises under dispute or declared off limits by the proper authorities.t) This concept has been the emphasis of the Supreme Court in the case of Suntay v. Peoplet6. In this case, the Court upheld the order of the lower court directing the Department of Foreign Affairs "to take proper steps in order that the accused may be brought back to the Philippines, so that he may be dealt with in
accordance with the
law." This is because said order was considered
necessary to carry into effect
the jurisdiction conferred by law on the court. This was reiterated in the case of Manotoc v. CA.t7 In this case, the petitioner who was under bail questioned the lower court's denial of his leave to travel abroad. The denial came after the Securities and Exchange Commission (SEC) requested the CID Commissioner not to clear his departure and after six separate criminal complaints were filed against him and his co-accused. Mr. Justice Feman declared:
"The condition imposed upon petitioner to make himself available at all times whenever the court requires his presence operates as a valid restriction on his right to travel.
"Indeed, if the accused were allowed to leave the Philippines without sufficient reason, he may be placed beyond the reach of the courts. The effect of recognizance or bail bond, when fully executed or filed ofrecord, and the prisoner released thereunder, is to transfer the custody of the accused from the public officials rvho have him in their charge to keepers of his own selection. Such custody has been regarded merely as a continuation of the original imprisonment. The sureties become invested with full authority over the person ofthe principal and have the right to prevent the principal from leaving the State, more so then has the court from which sureties merely derive such right, and whose.jurisdiction over the person of the principal remains unaffected despite the grant ofbail to the latter.
A cttuz, coNSTIluloNAl LAw ( 1980). p. I 32 Phil 833. at 835, 836 (1957) [hereinailer cited as sr/n/.ry]. l0l 't'
''
tsAGANr
t' Supro note 3. at I54-l55. I57.
"To our mind, the order ofthe trial court releasing petitioner on bail constitutes such lawful order as contemplated by the abovequoted constitutional provision (Section 5, Art. IV of the 1973 Constitution)."
The Supreme Court affirmed the lower court's order by declaring that a person facing criminal if abroad, may be coirpelled to return. Madame Justice Melencio-Herrera explained:
charges may be restrained by the court from leaving the country or,
based on the lower court's finding that the accused had not yet been arraigned because he had never appeared in court on the dates scheduled for his arraignment. Additionally, there were evidence that the petitioner had left the country without the knowledge and permission of the court.
ln the subsequent case of Silverio v. Court of ,lpproiis,rs petitioner questioned the order of the lower court directing the Department of Foreign Affairs to cancel his paisport or to deny his application therefor, and the CID to prevent him from leaving the country. This was primarily
"Article III, Section 6 of the 1987 constitution should by no means be construed as delimiting the inherent power of the courts to use all means necessary to carry their orders into effect in criminal cases pending before them. when by law jurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes and other means necessary to carry it into effect may be employed by such court or officer (Rule 135, Section 6, Rules of Court).
"Petitioner is facing a criminal n. has posted bail but has violated the conditions thereof by failing to appear before the Court when required. Warrants for his arrest have been issued. Those orders and processes would be rendered nugatory if an accused were to be allowed to leave or remain, at his pleasure, outside thi teriitorial confines of the country. Holding an accused in a criminal case within the reach of the Courts by preventing his departure from the Philippines must be considered as a valid restriction on his right to travel so that he may be dealt with in accordance with law. The offended party in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal prosecutions should run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to Couit
orders and processes."
.*.r.
In the recent case of Marcos v. Honorable Sandiganbayan,te the Supreme Court was consistent with regard to this limitation. In that case, forrner First Lady Imelda Marcos filed a petition for certiorari to set aside as arbitrary and in grave abuse ofdiscretion the resolutions ofthe Sandiganbayan denying her motion for leave to travel abroad for medical treatment. In dismissing the petition, the Court through Mr. Justice Mendoza ruled:
'r Supra note 4, at 765-766.
t" Morcos v. Sandiganbayan, G.R. No. ll5132-34 (August 9.
l99j)
reconsideration filed by the petitioner. But a person's right to travel is subject to the usual constraints imposed by the very necessity ofsafeguarding the system ofiustice ln such cases, whether the accused should be permitted to leave the jurisdiction lor humanitarian reasons is a matter of the court's sound discretion'"
"To be sure, the conviction is not yet final in view of a motion for
The abovementioned decisions are consistent with the decisions of the United States Supreme Court. In Aptheker v. Secretary of Starc2o case, Mr. Justice Goldberg has ruled that:
"Absent war, I see no way to keep a citizen from traveling within or without the country, unless there is power to detain him. And no authority to detain exists except under extreme conditions, e.g., unless he has been convicted of a crime or unless there is probable cause for issuing a warrant of arrest by standards of the Fourth Amendment."
The clear import of the cases mentioned is that a court order can only be considered a valid curtailment of the right to travel if it is for the purpose of promoting the court's effective adjudication of cases. Outside this primordial purpose, the right to fravel shall always rank
superior and unrestrained. Curtailing the right to travel on the ground ofnational securify finds basic legal support in Congress' "obvious and unarguable" power to safeguard the same.2r This is illustrated in Haig v. Agee22 where the petitioner Secretary of State prayed on certiorari for the reversal of the lower court's decision to restore the respondent's passport, the same having been revoked due to the latter's activities abroad which the petitioner considered to be "causing or likely to cause serious damage to the national security or the foreign policy of the United States." In reversing the lower court's decision, the United States Supreme Court ruled that the Passport Act of 1926 authorizes the Secretary of State to revoke a citizen's passport where "the citizen's activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States." This policy, being a substantial and consistent administrative practice, is sufficient to compel the conclusion that Congress has approved it. Chief Justice Burger explained that:
"Revocation of a passport undeniably curtails travel, but the freedom to travel of introduction ' in the form ofa passport issued by the sovereign is subordinate to national security and foreign policy to reasonable governmental regulation.
abroad with a 'letter
t" 378 LJS 500, at 529 (l96zl) [hereinafter cited as Apthekerl 2t tct. at 509. r2 453 us 2so (t981).
Protection of the foreign policy of the United States is a govemmental interest
of great importance, since foreign policy and national security considerations cannot neatly be compartmentalized. Measures to protect the secrecy of our Government's
foreign intelligence operations plainly serve these interests."23
From the foregoing, curtailing the right to travel on the"basis ofnational security clearly shows that even the basic liberties of men can be subordinated to the necessities of selfpreservation of the State and the prevention of possible intemational misunderstanding and conflict. The curtailment of the right to travel on the grounds of public safety is best explained in the case of Philippine Association of Service Exporters, Inc. v. Drilon.'o The petitioner, a firm engaged principally in the recruitment of Filipino workers for overseas placement, challenged the constitutional validity of Department Order No. l, Series of 1988, of the Department of Labor and Employment (DOLE), in the character of 'GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS." This was premised on the ground, among others, that it was violative of the right to travel. The Supreme Court dismissed the petition by ruling that the right to havel is subject, among other things, to the requirements of "public safety, as may be provided by law." The Court considered the Department Order as a valid implementation of the Labor Code, in particular, its basic policy to "afford protection to labor", pursuant to the DOLE's rule-making authority in the Labor Code. Mr. Justice Sarmiento explained that:
"'Protection to labor' does not signifr the promotion of employment alone. What concerns the Constitution more paramountly is that such an employment be above all, decent, just and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment at home. Under these circumstances, the Government is duty bound to insure that our toiling expatriates have adequate protection, personally and economically, rvhile away from home. In this case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite ban on deployment."
Fublic safety
as a
valid limitation on the right to travel is also recognized under American
jurisdiction. In the case of Koremalsu v. Llnited States,25 where the United States Supreme Court allowed the Government in time of war to exclude citizens fiom their homes and restrict their freedom of movement on a showing of "grave imminent danger to public safety." In that case,
Congress and the Chief Executive moved in coordinated action as the nation was then at war.
2r
ld. at 306-307. 'u I 63 scRA 386 ( I 9s8) 25 323 tJS 214 (1945)
The right to travel can also be validly curtailed by the necessities of public health. The United States Supreme Court has declared in the case of Zemel v. Rusk,26 citing Edwards ,Califtrnia, that freedom of movement does not mean that areas ravaged by flood, fire or pestilence can not be quarantined when it can be demonstrated that unlimited travel to the area would directly and materially interfere with the safefy and welfare of the area or the nation as a whole.
Our Supreme Court as early as the case of Lorenzo v. Director of Healthzl has acknowledged public health as a valid limitation on the right to travel on the basis of police power. In that case, the petitioner has sought the reversal ofthejudgment ofthe lower court in sustaining the law authorizing the segregation of lepers on the ground that it is violative of his right to fravel. In dismissing the petition, the Court held that Sec. 1058 of the Adminishative Code empowered the Director of Health and his authorized agents "to cause to be apprehended and detained, isolated, or confined, all leprous persons in the Philippine Islands." Justice Malcolm declared;
"Section 1058 of the Administrative Code was enacted by the legislative body in the exercise ofthe police power which extends to the preservation ofthe public health. It was placed on the statute books in recognition of leprosy as a grave health problem. The methods provided for the control of leprosy plainly constitute due process of law.
The assumption must be that if evidence was required to establish the necessity for the law, that it was before the Legislature when the act was passed. In the case of a statute purporting to have been enacted in the interest of the public health, all questions relating to the determination of matters of fact are for the Legislature. lf there is a probable basis for sustaining the conclusion reached, its findings are not subject to judicial review."28
Curtailing the right to travel on the basis of public health necessarily contemplates the exercise of police power through the avoidance of an imminent health hazard. Legislation on this matter entails careful delineation of what diseases are contagious for the purposes of quarantine. This determination solely falls on Congress and if there is a probable basis for sustaining the conclusion reached, its findings are not subject to judicial review.
HOLD DEPARTURE ORDER (HDO): ITS NATURE AND SCOPE

A Hold Departure Order (HDO) is not defined under the Philippine Immigration Act nor in any of the law instructions of CID. It is only the rules and regulations of the Presidential Commission on Good Government (PCGG) which gives a specific definition. Under said rules
and regulations, an HDO is defined as an order "to temporarily prevent a person from leaving the
country where his departure ufill prejudice, hamper
or
otherwise obstruct the task
of the
z"
27 28
7,emel, strpra note 1 4, at I 5
50 Phit. 595 (1927).
Id. ot sgi
Commission in the enforcement of Executive Order Nos. I and 2, because such person is known or suspected to be involved in the properties or transactions covered by said Executive Orders."2e
Nonetheless, on the basis of the written order and the CID Law Instructions, an HDO can be defined as a written order issued by the CID Commissioner to the Chief of Travel Control Service at the Ninoy Aquino International Airport, directing him to include the names of individuals in the Bureau's Hold Departure List and to dissemihate said order to all the major ports in the country. Any person included in the list will be baned from going abroad until his travel is cleared by the ClD.
An HDO can be considered as a form of an administrative warrant and its restraint on the right to travel is akin to an administrative detention. An administrative warrant means that which is issued by government functionaries other than the courts. "Warrant" refers to an order for restraint of liberty of a person or for the detention and seizure of his or her properry.3o On the other hand, administrative detention has been defined as detention without trial either "legally" when the law allows it (e.g., while a case is under investigation) or "illegally" when administrative agencies (e.g., the police) abuse their powers. As a form of detention, it falls within the broad I defi nition of "seizure."3
According
Mendenhall,32 there
to the United States Supreme Court in the case of United
States
v.
is seizure when by means of physical force or a show of authority,
an
individual's freedom of movement is restrained. Only when such restraint is imposed is there any foundation for invoking constifutional safeguards.33
In this context, a person included in the CID's Hold Departure List is "seized" as his right to travel abroad is curtailed. Although he can freely move around within the country like any other person, he camot go beyond its borders. Physical restraint of an individual obviously deprives one of his liberty.'o Since it is a form of seizure, the constitutional guarantee against unreasonable "seizures" is applicable. The "warrant clause" in Section 2, Article III of the 1987 Constitution provides:
"The right of the people to be secure in their persons. houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shatl be inviolable, and no search warrant or warrant ofarrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized."
2')
r('David Nitafan, l'alidity oJAdministrative Warrants. 175 SCRA 326 (1989). tr LAwASIA Human Rights Commiuee, IN CUSTODY OF THE LAW (1995), p. rr 446 L;s 544 ( lgso). 33 ld. at 553. 3t l6A AM.IUR 2d. Constitutiona! Larr'. Sec. 557.
Kant Ktrong. at note 13, p. 228.
Under the warrant clause, the privacy and sanctity of the person himself are protected. It is a guarantee of the right of the people to be secure in their "persons . . . against unreasonable searches and seizures." As such, it is also a guarantee against unlawful arrests and other forms of restraint on the physical liberty ofthe person.3s
An HDO can be obtained after complying with CID Law Instruction No. 5. This is the latest set of guidelines issued by the CID to regulate the issuance of HDOs. It took effect on Augnst 28, lgg0 after the approval of the Secretary of Justice, modi$ing CID Law Instruction
Nos. 7 and 19. The old law instructions have outlined the requirements to be complied before an HDO
can be issued. To wit:
XXX
2. As a general rule, we shall issue Hold Departure (HD) order, only when the applicant files authenticated copies - i.e., stamped, signed, and sealed - of:
(a) information in criminal case filed in court; (b) order ofthejudge holding departure.
3. If a govemment
agency requests for HD order:
(a) It shall name the specific law (e.g., B.P. No. 10, Section which authorizes the agency to make the request. But it shall be based only on any ofthe three grounds: national security, public safety, or public health; (b) The letter request shall be filed by a government official, at the level ofa bureau director or higher' xxx"
ll)
Under the new guidelines set forth in CID Law Instruction No. 5, these grounds have been expanded. Paragraph 2 thereof states that an HDO can be issued under the following conditions:
"xxx
a. Pursuant to a court order in a criminal/habeas corpus case.
The requirements for an HDO under this category are an application by an interested party, furnishing the Bureau with certified true copies of: (l) the Order of the Court holding departure or (2) the criminal information/habeas corpus petition.
XXX
b. Pursuant to a standinq warrant/order ofarrest
J5.IOAQIJIN BERNAS,
S..T.,
THE CONSTITUTION oF THE REPUBLIC OF THE PHILIPPINES (I987). p, 85.
The requirements of an HDO under this category are an application by an interested party furnishing the Bureau with a certified true copy of the criminal information and the warrant or order of arrest, together with a certification of the Clerk of Court that the said warrant or order ofarrest remains in force.
c. When the
adverse aggrieved party instrumentalities
is the eovernnreit or any of its
agencies or
The requirements for an HDO under this category are a letter request iiom the Department Secretary or the Executive Secretary for offices under the Office of the President not headed by Cabinet level officials, heads of constitutional bodies and other autonomous agencies; the Chief Justice for the Judiciary and the Senate President or Speaker of the House of Representatives for the Legislative body, stating the nature of the case, and averring the probability that the subject might depart from the country to
evade the case.
d. Subiect to the provision of existine law. when the national interest. national securit),. public safetv. or public health is involved.
e. When a criminal or deportation case is pendins against an alien.
An alien facing charges for violation of immigration and related laws, or rvhose presence is required in connection with a criminal, civil or administrative case may be included in the HD list. xxx"
From the foregoing, it can be noted that the CID may issue an HDO on grounds other than those provided under the Constitution. It can also issue HDOs when the adverse aggrieved party is the government or its instrumentalities, when national interest is involved, and when it is pursuant to a criminal or deportation case pending against an alien. Paragraph 3 of the CID Law Instruction No. 5 provides that the Bureau shall issue an HDO only after veri$zing the documents submitted to it by any interested party. For an effective and accurate implementation of HDOs, information on persons whose departure is sought to be held shall include sex, middle name or initial, date of birth, and last known address. After such procedure, copies of the HDO shall be dishibuted not only to the proper government agencies, but also to the subject of the order, so that he or she may, if he or she desires, file a motion for reconsideration with the CID.
The effectivity of an HDO varies depending on the kind of ground for which it was issued. If an HDO is issued pursuant to a court order, it shall remain valid until the Bureau is notified of the order of the court lifting the said HDO, or dismissing the case or acquitting the
accused. Any person requesting for the cancellation of his or her name from the Hold Departure
List shall submit a certified true copy of the order of the court lifting its previous HDO
and
allowing his or her departure, or dismissing the case and/or acquitting the accused.
ln the Kant Kwong case, the Supreme Court cited the necessity of "good reasons" to justif, the continued enforcement of an HDO.36 In the aforesaid case, petitioners were included in the Hold Order List of the PCGG as they were allegedly found to have "obstructed the smooth operations" of sequestered garments firms and has discredited the PCGG-appointed officer-incharge. They prayed that the PCGG be commanded to lift without delay the HDOs issued against them for being violative of their right to travel and for having been issued with grave abuse of authorify. The Supreme Court lifted the HDOs since its validity had already expired, and the
grounds for its issuance under the law had become stale.
In actual practice, an HDO can be availed of by enforcement agencies even prior to preliminary investigation or before the determination of probable cause. This has been shown in a
number ofcases where expediency has been raised tojustify the order's issuance.
In HD No. 844, entitled, In re: Paul Angelo Santos, Fidelito Dizon, Nelson Victorino, Ernest Montecillo qnd Mariano Almeda, an HDO order dated February 14, l99l was issued by then CID Commissioner Andrea Domingo pursuant to a letter-application from then NBI Director Alfredo S. Lim dated February I l, 1991. In the said letter, Director Lim justified his request by stating that immediate issuance of an HDO was "in connection with an investigation being conducted by the NBI regarding the death of Mr. Leonardo H. Villa allegedly committed on l0 February by the aforesaid individuals, all members of the Aquila Legis Fraternity of Ateneo College of Law." The HDO issued in this case was filed way ahead of the preliminary investigation conducted. Similarly, in HDO No. RVB-567, entitled, In re: Pedro C. Lim a.k.a. 'Peter Lim', Patricia C. Lim-Yu and Eugene Yu, an HDO was issued during the conduct of preliminary investigation for the murder of Atty. Eugene Tan and his driver Eduardo Constantino. This was effected through a letter application dated November 23, 1994 from the Department of Justice. Then CID Officer-In-Charge Ricardo V. Paras III, issued an HDO on the very same day the
application was received by his office. In a more recent case, HDO No. LIV-387 entitled, In re: Hubert lfrebb, Antonio Lejano, Michael Gatchalian, Peter Estrada, Pyke Fernandez, Dong Padilla, and Miguel Rodriguez, an HDO was issued on June 19, 1995, months prior to the conduct of a preliminary investigation for the crime of rape with homicide filed against them. This was pursuant to a letter-application of the Director of the NBI, the late Antonio Aragon. Noted in the said order was the absence of any
reason why the said individuals are sought to be restrained.
l.
Justice System
LEGAL ANALYSIS
Promotion of Public Interest
or General Welfare through an Effective Crintinal
i6
Kcmt
Klong. supra note 13, at232-233.
One of the principal queries in determining whether the restraint on the right to travel by an HDO is constitutionally viable is whether it may be considered a valid exercise of the State's
inherent police power. Does it in any manner promote public interest by prohibiting all that is harmful to the comfort, safety, and welfare of society? has been recognized as a means to tempotarily will prejudice, hamper, or otherwise obstruct the task of the PCGG in the recovery of all ill-gotten wealth accumulated by former President Marcos, his immediate family, relatives, subordinates and close associates, whether located in the Philippines or abroad.37 In Manotoc v. CA, the Supreme Court has declared that a court has the power to prohibit a person admitted to bail from leaving the Philippines as this is a necessary consequence ofthe nature and function ofa bail bond.38
prevent a person from leaving the country where his departure
ln Kant Kwong v. PCGG, the HDO
Similarly, the Court has stressed in the cases of Suntay v. People, Silverio v. CA, and Marcos v. Sandiganbayanthat the restraint is in the best interest of the People of the Philippines which is the offended party in any criminal proceeding so that criminal prosecutions will run their course and proceed to finality without undue delay, with an accused holding himself amenable at all times to the court orders and processes. In this sense holding an accused in a criminal case within the reach of the Courts by preventing his or her departure from the Philippines must be considered as a valid restriction on his or her right so that he or she may be dealt with in
accordance with law.3e
ln analyzing HDOs issued in aid of criminal prosecution in the abovementioned cases, the inevitable conclusion is that this method of restraint is in pursuance of a purpose which redounds to public interest. It is a police power measure which seeks to cope with the demands of the changing times. Never until now has it become more convenient for moneyed individuals desirous of escaping criminal prosecution to slip out of the country through the modern means of transportation. Restraining foreign travel of criminal suspects at the earliest possible instance means eliminating any possibility of flight and escape from criminal indictment.
However, although the interest sought to be promoted is within the ambit of public interest and general welfare, this alone does not give the measure constitutional approval. In addition to a valid purpose, the measure must also be reasonable or germane to its purpose. In the case of Aptheker v. Secretary of State, the United States Supreme Court has emphasized this requirement. Mr. Justice Goldberg declared that:
"(E)ven though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose."a0
31
i8
ao
ld. ar226-22'7.
Manoloc, supra tlote 3, at 153-154
note 4, at 766. note 20, at 508.
ie Silrerio. supra
Aptheker,
stqra
Human Rights'f reatise on Constitutional Law
2. Reasonability of the Means in the Context of the Constitutional Right to Travel

Like any regulatory measure, an HDO can be considered reasonable if restrictive and does not unnecessarily burden constitutionally protected interests.
it is not
unduly
This test of reasonableness has been discussed by our Supreme Court in the cases of Silverio v. CA and Kant Kwong v. PCGG. In the first case, the Supreme Court emphasized that in regulating the right to travel in the absence of a court order, the appropriate executive officers or administrative authorities must not act with arbitrary discretion in imposing the limitations. In the second case, the Supreme Court required that HDOs must be premised on "good reasons" in order to justifo its continued enforcement. In this regard, it declared the HDOs issued by the PCGG when its investigative task has already terminated as having impaired the right to travel of the
petitioners.al Pursuant
investigation can only be considered reasonable permissible limitations under the law.
to this test of reasonableness, an HDO issued prior to or during preliminary if it complies with the basic requisites of the
The Constitution only provides four grounds wherein the right to travel can be legally curtailed through the exercise of police power. Aside from its limited number, these grounds have become narrower after each constitutional amendment in order to negate a broad construction of
such limitations.a2
As basis for the curtailment of the right to travel, these grounds are classified into two kinds: (1) curtailment due to a judicial order and (2) curtailment due to an administrative warrant.
In order for a judicial order to curtail the right to travel, the Constitution explicitly
requires the same to be a lawful one. To be lawful, it must comply with the Rules of Court as to
it can be issued and who has the authority to issue the same. Our jurisprudence has provided two modes which can warrant the issuance of an HDO through a judicial order. First is a court order upon motion ofthe prosecution, and second, an order ofthe court releasing the accused on bail.
when
As to the first kind, the Rules of Court provides that such order can be obtained as soon as a warrant of arrest is issued. This is because it is the earliest instance when a judge is able to determine whether probable cause exists and there is a necessity of placing the respondent under
immediatecustodyinordernottofrustratetheendsofjustice. Sec.6,Rulel12oftheRulesof
Court provides that:
"Sec. 6. When warrant of arrest may issue.
at
u2
Kant Kt,ong, supra note 13, at 23l. ENRreuE FERNANDo. THE coNSTITUTION oF THE pHrLS 663 (2nd Ed.)
(a) By
the Regional Trial Court. - Upon the filing of an information, the Regional Trial Court may issue a warrant for the arrest ofthe accused.
the Municipal Trial Court. - If the municipal trial .judge conducting the preliminary investigation is satisfied after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a
probable cause exist and there is a necessitv of placing the respondent under immediate custodY in order not to frustrate the ends ofjustice. he shall issue a warrant of arrest." (underscoring supplied)
(b) By
A warrant of arrest under the Rules can only be issued in two ways. First, by a Regional Trial Court judge through a warrant of arrest upon filing of an information. Second, by a of placing the respondent under immediate custody in order not to frustrate the ends of justice.al Under both modes, it is always emphasized that before the physical liberty of a person can be
Municipal Trial Court judge after being satisfied that probable cause exists and there is u n...rrity
lawfully curtailed or "seized" there must be prior determination of probable cause and necessity of immediate detention. This is in compliance with the warrant clause which protection extends to other forms of restraint on the physical liberty of the person.aa Judge David Nitafan in his discussion on the validity of administrative warrants explained the reason for this protection:
"The incorporation of these requirements is intended to bulwark individual security, home and legitimate possessions. Furthermore, they are intended to curb certain prevalent abuses in the past. x x x While courts should cooperate with the government in an effortto eradicate. . . evil through proper interpretation and application ofthe law. it
is of greater importance that the fundamental provisions of the Constitution with of individual rights should be upheld and preserved. The prosecution of criminals is a bounded duty of the government but it should be accomplished by adherence to rather than by relaxation of fundamental constitutional
reference to the protection principles."as
Under the broad terminology of "restraint of physical liberty of the person," this writer believes that the seizure or detention of a person within the boundaries of his country and his prevention to travel abroad without any justifiable reason, is included.
It is, therefore, basic that before a person can be detained or seized under an HDO, judicial determination of probable cause and necessify of immediate detention is a prerequisite. In
this context, probable cause shall mean as such reasons, supported by the facts and circumstances, as will warrant a cautious man in the belief that his action and the means taken in prosecuting it are legally just and proper.tu Specifically, a person can be held under an HDO if thire ur, ,u.-h fu.t, and circumstances which will lead a reasonably discreet and prudent man to believe that an offense has been cornmitted by the person sought to be detained.
ar
oo
Rules
ofCourt, Rule I 12, Sec 6 (a) and (b).

at 340.
t'NITAFAN. ,r,prrrnot"30,
4t'
BERNAS. suora note35
BERNAS. supra nore 35. at 86.
On the other hand, the order of the trial court releasing the petitioner on bail also constitutes "lawful order" as contemplated under the Constitution.at To be considered lawful ir must comply with the procedural requirements under Rule I l4 of the Rules of Court. Probationary liberty through bail can be resorted to only when a person is arrested or deprived of his liberry as the same presupposes that the accused is under legal custody.as The rationale behind the restraint has been explained by the Supreme Court in the case of People v. Uy Tuising:
"x x x the result ofthe obligation assumed by the appellee (surety) to hold the accused amenable at all times to the orders and processes of the lower court, was to prohibit said accused from leaving thejurisdiction ofthe Philippines, because, otherwise. said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courts from which they issued does not extend beyond that ofthe Philippines, they would have no binding force outside of said jurisdiction."ae
cause, it can never be issued by administrative agencies like the CID on mere application of enforcement agencies alone. By disregarding this important prerequisite, an HDO issued to restrain a person's right to travel becomes violative not only of the basic tenet that only a judge can determine probable cause and necessity of immediate detention, but also of the warrant clause set forth in Art. III, Sec. 2 of the Constitution. That administrative process is not a criminal proceeding as to justify exemption of administrative warrants from the warrant clause is not only unwaranted but a strained interpretation of the constitutional provision. The Constitution does not say that the warrant clause applies only to criminal proceedings. It makes no distinction between criminal and administrative processes. As a matter of fact, there are many instances wherein search and seizure warrants do not actually end up to criminal prosecution. The courts are not authorized to inject a distinction where no distinction is intended. On the other hand, the clause "of whatever nature and for any purpose" is added to the traditional formulation, clearly evincing the idea that the warrant clause was intended to be applicable to all kinds of warrants, irrespective of whether ttre proceeding is criminal or administrative.50
From the discussion above, an HDO issued prior to or during preliminary investigation is considered premature. Being an order of restraint dependent upon the prior judicial determination
of probable
is anchored on the grounds of national security, public safety, and public health as may be provided by law. Based on these, Congress may provide for specific grounds through legislation.
This is premised on the doctrine laid down in the case of Kent v. Dullesst which provided that any regulation on the right to travel must be made pursuant to the lawmaking powers of Congress. In cases where such power is delegated, it must be coupled with adequate standards to pass accepted
tests.
Unlike a judicial order, curtailment of the right to travel through an administrative warant
Manotoc, supra nole 3, at 157. Ilerilu:u r. CFI of Qte:or. 5l SCRA 169 (1928) lro1,1" v t 's' hrtsing.6l Phil. 404 ( lc)35) '." j" NITAITAN. supra note 30, at 342. 5r 357 tlS 129 (195S) [hereinafter cited as Kerrr].
a8
11
Constitutional Right to'I'ravel
Before coming up with any legislation regulating the right to travel, Congress must always take into consideration the permissible grounds granted to it by the Constitution, namely: national defense, public safety, and public health. Outside these grounds, it is powerless to enact a law authorizing the curtailment of the right to travel. An inconsistency on this matter can be seen in the case of Silverio v. CA where our Supreme Court gave Congress a wide, if not unlimited, discretion in determining grounds for the curtailment of the right to travel. In the said case. the Supreme Court has interpreted the limiting phrase "as may be prwided by law" in the last sentence of Sec. 6, Article III of the Constitution as an unlimited source of administrative authority to curtail right to travel. The decision has added the conjunction "and" after the enumeration of "nationaL security, public safety, or public health" and before the said limiting phrase.52 With this' inadvertence, the said phrase has been wrongly interpreted to mean that appropriate executive officers can impose limits on the right to travel on the basis of "national security, public safety, or public health and as may be provided by law." Such an interpretation is a clear derogation of the underlying intent of the framers of the Constitution not to give these limitations a broad construction.
Mr. Justice Isagani Cruz in his book on constitutional law has stated that if the said grounds shall be interpreted to be a direct or self-executing source of authority, this may enable every administrative or executive officer, including minor ones, to curtail the liberty of travel on their own gratuitous determination of the existence of the specified exceptions.s3
The narrow construction of grounds limiting the right to travel is supported by American jurisprudence. In the case of Kent v. Dulles, Mr. Justice Douglas has stated that the court will construe narrowly all delegated powers that curtail or dilute activities or enjoyment, natural and
often necessary to the well-being of an American citizen, such as travel.5a
Every HDO issued by the CID primarily depends on the grounds set forth in Law Instruction No. 5 issued by CID Commissioner and approved by the Secretary of Justice pursuant to Section 3 of the Immigration Act (Commonwealth Act No. 613). To test the validity of an HDO for the purpose of aiding criminal prosecution, it is also necessary to determine whether such purpose is germane to the Immigration Act. For the CID Law Instruction No. 5 to be a valid source of curtailment on the right to travel, it must be made pursuant to CID's rule making power within the confines of the granting statute, required by the Constitution and its doctrine of non-delegability and separability of -as powers." It must not be inconsistent with the provisions of the Constitution or the statute it is
administering or which created it, nor in derogation of the purpose of the statute.56
De Leon in his book on Administrative Law lays down the questions to be examined in determining the validity of agency rules and regulations. In the case of legislative rules, he writes
52
Silverio, 195 SCRA, at 765
Ciuz..'rup,o*i. " Kent. supro note
ii,
" 55
51. at 129.
",lll
( I 9SS)
Eastern Shipping Lines, Inc. v. POEA, I 66 SCRA 531
5o
HEC'foR DE LEoN, ADMINISTRATIVE LAW 77 (rgg3).
Human Rights
-l'reatise
on Constitutional Law
will be: first, whether the rules relate to the subject matter on which power to legislate has been delegated; second, whether the rules conform to the standards prescribed in the delegatory statute; and third, whether the rules are not invalid on constitutional grounds, such as due process.5t
that the queries
Our jurisprudence is replete with guidelines which limit the powers and functions of administrative agencies. In the case of RCPI v. Board of Communications,s8 the Supreme Court has declared that administrative agencies only exercise such powers as are expressly or by necessary implication conferred on them by law. Additionally, exercise of discretionary or ministerial powers is always predicated on those functions and powers provided under the law. In this manner, it can only corroborate with the other divisions of government like courts on questions within its administrative competence.5e
An evaluation of the Immigration Act reveals no specific basis which can justifu
issuance
the
issuance of HDOs to bar departure of individuals except if it is in aid of a criminal case pending against an alien or is pursuant to a final deportation order as will be shown later on. To begin with,
of HDOs in aid of criminal prosecution of non-aliens is not among the principal of the Bureau of Immigration (now CID). Under this Act, the principal responsibilities of the Bureau comprise of the administration and enforcement of immigration,
responsibilities
citizenship, and alien admission and registration laws in accordance with the provisions of the Immigration Act.60 Thus, Section 3 of the Act limits the powers of the Commissioner of Immigration to issue rules and regullations and instructions "not inconsistent with law, as he shall deem best calculated to carry out the provisions of the immigration laws." Pursuant to this, the Commissioner of Immigration can only issue law instructions authorizing restraint on liberty and the right to travel which are geffnane to the purpose of the Immigration Act.
As it can be seen from the Act, the right to travel can only be limited in the following circumstances: Under Section 6, immigration officers are empowered to "arrest, without warrant, any alien who in their presence or view is entering or is still in the course of entering the Philippines in violation of immigration laws or regulations prescribed under"; Under Section 25, examining immigration officers may order the detention of aniving aliens who belong to any of the classes excluded by immigration laws to enable the officers to determine whether they indeed belong to the excluded class; Section 29 enumerates the classes of aliens excluded from the Philippines; Section 3l empowers the Commissioner of Immigration to request the Collector of Customs to withhold clearance from any vessel which has been declared in default for not paying the immigration head tax; and Section 37, which authorizes the Commissioner of Immigration or of any other officer designated by him to arrest aliens upon a warrant.
Furthermore, the issue of whether the Commissioner of Immigration is clothed by any provision in the Immigration Act 6r by the Administrative Code with authority to arrest and detain individuals pending determination of the existence of a probable cause has been settled in the case
t;\d. otp.';3.
5t D[-. l.l]oN. stprl note 56, at 19. 6{) 1987 Adnrinistrative Code. Book 4, Title 3. Chapter 10. Sec.
i"
80 sc'RA 47t
(tg7i).
3l
of Harvey v. Defensor-Santiago.Gt In that case, petitioners are two Americans residing
at
Pagsanjan, Laguna who were arrested by CID agents after three months of close surveillance. In their petition for Habeas Corpus, they questioned the validity of their detention primarily on the ground that the Commissioner of Immigration is not authorized to arrest or detain them pending determination of the existence of probable cause leading to an adminisffative investigation. In dismissing the petition, the Court through Madame Justice Melencio-Henera declared:
paragraph 3, Section I of Article lll of the Constitution' (refening to the 1935 Constitution) is not invocable herein. Respondent Commissioner's warrant of arrest issued on 7 March 1988 did not order petitioners to appear and show cause why they should not be deported. They were issued specifically for violation of Secs. 37 , 45, and 46 of the Immigration Actand Sec.69 of the Revised Administrative Code. Before that. deportation proceedings had been commenced against them as undesirable aliens on 4 March 1988 and the arrest was a step preliminary to their possible deportation.
"The ruling in Vivo v. Montessa (G.R. No. 24576, luly 29, 1968,24 SCRA 155) that'issuance of warrants of arrest by the Commission of Immigration, solely for purposes of investigation and before final order of deportation is issued, conflicts with
The foregoing does not deviate from the ruling
in Qua
Chee Gan
v.
Deportation Board{G.R. No. 10280, September 30, 1963,9 SCRA 27 11963l) reiterated in Vivo v. Montessa, supra, that 'under the express terms of our Constitution (the 1935 Constitution), it is therefore even doubtful whether the arrest of an individual may be ordered by any authority other than a judge if the purpose is merely to determine the existence of a probable cause, leading to an administrative investigation.' For, as theretofore stated, probable cause had already been shown to exist before the warrants of
arrest were issued."
From the foregoing, it is clear that other than the situation where warrants of arest can be issued as a preliminary step to a possible deportation of an alien, the Commissioner of Immigration cannot order the arrest or detention ofany person. In the light of the foregoing, the issuance of an HDO by the CID, aside from for purposes in aid of criminal or deportation cases pending before it, is wanting in authority. This is totally without basis under the Immigration Act. The constitutional validity of an HDO issued prior to or during preliminary investigation as a restriction on the right to travel must conform with the requirements of procedural due process. Compliance thereto guarantees fairness in the enforcement of laws which effect deprivation of liberty and property. As a rule of fairness, procedural due process helps achieve two purposes. Instrumentally, it contributes to accuracy and thus minimizes errors in deprivations.
"'
162
scRA 841 (1988).
More intrinsically to the person who is subject of deprivation, it gives a sense of rational participation in a decision that can affect his destiny and thus enhances his dignity as a thinking
person.u'
Particular proceedings before an administrative agency have been held civil rather than
criminal in nature. This has been held in regard to departmental trials or proceedings like proceedings for the discipline of police officers, license revocation, quarantine proceedings. and deportation proceedings. Such proceedings have been held to be civil rather than criminal in nature even though the charge before the agency is based upon a violation of the penal law. However, in such cases, fairness may require the observance of the salutary purposes behind
certain rules of criminal procedure.63
To test its compliance with procedural due process, issuance of an HDO must basically
adhere to the requisites of notice and opportunity to be heard before judgment is rendered, whether issued pursuant to a judicial or administrative order. This has been emphasized in the case of Kant
Kwongv. PCGG where the Supreme Court held that the PCGG has disregarded the requirements of "fairness and due process" expressly mandated by Executive No. 14 by not giving petitioners
any opportunity to contest the HDOs issued against them.6a
Observance of due process is of utmost importance when restraint through an HDO is issued by administrative agencies on any of the permissible grounds which may be provided by law. In such case, issuance of an HDO hinges on the discretion of the administrative officer or agent, unlike when it is issued pursuant to a valid court order or as a mere ministerial function. The proceedings for the issuance of an HDO by administrative officers in this manner is akin to a deportation proceeding because the same effects of the latter on a person's physical liberty are present. Such proceedings must abide by the requisites of due process laid down in the case of Lao Gi v. Court of Appeals.65 In the said case, the Supreme Court declared that where the nature of an administrative action like deportation partakes of a harsh and extraordinary proceeding affecting the freedom and liberty ofa person, the due process to be observed should be similar to that provided under the Rules of Court for criminal cases.oo Mr. Justice Gancayco has
declared:
deportation proceeding does not partake ofthe nature ofa criminal it is a harsh and extraordinary administrative proceeding affecting the freedom and liberty of a person, the constitutional right of such person to due process should not be denied. Thus, the provisions of the Rules of Court of the Philippines particularly on criminal procedurc are applicable to deportation
"Although
action, however, considering that
proceedings.
n'
nt
BERNAS. supra note 35.
at 47.
DE LEON. Supra note 56, at 198-199 6r Kant Kwong. su])ro nole 1 3. at 23 I . o' l80 scRA 757 (1989)
no
ld.
22
to pronounce a properjudgment.
Hence, the charge against an alien rnrst ,r..,u the acts or omissions comprained of which must be stated in ordinary and concise language to enable a person of common understanding to know on what ground he is intended io be deported and enable the CID
Before any charge should be filed in the CID u pii.in.ry investigation must be conducted to determine if there is a sufficient cause to charge the resfondent for deportation. The issuance of warrants of arrest, arrests without ianant and service of waffants should be in accordance likewise with Rule ll3 of the 1985 Rules of Criminal Procedure, search warrants issued by the CID shall be governed by Rule 126 ofthe l9g5 Rules of Criminal Procedure, and so the matter of bail, motion to iuash, and trial, among others. Fealty to the prescribed rules of procedure in deportation cases shall insure a speedy. fair and just dispensation ofjustice.
It is the opinion of this writer that if the law has provided for suflicient due process requisites before an alien can be deported, then there is no reason why the Jr. i.o..r, safeguards should be denied to its own citizens who are deprived of similar rigtrts. ttre priulrion on due process in clD Law Instruction No. 5 is more of a rlctification rather ttan prevJntlon.
.u6
a
reads:
tt
"4.
if he
Copies ofthe HDo shall be furnished the person subject ofthe order, so that he may, so desires, fite a motion for reconsideration with the Bureau.,'
This provision contemplates a situation where an HDo has already issued and the restraint on person's liberty already effected. There is no forum wherein ihe person to be restrained can present his side before an HDo is issued. what remains to be done fy the person affected is to file a motion for reconsideration with the cID to contest the HDo alieady irr".a. This is a remedy provided after injury on the right to travel has already been done. It is the exception, not the rule. This is contrary to the rulings in the cases of Lopez v. Director of Lands, Sicat v' Reyes, and Suntay v. People. In the first iur., ou, Supreme Court declared that in the exercise of quasi-judicial or adjudicatory powers, administrative agencies may not deprive, nor may a statute empower.them to deprive, a person of his constitutionally protected rights to'life, liberty and property without notice and hearing which is adequate and fair. In the second case, it declared that due process oflaw conternplates notice and opportunity to be heard before iudgment ^rrim
is rendered affecting one's person or property or depriving
Court decided that hearing is proper and necessary ifthe reason forlhe exercise ofdiscretion vested on an administrative officer by law is not clear but doubtful.6e
oilrls rights.68 r" ,r" l"ri."S,'rrr.
61 68
Id. at762-763.
Slca/
6u
r'
Reyes, 100 Phil. g33 (1957).
Suntt4'.
.uera note 16.
at 838.
Human Rights Trcatise on Constitutional Larv
:)
In order for fte safeguard to be preventive rather than curative, the due process requirement in criminal cases should be followed in proceedings seeking the restraint on the right to travel. Our Supreme Court has laid down these requisites in the case of Mejia v. Pamaran.To lt requires that the individual sought to be restrained should be "informed as to why he is proceeded against and what charge he has to meet, with his conviction being made to rest on evidence that is not tainted with falsity after full opportunity for him to rebut it and the sentence being imposed in accordance with a valid law. It is assumed, of course, that the court that rendered the decision is one of competent jurisdiction." Simply put, the person sought to be restrained should be given the right to a hearing and be allowed to present his case and submit evidence in support thereof. The tribunal concerned must consider the evidence submitted and ultimately base its decision on the same after acting on its own independent consideration of the law and facts of the case. It should not simply accept the views of the applicant for the HDO. CONCLUSION AND RECOMMENDATION
After presenting and examining the nature, rationale, and coverage of the right to travel together with its limitations as provided by law, it is an inevitable conclusion that an HOO issueO in said situation is not a valid limitation on the right to travel nor a valid exercise of the police power of the State. To justi0 this conclusion, this thesis has established that the right to travet of an individual can only be limited by the State on specific grounds given under the Constitution. Except for issuance due to a lawful court order and in cases where a criminal or deportation case is pending against aliens, legislation is needed to elucidate the other grounds provided. The issuance of an HDO for the purpose of holding persons on mere suspicion of criminal responsibility by administrative officers is not warranted under any color of legal authority. It is in this manneithat an HDO issued by the CID prior to or during preliminary investigation for purposes other than
those authorized under the Immigration Law is premature and a cleai invasion of personal liberty.
Furthermore, this thesis also concludes that an HDO issued at the aforesaid stages is arbitrary as it constitutes an obvious prejuclgment of guilt. This is because the present guidilines for issuance of HDos do not afford the person sought to be restrained a prior oppo*rtunity to contest it. The underlying purpose of due process is frustrated as the present safeguard faiis to prevent this grim predicament. Although an HDO is not permissible under existing laws to restrain a person upon mere susp.icion of criminal liability prior to and during preliminary investigation, thire still iemains a need for a viable measure to prevent criminal elements frorn slipping out of the country, and eventually escaping prosecution. In addressing this problem, it must always be emphasized that time is of the essence. If government prosecutors corrtinue to be power-less in restraining the departure ofcriminal suspects unless they go through the usual and lengthy procedure ofgetting a judicial order barring said departure, the exodus olmoneyed criminalslom the country rioulcl be inevitable.
t" t 60 scRA 457
( t 988),
Constitutional Righf to Travel
To remedy this inadequacy in the law, it is recommended that the present Rules of Court should be supplemented to incorporate a provision on the issuance of HDOs. The proposed provision must be similar to the application of a search and seizure warrant under Rule 126. ln this manner, an HDO can be issued even prior to the preliminary investigation provided that specific guidelines are observed. These are: (l) it must be issued upon probable cause and necessify of immediate detention; (2) the probable cause and necessify of immediate detention must be determined personally by the judge himself and not by the applicant or any other person: (3) in the determination of probable cause, the judge must examine under oath or affirmation the complainant and such witnesses as he may produce; and (4) the application and the order issued must particularly describe the person to be barred and the ground which justifies the restraint. If
the order is issued pursuant to these guidelines, the constitutional safeguards previously discussed are complied with. Additionally, said issuance qualifies as a lawful order of the court which is provided under the Constitution as a valid restriction on the right to travel.
The proper administrative agency which must implement any subsequent lawful order barring departure of criminal suspects must be directed to the Department of Foreign Affairs for the purpose of withholding the issuance or the cancellation or restriction of passports. It must be noted that under Section 50, Chapter 13, Title I of the Revised Administrative Code of 1987, the Secretary of Foreign Affairs has the authority "to withhold the issuance or order the cancellation or restriction of passports upon lawful order of the
couft." Without a valid Philippine
passport,
foreign travel of a person through ordinary means is virtually impossible.
suspects,
In the meantime, it is also recommended that in order to bar the departure of criminal judicial determination of the necessity of immediate detention should be secured at the
earliest possible instance. Outside the National Capital Judicial Region or chartered cities, this can be done by a Municipal Trial Court judge in relation to his power to issue warrants of arest under Sec. 6 (b) of Rule I12. Since the power of the Municipal TrialCourt judge to conduct preliminary
to determine the necessity of placing the suspect under immediate custody, he can also order the issuance of an HDO. By resorting to this procedure, government prosecutors are able to cut short the tedious procedure of a full-blown preliminary investigation if they initially need a means of restraint on the suspect's departure at the earliest
investigations includes the power
possible time.
However, these recommendations still hinge on the effort to gather sufficient evidence which will warrant the necessity of detention. This duty of utmost vigilance rests primarily on the government's criminal investigation agencies. The recognition and enhancement of this vital participation will greatly help effectuate the best interests of our criminal justice system.
THE "PERSONAL Kh{OWLEDGB" REQUIREMENT IN

WARRANTI,ESS ARRESTS AS APPLIED TO INTELLIGENCN GPETTATIONS AF'FECTING NATIONAL SECURITY: AN ANALYSIS
SIEGFRED B. MISON-
INTRODUCTION
During the past two decades, the Philippines has faced three major threats to its national security: the communists, represented by the Communist Parfy of the Philippines,New People's Arrny,4',lational Democratic Front (CPPNPA/I{DF); the secessionists, represented by the Moro
Group
National Liberation Front/Muslim Islamic Liberation FTonVMNLF-Reformist
(MNLF/MILF'/MNLF-RG); and the ultra-rightists, represented by the Rebolusyong Alyansang Makabansa/Young Officer's Union (RAM/ALTASiYOU). At the forefront of the government's campaign against these so-called "threats" is the intelligence community which undertakes
sensitive operations in an attempt to topple the top leadership of these groups. Despite the passage of the Philippine National Police (PNP) law which mandates the PNP to take over the counterinsurgency campaign from the .A.rmed Forces of the Philippines (AFP), still these two law enforcement agencies continue to work hand in hand in this campaign. Intelligence operations undertake to cripple enemy organizations by targeting top leaders and neutralizing fundraising and recruitment activities. Recently, the AFP intelligence units have also been tasked by the Commander-In-Chief to assist the PNP in its fight against organized crime. Pursuant to
Executive Order No. 280, the Intelligence Service of the AFP, the National Bureau of Investigation (NBI), and the PNP contributed teams to form the Presidential Task Force on Intelligence and Counterintelligence (PTFIC) which was created to run after military and police scalawags engaged in bank robbery, gunrunning, carnapping, kidnap-for-ransom, and drug
trafficking. Thus,
at present, both AFP and PNP intelligence units are being used to handle special cases involving organized lawless elements in society.
No matter how their operations are carried out, the intelligence operatives are nonetheless uphold individual rights and personal liberties. No less than the Constitution of the Republic of the Philippines has bestowed upon the government the prime dufy of serving and rprotecting the people.rGovernment, however, has had to deal with the fact that most oflhese
expected to
intelligence operations have been criticized as being violative of certain human rights.
warrantless arrests.
It is essential to note aithis point that prior to the amendment of the Rules of Court on several operations were conducted wherein the only requirement for
warrantless arrest was for the arresting officer to simply have "reasonable grounds" to believe that
Juris Doctor 1996. Ateneo de Manila School of Larv. I Pllll.lPP|NE CONSTITIJTION. Article Il. Secrion 4 (1987) [hcrcinafter cited as pHIL. coNST l
26
Werrantless Arrests
the person to be arrestecl committed the crime.2 In view of the amendment in the Rules, there is a need to analyze the effects of the "personal knowledge" requirement on the conduct of intelligence
operations.3
THE ROLE OF INTELLIGENCE AND INFORMANTS

Ideally, the purpose of intelligence is to supply the unit commander with complete and accurate information regarding a particular mission. Knowledge is power, and armed with the, pertinent data relative to a specific operation, the probability that a commander will arrive at a correct decision is increased. Fundamentally stated, "the purpose of the intelligence unit is to increase the probability of accuracy in operational staffdecisions."a
There are four phases in the intelligence cycle. While each phase has distinct activities ffom the others, in some cases, these phases overlap depending on a given mission. All four phases may even take place concunently. For instance, at the same time that new information is collected by informants, previously collected information is analyzed, processed and disseminated.5 The first phase involves the planning and directing of the collection effort. In this phase, the unit commander with the assistance of his intelligence officer formulate requirements and priorities in order to plan the collection of information pertaining to the tasks needed to be accomplished for a given mission. The second phase involves the actual collection of information from different sources which may be either open or covert. Open sources include newspapers, radio broadcast, and other items available to the general public. Covert collectors of information commonly known as agents collect information from a network of informants/assets who are either recruited or who simply cooperate with the intelligence organization. Another method of collecting information although not entirely reliable is for agents to buy information from local informers/tipsters who are outside the organization. Information can also be extracted from a known enemy supporter through the process of interrogation. Regardless of how the information is obtained, the same is then forwarded to a group of analysts who record, evaluate, interpret and integrate all available information pertaining to a given mission. In the third phase, the collected information is evaluated based on its accuracy and reliability of the source, and subsequently integrated with prior and related information. After the application of generally accepted principles of logic and reasoning, the analysts come up with an assessment and thereafter, release this "processed" information as intelligence. In the fourth phase where intelligence is disseminated to all concerned units, additional information may be required due to the fluidity of the situation. With new developments, the cycle goes back to the first phase where planning for a new collection
effort begins.
I Revised Rulcs ofCourt. Rule I 13. Section
Old Rules of Court. Rule I 13. Section 6(b).
' '
I)ON,,tl.l)
5.
sctlLJt.TZ and LoRAN A. NOR'ION. Pot.tcttr OPhRAIIONAL IN'IEI-LIGENCU (1973). p 202

as Schultz].
[hcrcinaltcr citcd
ltllrl-D MANTJAL ON COMBAT INTIILLIGENCh. Ilcaclquarters. Dcparrmenr olthc Army (1973).
[Iuman R.ights Treatise on Constitutional Law
To collect information, the intelligence organization relies on several methods. Casing and surveillance are types of operations where members of the organization directly participate in the collection process. These operations, while may be considered as inffusions to one's privacy, are capable of providing first-hand information to the observer/operative himself or herself, thus, satisrying the personal knowledge of facts required by Rule l3 of the New Rules of Court. As the Supreme Court ruled inthe case of Peoplev. Bati,6 police officers have knowledge of the actual
commission of a crime when they had earlier conducted surveillance activities on the accused. However, most of the time, these operations are very costly and time-consuming. In practice, the bulk of hard-to-get information comes from a network of informants.
Admittedly, there are information that can be acquired only through the use of informants.
While most informants are documented and paid from intelligence funds, some refuse to be documented for fear of reprisal in case of discovery by the enemy. This fear is particularly
widespread in the far-flung areas where government presence is hardly felt. One type of informant whose reliability is beyond question is the deep penetration agent
(DPA). He or she is recruited by the military fiom within the ranks of the enemy movement. Information from these type of informants are very accurate so much so that the enemy will think that the information obtained by the military could have only come from within. Another type of
informant, though less reliable compared to DPAs, is one who has access to the activities of the enemy. The driver/employee or close relative of a targeted individual are examples of this type of informant. Parenthetically, intelligence sections of combat units have a Barangay Information Net (BIN) which is composed of cooperative and pro-government members of the community.T Members of the BIN who are usually barangay officials, professionals, and businessmen provide information of lesser value but sometimes confirm those obtained through the regular informants. Undoubtedly, informants have proved their importance in thwarting threats to the nation's security.
THE RULE OF LAW

There are three fundamental elements of the rule of law: the absence of arbitrary power, the subjugation of the State and its officers to the ordinary law, and the recognition of basic principles superior to the State itself.s By their nature, national security and rule of law are diametrically opposed to each other. To preserve national security, the State needs some degree of arbitrariness to prohibit certain individual acts which tend to destabilize the government. On the other hand, the Bill of Rights was incorporated into our Constitution to subordinate government action to legal restraints not in order to convenience the guilty but to protect the innocent.e The third element of the rule of law is the justification for citizens to oppose government regulation
o
7 I 89 scRe 97 ( I 990). FTANDBOOK FOR INTELLIGENCE OFFICER'S COURSE. Special Intelligence Training Schoot. ISAFp (1989). ' MARCI;s G RASKIN. THE poln'tcs oF Nn'noNAt. sucrlnn'y (1979). p 84 " CiliI{MANN. A.C.. DAY. F.D. and GALLATI. R.R.. INl'ltODlJC'l ION l'O LAW ENFORCL:MItNl' AND CRIMINAI lUSl'lCU. p. 70 [herernaller cired as Germann].
Warrantless Arrests
when they feel that their rights have been violated. Naturally, not all individuals will affirrn whatever government does. This is the essence of democracy which government recognizes as superior to the State itself. Through various law enforcement agencies, the State exercises its power to implement the
rule of law in order to protect the country's national security. Peace and order, security and stability are just some of the ultimate objectives of law enforcement. The concern of larv enforcement agencies is to pass the test of reasonableness; for intelligence units in particular, it is
to pass the same whenever warrantless arrests based on information gathered from the network of
informants are made.
Many believe that the most important task of law enforcement is to protect the people. Others believe it is to maintain order in society. In performing these functions, law enforcers are expected to follow certain norms of conduct. For example, in making arrests, peace officers are expected to use reasonable force in taking into custody the person to be arrested. In case of arrests without warrant, peace officers must have probable cause before effecting the arrest.
The case filed against lgnacio Capegsan, reportedly the numberthree man of the Central Committee and the Deputy Secretary General of the Communist Party of the Philippines was dismissed on 21 March 1989 due to the inadmissibility of evidence against him brought about by the illegality of his anest. The case filed against Veronica Tabra, reportedly the Finance Officer of the Visayas Command was likewise dismissed on 9 May 1987 by Judge Oscar Pimentel of the Regional Trial Court of Makati due to the same reasons.'o The case of Illegal Possession of Firearms Used in Furtherance of Rebellion filed against Fr. Rustico Tan @ Ka Eddie/Andres Luna resulted in an acquiftal due to insufficiency of evidence after the judge excluded all the articles seized from the accused because of the illegality of the arrest.rr Dismissals due to illegality of arrests usually result from most of the cases filed against alleged members of the communist movement. Other cases do not even reach the preliminary investigation stage due to some technicalities on the conduct ofarrest. There is, thus, an urgent need to analyze the reasons for the illegality of the arrests made by intelligence operatives as most of them normally fail to fall under the exception provided in Rule I l3 of the Rules of Court. Specifically, the "personal knowledge" requirement appears to be an insurmountable obstacle for intelligence operatives to hurdle in order to justify their warrantless arrests. For instance, in one case,'t the Supreme Court ruled that the personal knowledge
requirernent would exclude inforrnation conveyed by another person, no matter what his reputation for truth and reliability might be. While in another case,rs the same Court ruled that information based on actual facts and supported by other circumstances furnished by reliable sources may lead to a reasonable arrest. The pivotal issue then is whether intelligence information gathered and
relied upon by intelligence organizations can be considered as coming within the purview of
cAI).f MANTJEI- ITRILI-ES, coNSTtfuIoNAL AND srA'tllloRy pRovtstoNs AFFEC'ilNG At'p IN'll:l.t-l(;tlNcti SERVICE OPERATIONS : AN ASSESSMENT ( 989). p. 2B
1
r0
t2
' l.tl(;n t. OTjFENSIVENESS OF ]'HE AIrP. AIiP Lcttcr Dircctivc datcd Julv I'cople t, llttrgos. 1.44 SCRA I (19S6) t3 ( rni! t' llanto.s. 202SCRA 25 I (1991 )
1990.
"personal knowledge" as required by the New Rules of Court. Since informants are not the arresting officers in intelligence operations, are all arrests made on the basis of the information provided by them illegal? Can warrantless arrests be made on the basis of reasonable suspiciolr
based on confidential information?
The problem that confronts the law enforcers is the application of their discretion in determining what is "reasonable" or whether there exists "probable cause" in the conduct of arrests. In the perforrnance of their duties, most law enforcers tend to be overzealous in accornplishing their task of maintaining order and disregard their other task of safeguarding individual personal liberties. As held in Guazon v. De Villa, the Constitution grants the government the power to seek and cripple subversive movements which would bring down the constituted.authority. However, all government actions are governed by the limitations of the Bill of Rights.ra The celebrated Kuratong Balelengcase't is an example whereby individual rights and due process were disregarded in the guise of maintaining order in society by getting rid of the
country's most notorious crime syndicate.
CONSTITUTIONAL PROVISIONS AND CASE LAW ON ARRESTS

The Constitution does not prohibit all arrests. It merely prohibits illegal arrests, that is, those which are unreasonable or show no probable cause and those which do not fall under the exceptions on arrests without warrants. "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.,'r6
While the provision on walrantless affest does not explicitly appear in the above-quoted section under the Bill of Rights, the clause "the right to be secure in their persons... against unreasonable seizures" is to be understood as the protection contemplated in this paper.rT A brief discussion on the nature of arrest, the purpose of a warrant, and the need for the exception to the warrant is necessary to have a better understanding ofthis particular right granted under the 1987 Constitution.
NATIJRE OF ARREST. Arrest is the initial stage of the prosecution where the suspect becomes an accused. Thus, the person anested often challenges the legality of an arrest by raising the issue of lack ofprobable cause. The arresting officer, on the other hand, often invokes
lBl scRA 63 I (1990) On May I 8 1995. cleven suspected nrembers ofthc Kuratong Baleleng robbery gang were kitlecl in an alleged rubout policc ollicers in Quezon C itv.
l5
'
A.
'o
b5
ro
r7
PHIL CclNS f . Art. lll. Sec. 2

JosEPH c.
cooK. cciNsrtruroNAL
RIGHTS oF THE ACCUSED: IRE-TRIAL RTcHTS (197'2),
2s
[herernatler cited as Cook].
30
Warrantless Arrests
the lack of any form of arrest to avoid the burden of having to prove probable cause.'t Thus,
whenever a person is intenogated by the police and such interogee is aware that he or she is free to leave, there is no arrest effected. This "free to go" rule is well-entrenched in U.S. law enforcement agencies.re In the Philippines, members of the AFP deployed in the field are known to "invite"
suspected individuals
for "tactical
interrogation" instead
of forcibly taking
them
to
the
headquarters. The experienced police officers likewise resort to this modus operandi since it has become an effective tool of protecting themselves against any hability. However, in a U.S. case, to the Court ruled that when a police officer, by means of show of authority, has somehow restrained the liberry ofan individual, it is proper to conclude that an arrest has occurred.
Military checkpoints are also- considered as a reasonable form of temporary detention.zt In tlre case of Valmonte v. de Villa,22 the setting up of checkpoints as a security measure was
considered as legal inasmuch as plots to destabilize the government were prevalent during that
period.
Certain circumstances may also lead to reasonable arrests despite the lack of a warrant. In one case,23 the Court found the warrantless arrest to be legal when the accused was accosted by police officers on a surveillance mission and found marijuana in his possession. In another case,z4 the person arrested was acting suspiciously, and when accosted, he tried to flee from the police. Under these circumstances the Court found his arrest to be reasonable.
The purpose ofa warrant is to direct the arresting officer to bring to court the person to be arrested as named therein. The requisites for a valid warrant are as follows:
I ) It must be based on probable cause. 2) The probable cause must be determined by the judge. 3) The determination must be made after examination under oath or affirmation of the complainant and the witnesses he may produce. 4) It must particularly describe the person to be arrested.25
A warrant is supposed to be a specific order by the judge. Thus, the latter alone determines whether there exists probable cause in ordering the arrest of any person. As executors of the warrant of arrest, the arresting officer has to strictly obey the instructions under the warrant.
Hence, generally speaking, the arresting officer avoids any liability as long as he implements the order of the judge in a properly procured warant.
or
she
In arrests without warrant, the police officer substitutes as a judge and performs the examination whether there exists probable cause in a given set of circumstances. While the judge
ld. at34. Jos[ipl t A. VAI{oN. sEARCHES. sEIZURES, AND IMMTJNITIES 20 lcl. at 103.
p
2t
t&
( 1974).
p. I l3 [hereinafter cited
as Varon].
Supro note 10. 195 scRr\ 202 ( I 991 ). 23 People v. 7'angliben. I 84 SCRA 22 (lgg0\. 2-1. Posaclos t'. Pcoplt, I 88 SCRA 288 (1990) [hereinafter cited as Posotlasl. " ISAGANT A cRtJZ. CONSTITUTIONAI- LAw (1989). p lj4.
tt
Warrantless Arrests
prudent man
of-fense. "2e
in believing that the petitioner had committed or was committing
an
Based on the foregoing, there is a need to further expound on certain terms such as ,.reasonably trustworthy information,' and ,,prudent man".
I "Reasonably trustw This *does not mean evidence beyond reasonable doubt that the person to be arresred has committe? a crime, il;; ;;.il',i,oi"" tt un "mere
circumstances which do not amount tro "reasonably trusfwotthy", its source must not only be reliable enough to arouse the suspicion of the arresting ofhcer but must also be based on facts which such officer-sincerely believes in.
,,.
proof. Suspicion-is weaker than belief, since suspicion by itself is not sufficient to justify a wirantless arest.3r et rrO for an information to be
suspicion"'3' suspicion implies a belief or opinion as to guilt, based upon facts
,or
was effected one day after the killing and its only basis was the information policemen from unnamed sources.
eyewitnesses to the murder and the policemen merely relied on the narration of events which happened even ierore tt,e incident occurred' The Supreme court ruled that the arrest without a warrant was unlawful since it
In one case, the information gathered by the policemen at the place where the body was found indicated that the accused *ur r."n carrying u gun.tt irt.r.'*.." no
ob;in; lv'rr,.
by the co-accused.33
In another case' the Supreme court found the circumstance where a co-accused positively to the accused as the source of marijuana insufficient ," l,lrlipy ,rr. warrantless affest. The court further admonished the policemen for "using the tactics oi"-p"li.. state, where the minions. of_the government place liftle value on human rights and individual liberties and are obsessed only with the maintenance of peace and the punishment of crime,,, and ruled that said policemen should have procured a warrant on the basis of th" inforrnu,ion ruppii.a
identified and pointed
hand on his abdomen.
being a robber. when the police ieceived a telephone call from an informer trr"t ,rrpi.i"rrlooking persons were in Tondo, they arrested the accused for his darting eyes and for having
his
The same ruling was reached by the Supreme court in the case of people v. Mengote.ia Th.e accused was charged with illegal possession of firearms after the police suspected him of
2' "Prudent ma4"' This term is the yardstick used in establishing probable cause. As held in several cases decided by the U.S. Supreme Court, a prudent,;" ;,
a hypothetical person created by the courts rvho represents the norms of reasonablc behavior. He is the personification of a community
"
ideal of reasonablc
2e
jl l,! Varorr.
'.'. PcoplL
,,,
Cook. .!try)ii1 Ilotc I7. at q9
Peoplc t'. [:nrile,222 SCRA 5g6 (199J). '" 2l 0 SCRA t74 lt9s2).
i',
.\uprd nole I q. at 120. r. Ccndttna. 190 SCRA 53g (lqq0)
behavior and his conduct

confionted."r5
will vary with the
situation rvith rvhich he mar
be
Thus, there is no mathematical formula for arriving at "prudence" albeit there are some law enforcers who can be said to be more "prudent" than others because with their training and experience, they have actually developed an instinct for detecting criminals even prior to any overt
act.
In one case,36 the arresting officer who was on Detached Service with the Anti-Narcotics Unit was able to arrest the accused even before the commission of any suspicious activity on the part of the latter. With his training and experience, the officer secretly discovered the possession of marijuana when he searched a package emitting the odor of marijuana belonging to the accused.
B.
REASONABLE GROUNDS. Before the amendment introduced
in
1983, the
provision on the Rules of Court read:
"A peace officer or a private person may, without a warrant, arrest a person when an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it."37 lltalics supplied)
In order to fall under this exception, two (2) conditions must exist. A crime must have in fact been committed and the anesting officer has reasonable grounds to believe that the person to be arrested has committed the crime.
l. "Has in fact been committed". A crime must first be established as a fact before having the justification based on reasonable grounds. Thus, mere suspicion of an occurrence of a crime is not enough. Apparently, the purpose of this requirement is to prevent fishing expeditions where arresting officers look for evidence from a person who has not shown
any indication of criminal activity.
However, in one case, the Supreme Court ruled that it was not necessary for the fact of the crime to be established in order to regard the detention of a suspect as legal. In this case, a certain Aranzanso was arrested by virtue of an order by the acting chief of police. The order was to arrest an individual whose description fits Aranzanso for the purpose of identifying him for his possible involvement in a robbery. Quoting a decision of the Supreme Court of Spain on January 27, 1885, our Court held that:
"The legality ofthe detention does not depend upon the fact ofthe crime, but ... upon thc nature ofthe deed, wherefrom such characterization may reasonably be inferred by the officer or functionary to whom the law at that moment leaves the decision for the urgent purpose ofsuspendlng the liberty ofthe citizen."38
15 36
Varon. supranote 19, at
l3l.
442 (1914).
37
38
People v. Claudio,160 SCRA 646 (1988)
Supranolc2.
U.S.
,. Sanchez,2T Pltrl
Warrantless Arrests
In a later case,3e a warrantless arrest was held to be illegal since the authorities were still fishing fbr evidence of a crime not yet ascertained. The Court ruled that a crime must be actually committed in order to fall under this exception. The fact of the commission of a crime must be undisputed and the test for reasonable ground only applies to the identiry ofthe suspect.
2. "Reasonable grounds to believe". This requirement is dependent on facts and circumstances as seen by the anesting officer. In one case, arof{icer was charged with the crime
of arbitrary detention for ordering the detention of Bibiana Sanson. The detention immediately
preceded the assault on the person ofthe officer by her brothers. The officer believed she had a part in the assault since she was angry at him for breaking up an engagement with her. The Supreme Court ruled that the officer reasonably believed or had a ground to suspect that a crime
has been committed and that it was committed by Bibiana - the person precisely arrested.ao
Based on the foregoing, the legality of the anest ultimately depends on the officer's discretion whether there exists reasonable grounds to believe that the person to be arrested committed the crime. The arrest must be based on a belief supported by facts and circumstances either known personally to the officer or from hearsay but reliable information. However, the officer who acted upon information from third persons must not have any other information which is contrary to the one received.ar In other words, there must be no circumstances sufficient to
impeach the
"tip" which served as the foundation for the wanantless
arrest.
C. PERSONAL KNOWLEDGE. Under Section 5 (b) of Rule 113 of the New Rules on Criminal Procedure, two (2) conditions must be complied with in order to fall under the exception. First, a crime has just in fact been committed and second, the arresting officer has "personal knowledge of facts" that the person to be arrested is the one who committed the crime.
L "Has in fact just been committed". The amendment carried the term'Just" to indicate immediacy. Therefore, it is not sufficient that the occurrence of a crime is established as a fact but the arrest must immediately or subsequently take place after the crime. Reacting to the majority opinion in Umil v. Ramosaz which held that the arrest was legal despite the lapse of 14 days after the crime was committed, Justice Isagani A. Cruz in his separate opinion said that the arrest must be made "almost immediately after or soon after the acts, not at any time after suspicion of the arresting officer begins, no matter how long ago the offense was committed".
Hence the term 'Just" was precisely inserted to indicate a time element from the fact of the crime up to the fact of the arrest. The reckoning point must be from the occurrence of the crime and not from the knowledge of the arresting officers of the crime. For instance, a murder occurred on a Sunday but the policemen came to know the fact of the murder only the following Thursday. Applying the separate opinion of Justice Cruz in the Umil case, the reckoning point should be from Sunday and not from Thursday inasmuch as the rules provide for "has just in fact
,'
t" I'eople v. Ilurgos. 144 SCRA I (1986) r" {i.S. r. Jnche tu,27 l>hil.442 (1914\.
VIC[iNTt].', FI{ANCISCo. THE ITEVISED I{ULt]S OF COIJI{'I IN'ITiI:] PIIILIPI,INES (I9(I9). p .1I5
202 Sc'RA 25 I. at 283
(
12
l99l)
fhereinalter c;ited as {-/rrril].
Human Rights Treatisc on ('onstitutional Larr
been committed" refening

arresting officers.
to the commission of the crime and not to the knowledge of
ihe
However, as presently interpreted by the Supreme Court, the immediacy of the crime is to
be reckoned from the knowledge of the officers of the fact of the crime. The records of the Nazareno case which was consolidated with the Umil case revealed that the murder occurred on 14
December 1988. When one of the suspects was arrested on 28 December 1988, he pinpointed Nazareno as one of his companions during the murder. The Court pronounced:
"the arrest falls under Section 5(b) of Rule l 13, since it was only on 28 December that the police authorities came to know that Nazareno was probably guiltl, itt the kitling of Bunye II and the arrest had to be made promptly, even without a warrant."43
(italics supplied)
However, showing again its inconsistencies, the Court ruled in People v. Manlulu, that the warrantless arrest was illegal since the killing took place at one o'clock in the morning rvhile the arrest was effected at seven o'clock in the evening of the same day.aa Accordingly, the lapse of nineteen hours failed to comply with the requirement of "has just in fact been committed".
2. "Personal knowledge of facts". In the tJmil
case,as
military agents went to a hospital to
verif,i a confidential information about a Sparrow member who was reportedly admitted in the
hospital for gunshot wounds. The same confidential information coming from the attending doctor likewise revealed that the patient may be those among the five Sparrow members who murdered two policemen the day before. Based on these narration of events, the Supreme Court held that the arresting officers had knowledge of actual facts supported by circumstances to justify a warrantless arrest. The Court also ruled that "personal knowledge of facts" in arrests without a warrant must be based on probable cause, which means actual belief or reasonable grounds of suspicion; and such suspicion is reasonable when it is supported by actual facts supported by circumstances sufficiently strong in themselves to create the probable cause of guilt. Along with probable cause, the suspicion must be coupled with good faith on the part of the arresting officers. lnthe Nazareno case, the Court likewise held that despite the lapse of 14 days after the killing, the warrantless arrest falls under Section 5 (b) of Rule l13 since the aresting officers knew of Nazareno's possible participation in the killing only on the l4th day after the incident.a6 lnasmuch as the AntiSubversion Law has been repealed, it will be difficult to rely on the Court pronouncement in the Umil case since the decision was influenced by the concept of "subversion" as a "continuins crirne". In the celebrated case of Rolito Go v. Courl of Appealsa1, the Court had another occasion to interpret the "personal knowledge requirement" as applied in warrantless arrest. When Go
presented himself before the San Juan Police Station to veriS; reports that he was being hunted by the police, an eyewitness positi'/ely identified Go as the gunman who killed Eldon Maguan. He tt ld. trt270. scRATot '231 a'
(1994)
Sultro trote 42. 4(' Id. 17 206^t270. scRn l50 (1992)
Warrantlcss Arrcsts
was immediately arrested without a warrant. Aside fiom the positive identification
of an
eyewitness, the police arrested Go on the basis that the plate number of the alleged gunman's car rvas traced to his wife. The Supreme Court ruled that the arrest which took place six days alier the shooting of Maguan did not fall under the exception as provided in Section 5(b) of the New Rules since the crime was "not just cornrnitted". The CoLrrt ruled that the infonnation obtained bv the arresting officers did not constitute personal knowledge.'18
ln People v. Brionesae,the Court ruled that the warrJntless arest was illegal since officers did not have personal knowledge of facts when they arrested Briones. It was
the the
eyewitness who had personal knowledge that Briones and his other companions robbed and killed the Gutierrez spouses. The fact that the eyewitness related the incident to the investigators the next day did not validate the arrest. But in another case5O, the Court held that the officers had personal
knowledge of facts of the robbery committed by the accused even though said facts were only determined after an investigation was conducted and eyewitnesses firrnished valuable information regarding the incident. In this case, after the accused robbed the passengers of a jeepney, the victims immediately reported the incident to the police rvhich promptly dispatched an investigating team. Upon seeing the accused, one of the victims who went with the investigating team requested the police to accost them. The four accused tried to flee but was eventually apprehended. The Supreme Court has invariably used the term "reasonable ground to believe" despite the atnendment in the Rules. For example, the Court found there was probable cause since the
authorities had "reasonable ground
to
believe that appellant would attempt
to bring in
contraband..."5r. In another case52, the Court said that the receipt of information that a Caucisian coming from Sagada had prohibited drugs in his possession coupled rvith the suspicious failure of the accused to produce his passport when requested by the police, "led the NARCOM officers to reasonabf'believe that the accused was trying to hide something iltegal from the authorities."
Based on the foregoing cases, it is apparent that inconsistencies in the interpretation ofthe
"personal knowledge" requirement exist. Some decisions even apply reasonable grounds in justifying the absence of a warrant. There is also a conflict as to the immediacy of the offense in relation to the time of the arrest. However, not all of the cases cited pertain to threats against national security. Thus, there is a need to analyze the application of the personal knowledge
requirelnent on intelligence operations affecting national security inasmuch as these operations rely
heavily on informants. May there ever be an intelligence operation complying with the new
requirement imposed by the Rules?
t"
lol s( ll:\ 7oj { l 99 l ) "' l'cr;1rlr'y. lt.ol, ),37 S( l{A 406 (199.1). tt l't,,,1,/r,t. Lo Ilo llling, 193 SCRA 122 (l9ql) ') Paoltle r l.lalnsteclr. 198 SCRA 401 (1991).
l'lunran ltights'l'rcatise on Constitutional Larl
ANALYSIS A.
Neecl to lcnow
The State secrets privilege permits the executive to withhold evidence if disclosure uould pre.iudice national security.s3 This privilege belongs to the executive and any officer rna)' support
the claim by submitting the material itself or affidavits describing it, or by testi|,ing to
its
privileged status. Hence, this privilege permits the executive to safeguard information of interest 5l to natiorral security as well as to minimize liability incurred for invasion of personal rights The State secrets privilege may be applicable whenever intelligence units operate against national security. Warrants are dispensed with since the operation is basr'd on confidential inforrnation and the disclosure of such information may be prejudicial to national security. Such interpretation of this privilege is prone to abuse because arresting officers may impose their own classification of confidentiality affecting national security to dispense rvith a warrant. However, it is within the sound discretion of the courts to determine whether the infonnation falls under said privilege to serve as a check on executive caprice and self-interest.55 Hence, the information in question must still be presented before a judge to determine its security implications in case of disclosure. Unfortunately, there may only be a few practitioners who will dare to compel the production of classified material since mostjudges usually rely on the executive pronouncement of confidentiality. This is especially true when the case involves a rnember of a group classified as a threat to national security as described in this paper. threats
to
The very nature of covert operations likewise discourages the application for a warrant. The role and function of informants in providing vital information often necessitate complete secrecy of their identity and complete reliabilify on the accuracy of the information they provide. An informant, once recruited, usually requires a cover to protect him or her in case of compromise. Informants who provide information classified as secret or top secret necessitate a totally different set of personal information. lnformant records of such nature are sensitive. Disclosure thereof may result in the death of informants and ultimately backfire against the entire clandestine organization. The purge in the late eighties of several members of the communist organization rvho were suspected of being military infonnants is one illustration of the effects of any lcak as to their identities. As a consequence, informants are careful in conducting their clandestine activities. Some rrf thern even refuse to comtnunicate with any other person except their handler or case officer. , There may also be instances where the informant is never directly contacted in person. As such. ' letter drops (message left at a designated location without the handler or informant being present at the satrre tinie) are resorted to in orderto minimize the lisks of being detected.56 However, not all infbrmants live as hermits. Only those rvho are well placed in the enemy organization and ale
i'
7'\rc i\!ilitrtrt and Stote Seuets /r1 lt 578. " /r/. lt 57,1. t'' Sclrirllz. ,!rrlr,?1 t)otc 4. at I 0q. 5r
I'rit,ilcge,9l YAI-E
t...1. 570
(lSS2)
Warrantless Arrests
capable
of
providing information darnaging
to the
hierarchy require special means of
cornmunication such as letter drops.

N4ore importantly, these sensitive informants are rarely available to testi! on facts they have gathered before a judge. In an application for a warrant wherein the informant is not presented, the judge relies on the statement of the officers with regard to the reliabilify of their infornrant. In the case of Draper v. {J.S.s1 , it was held that wheh an information is relayed to the arresting officer, it is vital to a successful prosecution that the informant be reliable. Conversely, where a warrantless arrest is made on the basis of an informer's tip whose reliability has not been established, the arrest lacks the requirement of probable cause.58
ln determining the existence of probable cause, the issue is not the accuracy of the informant's report but the informant's general reputation for reliabiliry.tn In one case, an informant supplied information regarding a sale of narcotics. Pursuant to this disclosure, the officers anested the defendant who sought the identiry of the informant to demonstrate the illegality of his arrest. The Court ruled that the identity of the informant need not be disclosed since according to the testimony of the arresting officers the same informant had supplied them reliable information which had led them to l5 or l6 previous convictions.60 B. Processed information vis-a-vis
the requirement of personal knotvledge,
As discussed earlier, information collected from the different sources are integrated to come up with an intelligence regarding a particular mission. Intelligence is more than .just raw information. It is processed information, the culmination of a series of verification and analysis to ensure an acceptable level ofcorrectness, ifnot certainty.
As an illustration, when the Intelligence Service Armed Forces of the Philippines (ISAFP) was tasked to neutralize the ultra-rightist group during the Aquino administration, the intelligence cycle began when the Commander-in-Chief gave the specific mission to apprehend the leaders of the RAM. ISAFP began to lay the groundwork for the collection effort by undertaking various activities such as conducting surveillance against known or suspected members of the RAM. The unit likewise started to spot and recruit well-placed assets who had access to the right. It did not take a long time for the assets to provide valuable information which confirmed the available data from open sources. Results from the technical surveillance unit likewise assisted in pinpointing the safe houses of the RAM members. After a lengthy but fruitful analysis, ISAFP sent its field operatives to arrest the suspects. Initially, the neutralization operations yielded negative results. Eventually however, after the influx of other information coming from the recruited assets and local intbrrners who were induced to give information by means of the DND Reward Systern. the tnetnhers of the RAM Executive Committee and other high-ranking officers were arrested.
t'Litcd in Yaron,supra
note 19. at 126
'
( ru'l .r,,/,lir tr{)tc
l7
itt
l-tr1.
Iluman Rights Trcatise on ConstitutionNl La}}
'fhe arresting team did not technically possess the "personal knowledge" as defined b1 jurisprudence. What the team had was "processed information" properly termed as "intelligence based on the information collected from different sources". The mass information gathered may well be considered as hearsay inasmuch as most, if not all, of the data came from a third pag"- an informant. As provided in Sec. 36 of the New Rules of Court:
"A rvitness can testify only to those facts which he knows of his personal knowledge; that is, which are derived fiorn his own perception, except as provided in these rules."
An application for a warrant may prove futile since the arresting officers do not personally acquire the information necessary in establishing probable cause before the judge. There may be no witnesses to be presented for the reasons stated in the preceding section. Even the manner of obtaining the information from technical surveillance may not be disclosed after invoking the executive privilege of state secrets. Can it be argued then that if the officers themselves do not have personal knowledge, they cannot effect a warantless arrest, much less obtain a warrant based on the same information?6r In the case of People v. Sucro62, the Court ruled the warrantless arrest of a drug pusher to be legal despite the fact that the officers' information was insufficient to fulfill the requirements for the issuance of a warrant. It stressed that what is paramount is that probable cause was established on the basis of reliable information. Thus, following the ruling of this case, it can be safely stated that when information relayed by an infonnant is the basis of arrest, the test in determining the legality of such arrest is whether there is probable cause based on the information gathered and conveyed by a reliable informant to the arresting officer(s); and not whether the arresting officer(s) had personal knowledge sufficient to fulfrll the requirements for the issuance of a warant.
Another aspect in every informant's data is the concept of "reciprocal knowledge". Where law enforcers work together and are required to keep each other informed, knowledge by one is knowledge of all, for the purpose of establishing the existence of probable cause. 'fhis "reciprocal knowledge" was used in State v. Cook63 where the person was arrested by officers based on infbrmation relayed to them by other officers who were making observations in an airplane. In another case, the Court ruled that it is not essential that all the facts and circurnstances to establish probable cause be personally known to the arresting officer. Accordingly, "[e]valuation is to be made of the conglomerate information known by the arresting authority."64 Thus. information personally gathered by intelligence agents working towards a common objective may operate to serve as information personally gathered by the others. This doctrine of reciprocal knowledge should be made applicable to the members of the intelligence community. The intelligence is cornposed of all the officers and men of the various intelligence agencies in the AFP, PNP, and other executive agencies such as the Deparlment of Foleign Affairs (DFA), Bureau of Immigration and Deportation (BID), and National Security Council (NSC). Through the Joint Intelligence Committee (JIC), these agencies periodically
t'r
.lirtre rrez, .\ilpro note28. at22. n: t95 scRA 398 (199t). ''t lc),1 Kurr.195 as citcd by Varon. "l4rrd notc
19.
at l17
"r (-orrk. .\t{pr(t t1{)tc 17. ai 102.
Wrrrantless Arrcsts
exchange information and reports coming from their respective field operatives. Stretching the
doctrine to its limit, the recruited informants who are technically state agents by virtue of an "Agent's Agreement" voluntarily signed by them also form part of the intelligence communiry. Knorvledge of facts by each of these informants, applying the above-cited doctrine, should be
construed as knowledge of the entire intelligence community.
('.
Nu"ltn'ing the plant
When an act or a series of acts is internalized in an organization so as to becorne a practice, any attempt to change such practice will face stiff opposition from those within the organization. Changes, if any, will be difficult and longer periods for adjustments should be provided for. Presently, law enforcement agencies are still feeling the aftershocks of martial law. It will take awhile for them to realize that their potent powers during the Marcos and even during the Aquino regime are slowly being diminished by the advent of reforms - such as that exemplified by the amendment on the Rules of Court requiring "personal knowledge of facts" instead of merely "reasonable grounds to believe" for effecting a warrantless arrest.
It should be remembered that when President Marcos declared martial law through Proclamation l08lon September 21, 1972, he also issued General Order (G.O.) No.2 which ordered the then Ministry of Defense to arrest individuals who were active participants in the conspiracy to seize political power. Law enforcers where then authorized to arrest persons on the basis of bare suspicion and sometimes, merely on whim. As amended, G.O. No. 2 created the Arrest, Search, and Seizure Order (ASSO) which substituted for the warrant. As the late Senator Diokno said:
"Martial law institutionalized the practice of preventive detention rvithout the
cvidcnce of guilt."65
The seeds of abuse and neglect fol human rights were sown in the field of law
en
[orcernent.
When martial law was lifted through Proclamation 2045,the ASSO was replaced with the Presidential Commitment Order (PCO) which basically retained the features of its predecessor. lt operated as a warant but was not usually issued by a judge nor subject to any judicial review. Due to the clamor for its abolition, the PCO was replaced by the Preventive Detention Action (PDA)
which again authorized law enforcers to arrest, search. seize arms and equipment used in the commission of crimes. Thus, despite continuous pleas from several human rights groups, arrest
and detention rvithout legal basis remained prevalent in the country.
When people power swept former President Corazon C. Aquino to Malacanang in 1986, she released several political prisoners as promised during her campaign. Nevertheless, the counterinsurgency effort of the AFP and the PNP intensified with both agencies declaring a "total war" policy against the communist rebels. For reasons not entirely attributable to Pres. Aquino. court rr"rlings alrvays seem to be tilted in favor of law enforcement. The Valmonte, Guttzoin and
"t l'1.,,\(; l(tth A,rniversar\ Issue (197't-1991),
l6
[Iuman Rights'l'rcatise on Constitutional La*
Urrjl
cases were some
of the decisions which were reflective of the prevailing sentiment of th.
Supreme Court during that period.
Twenty-one years after martial law was declared, Fidel V. Ramos was elected President While he is closely identified with the Marcos regime. being the former Constabulary chief. he opted to initiate the present peace process. Alongside this effort of reconciliation. several lau enfbrcerrrent agencies particularly intelligence units still carry that Marcosian practice of illegai arrests sanctioned during Martial law and nurtured during the Aquino regirne. The saturation drives conducted not so long ago in Quiapo, Tondo, and Smokey Mountain are some of the police practices still reminiscent of martial law. Also, the "universal rvarrant" is still resorted to by some
agencies. This practice allows law enforcers to arrest a certain person to answer for the commission of an ordinary crime such as robbery. The warrant served is for such ordinary crime but the arresting officers will investigate and interrogate said person for subversion, rebellion. or any other political crime. Another practice resorted to is the "weekend arrest" where the arresting officers will time their arrest on a weekend in an attempt to forego with a warrant and invoke the exigency of the situation as their justification for their action.
The increasing difficulty in arresting lawless elements also plays an important factor on why enforcement agencies have the tendency to take the legal short cut to fulfill their mission of
maintaining peace and order. Thus, in most warrantless arests, the arresting officers still apply the "reasonable grounds" requirement since it is easier to comply with than "personal knowledge". They just leave it to the lawyers to prove the legality of their action.
The inconsistent pronouncements of the Supreme Court have not helped in paving the way fbr a solution to address the confusing situation where almost every warrantless arrest in intelligence operations may be considered as a human rights violation. Therefore, in order to enhance the performance of intelligence units and at the same time rninimize the inf ingement of human rights, there is a need to provide for a rniddle ground that will be acceptable to both law
enforcement agencies and human rights groups.
RECOMMENDATIONS AND CONCLUSION

Judicial, legislative, and media intervention are needed to facilitate the function of intelligence organizations ofpreserving national security. Thejudicial interpretation of"personal knowledge" in Umil v. Rsmos is widely accepted by law enforcement authorities particularly those ,within the intelligence community. However, as it stands now, this writer opines that the 'pronouncerxent of the Supreme Cour-t regarding the matter should only be applied to intelligence
operations affecting national security. The dissenting opinion ofJustice Cruz in that case serves as a stern rvarning that with such interpretation, law enforcement officers shall again have a field day
in arresting individuals based on mere suspicion coupled with good faith. Adherence to nra-iority opinion will reopen the opportunity for law enforcers to exercise martial law porvers.
the
It must be ernphasized that the doctrine laid down inthe Umil v. Runtos case tnust still be applicd. llowever. this must only be limited to those intelligence operations affecting national
Warrantless Arrests
their operations are not that crucial to the existence of the State.
security. Thus, intelligence operations against comlnon criminals must comply with the strict interpretation of the twin requirements of "has just in fact been cornmittedi' and .,personal knowledge of facts" under Section 5(b) of Rule ll3 of the Rules of Court. This must be so since
strengthening of existing ones such as the witness protection program.
While some legal safeguards against possible abuse by law enforcers are already provided for in the Constitution and are incorporated under the New Rules of Court, the legislatuie needs to recognize the dilemma of intelligence agents and try to strike a balance between effective law enforcement and the protection of the people's rights through enactment of laws and the
Needless to say, law enforcement agencies must police themselves and enforce certain corrective measures as well as put up safeguards to ensure adherence to and respect for human rights. For one. recruitment procedures must again be accordingly upgraded and tightened. Because of the pressing need for more soldiers and policemen in recent years. recruitment procedures were drastically changed. For example, before the mass recruitment in the rnideighties, a person had to undergo two (2) years of military training before joining the AFp. Ar the end of the training period, one is not even assured of being enlisted in the sJrvice. Today, as instituted a decade ago, a person has only to undergo three (3) months of training before being enlisted in the service. Obviously, this substantialdifference in the length of trainin! willproduce less disciplined soldiers.
curriculum. the intelligence community is on the right track in equipping its personnel with
sufficient knowledge of the law.
School (SITS) conducted the Criminal Investigation and Interrogation Course to iducate ISAFp personnel on the latest provisions of law pertaining to arrest, searches, investigation, and other intelligence activities prior to the conduct of trial. With all these innovationi in the training
Training is crucial for the continuing efficiency and effectiveness of any organization. At present, basic and advanced courses in the AFP and the PNP contain legal subjects and a module on human rights. In the major services of the AFP, intelligence schools have also incorporated legal subjects to increase the soldier's or policeman's awareness of the legal provisions *hi.h ur. relevant to the profession of law enforcement. More specifically, when President Ramos directed ISAFP to assist the PNP in its fight against organized crimes, the Special Intelligence Training
More importantly, however, there appears to be a lack of guidelines for law enforcers to follo'uv" In exercising their discretion, law enforcers tend to conform with the established and accepted police practices. The attitudes such as "others have done the same thing and were never arrested" and "everybody is doing it, why can't we" are just some of the rationalizations which some law enforcers use every tirne they admittedly violate some personal rights of the accused. One book suggested the remedy of 'Judicializing" - that is, to make law enforcers sub1ect to explicit |ules which are subject to revier.v by the courts and reduce their discretion whenever ('r' possible While one cannot expect the ordiniry law enforcer to exercise the wisdom of a judicial officcr in determining whether there exists probable cause, a properly recruitecl law enforcer rvith
"" .rAivli,s
(l
wU,soN. vARItj'IIES oli pol.lcE BIrt IAVIOR (l!r73), p 280
Human Rights Trcatise on Constitutional Lan
qualit) training and legal education and subject to specific guidelines will certainly minimtze
errors in ;udgment.
lnherent in a democracy is the presence of destabilizing sectors of socieq'. The recognition of the State of certain personal rights and liberties is an indication that a democratic form of government is ruled by law and not by men. However, it is likewise inherent fbr the selfpreservation of the State to thwart any threat against its national security.
ln this country, intelligence operations play a key role in containing the Enemies of the State - those organizations which are capable of overthrowing the duly-constituted government of the people. However, they are not without any shortcomings, because as previous experience had shown, there had been many violations on the constitutional provision on warrantless arrests.
The means of collecting information by intelligence units should be construed as falling within the purview of "personal knowledge" as required under the Rules of Court. As earlier discussed, this interpretation as pronounced in the case of Utnil v. Ramos must be only applied when the operation is of interest to national security. To reiterate, operations affecting national security are those involving members of organizations which are capable of ovefthrowing the duly constituted government through the use of violence. As such, the Until doctrine must be limited only to sensitive operations undertaken by intelligence units. All other warrantless arrests must strictly follow the "personal knowledge" requirement as expounded by the dissenters in the Urn l/ case. Chief Justice Marcelo B. Fernan, in his dissenting opinion in the aforecited case, said that tnost of our present law enforcers still lack the legal training. hence, they may easily be enticed to abuse this pronouncement ofthe court.
In the same breadth, information affecting national security and those coming from informants must be construed to satisfo the personal knowledge requirement. Processed infbrmation coming from a reliable and time-tested informant has become indispensable in every aspect of intelligence operation.
While a peaceful solution to reduce the threats against national security is always the preferred alternative, it is still important to recognize that threats to national security shall always be present in a democracy. Whatever the ideology of such threatening group may be, communist or otherwise, its members are still entitled to the protection guaranteed under the Bill of Rights which must be respected by our lav, enforcement agencies especially intelligence units whose role in the preservation of national securify is indispensable for the survival of government.
The Ateneo Human Rights Center

The Ateneo Human Rights Center (AHRC) was established irr October
1986 as one of the frrst university-based institutions engaged in the promotion of peace, development and human rights in the Philippines. It is housed in the
School of Law of the Ateneo de Manila University. The Center seeks to realize its mandate through programs which focus on
the continuing formation of human rights advocates among lawyers, law

students and grassroots leaders, the monitoring of the human rights situation in the Philippines and abroad, research and publication, public education on peace, development and human rights, and legal assistance to indigentvictims of human rights abuses. Thus, the Center assigns law students through the internship program to work with human rights organizations in the Philippines, conducts training seminars for the benefit of government and non-government organizations and grassroots communities, publishes a human rights legal treatise series, and renders legal assistance to indigent clients and grassroots communities.
As varied as the Center's programs, its beneficiaries include urban poor communities, women, children, laborers, migrant workers, students, nongovernmental organizations, and the general public.
As an institution of the Ateneo de Manila University, the Center has to valuable resources of the university and the law school in the implementation of its programs. Volunteer law professors, alumni practitioners and law students lend additional support to its activities.
access
The Ateneo Human Rights Center is located at 130 H.V. De la Costa, S.J. Street, Salcedo Village, Makati City, Philippines.
Human Rights Trcatise on Constitutional Law
performs such examination without any time pressure, the officer must determine the existence of
probable cause almost simultaneously with the arrest.
A warrantless arrest is premised on emergency, necessity, and exigency. It is important to of arrest, what is dispensed with is merely the existence of a warrant. For a warrantless arrest to be valid and legal, there must still be probable cause.
note, however, that in this type
Warrantless arrests can only be effected under the following conditions:
a. When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
b. When an offense has in fact been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it;
c.
When the person to be arrested is an escaped prisoner.26
In a case mentioned earlier,21 the Court ruled that there was the element of exigency when members of the Davao Metrodiscom arrested Posadas for illegal possession of firearms. Posadas was carrying a "buri bag" and was acting suspiciously at the time of his arrest. He attempted to flee when he was accosted by the anesting officers. In this case, the Court pronounced:
"It
is too much to require the police officers to search the bag in the possession
of the petitioner only after they shall have obtained a search warrant for the purpose.
Such an exercise may prove to be useless, futile and much too late."
Thus, under a set of facts and circumstances, a law enforcer is expected to use his or her discretion in determining whether probable cause exists in making an arrest without the required
warrant.
Probable cause is a difficult concept to explain since it is based more on common sense and does not have a technical meaning or a mathematical formula. Hercules Bottling Co., Inc. v. Savellano?8 enumerated some guidelines to determine the existence of probable cause. One of the guidelines set forth is that only a probability, and not aprimafacie showing of crirninalactivities is the standard ofprobable cause.
The traditional definition of probable cause was propounded by the U.S. Supreme Court,
'to wit:
"Whether at that moment the facts and circumstances within their knorvledge and of rvhich they had reisonably trustlvorthy inlbrmation rvere sufficient to warrant a
26 21
Supra note 3. Posudas, suprd note24.

Se
CA-C. R. No. 09 I 53-R, February 29. I 980, as cited by J acinto .limenez, Arres!, Searches, and .1. 9 ( 1988), p. 23 [hereinafter cited as Jimenez].
2*
izures,3
I A'IENEO
t-

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Human Rights Treatise on

friends of Ateneo Human Rights Center.

Amparita S. Sta. Maria Ma. Generose T. Mislang

Human Rights Treatise on Constitutional Law

liability provided there is compliance with the law instructions.

As a form of restraint on the constitutional right to travel, HDOs are akin to

Constitutional Right to Travel

III, Section I (4) thereof read:

Human Rights Treatise on Constitutional Law

the twin context of the right to travel is enshrined in

13 Everyone has the right borders ofeach state.

to freedom of movement and residence within the

PHIL. CONST.. Art. X, Sec. 2 ( 1987).

Constitutional Right to Trrvel

LIMITATIONS ON THE RIGHT TO TRAVEL

at 22 [hereinafter cited as kmel].

Human Rights Treatise on Constitutional Law

law." This is because said order was considered

necessary to carry into effect

t' Supro note 3. at I54-l55. I57.

Constitutional Right to Travel

Human Rights Treatise on Constitutional Law

Constitutional Right to Travel

Protection of the foreign policy of the United States is a govemmental interest

valid limitation on the right to travel is also recognized under American

Human Rights Treatise on Constitutional Law

HOLD DEPARTURE ORDER (HDO): ITS NATURE AND SCOPE

country where his departure ufill prejudice, hamper

otherwise obstruct the task

7,emel, strpra note 1 4, at I 5

50 Phit. 595 (1927).

Constitutional Right to Travel

to the United States Supreme Court in the case of United

is seizure when by means of physical force or a show of authority,

Kant Ktrong. at note 13, p. 228.

Human Rights Treatise on Constitutional Law

agency requests for HD order:

b. Pursuant to a standinq warrant/order ofarrest

THE CONSTITUTION oF THE REPUBLIC OF THE PHILIPPINES (I987). p, 85.

Constitutional Right to Travel

adverse aggrieved party instrumentalities

is the eovernnreit or any of its

Human Rights Treatise on Constitutional Law

Promotion of Public Interest

or General Welfare through an Effective Crintinal

Klong. supra note 13, at232-233.

Constitutional Right to Travel

ln Kant Kwong v. PCGG, the HDO

Human Rights'f reatise on Constitutional Law

2. Reasonability of the Means in the Context of the Constitutional Right to Travel

"Sec. 6. When warrant of arrest may issue.

Constitutional Right to Travel

ofCourt, Rule I 12, Sec 6 (a) and (b).

BERNAS. suora note35

BERNAS. supra nore 35. at 86.

Human Rights Treatise on Constitutional Law

Constitutional Right to'I'ravel

Silverio, 195 SCRA, at 765

Ciuz..'rup,o*i. " Kent. supro note

Eastern Shipping Lines, Inc. v. POEA, I 66 SCRA 531

HEC'foR DE LEoN, ADMINISTRATIVE LAW 77 (rgg3).