Questions raised on warrantless

arrests
By: Leila B. Salaverria
@inquirerdotnet
Philippine Daily Inquirer
12:37 AM September 8th, 2016

Malacaangs guideline on the state of national emergency that allows a warrantless arrest when the
person concerned has voluntarily waived his right against such an arrest has drawn concern that it might
be abused or cause confusion.

Under the rules of criminal procedure, warrantless arrests are allowed in three instances even without a
national emergency, and the Palace listed these same provisions in its guidelines for the implementation
of Proclamation No. 55 declaring a state of national emergency on account of lawless violence in
Mindanao.

But a fourth one was added, which is when the person arrested, or to be arrested, has voluntarily waived
his right against warrantless arrest.

Bayan Muna Rep. Carlos Zarate, a lawyer, said Malacaang should clarify this provision and that he had
reservations about this as it might be used to coerce people to allow authorities to take them in even
without a proper warrant.

According to Zarate, police could invite people to the police station, then arrest them later and claim that
their acceptance of the invitation constituted their consent to the warrantless arrest.

It might be used for justification in instances where persons are invited by police and subsequently face
complaints, even without a warrant, Zarate said in a phone interview.

In reality, many people find it hard to refuse police invitations, he said.

Interpretations

Zarate said lawyers and law enforcement agencies may have different interpretations of Malacaangs
fourth provision allowing arrests without warrants, which is why it would be better for the Duterte
administration to clarify what it means.

Under the rules of court, arrests without warrant are valid under three conditions:

The person to be arrested has committed, is actually committing, or is attempting to commit an offense in
the presence of the arresting officer.

When an offense has just been committed and the arresting officer has personal knowledge of facts
indicating that the person to be arrested has committed the offense.
When the person to be arrested is a prisoner, who has escaped from a penal establishment or the place
where he is serving his final judgment to temporarily be confined while his case is pending.

Nothing wrong

Senate President Pro-Tempore Franklin Drilon finds nothing new with the conditions for warrantless
arrest set forth in Proclamation No. 55.

For me, thats right because the first three are in the rules of court The fourth is voluntary surrender,
so theres nothing wrong with that either, Drilon said. So the warrantless arrest is actually provided for
under our existing rules, he said.

Susceptible to abuse

But lawyer Ibarra Gutierrez, a former Akbayan representative, said the provision on waiving the right to
warrantless arrests in the Malacaang guidelines was problematic and susceptible to abuse.

Its very, very difficult to say on the ground when a person is voluntarily waiving a right out of fear, or is
simply coerced into going, Gutierrez told the Inquirer in a phone interview.

He noted that there were Supreme Court decisions saying that depending on the circumstances, an
invitation to questioning from the police was actually an arrest because the person concerned did not
really have the option to refuse.

Any waiver of any right must also be done in the presence of counsel, and in writing. And waiving ones
right does not mean letting go of other rights, he pointed out.

Gutierrez also warned that the inclusion in the guidelines of the provision to waive the right against
warrantless arrest sends a message to law enforcement authorities that they can ask people to waive their
rights.

The same concern goes for the provision saying intrusive actions during checkpoints are not allowed,
unless the subject individual consents or agrees thereto, he said. There would be instances when motorists
would find it hard to say no, even if that was well within their rights, he added.

Unconstitutional

Kabayan Rep. Harry Roque, who is also a lawyer, said any waiver of the right against warrantless arrest
must be done in the presence of a lawyer.

This is why Roque believes the fourth provision on warrantless arrests in the Malacaang guidelines was
unconstitutional.

For you to waive that right, that must be done in the presence of counsel, Roque said over the phone.

Follow standards

Zarate said standards should be followed when a person waived a right. The person must understand what
exactly he was giving up and what would be the consequences of his decision.

He noted that a persons waiver of right to counsel must be made in the presence of a lawyer.
The only instance when he thinks the fourth provision could apply is when a person voluntarily
surrenders to authorities for something he had done, the lawmaker said.

But even in such a case, he said, the persons rights to counsel and against self-incrimination were not
waived.

He also believes this waiver of the right against warrantless arrest is not the same as the waiver of the
right to question the illegality of an arrest. The latter happens when the person who was arrested without a
warrant shows up in court and allows himself to be arraigned.

Premium on civil rights

Assistant Secretary Marie Banaag of the Presidential Communications Office for Legal Affairs said the
guidelines for the implementation of the proclamation put a premium on civil rights.

Wed like to emphasize that the proclamation Proclamation No. 55 is not meant to undermine the Bill
of Rights, she said in a press briefing. With a report from Tarra Quismundo
What is state of lawless violence?
By: Vince F. Nonato
@inquirerdotnet
Philippine Daily Inquirer
02:52 AM September 4th, 2016

LAW EXPERTS on Saturday said the peoples rights should not be affected by President Dutertes
declaration of a state of lawlessness, as it is limited to calling out the military to help the police
suppress violence.

Justice Secretary Vitaliano Aguirre II stressed the constitutionality of the declaration, which came hours
after an explosion killed 14 people and wounded 68 others at a night market in Mr. Dutertes hometown,
Davao City.

Mr. Dutertes authority under the declaration is limited to summoning armed forces to suppress violence
through ordinary police action, according to Integrated Bar of the Philippines president Rosario Setias-
Reyes.

Aguirre said the declaration did not amount to an imposition of martial law. Instead, it was a
precautionary measure that had factual basis in the explosion.

As Commander in Chief, [he is mandated] to protect the people. The [Armed Forces of the Philippines]
is constitutionally mandated to protect the people from lawlessness, Aguirre said in a text message.

Rule of law

Asked about its effect on peoples rights, Public Attorneys Office chief Persida Rueda-Acosta said legal
and substantive rights are protected because this [is] part of the rule of law.

Acosta said the President had the power to call out the armed forces to maintain the rule of law and
prevent any lawless violence under Article VII, Section 18, of the 1987 Constitution.

She also stressed that police power is one of the inherent powers of the state, alongside eminent domain
and taxation.

The only aim of the declaration is to suppress and prevent lawlessness and violence, Acosta said.

Reyes, in a text message to the Inquirer, cited two Supreme Court decisions that defined the limits of the
Presidents power under Article VII, Section 18, of the Constitution.

She said that under the Presidents exercise of the calling-out power, the authority of the President
appears to be limited only to the summoning of the armed forces to assist in the suppression of lawless
violence, invasion or rebellion through ordinary police action.

Any act beyond it shall be considered illegal, Reyes said.

She recalled the 2006 Supreme Court ruling in David v. Arroyo, which found unconstitutional several
acts during the state of national emergency declared in the aftermath of a supposedly foiled coup
attempt.

The ruling hit the warrantless arrests of Prof. Randolf S. David and Ronald Llamas, the dispersal of the
rallies and the warrantless arrest of Kilusang Mayo Uno members, the imposition of standards on the
press, and the warrantless search of the Daily Tribune offices.

Reyes also noted the 2000 Supreme Court ruling in IBP v. Zamora, which provided the only criterion for
exercising the calling-out power of the President.

The criterion, she said, is whenever it becomes necessary to prevent or suppress lawless violence or
rebellion.

Owing to the vast intelligence network of the Office of the President, [the President] is in the best
position to determine the actual condition of the country, Reyes said.

Ateneo School of Government Dean Antonio La Via said the declaration provided extraordinary powers
to allow Duterte to wage a most efficacious defense of the nation in times of crisis, without being unduly
straitjacketed by structural and bureaucratic restraints.

Most benign

La Via explained in a Facebook post that summoning armed forces to combat lawless violence under the
declaration is the most benign of the powers allowed under Article VII, Section 18.

Martial law is the power that is most serious and carries the most impact on the social and political life
of the nations, he said.

But La Via noted that the level of conflict warranting such extraordinary powers tends to depend on
this wide presidential discretion.

He cited the Supreme Courts ruling in David v. Arroyo that said the power is by and large a
discretionary power solely vested on the Presidents wisdom.

For which reason, emergency rule becomes fraught with opportunities for abuse; a gateway to
constitutional shortcuts. Once emergency rule is declared, the constitutional bonds are loosened that could
create a window of opportunity for unrestricted power, he said.

La Via said the 1987 Constitution was designed with a pervading theme to do away with all
possibilities of strongman rule, no doubt a painful lesson of the Marcos dictatorship.

This design meant the creation of an intricate system of checks and balances that calls for Congress
participation when the President can invoke more serious powers such as emergency powers, the
declaration of a state of war, or the imposition of martial law.

Not legally insignificant

Fr. Ranhilio Aquino, dean of San Beda College Graduate School of Law, said that while the declaration
was nothing alarming neither is it legally insignificant.
In a Facebook post, Aquino said it was a signal to the legislature that Mr. Duterte may ask for emergency
powers.

Aquino said that while checkpoints have always been allowed in normal circumstances, the declaration
means only that their usefulness becomes more urgent now.

Does that allow police officers to search so thoroughly that they can forcibly open gloves and baggage
compartment? No, but they can request you to open these and it would be wise for one to cooperate, he
said.

National Union of Peoples Lawyers secretary general Edre Olalia said that calling out the military to
suppress lawless violence does not mean the power to suspend the privilege of the writ of habeas corpus
or place the Philippines or any part [of it] under martial law.

La Via said the extraordinary powers of the President could be considered, at best, a necessary evil.
But he cautioned that extraordinary powers should only be invoked as a last resort.

It should never be considered normal, must never be lightly granted by Congress, and if the right case or
controversy comes, the Supreme Court have to scrutinize this carefully, he said.

While there exists the ever-present possibility of the slippery slope of frequently invoking emergency
rule, La Via said: For now, [Mr.] Dutertes declaration does not appear to lead us to that slope, but we
must be vigilant.

This is not the first time a part of the Philippines has been placed under the state of lawless violence.
A state of emergency was mostly recently declared on April 2, 2003, by then President Gloria Macapagal-
Arroyo, after two explosions rocked the old Davao International Airport and the Sasa Wharf, killing 38
people and wounded a hundred others.

But, the 2003 declaration was limited to Davao City, unlike Saturdays declaration by Mr. Duterte, which
covers the entire Philippines.