Justice Carpio vs. Senator Lacson – 2

By Modesto P. Sa-onoy

Yesterday I wrote that Justice Antonio Carpio assailed the proposed Anti-Terrorism Act on the issue of who is a terrorist. The Anti-Terrorism Council is authorized to determine that and order his or her arrest. This is awesome power.

According to Justice Carpio, Section 4 (a) “vaguely defines terrorism as committed by a person who ‘engages in acts intended to cause death or serious bodily injury to any person or endangers a person’s life.’” Would attempted murder qualify as terrorism? Indeed, as Justice Carpio says, it is not clear and whatever is not clear in law is always dangerous as it leaves to the ATC the discretion to make a definition and its mistake is protected by law.

Carpio focused on Section 29, which he considered overstepping the law. This section concerns “detention without judicial warrant of arrest.” It empowers law enforcement agents or military personnel to take custody of “a person suspected of committing” terrorism if they are “duly authorized in writing by the ATC.”

But under Article 3, Section 2 of the Constitution, Justice Carpio said, a warrant of arrest may only be issued “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.”

He explained that this provision puts up “two fortresses” against unreasonable arrests – the requirement that the warrant be issued by a judge and the requirement that the warrant be based on the existence of probable cause.

Notably, he said, the framers of the 1987 Constitution deleted the provision in the 1973 Constitution that also empowers “such other responsible officer as may be authorized by law” to issue a warrant of arrest. In other words, Congress lost its Marcos-era option to give the executive branch of government the power to order arrests.

Carpio noted that only judges can now order arrests, because the framers vowed to “never again” allow the horrors inflicted by the “notorious arrest, search and seizure orders (ASSOs)” issued by the secretary of national defense under the “bloody regime of dictator Ferdinand Marcos to happen.”

Critics of the bill say the ATC seems poised to overstep on the functions of the court, as the bill allows it to issue a written authority for making warrantless arrests.

“This first fortress must be inviolable. Now what has the Anti-Terrorism Act done? The Anti-Terrorism Act has demolished the first fortress and reinstated the ASSOs of the martial law period,” Carpio emphasized.

Indeed, during the first decades of martial law, thousands of people were arrested and detained, many of them students on mere suspicion by the defunct Philippine Constabulary, many of them never heard of again.

My cousin, a student activist, was arrested together with Ninoy Aquino and Senator Jose Diokno on the day martial law was declared. He was released after months, and then rearrested and we never knew where is.

But that was with declaration of martial law when the constitution was suspended, and military rule took over. Under the present Anti-Terrorism Act, the constitution is supposed to remain our supreme law.

The retired justice said that warrantless arrests may be reasonably carried out by a peace officer or a private person under Rule 113, Section 5 of the Revised Rules of Criminal Procedure.

But the rule, he said, allows this only for three scenarios: (1) The person has committed, is committing or is about to commit an offense in the presence of the officer; (2) The person has just committed an offense and the officer has probable cause to believe it based on personal knowledge; and (3) The person escaped from detention or confinement.

He added, that in these urgent cases where the crime is happening almost at the time of an arrest, written authority is no longer required.

“Clearly, the written authority under Section 29 of ATC is not for the purpose of effecting warrantless arrest under Rule 113. The written authority of the ATC is necessary to arrest the person suspected of terrorism outside the situations wherein the warrantless arrests are allowed under Rule 113,” Carpio said.

Carpio found this reasoning to be “senseless,” unless Congress intended to give the executive branch the power of the courts.

“This is obviously unconstitutional since the present Constitution allows only a judge to issue a warrant of arrest,” he stressed.

Let us continue tomorrow.