Justice Carpio vs. Senator Lacson – 3

By Modesto P. Sa-onoy

Justice Antonio Carpio yesterday presented two constitutional “fortresses” or defenses against the arbitrary arrest by government agents. The first is the requirement that warrants be issued only by the court.

The “second fortress” against unreasonable arrests is the requirement for the warrant to be based on a finding of probable cause. The Constitution requires judges to personally examine the complainant and the witnesses to find out if there is a reasonable ground to believe that the suspect probably committed the crime.

“In short, if the judge believes that no crime has been committed, he cannot issue a warrant of arrest,” Carpio said.

Justice Carpio then contrasted this with the reasoning of Sen. Panfilo Lacson, who during deliberations in the Senate said he wanted authorities to be “proactive” in arresting terrorism suspects even if they have not committed a crime yet. Lacson has argued that successful counterterrorism involves preventing the crime from being carried out.

Lacson was quoted saying that “in ordinary crimes, you cannot arrest in the planning stage and he has not done it yet, he has not committed the crime. Because we call [terrorism] an inchoate offense, even if it has not happened, it is only beginning, we can make arrests because we want to be proactive, because this is a new phenomenon.”

Justice Carpio interpreted Lacson’s statement to mean “the ATC is authorized to order the arrest of any person even if he or she has not committed any act of terrorism.”

Carpio noted that Section 29 “does not provide standards of limitations to the power of the Anti-Terrorism Council to issue arrest orders.” The section only mentions that the person to be arrested is just “suspected to be committing any of the acts” criminalized by the bill.

“Clearly, the Anti-Terrorism Council can issue an arrest order even without probable cause, demolishing completely the second fortress erected by the Constitution to ensure the guarantee against unreasonable arrests which is inviolable,” Carpio argued.

Section 29 also allows authorities to keep detainees for fourteen days, extendible by another 10 days, before the arresting officers are required to file charges before the court.

Article 7, Section 18 of the Constitution provides that “the President may suspend the privilege of the writ of habeas corpus in case of invasion or rebellion and when required by public safety.” In this case, an arrested or detained person “shall be judicially charged within three days, otherwise he shall be released.”

In other words, Carpio pointed out, the Anti-Terrorism Act provides for a period of detention without charges that is “longer than the three days under martial law.” This prompted Carpio to declare that the Philippines will be “permanently under a situation worse than martial law” if the bill is enacted.

Carpio also pointed out that even martial law or the suspension of the privilege of the writ of habeas corpus has a limited lifespan. It may last for a period of 60 days, subject to extension or revocation by Congress.

The Anti-Terrorism Act is much worse, Justice Carpio said, because the measure, “once enacted into law, remains in the statute books forever, until repealed by the Congress or invalidated by the Supreme Court.”

Consequently, he averred, “even the writ of habeas corpus would not be of much help if the Anti-Terrorism Act was in force.”

The courts may require the custodian of a suspect to justify his detention, but all the custodian needs to do is show the written authority of the ATC. “Then the judge will be compelled to dismiss the petition because a person is being detained upon lawful order pursuant to law,” Carpio stressed.

In effect the court is rendered powerless as much as under martial law without classifying the country as under martial law.

If authorities could not gather enough evidence within the 24-day period of warrantless detention, there is no provision in the Anti-Terrorism Act regarding re-arrest. “After a few days, he can be arrested again and the 24-day cycle will repeat and keep on repeating,” Carpio warned.

A “suspect” can therefore be held ad infinitum without his guilt proven. Is there any difference from a totalitarian government where the enemies of the state are detained indefinitely? What recourse does the citizen have? Will this not be counter-productive? The martial law years teach a lesson.

Let us continue tomorrow.