Warrantless arrests and the Anti-Terrorism Act

The provision of the Anti-Terrorism Act (ATA) that strikes the deadliest blow on fundamental constitutional rights is its Section 29, which extends detention without judicial warrant, and without judicial charge, to a total of 24 days. The rationale for Section 29 was explained by Sen. Panfilo Lacson, the principal author of the ATA, during the Senate deliberations in this manner:

“[W]e asked the law enforcement agents and according to them, the three-day reglementary period is too short to gather enough evidence and to prevent the occurrence of another terrorist act. In fact, in his co-sponsorship speech, Senator Dela Rosa related his own firsthand personal experience wherein he arrested a terrorist suspect but he was forced to release him because he would exceed the three-day reglementary period. Then a few weeks after that, he recognized that same terrorist that he arrested beheading a person in Iraq. When we asked them, they told us that they need at least 14 days to develop a case and to file a strong case for violation of this proposed measure to strengthen the case.”

Defense Secretary Delfin Lorenzana echoed this: “We want a longer detention period so that we can hold the suspect if he is really a terrorist. He cannot commit a terror act. We do not have time to substantiate your charges. You cannot research. You cannot make any allegations. So, 36 hours [under the Revised Penal Code] are too short.”

In his letter to IBP President Domingo Cayosa dated June 15, 2020, Senator Lacson stated: “The legislative intent behind [Section 29] was to allow warrantless arrests pursuant to Rule 113, Section 5 of the Revised Rules of Court. The Senate deliberations of the bill show that there was no mention of any intention to add another exception to the requirement of securing a warrant of arrest. The provision on warrantless arrest should properly be interpreted as allowed in the following cases: (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 just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; xxx. Hence, Section 29 of the bill is construed to apply only to lawful warrantless arrest by virtue of in flagrante delicto and hot pursuit rule—in such cases, an actual crime is being committed or has been committed, necessitating a course of action to be taken by the law enforcement officer in accordance with the Revised Rules of Court.”

Assuming Senator Lacson’s interpretation is correct that Section 29 applies only to warrantless arrests under Rule 113, then law enforcement agents and military personnel can never detain the arrested person for more than 36 hours, effectively reinstating Article 125 of the Revised Penal Code mandating a maximum of 36-hour detention without a judicial charge. There are two types of warrantless arrests under Rule 113 that could possibly involve terrorists. First is the terrorist who is arrested in the act of actually committing an act of terrorism in the presence of the arresting law enforcement officer or citizen. Second is the terrorist who is arrested just after an act of terrorism is committed, and the arresting officer or citizen has personal knowledge of facts and circumstances that the person arrested committed the act of terrorism.

In both cases, by definition and by the very nature of the arrest, the evidence of guilt is strong to deny bail to the arrested person for committing a crime punishable with life imprisonment under the ATA. Apart from judicial confession, there can be no stronger evidence of guilt for denying bail than the facts and circumstances attending a warrantless arrest under Rule 113.

In short, in warrantless arrests under Rule 113, there is no need for additional time to gather more evidence to strengthen the case against the arrested person for purposes of denying bail. The investigating prosecutor can immediately conduct an inquest and file the judicial charge within 36 hours, and the judge will deny bail because the evidence of guilt is obviously strong. Being under continued detention, the arrested person cannot commit further acts of terrorism.

acarpio@inquirer.com.ph