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Commentary

Arrest, detention, and bail under anti-terror law

A person can be arrested without warrant if he has committed or is attempting to commit a crime in the presence of the arresting officer, or if he is reasonably believed by the arresting officer to have committed such crime, or if he is a prisoner who has escaped from confinement.

Such arrests can be made by a public officer or even by a private individual. A person can also be arrested without a warrant if he is suffering from violent insanity or other ailments requiring compulsory confinement in a hospital. The person arrested must be delivered to the judicial authorities within certain periods not exceeding 36 hours, depending on the nature of the penalty for the crime for which the arrest is made.

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Warrantless arrests were well established in common law at the time of the adoption of the Constitution, and may well be considered an exception to its requirements that no warrant shall issue but upon probable cause determined by a judge after examining under oath or affirmation the complainant and his witnesses. They are justified by the obvious necessity of having to take into custody a crime suspect where there is no time to apply to a judge for a warrant.

The Anti-Terrorism Act of 2020 changes the present law. Section 29 authorizes the arrest and detention of suspected terrorists upon the authority of an administrative body, the Anti-Terrorism Council (ATC), which is composed mostly of Cabinet secretaries and other executive officials of the government. Although Section 29 does not say on what basis the ATC may authorize an arrest, it seems that it is on the basis of affidavits submitted by government agents. The authority is necessary before an arrest can be made, a fact which belies the need for making a warrantless arrest.

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On the other hand, Section 34 provides that an accused granted bail can travel only “within the municipality or city where he/she resides or where the case is pending.” It states that this restriction is “consistent with Article III, Section 6 of the Constitution,” which provides that “the right to travel may be impaired in the interest of national security, public safety, or public health.”

The restrictions in the Constitution, like travel bans to countries because of civil war, are clearly for the protection of the public. But the restrictions in Section 34 are curtailments of the liberty of the accused. They encumber the right to bail by increasing the conditions provided in the Rules of Court for the grant of bail.

Detention for up to 24 days seems to me reasonable given the number of terrorist suspects who may have to be arrested. In Laurel v. Misa, 77 Phil. 856 (1946), the number of treason indices after the last war, 6,000 in all, was simply staggering; the Supreme Court upheld their detention up to six months.

But the attempt in Sections 29 and 34 to straddle the requirements for warrants of arrest under the Constitution and warrantless arrests under the Rules of Court, has only resulted in producing grotesque provisions that are unconstitutional.

Indeed, these provisions in fact amend the Rules of Court promulgated by the Supreme Court, which cannot be done because under the Constitution, Congress no longer has the power to repeal, alter, or supplement the Rules of Court.

During the deliberation on the anti-terrorism bill, critics were told that if they were not guilty they should have no fear. Law-abiding citizens fear, however, that in the war against terrorism, constitutional rights will be curtailed more than it is necessary. They want an anti-terrorism law that on its face shows that the Constitution still reigns as the supreme law.

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Vicente V. Mendoza is a retired associate justice of the Supreme Court.

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TAGS: Anti-Terrorism Law, Commentary, Vicente V. Mendoza, warrantless arrests
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