Justice Bernabe zeroes in on arrests under anti-terrorism law
Senior Associate Justice Estela Perlas-Bernabe interpellated Assistant Solicitor General Marissa Galandines on Wednesday, May 12.
Screenshot from the Supreme Court Public Information Office livestream

Justice Bernabe zeroes in on arrests under anti-terrorism law

Kristine Joy Patag (Philstar.com) - May 12, 2021 - 9:01pm

MANILA, Philippines — Under the anti-terrorism law that is widely assailed for supposedly giving police and military unbridled discretion in implementation, when can a person be legally arrested?

Senior Associate Justice Estela Perlas-Bernabe, in her interpellation, took a leaf from her colleague Associate Justice Amy Lazaro-Javier and drew up her one hypothetical situation, this time with a certain Col. Cho.

“Col. Cho is a suspected terrorist due to alleged affiliation with a terrorist organization based on anonymous tips. How law enforcers will determine if the organization Cho’s part of is a terrorist?” Bernabe opened her questioning on Wednesday.

Assistant Solicitor General Marissa Galandines said police officers can check whether the organization has been designated by the United Nations Security Council.

She also explained that if Cho is a member of a designated terrorist organization, it will not automatically lead to an arrest. But if the organization has been proscribed as terrorist, then he could be arrested.

Section 10 of the ATA provides that a person who “voluntarily and knowingly join” any organization knowing that it has been proscribed under Section 26 or designated by the UNSC can be imprisoned up to 12 years.

But Bernabe pressed: How will the government determine membership?

Galandines said the law enforcement agents must verify information if there is continuing membership to the organization.

Preliminary proscription

In a different scenario, Cho’s group was designated, under Section 25 of the law, as terrorist group but the Court of Appeals denies the prayer for preliminary order for proscription due to lack of probable cause. “Will the designation of the group be ipso facto (by the very fact) revoked?” asked Bernabe.

Section 27 of the ATA states that if the court determines that there is probable cause, upon application, that an order of proscription is needed to prevent terrorism, then the preliminary order of proscription declaring the respondent is a terrorist and an outlaw organization may be done within 72 hours.

Galandines noted that the CA order would then supersede the finding of probable cause by the Anti-Terrorism Council. But if it the preliminary order of proscription has been granted, this can be a basis of an arrest under Section 10, the government lawyer said.

Bernabe challenged: “Why? Without a judicial warrant, the offense is not in flagrante delicto (in blazing offense). By the mere fact of preliminary order of proscription, does that justify the law enforcers from arresting?”

She continued: “Is it necessary that the preliminary order of proscription be made permanent before arrest can be effected?”

Galandines replied: “It is our submission that the preliminary order must be permanent your honor.”

Detention for comrade with illegal firearms

Bernabe offered a different scenario: What if Cho was with a comrade who was found with unlicensed firearm, but the authorities have no further knowledge on the latter’s affiliation. Authorities still arrested the comrade for illegal possession of firearms. How long can the comrade be detained without a warrant?

Galandines said the comrade may be detained initially for up to 36 hours, the period stated in Article 125 of the Revised Penal Code.

“But your honor, may I just qualify my answer if the law enforcement agents would be able to secure an authority from the ATC this comrade may be detained longer than 36,” she said.

Galandines has been explaining that written authority discussed in Section 29 of the ATA, which allows detention of suspected terrorists of up to 24 days, is for extending detention after the person is arrested under the circumstances held valid in warrantless arrest cases.

RELATED: Justices zero in on longer detention without warrant under anti-terror law

But Bernabe pointed out that the comrade was being prosecuted for illegal possession of firearms only, and the arresting officer still has no further information on his supposed affiliation. “Will the authority of the ATC be a license to extend his detention not withstanding that he is merely being prosecuted for illegal possession?”

Galandines replied: “We submit your honor that the fact that he was in the possession of an illegal firearms and he is with Cho, then the ATC may issue an authority for his continued detention. After all your honor this may be necessary to prevent the commission of graver crime of terrorism.”

Bernabe flagged this response as “very dangerous,” and asked Galandines to further explain it in their memorandum.

The SC will resume its oral arguments on Monday, May 17.

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