SC: Prolonged detention under ATA to follow strict standards for warrantless arrests

Kristine Joy Patag - Philstar.com
SC: Prolonged detention under ATA to follow strict standards for warrantless arrests
Activist groups marched from University of the Philippines Diliman to the Commission on Human Rights on June 4, 2020 to protest the passage of the "Anti-Terrorism Act of 2020."
AFP / Ted Aljibe

MANILA, Philippines — The Supreme Court ruled that Section 29 of the feared Anti-Terrorism Act of 2020, which allows prolonged detention of up to 24 days with written authority from a council, should not be struck down as invalid.

In its ruling made public on February 15, the SC said it will pass upon arguments raised against Section 29 as petitioners asserted that the fear of arbitrary arrest of suspected terrorists without judicial intervention or warrant “infringes on freedoms of expression, assembly and association among other constitutional rights.”

Specifically, the section reads:

The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any law enforcement agent or military personnel, who, having been duly authorized in writing by the ATC has taken custody of a person suspected of committing any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act, shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said suspected person to the proper judicial authority within a period of fourteen (14) calendar days counted from the moment the said suspected person has been apprehended or arrested, detained, and taken into custody by the law enforcement agent or military personnel. The period of detention may be extended to a maximum period of (10) calendar days if it is established that (1) further detention of the person/s is necessary to preserve evidence related to terrorism or complete the investigation; (2) further detention of the person/s is necessary to prevent the commission of another terrorism; and (3) the investigation is being conducted properly and without delay.

But in the end, the SC held: "Under the auspices of this case and the reasoned constructions made by the Court herein, Section 29 should not be struck down as invalid."

EXPLAINER: SC: Petitioners constantly red-tagged alleged 'credible threat of injury' vs anti-terror law

Warrantless arrest

The SC stressed that the construction of the section holds that law enforces may arrest a person for acts defined or penalized under Sections 4 to 12 — which defines terrorism and other crimes — but only under instances contemplated in Rule 9.2 of the law’s Implementing Rules and Regulation.

And the said rule mirrors instances under Section 5 Rule 113 of the Rules of Court, which only allows warrantless arrest in flagrante delicto, arrest in hot pursuit, and arrest of escapees.

Once arrested under the said circumstances, the person may be detained up to 14 days if the Anti-Terrorism Council issues a written authority. If the ATC will not issue the written authority, the arrested person should be brought to the judicial authority within the periods specified under Article 125 of the Revised Penal Code, the SC added.

Under Art. 125 of the RPC, authorities will not face arbitrary detention charges if they will deliver to suspect to judicial authorities within specific timeframes: For a person accused of a crime punishable by light penalties, 12 hours; 18 hours for crime punishable by correctional penalties and 36 hours for crimes punishable by afflictive or capital penalties.

Extended detention

The SC also said that the written authorization of the ATC that allowed prolonged detention will only be issued to a law enforcer if the person was nabbed under the circumstances that allow warrantless arrest.

It explained that the ATC’s written authority would determine whether the periods of detention under Article 125 — up to 36 hours if accused of committing offense punishable by afflictive or capital penalties or equivalent — or Section 29.

"This is because the arresting officer may not have all the information to make that determination at that time. On the ground, the arresting officer may lack the necessary information (such as confidential intelligence reporters) to actually determine that Sections 4 to 12 of the ATA was violated at the time of the warrantless arrest," the ruling read.

But since arrests under the section apply to warrantless arrests, the high court stressed that process, requisites and rigorous standards applied to such kind of arrests apply.

"Among other things, these include the requirement of personal knowledge and the existence of probable cause. Thus, it is important to clarify that, contrary to the concerns of petitioners, Section 29 does not allow warrantless arrests for violations of the relevant provisions of ATA based on mere suspicion," the SC said.

The SC also said Section 29 does not amend, repeal or overhaul Article 125 of the RPC. The section supplements the cited article of the RPC with the exceptional rule with specific application in cases where the offense believed to be committed is punished by Section 4 to 12 of the law, and a written authority is secured for the purpose.

Habeas corpus

Petitioners have also argued that the Constitution, even during the extraordinary period of Martial Law, states that an arrested person shall be judicially charged within three days, or otherwise be released, but under the Anti-Terrorism Act of 2020, detention of a person not charged may be for 24 days.

But the SC said that "the Constitution is silent as to the exact maximum number of hours that an arresting officer can detain an individual before he is compelled by law to deliver him to the courts."

"The three-day period in the last paragraph of Section 18, Article VII of the Constitution is irrelevant to terrorism because it is applicable only in cases of invasion or rebellion when the public safety requires it," it added.

RELATED: Carpio warns: Situation 'worse than martial law' under anti-terrorism law

The high court also stressed that case building in terrorism cases is different and fraught with difficulties—based on Congress’ finding—than in case building in ordinary crimes. The SC also noted that the prolonged detention period is not only for gathering evidence but Congress intended it to disrupt terrorism.

The Court also clarified that a detainee may move for the issuance of the writ of habeas corpus.

READ: Colmenares fears anti-terror law may prompt junking of habeas corpus pleas | In last submission to SC, petitioners say with anti-terror law, habeas corpus writ won't be issued

“In sum, the ATA requires that certain conditions be complied with both prior to, during, and after the detention of a suspected terrorist under Section 29… In this regard, it may thus be said that Section 29 is not overbroad as well, as this government measure does not sweep unnecessarily and broadly and thereby invade the area of protected freedom of speech," the SC said.


Petitioners earlier vowed to again challenge Section 29 of the law in the motion for reconsideration that said they will file.

Rep. Edcel Lagman (Albay), a petitioner to the case, also said that the SC’s upholding of Section 29 of the law "is a blatant violation of the Constitution."

"When a suspect is unlawfully detained outside of the court’s jurisdiction, coerced confessions and torture are bound to be committed by police authorities in violation of the Bill of Rights," Lagman, who argued for the nullification of this provision during the oral arguments, added.




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