SC: Extended Detention Under ATA To Follow Strict Warrantless Arrest Standards

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Kristine Joy Patag – Philstar.fr

February 16, 2022 | 11:07

MANILA, Philippines — The Supreme Court has ruled that Section 29 of the dreaded Anti-Terrorism Act of 2020, which allows for prolonged detention for up to 24 days with the written permission of a counsel, should not be declared invalid.

In its decision released on February 15, the SC said it would forward the arguments raised against Article 29, as the petitioners claimed that the fear of arbitrary arrest of suspected terrorists without judicial intervention or warrant “undermines freedom of expression, assembly and association, among others. constitutional rights”.

Specifically, the section reads as follows:

Notwithstanding the provisions of Article 125 of the Revised Penal Code to the contrary, any law enforcement or military officer, who, duly authorized in writing by the ATC, takes into custody a person suspected of having committed the ‘one of the acts defined and sanctioned under articles 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this law, must, without incurring criminal liability for delay in the surrender of detainees to the authorities competent judicial authorities, hand over the said suspect person to the competent judicial authority within fourteen (14) calendar days from the moment when the said suspect was apprehended or arrested, detained and taken into custody by the police officer law enforcement or military personnel. The detention period may be extended up to a maximum period of (10) calendar days if it is determined that (1) further detention of the person(s) is necessary to preserve terrorism-related evidence or carry out the ‘investigation ; (2) the continued detention of the person(s) is necessary to prevent the commission of another act of terrorism; and (3) the investigation is conducted properly and without delay.

But ultimately, the SC concluded, “Under the auspices of this case and the reasoned constructions made by the Court here, Section 29 should not be struck down as invalid.”

EXPLANATION : SC: Petitioners consistently red label alleged ‘credible threat of injury’ to terrorism law

Arrest without warrant

The SC pointed out that the construction of the article states that law enforcement can arrest a person for acts defined or punished under Articles 4 to 12 – which define terrorism and other crimes – but only in the cases provided for in article 9.2 of the rules and regulations of application of the law. .

And the said rule mirrors the instances referred to in rule 113, section 5 of the Rules of Court, which only allows arrest without warrant in cases of flagrante delicto, arrest in pursuit and arrest of escapees. .

Once arrested under these circumstances, the person can be detained for up to 14 days if the Anti-Terrorism Council issues written permission. If the ATC does not issue the written permission, the arrested person must be brought before the judicial authority within the time specified in Article 125 of the revised Penal Code, the SC added.

According to art. 125 of the CPR, the authorities will not be charged with arbitrary detention if they hand over the suspect to the judicial authorities within specified time limits: For a person accused of a crime punishable by light penalties, 12 hours; 18 hours for crimes punishable by correctional penalties and 36 hours for crimes punishable by afflictive or capital punishment.

Prolonged detention

The SC also said that written authorization from the ATC authorizing extended detention will only be issued to a law enforcement officer if the person was arrested in circumstances permitting arrest without a warrant.

He explained that the written authority of the ATC would determine whether periods of detention under Section 125 – up to 36 hours if accused of committing an offense punishable by afflict or capital punishment or equivalent – or section 29.

“This is because the arresting officer may not have all the information necessary to make that decision at the time. In the field, the arresting officer may not have the necessary information (such as confidential intelligence reporters) to actually determine that Sections 4 through 12 of the ATA was violated at the time of the warrantless arrest,” the decision reads.

But since arrests under the section apply to warrantless arrests, the High Court pointed out that the rigorous process, conditions and standards applied to such 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 the petitioners, section 29 does not authorize arrests without a warrant for violation of relevant provisions of the ATA based on mere suspicion,” the SC said.

The SC also said that section 29 does not amend, repeal or revise section 125 of the CPR. The section supplements the quoted article of the RPC by the exception rule of specific application in cases where the offense alleged to have been committed is punishable by articles 4 to 12 of the law, and written authorization is obtained for this effect.

Habeas corpus

The petitioners also argued that the Constitution, even during the extraordinary period of martial law, provides that a person arrested must be judicially charged within three days, or otherwise released, but under the Anti-Terrorism Act 2020, the detention of a non person can be charged for 24 days.

But the SC said ‘the Constitution says nothing about the maximum number of hours an arresting officer may detain an individual before being compelled by law to deliver him to court’.

“The three-day period provided for in the last paragraph of Article 18 of Article VII of the Constitution is not relevant to terrorism because it is only applicable in the event of an invasion or rebellion when the security public demands it,” he added.

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The High Court also pointed out that case-making in terrorism cases is different and fraught with pitfalls – according to Congress findings – than case-building in ordinary crimes. The SC also noted that the extended detention period is not just for gathering evidence, but that Congress wanted it to disrupt terrorism.

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

READ: Colmenares fears that the anti-terrorism law will encourage the rejection of habeas corpus applications | In latest submission to SC, petitioners say that with anti-terrorism law, writ of habeas corpus will not be issued

“In sum, the ATA requires that certain conditions be met both before, during and after the detention of a suspected terrorist under Article 29… In this respect, therefore, it can be said that Article 29 n Nor is it too broad, because this government measure does not unnecessarily and widely sweep and thus invade the area of ​​protected freedom of expression, ”said the CS.

appeal

The petitioners earlier promised to challenge Section 29 of the Act again in the motion for reconsideration which said they would file.

Rep. Edcel Lagman (Albay), a petitioner in the case, also said the SC’s upholding of Section 29 of the law “is a flagrant violation of the Constitution.”

“When a suspect is unlawfully detained outside the jurisdiction of the court, forced confessions and acts of torture are inevitably committed by law enforcement authorities in violation of the Bill of Rights,” added Lagman, who advocated for the annulment of this provision during the pleadings. .

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