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Thesis On Detention PDF
Thesis On Detention PDF
A. Introduction
However, even after martial law was lifted in 1981, previous laws and
decrees had the effect of institutionalizing martial law. Among these
decrees were Proclamation No. 2045 granting the President the power
to arrest and preventively detain persons; LOI 1125 granting the
power to arrest any person by virtue of a Presidential Order of Arrest;
LOI 1125-A expanding the President’s power to arrest through the
Presidential Commi8tment Order (PCO); and LOI 1211 correcting all
the weaknesses and deficiencies of LOI 1125-A.
Due to public outcry, Marcos eventually abolished the PCO but created
in its stead the Preventive Detention Action (PDA) by virtue of PD
1877, which was said to be similar to the Third Reich’s Preventive
∗
Presented to the South-East Asia Sub-Regional Hearing of the Eminent Jurists Panel
on Terrorism, Counter-Terrorism and Human Rights on December 4, 2006 in Santika
Hotel, Jakarta, Indonesia.
1
Detention Decree of December 14, 1937. PD 1877 was further
strengthened by PD 1877-A which transformed the basis of preventive
detention, from mere administrative directives into law, by virtue of
Amendment No. 6 of the 1973 Constitution which provided for the
President’s emergency powers. Another decree issued by Marcos,
although unpublished, was PD 1836 which defined the conditions
under which President Marcos could issue orders of arrest or
commitment during martial law or when the privilege of the writ of
habeas corpus was suspended. PD 1836 did not provide for any
guidelines or procedures for the arrest or detention of persons except
that arrests and detentions can be effected solely on the basis of the
President’s personal judgment.
2
conduct. It needs power to protect individual rights and
liberties and to promote public welfare and social justice.
And yet, the exercise of governmental power must be
controlled or its may destroy the very values that is is
supposed to protect and promote.”1
It is in this regard that the Philippine legal system is replete with laws,
decrees, rules and regulations that define the limits of state power vis-
à-vis the right to liberty of citizens. The richness of the 1987
Constitution itself on such provisions attests to the limitation made by
law on the state’s power with respect to the rights of its citizens.
To cite a few, the 1987 Philippine Constitution sets forth the primordial
duty of the State to afford protection to its citizens. It is in this
fundamental law from whence the State draws its power to restrict the
rights of its citizens in behalf of social order.
3
may be required, under conditions provided by law, to
render personal military or civil service.”
There are also provisions in the Constitution which restrain the State’s
power to arrest and detain citizens. These provisions serve as legal
safeguards so that the right to liberty of citizens may not be arbitrarily
curtailed.
4
a multitude of human rights violations which are greatly unchecked
because of the absence of judicial supervision.
5
Article 125 of the Revised Penal Code has been amended by Executive
Order 272 (1987) which extended the allowable periods of detention
as follows: (2) 12 hours for offenses punishable by light penalties;
(b) 18 hours for offenses punishable by correctional penalties; and (c)
36 hours for offenses punishable by afflictive penalties. Article 125
applies only if the arrest is made without a warrant and it is lawful.
The fear is that the longer the person is detained, the greater the
chances that his rights are violated. Moreover, it is claimed that the
extended periods provide “an escape or an impunity for torturers or
manhandlers of detainees because the evidentiary wounds inflicted on
them would have been healed by the time they are released, if they
have not yet been salvages.”5
The reason for the legal extension of the periods is given in the
whereas clause of E.O. 272, which provides: “In the interest of public
safety and order, it is imperative that a reasonable and sufficient
period be given within which to conduct adequate and thorough
investigation of persons detained for some legal grounds.”
6
Preliminary research during the planning stage of a congressional
study on the law on arrest and detention indicated that a great
number of persons who are eventually taken into custody to answer
criminal charges are not arrested -- with or without warrants -- but
are simply ‘invited’. Not having been ‘arrested’ these individuals
cannot claim whatever protection the law on arrest may give them.
From the moment of ‘invitation’ until the actual booking and
preparation of the arrest report, there is no dividing line between a
general inquiry into unsolved crime and a custodial interrogation
focusing upon the ‘invited’ person as the one particular suspect.”6
1. Arrest/Apprehension/Invitation
7
nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.”
8
In the case of People v. Burgos (144 SCRA 1), the Supreme Court
ruled in the following tenor: First, it recognized the general rule that
all arrests must be under a judicial warrant. S e c o n d , while
recognizing certain exigent situations as exempting from the
requirement of a warrant, it held that such exceptions must be strictly
construed. Third, it held that if the warrantless arrest is “unlawful at
the moment it is made, generally nothing that happened or is
discovered afterwards can make it lawful”. Such is the rule “fruit of a
poisoned tree”. Fourth, it applied the rule that “courts indulge every
reasonable presumption against waiver of fundamental constitutional
rights and do not presume acquiescence in the loss of fundamental
rights.”10
Moreover, the 1985 Rules of Court are now more stringent since it not
only requires the police to show that a crime has actually been
committed at some vague time in the past. The crime must be shown
to have been committed just before the arrest. Besides, the police are
also required to have a personal knowledge of the facts indicating that
the person to be arrested has committed the crime charged.11
Therefore, a peace officer has no power or authority to arrest a person
without a warrant upon complaint of the offended party or any other
person, except I those cases expressly authorized by law, even if after
investigation, he becomes convinced that the accused is guilty of te
offense charged. Any police officer who makes an arrest without
regard to the requirements of law would be liable for illegal arrest or
arbitrary detention.
Despite these legal safeguards, there are still areas of concern left
unanswered. The Garcia-Padilla v. Ponce Enrile case (121 SCRA 472)
poses one controversial issue. Briefly, nine of the petitioners therein
were under surveillance as members of the Communist Party of the
Philippines. They were apprehended while having a conference in a
residential house in Nueva Vizcaya. They scampered in different
directions leaving their weapons, ammunitions, cash, various
documents and plans of inflation on their conference table. The
Supreme Court ruled to the effect that the crimes were covered by
Proclamation No. 2045 and are in the nature of continuing offenses.
According to the Court, their arrest was preventive in nature since the
purpose was to quell the commission of the offenses and present them
immediately to court. Thus, the absence of a warrant is no legal
obstacle to the capture of persons engaged in rebellion.
The ruling in Garcia was reiterated in the more recent case of Umil v.
Ramos, 12 which elicited powerful dissenting opinions from Justices
9
Sarmiento, Feliciano, Cruz, Fernan, Gutierrez and Regalado. In Umil
v. Ramos, the Court ruled that the grounds of suspicion are reasonable
when, in the absence of actual belief of the arresting officers, the
suspicion that the person is probably guilty of committing the offense
is based on actual facts, and is supported by circumstances sufficiently
strong enough to create the probable cause of guilt of the person
arrested. Justice Cruz, in reaction, dissented:
The Supreme Court I Umil v. Ramos ruled to the effect that the power
to arrest without warrant is unlimited as long as the requirements of
Section 5, Rule 113 are met. Thus:
10
“One of the duties of law enforcers is to arrest lawbreakers
in order to place them in the hands of executive and
judicial authorities upon who devolves the duty to
investigate the acts constituting the alleged violation of law
and to prosecute and secure punishment therefore. An
arrest is therefore an administrative measure. The power
to arrest without warrant is without limitation as long as
the requirements of Section 5, Rule 113 are met. This rule
is founded on an overwhelming public interest in peace
and order in our communities.”15
11
defense against criminal liability for his action, it is necessary to
determine the validity of the arrest without reference to the criminal
liability of the arresting officer, because a search incidental to an
invalid arrest would itself be invalid and the fruits of such search would
be rendered inadmissible as evidence.
12
Thus, despite the constitutional provision on searches and seizures,
individuals find themselves vulnerable to a variety of case consisting
mostly of illegal possession of firearms, possession, use and selling of
drugs, and even vagrancy where a private complainant or eyewitness
can be dispensed with. There are instances when even “fabricated”
non-bailable offenses are filed against an individual to ensure his
incarceration. The defense of “planting” or “frame-up” remains an
issue for the courts to decide. In the meantime, the prosecutor may
find a prima facie case that warrants the filing of information in court
and the arrest of the alleged offender. Thereafter, the person arrested
languishes in jail, the determination of his guilt pending before the
court. If he is innocent, no doubt is right to liberty is obviously
curtailed.
13
(8) People v. Lotto Wing, January 21, 1991, G.G. 88017 –
Search of moving vehicle based on information from agent
– Accepted;
14
to persons going from house to house trying to beg money
to bury a dead relative.”20
2. Custodial Investigation
15
(4) He should be warned that not only has he the right to
consult with a lawyer but also that is he is indigent, a
lawyer should be appointed to represent him.
3. Safekeeping
16
f) They shall be offered opportunity to work but shall not be
required to work’ if they choose to work, they shall be paid for
it;
17
acting in an official capacity. It does not include pain or suffering
arising only from, inherent in r incidental to, lawful sanctions.”
4. Inquest
LOI 621, promulgated on October 27, 1977, mandates that all persons
arrested must be brought before a judicial “inquest” authority which
can, among others, determine whether a detainee’s rights have been
violated. This inquest is to be accompanied by a medical examination.
Said LOI 621 gives the Inquest Authority the following ppowers and
duties:
18
b) To direct the release of the arrested person if there is no
probable cause against him in the case of citizen’s arrest; and
Due to the difficulty in monitoring the status of a case and the actual
date a case is filed, the Department Of Justice came out with a
Memorandum dated February 9, 1993 containing guidelines for the
implementation of a Case Tracking system in the Prosecutors’ Offices I
the Province of Rizal and cities of Manila, Quezon, Caloocan and Pasay.
19
realities behind the theories with the hope that this study will help
pave the way for a more wholistic approach at addressing the issues
concerning the practice of administrative detention in the Philippines.
20
FOOTNOTES
1
Hugo E. Gutierrez Jr., The Unsatisfactory Status of the Law on Arrest and Detetion, Philippine Law
Journal, Vol. 46, 1971, p. 669.
2
Joaquin G. Bernas, Constitutional Structure and Powers of the Government: Notes and Cases, 1991, p.
19.
3
Ibid.
4
Marie, Yuvienco, The Impunity for Human rights Violations Through Philippine Jurisprudence, juris
doctor thesis, Ateneo de Manila University, School of Law (1993).
5
Ibid.
6
Gutierrex, p. 676.
7
Ibid., p. 678.
8
Bernas, Notes and Cases, p. 73.
9
Section 3(2), Article III of the Philippine Constitution.
10
Alfredo F. Tadiar, A Critical Analyses of Syupreme Court Decisions on Criminal Procedure from 1983
up to May 1989, Rex Printing Company, Inc., 1989, p. 7.
11
Sayo, et.zl. v. Chief of Police, et.al., 80 Phil. 859.
12
187 SCRA 251, July 9, 1990; Reconsideration, 202 SCRA 251, October 3, 1991.
13
Umil v. Ramos, 202 SCRA, 282.
14
Ibid, pp. 293-294.
15
Ibid., pp. 267-268.
16
Ibid., pp. 268-269.
17
US v. Santos, 36 Phil. 853, 855.
18
People v. Malmstedt, 198 SCRA 401, 415.
19
Oscar Herrera, Outline on Recet Development on the Law on Arrest, Search and Seizure, May 14-15,
1993, pp. 11-12.
20
Gutierrez, pp. 691-692.
21
The US case of Miranda v. Arizona deals with the admissibility of statements obtained from an
individual who is subjected to custodial police interrogation, and the necessity for procedures which assure
that the individual is accorded his privilege against self-incrimination.
22
The Philippines acced to this Convention on April 30, 1986.
21