The anti-terror bill authorizes the executive anti-terror council (ATC) to order the arrest of suspected terrorists, despite a blanket denial from one of the bill's author and sponsor, Senator Panfilo Lacson.
Reacting to a statement by the Integrated Bar of the Philippines (IBP) that the ATC's power is unconstitutional because it oversteps on the function of courts to order arrests and detention, Lacson said on Twitter: "No, sir!"
Lacson said: "It is only to request the AMLC (Anti-money laundering council) to freeze the accounts and the CA (Court of Appeals) to issue an order to wiretap, not arrest."
Lacson is "dead wrong," said the Concerned Lawyers for Civil Liberties (CLCL) in a statement on Saturday, June 13. The CLCL is a consortium of the most prominent legal groups in the Philippines. (READ: EXPLAINER: Comparing dangers in old law and anti-terror bill)
What Section 29 says
Section 29 of the bill is very clear on the power of the ATC.
For starters, the title of the section is "Detention without judicial warrant of arrest."
The section goes on to say that: "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 ten (10) calendar days." (All emphasis ours.)
Under Section 29, the ATC can order in writing the arrest of a suspect, and detention lasting to a maximum of 24 days, an extension of the original 3 days in the Human Security Act.
IBP said this was unconstitutional because "the 'taking into custody' of terrorism suspects under the 1987 Constitution is exclusively a judicial power."
In his Inquirer column, retired Supreme Court senior associate justice Antonio Carpio, one of the country's leading constitutionalists, said "under Section 29 the ATC is authorized to order the arrest of any person even if he or she has not committed any crime of terrorism."
Carpio even reviewed congressional transcripts and found that during Senate deliberations, Lacson said the bill allows warrantless arrests, comparing it to a citizen's arrest.
“Hindi na rin po natin pinapalitan iyong provision sa citizen’s arrest in this case. Kaya lamang, ang in-expand natin ay iyong period. In ordinary crimes, hindi puwede iyong nasa planning stage, hindi naman niya ginawa, hindi naman siya nag-commit ng crime. Pero dahil iyong tinatawag nating inchoate offense, hindi pa nangyari, nasa simula pa lamang, puwede na nating arestuhin because we want to be proactive because this is a new phenomenon," Lacson said, as quoted by Carpio.
(We are not changing the provision on citizen's arrest in this case. It's just that we expanded the period. In ordinary crimes, you cannot arrest while still on the planning stage, he has not done it, he has not committed a crime yet. But on what we call the inchoate offense, it hasn't happened yet, it's just in the planning, we can arrest because we want to be proactive because this is a new phenomenon.)
"This is a glaring, in-your-face violation of Section 2, Article III of the Constitution allowing only judges to issue warrants of arrest. Section 29 has resurrected the ASSOs (Arrest, Search, and Seizure Orders ) of the martial law era," Carpio said on his column.
The CLCL said that Lacson, who's been harping at supposed misinformation on bill, is the one who has "not carefully studied the bill."
"Sen. Lacson’s generalized ad hominem response to the IBP actually shows that he has not carefully studied the bill, otherwise he should have addressed the specific provisions of the bill and the specific constitutional provisions violated," said the CLCL. (PODCAST: Law of Duterte Land: Dissecting anti-terror bill and threats to freedoms)
What laws say on warrantless arrests
A warrantless arrest is allowed by the rules of criminal procedure under 3 conditions: 1.) You were caught in the act 2.) Law enforcement has probable cause to believe a crime has just been committed 3.) A prisoner escaping from jail.
The 2007 Human Security Act also authorized the ATC to order warrantless arrest of suspected terrorists, but there is a difference in circumstances.
Under Section 18 of the Human Security Act, a warrantless arrest can be done on the order of the ATC "provided that the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 of this Act." (Emphasis ours.)
The anti-terror bill removes that condition.
In an earlier interview, Carpio said that the requirement of surveillance in the Human Security Act can fall under "caught in the act," one of the 3 valid grounds for warrantless arrest.
"The new Anti-Terror Law does not provide for this limitation. This limitation under the 2007 Human Security Act is akin to the crime being committed in the presence of the police officer, for which warrantless arrests are allowed," said Carpio.
This is why Carpio said that the anti-terror bill, once passed, is open to a facial challenge, meaning petitions can be filed right away to question it without having to wait for a direct injury to a person.
The anti-terror bill broadened the definition of terror, and added more crimes including inciting to terrorism, which directly impacts freedom of speech. (READ: DOJ defends terror bill's dissent exception, but leaves out 'killer' caveat)
Lacson claimed on Wednesday, June 10, that those opposed to the bill "had run out of sound reasons to argue."
"Many of those opposing the anti-terrorism measure have now shifted their aim to target the implementation. They have mastered the art of argumentation – when you run out of sound reasons to argue, just say: BASTA!" Lacson said on Twitter.
In response, CLCL said on Saturday: "We in the Concerned Lawyers for Civil Liberties reiterate our request to supporters of the terror bill to concretely and specifically answer the cited questions instead of saying 'basta' or resorting to generalized assurances that the terror bill is not unconstitutional and not intended to violate due process rights." – Rappler.com