Legal issues hound Duterte order for 1,914 convicts to surrender

MANILA, Philippines – The Duterte administration again finds itself in another legal wrangle as it threatens to rearrest without warrant 1,914 freed convicts, with the police saying they are ready to shoot dead anyone who resists.

National Union of Peoples' Lawyers (NUPL) president Edre Olalia called this "a shortcut of due process, subject to abuse and arbitrariness."

Justice Secretary Menardo Guevarra has provided President Rodrigo Duterte legal justifications for the latter's verbal order for the 1,914 heinous crimes convicts to surrender or else be treated as fugitives. These ex-convicts had been granted early release under the good conduct time allowance law that took effect in May 2013.

The justifications are two past Supreme Court cases, not a law, and certainly not an explicit order from the court.

"Persons Deprived of Liberty (PDLs) who refuse to complete their sentence are in fact evading sentence, punishable under the Revised Penal Code, and may therefore be subject to warrantless arrest," Guevarra said in a text message to reporters Friday, September 6. 

Criminal law professor and former Supreme Court spokesperson Ted Te said evasion of sentence does not apply in this case.

"A fugitive from justice contemplates a person is evading a sentence. This person has served a sentence, was set free because of an order, he's not a fugitive from justice," Te said.

Te said that the government must go to court to ask for the rearrest of the convicts, which is precisely what the government did in the two cases cited by Guevarra.

The Duterte administration asserts that heinous crimes convicts must be excluded from Republic Act 10592 or the law that expanded the benefits of Good Conduct Time Allowance (GCTA). It was under this 2013 law that the 1,914 convicts were freed, as the law could slash up to half an inmate's sentence.

"Now if there is a defect in the way they were set free, the remedy is to question the manner they were set free...the proper procedure, the reasonable procedure, the procedure more consistent with the Constitution, is that each case be reviewed, and file separate petitions to challenge it – that is their duty," Te said.

Olalia agreed with Te.

"There must be a proper motion or action in the appropriate judicial body. It just should not work that way.  Otherwise, such rearrest is open to challenge by an interested party at the ripe time before our courts," Olalia said.

Olalia said "this administration is perfecting the art of reinventing the law...to justify politically indefensible positions."

Hold departure orders

Guevarra also supported Duterte's verbal order for airport authorities to stop the convicts from going abroad, even though Hold Departure Order (HDOs) are only issued by courts.

The justice secretary has put the convicts on immigration lookout, a mechanism of alert for the government agents, 

"The Bureau of Immigration (BI) has no power to hold departures without a court order, but in coordination with law enforcement agencies such as the National Bureau of Investigation (NBI), [they] may effect arrests of PDLs evading sentence by fleeing abroad," Guevarra said.

The Integrated Bar of the Philippines (IBP), under its new leader Domingo "Egon" Cayosa, agreed with Duterte and Guevarra that there need not be a court order at this point to demand the surrender of convicts.

"There is a clear legal principle that the state/government is not bound by the mistake or illegal acts of its officers," Cayosa said.

Cayosa added: "It is not only within his authority but his duty to correct the mistake/illegality and promptly put back in prison all those who committed heinous crimes and were improperly released. The release was void at the very start for being illegal," Cayosa said. 

Surrenderees

Since Duterte's verbal order Wednesday night, September 4, a number of ex-convicts have surrendered.

Those who will surrender will be held in custody by the BuCor until the issue is resolved.

"Once the returning PDLs are back in the custody of the BuCor, their GCTAs will be re-evaluated and recomputed. The appropriate disposition will follow. In the meantime they shall remain in the custody of the BuCor," said Guevarra. Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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