When a vlogger gripped a tarsier in his hand, and said, “Smile, baby, smile,” the wrongdoing was apparent. “Tarsiers are nocturnal animals and should not be disturbed in their sleep,” environmental lawyer Esther Getrude told our reporter John Sitchon. 

Viewers were angry at the vlogger from Polomolok, South Cotabato. Arrest him; jail him, they said. And it wasn’t lost on our staff that this sentiment would make for a strong headline and angle. But I appealed against it. 

Hello, I’m Lian Buan, Rappler’s longtime justice reporter who is now the minder of our justice and human rights cluster. While the mishandling of the tarsier was an environmental story, our Desk heard me out because the human rights violation that the online mob was encouraging was apparent. “We are amplifying the mob mentality for warrantless arrests” with the original headline, I said. 

So we went for the angle that the Department of Environment and Natural Resources in Soccsksargen was investigating the matter. Our managing editor said that even if netizens’ reaction to an issue is part of the story, we don’t necessarily let it dictate the headline or the angle of the story. 

Why would it be wrong to amplify netizens’ call for such arrest? Because only a judge can order the arrest of a person (except in the legislature’s use of their contempt powers, and, even then, that power is limited).

Warrantless arrests can be done, but only if one was caught in the act of committing a crime, or there is probable cause to believe the person has just committed the crime. These limits were set by the Bill of Rights to avoid abuse by law enforcers. 

Let us not forget that not so long ago, thousands of Filipinos were arrested without warrants for improperly wearing face masks. Authorities said these people were caught in the act of violating Republic Act 11332 or the Law on Reporting Communicable Diseases, which the Department of Justice (DOJ) later conceded was the wrong law.

During the lockdown, a homeless woman was arrested without a warrant for ”shouting” at authorities who reminded her of curfew hours. Police said she was caught violating Article 151 of the Revised Penal Code, which prohibits disobedience to authority. It is human nature to question an apprehension, especially if you have nowhere to go during curfew. What’s to stop police from interpreting any resistance as disobedience? That’s giving them wide latitude. 

When Senator Koko Pimentel went to the hospital to visit his wife despite being a COVID-19 suspect, people were understandably upset. One friend asked me, when will Pimentel be arrested? I said: Not at this point since a complaint should first be filed, a prosecutor should hear it, and a judge should order his arrest if there’s basis for that – that‘s how the rule of law goes. The friend retorted: But that is double standard.

It is. But if we want to apply the law fairly to people we like, we should be ready to apply it fairly even to people we do not like.

Warrantless arrest sometimes operates on the principle of continuing crime. But it’s a principle for grave crimes like terrorism. If a terrorist bombs a place today, he continues to be a terrorist tomorrow, or the next week when he is spotted roaming the streets of Manila. 

In July 2019, the DOJ threatened to arrest without a warrant agents of the Kapa-Community Ministry International if they continued to solicit. Asked for the basis of such a threat, the DOJ pointed to a pending complaint for violations of the securities code, and that if agents continued to solicit, the crime also continued. 

I asked: Can libel be a continuing offense? Can journalists accused of libel be arrested without a warrant? Don’t be OA, Lian, I can almost hear the room thinking.

But I was not overreacting. The previous Duterte government has a history of stretching the law. Two months before that Kapa warning, the National Bureau of Investigation arrested without a warrant a webmaster who allegedly uploaded the “Ang Totoong Narcolist” videos. The initial offense cited was cyber libel. They said the crime was continuing because the videos were still up. 

In the case of the child who mimicked flagellation in Pampanga, we can have a debate if what happened was a case of bad parenting or a mere practice of tradition. But that debate is precisely why a complaint has to be filed first, then settled by a judge. Yet, local police arrested the parents without a warrant, and detained them at the station for days. Article 125 requires that people arrested without a warrant shall be brought to court within 36 hours maximum, or they must be released. 

Careless vloggers infuriate me, too. But abuse of power infuriates me more. We should instead demand authorities to do their jobs – that is, to write and file a complaint on the day the offense happened. 

Warrantless arrests are there for good reason: for security, for peace and order. Not for virality. Not for the mob. Hindi lang para may masampolan. Journalists should take note of this. We’ve seen where the vigilante mentality brought us. – Rappler.com