Governor Sakur Tan on March 31 issued Proclamation No. 1, declaring a state of emergency in the province and calling on the Philippine National Police “with the assistance of the Armed Forces of the Philippines and the civilian emergency force” to set up checkpoints and chokepoints, impose a curfew; conduct “general search and seizure” including arrests in pursuit of the kidnappers and their supporters; and to conduct “such other actions or police operations as may be necessary to ensure the public’s safety.”
Lawyer Raissa Jajurie, Mindanao coordinator of Saligan-Mindanaw and a core group member of the Bangsamoro Lawyers Network, said representatives of civil society organizations “have talked to the governor about their concerns regarding potential and actual human rights violation in view of the military action and the declaration of a state of emergency.”
Jajurie, in a four-page legal opinion, stressed there is “no legal justification for the conduct of ‘general searches and seizures,’ even in places where there is a declaration of a state of emergency.”
She cited Section 2, Article III of the 1987 Constitution which provides that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure of whatever nature and for any purpose “shall be inviolable” and no search warrant or warrant of arrest can be issued 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.”
“No one is supposed to be constantly fearful that his or her abode, papers, files, and other properties will be subjected to unreasonable searches and seizures. This means that there can only be searches and seizures when these are reasonable. There is reasonableness when the search is made with a warrant, which is issued only after a judge shall have found that there is ‘probable cause’ to believe that a crime has been committed and that the search proposed to be conducted in the premises would yield to the acquisition of evidence that could be used for the prosecution of the crime— e.g, the weapons used or will be used in the commission of the crime or the fruits thereof. The second part of the constitutional provision also requires that the warrant should be specific in the designation of the place to be searched and the object that is to be seized,” Jajurie said.
Using the above standards, the search should be done “only in a particular place specified in a warrant, and for a specific object in relation to a crime.”
The police and the military cannot go on a “fishing expedition,” she said, “even if it is with the good intention of arresting the suspect to a crime.”
Jajurie noted that while there are lawful warrantless searches, these are exceptions to the general rule and these are: where there is a valid reason to “stop-and-frisk”; where the search (and seizure) is an incident to a lawful arrest; in cases of searches of vessels and aircrafts; In cases of searches of moving vehicles; In inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations; Where the prohibited articles are in plain view; Search and seizure under exigent and emergency circumstances; Warrantless search where the owner or occupant of the premises consented to the search; and Customs search.
“Outside of the above situations, the warantless search is illegal. Consequently, all objects taken from the illegal search are inadmissible in evidence. This defeats the whole purpose of the search, and is therefore counter-productive, and worse, violative of human rights standards,”
Jajurie explained that the same apprehensions and objections in relation to “general searches and seizures” are likewise put forward in relation to “arrests in pursuit of kidnappers and supporters.”
The Constitution only allows for arrests that are made by virtue of a warrant issued after a judge shall have ascertained there is a “probable cause”, i.e., that such facts and circumstances which would lead a reasonably discreet and prudent person to believe that an offense has been committed and that the person to be arrested is the one who probably committed it. The warrant of arrest should also identify with particularity the person to be arrested.
Again, there are exceptions to the general rule that requires warrants for arrest: “when, in his/her presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; When an offense has just been committed and s/he has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed; When the person to be arrested is a prisoner who has escaped from a penal establishment or place where s/he is serving final judgment or is temporarily confined while his/her case is pending, or has escaped while being transferred from one confinement to another.”
But outside of these circumstances, “there cannot be any warrantless arrest” and “even a state of emergency would not justify it,” she said.
“In fact, even when there is martial law, or a suspension of the writ of habeas corpus, the same rule applies. When the writ of habeas corpus is suspended, however, the person arrested without warrant under any of the three above-mentioned exceptions, will have to be charged in court within 3 days, instead of the otherwise maximum number of hours of 36 hours. And even then, the suspension is only for those charged with rebellion or crimes related to invasion, and not terrorism,” the legal opinion stated.
Jajurie also pointed out that under the Human Security Act, which Governor Tan used as basis in issuing Proclamation No. 1, “warrantless arrests may be effected against persons charged or suspected of the crime of terrorism or the crime of conspiracy to commit, provided that they be charged in court within three days from their apprehension.”
But there are additional requirements for this, she said and these are: that the arresting officer has been authorized in writing by the Anti-Terrorism Council to make such arrest, and the arrest is a result of a surveillance conducted under the Human Security Act.
“Note that surveillance is only allowed after a written order is issued by the Court of Appeals, after a formal application is filed therewith by a police or law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council,” she said.
“It is not a blanket authority to arrest any or all suspects, even of terrorism,” she said.
“These strict standards for warrantless searches and seizures are constitutionally protected and cannot be negated by a mere proclamation by a governor,” Jajurie stressed.
“Even the best intentions, such as going after the kidnappers of the ICRC (International Committee of the Red Cross) workers, cannot go against these standards. The rule of law should be made to prevail, even in an extraordinary or emergency situation such as what Sulu faces in the light of the spate of kidnappings in the islands,” she added.
“We do not want to make the situation even more chaotic, by illegally arresting innocent civilians who may not have anything to do with the dastardly act. The rule of law should prevail and the government, having been entrusted with the duty to utilize and strengthen institutions of justice, cannot just abandon this duty. Warrantless arrests and warantless searches are exceptions to the general rule, and should not be made to oppress people whose access to legal assistance and protection from torture and forced confessions are almost nil,” said Jajurie. (MindaNews)