A second look at the terror law’s section allowing prolonged detention sans warrant 

In their separate opinions, three justices voted against the constitutionality of Section 29, which allows the detention of a suspected terrorist even without judicial warrant of arrest. It also allows a longer period of detention from 14 up to 24 days without charges or warrant of arrest.


MANILA – On Feb. 15, the Supreme Court released its full decision on the controversial Anti-Terrorism Act of 2020 including the separate opinion of the justices.

The court has partially granted the 35 petitions against the Anti-Terror Act while two were dismissed.

As a whole, the high court ruled that the ATA is not unconstitutional except for some parts such as:

1) the phrase in the proviso of Section 4 which states “which are not intended to cause death or serious physical harm to a person, to endanger the person’s life, or to create serious risk to public safety;

2) the second mode of designation found in paragraph 2 of Section 25;

3) as a necessary consequence, the corresponding reference/provisions in the Implementing Rules and Regulations (IRR) of the ATA relative to the foregoing items.

In their separate opinions, three justices voted against the constitutionality of Section 29, which allows the detention of a suspected terrorist even without judicial warrant of arrest. It also allows a longer period of detention from 14 up to 24 days without charges or warrant of arrest.

During the oral arguments, the petitioners questioned this provision particularly the longer detention period, which goes against the three-day period stated in the Philippine Constitution.

But according to the high court, Section 29 is not unconstitutional.

Justices Japar B. Dimaampao, Alfredo Benjamin S. Caguioa and Samuel Gaerlan however disagreed, and voted to declare Section 29 unconstitutional.

Justice Jhosep Y. Lopez voted that Section 29 is unconstitutional only with respect to the extended detention without warrant while Justice Marvic Leonen voted that Section 29 is unconstitutional only in relation to Sections 5 and 8 of the ATA.

On longer detention period

The petitioners argued that Section 29 of the ATA is unconstitutional because Article 125 of the Revised Penal Code said that the allowable period of detention is 12 to 36 hours, depending on the offense being committed.

Read: Petitioners raise longer detention without charges under terror law

But according to the decision, “the constitution is silent as to the exact maximum number of hours that an arresting officer can detain an individual before he is compelled by law to deliver him to the courts.”

The ponencia also said that the three-day period as stated in Section 18, Article VII of the Constitution is “irrelevant to terrorism because it is applicable only in cases of invasion or rebellion when the public safety requires it.”

But Caguioa, in his separate opinion, agrees with the petitioners.

He said, “To say that Section 18 Article VII is not applicable to acts of terrorism would mean that, in the face of a terrorist attack, the President is rendered inutile because he cannot invoke any of his commander-in-chief powers.”

Caguioa said that Section 18 Article VII “refers to the graduated powers of the president in commander-in-chief. From the most to the least benign, there are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law.” He said that it also curtails the powers of the president.

He added that Section 18 Article VII also is a product of the country’s experience during martial law under the late dictator Ferdinand Marcos.

“The manipulations and abuses that the Filipino people went through during those dark years resulted in a commander-in-chief provision that essentially limited the exercise of powers that are generally accepted to be inherent powers of the president as head of the executive department,” Caguioa said.

Caguioa also said that the rationale behind the longer detention period does not hold water.

“It is incomprehensible why it would take longer evidence and build a case against a suspected terrorist in this day and age and under ordinary circumstances without any ongoing armed rebellion or invasion contemplating actual hostilities. On the one hand, the three-day period is a fixed limit set by no less than the 1987 Constitution,” he said.

Caguioa said that “if law enforcement agencies bemoan that three days is not enough to build a case against a suspected terrorist, then the solution is to strengthen the institutional capacities of these agencies in order to meet the three-day period – not to encroach on constitutionally-protected rights and freedoms of the citizenry.”

“It does not bode well for a democracy to shift the burden of responsibility from the government to the people at the expense of sacrificing civil liberties in order to make up for government inadequacies,” he added.

Caguioa stressed that the threshold of three days was put in place to prevent a repeat of the atrocities of martial law. “This is in recognition of the fact that certain situations, such as custodial investigations, or as couched in the ATA, custodial detentions, are the perfect set-up for abusive and cruel behavior,” he said.

He added that while the ATA prohibits torture and other cruel, inhumane and degrading treatment during investigation or interrogation, “this again would be merely paying lip service if the arresting officers are given the latitude to commit the said acts in the first place.”

“Our Constitution reflects our values and history as a people. Because of the scar left by our dark years under the martial law of Ferdinand E. Marcos, the Constitution was crafted to allow only a maximum of three days of detention even under the most dire of circumstances i.e., ‘open war.’ And it defies logic that such a period of detention can become longer for a situation that is less than ‘open war’,” Caguioa said.

On violation of separation of powers

Caguioa also agrees with the petitioners that Section 29 violates the principle of separation of powers and it directly violates Article III Section 2 of the 1987 Constitution, which provides that “only judges, and no one else, may validly issue warrants of arrest and search.”

In the ATA, the Anti-Terrorism Council (ATC) composed of the Cabinet members are empowered to issue a written authorization which will serve as the basis of law enforcement to take into custody a suspected terrorist.

Read: Anti-Terror Council’s ‘undue delegation of power’ questioned

The members of the Anti-Terrorism Council and their track record https://www.bulatlat.com/2021/04/02/the-members-of-the-anti-terrorism-council-and-their-track-record/

Dimaampao said that Section 29 of the ATA utterly failed to provide the standards and restrictions for the issuance of a written authority to detain a person suspected of committing offenses under any of the punishable offenses stated in Sections 4-12 of the same statute for the initial 14-day period.

“On its face, Section 29 merely inaugurates a ministerial duty upon the ATC to issue a written authority for detention based exclusively on the account of the law enforcement officer or military personnel that the detainee is suspected of committing terrorist acts,” he said.

He also said that Section 29 is tainted with the ambiguity, citing that the Office of the Solicitor General in itself “appears at a loss as to how a detainee may judiciously question his detention under this provision.”

“This is a clear derogation of the constitutional mandate to protect each person’s right against arbitrary detention and right to due process as enshrined in the Bill of Rights because the detainee is effectively deprived of any meaningful opportunity to be heard,” Dimaampao said.

He stressed that a detainee has the right to question the legality of their arrest before the ATC or even the court during the prolonged detention.

“Likewise, in the event of unlawful arrest or detention, the detainee has the right to compensation which shall be enforceable upon action filed with judicial authority. As presently worded, Section 29 is found wanting such invaluable safeguards,” he said.

He also added that Section 29 also violates the universal right against arbitrary detention under Article 9 of the International Covenant on Civil and Political Rights (ICCPR).

Meanwhile, Leonen also said “the carte blache provided under Section 29 becomes even more concerning since Sections 5 and 8 respectively punish a mere threat to commit terrorism and proposal to commit terrorist acts.”

He added, “The ATC possesses unilateral authority to interpret what constitutes dangerous speech. It may also authorize the immediate or prolonged detention of a citizen, or both. A person suspected of threatening or proposing to commit terrorism under Sections 5 and 8 may be detained based merely on an overzealous interpretation of a law enforcer.” (RVO) (https://www.bulatlat.com)

Related stories:
A look back on the Terror Law and why Filipinos oppose it
The terror inside the Anti-Terror Law
Bulatlat special coverage: The Anti-Terror Act of 2020

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