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Province of Sulu - Proclamation No.1 - BLNlegal Opinion
Province of Sulu - Proclamation No.1 - BLNlegal Opinion
Province of Sulu - Proclamation No.1 - BLNlegal Opinion
1, Series of 20091
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.
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. A “fishing
expedition” cannot be done, even if it is with the good intention of arresting the
suspect to a crime. Otherwise, everyone can be forced to open his/ her house to
every police officer or military for each and every crime that happens in the
community.
While there are lawful warrantless searches, these are exceptions to the
general rule laid down above. The exceptional circumstances are:
The complete action point on the conduct of “General Search and Seizure” in
Proclamation 1 goes on to this: “including arrests in the pursuit of kidnappers and
their supporters”.
Again, there are exceptions to the general rule that requires warrants for
arrests. In the following circumstances, a police officer can make an arrest
without warrant:
Aside from the above instances, there cannot be any warrantless arrest. Even a
state of emergency would not justify it. 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.
Under the Human Security Act, which Proclamation No. 1 cites as a legal
basis, 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 3 days from their apprehension. There are, however,
additional requirements for this: (1) that the arresting officer has been authorized
in writing by the Anti-Terrorism Council to make such arrest, and (2) the arrest is
a result of a surveillance conducted under the Human Security Act.3 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.4
In short, even if the Human Security Act does lengthen the period within
which those arrested without warrant are supposed to be charged in court, it does
not add any exceptional circumstances where warrantless arrests can be lawfully
made. Further, there are procedural requirements under said law which must be
complied with before a warrantless arrest will be allowed. It is not a blanket
authority to arrest any or all suspects, even of terrorism.
3
Section 18 of RA 9372 or the Human Security Act
4
Sections 8 and 9, ibid.
These strict standards for warrantless searches and seizures are constitutionally
protected and cannot be negated by a mere proclamation by a governor. As
mentioned earlier, even the best intentions, such as going after the kidnappers of the
ICRC 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. However, 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.