Wednesday, March 28, 2007

Notes on the Anti-Terrorism Law (Part 5)

IX. We come now to the second authorized legal intrusion into private rights under the Anti-Terrorism Law, the detention of suspected terrorists.

The Anti-Terrorism Law authorizes the warrantless arrest of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism under the following circumstances:

1. There is an authority in writing from the Anti-Terrorism Council
2. The subject of the arrest is a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism
3. The arrest results from the surveillance authorized under Section 7 (discussed in an earlier post) and examination of bank deposits under Section 27 (to be discussed later)

Section 18 of the law gives the law enforcement personnel who arrested the suspected terrorist a period of three (3) days counted from the moment of arrest to submit the arrested terrorist to the proper judicial authority.

The general rule on warrantless arrests of person is provided in Section 5 Rule 113 of the Revised rules of Criminal Prcedure, which states as follows:

Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Obviously, the provision under the Anti-Terrorism Law for the warrantless arrest a suspected terrorist appears to be a new exception to the rule on warrantless arrests under the Rules on Criminal Procedure. The problem here is that with this provision, Congress appears to be legislating on the matter of criminal procedure in the protection and enforcement of a constitutional right. Under Section 5 Article VIII of the Constitution, the Supreme Court has the jurisdiction to "promulgate rules concerning the protection and enforcement of constitutional rights" Thus, the issue is, Congress may have legislated on a matter which is the exclusive province of the Supreme Court.

Fr. Joaquin Bernas, S.J., in his commentaries on the Constitution, says the power of Congress to legislate on rules of procedure was recognized by the Constitutional Commission, but after the debates on the issue and as a matter of compromise, the Constitutional Commission did not make this power explicit in the text of the 1987 Constitution. This opinion, however, has not yet been supported by jurisprudence.

Thus, this provision of the Anti-Terrorism Law on the warrantless arrest of a suspected terrorist may be challenged as an unwelcome encroachment on the powers of the Supreme Court under Article VIII Section 5 of the 1987 Constitution.

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