Anti-Terrorism Bill Arrogates Judicial Power to the ATC

Even as the Philippines and the rest of the world are still dealing with the scourge of the coronavirus pandemic, apparently the Duterte Administration has its priority elsewhere: swift passage of an anti-terrorism law.

House Bill No.  6875 or the Anti-Terrorism Bill, which has sparked protests from several groups for its controversial provisions, is now on the desk of President Duterte awaiting his signature to become law. Given Duterte’s certification of the bill as urgent it is just a matter of time for this to happen. 

One of the most objectionable provisions of the Bill is Section 29, which authorizes the arrest and detention of a person suspected of terrorism without a warrant of arrest being issued by a judge or a court of law. Section 29 empowers law enforcement agents and the military to arrest a suspected person by a mere “written authorization” from the Anti-Terrorism Council (ATC), an administrative body created under the Bill.

This is an unconstitutional grant of judicial power to the ATC. The “written authorization” is in effect a substitute for a warrant of arrest. Under Article 3, Section 2 of the Constitution only a judge can issue a warrant of arrest by commanding that “no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge.” This undersocres the personal and exclusive authority of the judge to issue warrants of arrest.

Just a little over five months after the ratification of the present Constitution, the Supreme Court in Ponsica v. Ignalaga, a case which deals with the powers of mayors to conduct preliminary investigations and issue warrants of arrest under the old Local Government Code, declared in no uncertain terms that only a judge can issue a warrant of arrest. 

The landmark case of Salazar v. Achacoso involved a similar question. This one, however, concerned the power of the Secretary of Labor to issue warrants of arrest under the Labor Code. In invalidating a provision of the Labor Code which empowers the Secretary of Labor to issue warrants of arrest, the Supreme Court ruled that “the Secretary of Labor, not being a judge, may no longer issue search or arrest warrants.” It emphasized that under the Constitution the power to issue warrants of arrest is the “sole domain of the courts.” 

Since the ATC cannot legally issue warrants of arrest in the guise of written authorizations, any arrest made pursuant thereto would be in the nature of a warrantless arrest. To be valid the warrantless arrest must fall under one of the following instances: (1) arrest in flagrante delicto or when the person to be arrested has commited, is committing or is attempting to commit a crime in the presence of the arresting officer; (2) a crime has just been committed and the arresting officer has personal knowledge of facts and circumstances that the person to be arrested has committed it; or (3) arrest of a prisoner who has escaped from custody while serving sentence or temporarily confined during the pendency of his case or while being transferred from one confinement to another.

If none of the above instances is present the warrantless arrest is illegal. Section 29 of the Bill, however, seeks to do away with these safeguards by allowing the arrest of anyone on mere written authorization from the ATC which, as already discussed, cannot exercise the power to issue warrants of arrest.

The importance of making the issuance of warrants of arrest under the exclusive domain of the courts is to ensure that individual liberties are protected. While it is true that a judge does not guaranty impartiality, he or she is nevertheless bound to observe independence and impartiality which is not the case with public officials who serve at the pleasure of the president and can be motivated by political or personal motives in making decisions.

Besides, there are procedural safeguards before a judge can issue warrants of arrest. For one the authorities must first prove the existence of probable cause which would enable an accused person to secure the services of counsel who can challenge such probable cause.

To be sure we are against terrorism and should fight and eradicate it to the fullest. But in doing so we must not sacrifice our cherished constitutional rights, for once these rights are trampled upon abuses and authoritarianism will be as much dangers as terrorism.

Jun Bautista is an attorney who has practiced law for seven years before moving to the U.S. with his family. During his stint as a trial lawyer, Atty. Bautista also hosted the talk show “Straight Views” on local cable TV in Pampanga which tackled burning legal and political issues, both local and national. He is currently based in Los Angeles as the only registered Foreign Legal Consultant on Philippine law in the State of California.