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UPPER RIGHT HAND: Terrorizing the Constitution

DAVAO DE ORO (MindaNews/15 June) — ASSO (Arrest, Search and Seizure Orders), PDA (Preventive Detention Action), PCO (Presidential Commitment Order). These were the dreaded acronyms, among others, during the time of the brutal Marcos dictatorship that led to warrantless arrests of dissenters and administration critics.

On a whim, the military and the elements of the Department of National Defense (DND) or worse, Marcos himself, would order the arrest of anyone suspected of committing crimes relative to rebellion or subversion or other offenses, these ASSO or PDA or PCO may be issued to arrest and detain individuals without any judicial intervention. In General Order No. 62, Marcos allowed the defense secretary and his authorized law enforcement officials to issue arrest, search and seizure orders (ASSO) for various offenses ranging from robbery, arson, murder and kidnapping against any “suspected person” without need of a warrant of arrest.

PDA and PCO were directed at suspected “rebels or dissidents.” PDA, under PD 1877, can last for one year — which means the arrested person will stay detained for maybe a full year. Presidential Commitment Order, under PD 1836, was worse: the detention can last for as long as the president wants the arrested person to stay in jail.

There was NO need for any warrant issued by a competent court. Everything lies on the putative “wisdom” of the president or his authorized representatives as clearly stated in the subject presidential decrees. The targets can be anyone suspected of being a rebel or anyone “who is/are about to commit the crimes of rebellion, subversion, insurrection and the like.”

The end result was that majority of the victims who were picked up, arrested and detained without any warrant at that time remember facing trumped up charges or worse, unclear and unsubstantiated allegations from faceless and nameless “witnesses.”

It is with this backdrop that the framers of the 1987 Constitution did their very best to, at all cost, BAN the issuance of arrest and search/seizure orders by military officials or even the Chief Executive himself. Thus, they painstakingly ensured that there are NO loopholes in the text of Section 2, Article III of the Constitution: “NO search warrant or warrant of arrest shall (be) issue(d) except upon probable cause to be personally determined by the judge xxx.”

To say therefore that the Anti-Terrorism Bill passed by both houses of Congress and awaiting the signature of the President is a “THROWBACK” to the dark days of Martial Law and the Marcos dictatorship would be an overwhelming understatement. To be sure, it has all the vestiges of the Marcos martial law.

It does not help that there are loud whispers both in the press and in the legal community saying that this anti-terror bill was the “pet project” of the military and police generals who had lobbied both Malacanang and Congress even during the time of P-Noy (former President Benigno Aquino III).

Worse, the principal author of the same anti-terror bill is Senator Ping Lacson, himself a former police general and a member of the dreaded METROCOM and MISG during the Marcos regime. Both units of the PC-INP were the scourge of activists, union organizers, peasant leaders and dissenters during Martial Law as narrated by historian Alfred McCoy in his seminal work “Dark Legacy: Human Rights under the Marcos regime.” The senator’s training and experience, therefore during those dark days, make human rights advocates opposing the approval of this anti-terror bill today, just say in frustration: NO wonder.

The safeguards under Section 2 of the Bill of Rights of the 1987 Constitution are under extreme attack from this proposed anti-terror law. If indeed, this bill is the pet project of military generals, then, they just successfully brought us back to the time of ASSO, PDA and PCO. Just look at Section 29 of the proposed law: “Detention Without Judicial Warrant of Arrest” – it says: “any law enforcement agent or military personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person suspected of committing any of the crimes defined and penalized” in the Anti-Terrorism Law can detain the arrested person for an initial period of 14 days extendible for another 10 days without filing any criminal charges against such person in court.

The Anti-Terrorism Council is NOT a court or judicial tribunal. It is composed of Cabinet members who are all appointees of the President and his alter egos, too. How can they ORDER the arrest and detention of suspected individuals without any judicial warrant when that is obviously prohibited under the Constitution? This is exactly a carbon copy of both PCO and PDA.

In Section 1 of PD 1836 dealing with PCOs, “during a state of martial law or when the privilege of the writ of habeas corpus is suspended, the President may issue orders of arrest or commitment orders as to any person whose arrest or detention is, in the judgment of the President, required by public safety and as a means to repel or quell an invasion, insurrection or rebellion, or imminent danger thereof.”

While in PD 1877 which authorized the issuance of PDAs, Paragraphs (a) and (b) of Section 2 thereof allows a military commander or head of any law enforcement agency to “apply to the President for a preventive detention action against persons “ascertained to be participants in the commission” of the crimes of insurrection, rebellion, subversion, conspiracy or proposal to commit such crimes” – in order to ARREST and DETAIN these persons without need of any judicial warrant. Section 3 thereof states: “When issued, the Preventive Detention Action shall constitute authority to arrest the subject person or persons, and to preventively detain him or them for a period not exceeding one year xxx.”

Save for the period of detention, these are basically the fundamental features of the anti-terror law awaiting the President’s signature: NO need for judicial warrants in order to ARREST and DETAIN any suspected person.

In fact, just as PD 1877 allows the warrantless arrest of anyone “who is/are about to commit the crimes of rebellion, subversion, insurrection and the like,” the new anti-terror law, according to Sen. Lacson during the Senate deliberations on the bill, “expands the warrantless arrests allowed under the Rule of Court saying: “Hindi na rin po natin pinapalitan iyong provision sa citizen’s arrest in this case. Kaya lamang, ang in-expand natin ay iyong period. In ordinary crimes, hindi puwede iyong nasa planning stage, hindi naman niya ginawa, hindi naman siya nag-commit ng crime. Pero dahil iyong tinatawag nating inchoate offense, hindi pa nangyari, nasa simula pa lamang, puwede na nating arestuhin because we want to be proactive because this is a new phenomenon.”

In so many words, the avenue for abuse by state agents is so wide considering that state forces can now act like clairvoyants: If they think you are about to commit a crime under the vague definition of terrorism in the new law – then they can ORDER YOUR ARREST sans any warrant of arrest even if you have NOT committed any “acts of execution” as defined under criminal law doctrines. This can lead to an open season for “planting of evidence.”

The principal author of the proposed law even calls it “INCHOATE” crime – defined as something that has NOT happened or a mere expectancy. This is, in fact, what Marcos’s PDA was all about: the warrantless arrest of anyone “who is/are about to commit the crimes of rebellion, subversion, insurrection and the like.”

This clearly militates against the Constitutional requirements of “probable cause” before the issuance of judicial warrants and the singularly important requisite of “personal determination by the judge” whether such probable cause exists. In so many words, the anti-terror bill categorically terrorizes the Constitution, the judiciary and the citizens of this country into submission sans even a whimper of protest. It is as if the Bill of Rights, the judicial system and the supposed “inviolable right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches, seizures and arrests” are virtually NON-EXISTENT or had just been flushed down the toilet.

And, if you can still remember that forgettable Tom Cruise starrer about a dystopian society where the “mere thinking” of a possible crime in your mind can lead to one’s immediate arrest – something they call “PRE-CRIME” – well, that is precisely what Sen. Lacson now calls as INCHOATE CRIME.

Yep, the movie was “MINORITY REPORT.”

But I truly hope the MAJORITY of the Supreme Court justices will strike down this draconian, oppressive and repressive terror bill.

For all our sakes.

[MindaViews is the opinion section of MindaNews.  Upper Right Hand is a revolving column of the Union of People’s Lawyers in Mindanao (UPLM).  Atty. A. Dexter M. Lopoz is the spokesperson of the UPLM-NUPL and has been in litigation practice for almost 20 years. He was a three-term Provincial Board Member of Davao de Oro province and taught at the Ateneo de Davao University College of Law (and later, at St. Thomas More Law School) for four years.]


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