AS THIS is being written, the President has yet to sign the anti-terror bill that was transmitted by Congress three weeks ago.
To recall, it was the President himself who has certified the bill as urgent even as the country is grappling with a raging pandemic.
The bill has stalled, temporarily, and there is a chance that the President will veto certain controversial provisions of the proposed measure.
But the appointed time is nearing. It is possible that the President will affix his signature very soon or will merely let the bill lapse into law. The Constitution provides that the Ppresident must communicate his veto of a bill within 30 days from its receipt, otherwise, it shall become a law as if he had signed it.
Lawyers’ groups have voiced reservations about the bill. For instance, the Integrated Bar of the Philippines (IBP) has objected to Section 29 of the bill insofar as it gives the Anti-Terrorism Council (ATC), which is an agency under the executive branch, the power to issue “written authorizations” to arrest and detain.
The IBP said that the ATC should not have the power to issue warrants of arrest or detention because “this is strictly a judicial function under the 1987 Constitution.” The wording of Section 29 must be corrected “to clearly reflect the true intent of the legislature and to avoid misapplication of the law.”
Former Justice Antonio Carpio has echoed this objection, citing the Bill of Rights which mandates that no warrant of arrest shall issue except “upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.”
Sen. Panfilo Lacson, principal author of the bill, has insisted that the ATC does not have any judicial or quasi-judicial authority to order arrests.
But the heading of Section 29 is clear and can leave no room for dodgy interpretation. It says, “detention without judicial warrant of arrest.” It provides immunity to a law enforcement agent who detains a person for a total of 24 days without having filed a case in court provided he or she has been “duly authorized in writing by the ATC.”
That written authorization is in effect a warrant of arrest that does not emanate from a judge but from a body within the executive department.
Section 29 is therefore repugnant to the Constitution. The determination of probable cause as an antecedent to the issuance of a warrant of arrest is a function reserved solely to a judge sitting in a court of law. This power is derived directly from the Constitution and may not be diluted by Congress through ordinary legislation such as the proposed anti-terror law.
In 1987, right after the new Constitution was ratified, the Supreme Court issued Circular No. 12 noting the insertion of the word “personally” for the judge’s determination of the existence of probable cause. According to the circular, this underscores the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. He may not delegate this task of investigation to any other person. He must do it personally.
The framers of the Constitution were not being arbitrary when they adopted this provision in the Bill of Rights. The judge must first determine probable cause because everyone has the right to be protected against false charges and the trouble and anxiety of facing them in a public trial.
Former Chief Justice Reynato Puno, in one of his opinions, has remarked that the strains of a criminal accusation and the stresses of litigation should not be suffered by the clearly innocent. The filing of unfounded charges exposes the innocent to severe distress especially when the crime is not bailable.
According to Puno, even an acquittal of the innocent will not fully bleach the dark and deep stains left by a baseless accusation. Reputation once tarnished remains tarnished for a long length of time. The expense to establish innocence will be punishing to the poor and the powerless.
Only the cold neutrality of an impartial judge can balance the scales of justice between operatives who have with them a plethora of state power and ordinary citizens who can only rely on the bundle of rights accorded them by the Constitution.
During these perilous times, it is better to take the side of caution and pass a carefully crafted law than rush to judgment at the expense of fundamental liberties./PN
