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Anti-terrorism law: A double whammy

The new anti-terrorism law (ATL) that awaits the President’s signature strikes a double whammy on the “inviolable” fundamental constitutional right of the people “to be secure in their persons xxx against unreasonable xxx seizures of whatever nature and for any purpose.” As vigilance is the price of freedom, all those who value freedom must exercise vigilance against this new law.

First, to guard against unreasonable seizures or arrests, Section 2, Article III of the 1987 Constitution mandates that only a judge can issue warrants of arrest. This provision prescribes that “no xxx 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.”

The 1973 Constitution authorized executive officials to issue warrants of arrest, and the result was the dreaded ASSOs (arrest, search, and seizure orders) of the martial law era. The framers of the 1987 Constitution vowed never again, and banned the issuance of warrants of arrest by executive officials, reinstating the requirement under the 1935 Constitution that only a judge can issue warrants of arrest.

Second, to further guard against unreasonable seizures or arrests, the 1987 Constitution commands that warrants of arrest can be issued only upon “probable cause.” Probable cause means the judge has reasonable grounds to believe, based on the affidavits of the complainant and his witnesses, that a crime has been committed and the person to be arrested probably committed the crime. In short, if the judge believes that no crime has been committed, he cannot and should not issue a warrant of arrest.

Section 29 of the ATL violates these two constitutional guarantees against unreasonable arrests. Section 29, on “Detention Without Judicial Warrant of Arrest,” provides that “any law enforcement agent or military personnel, who, having been duly authorized in writing by the ATC has taken custody of a person suspected of committing any of the acts defined and penalized” in the ATL, can detain the arrested person for a total of 24 days without filing a criminal case in court.

The ATC is the Anti-Terrorism Council, composed of eight Cabinet members—all alter egos of the President—and the executive director of the Anti-Money Laundering Council. Section 29 empowers the ATC to authorize the arrest of suspects. This is a glaring, in-your-face violation of Section 2, Article III of the Constitution allowing only judges to issue warrants of arrest. Section 29 has resurrected the ASSOs of the martial law era.

During the Senate deliberations on the ATL, Sen. Panfilo Lacson, the principal author of the law, stated that Section 29 expands the warrantless arrests allowed under the Rules of Court. Senator Lacson explained:

“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 short, under Section 29 the ATC is authorized to order the arrest of any person even if he or she has not committed any crime of terrorism. In the exact words of the principal author of the law, even if “hindi naman siya nag-commit ng crime xxx hindi pa nangyari xxx puede na nating arestuhin.” The justification, according to Senator Lacson, is “we want to be proactive.”

Under the Constitution, the only person authorized to issue a warrant of arrest is a judge, and he must have “probable cause” to believe that a crime has been committed. Under the ATL, executive officials under the control of the President can order the arrest of any person even if they know full well that no crime of terrorism has been committed, that is, even without “probable cause.” This is truly mind-boggling.

There is a kicker after this double whammy. Section 29 also violates the Supreme Court’s Rule 113 on warrantless arrests requiring actual commission of a crime, and which the Court issued pursuant to its constitutional duty and power “to promulgate rules concerning the protection and enforcement of constitutional rights.”

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