INCOMUNICADO DETENTION OF LAWYER CAPT. RIVAS: A VIOLATION OF THE CONSTITUTION

CODAL expresses concern over the incommunicado detention of Capt. Candelaria Rivas currently the subject of a Habeas Corpus Petition filed by her mother, especially since no charges have been filed against her more than a week after her supposed arrest. Capt. Rivas, who had been opposing counsel to some individual CODAL lawyers in human rights cases filed against the military, was transferred to a solitary detention center in Camp Aguinaldo last week. Such form of detention is considered torture under the Bill of Rights, specifically Sec. 12, Art. III of the 1987 Constitution which provides that a detainee has the right to counsel and:

Sec. 12 (2) No torture, force, violence, threat, intimidation or any other means which vitiate free will shall be used against him. Secret detention places, solitary, incommunicado or other similar forms of detention are prohibited.

Solitary confinement also violates Rule 113, Sec. 14 of the Rules on Criminal Procedure which grants the “right of attorney or relative to visit the person arrested”.

The pronouncements of Capt. Rivas against the habeas corpus petition claiming that she is well treated by her captors may have been given under duress considering that she goes back to solitary confinement after the hearing. It is legally inconceivable why anyone, especially a lawyer, would consider confinement without access to lawyers and family a ‘good’ treatment. Under the rules on evidence, the pronouncements of Capt. Rivas supporting her captors or any admission given without counsel, are not given any substantial weight.

Military rules cannot trump the Constitution particularly since Capt. Rivas is not only a member of the AFP but also a member of the BAR. She is also entitled to her rights under the Constitution just like any civilian citizen. The AFP can file the necessary charges against her if they believe that laws were violated, otherwise they should immediately release her.

Being found in the company of an escapee, however, is not a crime under Philippine criminal law, especially if Capt. Rivas met with Capt. Nicanor Faeldon in the exercise of her legal profession. As a general rule, lawyers are duty bound to meet with anyone, even escapees, who merely ask for their legal advice or services.

CODAL supports the decision of RTC Judge Lita Genilo to give due course to the habeas corpus petition by ordering the AFP to explain the detention of Capt. Rivas. We hope the court will grant Capt. Rivas and her mother their rights under the Constitution and order her release if her detention is found to have no legal basis.

We also urge the prosecution of AFP officers, such as Gen. Jovenal Narcise, responsible for her detention should the court find her arrest illegal and her detention arbitrary. Under Art. 125 of the Revised Penal Code such officers may suffer the penalty of prision correccional for failure to deliver a detained person to the judicial authorities within 12 hours, 18 hours or 36 hours from arrest depending on the gravity of the offense charged.

Allowing the military to detain people on the basis of the detainee’s ‘voluntary’ acquiescence to their detention is a revival of the practice during martial law where detainees are made to sign a ‘waiver’ to legalize their detention. This would give the military the go signal to arrest people and “convince” them to support their detention to legalize their imprisonment. It would also completely destroy the time honored 12-18-36 hour rule for arbitrary detention

CODAL’s position is not so much on the merits of the habeas corpus on Capt. Rivas, but on its implications on the practice of law and the exercise of civil rights. It is a position against impunity, violation of rights and a return to martial rule.

Reference : Atty. Neri Javier Colmenares—Spokesperson
Date : 8 February 2006