Thursday, March 09, 2006

PNP and DOJ INSISTENCE ON WARRANTLESS ARREST: PROOF THAT PROCLAMATION 1017 HAS NOT BEEN LIFTED

Statement of March 9, 2006

CODAL views with concern the persistence of the PNP in conducting warrantless arrest disguised as ‘invitation’ despite the supposed ‘lifting’ of Proclamation 1017. The warrantless arrest of rallyists celebrating women’s day was illegal considering that the rally has a permit by operation of law and therefore no ‘crime’ was being committed at the time of the violent dispersal of said rallies. Sec. Raul Gonzales’ insistence on conducting warrantless arrest against members of the House of Representatives shows that PP 1017 remains in effect despite government pretensions to its lifting.

Regular judicial proceedings over warrantless arrest

Since Sec. Gonzales claims to have strong evidence against the Batasan Five party list members, he should immediately resort to the regular judicial procedure of filing an information and asking a judge to issue a warrant of arrest. His attempt to conduct an inquest over the Batasan Five, rather than make them undergo regular preliminary investigation, is another example of his gross ignorance of the law, since inquest is only applied to those arrested without warrant. The Batasan Five have not been arrested nor are they under detention, making inquest inapplicable to their case as provided under Sec. 7, Rule 112 of the Revised Rules on Criminal Procedure:

Sec. 7. When a person is lawfully arrested without a warrant involving an offense which requires preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation, provided, an inquest has been conducted in accordance with existing rules. …

Preliminary Investigation under Rule 112, Sec 1 of the Revised Rules on Criminal Procedure is the applicable provision, to wit:

Sec. 1 Preliminary Investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

Due process dictates that the DOJ must first find out if the Batasan 5 is ‘probably guilty’ of a crime before filing an information and requesting for an arrest warrant. The requirement for probable cause is a regular procedure under the law and disregarding it merely because the accused are critics of Pres. Arroyo is not only unjust but opens Sec. Gonzales to possible violation of the Anti-Graft Law for actions that show ‘bias or preference’ in the performance of his duty and ‘causing injury’ to a third party, both of which merit 6 years imprisonment.

Sec. Gonzales confusing position is contradicted even by his DOJ staff who set the preliminary investigation of the complaints against the Batasan Five on 13 March 2006. He has, however, virtually prejudged the result of the investigation by insisting on arresting the five without warrant, an admission that he has already found “probable cause” on their cases despite the absence of a preliminary investigation.

The PNP assertion that the Batasan Five is under arrest via the protective custody agreement with the House and therefore going out of the Batasan is considered ‘escaping’, is again without legal basis. Resolution 1169 of the House expressly stated that the protective custody granted the five are to protect them from ‘warrantless arrest’. The PNP and DOJ position defies logic. How protection from arrest becomes arrest and detention itself? What agreement is the PNP referring to in the first place?

Fake Lifting

The constitutional infirmity of Proclamation 1017 is that it gives additional powers to the President, without congressional concurrence as required by the Constitution, either in Art. XII, Sec. 17 or Art. VI, Sec. 23. A unilateral emergency proclamation does not grant the President the power to raid media outfits, threaten media and impinge on press freedom. It does not grant her the power to cancel rally permits, as this power is reserved to local executives under the law. Nor does it authorize her to order warrantless arrest. The fact that these powers are still exercised by Pres. Arroyo shows that the lifting of emergency rule was a ‘fake lifting’ akin to the lifting of martial law in 1983.

CODAL urges the Supreme Court not to consider the issue moot, and settle the lingering legal and constitutional issues, namely:

(i) Does an emergency proclamation empower the President to raid media establishments without warrant? issue chilling effect statements and impose prior restraint through threats and regulations?
(ii) Does it grant the President the power to cancel all rally permits and violently disperse rallies, including those that have permits ?
(iii) Does it grant the President the power to conduct warrantless arrest?

The Supreme Court must expressly rule on these issues, otherwise, this so called ‘emergency power’ will be used and abused by future presidents in order to suppress dissent or silence legitimate protests, a clear attack on civil liberties.

CODAL also asks all lawyers to take part in battling impunity by helping the victims file the necessary criminal and administrative charges against police officers and other public officials who violate the law in implementing emergency rule. CODAL also asks Pres. Arroyo to fire Sec. Gonzales whose voluble preemption of DOJ processes and decisions, obnoxious manner of conducting himself and gross ignorance of the law makes his term the worst ever by a Justice Secretary.


Reference: Atty. Neri Javier Colmenares—Spokesperson

4 Comments:

Blogger domingo said...

Gloria's PP 1017 (now lifted) and "warrantless arrests" remind me of the Senate and the fall guy named Norberto Gonzalez.

--An Executive Officer over whom the President "shall have control of" or the "Executive Power" (mistakenly referred to simply as "Executive Privilege") of "Control"--including of "Command" as "Commander-in-Chief" of military--as in EO 464
--Ordered arrested, tried, convicted, and punished by the Senate, the institution authorized merely to inquire "in aid of legislation" (inflated to mean "investigate" to justify the authority to cite in contempt, but not to arrest and detain), but actually acting as (or usurping the duties of) the constitutional "investigator," called the Ombudsman, and, simultaneously, as the Court, exercising in the process "concentrated power"
--Publicly maligned, insulted, humiliated and subjected to "pitiless publicity and exposure," in glaring violation of the caveat to Congress that "The rights of persons appearing in or affected by such inquiries shall be respected"
--Arrested "warrantless" by persons not authorized to arrest and detain
--Being under "Protective Custody" of the Executive (as an Executive Officer) was NOT an option made available to him, although available to members of the Legislative (Congressmen) similarly situated
--Detained indefinitely (for well over a month, or over 720 hours)
--Sneered at for seeking medical attention for a serious ailment that incarceration without charges naturally magnifies
--Accusation proved his guilt, and his denial or refusal doubled it
--Deprived of his liberty without the benefit, the safeguards of due process of law, section 1 of the Bill of Rights expressly guarantees
--Punished and attainted before he is guilty for fear that he should be guilty
--Willingly accepted and absorbed the punishment the Senate meted out to him (without the usual theatrics and showmanship outbursts)
--Has not been charged nor convicted in Court for the punishment of an offense he has already served
--A Filipino citizen, nonetheless, entitled (presumably) to the protection of the Republic

These acts perpetrated are dangerously close to the dreaded Bill of Attainder, generally defined as "A legislative act that singles out an individual or group for punishment without trial."

The Senate resolution ordering the arrest and detention of Gonzalez was, of course, not a "Bill" or an "Act."

But if Congress, both Houses jointly, is forbidden to pass a Bill of Attainder; the question by inescapable logic, is: Can either House of Congress do what the whole Congress is forbidden to do?

The Court should address this glaring anomaly, since the evil sought to be avoided is the "attainder" to be inflicted on a hapless victim--not upon the form of its issuance, be it by way of a "bill" or by whatever means concocted.

During this litany of horrors the Senate inflicted openly upon a "named" citizen of the Republic, the avowed champions of freedom and democracy, among many in the media and the opposition, simply looked the other way, eerily silent—-Gonzalez was their perceived "enemy"--condoning instead the humiliation, the deprivation the fall guy Gonzalez endured.

Clearly, it's not just the Executive, after all, that's "unrestrained by the rule of law," but the Legislative as well; so, why make a fuss over the "warrantless," the "arbitrary," the "dictatorial" repercussions under Gloria's PP 1017--only now?

Should advocacy of a cause be selective?

While PP 1017 has been lifted, an omnipotent Congress continues to retain and exercise the assumed authority to order a "warrantless" arrest and the indefinite arbitrary detention of Filipino citizens (even including foreign officials of a bank) under the guise of--"in aid of legislation."

If one House of Congress can escape a constitutional ban by merely straining taut the authority to inquire "in aid of legislation" above the prohibition on bills of attainder, there is no limit to what one House of Congress, or jointly, can do under that assumed authority.

"He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself." --Thomas Paine

Note:
Quoting below is the U.S. Supreme Court decision in WATKINS v. UNITED STATES, 354 U.S. 178 (1957) regarding "congressional attainder."

"MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

"Since World War II, the Congress has practically abandoned its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House. The sanction there imposed is imprisonment by the House until the recalcitrant witness agrees to testify or disclose the matters sought, provided that the incarceration does [354 U.S. 178, 207] not extend beyond adjournment. The Congress has instead invoked the aid of the federal judicial system in protecting itself against contumacious conduct. It has become customary to refer these matters to the United States Attorneys for prosecution under criminal law.

"The appropriate statute is found in 2 U.S.C. 192. It provides:

"'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months." 45 [354 U.S. 178, 208]'

"In fulfillment of their obligation under this statute, the courts must accord to the defendants every right which is guaranteed to defendants in all other criminal cases..."

Our own Congress should adopt this wise solution.

9:57 PM  
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