Malacañang’s guideline on the state of national emergency that allows a warrantless arrest when the person concerned has voluntarily waived his right against such an arrest has drawn concern that it might be abused or cause confusion.
Under the rules of criminal procedure, warrantless arrests are allowed in three instances even without a national emergency, and the Palace listed these same provisions in its guidelines for the implementation of Proclamation No. 55 declaring a state of national emergency on account of lawless violence in Mindanao.
But a fourth one was added, which is “when the person arrested, or to be arrested, has voluntarily waived his right against warrantless arrest.”
Bayan Muna Rep. Carlos Zarate, a lawyer, said Malacañang should clarify this provision and that he had reservations about this as it might be used to coerce people to allow authorities to take them in even without a proper warrant.
According to Zarate, police could invite people to the police station, then arrest them later and claim that their acceptance of the invitation constituted their consent to the warrantless arrest.
“It might be used for justification in instances where persons are invited by police and subsequently face complaints, even without a warrant,” Zarate said in a phone interview.
In reality, many people find it hard to refuse police invitations, he said.
Interpretations
Zarate said lawyers and law enforcement agencies may have different interpretations of Malacañang’s fourth provision allowing arrests without warrants, which is why it would be better for the Duterte administration to clarify what it means.
Under the rules of court, arrests without warrant are valid under three conditions:
The person to be arrested has committed, is actually committing, or is attempting to commit an offense in the presence of the arresting officer.
When an offense has just been committed and the arresting officer has personal knowledge of facts indicating that the person to be arrested has committed the offense.
When the person to be arrested is a prisoner, who has escaped from a penal establishment or the place where he is serving his final judgment to temporarily be confined while his case is pending.
Nothing wrong
Senate President Pro-Tempore Franklin Drilon finds nothing new with the conditions for warrantless arrest set forth in Proclamation No. 55.
“For me, that’s right because the first three are in the rules of court… The fourth is voluntary surrender, so there’s nothing wrong with that either,” Drilon said. “So the warrantless arrest is actually provided for under our existing rules,” he said.
Susceptible to abuse
But lawyer Ibarra Gutierrez, a former Akbayan representative, said the provision on waiving the right to warrantless arrests in the Malacañang guidelines was “problematic” and “susceptible to abuse.”
“It’s very, very difficult to say on the ground when a person is voluntarily waiving a right out of fear, or is simply coerced into going,” Gutierrez told the Inquirer in a phone interview.
He noted that there were Supreme Court decisions saying that depending on the circumstances, an invitation to questioning from the police was actually an arrest because the person concerned did not really have the option to refuse.
Any waiver of any right must also be done in the presence of counsel, and in writing. And waiving one’s right does not mean letting go of other rights, he pointed out.
Gutierrez also warned that the inclusion in the guidelines of the provision to waive the right against warrantless arrest “sends a message to law enforcement authorities that they can ask people to waive their rights.”
The same concern goes for the provision saying intrusive actions during checkpoints are not allowed, unless the subject individual consents or agrees thereto, he said. There would be instances when motorists would find it hard to say no, even if that was well within their rights, he added.
Unconstitutional
Kabayan Rep. Harry Roque, who is also a lawyer, said any waiver of the right against warrantless arrest must be done in the presence of a lawyer.
This is why Roque believes the fourth provision on warrantless arrests in the Malacañang guidelines was unconstitutional.
“For you to waive that right, that must be done in the presence of counsel,” Roque said over the phone.
Follow standards
Zarate said standards should be followed when a person waived a right. The person must understand what exactly he was giving up and what would be the consequences of his decision.
He noted that a person’s waiver of right to counsel must be made in the presence of a lawyer.
The only instance when he thinks the fourth provision could apply is when a person voluntarily surrenders to authorities for something he had done, the lawmaker said.
But even in such a case, he said, the person’s rights to counsel and against self-incrimination were not waived.
He also believes this waiver of the right against warrantless arrest is not the same as the waiver of the right to question the illegality of an arrest. The latter happens when the person who was arrested without a warrant shows up in court and allows himself to be arraigned.
Premium on civil rights
Assistant Secretary Marie Banaag of the Presidential Communications Office for Legal Affairs said the guidelines for the implementation of the proclamation put a premium on civil rights.
“We’d like to emphasize that the proclamation… Proclamation No. 55 is not meant to undermine the Bill of Rights,” she said in a press briefing. With a report from Tarra Quismundo