A Second Look at the Section of the Terrorism Act Allowing Extended Detention Without a Warrant

In their separate opinions, three judges voted against the constitutionality of Article 29, which allows the detention of a suspected terrorist even without a judicial arrest warrant. It also allows for a longer detention period of 14 to 24 days without charge or arrest warrant.


MANILA – On February 15, the Supreme Court issued its full decision on the controversial subject Anti-Terrorism Act of 2020 including the individual opinion of the judges.

The court partially granted all 35 motions against the anti-terrorism law while two were dismissed.

Overall, the High Court ruled that the ATA is not unconstitutional except for certain parts such as:

1) the sentence in the proviso of section 4 which states “which are not intended to cause death or serious bodily harm to any person, to endanger the life of the person or to create a serious risk to public safety;

(2) the second method of designation provided for in paragraph 2 of section 25;

3) accordingly necessary, the corresponding references/provisions in the ATA Implementing Regulations (IRR) relating to the previous points.

In their separate opinions, three judges voted against the constitutionality of Article 29, which allows the detention of a suspected terrorist even without a judicial arrest warrant. It also allows for a longer detention period of 14 to 24 days without charge or arrest warrant.

During oral argument, the petitioners challenged this provision, in particular the longer period of detention, which runs counter to the three-day period provided for in the Philippine Constitution.

But according to the high court, section 29 is not unconstitutional.

Judges Japar B. Dimaampao, Alfredo Benjamin S. Caguioa, and Samuel Gaerlan disagreed, however, and voted to declare Section 29 unconstitutional.

Judge Jhosep Y. Lopez voted that Section 29 is unconstitutional only with respect to prolonged detention without a warrant, while Judge Marvic Leonen voted that Section 29 is unconstitutional only with respect to relating to Sections 5 and 8 of the ATA.

Over a longer holding period

The petitioners argued that Section 29 of the ATA is unconstitutional because Section 125 of the Revised Penal Code states that the permitted period of detention is 12 to 36 hours, depending on the offense committed.

Read: Petitioners raise longer detention without charge under Terrorism Act

But according to the ruling, “the constitution says nothing about the exact maximum number of hours an arresting officer may detain an individual before being compelled by law to deliver him to court.”

The ponencia also said that the three-day period, as set out in Article 18 or Article VII of the Constitution, “is not relevant to terrorism because it is only applicable in cases invasion or rebellion when public security so requires”.

But Caguioa, in his separate opinion, agrees with the petitioners.

He said: “To say that Section 18 of Article VII is not applicable to acts of terrorism would mean that, in the face of a terrorist attack, the President is rendered useless because he cannot invoke any of his powers as a commander in chief.

Caguioa said that in Section 18, Article VII “refers to the graduated powers of the President-in-Chief. From most to least benign, there are: the power of appeal, the power to suspend the privilege of habeas corpus and the power to declare martial law.” He said it also restricted the powers of the president.

He added that Section 18, Article VII is also a product of the country’s experience during martial law under the late dictator Ferdinand Marcos.

“The manipulations and abuses that the Filipino people endured during those dark years resulted in a Commander-in-Chief provision that essentially limited the exercise of powers generally accepted as inherent powers of the President as Chief Executive Officer” , says Caguioa.

Caguioa also said the rationale for the longer detention period does not hold water.

“It is incomprehensible that it takes longer to provide evidence and build a case against a suspected terrorist these days and under ordinary circumstances without any ongoing armed rebellion or invasion contemplating actual hostilities. On the one hand, the three-day period is a fixed limit set by no less than the 1987 Constitution,” he said.

Caguioa said that “if law enforcement agencies are concerned that three days is not enough to build a case against a suspected terrorist, then the solution is to build the institutional capacity of these agencies to meet the three-day deadline – from not encroach on the constitutionally protected rights and freedoms of citizens.

“It does not bode well for a democracy to shift the burden of responsibility from government to the people at the cost of sacrificing civil liberties to compensate for government inadequacies,” he added.

Caguioa pointed out that the three-day threshold was put in place to prevent a repeat of martial law atrocities. “This is in recognition that certain situations, such as custodial investigations or, as the ATA states, custodial detentions, are the perfect setting for abusive and cruel behavior,” he said. .

He added that although the ATA prohibits torture and other cruel, inhuman and degrading treatment during investigation or interrogation, “it would still only be lip service if arresting officers had the leeway to commit such acts in the first place”.

“Our Constitution reflects our values ​​and our history as a people. Because of the scar left by our dark years under the martial law of Ferdinand E. Marcos, the Constitution was designed to allow only a maximum of three days of detention, even in the most dire of circumstances, that is i.e. “open war”. And it defies logic that such a detention period could become longer for a situation that is less than ‘open war’,” Caguioa said.

On the violation of the separation of powers

Caguioa also agrees with the petitioners that section 29 violates the principle of separation of powers and that it directly violates article III, section 2, of the 1987 Constitution, which provides that “only judges, and no one other, may validly issue arrest and search warrants. ”

In the ATA, the Anti-Terrorism Council (ATC) made up of Cabinet members is empowered to issue written authorization which will serve as the basis for law enforcement to arrest a suspected terrorist.

Read: Counterterrorism Council’s ‘undue delegation of power’ questioned

The members of the Anti-Terrorism Council and their track record https://www.bulatlat.com/2021/04/02/the-members-of-the-anti-terrorism-council-and-their-track-record/

Dimaampao said Section 29 of the ATA completely fails to provide the standards and restrictions for issuing a written authorization to detain a person suspected of committing offenses under any of the listed punishable offenses. in articles 4 to 12 of the same statute for the first Period of 14 days.

“On its face, Section 29 simply inaugurates a ministerial obligation for the ATC to issue a written authorization for detention based exclusively on the law enforcement officer’s or military personnel’s account that the detainee is suspected of having committed terrorist acts,” he said.

He also said Section 29 is tainted with ambiguity, citing that the Solicitor General’s Office itself “seems perplexed as to how a detainee can sensibly challenge their detention under this provision.”

“This is a clear departure from the constitutional mandate to protect every person’s right against arbitrary detention and the right to due process as enshrined in the Bill of Rights, as the detainee is effectively deprived of any meaningful opportunity to be heard,” Dimaampao said.

He pointed out that a detainee has the right to challenge the legality of his arrest before the ATC or even the court during prolonged detention.

“Similarly, in the event of unlawful arrest or detention, the detainee is entitled to compensation which is enforceable upon action brought before the judicial authority. As currently worded, Article 29 lacks such invaluable safeguards,” he said.

He also added that Article 29 also violates the universal right against arbitrary detention under Article 9 of the International Covenant on Civil and Political Rights (ICCPR).

Meanwhile, Leonen also said that “the carte blanche provided for in Article 29 becomes even more worrying since Articles 5 and 8 punish a mere threat to commit terrorist acts and a proposal to commit terrorist acts respectively”.

He added: “The ATC has the unilateral power to interpret what constitutes dangerous speech. It can also authorize the immediate or prolonged detention of a citizen, or both. A person suspected of threatening or offering to commit terrorist acts under Articles 5 and 8 may be detained simply on the basis of an overzealous interpretation by a law enforcement official. » (RVO)

Related stories:
A look back at the terror law and why Filipinos oppose it
Terror within the Anti-Terrorism Act
Bulatlat Special Coverage: The Anti-Terrorism Law of 2020