Philippines: Arbitrary arrest that become de facto legal is endemic
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From: HREA – Human Rights Education Associates and its Newsletter
A Statement by the Asian Human Rights Commission, AHRC-STM-187-2008, July 9, 2008.
The rules of arrest under section 5, Rule 113 of the Revised Rules of Criminal Procedure in the Philippines stipulate that an arrest without warrant can only be lawful on instances whereby a person arrested has (a) committed, actually committing or about to commit a crime; (b) arresting person has personal knowledge of the facts that a person to be arrested have committed the crime; and (c) those prisoners who had escaped or detainees facing a pending case.
Any arrest made not falling under what has been mentioned above requires a valid arrest warrant issued by the court. The rule did not make any exemptions to what would only be considered a lawful arrest; however, the routine practice by security forces, particularly the police, and private individuals in arresting persons had been done regardless of whether they fall under this rule or they had court orders with them to arrest a person depriving him of his liberty.
A fundamental element of arrest, according to what the rules provide, is that the arresting officer should have a “personal knowledge” of the crime or that there is a “probable cause” to believe a crime or offense is committed. And when a person is arrested, the rules, also stipulates a prescribed period he could be held in detention depending on the nature of the offense a person has committed. Though there are safeguards to protect persons from being arbitrarily arrested and detained, there are abuses by security forces and private individuals empowered to arrest.
“Invitation for questioning”: Some of those presently in jail have been detained and charged without arrest orders but were merely “invited for questioning”, for instance, by the police. On the pretext of questioning, they were subsequently charged at inquest procedures following an encounter with their complainants at the police station. Their detention has been justified as a form of a “preventive detention” which enables and allows policemen to file a case in court. From the time a person is arrested, charges are filed while none in the rules on arrest in the criminal procedures have been observed.
In this case, a person is already denied of his legal right to be informed about the reasons why he has been arrested or the nature of the complaints against him, from the time is he taken into custody or invited for questioning. In the Philippines, a person invited for questioning or investigation are often forced to cooperate in order to come off clean–his refusal is usually interpreted as expression of guilt, or he is seen as an accomplice to a crime. But this idea of “cooperation” is really synonymous to waiving one’s liberty.
“Arrests on hot pursuit”: There is also arrest on the pretext of a “hot pursuit operation” whereby those carrying out the arrest do not have any “personal knowledge” or no “probable cause.” The police and military routinely abuse this practice by using it on robbery cases or armed encounters. For instance, police routinely carry out arrests of robbery suspects without court orders even though the crime that supposedly took place happened many days earlier; and with those arresting having no knowledge of the crime committed.
The military, also, routinely effects arrests of persons even several days after the encounter between them and the illegal armed group. In October 2007, two activists were taken into the custody of the military, one of them had gone missing for days, in Pagadian City. When soldiers at a checkpoint noticed that one of whom had injuries in a leg, they took them in their custody merely on suspicion that they could be involved in an armed encounter that took place days earlier. In this incident, the soldiers neither had personal knowledge of the victims’ supposed involvement in a crime nor was there “probable cause” that they committed a crime at all.
“Arrest on mere conjectures”: Not only soldiers make arrests without grounds, they too usurp police powers by arresting and detaining persons. For instance, when a group of soldiers arrested a development activist in August 2006 in Cotabato City, they only acted on an unverified report from their intelligence assets that he is supposedly involved in making bombs. Instead of turning him over to the police station they took him to their camp for questioning. He, however, was released after finding the allegations on him could not be proven. The arrest and subsequent detention do not fall under any rule; but the soldiers responsible for the arrest and detention have not been held to account.
When policemen or prosecutors file charges in court, they too had been abusing their policing and prosecutorial authority by deliberately amending names. They do this by using the John Do information, in prosecuting the respondents who are already charged with criminal offenses. This practice leads to inclusion of a person in the charge and subsequent issuance of an arrest order by the court; thereby legitimizing his arrest. Thus, not all those arrested on court orders have been arrested legally but it has become legal because an arrest order is issued though process is questionable.
“John Doe as blanket arrest order”: When police and prosecutors classify respondents in the crime as John Does it has itself becomes a blanket arrest order. The purpose of using “John Doe” information is to reserve the identification of an unknown respondent whose participation in the commission of a crime has already been proven but they have not been identified yet when the charge is filed. Before a John Doe is replaced with the name of an actual person, the crime and identity of those responsible should have been established first. But there have been arrest of persons who are not the ones described as John Does at all.
Though an arrested person could challenge the legality of his arrest and the charges filed agaisnt him, but given the endemic problem of delays in courts and the ineffective implementation of legal aid, prisoners and detainees are forced to endure trial of cases that are often been fabricated or false. The mentality that has developed among the accused who are in prison or detained is to plead guilty to a crime they have not committed and accept the punishment of jail terms to avoid prolonged detention.
The Asian Human Rights Commission (AHRC) urges the concerned authorities, particularly the court and the legislative body, to thoroughly study this matter which has already placed innocent persons in jail; and continuously threatens the liberty and security of others unless adequate action are made to prevent this. They must begin discussing this matter and to develop mechanisms to prevent this from taking place and ensure safeguards to the citizens; and that the victims of this nature of arrest would be able to obtain effective remedies.