Human Rights Treatise on Constitutional Law

Human Rights Treatise

on

Constitutional Law

a. publication by the

Ateneo Human Rights Center

Human Rights Treatise onConstitutional Law

Ateneo Human Rights CenterI30 H.V. de la Costa, SJ. Street

Salcedo Village, Makati City L227

ACKNOWLEDGMENT

The Ateneo Human Rights center acknowledges the supportof Canada Fund,

. Amparita s. Sta. Maria for the concept cover, and the staff andfriends of Ateneo Human Rights Center.

Amparita S. Sta. MariaMa. Generose T. Mislang

Carlos P. Medina, Jr.

EDITORIAL BOARD

^ Any part of this publication may be reproduced or quoted orfor non-commercial purposes with appropriate acknowledgment.

Copyright 1997.

Published by the Ateneo Human Rights center,l3o H. V. de laCosta, SJ. St., Salcedo Village, Makati City LZZT philippines

tsBN 971-889H3_0

Human Rights Treatise on Constitutional Law

HOLD DEPARTURE ORDERS AND THE RIGHT TOTRAVEL PRIOR TO OR DURING PRELIMINARY

INVESTIGATION

BEATO ALESSANDRO C. DE LA CRUZ, M"

INTRODUCTION

In the recent spate of criminalify, the need for the detention of suspects in order to facecriminal indictment was clearly illustrated by the "Eleven Little Indians Controversy." This casestarted when eleven Indian nationils, alleged members of an international syndicate, were arrestedby agents of the National Bureau of Investigation (NBI) at a drug laboratory in Las Pifias on July4, 1994. Seized from the Indians were 6,976 kilos of methaqualone, a downer popularly known asMadrax. However, 20 days after, and just as State Prosecutor Reynaldo Lugtu sued them, theCommission on Immigration and Deportation (CID) approved the self-deportation of the I IIndians stating that there were no pending criminal complaints against them. Then CIDCommissioner Zaltro Respicio said that the order was "a normal procedure because the parties(had applied for) self-deportation."r

Faced by this dilemma of suspects escaping with impunity before criminal cases can befiled against them, the CID issued Law Instructions Nos. 7 and 5 on April 21, 1988 and August 28,1990, respectively. These set forth the guidelines and bases for the issuance of Hold DepartureOrders (HDOs) in aid of criminal prosecution. With HDOs, investigation and enforcementagencies like the NBI have been able to restrain the departure of persons suspected of criminalliability provided there is compliance with the law instructions.

In a startling newspaper account, the CID placed the number of people barred fromleaving the country at more than 10,000.2 The more sensational cases of the recent period - theLenny Villa Hazing, the Eugene Tan Double Murders, and the Vizconde Massacre - were justexamples of cases wherein HDOs were employed as a means of restraint on the right to travel inaid of criminal prosecution. The accused in these cases were prevented from leaving the countryeven before their preliminary investigations could be conducted - by mere application ofinvestigation agencies after or even before mustering initial evidence linking the suspects to thecrime.

As a form of restraint on the constitutional right to travel, HDOs are akin to anadministrative warant. Being such, they have not eluded judicial scrutiny. Our Supreme Courthas ruled that an HDO is a necessary consequence of the nature and function of a bail bond.3 In

Juris Doclor 1996. Ateneo de Manila Universitv School of Law.' Ricky S Torres. I4/hoctunl/, pf{tllpplNE FREi PRESS, Sept. 10, 1994, p. 10.1. Intelcla Tops BI llotd Order List, THE PHILIPPINE STAR, Ianuary 21,1996, p. I .

' Manoloc. Jr. v. Court ofAppeals,142 SCRA 153 (1986) [hereinafter citedas Manotocl

Constitutional Right to Travel

another case, it has been considered as a valid restriction on a person's right to travel so that hemay be dealt with in accordance with law.a

To accept HDOs as valid restraint on foreign travel is to subordinate the constitutionalguarantee ofthe right to travel.

Under the 1935 Constitution, the rights to travel andto liberty of abode were treatedunder a single provision. Article III, Section I (4) thereof read:

"The liberty of abode and of changing the same within the limits prescribed bylaw shall not be impaired."s

This was primarily adopted from the United States Constitution which included the rightto travel under the broad concept of"liberty" in the Due Process clause and the "liberfy ofabode"provision. It did not elaborate on the limiting phrase "within the limits prescribed by law" as it leftthis to the legislature to define.

Under the 1973 Constitution, the old provision was amended to include an expressprovision on the right to travel alongside the right of abode. It also expanded the restrictions toinclude limitations upon the lawful order of the court or when necessary in the interest of nationalsecurify, public safety or public health. Thus, the text read:

"The liberty of abode and of travel shall not be impaired except upon lawfulorder of the court or when necessary in the interest of national security, public safety, orpublic health."6

Unlike the general vague limitation presented by the 1935 Constitution, the amendedprovision included a limiting phrase which prescribed narrower constrictions on the right to travel.This limiting phrase, however, must not be interpreted in such a way as to clothe the executive, orits subordinates, with the unbridled power to impair these fundamental rights and nullify the sameupon its independent judgment that such infringement is dictated by the interest of nationalsecurity, public safety or public health. Rather, the phrase must be interpreted to mean that theliberty of travel is subject to the police power of the State. The legislature may regulate theexercise of such right through laws enacted for the protection and preservation of the nationalsecurify, or for the promotion of public health and safety.T

Under the 1987 Constitution, the right to travel was expressly delineated from the right ofabode by giving it a different treatment, to wit:

a Silverio v. Court ofAppeals,195 SCRA 766 (1991) [hereinafter cited as Si/verio].' PHILIPPINE CONSTITUTION, Sec. t (4) (1935) [hereinafter cited as pHIL. CONST.]n PHIL. CONST ., Att. tV, Sec 5 (1973).

' NEpTALI GONZALES, pHILIpptNE CoNSTITUTIONAL LAw 448 (t925).


"The liberty of abode and of changing the same rvithin the limits prescribed bylaw shall not be impaired except upon lawful order ofthe court. Neither shall the right totravel be impaired except in the interest of national security, public safety, or publichealth, as may be provided by law."8

The limitations on the right to travel must be interpreted to mean that while the liberty oftravel may be impaired even without a court order, the appropriate executive officers oradministrative authorities are not armed with arbitrary discretion to impose limitations. They canimpose limits only on the basis of "national security, public safety, or public health as may beprovided by law", a limiting phrase which did not appear in the previous Constitution. Apparently,this phraseology is a reaction to the ban on international travel imposed under the previous regimewhen there was a Travel Processing Center, which issued certificates of eligibility to travel uponapplication of an interested party.e

It has also been declared that this provision must by no means be construed as delimitingthe inherent power of the courts to use all means necessary to carry their orders into effect incriminal cases pending before them. When by law jurisdiction is conferred on a court or judicialofficer, all auxiliary writs, processes and other means necessary to carry it into effect may beemployed by such court or of{icer.r0

Aside from the express recognition of the right to travel in the Bill of Rights, such right isalso a generally accepted principle of international law considered by our Constitution as formingpart of the law of the land.rr

The Universal Declaration of Human Rights and the Intemational Covenant on Civil andPolitical Rights treat the right to freedom of movement within the territory of a state, the right toleave a country, and the right to enter one's country as separate and distinct rights.

Under the Universal Declaration of Human Rights to which the Philippines is a signatory,the twin context of the right to travel is enshrined in Art. 13, (l) and (2), to wit:

"Art. 13 (l). Everyone has the right to freedom of movement and residence within theborders ofeach state.

(2) Everyone has the right to leave any country including his own, and toreturn to his country."

* PtilL. CONST.. Arr. Iil, Sec.6 (1987)o,,,Supro

note 4. citing the case ofsa/or ga v. Hermoso & Trave! Processing Center.97 SCRA I 2 I ( I 980)"' ld. at765. citing Rule 135, Section 6 ofthe Rules ofCourt.' I PHIL. CONST.. Art. X, Sec. 2 ( 1987).

Constitutional Right to Trrvel

Under the Declaration, the right to travel is based on the principle that the recognition ofthe inherent dignity and of the equal and inalienable rights of all members of the human family isthe foundation of freedom, justice and peace of the world.12 As such, it extends "to all residentsregardless of nationality and everyone has the right to an effective remedy by the competentnational tribunals for acts violating the fundamental rights granted to him by the Constitution or bylaw."l3

Similarly, under the International Covenant on Civil una potlti.ut Rights, which has beenratified by the Philippines, the right to travel is provided in the following:

"Article 12. (l) Everyone lawfully within the territory of a State shall, within thatterritory, has the right to liberty of movement and freedom to choose his residence.

(2) Everyone shall be free to leave any country, including his own.

(3) The above-mentioned right shall not be subject to any restriction exceptthose which are provided by law, are necessary to protect national security, public order,public health or morals or the rights and freedoms of others, and are consistent with theother rights recognized in the present Covenant.

(4) No one shall be arbitrarily deprived of the right to enter his country."

Under the Covenant, the right to travel and the right to return are also distinct andseparate, each enjoying a different protection against arbitrary depriyation.

LIMITATIONS ON THE RIGHT TO TRAVEL

Starting with the 1973 Constitution, the framers thereof provided for specific groundsupon which the right to travel could be limited through the exercise of the inherent police power ofthe State. The 1973 Constitution provided for four grounds which limited both the liberty of abodeand travel could be limited, namely: (l) lawful order of the court; (2) national security; (3) publicsafety; and (4) public health. Under the 1987 Constitution, these grounds were reiterated.However, an express provision was added to emphasize that legislation is necessary to elucidatethe last three grounds. The phrase, "as may be provided by law" vested the Congress with theauthority to determine how the said right should be impaired based on the aforesaid grounds.Congress alone could enact the specific restrictions on the right to travel and this finds supportunder American jurisprudence. Mr. Justice Black in his separate opinion in the case of Zemel v.Raskra emphasized:

'2 Lohel A. Martinez, Constitutiondl as Well as Human Right to Travel,97 SCRA 129 (1980).ti Kant Kt,ong v. Presidenlial Commission on Good Goternnrent, 156 SCRA 222, at232 (1987) [hereinafter cited asKant Ktongf.'' 381 t-ts, at 22 [hereinafter cited as kmel].


"Our Constitution has ordained that laws restricting the liberty of our people

can be enacted by the Congress and by the Congress only. I do not think our

Constitution intended that this vital legislative function could be farmed out in large

blocks to any govemmental official, whoever he might be or to any government

department or bureau whatever administrative expertise it might be thought to have. The

Congress was created on the assumption that enactment of this free country's laws could

be safely entrusted to the representatives of the people in Congress, and to no other

official or government agency. The people who are called on to obey laws have a

constitutional right to have them passed only in this constitutional way."

Both American and Philippine jurisprudence are in agreement that "a lawful order of the

court" contemplates a valid directive from a coult ofjustice to impede the right to travel so that its

processes are not rendered nugatory. Thus, a person facing criminal charges may be restrained by

ih" "ourt

from leaving the country or, if abroad, compelled to return. A lessee may be judicially

ejected for violation oJ contractual duties. The judge may prevent a person from entering certain

premises under dispute or declared off limits by the proper authorities.t) This concept has been the

emphasis of the Supreme Court in the case of Suntay v. Peoplet6. In this case, the Court upheld the

order of the lower court directing the Department of Foreign Affairs "to take proper steps in order

that the accused may be brought back to the Philippines, so that he may be dealt with in

accordance with the law." This is because said order was considered necessary to carry into effect

the jurisdiction conferred by law on the court. This was reiterated in the case of Manotoc v. CA.t7

In this case, the petitioner who was under bail questioned the lower court's denial of his leave to

travel abroad. The denial came after the Securities and Exchange Commission (SEC) requested

the CID Commissioner not to clear his departure and after six separate criminal complaints were

filed against him and his co-accused. Mr. Justice Feman declared:

"The condition imposed upon petitioner to make himself available at all times

whenever the court requires his presence operates as a valid restriction on his right totravel.

"Indeed, if the accused were allowed to leave the Philippines without sufficient

reason, he may be placed beyond the reach of the courts. The effect of recognizance or

bail bond, when fully executed or filed ofrecord, and the prisoner released thereunder, is

to transfer the custody of the accused from the public officials rvho have him in their

charge to keepers of his own selection. Such custody has been regarded merely as a

continuation of the original imprisonment. The sureties become invested with fullauthority over the person ofthe principal and have the right to prevent the principal from

leaving the State, more so then has the court from which sureties merely derive such

right, and whose.jurisdiction over the person of the principal remains unaffected despite

the grant ofbail to the latter.

'' tsAGANr A cttuz, coNSTIluloNAl LAw ( 1980). p. I 32

't' l0l Phil 833. at 835, 836 (1957) [hereinailer cited as sr/n/.ry].t' Supro note 3. at I54-l55. I57.


"To our mind, the order ofthe trial court releasing petitioner on bail constitutessuch lawful order as contemplated by the abovequoted constitutional provision (Section5, Art. IV of the 1973 Constitution)."

ln the subsequent case of Silverio v. Court of ,lpproiis,rs petitioner questioned the orderof the lower court directing the Department of Foreign Affairs to cancel his paisport or to deny hisapplication therefor, and the CID to prevent him from leaving the country. This was primarilybased on the lower court's finding that the accused had not yet been arraigned because he hadnever appeared in court on the dates scheduled for his arraignment. Additionally, there wereevidence that the petitioner had left the country without the knowledge and permission of the court.The Supreme Court affirmed the lower court's order by declaring that a person facing criminalcharges may be restrained by the court from leaving the country or, if abroad, may be coirpelled toreturn. Madame Justice Melencio-Herrera explained:

"Article III, Section 6 of the 1987 constitution should by no means beconstrued as delimiting the inherent power of the courts to use all means necessary tocarry their orders into effect in criminal cases pending before them. when by lawjurisdiction is conferred on a court or judicial officer, all auxiliary writs, processes andother means necessary to carry it into effect may be employed by such court or officer(Rule 135, Section 6, Rules of Court).

"Petitioner is facing a criminal .*.r. n. has posted bail but has violated theconditions thereof by failing to appear before the Court when required. Warrants for hisarrest have been issued. Those orders and processes would be rendered nugatory if anaccused were to be allowed to leave or remain, at his pleasure, outside thi teriitorialconfines of the country. Holding an accused in a criminal case within the reach of theCourts by preventing his departure from the Philippines must be considered as a validrestriction on his right to travel so that he may be dealt with in accordance with law. Theoffended party in any criminal proceeding is the People of the Philippines. It is to theirbest interest that criminal prosecutions should run their course and proceed to finalitywithout undue delay, with an accused holding himself amenable at all times to Couitorders and processes."

In the recent case of Marcos v. Honorable Sandiganbayan,te the Supreme Court wasconsistent with regard to this limitation. In that case, forrner First Lady Imelda Marcos filed apetition for certiorari to set aside as arbitrary and in grave abuse ofdiscretion the resolutions oftheSandiganbayan denying her motion for leave to travel abroad for medical treatment. In dismissingthe petition, the Court through Mr. Justice Mendoza ruled:

'r Supra note 4, at 765-766.t" Morcos v. Sandiganbayan, G.R. No. ll5132-34 (August 9. l99j)


"To be sure, the conviction is not yet final in view of a motion for

reconsideration filed by the petitioner. But a person's right to travel is subject to the

usual constraints imposed by the very necessity ofsafeguarding the system ofiustice ln

such cases, whether the accused should be permitted to leave the jurisdiction lor

humanitarian reasons is a matter of the court's sound discretion'"

The abovementioned decisions are consistent with the decisions of the United States

Supreme Court. In Aptheker v. Secretary of Starc2o case, Mr. Justice Goldberg has ruled that:

"Absent war, I see no way to keep a citizen from traveling within or without the

country, unless there is power to detain him. And no authority to detain exists except

under extreme conditions, e.g., unless he has been convicted of a crime or unless there is

probable cause for issuing a warrant of arrest by standards of the Fourth Amendment."

The clear import of the cases mentioned is that a court order can only be considered a

valid curtailment of the right to travel if it is for the purpose of promoting the court's effective

adjudication of cases. Outside this primordial purpose, the right to fravel shall always rank

superior and unrestrained.

Curtailing the right to travel on the ground ofnational securify finds basic legal support in

Congress' "obvious and unarguable" power to safeguard the same.2r This is illustrated in Haig v.

Agee22 where the petitioner Secretary of State prayed on certiorari for the reversal of the lower

court's decision to restore the respondent's passport, the same having been revoked due to the

latter's activities abroad which the petitioner considered to be "causing or likely to cause serious

damage to the national security or the foreign policy of the United States." In reversing the lower

court's decision, the United States Supreme Court ruled that the Passport Act of 1926 authorizes

the Secretary of State to revoke a citizen's passport where "the citizen's activities abroad are

causing or are likely to cause serious damage to the national security or the foreign policy of the

United States." This policy, being a substantial and consistent administrative practice, is sufficientto compel the conclusion that Congress has approved it. Chief Justice Burger explained that:

"Revocation of a passport

abroad with a 'letter of introductionsubordinate to national securityregulation.

t" 378 LJS 500, at 529 (l96zl) [hereinafter cited as Apthekerl2t tct. at 509.r2 453 us 2so (t981).

undeniably curtails travel, but the freedom to travel' in the form ofa passport issued by the sovereign is

and foreign policy to reasonable governmental


Protection of the foreign policy of the United States is a govemmental interestof great importance, since foreign policy and national security considerations cannotneatly be compartmentalized. Measures to protect the secrecy of our Government'sforeign intelligence operations plainly serve these interests."23

From the foregoing, curtailing the right toshows that even the basic liberties of men canpreservation of the State and the prevention ofconflict.

travel on the"basis ofnational security clearlybe subordinated to the necessities of self-possible intemational misunderstanding and

The curtailment of the right to travel on the grounds of public safety is best explained inthe case of Philippine Association of Service Exporters, Inc. v. Drilon.'o The petitioner, a firmengaged principally in the recruitment of Filipino workers for overseas placement, challenged theconstitutional validity of Department Order No. l, Series of 1988, of the Department of Labor andEmployment (DOLE), in the character of 'GUIDELINES GOVERNING THE TEMPORARYSUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLDWORKERS." This was premised on the ground, among others, that it was violative of the right totravel. The Supreme Court dismissed the petition by ruling that the right to havel is subject,among other things, to the requirements of "public safety, as may be provided by law." The Courtconsidered the Department Order as a valid implementation of the Labor Code, in particular, itsbasic policy to "afford protection to labor", pursuant to the DOLE's rule-making authority in theLabor Code. Mr. Justice Sarmiento explained that:

"'Protection to labor' does not signifr the promotion of employment alone.What concerns the Constitution more paramountly is that such an employment be aboveall, decent, just and humane. It is bad enough that the country has to send its sons anddaughters to strange lands because it cannot satisfy their employment at home. Underthese circumstances, the Government is duty bound to insure that our toiling expatriateshave adequate protection, personally and economically, rvhile away from home. In thiscase, the Government has evidence, an evidence the petitioner cannot seriously dispute,of the lack or inadequacy of such protection, and as part of its duty, it has preciselyordered an indefinite ban on deployment."

Fublic safety as a valid limitation on the right to travel is also recognized under Americanjurisdiction. In the case of Koremalsu v. Llnited States,25 where the United States Supreme Courtallowed the Government in time of war to exclude citizens fiom their homes and restrict theirfreedom of movement on a showing of "grave imminent danger to public safety." In that case,

Congress and the Chief Executive moved in coordinated action as the nation was then at war.

2r ld. at 306-307.

'u I 63 scRA 386 ( I 9s8)25 323 tJS 214 (1945)


The right to travel can also be validly curtailed by the necessities of public health. The

United States Supreme Court has declared in the case of Zemel v. Rusk,26 citing Edwards ,-

Califtrnia, that freedom of movement does not mean that areas ravaged by flood, fire or pestilence

can not be quarantined when it can be demonstrated that unlimited travel to the area would directlyand materially interfere with the safefy and welfare of the area or the nation as a whole.

Our Supreme Court as early as the case of Lorenzo v. Director of Healthzl has

acknowledged public health as a valid limitation on the right to travel on the basis of police power.

In that case, the petitioner has sought the reversal ofthejudgment ofthe lower court in sustaining

the law authorizing the segregation of lepers on the ground that it is violative of his right to fravel.In dismissing the petition, the Court held that Sec. 1058 of the Adminishative Code empoweredthe Director of Health and his authorized agents "to cause to be apprehended and detained,isolated, or confined, all leprous persons in the Philippine Islands." Justice Malcolm declared;

"Section 1058 of the Administrative Code was enacted by the legislative bodyin the exercise ofthe police power which extends to the preservation ofthe public health.It was placed on the statute books in recognition of leprosy as a grave health problem.The methods provided for the control of leprosy plainly constitute due process of law.

The assumption must be that if evidence was required to establish the necessityfor the law, that it was before the Legislature when the act was passed. In the case of a

statute purporting to have been enacted in the interest of the public health, all questionsrelating to the determination of matters of fact are for the Legislature. lf there is a

probable basis for sustaining the conclusion reached, its findings are not subject tojudicial review."28

Curtailing the right to travel on the basis of public health necessarily contemplates the

exercise of police power through the avoidance of an imminent health hazard. Legislation on thismatter entails careful delineation of what diseases are contagious for the purposes of quarantine.This determination solely falls on Congress and if there is a probable basis for sustaining theconclusion reached, its findings are not subject to judicial review.

HOLD DEPARTURE ORDER (HDO): ITS NATURE AND SCOPE

A Hold Departure Order (HDO) is not defined under the Philippine Immigration Act norin any of the law instructions of CID. It is only the rules and regulations of the PresidentialCommission on Good Government (PCGG) which gives a specific definition. Under said rulesand regulations, an HDO is defined as an order "to temporarily prevent a person from leaving thecountry where his departure ufill prejudice, hamper or otherwise obstruct the task of the

z" 7,emel, strpra note 1 4, at I 527 50 Phit. 595 (1927).28 Id. ot sgi


Commission in the enforcement of Executive Order Nos. I and 2, because such person is known orsuspected to be involved in the properties or transactions covered by said Executive Orders."2e

Nonetheless, on the basis of the written order and the CID Law Instructions, an HDO canbe defined as a written order issued by the CID Commissioner to the Chief of Travel ControlService at the Ninoy Aquino International Airport, directing him to include the names ofindividuals in the Bureau's Hold Departure List and to dissemihate said order to all the major portsin the country. Any person included in the list will be baned from going abroad until his travel iscleared by the ClD.

An HDO can be considered as a form of an administrative warrant and its restraint on theright to travel is akin to an administrative detention. An administrative warrant means that whichis issued by government functionaries other than the courts. "Warrant" refers to an order forrestraint of liberty of a person or for the detention and seizure of his or her properry.3o On theother hand, administrative detention has been defined as detention without trial either "legally"when the law allows it (e.g., while a case is under investigation) or "illegally" when administrativeagencies (e.g., the police) abuse their powers. As a form of detention, it falls within the broaddefi nition of "seizure."3 I

According to the United States Supreme Court in the case of United States v.

Mendenhall,32 there is seizure when by means of physical force or a show of authority, anindividual's freedom of movement is restrained. Only when such restraint is imposed is there anyfoundation for invoking constifutional safeguards.33

In this context, a person included in the CID's Hold Departure List is "seized" as his rightto travel abroad is curtailed. Although he can freely move around within the country like any otherperson, he camot go beyond its borders. Physical restraint of an individual obviously deprives oneof his liberty.'o Since it is a form of seizure, the constitutional guarantee against unreasonable"seizures" is applicable. The "warrant clause" in Section 2, Article III of the 1987 Constitutionprovides:

"The right of the people to be secure in their persons. houses, papers, andeffects against unreasonable searches and seizures of whatever nature and for anypurpose shatl be inviolable, and no search warrant or warrant ofarrest shall issue exceptupon probable cause to be determined personally by the judge after examination underoath or affirmation of the complainant and the witnesses he may produce, and particularlydescribing the place to be searched and the persons or things to be seized."

2') Kant Ktrong. at note 13, p. 228.r('David Nitafan, l'alidity oJAdministrative Warrants. 175 SCRA 326 (1989).tr LAwASIA Human Rights Commiuee, IN CUSTODY OF THE LAW (1995), p. 4rr 446 L;s 544 ( lgso).33 ld. at 553.3t l6A AM.IUR 2d. Constitutiona! Larr'. Sec. 557.


Under the warrant clause, the privacy and sanctity of the person himself are protected. It

is a guarantee of the right of the people to be secure in their "persons . . . against unreasonable

searches and seizures." As such, it is also a guarantee against unlawful arrests and other forms ofrestraint on the physical liberty ofthe person.3s

An HDO can be obtained after complying with CID Law Instruction No. 5. This is the

latest set of guidelines issued by the CID to regulate the issuance of HDOs. It took effect on

Augnst 28, lgg0 after the approval of the Secretary of Justice, modi$ing CID Law Instruction

Nos. 7 and 19.

The old law instructions have outlined the requirements to be complied before an HDO

can be issued. To wit:

XXX

2. As a general rule, we shall issue Hold Departure (HD) order, only when the

applicant files authenticated copies - i.e., stamped, signed, and sealed - of:

(a) information in criminal case filed in court;(b) order ofthejudge holding departure.

3. If a govemment agency requests for HD order:

(a) It shall name the specific law (e.g., B.P. No. 10, Section

ll) which authorizes the agency to make the request.

But it shall be based only on any ofthe three grounds:

national security, public safety, or public health;

(b) The letter request shall be filed by a government

official, at the level ofa bureau director or higher' xxx"

Under the new guidelines set forth in CID Law Instruction No. 5, these grounds have been

expanded. Paragraph 2 thereof states that an HDO can be issued under the following conditions:

"xxx

a. Pursuant to a court order in a criminal/habeas corpus case.

The requirements for an HDO under this category are an application by an

interested party, furnishing the Bureau with certified true copies of: (l) the Order of the

Court holding departure or (2) the criminal information/habeas corpus petition.

XXX

b. Pursuant to a standinq warrant/order ofarrest

J5.IOAQIJIN BERNAS, S..T., THE CONSTITUTION oF THE REPUBLIC OF THE PHILIPPINES (I987). p, 85.


The requirements of an HDO under this category are an application by aninterested party furnishing the Bureau with a certified true copy of the criminalinformation and the warrant or order of arrest, together with a certification of the Clerk ofCourt that the said warrant or order ofarrest remains in force.

c. When the adverse aggrieved party is the eovernnreit or any of its agencies orinstrumentalities

The requirements for an HDO under this category are a letter request iiom theDepartment Secretary or the Executive Secretary for offices under the Office of thePresident not headed by Cabinet level officials, heads of constitutional bodies and otherautonomous agencies; the Chief Justice for the Judiciary and the Senate President orSpeaker of the House of Representatives for the Legislative body, stating the nature ofthe case, and averring the probability that the subject might depart from the country toevade the case.

d. Subiect to the provision of existine law. when the national interest. national securit),.public safetv. or public health is involved.

e. When a criminal or deportation case is pendins against an alien.

An alien facing charges for violation of immigration and related laws, or rvhosepresence is required in connection with a criminal, civil or administrative case may beincluded in the HD list. xxx"

From the foregoing, it can be noted that the CID may issue an HDO on grounds other thanthose provided under the Constitution. It can also issue HDOs when the adverse aggrieved party isthe government or its instrumentalities, when national interest is involved, and when it is pursuantto a criminal or deportation case pending against an alien.

Paragraph 3 of the CID Law Instruction No. 5 provides that the Bureau shall issue anHDO only after veri$zing the documents submitted to it by any interested party. For an effectiveand accurate implementation of HDOs, information on persons whose departure is sought to beheld shall include sex, middle name or initial, date of birth, and last known address. After suchprocedure, copies of the HDO shall be dishibuted not only to the proper government agencies, butalso to the subject of the order, so that he or she may, if he or she desires, file a motion forreconsideration with the CID.

The effectivity of an HDO varies depending on the kind of ground for which it wasissued. If an HDO is issued pursuant to a court order, it shall remain valid until the Bureau isnotified of the order of the court lifting the said HDO, or dismissing the case or acquitting theaccused. Any person requesting for the cancellation of his or her name from the Hold DepartureList shall submit a certified true copy of the order of the court lifting its previous HDO andallowing his or her departure, or dismissing the case and/or acquitting the accused.


ln the Kant Kwong case, the Supreme Court cited the necessity of "good reasons" tojustif, the continued enforcement of an HDO.36 In the aforesaid case, petitioners were included inthe Hold Order List of the PCGG as they were allegedly found to have "obstructed the smoothoperations" of sequestered garments firms and has discredited the PCGG-appointed officer-in-charge. They prayed that the PCGG be commanded to lift without delay the HDOs issued againstthem for being violative of their right to travel and for having been issued with grave abuse ofauthorify. The Supreme Court lifted the HDOs since its validity had already expired, and the

grounds for its issuance under the law had become stale.

In actual practice, an HDO can be availed of by enforcement agencies even prior topreliminary investigation or before the determination of probable cause. This has been shown in anumber ofcases where expediency has been raised tojustify the order's issuance.

In HD No. 844, entitled, In re: Paul Angelo Santos, Fidelito Dizon, Nelson Victorino,Ernest Montecillo qnd Mariano Almeda, an HDO order dated February 14, l99l was issued bythen CID Commissioner Andrea Domingo pursuant to a letter-application from then NBI DirectorAlfredo S. Lim dated February I l, 1991. In the said letter, Director Lim justified his request bystating that immediate issuance of an HDO was "in connection with an investigation beingconducted by the NBI regarding the death of Mr. Leonardo H. Villa allegedly committed on l0February by the aforesaid individuals, all members of the Aquila Legis Fraternity of AteneoCollege of Law." The HDO issued in this case was filed way ahead of the preliminaryinvestigation conducted.

Similarly, in HDO No. RVB-567, entitled, In re: Pedro C. Lim a.k.a. 'Peter Lim',Patricia C. Lim-Yu and Eugene Yu, an HDO was issued during the conduct of preliminaryinvestigation for the murder of Atty. Eugene Tan and his driver Eduardo Constantino. This waseffected through a letter application dated November 23, 1994 from the Department of Justice.Then CID Officer-In-Charge Ricardo V. Paras III, issued an HDO on the very same day theapplication was received by his office.

In a more recent case, HDO No. LIV-387 entitled, In re: Hubert lfrebb, Antonio Lejano,Michael Gatchalian, Peter Estrada, Pyke Fernandez, Dong Padilla, and Miguel Rodriguez, an

HDO was issued on June 19, 1995, months prior to the conduct of a preliminary investigation forthe crime of rape with homicide filed against them. This was pursuant to a letter-application of theDirector of the NBI, the late Antonio Aragon. Noted in the said order was the absence of anyreason why the said individuals are sought to be restrained.

- LEGAL ANALYSIS

l. Promotion of Public Interest or General Welfare through an Effective CrintinalJustice System

i6 Kcmt Klong. supra note 13, at232-233.


One of the principal queries in determining whether the restraint on the right to travel byan HDO is constitutionally viable is whether it may be considered a valid exercise of the State'sinherent police power. Does it in any manner promote public interest by prohibiting all that isharmful to the comfort, safety, and welfare of society?

ln Kant Kwong v. PCGG, the HDO has been recognized as a means to tempotarilyprevent a person from leaving the country where his departure will prejudice, hamper, or otherwiseobstruct the task of the PCGG in the recovery of all ill-gotten wealth accumulated by formerPresident Marcos, his immediate family, relatives, subordinates and close associates, whetherlocated in the Philippines or abroad.37 In Manotoc v. CA, the Supreme Court has declared that acourt has the power to prohibit a person admitted to bail from leaving the Philippines as this is anecessary consequence ofthe nature and function ofa bail bond.38

Similarly, the Court has stressed in the cases of Suntay v. People, Silverio v. CA, andMarcos v. Sandiganbayanthat the restraint is in the best interest of the People of the Philippineswhich is the offended party in any criminal proceeding so that criminal prosecutions will run theircourse and proceed to finality without undue delay, with an accused holding himself amenable atall times to the court orders and processes. In this sense holding an accused in a criminal casewithin the reach of the Courts by preventing his or her departure from the Philippines must beconsidered as a valid restriction on his or her right so that he or she may be dealt with inaccordance with law.3e

ln analyzing HDOs issued in aid of criminal prosecution in the abovementioned cases, theinevitable conclusion is that this method of restraint is in pursuance of a purpose which redoundsto public interest. It is a police power measure which seeks to cope with the demands of thechanging times. Never until now has it become more convenient for moneyed individuals desirousof escaping criminal prosecution to slip out of the country through the modern means oftransportation. Restraining foreign travel of criminal suspects at the earliest possible instancemeans eliminating any possibility of flight and escape from criminal indictment.

However, although the interest sought to be promoted is within the ambit of publicinterest and general welfare, this alone does not give the measure constitutional approval. Inaddition to a valid purpose, the measure must also be reasonable or germane to its purpose. In thecase of Aptheker v. Secretary of State, the United States Supreme Court has emphasized thisrequirement. Mr. Justice Goldberg declared that:

"(E)ven though the governmental purpose be legitimate and substantial, thatpurpose cannot be pursued by means that broadly stifle fundamental personal libertieswhen the end can be more narrowly achieved. The breadth of legislative abridgmentmust be viewed in the light of less drastic means for achieving the same basic purpose."a0

31 ld. ar226-22'7.i8 Manoloc, supra tlote 3, at 153-154ie Silrerio. supra note 4, at 766.ao Aptheker, stqra note 20, at 508.

Human Rights'f reatise on Constitutional Law

2. Reasonability of the Means in the Context of the Constitutional Right to Travel

Like any regulatory measure, an HDO can be considered reasonable if it is not unduly

restrictive and does not unnecessarily burden constitutionally protected interests.

This test of reasonableness has been discussed by our Supreme Court in the cases ofSilverio v. CA and Kant Kwong v. PCGG. In the first case, the Supreme Court emphasized that inregulating the right to travel in the absence of a court order, the appropriate executive officers or

administrative authorities must not act with arbitrary discretion in imposing the limitations. In the

second case, the Supreme Court required that HDOs must be premised on "good reasons" in order

to justifo its continued enforcement. In this regard, it declared the HDOs issued by the PCGG

when its investigative task has already terminated as having impaired the right to travel of thepetitioners.al

Pursuant to this test of reasonableness, an HDO issued prior to or during preliminaryinvestigation can only be considered reasonable if it complies with the basic requisites of the

permissible limitations under the law.

The Constitution only provides four grounds wherein the right to travel can be legallycurtailed through the exercise of police power. Aside from its limited number, these grounds have

become narrower after each constitutional amendment in order to negate a broad construction ofsuch limitations.a2

As basis for the curtailment of the right to travel, these grounds are classified into twokinds: (1) curtailment due to a judicial order and (2) curtailment due to an administrative warrant.

In order for a judicial order to curtail the right to travel, the Constitution explicitlyrequires the same to be a lawful one. To be lawful, it must comply with the Rules of Court as towhen it can be issued and who has the authority to issue the same. Our jurisprudence has

provided two modes which can warrant the issuance of an HDO through a judicial order. First is acourt order upon motion ofthe prosecution, and second, an order ofthe court releasing the accused

on bail.

As to the first kind, the Rules of Court provides that such order can be obtained as soon as

a warrant of arrest is issued. This is because it is the earliest instance when a judge is able todetermine whether probable cause exists and there is a necessity of placing the respondent under

immediatecustodyinordernottofrustratetheendsofjustice. Sec.6,Rulel12oftheRulesofCourt provides that:

"Sec. 6. When warrant of arrest may issue.

at Kant Kt,ong, supra note 13, at 23l.u2 ENRreuE FERNANDo. THE coNSTITUTION oF THE pHrLS 663 (2nd Ed.)


(a) By the Regional Trial Court. - Upon the filing of an information, the Regional TrialCourt may issue a warrant for the arrest ofthe accused.

(b) By the Municipal Trial Court. - If the municipal trial .judge conducting thepreliminary investigation is satisfied after an examination in writing and under oath of thecomplainant and his witnesses in the form of searching questions and answers, that aprobable cause exist and there is a necessitv of placing the respondent under immediatecustodY in order not to frustrate the ends ofjustice. he shall issue a warrant of arrest."(underscoring supplied)

A warrant of arrest under the Rules can only be issued in two ways. First, by a RegionalTrial Court judge through a warrant of arrest upon filing of an information. Second, by aMunicipal Trial Court judge after being satisfied that probable cause exists and there is u n...rrityof placing the respondent under immediate custody in order not to frustrate the ends of justice.alUnder both modes, it is always emphasized that before the physical liberty of a person can belawfully curtailed or "seized" there must be prior determination of probable cause and necessity ofimmediate detention. This is in compliance with the warrant clause which protection extends toother forms of restraint on the physical liberty of the person.aa Judge David Nitafan in hisdiscussion on the validity of administrative warrants explained the reason for this protection:

"The incorporation of these requirements is intended to bulwark individualsecurity, home and legitimate possessions. Furthermore, they are intended to curb certainprevalent abuses in the past. x x x While courts should cooperate with the government inan effortto eradicate. . . evil through proper interpretation and application ofthe law. itis of greater importance that the fundamental provisions of the Constitution withreference to the protection of individual rights should be upheld and preserved. Theprosecution of criminals is a bounded duty of the government but it should beaccomplished by adherence to rather than by relaxation of fundamental constitutionalprinciples."as

Under the broad terminology of "restraint of physical liberty of the person," this writerbelieves that the seizure or detention of a person within the boundaries of his country and hisprevention to travel abroad without any justifiable reason, is included.

It is, therefore, basic that before a person can be detained or seized under an HDO,judicial determination of probable cause and necessify of immediate detention is a prerequisite. Inthis context, probable cause shall mean as such reasons, supported by the facts and circumstances,as will warrant a cautious man in the belief that his action and the means taken in prosecuting it arelegally just and proper.tu Specifically, a person can be held under an HDO if thire ur, ,u.-h fu.t,and circumstances which will lead a reasonably discreet and prudent man to believe that an offensehas been cornmitted by the person sought to be detained.

ar Rules ofCourt, Rule I 12, Sec 6 (a) and (b).

oo BERNAS. suora note35t'NITAFAN. ,r,prrrnot"30, at 340.4t' BERNAS. supra nore 35. at 86.


On the other hand, the order of the trial court releasing the petitioner on bail alsoconstitutes "lawful order" as contemplated under the Constitution.at To be considered lawful irmust comply with the procedural requirements under Rule I l4 of the Rules of Court. Probationaryliberty through bail can be resorted to only when a person is arrested or deprived of his liberry as

the same presupposes that the accused is under legal custody.as The rationale behind the restrainthas been explained by the Supreme Court in the case of People v. Uy Tuising:

"x x x the result ofthe obligation assumed by the appellee (surety) to hold theaccused amenable at all times to the orders and processes of the lower court, was toprohibit said accused from leaving thejurisdiction ofthe Philippines, because, otherwise.said orders and processes will be nugatory, and inasmuch as the jurisdiction of the courtsfrom which they issued does not extend beyond that ofthe Philippines, they would haveno binding force outside of said jurisdiction."ae

From the discussion above, an HDO issued prior to or during preliminary investigation isconsidered premature. Being an order of restraint dependent upon the prior judicial determinationof probable cause, it can never be issued by administrative agencies like the CID on mereapplication of enforcement agencies alone. By disregarding this important prerequisite, an HDOissued to restrain a person's right to travel becomes violative not only of the basic tenet that only ajudge can determine probable cause and necessity of immediate detention, but also of the warrantclause set forth in Art. III, Sec. 2 of the Constitution. That administrative process is not a criminalproceeding as to justify exemption of administrative warrants from the warrant clause is not onlyunwaranted but a strained interpretation of the constitutional provision. The Constitution does notsay that the warrant clause applies only to criminal proceedings. It makes no distinction betweencriminal and administrative processes. As a matter of fact, there are many instances whereinsearch and seizure warrants do not actually end up to criminal prosecution. The courts are notauthorized to inject a distinction where no distinction is intended. On the other hand, the clause"of whatever nature and for any purpose" is added to the traditional formulation, clearly evincingthe idea that the warrant clause was intended to be applicable to all kinds of warrants, irrespectiveof whether ttre proceeding is criminal or administrative.50

Unlike a judicial order, curtailment of the right to travel through an administrative warantis anchored on the grounds of national security, public safety, and public health as may beprovided by law. Based on these, Congress may provide for specific grounds through legislation.This is premised on the doctrine laid down in the case of Kent v. Dullesst which provided that anyregulation on the right to travel must be made pursuant to the lawmaking powers of Congress. Incases where such power is delegated, it must be coupled with adequate standards to pass acceptedtests.

11 Manotoc, supra nole 3, at 157.a8 Ilerilu:u r. CFI of Qte:or. 5l SCRA 169 (1928)

'." lro1,1" v t 's' hrtsing.6l Phil. 404 ( lc)35)j" NITAITAN. supra note 30, at 342.

5r 357 tlS 129 (195S) [hereinafter cited as Kerrr].

Constitutional Right to'I'ravel

Before coming up with any legislation regulating the right to travel, Congress must alwaystake into consideration the permissible grounds granted to it by the Constitution, namely: nationaldefense, public safety, and public health. Outside these grounds, it is powerless to enact a lawauthorizing the curtailment of the right to travel. An inconsistency on this matter can be seen inthe case of Silverio v. CA where our Supreme Court gave Congress a wide, if not unlimited,discretion in determining grounds for the curtailment of the right to travel. In the said case. theSupreme Court has interpreted the limiting phrase "as may be prwided by law" in the last sentenceof Sec. 6, Article III of the Constitution as an unlimited source of administrative authority to curtailright to travel. The decision has added the conjunction "and" after the enumeration of "nationaLsecurity, public safety, or public health" and before the said limiting phrase.52 With this'inadvertence, the said phrase has been wrongly interpreted to mean that appropriate executiveofficers can impose limits on the right to travel on the basis of "national security, public safety, orpublic health and as may be provided by law." Such an interpretation is a clear derogation of theunderlying intent of the framers of the Constitution not to give these limitations a broadconstruction.

Mr. Justice Isagani Cruz in his book on constitutional law has stated that if the saidgrounds shall be interpreted to be a direct or self-executing source of authority, this may enableevery administrative or executive officer, including minor ones, to curtail the liberty of travel ontheir own gratuitous determination of the existence of the specified exceptions.s3

The narrow construction of grounds limiting the right to travel is supported by Americanjurisprudence. In the case of Kent v. Dulles, Mr. Justice Douglas has stated that the court willconstrue narrowly all delegated powers that curtail or dilute activities or enjoyment, natural andoften necessary to the well-being of an American citizen, such as travel.5a

Every HDO issued by the CID primarily depends on the grounds set forth in LawInstruction No. 5 issued by CID Commissioner and approved by the Secretary of Justice pursuantto Section 3 of the Immigration Act (Commonwealth Act No. 613). To test the validity of an HDOfor the purpose of aiding criminal prosecution, it is also necessary to determine whether suchpurpose is germane to the Immigration Act.

For the CID Law Instruction No. 5 to be a valid source of curtailment on the right totravel, it must be made pursuant to CID's rule making power within the confines of the grantingstatute,

-as required by the Constitution and its doctrine of non-delegability and separability ofpowers." It must not be inconsistent with the provisions of the Constitution or the statute it isadministering or which created it, nor in derogation of the purpose of the statute.56

De Leon in his book on Administrative Law lays down the questions to be examined indetermining the validity of agency rules and regulations. In the case of legislative rules, he writes

52 Silverio, 195 SCRA, at 765

" Ciuz..'rup,o*i. ii, ",lll" Kent. supro note 51. at 129.55

Eastern Shipping Lines, Inc. v. POEA, I 66 SCRA 531 ( I 9SS)5o HEC'foR DE LEoN, ADMINISTRATIVE LAW 77 (rgg3).

Human Rights -l'reatise on Constitutional Law

that the queries will be: first, whether the rules relate to the subject matter on which power tolegislate has been delegated; second, whether the rules conform to the standards prescribed in thedelegatory statute; and third, whether the rules are not invalid on constitutional grounds, such as

due process.5t

Our jurisprudence is replete with guidelines which limit the powers and functions ofadministrative agencies. In the case of RCPI v. Board of Communications,s8 the Supreme Courthas declared that administrative agencies only exercise such powers as are expressly or bynecessary implication conferred on them by law. Additionally, exercise of discretionary orministerial powers is always predicated on those functions and powers provided under the law. Inthis manner, it can only corroborate with the other divisions of government like courts on questionswithin its administrative competence.5e

An evaluation of the Immigration Act reveals no specific basis which can justifu theissuance of HDOs to bar departure of individuals except if it is in aid of a criminal case pendingagainst an alien or is pursuant to a final deportation order as will be shown later on. To begin with,issuance of HDOs in aid of criminal prosecution of non-aliens is not among the principalresponsibilities of the Bureau of Immigration (now CID). Under this Act, the principalresponsibilities of the Bureau comprise of the administration and enforcement of immigration,citizenship, and alien admission and registration laws in accordance with the provisions of theImmigration Act.60 Thus, Section 3 of the Act limits the powers of the Commissioner ofImmigration to issue rules and regullations and instructions "not inconsistent with law, as he shalldeem best calculated to carry out the provisions of the immigration laws." Pursuant to this, theCommissioner of Immigration can only issue law instructions authorizing restraint on liberty andthe right to travel which are geffnane to the purpose of the Immigration Act.

As it can be seen from the Act, the right to travel can only be limited in the followingcircumstances: Under Section 6, immigration officers are empowered to "arrest, without warrant,any alien who in their presence or view is entering or is still in the course of entering thePhilippines in violation of immigration laws or regulations prescribed under"; Under Section 25,examining immigration officers may order the detention of aniving aliens who belong to any of theclasses excluded by immigration laws to enable the officers to determine whether they indeedbelong to the excluded class; Section 29 enumerates the classes of aliens excluded from thePhilippines; Section 3l empowers the Commissioner of Immigration to request the Collector ofCustoms to withhold clearance from any vessel which has been declared in default for not payingthe immigration head tax; and Section 37, which authorizes the Commissioner of Immigration or ofany other officer designated by him to arrest aliens upon a warrant.

Furthermore, the issue of whether the Commissioner of Immigration is clothed by anyprovision in the Immigration Act 6r by the Administrative Code with authority to arrest and detainindividuals pending determination of the existence of a probable cause has been settled in the case

t;\d. otp.';3.5t 80 sc'RA 47t (tg7i).i" D[-. l.l]oN. stprl note 56, at 19.6{)

1987 Adnrinistrative Code. Book 4, Title 3. Chapter 10. Sec. 3l


of Harvey v. Defensor-Santiago.Gt In that case, petitioners are two Americans residing atPagsanjan, Laguna who were arrested by CID agents after three months of close surveillance. Intheir petition for Habeas Corpus, they questioned the validity of their detention primarily on theground that the Commissioner of Immigration is not authorized to arrest or detain them pendingdetermination of the existence of probable cause leading to an adminisffative investigation. Indismissing the petition, the Court through Madame Justice Melencio-Henera declared:

"The ruling in Vivo v. Montessa (G.R. No. 24576, luly 29, 1968,24 SCRA155) that'issuance of warrants of arrest by the Commission of Immigration, solely forpurposes of investigation and before final order of deportation is issued, conflicts withparagraph 3, Section I of Article lll of the Constitution' (refening to the 1935

Constitution) is not invocable herein. Respondent Commissioner's warrant of arrestissued on 7 March 1988 did not order petitioners to appear and show cause why theyshould not be deported. They were issued specifically for violation of Secs. 37 , 45, and46 of the Immigration Actand Sec.69 of the Revised Administrative Code. Before that.deportation proceedings had been commenced against them as undesirable aliens on 4

March 1988 and the arrest was a step preliminary to their possible deportation.

The foregoing does not deviate from the ruling in Qua Chee Gan v.

Deportation Board{G.R. No. 10280, September 30, 1963,9 SCRA 27 11963l) reiteratedin Vivo v. Montessa, supra, that 'under the express terms of our Constitution (the 1935

Constitution), it is therefore even doubtful whether the arrest of an individual may beordered by any authority other than a judge if the purpose is merely to determine theexistence of a probable cause, leading to an administrative investigation.' For, as

theretofore stated, probable cause had already been shown to exist before the warrants ofarrest were issued."

From the foregoing, it is clear that other than the situation where warrants of arest can beissued as a preliminary step to a possible deportation of an alien, the Commissioner of Immigrationcannot order the arrest or detention ofany person.

In the light of the foregoing, the issuance of an HDO by the CID, aside from for purposesin aid of criminal or deportation cases pending before it, is wanting in authority. This is totallywithout basis under the Immigration Act.

The constitutional validity of an HDO issued prior to or during preliminary investigationas a restriction on the right to travel must conform with the requirements of procedural dueprocess. Compliance thereto guarantees fairness in the enforcement of laws which effectdeprivation of liberty and property. As a rule of fairness, procedural due process helps achievetwo purposes. Instrumentally, it contributes to accuracy and thus minimizes errors in deprivations.

"' 162 scRA 841 (1988).


More intrinsically to the person who is subject of deprivation, it gives a sense of rational

participation in a decision that can affect his destiny and thus enhances his dignity as a thinking

person.u'

Particular proceedings before an administrative agency have been held civil rather than

criminal in nature. This has been held in regard to departmental trials or proceedings like

proceedings for the discipline of police officers, license revocation, quarantine proceedings. and

deportation proceedings. Such proceedings have been held to be civil rather than criminal in

nature even though the charge before the agency is based upon a violation of the penal law.

However, in such cases, fairness may require the observance of the salutary purposes behind

certain rules of criminal procedure.63

To test its compliance with procedural due process, issuance of an HDO must basically

adhere to the requisites of notice and opportunity to be heard before judgment is rendered, whether

issued pursuant to a judicial or administrative order. This has been emphasized in the case of Kant

Kwongv. PCGG where the Supreme Court held that the PCGG has disregarded the requirements

of "fairness and due process" expressly mandated by Executive No. 14 by not giving petitioners

any opportunity to contest the HDOs issued against them.6a

Observance of due process is of utmost importance when restraint through an HDO is

issued by administrative agencies on any of the permissible grounds which may be provided by

law. In such case, issuance of an HDO hinges on the discretion of the administrative officer or

agent, unlike when it is issued pursuant to a valid court order or as a mere ministerial function.

The proceedings for the issuance of an HDO by administrative officers in this manner is

akin to a deportation proceeding because the same effects of the latter on a person's physical

liberty are present. Such proceedings must abide by the requisites of due process laid down in the

case of Lao Gi v. Court of Appeals.65 In the said case, the Supreme Court declared that where the

nature of an administrative action like deportation partakes of a harsh and extraordinaryproceeding affecting the freedom and liberty ofa person, the due process to be observed should be

similar to that provided under the Rules of Court for criminal cases.oo Mr. Justice Gancayco has

declared:

"Although a deportation proceeding does not partake ofthe nature ofa criminalaction, however, considering that it is a harsh and extraordinary administrativeproceeding affecting the freedom and liberty of a person, the constitutional right of such

person to due process should not be denied. Thus, the provisions of the Rules of Courtof the Philippines particularly on criminal procedurc are applicable to deportationproceedings.

n' BERNAS. supra note 35. at 47.nt DE LEON. Supra note 56, at 198-1996r Kant Kwong. su])ro nole 1 3. at 23 I .

o' l80 scRA 757 (1989)no ld.

22 Constitutional Right to Travel

Hence, the charge against an alien rnrst ,r..,u the acts or omissions comprained ofwhich must be stated in ordinary and concise language to enable a person of commonunderstanding to know on what ground he is intended io be deported and enable the CIDto pronounce a properjudgment.

Before any charge should be filed in the CID u pii.in.ry investigation mustbe conducted to determine if there is a sufficient cause to charge the resfondent fordeportation. The issuance of warrants of arrest, arrests without ianant and service ofwaffants should be in accordance likewise with Rule ll3 of the 1985 Rules of CriminalProcedure, search warrants issued by the CID shall be governed by Rule 126 ofthe l9g5Rules of Criminal Procedure, and so the matter of bail, motion to iuash, and trial, amongothers. Fealty to the prescribed rules of procedure in deportation cases shall insure aspeedy. fair and just dispensation ofjustice.

It is the opinion of this writer that if the law has provided for suflicient due processrequisites before an alien can be deported, then there is no reason why the .u6 Jr. i.o..r,safeguards should be denied to its own citizens who are deprived of similar rigtrts. ttre priulrionon due process in clD Law Instruction No. 5 is more of a rlctification rather ttan a prevJntlon. ttreads:

"4. Copies ofthe HDo shall be furnished the person subject ofthe order, so that he may,if he so desires, fite a motion for reconsideration with the Bureau.,'

This provision contemplates a situation where an HDo has already issued and therestraint on person's liberty already effected. There is no forum wherein ihe person to berestrained can present his side before an HDo is issued. what remains to be done fy the personaffected is to file a motion for reconsideration with the cID to contest the HDo alieady irr".a.This is a remedy provided after injury on the right to travel has already been done. It is theexception, not the rule. This is contrary to the rulings in the cases of Lopez v. Director of Lands,Sicat v' Reyes, and Suntay v. People. In the first iur., ou, Supreme Court declared that in theexercise of quasi-judicial or adjudicatory powers, administrative agencies may not deprive, normay a statute empower.them to deprive, a person of his constitutionally protected rights to'life,liberty and property without notice and hearing which is adequate and fair. In the second case, itdeclared that due process oflaw conternplates notice and opportunity to be heard before iudgmentis rendered affecting one's person or property or depriving

^rrim oilrls rights.68 r" ,r" l"ri."S,'rrr.

Court decided that hearing is proper and necessary ifthe reason forlhe exercise ofdiscretionvested on an administrative officer by law is not clear but doubtful.6e

61 Id. at762-763.68

Slca/ r' Reyes, 100 Phil. g33 (1957).6u

Suntt4'. .uera note 16. at 838.

Human Rights Trcatise on Constitutional Larv :)

In order for fte safeguard to be preventive rather than curative, the due processrequirement in criminal cases should be followed in proceedings seeking the restraint on the rightto travel. Our Supreme Court has laid down these requisites in the case of Mejia v. Pamaran.To ltrequires that the individual sought to be restrained should be "informed as to why he is proceededagainst and what charge he has to meet, with his conviction being made to rest on evidence that isnot tainted with falsity after full opportunity for him to rebut it and the sentence being imposed inaccordance with a valid law. It is assumed, of course, that the court that rendered the decision isone of competent jurisdiction." Simply put, the person sought to be restrained should be given theright to a hearing and be allowed to present his case and submit evidence in support thereof. Thetribunal concerned must consider the evidence submitted and ultimately base its decision on thesame after acting on its own independent consideration of the law and facts of the case. It shouldnot simply accept the views of the applicant for the HDO.

CONCLUSION AND RECOMMENDATION

After presenting and examining the nature, rationale, and coverage of the right to traveltogether with its limitations as provided by law, it is an inevitable conclusion that an HOO issueOin said situation is not a valid limitation on the right to travel nor a valid exercise of the policepower of the State.

To justi0 this conclusion, this thesis has established that the right to travet of anindividual can only be limited by the State on specific grounds given under the Constitution.Except for issuance due to a lawful court order and in cases where a criminal or deportation case ispending against aliens, legislation is needed to elucidate the other grounds provided. The issuanceof an HDO for the purpose of holding persons on mere suspicion of criminal responsibility byadministrative officers is not warranted under any color of legal authority. It is in this manneithatan HDO issued by the CID prior to or during preliminary investigation for purposes other thanthose authorized under the Immigration Law is premature and a cleai invasion of personal liberty.

Furthermore, this thesis also concludes that an HDO issued at the aforesaid stages isarbitrary as it constitutes an obvious prejuclgment of guilt. This is because the present guidilinesfor issuance of HDos do not afford the person sought to be restrained a prior oppo*rtunity tocontest it. The underlying purpose of due process is frustrated as the present safeguard faiis toprevent this grim predicament.

Although an HDO is not permissible under existing laws to restrain a person upon meresusp.icion of criminal liability prior to and during preliminary investigation, thire still iemains aneed for a viable measure to prevent criminal elements frorn slipping out of the country, andeventually escaping prosecution. In addressing this problem, it must always be emphasized thattime is of the essence. If government prosecutors corrtinue to be power-less in restraining thedeparture ofcriminal suspects unless they go through the usual and lengthy procedure ofgetting ajudicial order barring said departure, the exodus olmoneyed criminalslom the country rioulcl beinevitable.

t" t 60 scRA 457 ( t 988),

Constitutional Righf to Travel

To remedy this inadequacy in the law, it is recommended that the present Rules of Courtshould be supplemented to incorporate a provision on the issuance of HDOs. The proposedprovision must be similar to the application of a search and seizure warrant under Rule 126. ln thismanner, an HDO can be issued even prior to the preliminary investigation provided that specificguidelines are observed. These are: (l) it must be issued upon probable cause and necessify ofimmediate detention; (2) the probable cause and necessify of immediate detention must bedetermined personally by the judge himself and not by the applicant or any other person: (3) in thedetermination of probable cause, the judge must examine under oath or affirmation thecomplainant and such witnesses as he may produce; and (4) the application and the order issuedmust particularly describe the person to be barred and the ground which justifies the restraint. Ifthe order is issued pursuant to these guidelines, the constitutional safeguards previously discussedare complied with. Additionally, said issuance qualifies as a lawful order of the court which isprovided under the Constitution as a valid restriction on the right to travel.

The proper administrative agency which must implement any subsequent lawful orderbarring departure of criminal suspects must be directed to the Department of Foreign Affairs forthe purpose of withholding the issuance or the cancellation or restriction of passports. It must benoted that under Section 50, Chapter 13, Title I of the Revised Administrative Code of 1987, theSecretary of Foreign Affairs has the authority "to withhold the issuance or order the cancellation orrestriction of passports upon lawful order of the couft." Without a valid Philippine passport,foreign travel of a person through ordinary means is virtually impossible.

In the meantime, it is also recommended that in order to bar the departure of criminalsuspects, judicial determination of the necessity of immediate detention should be secured at theearliest possible instance. Outside the National Capital Judicial Region or chartered cities, this canbe done by a Municipal Trial Court judge in relation to his power to issue warrants of arest underSec. 6 (b) of Rule I12. Since the power of the Municipal TrialCourt judge to conduct preliminaryinvestigations includes the power to determine the necessity of placing the suspect underimmediate custody, he can also order the issuance of an HDO. By resorting to this procedure,government prosecutors are able to cut short the tedious procedure of a full-blown preliminaryinvestigation if they initially need a means of restraint on the suspect's departure at the earliestpossible time.

However, these recommendations still hinge on the effort to gather sufficient evidencewhich will warrant the necessity of detention. This duty of utmost vigilance rests primarily on thegovernment's criminal investigation agencies. The recognition and enhancement of this vitalparticipation will greatly help effectuate the best interests of our criminal justice system.


THE "PERSONAL Kh{OWLEDGB" REQUIREMENT INWARRANTI,ESS ARRESTS AS APPLIED TO

INTELLIGENCN GPETTATIONS AF'FECTING NATIONALSECURITY: AN ANALYSIS

SIEGFRED B. MISON-

INTRODUCTION

During the past two decades, the Philippines has faced three major threats to its nationalsecurity: the communists, represented by the Communist Parfy of the Philippines,New People'sArrny,4',lational Democratic Front (CPPNPA/I{DF); the secessionists, represented by the MoroNational Liberation Front/Muslim Islamic Liberation FTonVMNLF-Reformist Group(MNLF/MILF'/MNLF-RG); and the ultra-rightists, represented by the Rebolusyong AlyansangMakabansa/Young Officer's Union (RAM/ALTASiYOU). At the forefront of the government'scampaign against these so-called "threats" is the intelligence community which undertakessensitive operations in an attempt to topple the top leadership of these groups.

Despite the passage of the Philippine National Police (PNP) law which mandates the PNPto take over the counterinsurgency campaign from the .A.rmed Forces of the Philippines (AFP), stillthese two law enforcement agencies continue to work hand in hand in this campaign. Intelligenceoperations undertake to cripple enemy organizations by targeting top leaders and neutralizing fund-raising and recruitment activities. Recently, the AFP intelligence units have also been tasked bythe Commander-In-Chief to assist the PNP in its fight against organized crime. Pursuant toExecutive Order No. 280, the Intelligence Service of the AFP, the National Bureau ofInvestigation (NBI), and the PNP contributed teams to form the Presidential Task Force onIntelligence and Counterintelligence (PTFIC) which was created to run after military and policescalawags engaged in bank robbery, gunrunning, carnapping, kidnap-for-ransom, and drugtrafficking. Thus, at present, both AFP and PNP intelligence units are being used to handle specialcases involving organized lawless elements in society.

No matter how their operations are carried out, the intelligence operatives are nonethelessexpected to uphold individual rights and personal liberties. No less than the Constitution of theRepublic of the Philippines has bestowed upon the government the prime dufy of serving and

rprotecting the people.rGovernment, however, has had to deal with the fact that most oflheseintelligence operations have been criticized as being violative of certain human rights.

It is essential to note aithis point that prior to the amendment of the Rules of Court onwarrantless arrests. several operations were conducted wherein the only requirement forwarrantless arrest was for the arresting officer to simply have "reasonable grounds" to believe that

Juris Doctor 1996. Ateneo de Manila School of Larv.I Pllll.lPP|NE CONSTITIJTION. Article Il. Secrion 4 (1987) [hcrcinafter cited as pHIL. coNST l

26 Werrantless Arrests

the person to be arrestecl committed the crime.2 In view of the amendment in the Rules, there is aneed to analyze the effects of the "personal knowledge" requirement on the conduct of intelligenceoperations.3

THE ROLE OF INTELLIGENCE AND INFORMANTS

Ideally, the purpose of intelligence is to supply the unit commander with complete andaccurate information regarding a particular mission. Knowledge is power, and armed with the,

pertinent data relative to a specific operation, the probability that a commander will arrive at a

correct decision is increased. Fundamentally stated, "the purpose of the intelligence unit is toincrease the probability of accuracy in operational staffdecisions."a

There are four phases in the intelligence cycle. While each phase has distinct activitiesffom the others, in some cases, these phases overlap depending on a given mission. All four phasesmay even take place concunently. For instance, at the same time that new information is collectedby informants, previously collected information is analyzed, processed and disseminated.5

The first phase involves the planning and directing of the collection effort. In this phase,the unit commander with the assistance of his intelligence officer formulate requirements andpriorities in order to plan the collection of information pertaining to the tasks needed to beaccomplished for a given mission. The second phase involves the actual collection of informationfrom different sources which may be either open or covert. Open sources include newspapers,radio broadcast, and other items available to the general public. Covert collectors of informationcommonly known as agents collect information from a network of informants/assets who are eitherrecruited or who simply cooperate with the intelligence organization. Another method ofcollecting information although not entirely reliable is for agents to buy information from localinformers/tipsters who are outside the organization. Information can also be extracted from a

known enemy supporter through the process of interrogation. Regardless of how the information isobtained, the same is then forwarded to a group of analysts who record, evaluate, interpret andintegrate all available information pertaining to a given mission. In the third phase, the collectedinformation is evaluated based on its accuracy and reliability of the source, and subsequentlyintegrated with prior and related information. After the application of generally acceptedprinciples of logic and reasoning, the analysts come up with an assessment and thereafter, releasethis "processed" information as intelligence. In the fourth phase where intelligence is disseminatedto all concerned units, additional information may be required due to the fluidity of the situation.With new developments, the cycle goes back to the first phase where planning for a new collectioneffort begins.

r Old Rules of Court. Rule I 13. Section 6(b).I Revised Rulcs ofCourt. Rule I 13. Section 5.

' I)ON,,tl.l) o sctlLJt.TZ and LoRAN A. NOR'ION. Pot.tcttr OPhRAIIONAL IN'IEI-LIGENCU (1973). p 202[hcrcinaltcr citcd as Schultz].' ltllrl-D MANTJAL ON COMBAT INTIILLIGENCh. Ilcaclquarters. Dcparrmenr olthc Army (1973).

[Iuman R.ights Treatise on Constitutional Law

To collect information, the intelligence organization relies on several methods. Casingand surveillance are types of operations where members of the organization directly participate inthe collection process. These operations, while may be considered as inffusions to one's privacy,are capable of providing first-hand information to the observer/operative himself or herself, thus,satisrying the personal knowledge of facts required by Rule l3 of the New Rules of Court. As theSupreme Court ruled inthe case of Peoplev. Bati,6 police officers have knowledge of the actualcommission of a crime when they had earlier conducted surveillance activities on the accused.However, most of the time, these operations are very costly and time-consuming. In practice, thebulk of hard-to-get information comes from a network of informants.

Admittedly, there are information that can be acquired only through the use of informants.While most informants are documented and paid from intelligence funds, some refuse to bedocumented for fear of reprisal in case of discovery by the enemy. This fear is particularlywidespread in the far-flung areas where government presence is hardly felt.

One type of informant whose reliability is beyond question is the deep penetration agent(DPA). He or she is recruited by the military fiom within the ranks of the enemy movement.Information from these type of informants are very accurate so much so that the enemy will thinkthat the information obtained by the military could have only come from within. Another type ofinformant, though less reliable compared to DPAs, is one who has access to the activities of theenemy. The driver/employee or close relative of a targeted individual are examples of this type ofinformant.

Parenthetically, intelligence sections of combat units have a Barangay Information Net(BIN) which is composed of cooperative and pro-government members of the community.TMembers of the BIN who are usually barangay officials, professionals, and businessmen provideinformation of lesser value but sometimes confirm those obtained through the regular informants.Undoubtedly, informants have proved their importance in thwarting threats to the nation's security.

THE RULE OF LAW

There are three fundamental elements of the rule of law: the absence of arbitrary power,the subjugation of the State and its officers to the ordinary law, and the recognition of basicprinciples superior to the State itself.s By their nature, national security and rule of law arediametrically opposed to each other. To preserve national security, the State needs some degree ofarbitrariness to prohibit certain individual acts which tend to destabilize the government. On theother hand, the Bill of Rights was incorporated into our Constitution to subordinate governmentaction to legal restraints not in order to convenience the guilty but to protect the innocent.e Thethird element of the rule of law is the justification for citizens to oppose government regulation

o I 89 scRe 97 ( I 990).

7 FTANDBOOK FOR INTELLIGENCE OFFICER'S COURSE. Special Intelligence Training Schoot. ISAFp (1989).' MARCI;s G RASKIN. THE poln'tcs oF Nn'noNAt. sucrlnn'y (1979). p 84" CiliI{MANN. A.C.. DAY. F.D. and GALLATI. R.R.. INl'ltODlJC'l ION l'O LAW ENFORCL:MItNl' AND CRIMINAIlUSl'lCU. p. 70 [herernaller cired as Germann].

Warrantless Arrests

when they feel that their rights have been violated. Naturally, not all individuals will affirrnwhatever government does. This is the essence of democracy which government recognizes as

superior to the State itself.

Through various law enforcement agencies, the State exercises its power to implement therule of law in order to protect the country's national security. Peace and order, security andstability are just some of the ultimate objectives of law enforcement. The concern of larvenforcement agencies is to pass the test of reasonableness; for intelligence units in particular, it is

to pass the same whenever warrantless arrests based on information gathered from the network ofinformants are made.

Many believe that the most important task of law enforcement is to protect the people.Others believe it is to maintain order in society. In performing these functions, law enforcers areexpected to follow certain norms of conduct. For example, in making arrests, peace officers areexpected to use reasonable force in taking into custody the person to be arrested. In case ofarrests without warrant, peace officers must have probable cause before effecting the arrest.

The case filed against lgnacio Capegsan, reportedly the numberthree man of the CentralCommittee and the Deputy Secretary General of the Communist Party of the Philippines wasdismissed on 21 March 1989 due to the inadmissibility of evidence against him brought about bythe illegality of his anest. The case filed against Veronica Tabra, reportedly the Finance Officer ofthe Visayas Command was likewise dismissed on 9 May 1987 by Judge Oscar Pimentel of theRegional Trial Court of Makati due to the same reasons.'o The case of Illegal Possession ofFirearms Used in Furtherance of Rebellion filed against Fr. Rustico Tan @ Ka Eddie/Andres Lunaresulted in an acquiftal due to insufficiency of evidence after the judge excluded all the articlesseized from the accused because of the illegality of the arrest.rr Dismissals due to illegality ofarrests usually result from most of the cases filed against alleged members of the communistmovement. Other cases do not even reach the preliminary investigation stage due to sometechnicalities on the conduct ofarrest.

There is, thus, an urgent need to analyze the reasons for the illegality of the arrests madeby intelligence operatives as most of them normally fail to fall under the exception provided inRule I l3 of the Rules of Court. Specifically, the "personal knowledge" requirement appears to bean insurmountable obstacle for intelligence operatives to hurdle in order to justify their warrantlessarrests. For instance, in one case,'t the Supreme Court ruled that the personal knowledgerequirernent would exclude inforrnation conveyed by another person, no matter what his reputationfor truth and reliability might be. While in another case,rs the same Court ruled that informationbased on actual facts and supported by other circumstances furnished by reliable sources may leadto a reasonable arrest. The pivotal issue then is whether intelligence information gathered andrelied upon by intelligence organizations can be considered as coming within the purview of

r0 cAI).f MANTJEI- ITRILI-ES, coNSTtfuIoNAL AND srA'tllloRy pRovtstoNs AFFEC'ilNG At'pIN'll:l.t-l(;tlNcti SERVICE OPERATIONS : AN ASSESSMENT ( 1 989). p. 2BI ' l.tl(;n t. OTjFENSIVENESS OF ]'HE AIrP. AIiP Lcttcr Dircctivc datcd Julv 1990.

t2 I'cople t, llttrgos. 1.44 SCRA I (19S6)t3 ( rni! t' llanto.s. 202SCRA 25 I (1991 )


"personal knowledge" as required by the New Rules of Court. Since informants are not thearresting officers in intelligence operations, are all arrests made on the basis of the informationprovided by them illegal? Can warrantless arrests be made on the basis of reasonable suspiciolrbased on confidential information?

The problem that confronts the law enforcers is the application of their discretion indetermining what is "reasonable" or whether there exists "probable cause" in the conduct ofarrests. In the perforrnance of their duties, most law enforcers tend to be overzealous inaccornplishing their task of maintaining order and disregard their other task of safeguardingindividual personal liberties. As held in Guazon v. De Villa, the Constitution grants thegovernment the power to seek and cripple subversive movements which would bring down theconstituted.authority. However, all government actions are governed by the limitations of the Billof Rights.ra The celebrated Kuratong Balelengcase't is an example whereby individual rights anddue process were disregarded in the guise of maintaining order in society by getting rid of thecountry's most notorious crime syndicate.

CONSTITUTIONAL PROVISIONS AND CASE LAW ON ARRESTS

The Constitution does not prohibit all arrests. It merely prohibits illegal arrests, that is,those which are unreasonable or show no probable cause and those which do not fall under theexceptions on arrests without warrants.

"The right of the people to be secure in their persons, houses, papers, andeffects against unreasonable searches and seizures of whatever nature and for anypurpose shall be inviolable, and no search warrant or warrant of arrest shall issue exceptupon probable cause to be determined personally by the judge after examination underoath or affirmation of the complainant and the witnesses he may produce, and particularlydescribing the place to be searched and the persons or things to be seized.,'r6

While the provision on walrantless affest does not explicitly appear in the above-quotedsection under the Bill of Rights, the clause "the right to be secure in their persons... againstunreasonable seizures" is to be understood as the protection contemplated in this paper.rT A briefdiscussion on the nature of arrest, the purpose of a warrant, and the need for the exception to thewarrant is necessary to have a better understanding ofthis particular right granted under the 1987Constitution.

' A. NATIJRE OF ARREST. Arrest is the initial stage of the prosecution where thesuspect becomes an accused. Thus, the person anested often challenges the legality of an arrest byraising the issue of lack ofprobable cause. The arresting officer, on the other hand, often invokes

'o lBl scRA 63 I (1990)l5 On May I 8 1995. cleven suspected nrembers ofthc Kuratong Baleleng robbery gang were kitlecl in an alleged rubout b5policc ollicers in Quezon C itv.ro PHIL CclNS f . Art. lll. Sec. 2r7 JosEPH c. cooK. cciNsrtruroNAL RIGHTS oF THE ACCUSED: IRE-TRIAL RTcHTS (197'2), p 2s[herernatler cited as Cook].

30 Warrantless Arrests

the lack of any form of arrest to avoid the burden of having to prove probable cause.'t Thus,whenever a person is intenogated by the police and such interogee is aware that he or she is free toleave, there is no arrest effected. This "free to go" rule is well-entrenched in U.S. law enforcementagencies.re In the Philippines, members of the AFP deployed in the field are known to "invite"suspected individuals for "tactical interrogation" instead of forcibly taking them to theheadquarters. The experienced police officers likewise resort to this modus operandi since it hasbecome an effective tool of protecting themselves against any hability. However, in a U.S. case, to

the Court ruled that when a police officer, by means of show of authority, has somehow restrainedthe liberry ofan individual, it is proper to conclude that an arrest has occurred.

Military checkpoints are also- considered as a reasonable form of temporary detention.ztIn tlre case of Valmonte v. de Villa,22 the setting up of checkpoints as a security measure wasconsidered as legal inasmuch as plots to destabilize the government were prevalent during thatperiod.

Certain circumstances may also lead to reasonable arrests despite the lack of a warrant.In one case,23 the Court found the warrantless arrest to be legal when the accused was accosted bypolice officers on a surveillance mission and found marijuana in his possession. In another case,z4the person arrested was acting suspiciously, and when accosted, he tried to flee from the police.Under these circumstances the Court found his arrest to be reasonable.

The purpose ofa warrant is to direct the arresting officer to bring to court the person to bearrested as named therein. The requisites for a valid warrant are as follows:

I ) It must be based on probable cause.2) The probable cause must be determined by the judge.3) The determination must be made after examination under oath or affirmation of the

complainant and the witnesses he may produce.4) It must particularly describe the person to be arrested.25

A warrant is supposed to be a specific order by the judge. Thus, the latter alonedetermines whether there exists probable cause in ordering the arrest of any person. As executorsof the warrant of arrest, the arresting officer has to strictly obey the instructions under the warrant.Hence, generally speaking, the arresting officer avoids any liability as long as he or sheimplements the order of the judge in a properly procured warant.

In arrests without warrant, the police officer substitutes as a judge and performs theexamination whether there exists probable cause in a given set of circumstances. While the judge

t& ld. at34.p

Jos[ipl t A. VAI{oN. sEARCHES. sEIZURES, AND IMMTJNITIES ( 1974).20 lcl. at 103.2t Supro note 10.tt

195 scRr\ 202 ( I 991 ).23 People v. 7'angliben. I 84 SCRA 22 (lgg0\.2-1. Posaclos t'. Pcoplt, I 88 SCRA 288 (1990) [hereinafter cited as Posotlasl." ISAGANT A cRtJZ. CONSTITUTIONAI- LAw (1989). p lj4.

p. I l3 [hereinafter cited as Varon].

Warrantless Arrests

prudent man in believing that the petitioner had committed or was committing anof-fense. "2e

Based on the foregoing, there is a need to further expound on certain terms such as ,.reasonablytrustworthy information,' and ,,prudent

man".

I "Reasonably trustw ,,. This *does not mean evidence beyondreasonable doubt that the person to be arresred has committe? a crime, il;; ;;.il',i,oi"" tt un"mere suspicion"'3' suspicion implies a belief or opinion as to guilt, based upon facts ,orcircumstances which do not amount tro proof. Suspicion-is weaker than belief, since suspicion byitself is not sufficient to justify a wirantless arest.3r et rrO for an information to be"reasonably trusfwotthy", its source must not only be reliable enough to arouse the suspicion of thearresting ofhcer but must also be based on facts which such officer-sincerely believes in.

In one case, the information gathered by the policemen at the place where the body wasfound indicated that the accused *ur r."n carrying u gun.tt irt.r.'*.." no eyewitnesses to themurder and the policemen merely relied on the narration of events which happened even ierore tt,eincident occurred' The Supreme court ruled that the arrest without a warrant was unlawful since itwas effected one day after the killing and its only basis was the information ob;in; lv'rr,.policemen from unnamed sources.

In another case' the Supreme court found the circumstance where a co-accused positivelyidentified and pointed to the accused as the source of marijuana insufficient ," l,lrlipy ,rr.warrantless affest. The court further admonished the policemen for "using the tactics oi"-p"li..state, where the minions. of_the government place liftle value on human rights and individualliberties and are obsessed only with the maintenance of peace and the punishment of crime,,, andruled that said policemen should have procured a warrant on the basis of th" inforrnu,ion ruppii.aby the co-accused.33

The same ruling was reached by the Supreme court in the case of people v. Mengote.iaTh.e accused was charged with illegal possession of firearms after the police suspected him ofbeing a robber. when the police ieceived a telephone call from an informer trr"t ,rrpi.i"rr-looking persons were in Tondo, they arrested the accused for his darting eyes and for having hishand on his abdomen.

2' "Prudent ma4"' This term is the yardstick used in establishing probable cause. As heldin several cases decided by the U.S. Supreme Court, a prudent,;" ;," a hypothetical person created by the courts rvho represents the norms ofreasonablc behavior. He is the personification of a community ideal of reasonablc

2e Cook. .!try)ii1 Ilotc I7. at q9,,, l,!jl

Varorr. .\uprd nole I q. at 120.'.'. PcoplL r. Ccndttna. 190 SCRA 53g (lqq0)i', Peoplc t'. [:nrile,222 SCRA 5g6 (199J).'" 2l 0 SCRA t74 lt9s2).


behavior and his conduct will vary with the situation rvith rvhich he mar be

confionted."r5

Thus, there is no mathematical formula for arriving at "prudence" albeit there are some

law enforcers who can be said to be more "prudent" than others because with their training and

experience, they have actually developed an instinct for detecting criminals even prior to any overt

act.

In one case,36 the arresting officer who was on Detached Service with the Anti-NarcoticsUnit was able to arrest the accused even before the commission of any suspicious activity on the

part of the latter. With his training and experience, the officer secretly discovered the possession

of marijuana when he searched a package emitting the odor of marijuana belonging to the accused.

B. REASONABLE GROUNDS. Before the amendment introduced in 1983, the

provision on the Rules of Court read:

"A peace officer or a private person may, without a warrant, arrest a person

when an offense has in fact been committed, and he has reasonable ground to believethat the person to be arrested has committed it."37 lltalics supplied)

In order to fall under this exception, two (2) conditions must exist. A crime must have infact been committed and the anesting officer has reasonable grounds to believe that the person tobe arrested has committed the crime.

l. "Has in fact been committed". A crime must first be established as a factbefore having the justification based on reasonable grounds. Thus, mere suspicion of an

occurrence of a crime is not enough. Apparently, the purpose of this requirement is to preventfishing expeditions where arresting officers look for evidence from a person who has not shownany indication of criminal activity.

However, in one case, the Supreme Court ruled that it was not necessary for the fact of the

crime to be established in order to regard the detention of a suspect as legal. In this case, a certainAranzanso was arrested by virtue of an order by the acting chief of police. The order was to arrestan individual whose description fits Aranzanso for the purpose of identifying him for his possibleinvolvement in a robbery. Quoting a decision of the Supreme Court of Spain on January 27, 1885,our Court held that:

"The legality ofthe detention does not depend upon the fact ofthe crime, but ...

upon thc nature ofthe deed, wherefrom such characterization may reasonably be inferredby the officer or functionary to whom the law at that moment leaves the decision for theurgent purpose ofsuspendlng the liberty ofthe citizen."38

15 Varon. supranote 19, at l3l.36 People v. Claudio,160 SCRA 646 (1988)37 Supranolc2.38 U.S. ,. Sanchez,2T Pltrl 442 (1914).

Warrantless Arrests

In a later case,3e a warrantless arrest was held to be illegal since the authorities were stillfishing fbr evidence of a crime not yet ascertained. The Court ruled that a crime must be actuallycommitted in order to fall under this exception. The fact of the commission of a crime must be

undisputed and the test for reasonable ground only applies to the identiry ofthe suspect.

2. "Reasonable grounds to believe". This requirement is dependent on facts and

circumstances as seen by the anesting officer. In one case, arof{icer was charged with the crimeof arbitrary detention for ordering the detention of Bibiana Sanson. The detention immediatelypreceded the assault on the person ofthe officer by her brothers. The officer believed she had a

part in the assault since she was angry at him for breaking up an engagement with her. The

Supreme Court ruled that the officer reasonably believed or had a ground to suspect that a crimehas been committed and that it was committed by Bibiana - the person precisely arrested.ao

Based on the foregoing, the legality of the anest ultimately depends on the officer'sdiscretion whether there exists reasonable grounds to believe that the person to be arrested

committed the crime. The arrest must be based on a belief supported by facts and circumstances

either known personally to the officer or from hearsay but reliable information. However, the

officer who acted upon information from third persons must not have any other information which

is contrary to the one received.ar In other words, there must be no circumstances sufficient to

impeach the "tip" which served as the foundation for the wanantless arrest.

C. PERSONAL KNOWLEDGE. Under Section 5 (b) of Rule 113 of the New Rules on

Criminal Procedure, two (2) conditions must be complied with in order to fall under the exception.

First, a crime has just in fact been committed and second, the arresting officer has "personal

knowledge of facts" that the person to be arrested is the one who committed the crime.

L "Has in fact just been committed". The amendment carried the term'Just" toindicate immediacy. Therefore, it is not sufficient that the occurrence of a crime is established as a

fact but the arrest must immediately or subsequently take place after the crime. Reacting to the

majority opinion in Umil v. Ramosaz which held that the arrest was legal despite the lapse of 14

days after the crime was committed, Justice Isagani A. Cruz in his separate opinion said that the

arrest must be made "almost immediately after or soon after the acts, not at any time after

suspicion of the arresting officer begins, no matter how long ago the offense was committed".

Hence the term 'Just" was precisely inserted to indicate a time element from the fact ofthe crime up to the fact of the arrest. The reckoning point must be from the occurrence of the

crime and not from the knowledge of the arresting officers of the crime. For instance, a murder

occurred on a Sunday but the policemen came to know the fact of the murder only the followingThursday. Applying the separate opinion of Justice Cruz in the Umil case, the reckoning point

should be from Sunday and not from Thursday inasmuch as the rules provide for "has just in fact

t" I'eople v. Ilurgos. 144 SCRA I (1986)r" {i.S. r. Jnche tu,27 l>hil.442 (1914\.,' VIC[iNTt].', FI{ANCISCo. THE ITEVISED I{ULt]S OF COIJI{'I IN'ITiI:] PIIILIPI,INES (I9(I9). p .1I512 202 Sc'RA 25 I. at 283 ( l99l) fhereinalter c;ited as {-/rrril].

Human Rights Treatisc on ('onstitutional Larr

been committed" refening to the commission of the crime and not to the knowledge of ihe

arresting officers.

However, as presently interpreted by the Supreme Court, the immediacy of the crime is tobe reckoned from the knowledge of the officers of the fact of the crime. The records of theNazareno case which was consolidated with the Umil case revealed that the murder occurred on 14

December 1988. When one of the suspects was arrested on 28 December 1988, he pinpointedNazareno as one of his companions during the murder. The Court pronounced:

"the arrest falls under Section 5(b) of Rule l 13, since it was only on 28December that the police authorities came to know that Nazareno was probably guiltl, ittthe kitling of Bunye II and the arrest had to be made promptly, even without a warrant."43(italics supplied)

However, showing again its inconsistencies, the Court ruled in People v. Manlulu, that thewarrantless arrest was illegal since the killing took place at one o'clock in the morning rvhile thearrest was effected at seven o'clock in the evening of the same day.aa Accordingly, the lapse ofnineteen hours failed to comply with the requirement of "has just in fact been committed".

2. "Personal knowledge of facts". In the tJmil case,as military agents went to a hospital toverif,i a confidential information about a Sparrow member who was reportedly admitted in thehospital for gunshot wounds. The same confidential information coming from the attending doctorlikewise revealed that the patient may be those among the five Sparrow members who murderedtwo policemen the day before. Based on these narration of events, the Supreme Court held that thearresting officers had knowledge of actual facts supported by circumstances to justify a warrantlessarrest. The Court also ruled that "personal knowledge of facts" in arrests without a warrant mustbe based on probable cause, which means actual belief or reasonable grounds of suspicion; andsuch suspicion is reasonable when it is supported by actual facts supported by circumstancessufficiently strong in themselves to create the probable cause of guilt. Along with probable cause,the suspicion must be coupled with good faith on the part of the arresting officers. lnthe Nazarenocase, the Court likewise held that despite the lapse of 14 days after the killing, the warrantlessarrest falls under Section 5 (b) of Rule l13 since the aresting officers knew of Nazareno'spossible participation in the killing only on the l4th day after the incident.a6 lnasmuch as the Anti-Subversion Law has been repealed, it will be difficult to rely on the Court pronouncement in theUmil case since the decision was influenced by the concept of "subversion" as a "continuinscrirne".

In the celebrated case of Rolito Go v. Courl of Appealsa1, the Court had another occasionto interpret the "personal knowledge requirement" as applied in warrantless arrest. When Gopresented himself before the San Juan Police Station to veriS; reports that he was being hunted bythe police, an eyewitness positi'/ely identified Go as the gunman who killed Eldon Maguan. He

tt ld. trt270.

'231 scRATot (1994)a' Sultro trote 42.4(' Id.

^t270.17 206 scRn l50 (1992)

Warrantlcss Arrcsts

was immediately arrested without a warrant. Aside fiom the positive identification of aneyewitness, the police arrested Go on the basis that the plate number of the alleged gunman's carrvas traced to his wife. The Supreme Court ruled that the arrest which took place six days alier theshooting of Maguan did not fall under the exception as provided in Section 5(b) of the New Rulessince the crime was "not just cornrnitted". The CoLrrt ruled that the infonnation obtained bv thearresting officers did not constitute personal knowledge.'18

ln People v. Brionesae,the Court ruled that the warrJntless arest was illegal since theofficers did not have personal knowledge of facts when they arrested Briones. It was theeyewitness who had personal knowledge that Briones and his other companions robbed and killedthe Gutierrez spouses. The fact that the eyewitness related the incident to the investigators the nextday did not validate the arrest. But in another case5O, the Court held that the officers had personalknowledge of facts of the robbery committed by the accused even though said facts were onlydetermined after an investigation was conducted and eyewitnesses firrnished valuable informationregarding the incident. In this case, after the accused robbed the passengers of a jeepney, thevictims immediately reported the incident to the police rvhich promptly dispatched an investigatingteam. Upon seeing the accused, one of the victims who went with the investigating team requestedthe police to accost them. The four accused tried to flee but was eventually apprehended.

The Supreme Court has invariably used the term "reasonable ground to believe" despitethe atnendment in the Rules. For example, the Court found there was probable cause since theauthorities had "reasonable ground to believe that appellant would attempt to bring incontraband..."5r. In another case52, the Court said that the receipt of information that a Caucisiancoming from Sagada had prohibited drugs in his possession coupled rvith the suspicious failure ofthe accused to produce his passport when requested by the police, "led the NARCOM officers toreasonabf'believe that the accused was trying to hide something iltegal from the authorities."

Based on the foregoing cases, it is apparent that inconsistencies in the interpretation ofthe"personal knowledge" requirement exist. Some decisions even apply reasonable grounds injustifying the absence of a warrant. There is also a conflict as to the immediacy of the offense inrelation to the time of the arrest. However, not all of the cases cited pertain to threats againstnational security. Thus, there is a need to analyze the application of the personal knowledgerequirelnent on intelligence operations affecting national security inasmuch as these operations relyheavily on informants. May there ever be an intelligence operation complying with the newrequirement imposed by the Rules?

t" lol s( ll:\ 7oj { l 99 l )

"' l'cr;1rlr'y. lt.ol, ),37 S( l{A 406 (199.1).tt l't,,,1,/r,t. Lo Ilo llling, 193 SCRA 122 (l9ql)') Paoltle r l.lalnsteclr. 198 SCRA 401 (1991).

l'lunran ltights'l'rcatise on Constitutional Larl

ANALYSIS

A. Neecl to lcnow

The State secrets privilege permits the executive to withhold evidence if disclosure uouldpre.iudice national security.s3 This privilege belongs to the executive and any officer rna)' supportthe claim by submitting the material itself or affidavits describing it, or by testi|,ing to its

privileged status. Hence, this privilege permits the executive to safeguard information of interestto natiorral security as well as to minimize liability incurred for invasion of personal rights 5l

The State secrets privilege may be applicable whenever intelligence units operate against

threats to national security. Warrants are dispensed with since the operation is basr'd on

confidential inforrnation and the disclosure of such information may be prejudicial to nationalsecurity. Such interpretation of this privilege is prone to abuse because arresting officers mayimpose their own classification of confidentiality affecting national security to dispense rvith a

warrant. However, it is within the sound discretion of the courts to determine whether theinfonnation falls under said privilege to serve as a check on executive caprice and self-interest.55

Hence, the information in question must still be presented before a judge to determine its securityimplications in case of disclosure. Unfortunately, there may only be a few practitioners who willdare to compel the production of classified material since mostjudges usually rely on the executivepronouncement of confidentiality. This is especially true when the case involves a rnember of a

group classified as a threat to national security as described in this paper.

The very nature of covert operations likewise discourages the application for a warrant.The role and function of informants in providing vital information often necessitate completesecrecy of their identity and complete reliabilify on the accuracy of the information they provide.An informant, once recruited, usually requires a cover to protect him or her in case ofcompromise. Informants who provide information classified as secret or top secret necessitate a

totally different set of personal information. lnformant records of such nature are sensitive.Disclosure thereof may result in the death of informants and ultimately backfire against the entireclandestine organization. The purge in the late eighties of several members of the communistorganization rvho were suspected of being military infonnants is one illustration of the effects ofany lcak as to their identities.

As a consequence, informants are careful in conducting their clandestine activities. Somerrf thern even refuse to comtnunicate with any other person except their handler or case officer.

, There may also be instances where the informant is never directly contacted in person. As such.' letter drops (message left at a designated location without the handler or informant being present atthe satrre tinie) are resorted to in orderto minimize the lisks of being detected.56 However, not allinfbrmants live as hermits. Only those rvho are well placed in the enemy organization and ale

i' 7'\rc i\!ilitrtrt and Stote Seuets I'rit,ilcge,9l YAI-E t...1. 570 (lSS2)

5r /r1 lt 578.

" /r/. lt 57,1.t''

Sclrirllz. ,!rrlr,?1 t)otc 4. at I 0q.

Warrantless Arrests

capable of providing information darnaging to the hierarchy require special means ofcornmunication such as letter drops.

N4ore importantly, these sensitive informants are rarely available to testi! on facts theyhave gathered before a judge. In an application for a warrant wherein the informant is notpresented, the judge relies on the statement of the officers with regard to the reliabilify of theirinfornrant. In the case of Draper v. {J.S.s1 , it was held that wheh an information is relayed to thearresting officer, it is vital to a successful prosecution that the informant be reliable. Conversely,where a warrantless arrest is made on the basis of an informer's tip whose reliability has not beenestablished, the arrest lacks the requirement of probable cause.58

ln determining the existence of probable cause, the issue is not the accuracy of theinformant's report but the informant's general reputation for reliabiliry.tn In one case, an informantsupplied information regarding a sale of narcotics. Pursuant to this disclosure, the officers anestedthe defendant who sought the identiry of the informant to demonstrate the illegality of his arrest.The Court ruled that the identity of the informant need not be disclosed since according to thetestimony of the arresting officers the same informant had supplied them reliable informationwhich had led them to l5 or l6 previous convictions.60

B. Processed information vis-a-vis the requirement of personal knotvledge,

As discussed earlier, information collected from the different sources are integrated tocome up with an intelligence regarding a particular mission. Intelligence is more than .just rawinformation. It is processed information, the culmination of a series of verification and analysis toensure an acceptable level ofcorrectness, ifnot certainty.

As an illustration, when the Intelligence Service Armed Forces of the Philippines (ISAFP)was tasked to neutralize the ultra-rightist group during the Aquino administration, the intelligencecycle began when the Commander-in-Chief gave the specific mission to apprehend the leaders ofthe RAM. ISAFP began to lay the groundwork for the collection effort by undertaking variousactivities such as conducting surveillance against known or suspected members of the RAM. Theunit likewise started to spot and recruit well-placed assets who had access to the right. It did nottake a long time for the assets to provide valuable information which confirmed the available datafrom open sources. Results from the technical surveillance unit likewise assisted in pinpointing thesafe houses of the RAM members. After a lengthy but fruitful analysis, ISAFP sent its fieldoperatives to arrest the suspects. Initially, the neutralization operations yielded negative results.Eventually however, after the influx of other information coming from the recruited assets andlocal intbrrners who were induced to give information by means of the DND Reward Systern. thetnetnhers of the RAM Executive Committee and other high-ranking officers were arrested.

t'Litcd in Yaron,supra note 19. at 126

' ( ru'l .r,,/,lir tr{)tc l7 itt l-tr1.

Iluman Rights Trcatise on ConstitutionNl La}}

'fhe arresting team did not technically possess the "personal knowledge" as defined b1

jurisprudence. What the team had was "processed information" properly termed as "intelligencebased on the information collected from different sources". The mass information gathered may

well be considered as hearsay inasmuch as most, if not all, of the data came from a third pag"- an

informant. As provided in Sec. 36 of the New Rules of Court:

"A rvitness can testify only to those facts which he knows of his personalknowledge; that is, which are derived fiorn his own perception, except as provided inthese rules."

An application for a warrant may prove futile since the arresting officers do notpersonally acquire the information necessary in establishing probable cause before the judge.There may be no witnesses to be presented for the reasons stated in the preceding section. Eventhe manner of obtaining the information from technical surveillance may not be disclosed afterinvoking the executive privilege of state secrets. Can it be argued then that if the officersthemselves do not have personal knowledge, they cannot effect a warantless arrest, much less

obtain a warrant based on the same information?6r In the case of People v. Sucro62, the Courtruled the warrantless arrest of a drug pusher to be legal despite the fact that the officers'information was insufficient to fulfill the requirements for the issuance of a warrant. It stressedthat what is paramount is that probable cause was established on the basis of reliable information.Thus, following the ruling of this case, it can be safely stated that when information relayed by an

infonnant is the basis of arrest, the test in determining the legality of such arrest is whether there isprobable cause based on the information gathered and conveyed by a reliable informant to thearresting officer(s); and not whether the arresting officer(s) had personal knowledge sufficient tofulfrll the requirements for the issuance of a warant.

Another aspect in every informant's data is the concept of "reciprocal knowledge".Where law enforcers work together and are required to keep each other informed, knowledge byone is knowledge of all, for the purpose of establishing the existence of probable cause. 'fhis"reciprocal knowledge" was used in State v. Cook63 where the person was arrested by officersbased on infbrmation relayed to them by other officers who were making observations in anairplane. In another case, the Court ruled that it is not essential that all the facts and circurnstancesto establish probable cause be personally known to the arresting officer. Accordingly, "[e]valuationis to be made of the conglomerate information known by the arresting authority."64 Thus.information personally gathered by intelligence agents working towards a common objective mayoperate to serve as information personally gathered by the others.

This doctrine of reciprocal knowledge should be made applicable to the members of theintelligence community. The intelligence is cornposed of all the officers and men of the variousintelligence agencies in the AFP, PNP, and other executive agencies such as the Deparlment ofFoleign Affairs (DFA), Bureau of Immigration and Deportation (BID), and National SecurityCouncil (NSC). Through the Joint Intelligence Committee (JIC), these agencies periodically

t'r .lirtre rrez, .\ilpro note28. at22.

n: t95 scRA 398 (199t).

''t lc),1 Kurr.195 as citcd by Varon. "l4rrd notc 19. at l17"r (-orrk. .\t{pr(t t1{)tc 17. ai 102.

Wrrrantless Arrcsts

exchange information and reports coming from their respective field operatives. Stretching thedoctrine to its limit, the recruited informants who are technically state agents by virtue of an"Agent's Agreement" voluntarily signed by them also form part of the intelligence communiry.Knorvledge of facts by each of these informants, applying the above-cited doctrine, should beconstrued as knowledge of the entire intelligence community.

('. Nu"ltn'ing the plant

When an act or a series of acts is internalized in an organization so as to becorne apractice, any attempt to change such practice will face stiff opposition from those within theorganization. Changes, if any, will be difficult and longer periods for adjustments should beprovided for. Presently, law enforcement agencies are still feeling the aftershocks of martial law.It will take awhile for them to realize that their potent powers during the Marcos and even duringthe Aquino regime are slowly being diminished by the advent of reforms - such as that exemplifiedby the amendment on the Rules of Court requiring "personal knowledge of facts" instead ofmerely "reasonable grounds to believe" for effecting a warrantless arrest.

It should be remembered that when President Marcos declared martial law throughProclamation l08lon September 21, 1972, he also issued General Order (G.O.) No.2 whichordered the then Ministry of Defense to arrest individuals who were active participants in theconspiracy to seize political power. Law enforcers where then authorized to arrest persons on thebasis of bare suspicion and sometimes, merely on whim. As amended, G.O. No. 2 created theArrest, Search, and Seizure Order (ASSO) which substituted for the warrant. As the late SenatorDiokno said:

"Martial law institutionalized the practice of preventive detention rvithout thecvidcnce of guilt."65

The seeds of abuse and neglect fol human rights were sown in the field of lawen [orcernent.

When martial law was lifted through Proclamation 2045,the ASSO was replaced with thePresidential Commitment Order (PCO) which basically retained the features of its predecessor. ltoperated as a warant but was not usually issued by a judge nor subject to any judicial review. Dueto the clamor for its abolition, the PCO was replaced by the Preventive Detention Action (PDA)which again authorized law enforcers to arrest, search. seize arms and equipment used in thecommission of crimes. Thus, despite continuous pleas from several human rights groups, arrestand detention rvithout legal basis remained prevalent in the country.

When people power swept former President Corazon C. Aquino to Malacanang in 1986,she released several political prisoners as promised during her campaign. Nevertheless, thecounterinsurgency effort of the AFP and the PNP intensified with both agencies declaring a "totalwar" policy against the communist rebels. For reasons not entirely attributable to Pres. Aquino.court rr"rlings alrvays seem to be tilted in favor of law enforcement. The Valmonte, Guttzoin and

"t l'1.,,\(; l(tth A,rniversar\ Issue (197't-1991), p l6

[Iuman Rights'l'rcatise on Constitutional La*

Urrjl cases were some of the decisions which were reflective of the prevailing sentiment of th.

Supreme Court during that period.

Twenty-one years after martial law was declared, Fidel V. Ramos was elected President

While he is closely identified with the Marcos regime. being the former Constabulary chief. he

opted to initiate the present peace process. Alongside this effort of reconciliation. several lau

enfbrcerrrent agencies particularly intelligence units still carry that Marcosian practice of illegai

arrests sanctioned during Martial law and nurtured during the Aquino regirne. The saturation drives

conducted not so long ago in Quiapo, Tondo, and Smokey Mountain are some of the police

practices still reminiscent of martial law. Also, the "universal rvarrant" is still resorted to by some

agencies. This practice allows law enforcers to arrest a certain person to answer for the

commission of an ordinary crime such as robbery. The warrant served is for such ordinary crime

but the arresting officers will investigate and interrogate said person for subversion, rebellion. or

any other political crime. Another practice resorted to is the "weekend arrest" where the arresting

officers will time their arrest on a weekend in an attempt to forego with a warrant and invoke the

exigency of the situation as their justification for their action.

The increasing difficulty in arresting lawless elements also plays an important factor on

why enforcement agencies have the tendency to take the legal short cut to fulfill their mission ofmaintaining peace and order. Thus, in most warrantless arests, the arresting officers still apply the

"reasonable grounds" requirement since it is easier to comply with than "personal knowledge".

They just leave it to the lawyers to prove the legality of their action.

The inconsistent pronouncements of the Supreme Court have not helped in paving the

way fbr a solution to address the confusing situation where almost every warrantless arrest in

intelligence operations may be considered as a human rights violation. Therefore, in order to

enhance the performance of intelligence units and at the same time rninimize the inf ingement ofhuman rights, there is a need to provide for a rniddle ground that will be acceptable to both law

enforcement agencies and human rights groups.

RECOMMENDATIONS AND CONCLUSION

Judicial, legislative, and media intervention are needed to facilitate the function ofintelligence organizations ofpreserving national security. Thejudicial interpretation of"personalknowledge" in Umil v. Rsmos is widely accepted by law enforcement authorities particularly those

,within the intelligence community. However, as it stands now, this writer opines that the

'pronouncerxent of the Supreme Cour-t regarding the matter should only be applied to intelligence

operations affecting national security. The dissenting opinion ofJustice Cruz in that case serves as

a stern rvarning that with such interpretation, law enforcement officers shall again have a field day

in arresting individuals based on mere suspicion coupled with good faith. Adherence to the

nra-iority opinion will reopen the opportunity for law enforcers to exercise martial law porvers.

It must be ernphasized that the doctrine laid down inthe Umil v. Runtos case tnust still be

applicd. llowever. this must only be limited to those intelligence operations affecting national

Warrantless Arrests

security. Thus, intelligence operations against comlnon criminals must comply with the strictinterpretation of the twin requirements of "has just in fact been cornmittedi' and .,personal

knowledge of facts" under Section 5(b) of Rule ll3 of the Rules of Court. This must be so sincetheir operations are not that crucial to the existence of the State.

While some legal safeguards against possible abuse by law enforcers are already providedfor in the Constitution and are incorporated under the New Rules of Court, the legislatuie needs torecognize the dilemma of intelligence agents and try to strike a balance between effective lawenforcement and the protection of the people's rights through enactment of laws and thestrengthening of existing ones such as the witness protection program.

Needless to say, law enforcement agencies must police themselves and enforce certaincorrective measures as well as put up safeguards to ensure adherence to and respect for humanrights. For one. recruitment procedures must again be accordingly upgraded and tightened.Because of the pressing need for more soldiers and policemen in recent years. recruitmentprocedures were drastically changed. For example, before the mass recruitment in the rnid-eighties, a person had to undergo two (2) years of military training before joining the AFp. Ar theend of the training period, one is not even assured of being enlisted in the sJrvice. Today, asinstituted a decade ago, a person has only to undergo three (3) months of training before beingenlisted in the service. Obviously, this substantialdifference in the length of trainin! willproduceless disciplined soldiers.

Training is crucial for the continuing efficiency and effectiveness of any organization. Atpresent, basic and advanced courses in the AFP and the PNP contain legal subjects and a moduleon human rights. In the major services of the AFP, intelligence schools have also incorporatedlegal subjects to increase the soldier's or policeman's awareness of the legal provisions *hi.h ur.relevant to the profession of law enforcement. More specifically, when President Ramos directedISAFP to assist the PNP in its fight against organized crimes, the Special Intelligence TrainingSchool (SITS) conducted the Criminal Investigation and Interrogation Course to iducate ISAFppersonnel on the latest provisions of law pertaining to arrest, searches, investigation, and otherintelligence activities prior to the conduct of trial. With all these innovationi in the trainingcurriculum. the intelligence community is on the right track in equipping its personnel withsufficient knowledge of the law.

More importantly, however, there appears to be a lack of guidelines for law enforcers tofollo'uv" In exercising their discretion, law enforcers tend to conform with the established andaccepted police practices. The attitudes such as "others have done the same thing and were neverarrested" and "everybody is doing it, why can't we" are just some of the rationalizations whichsome law enforcers use every tirne they admittedly violate some personal rights of the accused.One book suggested the remedy of 'Judicializing" - that is, to make law enforcers sub1ect toexplicit |ules which are subject to revier.v by the courts and reduce their discretion wheneverpossible

('r' While one cannot expect the ordiniry law enforcer to exercise the wisdom of a judicial

officcr in determining whether there exists probable cause, a properly recruitecl law enforcer rvith

"" .rAivli,s (l wU,soN. vARItj'IIES oli pol.lcE BIrt IAVIOR (l!r73), p 280

Human Rights Trcatise on Constitutional Lan

qualit) training and legal education and subject to specific guidelines will certainly minimtze

errors in ;udgment.

lnherent in a democracy is the presence of destabilizing sectors of socieq'. The

recognition of the State of certain personal rights and liberties is an indication that a democraticform of government is ruled by law and not by men. However, it is likewise inherent fbr the self-preservation of the State to thwart any threat against its national security.

ln this country, intelligence operations play a key role in containing the Enemies of the

State - those organizations which are capable of overthrowing the duly-constituted government ofthe people. However, they are not without any shortcomings, because as previous experience had

shown, there had been many violations on the constitutional provision on warrantless arrests.

The means of collecting information by intelligence units should be construed as fallingwithin the purview of "personal knowledge" as required under the Rules of Court. As earlierdiscussed, this interpretation as pronounced in the case of Utnil v. Ramos must be only appliedwhen the operation is of interest to national security. To reiterate, operations affecting nationalsecurity are those involving members of organizations which are capable of ovefthrowing the dulyconstituted government through the use of violence. As such, the Until doctrine must be limitedonly to sensitive operations undertaken by intelligence units. All other warrantless arrests muststrictly follow the "personal knowledge" requirement as expounded by the dissenters in the Urn l/case. Chief Justice Marcelo B. Fernan, in his dissenting opinion in the aforecited case, said thattnost of our present law enforcers still lack the legal training. hence, they may easily be enticed toabuse this pronouncement ofthe court.

In the same breadth, information affecting national security and those coming frominformants must be construed to satisfo the personal knowledge requirement. Processedinfbrmation coming from a reliable and time-tested informant has become indispensable in everyaspect of intelligence operation.

While a peaceful solution to reduce the threats against national security is always thepreferred alternative, it is still important to recognize that threats to national security shall alwaysbe present in a democracy. Whatever the ideology of such threatening group may be, communistor otherwise, its members are still entitled to the protection guaranteed under the Bill of Rightswhich must be respected by our lav, enforcement agencies especially intelligence units whose rolein the preservation of national securify is indispensable for the survival of government.

The Ateneo Human Rights Center

The Ateneo Human Rights Center (AHRC) was established irr October1986 as one of the frrst university-based institutions engaged in the promotionof peace, development and human rights in the Philippines. It is housed in theSchool of Law of the Ateneo de Manila University.

The Center seeks to realize its mandate through programs which focus onthe continuing formation of human rights advocates among lawyers, lawstudents and grassroots leaders, the monitoring of the human rights situationin the Philippines and abroad, research and publication, public education onpeace, development and human rights, and legal assistance to indigentvictimsof human rights abuses.

Thus, the Center assigns law students through the internship program towork with human rights organizations in the Philippines, conducts trainingseminars for the benefit of government and non-government organizations andgrassroots communities, publishes a human rights legal treatise series, andrenders legal assistance to indigent clients and grassroots communities.

As varied as the Center's programs, its beneficiaries include urban poorcommunities, women, children, laborers, migrant workers, students, non-governmental organizations, and the general public.

As an institution of the Ateneo de Manila University, the Center hasaccess to valuable resources of the university and the law school in theimplementation of its programs. Volunteer law professors, alumnipractitioners and law students lend additional support to its activities.

The Ateneo Human Rights Center is located at 130 H.V. De la Costa,S.J. Street, Salcedo Village, Makati City, Philippines.

Human Rights Trcatise on Constitutional Law

performs such examination without any time pressure, the officer must determine the existence ofprobable cause almost simultaneously with the arrest.

A warrantless arrest is premised on emergency, necessity, and exigency. It is important tonote, however, that in this type of arrest, what is dispensed with is merely the existence of a

warrant. For a warrantless arrest to be valid and legal, there must still be probable cause.

Warrantless arrests can only be effected under the following conditions:

a. When in his presence, the person to be arrested has committed, is actuallycommitting, or is attempting to commit an offense;

b. When an offense has in fact been committed, and he has personal knowledgeof facts indicating that the person to be arrested has committed it;

c. When the person to be arrested is an escaped prisoner.26

In a case mentioned earlier,21 the Court ruled that there was the element of exigency whenmembers of the Davao Metrodiscom arrested Posadas for illegal possession of firearms. Posadaswas carrying a "buri bag" and was acting suspiciously at the time of his arrest. He attempted to fleewhen he was accosted by the anesting officers. In this case, the Court pronounced:

"It is too much to require the police officers to search the bag in the possessionof the petitioner only after they shall have obtained a search warrant for the purpose.Such an exercise may prove to be useless, futile and much too late."

Thus, under a set of facts and circumstances, a law enforcer is expected to use his or herdiscretion in determining whether probable cause exists in making an arrest without the requiredwarrant.

Probable cause is a difficult concept to explain since it is based more on common senseand does not have a technical meaning or a mathematical formula. Hercules Bottling Co., Inc. v.Savellano?8 enumerated some guidelines to determine the existence of probable cause. One of theguidelines set forth is that only a probability, and not aprimafacie showing of crirninalactivities isthe standard ofprobable cause.

The traditional definition of probable cause was propounded by the U.S. Supreme Court,'to wit:

"Whether at that moment the facts and circumstances within their knorvledgeand of rvhich they had reisonably trustlvorthy inlbrmation rvere sufficient to warrant a

26 Supra note 3.21 Posudas, suprd note24.2* CA-C. R. No. 09 I 53-R, February 29. I 980, as cited by J acinto .limenez, Arres!, Searches, and Se izures,3 I A'IENEO t-.1. 9 ( 1988), p. 23 [hereinafter cited as Jimenez].

Human Rights Treatise on Constitutional Law

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