Warrantless arrests in a pandemic

"Protecting public health and respecting human rights need not be mutually exclusive."

As Metro Manila is set to ease restrictions and transition from Modified Enhanced Community Quarantine (MECQ) to General Community Quarantine (GCQ) even as the country has yet to flatten the curve, Filipinos in Metro Manila and a few other provinces with high concentration of coronavirus cases are preparing to come up from one of the longest and most severe lockdowns in the world to try and create a semblance of normalcy. With this pandemic, the world for many was suddenly turned up-side down, with lives rudely interrupted by the coronavirus. Not only did people have to grapple with existential fear of infection. Anxieties ran high because of economic dislocation and heavy-handed government response to the public health crisis.

Thousands of lockdown and curfew violators have been arrested and detained for simple disobedience and violation of the Bayanihan to Heal as One Act. Many online critics of President Duterte and some other officials of government were likewise arrested by the authorities, purportedly for violation of the Revised Penal Code and other penal laws. Most, if not all, were arrested without a warrant. While many of these warrantless arrests were justified by the circumstances, many more, particularly the supposed “online offenders” should have been served a warrant first before they were arrested.

The “Joint Statement on the Rule of Law in the midst of the COVID-19 Pandemic”, issued last May 31 by several business groups, including the American Chamber of Commerce (AMCHAM Philippines), the Makati Business Club (MBC), and the Financial Executives of the (FINEX), points out that from March 17 to May 1, 41,000 people have been arrested for quarantine violations with thousands having been detained and subjected to inquest and other prosecutorial and judicial processes.

This is an alarming set of statistics. It is a result of grossly stupid actions by the our police forces. They may mean well but it is folly just the same. For one, arresting people as an anti-Covid measure is self-defeating. No matter what you do, arresting and then detaining peoples, and subjecting them to prosecution and judicial processes is antithetical to physical distancing. This simply ensures, unfortunately, that infections would increase.

I agree with the business groups that “the compounding economic hardships and unfamiliarity with new rules resulted in many people languishing in detention centers for many days thus risking exposure to the virus in overcrowded facilities.

In addition, as I have personally seen, many of these warrantless arrests are illegal.

“¨ I understand that warrantless arrests, also known as "citizen’s arrest," is lawful in some circumstances such as those effected in flagrante delicto – when, in the presence of the policeman, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. In flagrante delicto warrantless arrests should comply with the element of immediacy between the time of the offense and the time of the arrest. The test of in flagrante delicto arrest is that the suspect was acting under circumstances reasonably tending to show that he has committed or is about to commit a crime.

This is likewise true when an offense has just been committed, and one has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it. This is the "hot pursuit" arrest rule – where the policeman should have personal knowledge that the suspect committed the crime. The test is probable cause, which the Supreme Court has defined as "an actual belief or reasonable grounds of suspicion." Under this rule, the policeman does not need to actually witness the execution or acts constituting the offense. But he must have direct knowledge, or view of the crime, right after its commission. The rule requires that an offense has just been committed. It connotes "immediacy in point of time." That a crime was in fact committed does not automatically bring the case under this rule.

Should an arrest be made not in accordance with the above rules, or otherwise put, if the arrest is not lawfully warranted, such apprehension will be declared illegal, and the arresting officers may be prosecuted for the crime of Arbitrary Detention under Article 124 of the Revised Penal Code, which penalizes any public officer or employee who, without legal grounds, detains a person. This is in addition to such other crimes or offenses that may be committed in the course of the illegal apprehension and detention.

Protecting public health and respecting human rights need not be mutually exclusive. Measures for protecting public health, while allowing some derogation of these rights and freedoms, should be proportionate to the attainment of the clear objectives, must be in accordance with the mandates of the law, and respectful of human dignity, among others. This public health crisis does not dispense with legal standards.

I share and reiterate the hope of the business groups that our leaders demonstrate the highest standards in observing and enforcing the rule of law, including serving as models in discipline and moral ascendancy. Indeed, the sacrifices of our people deserve nothing less.

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