SC issues TRO vs ‘Oplan Baklas’

EDITORIAL

The dismantling of election materials such as tarpaulins and posters, according to the petitioners, violate their constitutional right to freedom of speech and expression
    The Supreme Court (SC) on Tuesday announced that it has issued a temporary restraining order (TRO) against the Commission on Elections (Comelec) on its conduct of dismantling or confiscating election materials that are privately owned and funded and installed within private properties under its” Oplan Baklas.”
    The Court issued the TRO during its regular en banc session.
    “The Supreme Court, during its En Banc deliberations on March 8, 2022, issued a temporary restraining order against the Commission on Elections and Comelec director and spokesperson James Arthur Jimenez in connection with the poll body’s Oplan Baklas,” the SC said.
    It also directed the Comelec and Jimenez to comment on the petition filed by several supporters of Vice President and presidential candidate Leni Robredo within a non-extendable period of 10 days from receipt of notice.
    The petition — filed through their counsel lawyer Ray Paolo Santiago — also asked the Court to declare as unconstitutional the acts of the Comelec based on its wrongful interpretation and implementation of Sections 21 (o), 24 and 26 of Comelec Resolution 10730.
    Leni’s camp noted that the dismantling of election materials such as tarpaulins and posters violate their constitutional right to freedom of speech and expression and insisted that the acts of the Comelec were done in violation of their right not to be deprived of property without due process of law.
    Section 21 (o) bars the installation of election propaganda material outside the common poster areas except on private property with the consent of the owner and must comply with the allowable 2ft x 3ft requirements for posters.
    Meantime, Section 24 of the Comelec Resolution provides that only one signboard, not exceeding three feet by eight feet in size, identifying the place as the headquarters of the party of candidates is allowed to be displaced.
    On the other hand, Section 26 states that “any prohibited form of election propaganda shall be stopped, confiscated, removed, destroyed or torn down by Comelec representatives at the expense of the candidate or political party for whose apparent benefit the prohibited election propaganda materials have been produced, displayed and disseminated.”
    They also asserted that Comelec Resolution 10730 applies only to candidates and political parties, and not to private individuals.
    The SC — in the same ruling issued in 2015 — declared that the poll body “has no power to regulate the free expression of private citizens who are neither candidates or members of political parties” and that its action “violated the rights of free speech and expression of the petitioner.”
    The petitioners are Dr. Pilita de Jesus Liceralde, one of the convenors of Isabela for Leni; Dr. Anton Mari Hao Lim, one of the convenors of Zamboangueños for Leni; and St. Anthony College of Roxas City.
 

EDITORIAL

SC: Prolonged detention under ATA to follow strict standards for warrantless arrests

Kristine Joy Patag 

The Supreme Court ruled that Section 29 of the feared Anti-Terrorism Act of 2020, which allows prolonged detention of up to 24 days with written authority from a council, should not be struck down as invalid.
    In its ruling made public on Feb. 15, the SC said it will pass upon arguments raised against Section 29 as petitioners asserted fear of arbitrary arrest of suspected terrorists without judicial intervention or warrant “infringes on freedoms of expression, assembly and association among other constitutional rights.” Specifically, the section reads:
    The provisions of Article 125 of the Revised Penal Code to the contrary notwithstanding, any law enforcement agent or military personnel, who, having been duly authorized in writing by the ATC has taken custody of a person suspected of committing any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act, shall, without incurring any criminal liability for delay in the delivery of detained persons to the proper judicial authorities, deliver said suspected person to the proper judicial authority within a period of fourteen (14) calendar days counted from the moment the said suspected person has been apprehended or arrested, detained, and taken into custody by the law enforcement agent or military personnel. The period of detention may be extended to a maximum period of (10) calendar days if it is established that (1) further detention of the person/s is necessary to preserve evidence related to terrorism or complete the investigation; (2) further detention of the person/s is necessary to prevent the commission of another terrorism; and (3) the investigation is being conducted properly and without delay.
    But in the end, the SC held: "Under the auspices of this case and the reasoned constructions made by the Court herein, Section 29 should not be struck down as invalid."
Warrantless arrest
The SC stressed construction of the section holds that law enforces may arrest a person for acts defined or penalized under Sections 4 to 12 — which defines terrorism and other crimes — but only under instances contemplated in Rule 9.2 of the law’s Implementing Rules and Regulation.
    And the said rule mirrors instances under Section 5 Rule 113 of the Rules of Court, which only allows warrantless arrest in flagrante delicto, arrest in hot pursuit, and arrest of escapees.
    Once arrested under the said circumstances, the person may be detained up to 14 days if the Anti-Terrorism Council issues a written authority. If the ATC will not issue the written authority, the arrested person should be brought to the judicial authority within the periods specified under Article 125 of the Revised Penal Code, the SC added.
    Under Art. 125 of the RPC, authorities will not face arbitrary detention charges if they will deliver to suspect to judicial authorities within specific timeframes: For a person accused of a crime punishable by light penalties, 12 hours; 18 hours for crime punishable by correctional penalties and 36 hours for crimes punishable by afflictive or capital penalties.
Extended detention
The SC also said that the written authorization of the ATC that allowed prolonged detention will only be issued to a law enforcer if the person was nabbed under the circumstances that allow warrantless arrest.
    It explained that the ATC’s written authority would determine whether the periods of detention under Article 125 — up to 36 hours if accused of committing offense punishable by afflictive or capital penalties or equivalent — or Section 29.
"This is because the arresting officer may not have all the information to make that determination at that time. On the ground, the arresting officer may lack the necessary information (such as confidential intelligence reporters) to actually determine that Sections 4 to 12 of the ATA was violated at the time of the warrantless arrest," the ruling read.
    But since arrests under the section apply to warrantless arrests, the high court stressed that process, requisites and rigorous standards applied to such kind of arrests apply.
    "Among other things, these include the requirement of personal knowledge and the existence of probable cause. Thus, it is important to clarify that, contrary to the concerns of petitioners, Section 29 does not allow warrantless arrests for violations of the relevant provisions of ATA based on mere suspicion," the SC said.
    The SC also said Section 29 does not amend, repeal or overhaul Article 125 of the RPC. The section supplements the cited article of the RPC with the exceptional rule with specific application in cases where the offense believed to be committed is punished by Section 4 to 12 of the law, and a written authority is secured for the purpose.
Habeas corpus
Petitioners have argued the Constitution, even during the extraordinary period of Martial Law, states that an arrested person shall be judicially charged within three days, or otherwise be released, but under the Anti-Terrorism Act of 2020, detention of a person not charged may be for 24 days.
    But the SC said that "the Constitution is silent on the exact maximum number of hours that an arresting officer can detain an individual before he is compelled by law to deliver him to the courts."
    "The three-day period in the last paragraph of Section 18, Article VII of the Constitution is irrelevant to terrorism because it is applicable only in cases of invasion or rebellion when the public safety requires it," it added.
    The high court also stressed that case building in terrorism cases is different and fraught with difficulties—based on Congress’ finding—than in case building in ordinary crimes. The SC also noted that the prolonged detention period is not only for gathering evidence but Congress intended it to disrupt terrorism.
    The Court also clarified that a detainee may move for the issuance of the writ of habeas corpus.
 “In sum, the ATA requires that certain conditions be complied with both prior to, during, and after the detention of a suspected terrorist under Section 29… In this regard, it may thus be said that Section 29 is not overbroad as well, as this government measure does not sweep unnecessarily and broadly and thereby invade the area of protected freedom of speech," the SC said.
Appeal
Petitioners earlier vowed to again challenge Section 29 of the law in the motion for reconsideration that said they will file.
Rep. Edcel Lagman (Albay), a petitioner to the case, also said that the SC’s upholding of Section 29 of the law "is a blatant violation of the Constitution."
    "When a suspect is unlawfully detained outside of the court’s jurisdiction, coerced confessions and torture are bound to be committed by police authorities in violation of the Bill of Rights," Lagman, who argued for the nullification of this provision during the oral arguments, added.
 

EDITORIAL
‘Oplan Baklas’

The removal of election campaign materials on private properties by the Comelec violates the constitutional right to freedom of speech and expression, the petitioners claimed
    Supporters of presidential aspirant and Vice President Leni Robredo have asked the Supreme Court to stop the Commission on Elections from implementing its “Oplan Baklas” or campaign to dismantle oversized campaign posters.
In a 52-page petition filed through their lawyer Ray Paolo Santiago, the petitioners said the Comelec erred in interpreting Sections 21 (o), 24 and 26 of its own Resolution 10730.
    The removal of election campaign materials on private properties by the Comelec violates the constitutional right to freedom of speech and expression, they said.
    They added that the regulation on campaign materials and the definition of lawful election propaganda under Section 9 and E, respectively of Republic Act 9006, only apply to candidates, political parties and partylist groups.
    “The right of private individuals to express their beliefs in relation to elections of public officials has been decided previously by the Supreme Court, in the case of Diocese of Bacolod v. Comelec, when it said Comelec had no legal basis to regulate expressions made by private citizens,” they said.
    In the same ruling issued in 2015, the Court declared that the poll body “has no power to regulate the free expression of private citizens, who are neither candidates nor members of political parties” and that its action “violated the rights of free speech and expression of the petitioner.”
    “Comelec does not have the authority to regulate the enjoyment of the preferred right to freedom of expression exercised by a non-candidate in this case,” they pointed out.
    “The wrong interpretation and implementation of Comelec Resolution No. 10730 cannot override and supersede constitutionally guaranteed rights; more so if it is expressed within the confine of ones’ private property,” the petitioners added.
Comelec spokesperson James Jimenez said the legal challenge on their operation is welcome.