Atty. Mel Sta. Maria
By Atty. Mel Sta. Maria
On February 12, 2018, responding to the International Criminal Court (ICC) chief prosecutor’s announcing the start of the preliminary examination of the drug-war killings in the Philippines, President Duterte said that “the war or the drive against drugs will not stop and it will last until the day I step out.”
Though the President denied directly ordering the killings, many believe that his declarations about killing drug pushers/addicts were the impetus or inspiration for the same. State agents, particularly members of the Philippine National Police (PNP), are usually the suspects.
Last January 29, 2018, the government relaunched “Oplan Tokhang.” Images of police inviting young people followed by deaths because of “nanlaban” come into mind.
One of our greatest constitutionalists, Fr. Joaquin Bernas, SJ, said: “Protection of fundamental liberties is the essence of constitutional democracy. Protection against whom? The state.” He stated this in explaining the Constitution’s Bill of Rights which provided the citizens’ fundamental safeguards against government abuse.
What is our protection against state abuse? Let us discuss the starting point: The police invitation to the precinct. How should you react?
Politely refuse the invitation.
If they insist, ask for a warrant of arrest. If none, do not accommodate their invitation even if they appear friendly. Get their names, take their pictures or videos, have as many people witness what is happening and identify the officers making the invitation, those with them and their vehicles.
The police practice of “invitations” has been so abused that our Supreme Court declared it to be an “euphemism for an arrest without a warrant of arrest” (People vs. Dilao G.R. No. L-43259).
Republic Act No. 7438, known as “An act defining the rights of persons arrested or under custodial investigation,” expressly makes these “invitations” illegal.
In case the police officers show you a “Tokhang list” where your name appears, know that, though signed by their police superiors, it is worthless, not being a warrant of arrest issued by a judge after the determination of probable cause. Take a picture of the list. Later, file a petition for the issuance of the writ of habeas data against the police and their superiors to have your name removed from the list and ultimately to expunge such list from the government’s records.
And because a warrantless police invitation is an illegal arrest, tell the inviting-policemen/women to allow you to call your lawyer for assistance. Their refusal is a crime punishable by imprisonment of 8 to 10 years. A criminal case against these officers can be filed later.
Show them a copy of Republic Act No. 7438. You will be surprised that many policemen/women do not know the law. Or if they are aware of the law, many rogue officers will deceitfully or ignorantly argue that “invitation” is not included in it. Do not listen to them.
Just in case you end up in the precinct, ask people to stay with you. Without any accompaniment, in the midst of these policemen/women, you will be at their mercy. Interrogation will commence. “In such an atmosphere, a man of ordinary or average composure may yield to a skilled investigator or one who, though unskilled, is prone to brutal techniques” (People vs. Dilao), which may include the threat of murder. Do not be alone.
The law provides that an “invitee” must be allowed visits by or conferences:
(1) with any member of his immediate family; or
(2) with any medical doctor or priest or religious minister chosen by him; or
(3) by his counsel; or
(4) by any national non-governmental organization duly accredited by the Commission on Human Rights or by any international non-governmental organization duly accredited by the Office of the President.
Your immediate family includes your “fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.” (Section 2 (f) of R.A. 7438).
Be vigilant. Assert your constitutional and human rights. At every opportunity, share your knowledge of police “invitations” and custodial investigation. In doing so, you may be preventing bad police officers from blackmailing innocent people. More importantly, you may be saving lives.
As I have always said: Be concerned because in disregarding or being indifferent to the human rights of others, you may be endangering your own.