By Atty. Mel Sta. Maria
President Duterte said on June 14: “My directive is ‘pag mag-istambay-istambay, sabihin niyo, ‘Umuwi kayo. ‘Pag ‘di kayo umuwi, ihatid ko kayo don sa opisina ni ano don, Pasig’. Ako na ang bahala, ilagay mo lang diyan. Talian mo ‘yung kamay pati bin–ihulog mo diyan sa ano.” And then he said: “Tignan ‘nyo may maglakad pa ba na – eh ngayon, sabi ko sa pulis, ‘Pikapin mo.’”
“Clarification” has been made by lower officials that criminals are the subjects of the arrest. The problem with this “clarification” is that the presidential directive is not ambiguous. When the President said “pag mag-istambay istambay, sabihin niyo umuwi kayo,” he was clearly referring to a person standing idly in a public place. Then he later said: Sabi ko sa pulis, pikapin mo.” President Duterte could not be alluding to a felon because, if that were so, no presidential directive was needed as apprehension must be made as a matter of law, unless he was at the same time castigating a non-performing Philippne National Police.
Why is this directive unlawful? Let us contextually explain this legally.
In October, 1980, the dictatorial Marcos regime was caught by surprise when the Supreme Court ruled that a police “invitation” is a clever “euphemism of an arrest without a warrant of arrest” and therefore illegal. Alone in a precinct, the “invitee” has no control of the situation. “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. All the more, his constitutional rights must be respected.” ( People vs. Dilao et al G.R.No. 43259).
After Marcos’ ouster, Republic Act No. 7438 statutorily made a warrantless police “invitation” a criminal act. That law is still effective.
Now the Duterte administration has devised another way of taking people into custody many times worse than the Marcos-style deceitful “invitation.” It is “Pikapin mo” of an “istambay,” a new Duterte-style “euphemism of an arrest without a warrant of arrest.”
Under the Marcos “invitation,” there was an offense or, abhorrently, a fabricated one allegedly committed by the “invitee.” Under the Duterte “pikapin mo” directive, there is no invitation, no offense – not even a suspicion or a concocted one -- but simply an outright apprehension. It is constitutionally repugnant especially considering the decriminalization of loitering in public or private places by Republic Act No. 10158 since 2012.
The “napikap” can just be waiting for a ride, smoking a cigarette, fetching a spouse, or merely enjoying the ambiance of the surrounding. An arbitrary and whimsical enforcement may be the order of the day, or, at least, misunderstood as such by policemen/women. Its capriciousness makes it oppressive. Rogue state agents will have a heyday in their extortion activities.
After President Duterte’s declaration, the number of arrested-bystanders immediately spiked reportedly to over 7,000, reminiscent of the increase in alleged extra-judicial killings after his “kill-them” drug war pronouncements.
It is comforting that, later, PNP chief Director General Oscar Albayalde, despite the President’s directive, assuringly said: “We are not arresting these people because of the word na ‘tambay’ sila…. They are being arrested or accosted because they have violations of ordinances, not because they are istambay.”
But after the Albayalde explanation, President Duterte told the police: “Your job is to follow orders… just follow orders… tutal nag-aral kayo, you know when the arrest is legal.” Hopefully, the police will not consider that orders --- and the resulting arrests --- are automatically legal just because they emanated from the President. That is not necessarily the case.
For instance, President Duterte focused on minors, saying: “Papaarestuhin ‘yan for their protection. They are not being arrested for any crime, it’s for their own good that they are arrested.” It is basic to the point of being elementary that anyone not committing a crime cannot be arrested. Neither can children be arrested on a “for-their protection” basis. Even Republic Act No. 9344 – the law generally exempting children from criminal prosecution --- predicates apprehension on a prior commission of an offense.
Responding to critics, President Duterte said that such arrest is “legal until the Supreme Court says it is illegal.” How could he even say that when it is patently unlawful?
But, again, should we even be surprised to hear this from a Commander-in-Chief who once said “I do not care about human rights, believe me”?
Meanwhile, the erosion of the rule of law continues.