ADMINISTRATIVE AND ARBITRARY DETENTION

By: ANA ELZY E. OFRENEO

Director IV, Human Rights Education and Research Office
Commission on Human Rights of the Philippines

A. Introduction
The practice of preventive detention in the Philippines existed long
before the declaration of martial law in 1972. National heroes such as
Jose Rizal and Antonio Luna were detained during the Spanish colonial
period. Apolinario Mabini Artemio Ricarte and Pio del Pilar were
likewise detained by the US regime, the same regime during which
there existed repressive laws such as the Sedition Law of 1901,
Brigandage Act of 1902, Reconstruction Act No. 7816 of 1903 and the
Flag Law of 1907. And in the 1950s, Amado Hernandez was detained.
It was, however, on September 21, 1972 when martial law was
declared that blatant abuse of the power of arrest a d detention
proliferated. President Ferdinand E. Marcos then had the power to
order the arrest and indefinite prolonged detention of a person without
charges. Arrests were made based on the Arrest, Search and Seizure
Order (ASSO), the exercise of which was delegated by the President to
the Secretary of National Defense. The exercise of such power was
upheld by the Supreme Court in Lansang v. Garcia, 42 SCRA 488.
However, even after martial law was lifted in 1981, previous laws and
decrees had the effect of institutionalizing martial law. Among these
decrees were Proclamation No. 2045 granting the President the power
to arrest and preventively detain persons; LOI 1125 granting the
power to arrest any person by virtue of a Presidential Order of Arrest;
LOI 1125-A expanding the Presidents power to arrest through the
Presidential Commi8tment Order (PCO); and LOI 1211 correcting all
the weaknesses and deficiencies of LOI 1125-A.
Due to public outcry, Marcos eventually abolished the PCO but created
in its stead the Preventive Detention Action (PDA) by virtue of PD
1877, which was said to be similar to the Third Reichs Preventive
Presented to the South-East Asia Sub-Regional Hearing of the Eminent Jurists Panel
on Terrorism, Counter-Terrorism and Human Rights on December 4, 2006 in Santika
Hotel, Jakarta, Indonesia.

Detention Decree of December 14, 1937. PD 1877 was further

strengthened by PD 1877-A which transformed the basis of preventive
detention, from mere administrative directives into law, by virtue of
Amendment No. 6 of the 1973 Constitution which provided for the
Presidents emergency powers. Another decree issued by Marcos,
although unpublished, was PD 1836 which defined the conditions
under which President Marcos could issue orders of arrest or
commitment during martial law or when the privilege of the writ of
habeas corpus was suspended. PD 1836 did not provide for any
guidelines or procedures for the arrest or detention of persons except
that arrests and detentions can be effected solely on the basis of the
Presidents personal judgment.
The situation changed drastically after the Marcos rule.
The
administration of Corazon Aquino and, followed later, of Fidel Ramos
saw the repeal of some of the laws considered repressive and the
issuance of decrees protecting the right to liberty. There was, for
instance, the repeal of PDs 1877, 1877-a and 1836. There was also
the abolition of the RA 1700, otherwise known as the Anti-Subversion
Act. However, there still remain a number of laws which curtail the
right to liberty and other rights vital to the person whose right to
liberty is violated. These laws fail to address particularly critical areas
of the detention process where there is no judicial intervention. Socalled administrative detention, preventive detention, safekeeping
or police custody, it is the most crucial stage of the detention
process during which most of a detainees rights are likely violated.
This will be discussed more thoroughly in the next sections.
B.

Arrest and Detention in General

In a study on the subject commissioned by Congress, former Justice of

the Supreme Court Hugo Gutierrez wrote in 1971 that:
Over 2,000 years ago, a Greek philosopher declared that
the major problem of human society is to combine that
degree of liberty without which law is tyranny with that
degree of law without which liberty becomes license
The law on arrest and detention is part of this ancient and
modern attempt to reconcile the antithetical claims of
individual liberty and social order.
On one hand,
government must have sufficient power to protect the
community against crime and other forms of anti-social
2

conduct. It needs power to protect individual rights and

liberties and to promote public welfare and social justice.
And yet, the exercise of governmental power must be
controlled or its may destroy the very values that is is
supposed to protect and promote.1
It is in this regard that the Philippine legal system is replete with laws,
decrees, rules and regulations that define the limits of state power vis-vis the right to liberty of citizens. The richness of the 1987
Constitution itself on such provisions attests to the limitation made by
law on the states power with respect to the rights of its citizens.
To cite a few, the 1987 Philippine Constitution sets forth the primordial
duty of the State to afford protection to its citizens. It is in this
fundamental law from whence the State draws its power to restrict the
rights of its citizens in behalf of social order.
The Constitution provides in Section 3, Article II thereof that:
Civilian authority is, at all times, supreme over the
military. The Armed Forces of the Philippines is the
protector of the people and the State. Its goal is to secure
the sovereignty of the State and the integrity of the
national territory.
The first phrase of the above-cited provision is considered by
constitutionalists as the civilian supremacy clause.
In a
constitutional system, authority can only come from law. Therefore,
the rule of law means that no official, whether civilian or military, may
exercise any power beyond that provided by law. More so, he cannot
exercise any power which contravenes the law. Civilian supremacy is
in effect supremacy of the law.2
The second phrase is what constitutionalists refer to as the mark of
sovereignty clause. In a negative perspective, it frowns down on
military abuses. In a positive perspective, it describes the vocation of
a soldier as guardian of the citizens, of the State and ultimately of the
law.3
Furthermore, Section 4 of the same Article states:
The prime duty of the Government is to serve and protect
the people. The government may call upon the people to
defend the State and in the fulfillment thereof, all citizens
3

may be required, under conditions provided by law, to

render personal military or civil service.
Section 5, Article II further provides:
The maintenance of peace and order, the protection of
life, liberty and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of
the blessings of democracy.
There are also provisions in the Constitution which restrain the States
power to arrest and detain citizens. These provisions serve as legal
safeguards so that the right to liberty of citizens may not be arbitrarily
curtailed.
For instance, Section 11, Article II provides:
The State values the dignity of every human person and
guarantees full respect for human rights.
Moreover, under Section 1, Article III:
No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied
the equal protection of the laws.
The Constitution actually requires two elements to satisfy due process.
First, as a procedural requirement, there must be a mode of procedure
which government agencies must follow in the enforcement of laws.
Daniel Webster defines it as a law which hears before it condemns.
Second, as a substantive requirement, arbitrary laws should be
prohibited. These are also requirements with which an exercise of
police power must comply.
Unfortunately, while the Constitution is clear that there should be no
deprivation of liberty without compliance with the legal requisites so
provided, there is still one kind of detention that eludes the tight grasp
of the law. Such is administrative detention.
Administrative detention is defined as detention without trial
either legally when the law allows it (e.g., while a case is under
investigation) or illegally when administrative agencies (e.g. the
police) abuse their powers. Both forms of detention are susceptible to

a multitude of human rights violations which are greatly unchecked

because of the absence of judicial supervision.
In the Philippines, administrative detention is allowed by law but only
for a certain period of time. Beyond the statutory periods, the
detention becomes illegal, and public officers become liable for
arbitrary detention or delay in the delivery of prisoners, as the case
may be. The pertinent provisions on administrative detention can be
found in the Revised Penal Code, namely:
Art. 124. Arbitrary Detention. Any public officer or
employee who, without legal grounds, detains a person,
shall suffer:
1.
The penalty of arresto mayor in its maximum period
to prision correccional in its minimum period, if the
detention has not exceeded three days;
2.
The penalty of prision correccional in its medium and
maximum periods, if the detention has continued more
than three days but not more than fifteen days;
3.
The penalty of prision mayor, if the detention has
continued for more than fifteen days but not more than six
months; and
4.
That of reclusion temporal, if the detention shall
have exceeded six months.
The commission of a crime, or violent insanity or any other ailment
requiring the compulsory confinement of the patient in a hospital, shall
be considered legal grounds for the detention of any person.
Art. 125. Delay in the delivery of detained persons. The
penalties provided in the next preceding article shall be
imposed upon the public officer or employee who shall
detain any person for some legal ground and shall fail to
deliver such person to the proper judicial authorities within
the period of : six hours, for crimes or offenses punishable
by light penalties, or their equivalent; nine hours, for
crimes or offenses punishable by correctional penalties or
their equivalent; and eighteen hours, for crimes or
offenses punishable by afflictive or capital penalties, or
their equivalent
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Article 125 of the Revised Penal Code has been amended by Executive
Order 272 (1987) which extended the allowable periods of detention
as follows: (2) 12 hours for offenses punishable by light penalties;
(b) 18 hours for offenses punishable by correctional penalties; and (c)
36 hours for offenses punishable by afflictive penalties. Article 125
applies only if the arrest is made without a warrant and it is lawful.
Parenthetically, E.O. 272 has been assailed by human rights
advocates. As explained by one advocate:
The obvious danger posed by this amendatory issuance is
that the deprivation of liberty of a person arrested is
legally extended, betraying the recognition a mans
freedom is of primordial importance. Considering that the
provision applies only to valid warrantless arrests, it is with
more reason that the validity of the arrest of the person
detained be resolved by mandating that he be delivered to
the proper judicial authorities with dispatch. Worse, by
doubling the periods of lawful detention, the security
forces can have more time to sway on the person of the
detained.4
The fear is that the longer the person is detained, the greater the
chances that his rights are violated. Moreover, it is claimed that the
extended periods provide an escape or an impunity for torturers or
manhandlers of detainees because the evidentiary wounds inflicted on
them would have been healed by the time they are released, if they
have not yet been salvages.5
The reason for the legal extension of the periods is given in the
whereas clause of E.O. 272, which provides: In the interest of public
safety and order, it is imperative that a reasonable and sufficient
period be given within which to conduct adequate and thorough
investigation of persons detained for some legal grounds.
For purposes of this study, the period of administrative detention
refers to that duration of time which precedes the filing of charges in
court. Although it is difficult to draw a line as to when it actually
commences, the study has included as a stage of commencement of
administrative detention the time of apprehension, arrest, and
invitation of a person.
In this connection, former Supreme Court Justice Gutierrez wrote:
6

Preliminary research during the planning stage of a congressional

study on the law on arrest and detention indicated that a great
number of persons who are eventually taken into custody to answer
criminal charges are not arrested -- with or without warrants -- but
are simply invited. Not having been arrested these individuals
cannot claim whatever protection the law on arrest may give them.
From the moment of invitation until the actual booking and
preparation of the arrest report, there is no dividing line between a
general inquiry into unsolved crime and a custodial interrogation
focusing upon the invited person as the one particular suspect.6
C. The Administrative Detention Process
1. Arrest/Apprehension/Invitation
In legal terms, an arrest is defined by the Revised Rules of Court as
the taking of a person into custody in order that he may be
forthcoming to answer for the commission of an offense (Section 1,
Rule 113). Section 2 of the same Rule further provides:
It is made by an actual restraint of the person to be arrested, or by
his submission to the custody of the person making the arrest.
An arrest is clearly a form of seizure. There is a seizure of a person if
the surrounding circumstances indicate to a reasonable person that he
was not free to leave (US v. Mendenhall, 446 US 544). Thus, if an
officer forcibly restrains or threatens to restrain a citizen, a seizure
occurs. It has also been held that a police questioning in itself may
not constitute a seizure unless a more coercive atmosphere ensues
(INS v. Delgado, 80 L e. 2d 247; Dunaway v. NY. 442 US 200). An
arrest being a seizure, it makes the guarantee against unreasonable
seizures applicable. More importantly, other forms of temporary
detentions which police agencies my not want to classify under the
technical definition of arrest would fall under the broader term
seizures. Invitations and apprehensions could conceivably be
within the coverage of seizures, which should pass the test of
reasonableness provided by the Constitution.7 Thus, as Section 2,
Article III of the Constitution provides:
The right of the people to be secure I their persons, houses, papers
and effects against unreasonable searches and seizures of whatever
7

nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or
things to be seized.
This provision mandates the State to respect a persons home and
possessions and, more importantly, it protects the privacy and sanctity
of the person himself. It is a guarantee against unlawful arrests and
other forms of restraint on the physical liberty of the person. The
search and seizure clause requires that between the person and the
police must intervene the protective authority of a magistrate who has
the power to issue or refuse to issue search warrants or warrants of
arrest.8 Any evidence thus obtained in violation of such provision will
be rendered inadmissible for any purpose in any proceeding.9
The above notwithstanding, in Philippine procedural law, there are
instances when an arrest maybe made legally without warrant. In
reality, this is the legal trap where cases of individuals under
administrative detention fall. The law as framed creates certain
restrictions to avoid any undue infringement of the right to liberty of
individuals. Rule 113 of the Rules of Court limits legal warrantless
arrests to only three instances:
Sec. 6. Arrest without warrant When lawful. A peace
officer or a private person may, without a warrant, arrest a
person:
(a)
When, in his presence, the person to be arrested
has committed, is actually committing, or is attempting to
commit an offense;
(b)
When an offense has in fact just been committed,
and he has reasonable ground to believe that the person to
be arrested has committed it;
(c)
When the person to be arrested is a prisoner who
has escaped from a penal establishment or place where he
is serving final judgment or temporarily confined while his
case is pending, or has escaped while being transferred
from one confinement to another.

In the case of People v. Burgos (144 SCRA 1), the Supreme Court
ruled in the following tenor: First, it recognized the general rule that
all arrests must be under a judicial warrant. S e c o n d , while
recognizing certain exigent situations as exempting from the
requirement of a warrant, it held that such exceptions must be strictly
construed. Third, it held that if the warrantless arrest is unlawful at
the moment it is made, generally nothing that happened or is
discovered afterwards can make it lawful. Such is the rule fruit of a
poisoned tree. Fourth, it applied the rule that courts indulge every
reasonable presumption against waiver of fundamental constitutional
rights and do not presume acquiescence in the loss of fundamental
rights.10
Moreover, the 1985 Rules of Court are now more stringent since it not
only requires the police to show that a crime has actually been
committed at some vague time in the past. The crime must be shown
to have been committed just before the arrest. Besides, the police are
also required to have a personal knowledge of the facts indicating that
the person to be arrested has committed the crime charged.11
Therefore, a peace officer has no power or authority to arrest a person
without a warrant upon complaint of the offended party or any other
person, except I those cases expressly authorized by law, even if after
investigation, he becomes convinced that the accused is guilty of te
offense charged. Any police officer who makes an arrest without
regard to the requirements of law would be liable for illegal arrest or
arbitrary detention.
Despite these legal safeguards, there are still areas of concern left
unanswered. The Garcia-Padilla v. Ponce Enrile case (121 SCRA 472)
poses one controversial issue. Briefly, nine of the petitioners therein
were under surveillance as members of the Communist Party of the
Philippines. They were apprehended while having a conference in a
residential house in Nueva Vizcaya. They scampered in different
directions leaving their weapons, ammunitions, cash, various
documents and plans of inflation on their conference table. The
Supreme Court ruled to the effect that the crimes were covered by
Proclamation No. 2045 and are in the nature of continuing offenses.
According to the Court, their arrest was preventive in nature since the
purpose was to quell the commission of the offenses and present them
immediately to court. Thus, the absence of a warrant is no legal
obstacle to the capture of persons engaged in rebellion.
The ruling in Garcia was reiterated in the more recent case of Umil v.
Ramos, 12 which elicited powerful dissenting opinions from Justices
9

Sarmiento, Feliciano, Cruz, Fernan, Gutierrez and Regalado. In Umil

v. Ramos, the Court ruled that the grounds of suspicion are reasonable
when, in the absence of actual belief of the arresting officers, the
suspicion that the person is probably guilty of committing the offense
is based on actual facts, and is supported by circumstances sufficiently
strong enough to create the probable cause of guilt of the person
arrested. Justice Cruz, in reaction, dissented:
My own impression is that probable cause must be
established precisely to justify the issuance of a warrant,
not to dispense with it; moreover probable cause must be
determined by the judge issuing the warrant, not the
arresting officer who says it is not necessary.13
Furthermore, Justice Feliciano, reacting to the use of continuing
offenses as basis for warrantless arrests, commented:
The doctrine of continuing cries which has its own
legitimate function to serve in our criminal law
jurisprudence, cannot be invoked for weakening and
dissolving the constitutional guarantee against warrantless
arrests. Where no overt acts comprising all or some of the
elements of the offense charged are shown to have been
committed by the person arrested without a warrant, the
continuing crime doctrine should not be used to dress up
the pretense that a crime, begun or committed elsewhere,
continued to be committed by the person arrested in the
presence of the arresting officer.14
Indeed, the cases of Garcia-Padilla v. Enrile and Umil v. Ramos
authorize the arrest of persons without a warrant on the sole basis of a
bare allegation that one is a subversive or a rebel. The bottom line of
this doctrine is tat on mere suspicion alone one mere suspicion that
a person is a rebel or a subversive one can be arrested without a
warrant. And the suspicion need not exist in the mind of any witness.
Suffice that the suspicion is I the mind of the authority making the
arrest.
The Supreme Court I Umil v. Ramos ruled to the effect that the power
to arrest without warrant is unlimited as long as the requirements of
Section 5, Rule 113 are met. Thus:

10

One of the duties of law enforcers is to arrest lawbreakers

in order to place them in the hands of executive and
judicial authorities upon who devolves the duty to
investigate the acts constituting the alleged violation of law
and to prosecute and secure punishment therefore. An
arrest is therefore an administrative measure. The power
to arrest without warrant is without limitation as long as
the requirements of Section 5, Rule 113 are met. This rule
is founded on an overwhelming public interest in peace
and order in our communities.15
Moreover, the Supreme Court declared:
The courts should not expect of law-enforcers more than
what the law requires of them. Under the conditions set
forth in Section 5, Rule 113, particularly paragraph (b)
thereof, even if the arrested persons are later found to be
innocent and acquitted, the arresting officers are not
liable. But if they do not strictly comply with the said
conditions, the arresting officers can be held liable for the
crime of arbitrary detention for damages under Article 32
of the Civil Code and/or for other administrative
sanctions.16
The rationale of the Supreme Court in Umil v. Ramos has a similar
tenor with the ruling in the old case of US v Santos (36 Phil. 853). In
said case, the Court said:
One should, however, not expect too much of an ordinary
policeman. He is not presumed to exercise the subtle
reasoning of a judicial officer. Often he has no opportunity
to make the proper investigation but must act in haste on
his own belief to prevent the escape of the criminal. To err
is human. Even the most conscientious officer must at
times be misled. If therefore under trying circumstances
and in a zealous effort to obey the orders of his superior
officer and to enforce the law, a peace officer makes a
mere mistake in good faith, he should be exculpated.
Otherwise, the courts would put a premium on crime and
will terrorize pace officers through a fear of themselves
violating the law.17
It must, however, be remembered that although one should not expect
too much of an ordinary policeman and that good faith is a valid
11

defense against criminal liability for his action, it is necessary to

determine the validity of the arrest without reference to the criminal
liability of the arresting officer, because a search incidental to an
invalid arrest would itself be invalid and the fruits of such search would
be rendered inadmissible as evidence.
Moreover, the question arises as to what constitutes strict compliance
with Section 5, Rule 113. As worded, the law and the exceptions are
clear. But the rulings in the Garcia, Ilagan and Umil cases obliterate
the spirit of the law and give it a new meaning that is not apparent on
the face of the provision so applicable. Thus, the particular provision o
warrantless arrests has been ore of a watchout provision especially
for those considered blacklisted in police terms. These include
specifically the political detainees, the so-called notorious ones, and
even any ordinary citizen considered suspicious-looking or a may-be
criminal. The guarantee on warrantless arrests has a built-in legal
loophole.
It is true that with the repeal of the Anti-Subversion Law by RA 7636,
part of the problem has been solved. But RA 7636 is limited in scope
as it covers only subversion. Police techniques have grown too
sophisticated that so-called political offenders are charged with nonpolitical crimes. Together with the notorious criminals and the
suspicious-looking individuals, they remain prey to the inflagrante
clause of Section 5, Rule 113, which the police rely on through planted
evidence. This method has become relatively easy I the light of cases
such as People v. Malmstedt (198 SCRA 401) where the Court held
that while the NARCOM agents were not armed with a search warrant
when the search was made over the personal effects of the accused,
under the circumstances of the case, there was sufficient probable
cause for said officer to believe that the accused was then and there
committing a crime. Justice Narvasa dissented:
If a person is searched without a warrant, or under
circumstances other than those justifying an arrest without
warrant in accordance with law, merely on suspicion that
he is engaged in some felonious enterprise, and in order to
discover if he has indeed committed a crime, it is not only
the arrest which is illegal but also the search on the
occasion thereof, as being the fruit of the poisonous tree.
In that event, any evidence taken, even if confirmatory is
inadmissible for any purpose in any proceeding.18

12

Thus, despite the constitutional provision on searches and seizures,

individuals find themselves vulnerable to a variety of case consisting
mostly of illegal possession of firearms, possession, use and selling of
drugs, and even vagrancy where a private complainant or eyewitness
can be dispensed with. There are instances when even fabricated
non-bailable offenses are filed against an individual to ensure his
incarceration. The defense of planting or frame-up remains an
issue for the courts to decide. In the meantime, the prosecutor may
find a prima facie case that warrants the filing of information in court
and the arrest of the alleged offender. Thereafter, the person arrested
languishes in jail, the determination of his guilt pending before the
court. If he is innocent, no doubt is right to liberty is obviously
curtailed.
Other cases relevant to administrative detention include the following:
(1) Harvey v. CID, 162 SCRA 840 (1988) Probable
cause based on surveillance even when no crime was
committed at the time of arrest Accepted;
(2) People v. Allan Rodriguez, 172 SCRA 742 (1989)
Reasonable ground based on the tip of an informer
Accepted, citing People v. Paco;
(3) Valmonte v. DeVilla, 178 SCRA 211 (1989)
Checkpoint cases visual search of motor vehicles allowed
; also permits extensive search if there is probable cause;
(4) People v. Tangliben, G.R. 63630, April 6, 1990
Surveillance at Victory Liner Compound at San Fernando,
Pampanga; arrest based on suspicion Accepted;
(5) Posadas v. Court of Appeals, G.R. 89139, August 2,
1990 Surveillance at Magallanes Street; arrest based on
suspicion citing Terry v. Ohio, a stop and frisk situation
Accepted;
(6) People v. Maspil, G.R. 85177, August 20,1990
Checkpoint at Baguio City based on tip of informer
Accepted;
(70 People v. Cendana, G.G. 84715, October 17, 1990
Arrest based on information from unknown sources
Rejected;
13

(8) People v. Lotto Wing, January 21, 1991, G.G. 88017

Search of moving vehicle based on information from agent
Accepted;
(9) People v. Alvarez, G.R. 88451, September 5, 1991
Surveillance by informant who was once a policeman
Accepted;
(10) People v. Paco, 170 SCRA 681 (1989) Knowledge
from drug- buy-bust operation Accepted;
(11) People v. Tonog, G.G. 94533, February 4 1992
Knowledge gathered by policeman from investigation
Accepted;
(12) People v. Mengote, G.R. 87059, June 22, 1992
Arrest based on reasonable ground of suspicion Impliedly
Accepted;
(13) Guazon v. De Villa, 181 SCRA 623 Saturation
drives or zona are not per se illegal; and
(14) Ilagan v. Enrile, 139 SCRA 349 Petition for habeas
corpus rendered moot and academic upon filing of
information.19
The majority of the above-mentioned cases allow measures of
restraint on individual liberty. However short a time these restraints
might be, the repercussions are great. As former Justice Hugo
Gutierrez explained:
There are many other little restraints on individual liberty
which most people resent but decide to tolerate thinking
there are more significant violations of constitutional
liberties which should first be punished. The subjects of
these restraints are often the e-convicts who go in and out
of Bilibid Prison regularly, the outcasts, the poor, and
underprivileged who would have no way of raising
constitutional issues. Restraints of affluent or welleducated individuals are usually conducted in a courteous
and apologetic manner . The scene is so different from
the treatment given to scavengers at a garbage dump or

14

to persons going from house to house trying to beg money

to bury a dead relative.20
It is in this light that Justice Gutierrez recommended that
constitutional standards of probable cause in all forms of detention
wherever warranted and clearly articulated by the Supreme Court are
necessary. Based on these standards, Congress, the Philippine
National Police and other concerned agencies can promulgate
implementing statutes, ordinances and rules for each level or degree
of detention.
2. Custodial Investigation
The law on custodial investigation is embodied in Section 12, Article II
of the 1987 Constitution which provides:
(1) Any person under investigation for the commission of
an offense shall have the right to be informed of his right
to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and
in the presence of counsel.
The provision is an innovation of the Miranda Rule, a
doctrine enunciated in Miranda v. Arizona,21 384 US 436
(1966), which has been fully adopted in Philippine
jurisprudence. Under the Rule, the following rights during
custodial investigation are guaranteed:
(1) The person in custody must be informed at the outset
in clear and unequivocal terms that he has a right to
remain silent.
(2) After being so informed, he must be told that
anything he says can and will be used against him in court.
(3) He must be clearly informed that he has the right to
consult with a lawyer and to have a lawyer with him during
the interrogation. He does not have to ask for a lawyer.
The investigators should tell him that he has the right to
counsel at that point.

15

(4) He should be warned that not only has he the right to

consult with a lawyer but also that is he is indigent, a
lawyer should be appointed to represent him.
(5) Even if the person consents to answer questions
without the assistance of counsel, the moment he asks for
a lawyer at any point in the investigation, the interrogation
must cease until an attorney is present.
(6) If the foregoing protections and warnings are not
demonstrated during the trial to have been observed by
the prosecution, no evidence obtained as a result of the
interrogation can be used against him.
3. Safekeeping
An international instrument specifically relevant to administrative
detention is the Standard Minimum Rules for the Treatment of
Prisoners adopted by the First UN Congress on the prevention of
Crime and the Treatment Offenders in 1955 and approved by the
Economic and Social Council by Its Resolutions 663 C (XXIV) of July
31, 1957 and 2076 (LXII)( of May 13, 1977. In particular, applicable
to persons under administrative detention are the provisions on
Prisoners under Arrest or Awaiting Trial which, among others, provide
for the following:
a) Unconvicted prisoners shall be presumed innocent and shall be
treated as such;
b) They shall be kept separate from convicted prisoners and
minors shall be separated from adults;
c) They shall sleep singly in separate rooms, with the reservation
of different local custom in respect of the climate;
d) Within the limits compatible with the good order of the
institution, they, may if they so desire, have their food procured
at their own expense from the outside, either thorough
administration or through their family or friends. Otherwise, the
administration shall provide their food;
e) They shall be allowed to wear their own clothing if it is clean and
suitable;
16

f)

They shall be offered opportunity to work but shall not be

required to work if they choose to work, they shall be paid for
it;

g) They shall be allowed to procure at their own expense or at the

expense of a third party such books newspapers, writing
materials and other means of occupation as are compatible with
the interest of justice, security and order;
h) They shall be allowed access to visitors and doctors and dentists
of their own choice if there is a reasonable ground for the
application for their treatment and they are able to pay the
expenses incurred;
i)

They shall be allowed to inform immediately their families of

their detention and shall be given all reasonable facilities for
communicating with their family and friends and for receiving
visits from them, subject only to restrictions and supervision as
are necessary in the interests of justice, security and good
order; and

j)

They shall be allowed access to free legal aid for purposes of

their defense.

In all cases, the Rules provide that no measures shall be taken

implying that re-education or rehabilitation is in any way appropriate
to persons not convicted of any criminal offense.
Another relevant UN instrument is the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment adopted
and opened for signature, ratification and accession by the UN General
Assembly Resolution 39/46 of December 10, 1984.22 the Convention
outlaws the use of torture, which is defined as:
any act by which severe pain or suffering, whether physical or
mental, intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession,
punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person

17

acting in an official capacity. It does not include pain or suffering

arising only from, inherent in r incidental to, lawful sanctions.
Additional legal provisions relevant to detainees are embodied in the
Administrative Code of 1987, specifically Book III, Title III, Chapter 8,
on the Bureau of Corrections, and the Bureaus promulgated rules,
particularly on the Rules for the Treatment of Prisoners.
4. Inquest
LOI 621, promulgated on October 27, 1977, mandates that all persons
arrested must be brought before a judicial inquest authority which
can, among others, determine whether a detainees rights have been
violated. This inquest is to be accompanied by a medical examination.
According to LOI 621, the following are among the purposes of
inquest:
a) To determine whether there exists probable cause in case of a
citizens arrest;
b) To determine or cause the determination of the physical
condition of the arrested person;
c) To determine if the admission and/or confession that may have
been executed by the arrested person was strictly in accordance
with the Constitution;
d) To determine if maltreatment or other forms of torture have
been committed on the person arrested, and to institute the
necessary charges/actions, if there be so, immediately; and
e) To insure that confiscated articles, items, documents or other
personal property or effects are duly accounted for and/or
covered by proper receipts.
Said LOI 621 gives the Inquest Authority the following ppowers and
duties:
a) To issue commitment orders of the detention of arrested
persons;

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b) To direct the release of the arrested person if there is no

probable cause against him in the case of citizens arrest; and
c) To prefer charges against such person as to whom probable
cause has been determined.
Moreover, LOI 621 enumerates a set of policies in the arrest, handling
and treatment of detainees. In summary, these policies are:
a) Arrests should be effected with uncompromising firmness and
impartiality but with due regards to the rights and dignity of the
persons being arrested;
b) The system of seasonable reporting of arrests and accounting
arrested persons shall be reviewed and modified if necessary,
with the view to precluding malpractices in the arrest and
administration of detainees;
c) The policy of government against torture or any other form of
cruel, inhuman or degrading treatment of detainees shall remain
inviolate;
d) Scrupulous adherence to, and respect for, the constitutional
rights of detainees shall at all times be observed; and
e) A continuing evaluation and review of arrest procedures and
detainee administration shall be made aimed at pinpointing
problem areas to include breaches of the requisite norms of
conduct by the personnel concerned and the setting up of
punitive/corrective mechanisms for dealing swiftly but fairly with
infractions or deficiencies noted.
At present, inquest proceedings are conducted by Inquest Prosecutors,
and their findings are reviewed by the Chief Inquest Prosecutor.
Due to the difficulty in monitoring the status of a case and the actual
date a case is filed, the Department Of Justice came out with a
Memorandum dated February 9, 1993 containing guidelines for the
implementation of a Case Tracking system in the Prosecutors Offices I
the Province of Rizal and cities of Manila, Quezon, Caloocan and Pasay.
Having examined most of the laws and jurisprudence significant to
administrative detention, and having set forth the legal guarantees
and safeguards to individual liberty, the next discussion will depict the
19

realities behind the theories with the hope that this study will help
pave the way for a more wholistic approach at addressing the issues
concerning the practice of administrative detention in the Philippines.

20

FOOTNOTES
1

Hugo E. Gutierrez Jr., The Unsatisfactory Status of the Law on Arrest and Detetion, Philippine Law
Journal, Vol. 46, 1971, p. 669.
2
Joaquin G. Bernas, Constitutional Structure and Powers of the Government: Notes and Cases, 1991, p.
19.
3
Ibid.
4
Marie, Yuvienco, The Impunity for Human rights Violations Through Philippine Jurisprudence, juris
doctor thesis, Ateneo de Manila University, School of Law (1993).
5
Ibid.
6
Gutierrex, p. 676.
7
Ibid., p. 678.
8
Bernas, Notes and Cases, p. 73.
9
Section 3(2), Article III of the Philippine Constitution.
10
Alfredo F. Tadiar, A Critical Analyses of Syupreme Court Decisions on Criminal Procedure from 1983
up to May 1989, Rex Printing Company, Inc., 1989, p. 7.
11
Sayo, et.zl. v. Chief of Police, et.al., 80 Phil. 859.
12
187 SCRA 251, July 9, 1990; Reconsideration, 202 SCRA 251, October 3, 1991.
13
Umil v. Ramos, 202 SCRA, 282.
14
Ibid, pp. 293-294.
15
Ibid., pp. 267-268.
16
Ibid., pp. 268-269.
17
US v. Santos, 36 Phil. 853, 855.
18
People v. Malmstedt, 198 SCRA 401, 415.
19
Oscar Herrera, Outline on Recet Development on the Law on Arrest, Search and Seizure, May 14-15,
1993, pp. 11-12.
20
Gutierrez, pp. 691-692.
21
The US case of Miranda v. Arizona deals with the admissibility of statements obtained from an
individual who is subjected to custodial police interrogation, and the necessity for procedures which assure
that the individual is accorded his privilege against self-incrimination.
22
The Philippines acced to this Convention on April 30, 1986.

21