Legal Opinion on Proclamation No.

1, Series of 20091

1. On “general searches and seizures”

There is no legal justification for the conduct of “general searches and

seizures”, even in places where there is a declaration of a state of emergency.
Section 2, Article III of the 1987 Constitution provides:

The right of the people to be secure in their persons,

houses, papers and effects against unreasonable searches and
seizures of whatever 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.

No one is supposed to be constantly fearful that his or her abode, papers, files,
and other properties will be subjected to unreasonable searches and seizures. This
means that there can only be searches and seizures when these are reasonable.
There is reasonableness when the search is made with a warrant, which is issued
only after a judge shall have found that there is “probable cause” to believe that a
crime has been committed and that the search proposed to be conducted in the
premises would yield to the acquisition of evidence that could be used for the
prosecution of the crime— e.g, the weapons used or will be used in the
commission of the crime or the fruits thereof. The second part of the
constitutional provision also requires that the warrant should be specific in the
designation of the place to be searched and the object that is to be seized.

Using the above standards, the search should be done only in a particular place
specified in a warrant, and for a specific object in relation to a crime. A “fishing
expedition” cannot be done, even if it is with the good intention of arresting the
suspect to a crime. Otherwise, everyone can be forced to open his/ her house to
every police officer or military for each and every crime that happens in the
community.

While there are lawful warrantless searches, these are exceptions to the
general rule laid down above. The exceptional circumstances are:

• Where there is a valid reason to “stop-and-frisk”;

• Where the search (and seizure) is an incident to a lawful arrest;
• In cases of searches of vessels and aircrafts;
• In cases of searches of moving vehicles;
• In inspection of buildings and other premises for the enforcement of fire,
sanitary and building regulations;
• Where the prohibited articles are in plain view;
1
By Raissa H. Jajurie, SALIGAN-Mindanaw and Bangsamoro Lawyers’ Network (BLN)
 • Search and seizure under exigent and emergency circumstances;
• Warrantless search where the owner or occupant of the premises consented to
the search; and
• Customs search.

Outside of the above situations, the warantlass search is illegal.

Consequently, all objects taken from the illegal search are inadmissible in
evidence. This defeats the whole purpose of the search, and is therefore counter-
productive, and worse, violative of human rights standards.

Now, Proclamation 1 provides for the “conduct of General Search and

Seizure xxx”. What exactly does this mean?

A general warrant or a “scatter-shot warrant” is a search warrant which

vaguely describes and does not particularize the personal properties to be seized
without a definite guideline to the searching team as to what items might be
lawfully seized, thus giving the officers discretion regarding what articles they
should seize2. According to the case of Tambasen v. People (G.R. No. 89103,
July 14, 1995), this kind of a search warrant is is null and void because it violates
the constitutional requirement that there must be particularity of the things to be
seized and persons and places to be searched.

If “general search and seizure” as provided in Proclamation 1 pertains to

searches where the police and military forces can enter any house in any
community to gather whatever evidence there is that could possibly be found
thereat, then this is even worse than a general warrant, which has already failed
the test of reasonableness, and therefore, of lawfulness. The state, even with the
best intention, cannot just swoop down on communities, forcefully open houses,
scour though the papers and effects of the owners and/or occupants thereof, and
use them in the prosecution of the crimes related to terrorism. As already
mentioned, every person is entitled to feel safe and free from the intrusion or
invasion of privacy, and especially so when s/he is within the walls of his/ her
house. Otherwise, people will always feel anxious and afraid that police and/ or
military personnel can just barge into their houses, even when they are eating,
resting, sleeping, or doing other such innocent acts, to ferret around for any paper
or object that could implicate them in any crime, whether rightly or wrongly.

2. On “arrests in the pursuit of kidnappers and their supporters”

The complete action point on the conduct of “General Search and Seizure” in
Proclamation 1 goes on to this: “including arrests in the pursuit of kidnappers and
their supporters”.

The same apprehensions and objections pointed out in relation to “general

searches and seizures” are likewise put forward in relation to the arrests
mentioned in action no. 3 in the Proclamation. Section 2, Article III of the
Philippine Constitution, which has been cited as the standard against which the
conduct of general searches and seizures should be tested, is also the same
standard for the “arrests in pursuit of kidnappers and supporters”. This
2
Nolasco v. Pano, G.R. No. 69803, October 8, 1985
 constitutional provision only allows for arrests that are made by virtue of a
warrant issued after a judge shall have ascertained that there is a “probable cause”,
i.e., that such facts and circumstances which would lead a reasonably discreet and
prudent person to believe that an offense has been committed and that the person
to be arrested is the one who probably committed it. The warrant of arrest should
also identify with particularity the person to be arrested.

Again, there are exceptions to the general rule that requires warrants for
arrests. In the following circumstances, a police officer can make an arrest
without warrant:

• When, in his/her presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense;
• When an offense has just been committed and s/he has probable cause to
believe, based on personal knowledge of facts or circumstances, that the
person to be arrested has committed;
• When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where s/he is serving final judgment or is temporarily
confined while his/her case is pending, or has escaped while being transferred
from one confinement to another.

Aside from the above instances, there cannot be any warrantless arrest. Even a
state of emergency would not justify it. In fact, even when there is martial law, or
a suspension of the writ of habeas corpus, the same rule applies. When the writ
of habeas corpus is suspended, however, the person arrested without warrant
under any of the three above-mentioned exceptions, will have to be charged in
court within 3 days, instead of the otherwise maximum number of hours of 36
hours. And even then, the suspension is only for those charged with rebellion or
crimes related to invasion, and not terrorism.

Under the Human Security Act, which Proclamation No. 1 cites as a legal
basis, warrantless arrests may be effected against persons charged or suspected of
the crime of terrorism or the crime of conspiracy to commit, provided that they be
charged in court within 3 days from their apprehension. There are, however,
additional requirements for this: (1) that the arresting officer has been authorized
in writing by the Anti-Terrorism Council to make such arrest, and (2) the arrest is
a result of a surveillance conducted under the Human Security Act.3 Note that
surveillance is only allowed after a written order is issued by the Court of
Appeals, after a formal application is filed therewith by a police or law
enforcement official who has been duly authorized in writing by the Anti-
Terrorism Council.4

In short, even if the Human Security Act does lengthen the period within
which those arrested without warrant are supposed to be charged in court, it does
not add any exceptional circumstances where warrantless arrests can be lawfully
made. Further, there are procedural requirements under said law which must be
complied with before a warrantless arrest will be allowed. It is not a blanket
authority to arrest any or all suspects, even of terrorism.
3
Section 18 of RA 9372 or the Human Security Act
4
Sections 8 and 9, ibid.
 These strict standards for warrantless searches and seizures are constitutionally
protected and cannot be negated by a mere proclamation by a governor. As
mentioned earlier, even the best intentions, such as going after the kidnappers of the
ICRC workers, cannot go against these standards. The rule of law should be made to
prevail, even in an extraordinary or emergency situation such as what Sulu faces in
the light of the spate of kidnappings in the islands. However, we do not want to make
the situation even more chaotic, by illegally arresting innocent civilians who may not
have anything to do with the dastardly act. The rule of law should prevail and the
government, having been entrusted with the duty to utilize and strengthen institutions
of justice, cannot just abandon this duty. Warrantless arrests and warantless searches
are exceptions to the general rule, and should not be made to oppress people whose
access to legal assistance and protection from torture and forced confessions are
almost nil.