Press Release
January 17, 2011

By Senator Miriam Defensor Santiago
(Speech at the founding anniversary of the PNP Intelligence Group
at Camp Crame, Quezon City, on 17 January 2011)

Human Security Act

One of the better ways to observe the founding anniversary of the PNP Intelligence Group is to take a brief look at R.A. No. 9372, "An Act to Secure the State and Protect our People from Terrorism," also known as the 2007 Human Security Act. The law defines terrorism as a crime under the Penal Code, which creates a "condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand." The penalty is 40 years imprisonment, without the benefit of parole.

Since terrorism is a modern global phenomenon, the law gives to the police or any other law enforcement official expanded power to conduct surveillance of suspects, and to intercept communications, or in other words, to conduct wiretapping. But you can only do this upon written order of the Court of Appeals. Further, you are prohibited from wiretapping communications between lawyers and clients, doctors and patients, journalists and their sources, and confidential business correspondence.

The law creates an Antiterrorism Council, which has power to authorize in writing any policeman to file an application under oath with the Court of Appeals, alleging that there is probable cause to believe, based on his personal knowledge of facts, that terrorism has been committed, is being committed, or is about to be committed. The written order of the Court of Appeals constitutes classified information.

But - and this is a very big "but" - the law provides that a person whose conversations are wiretap, has the right to be informed of the acts done by the law enforcement authorities in the premises. And the person being surveilled is allowed to challenge the legality of the wiretap.

The wiretap order is valid for not more than 30 days from receipt of the written order of the Court of Appeals by the policeman. Within 48 hours from the expiration of the order, the policeman is required to deposit, together with the joint affidavit, all the recordings made of the wiretap, which constitute classified information. The sealed envelope or package shall not be used as evidence, except only upon written application by the justice department and as authorized by written order of the Court of Appeals.

In addition to the expanded powers of the police to conduct wiretaps, the law also grants to the police the power to detain a suspect for not more than three days. But before he detains the suspect, the policeman must present the suspect before any judge at the latter's residence or office nearest the place where the arrest took place, at any time of the day or night.

The police may detain a suspect for more than three days, in the event of an actual or imminent terrorist attack. But he must first obtain the written approval of an official of the Human Rights Commission, or a judge of the trial court, or justice of the Sandiganbayan or the Court of Appeals.

While the suspect is under detention, the policeman shall keep an official custodial logbook. During the period of detention, the law prohibits any torture or coercion during the investigation and interrogation.

Once the case reaches the court, if the judge grants bail, the police may request the prosecutor to file a motion to limit the right of travel of the suspect to within the town or city where he resides or where the case is pending. The police may also request the prosecutor to file a motion for the judge to place the suspect under house arrest.

During the trial, the police could apply ex-parte for judicial authorization to examine the bank deposits, and other records of the suspect. Ex-parte means that you do not have to notify the other party. Such court authorization is effective for a period not exceeding 30 days from date of receipt of the written order by the police. Just like wiretap files, the bank data shall be placed in a sealed package and deposited with the Court of Appeals. Like wiretapped files, bank data are considered as classified information.

During the trial, the bank deposits and other assets of the suspect may be seized, sequestered, and frozen. The suspect can no longer withdraw his money or other assets, and they are deemed as property held in trust by the bank for the suspect. If the suspect is convicted, his deposits are automatically forfeited in favor of the government.

The law is anxious that policemen shall not use their expanded powers under the Human Security Act as an opportunity for corruption. Thus, if the suspect is acquitted, the police has to pay the suspect liquidated damages at the rate of P500,000 a day for the period in which the bank assets were seized. The same amount of damages is imposed if the suspect is acquitted, charged against the appropriation of the police agency.

The law not only imposes a very big amount of damages in favor of a suspect who has been acquitted. In addition, the law provides that "the Commission on Human Rights shall give the highest priority to the investigation and prosecution of violations of civil and political rights in relation to the implementation of this Act." The law also creates a Grievance Committee with the Ombudsman as chair, to evaluate complaints against actuations of the police. That is not all. The law also creates a Joint Oversight Committee composed of five members each from the Senate and the House of Representatives.

Supreme Court Protects Police

The law has so many provisions penalizing the police that there is danger for policemen to become paralyzed by the threat of penalties. But the Supreme Court is ready to defend the policeman who is merely trying to do his duty under pressing circumstances. As a former RTC judge in Quezon City, I always emphasized one quotation from the 1917 case written by Justice Malcolm, whom I quote: "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." (US v. Santos, 36 Phil. 853). And here is another quote from another landmark case: "A police officer, in the performance of his duty, must stand his ground and cannot, like a private individual, take refuge in flight, if his duty requires him to overcome his opponent." (US v. Mojica, 42 Phil. 784).

After these two landmark cases, the Supreme Court has consistently granted to the police the presumption that official duty has been regularly performed. For example, in a 2002 case, the Court ruled: "Unless there is clear and convincing evidence that the members of the buy-bust team were inspired by no probable motive or were not properly informed of their duty, their testimony on the operation deserves full faith and credit." (People v. Valencia, 390 SCRA 696.)

Community Policing

In carrying out the work of antiterrorism, the police should intensify "community policing." This means that the police should be aware of a critical element, namely, a strategy involving a set of principles related to public outreach by law enforcement, adapted and tailored to specific communities. Community policing has a threefold set of principles. The first is building trust and relationships with local communities. The second is identifying the problems and concerns of the particular community. And the third is working in a collaborative manner between the police and the community leaders to address the community's problems.

Allow me to suggest the following examples of community policing:

� Public outreach meetings;

� Open houses;

� Liaising with the religious, civil societies, and neighborhood associations;

� Ensuring that the police force is representative of the community;

� Establishing neighborhood watch programs;

� Reaching out thru the media;

� Most important of all, interaction between the public and the local "cop-on-the-beat."

In the context of counterterrorism, community policing can be extremely difficult; but in this context, community policing becomes even more important. It has proved to be successful in, for example, Japan and Indonesia.

Charter Change and the Police Law

As Chair of the Senate Committee on Constitutional Amendments, I feel it is my duty to start a series of public hearings to determine whether revision of the Constitution is necessary. My starting point is not only the widely publicized speech of the recently retired Chief Justice, but also a provision of the PNP law, as amended. Under Section 30, no person shall be appointed as member of the PNP unless he or she possesses certain minimum qualifications, including "a formal baccalaureate degree from a recognized institution of learning."

As a constitutional lawyer, I have always been struck by the incongruity between this provision of the PNP law and the provision of our Constitution in Article 7, Section 2, which provides that a presidential candidate merely needs to be natural born, a registered voter, literate, at least 40 years old, and a resident for 10 years. In other words, while no person can be a policeman unless he has a college degree, any person without a college degree can be elected as President or as janitor. This discrepancy immediately provokes questions concerning the Equal Protection Clause of our Constitution.

There are certain other congruities in our system of governance that call for revision of the present Constitution. But whether under this present or any future Constitution, I urge the police to be brave in enforcing the law against crime and corruption.

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