E/CN.4/1991/17
page 76
237. According to the Supreme Court in a 1985 decision provisions (a) and
(b) refer to cases when a suspect is caught in flagrante delicto or
immediately thereafter. The authority to arrest without warrant is limited to
the cases expressly authorized by law. In all other cases a warrantless
arrest is an illegal arrest and a petition for habeas corpus can be filed with
the Supreme Court. According to article III, Section 15 of the Constitution
the privilege of habeas corpus shall not be suspended except in cases of
invasion or rebellion when the public safety requires it.
238. The practice of warrantless arrests seems to be widespread. All the
persons who were interviewed by the Special Rapporteur either in detention
places or after their release, claimed that they had not been presented with a
warrant of arrest.
239. On 9 July 1990 the Supreme Court dismissed eight petitions for
habeas corpus. filed by or on behalf of persons who had been arrested without
a warrant and claimed that their detention consequently was unlawful. In this
decision, which was widely criticized throughout the country, the Supreme
Court upheld an earlier decision of 1983 in which it had ruled that the crimes
of insurrection or rebellion, subversion, conspiracy or proposal to commit
such crimes, and crimes or offences committed in furtherance thereof or in
connection therewith constitute direct assaults against the State and are in
the nature of continuing crimes. One of the persons involved was not arrested
while committing the killing of two soldiers nor was he arrested just after
its commission, but he was arrested the following day. Nevertheless the Court
ruled that, since he was arrested also for being a member of the NPA, an
outlawed subversive organization, and subversion being a continuing offence,
his arrest without warrant was justified as it could be said that he was
committing an offence when arrested.
240. Two judges expressed their dissent from the upholding of the doctrine of
continuing offence. One of them called the doctrine dangerous, since it
allowed a person to be arrested when he is doing the most harmless acts on the
grounds that he is committing the continuing offence of subversion. He
consequently called the doctrine one of the disgraceful vestiges of the past
dictatorship. The other judge also criticized the fact that information was
filed against the arrested person with the Courts after the petition for
habeas corpus was made, in violation of article 125 of the Revised Penal Code
which provides that an arrested person must be delivered to the proper
judicial authorities within the time prescribed by law. He felt that an
illegal detention could not be legitimized a posteriori by the filing of
information with the competent judge without a preliminary investigation
establishing probable cause which in other circumstances would have justified
a warrant of arrest.
241. The decision was criticized not only by human rights organizations, but
also by members of Congress and lawyers. The Chairman of the House Committee
on Civil, Political and Human Rights expressed the fear that the decision
would put in jeopardy the liberty of every citizen who, for the flimsiest of
reasons, could be suspected and accused of being a subversive, and who could
then be subjected to arrest without judicial determination of probable cause
for his arrest.
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