The correct arrest procedure and other legal rights amid ECQ, according to a lawyer

On April 21, Philippine National Police Chief Archie Gamboa released a statement saying that there will be no more warning for enhanced community quarantine violators.

"Arrest and inquest procedures will be applied to cases of violation of Republic Act 11469, 11332, as well as Article 151 under Revised Penal Code," Gamboa said.

But arresting citizens arbitrarily without a warrant is illegal, a lawyer said in a report on GMA News Digital.

"As a general rule and as indicated in our bill of rights, a citizen cannot be arrested without a warrant," Attorney Pen Cascolan said in the video.

According to Cascolan, a warrant of arrest is issued by regular courts — but there are some exemptions.

"For example, you can be arrested when a law enforcer or even a citizen witnesses you committing a crime. This is called being caught in the act or flagrante delicto," Cascolan explained.

"Second is what they call hot pursuit. This is applicable in hit-and-run cases where a police is likely to chase you," he continued.

Cascolan said even if the police did not witness the crime firsthand, they can still arrest the person, who committed it if a witness comes forward to attest to the crime.

According to the report, if the only basis of the arrest is the "Bayanahin to Heal as One Act," the police still cannot arbitrarily arrest ECQ violators, including those who don't wear face masks outside, those who did not bring their quarantine or relief pass, and those who do not follow social distancing and curfew.

Cascolan said violators may be fined and punished accordingly, if their municipality has a clear provision or ordinance.

For instance, Mandaluyong City's Ordinance 767 states that a resident who is caught without a face mask or covering may be fined P5,000 or may be jailed for one week.

"It cannot be considered a crime if said violation is not specifically defined. It would be unfair to citizens," Cascolan said.

"A classic example are news reports on those face mask violations. It’s a tricky discussion. When I traced the history of our strict use of face masks, it only started during the COVID-19 crisis," Cascolan explained.

On April 14, DILG Sec. Eduardo Año encouraged local government units to implement ordinances that will punish and fine ECQ violators.

He said that ECQ violators can be fined Php 1000 to Php 2000 or can be jailed.

Among the examples of ordinances enacted by LGUs amid the ECQ include not wearing face coverings in public places, going out without quarantine pass, violating city-wide curfew, not following social distancing and liquor ban, and discriminating frontliners.

The report said it is important to know the rules and regulations in your respective cities and municipalities to avoid getting fined or jailed.

It also said that if an alleged violation is not included in a city ordinance or the "Bayanihan to Heal as One Act," the person cannot be fined or punished.

What are the violations under the Bayanihan to Heal as One Act?

1. Governors, mayors, barangay chairpersons or any elected officials of the province, city, and local government units must not disobey the directives of the national government.
2. Owners of privately-owned hospitals, medical and health facilities, including passenger vessels, and other establishments must not unjustifiably refuse to operate pursuant to the directive of the President.
3. It is strictly prohibited to hoard, hide, and obstruct basic necessities, such as food, clothes, medical, and other health equipment, oil, etc. Selling these at higher prices is also prohibited.
4. Contracts for materials and services necessary in the implementation of the national policy related to COVID-19 must be accepted and prioritized.
5. Banks and finance institutions are mandated to provide a 30-day grace period for their clients to pay for their financial obligations.
6. Disseminating fake news in social media or other platforms about COVID-19 crisis that is not beneficial to the people and will only create chaos, panic, fear or confusion is strictly prohibited.  This includes scams, fraudulent and malicious emails.
7. Failure to comply with the directives of the government relating to the operation of public transportation and private cars is also prohibited.
8. It is prohibited to construct and maintain illegal structures in public areas that are blocking roads and bridges.

The report said violators of the Bayanhian to heal as One Act will be penalized with P10,000 to P1 million monetary sanctions and/or imprisonment of 2 months.

Aside from this, Mandatory Reporting of Notifiable Diseases and Health Events of Public Concern act violators will be required to pay  P20,000 to P50,000 fine and/or imprisonment for 6 months.

The violations are as follows:

1. The unauthorized disclosure of private and confidential information pertaining to a patient’s medical condition or treatment.
2. The tampering of records of patients.
3. The non-operation of the disease surveillance and response systems of concerned entities.
4. The non-cooperation of persons and entities that should report and/or respond to notifiable diseases or health events of public concern.
5. The non-cooperation of the person or entities identified as having the notifiable disease, or affected by the health event of public concern.

It is essential to know these rules to know when an arresting officer is well within legal bounds.

That said, what are the elements of a correct arrest procedure?

According to Cascolan, the arresting officer must introduce himself as part of the police force and state the specific crime you are committing.

The officer must say "I am arresting you because you are violating such and such,” which is the minimum requirement, Casolan said.

He stressed that you should always ask what the exact law you violated and have the officer state the exact law and the exact provision.

When you are under arrest, the officer should read your Miranda Rights where they will tell you that, “You have the right to remain silent…,” and other legal rights.

Cascolan said if the officer cannot state the law you violated, you should insist that he does so.

However, he also reminded that people should not forget to be respectful towards the officers because in this context, their role is important as they are tasked to protect the citizens.

"There is also the presumption of regularity, that what the police are doing is regular and correct," Cascolan said.

"There is that presumption in the law. The only consequence is if what police are doing is illegal or wrong," he added.

Cascolan said if a person has indeed violated a law but the officer did not follow the correct process of arrests "he may be punished with an administrative case. He may be suspended or dismissed."

But the person's case will not be affected by the arresting officer's administrative failings.  

Aggressiveness and the use of force against the authorities should be avoided, Cascolan stressed.

The report said the non-compliance with the law enforcement is prohibited in the Revised Penal Code Article 151. Violators of this law may be fined P500 or may be punished with arresto mayor, or getting jailed up to six months.

Cascolan said a person can file counter charges against the police if they think they have violated the law.

When an arresting officer approaches you, Cascolan said you should ask their name right away so they can't hide in anonymity. Insist and check the officer's ID and have witnesses around.

Cascolan said you can take videos since it is not illegal to take a video of an activity, especially if it is happening in a public space.

He said this will serve as the citizen's protection, "If proper identification is done, they tend to be more careful with the arrests and they tend to go about it correctly."

He reminded citizens to remain calm in the event of an arrest.

Cascolan said citizens should remember their two objectives are liberty or to be freed right away and to make the police accountable when you think they violated the procedure and you have evidence to prove it.

"In both cases, you need evidence to defend yourself and to file a case against the police"

Cascolan gave a scenario where you are face-to-face with the police and he or she does not want to identify himself and does not want to state the law you are violating.

He said when this happens you can document or record a video of the situation as it will be your defense.

You can also call up people or the media who will help you in this situation.

"The media is more protected compared to an ordinary citizen," Cascolan said.

Meanwhile, if a person has no other choice but to go with the officer, you can insist on having a telephone call in the precinct to call people who can help you.

Arrested citizens also have the right to get a lawyer, Cascolan said.

"If you think your rights are being violated in the arresting procedure, you can file a complaint to the fiscal in the inquest procedure," he said.

He said "inquests are a necessary part of it because when you are arrested without a warrant, you will be automatically inquested within a certain number of hours. Otherwise, you must be released."

According to Cascolan the maximum hours you can be inquested is 36 hours.

"Nothing changed in our constitution. It’s the same. They could implement whatever rule or ordinance but if those violate our constitutional rights, those are considered illegal. So to say you will be arrested for whatever general reason in violation of quarantine, that is illegal." — Jannielyn Ann Bigtas/LA, GMA News