Arrest And Detention
I’m not an attorney and am happy to be corrected on this, but as far as I can read arrest and detention are synonymous in criminal cases.
If you engage in any behaviour that could get you arrested, or are concerned about what happens if the cops made a mistake. Then it is a good idea to have your ducks lined up ahead of time:
- Carry the phone number of your own attorney with you. Even though many practices don’t have specialists in criminal or immigration law they can refer you to a competent associate.
- Does your embassy have a list of qualified attorneys that you can access readily?
- Would you need to access Legal Aid if facing serious charges. There are legal aid services available, but the qualifying circumstances are either unclear or the income level for qualifying for such a service is very low.
To make sure that the PNP obeys the law throughout the process, you need to know what they can and can’t do..
The PNP has issued a series of booklets, and an App titled “Know Your Rights a Citizens Primer on Law Enforcement“.
The App is free and can be downloaded for your phone from the Apple or Google stores. The booklets can be accessed here and downloaded to your phone tablet or desktop.
There is a lot of great info in this booklet but we have focussed on that directly to do with arrest and detention.
This part says anyone arrested and detained in the Philippines is entitled to the same treatment, no matter the alleged crime.
Each citizen, resident and visitor will be accorded certain rights as human beings, that protects them from abuse.
It outlines what the PNP has to do to ensure that it acts in a way that protects human rights for all, in its operations.
Right To Representation And To Remain Silent
- If you are under investigation for the commission of a crime or offence you have the right:
- To be informed of your right to remain silent. This is very important as statements you make can be used against you in court.
- To have competent and independent counsel preferably of your own choice.” If you can’t afford a lawyer, the state will provide you with one.:
More About Legal Aid
- The Public Attorney’s Office actively supports the right of foreigners to free legal aid if required.
- If you are not able to access this through the state you can try working through the organisations listed on the Lawyers of the Philippines site
- It is your right to call or have access to a lawyer at all times throughout the ordeal of arrest or detention.
These rights cannot be waived even by you “except in writing and in the presence of counsel acting for you”.
- The Free Legal Assistance Group (FLAG), in its primer on human rights, also recommends that you:
- Stay calm, the Philippines has armed police and some don’t understand English well
- Don’t resist arrest in any way, even passively resistance will be construed negatively
- Ask a relative, friend or neighbor to witness the arrest. If you don’t know the witness, get the witness’ name and address.
- You should always be told the grounds for your arrest at the time it happens:
- Also ask to see the arrest warrant, which should say the same thing you’ve been told verbally
- If the arrest is “warrantless” ask for the grounds of the arrest in writing. You may already know, but it is important to have it in writing for your records
- The possible reasons are:
- If you have committed, are actually committing, or are attempting to commit an offence in the presence of an arresting officer
- When an offence has just been committed and the arresting officer has probable cause (based on personal knowledge of facts and circumstance) to believe that you have committed a crime
- If you have escaped prison/detention or escaped while being transferred to another facility
- A custodial investigation usually follows a warrantless arrest and indicates you are the major suspect in a crime.
- If the authorities invite you to come in for questioning, but insist that it happens immediately, it could indicate that you are a suspect and they are scrambling to get additional evidence. Inviting you for questioning becomes a ploy to cover their lack of evidence.
- Insist on meeting with your attorney and arranging for a mutually convenient time for him/her to accompany you to provide counsel during questioning.
- If they allow that you are not currently a serious suspect
- Otherwise it will push them to arrest you and to start the detention clock ticking
- If you’re arrested without a warrant, you can only be detained for:
- 12 hours, for light offenses, which are punishable by light penalties
- 18 hours, for less grave offenses, punishable by correctional penalties
- 36 hours, for grave offenses, punishable by capital penalties
- As a general rule, inquest proceedings – where a civilian prosecutor determines the legality of an arrest – are included in these time periods.
The Republic Act 9745 or the Anti-Torture Act
- Ask for the identity and authority of the arresting officer, a badge number helps pin this down
- Ask to be brought before a judge promptly to determine your right to bail or a timely trail.
- Ensure you get a physical examination by an independent and competent doctor of your choice:
- Before you are taken into detention, to determine your current physical and mental
- When you are released from detention
- Each examination should have a written report
- You should sign each report
- You should also receive a copy of each report for your records, to confirm that authenticity of information
- FLAG also suggests you ask the arresting officer where you will be taken to for questioning
- Ask the witness of your arrest to accompany you if they are willing.
- Do not agree to be blindfolded, if you are not going anywhere secret, why would you beed one?.
Your Rights During Detention
If you are arrested or detained, you are entitled to the following rights, according to FLAG:
- Be treated as a human being
- Due Process Including:
- Being informed of written regulations in the detention center, to avoid confusion or punishment
- Not being subjected to punishment without just cause, which needs to be decided independently
- Not being isolated or put in solitary confinement, unless you request that through your counsel
- Able to receive regular visits from family, friends, and lawyers*, that complies with the approved rules of the centre
- Freedom To practice your religion including the provision of religious necessities
- Adequate, that means sufficient:
- Food, to sustain you
- Clothing, to cover you andkeep you comfortable
- Clean accommodations, to restrict the spread of disease
- Be provided with or able to buy reading and/or writing materials, to pass time or communicate with others
- Be housed in a remand facility or part of the prison, seperate from convicted inmates.
- Access to a speedy, impartial, and public trial
Definition Of Family
*According to Republic Act 7438, a person arrested, detained or under custodial investigation shall be allowed visits by:
- Any member of your immediate family, such as “your spouse, betrothed, parent or child,sibling, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.”
- A doctor/priest/religious minister chosen by you, the immediate family or by your counsel, to consult on your physical or spiritual health.
- The representative of any nongovernmental organization accredited by the Commission on Human Rights (for national NGOs). Or the Office of the President (for international NGOs), that are charged with monitoring your rights
What Authorities Cannot Do Legally
- Conduct unreasonable searches and seizures, such as illegal searches of your vehicle or homes
- No matter what they think they know you must be treated as innocent until proven guilty by a court of law
- They cannot use torture, force, violence, threat, intimidation, or any other means that stop you saying what you wish.
- You cannot be involuntarily placed in a secret detention place, solitary, incommunicado, or other similar forms of detention, to restrict your contact with others
- If you make a confession or admission obtained in violation of Article III, Section 17 of the Constitution, which says, “No person shall be compelled to be a witness against himself”, it cannot be used against you.
- You can’t be detained because of your religion or aspirations, that don’t break the law
- Subject you to involuntary servitude in any form, such as polishing officers boots or cooking them meals. (Unless this is a punishment for a crime whereof you have been convicted off.)
- You cannot be fined beyond your ability to pay such fines within a reasonable time frame
- You cannot be subjected to cruel, degrading or inhuman punishment.
- They cannot imprison you for debt, unless obtained by fraud or for non-payment of a poll tax