Separate Opinions

FERNAN, C.J., concurring and dissenting:

After a deep and thorough reexamination of the decision of Julv 9, 1990 and an exhaustive evaluation of the motions for reconsideration of the said decision, I am inclined to agree with the, majority’s resolution on said motions for reconsideration except for the legality of the warrantless arrests of petitioner Deogracias Espiritu for the crime of inciting to sedition and petitioner Alfredo Nazareno for the crime of murder.

In the words of the resolution, Espiritu “was arrested without warrant, not for subversion or any ‘continuing offense,’ but for uttering” the following: “Bukas tuloy ang welga natin . . . hanggang sa magkagulo na.” Apparently, such statement was, in the perception of the arresting officers, inciting to sedition. While not conceding the validity of such perception, realizing that it is indeed possible that Espiritu was merely exercising his right to free speech, the resolution nonetheless supports the authority of peace officers “only for purposes of the arrest.”

I find this position to be adverse to the very essence of the resolution which sanctions warrantless arrests provided they are made in accordance with law. In the first place, Espiritu mav not be considered as having “just committed” the crime charged. He allegedly first uttered seditious remarks at the National Press Club in the afternoon of November 12, 1988. The second allegedly seditious remark aforequoted was made at around 5:00 o’clock in the same afternoon (Decision, pp. 23-24). Under these circumstances, the law enforcement agents had time, short though it might seem, to secure a warrant for his arrest. Espiritu’s apprehension may not therefore be considered as covered by Section 5(b) of Rule 113 which allows warrantless arrests “when an offense has in fact just been committed.”

The same observation applies with greater force in the case of Nazareno who was arrested 14 days after the commission of the crime imputed to him.

Secondly, warrantless arrests may not be allowed if the arresting officer are not sure what particular provision of law had beeri violated by the person arrested. True it is that law en.orcement agents and even prosecutors are not all adept at the However, errneous perception, not to mention ineptitude among their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That the arrested person has the “right to insist during the pre-trial or trial on the merits” (Resolution., p. 18) that he was exercising a right which the arresting officer considered as contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly perceived his action.

Thirdly, inciting to sedition is not a continuous crime for which the offender may be arrested without a warrant duly issued by the proper authority. By its nature, a single act of urging others to commit any of the acts enumerated in Article 142 of the Revised Penal Code may suffice to hold anyone liable for inciting to sedition. While the crime is aimed at anarchy and radicalism and presents largely a question of policy (Espuelas vs. People, 90 Phil, 524 [1951]), it should be remembered that any of the prohibited acts in Article 142 may infringe upon the fundamental freedoms of speech and expression. There arises, therefore, the necessity of balancing interests; those of the State as against those of its individual citizen. Here lies the urgency of judicial intervention before an arrest is made. Added to this is the subjectivity of the determination of what may incite other people to sedition. Hence, while the police should act swiftly when a seditious statement has been uttered in view of the jeopardy it may cause the government, speedy action should consist not in warrantless arrests but in securing warrants for such arrests.

On the legality of warrantless arrests of violators of the Anti-Subversion Law, it should be underscored that anyone who undertakes such arrest must see to it that the alleged violator is knowing member of a subversive organization as distinguished from a nominal one (People vs. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382). Thus, a subversive may be arrested even if has not committed overt act of overthrowing the government such as bombing of government offices trie assassination of government officials provided there is probable cause to believe that he is in the roll of members of a subversive organization. It devolves upon the accused to prove membership by force or ciorcion. Certainly, one may not be in such a roll without undergoing the concious act of enlistment.

It bears repeating theat warrantless arrests are governed by law and subject to stringent application. Section 5, Rule 113 of the Rules on Criminal Procedure now requires that an offense “has in fact just been committed. “connotes immediacy in point of time and excludes cases under the old rule where an offense ‘has in fact been committed’ no how long ago. Similarly, the arrestor must have ‘personal knowledge of the facts indicating that the [arrestee] has committed it’ (instead of just ‘reasonable ground believe that the [arrestee] has committed it’ under the old rule).” (Dissenting opinion in Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349, 408).

I deem it aptherein to recall other Court rulings provide guidelines in effecting arrests without warrants. In People vs. Burgos (G.R. No. 68955, September 4, 1986,144 SCRA 1), the Court considered as illegal the warrantless arrest of a subversive not based on the arresting officer’s personal knowledge such subversion and held that any rule on arrests witho warrants must be strictly construed. We categorically state therein that warrantless arrests should “clearly fall within the situations when securing a warrant be absurd or is manifestly unnecessary was provided by the Rules” (144 SCRA at 14). Moreover. “it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually (has just) been committed first. That crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. (Supra, at p. 15).

Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the Court laid out the procedure to be observed the moment a person is arrested:

At the time a person is arrested, it shall be the duty of the arresting officer to imform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means — by telephone if possible — or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arressted, by any person on his behalf, or appointed by the court upon petition on his behalf, or appointed the court upon the petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory, in whole or in part shall be inadmissible evidence. (121 SCRA at 554).

These judicial pronouncements must be observed by everyone concerned: the military and civilian components of the government tasked with law enforcement as well as the ordinary citizen who faces a situation wherein civic duty demands his intervention to preserve peace in the community.

I am not unmindful of the fact that abuses occur in arrests especially of offenders of crimes with a political or ideological element. Such abuses are more often than not, triggered by the difficulty in finding evidence that could stand judicial scrutiny — to pinpoint a subversive, police officers usually have to make long persistent surveillance. However, for the orderly administration of government and the maintenance of peace and order in the country, good faith should be reposed on the officials implementing the law. After all, we are not wanting in laws to hold any offending peace officer liable both administratively and criminally for abuses in the performance of their duties. Victims of abuses should resort to legal remedies to redress their grievances.

If existing laws are inadequate, the policy-determining branches of the government may be exhorted peacefully by the citizenry to effect positive changes. This Court, mandated b the Constitution to uphold the law, can only go as far as inter pruting existing laws and the spirit behind them. Otherwise, we hail be entering the dangerous ground of judicial legislation.

GUTIERREZ, JR., J., concurring and dissenting:

The philosophy adopted in our Constitution is that liberty is an essential condition for order, It is disturbing whenever the Court leans in the direction of order instead of liberty in har cases coming before us.

People all over the world are fast accepting the theory that only as a society encourages freedom and permits dissent can it have lasting security and real progress, the theory that enhancing order through constraints on freedom is deceptive because restrictions on liberty corrode the very values Govenment pretends to promote. I believe we should move with the people of the world who are fast liberating themselves.

I, therefore, vote for the strict application of Section 5 (a) and (b) of Rule 113 on arrests without warrant, to wit:

Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it.

x x x x x xx x x

Only in the cases found in the Rule should we allow arrests without warrants. In case of doubt, the tendency should be to declare the warrantless arrest illegal.

Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky Ocaya are concerned, the petitioners were arrested after having been apprehended while in possession of illegal firearms and ammunitions. They were actually committing a crime when arrested. I concur in the denial of their motions for reconsideration.

I vote to grant the motion for reconsideration in G.R. No. 85727 where Deogracias Espiritu was arrested while urging jeepnev and bus drivers to join a strike of transport workers on the ground that that was inciting to sedition.

This impresses me as Court validation of a clear infringement of an individual’s freedom of speech. “Inciting to sedition” is a term over which the most learned writers and jurists will differ when applied to actual cases. I doubt if there are more than a handful of policemen in the whole country who would know the full dimensions of the fine distinctions which separate the nation’s interest in the liberty to fully anfd freely discuss matters of national importance on one hand and the application of the clear and present danger rule as the test when claims of national security and public safety are asserted, on the other. In fact, the percentage of knowledgeability would go down further if we consider that “inciting to sedition” requires the ability to define, among other (1) what kinds of speeches or writings fall lander the term “inciting” (2) the meaning of rising publicly and tumultously; (3,) when does a certain effort amount to force, intimidation. or illegal method; (4) what constitute the five objects or ends of sedition; and (5) what is a scurrilous libel against the Philippines. If we allow public speakers to be picked up simply because what they say is irritating or obnoxious to the ears of a peace officer or critical of government policy and action, we will undermine all pronouncements of this Court on the need to protect that matrix of all freedoms, which is freedom of expression. At the very least, a warrant of arrest after a preliminary examination by a Judge is essential in this type of offense.

Insofar as G.R. No. 81567 is concemed, I join the other dissenting Justices in their observations regarding “continuing oftenses.” To base warrantless arrests on the doctrine of continuing offense is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line between overt acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the Government.

The belief of law enforcement authorities, no matter how well grounded on past events, that the petitioner would probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot understand why the authorities preferred to bide their time, await the petitioner’s surfacing from underground, and pounce on him with no legal authority instead of securing warrants of arrest for his apprehension. The subsequent conviction of a person arrested illegally does not the warrantless arrest.

In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988. The information that Narciso Nazareno was one of the killers came to the attention of peace officers only on December 28, 1988 or fourteen (14) days later. To say that the offense “has in fact just been committed” even if 14 days have lapsed is to stretch Rule 11 3 on warrantless arrests into ridiculous limits. A warrant of arrest is essential in this case. I vote to grant the motion for reconsideration.

The subsequent conviction of a person arrested illegally does not reach back into the past and render legal what was illegal. The violation of the constitutional right against illegal seizures is not cured by the fact that the arrested person is indeed guilty of the offense for which he was seized. A government of laws must abide by its own Constitution.

CONSIDERING THE FOREGOING, I VOTE TO:

(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R. No. 84583-84; and G.R. No. 83162;

(2) GRANT the motion for reconsideration in G.R. No. 85727;

(3) GRANT the motion for reconsideration in G.R. No. 86332;and

(4) GRANT the motion for reconsideration in G.R. No. 81567.

CRUZ, J., Separate Opinion:

I reiterate my concurrence with the ponencia insofar as it dismissed the petitions of those who were arrested in flagrante, or subsequently posted bail or chose to remain in the custody of the military, or voluntarily permitted the search of the house without warrant. I do not think that under the applicable circumstances the petitioners can validly complain that they are being unlawfully detained.

But I must again express may dissent to the continued observance of Garcia-Padilla vs. Enrile, 121 SCRA 472, to justify the warrantless arrest and detention of the other petitioners on the ground that they were apprehended for the continuing offenses of rebellion and other allied crimes.

We find in the said decision this partltularly disturbing observation, which was quoted with approval in the original ponencia:

The arrest of persons involved in the rebellion, whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of arrest and the granting of bail of the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against govenment forces, or any other milder acts but equally in pursuance of the rebellious movement. (Emphasis supplied.)

The treatment suggested envisions an actual state of war and is justified only when a recognition of beuigerency is accorded by the legitimate government to the rebels, resulting in the application of the laws of war in the regulation of their relations. The rebels are then considered alien enemies-to be treated as prisoners of war when captured-and cannot invoke the municipal law of the legitimate government they have disowned. It is in such a situation that the processes of the local courts are not observed and the rebels cannot demand the protection of the Bill of Rights that they are deemed to have renounced by their defiance of the government.

But as long as that recognition has not yet been extended, the legitimate govenment must treat the rebels as its citizens, subject to its municipal law and entitled to all the rights provided thereunder, including and especially those guaranteed by the Constitution. Principal among these — in our country — are whose embodied in the Bill of Rights, particularly those guaranteeing due process, prohibiting unreasonable searches and seizures, allowing bail, and presuming the innocence of the accused. The legitimate government cannot excuse the suppression of these rights by the “exigencies” of an armed conflict that at this time remains an intemal matter governed exclusively by the laws of the Republic of the Philippines.

Treatment of the rebels as if they were foreign invaders — or combatants — is not justified in the present situation as our government continues to prosecute them as violators of our own laws. Under the doctrine announced in Garcia-Padilla, however, all persons suspected as rebels are by such suspicion alone made subject to summary arrest no different from the unceremonious capture of an enemy soldier in the course of a battle. The decision itself says that the arrest “need not follow the usual procedure in the prosecution of offenses” and “the absence of a judicial warrant is no impediment” as long as the person arrested is suspected by the authorities of the “continuing offense” of subversion or rebellion or other related crimes. International law is thus substituted for municipal law in regulating the relations of the Republic with its own citizens in a purely domestic matter.

As for the duration of the offenses, the decision contained the following pronouncement which this Court has also adopted as its own:

. . . The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside front their essentially involving a massive conspiracy of nationwide manitude. (Emphasis supplied.)

The beginning of the “continuing offense” may be arbitrarily fixed by the authorities, usually by simply placing the suspect “under surveillance,” to lay the basis for his eventual apprehension. Once so placed, he may at any time be arrested without warrant on the specious pretext that he is in the process of committing the “continuing offense,” no matter that what he may be actuallly doing at the time is a perfectly innocent act.

In the case of Dural. the arrest was made while he was engaged in the passive and innocuous act of undergoing medical treatment. The fiction was indulged that he was even then, as he lay supine in his sickbed, engaged in the continuing offense of rebellion against the State. In further justification, the Court says that the arresting officers acted on “confidential information” that he was in the hospital, which information “was found to be true.” This is supposed to have validated the determination of the officers that there was “probable cause” that excused the absence of a warrant.

My own impression is that probable cause must be established precisely to justify the issuance of a warrant, not to dispense with it; moreover, probable cause must be determined by the judge issuing the warrant, not the arresting officer who says it is not necessary.

In the case of Espiritu, the arrest was made while he was actually sleeping, and for allegedly seditious remarks made by him the day before. The Court says his case is not covered by the Garcia-Padilla doctrine but approves the arrest just the same because the remarks were supposed to continue their effects even to the following day. The offense was considered as having been just committed (to make it come under Rule 113, Section 5, of the Rules of Court) despite the considerable time lapse.

It was worse in the case of Nazareno, who was also arrested without warrant, and no less than fourteen days after the killing. In sustaining this act, the Court says that it was only on the day of his arrest that he was identified as one of the probable killers, thus suggesting that the validity of a warrantless arrest is reckoned not from the time of the commission of an offense but from the time of the Identification of the suspect.

Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant if the latter “has committed, is actually committing, or is attempting to commit an offense” or when an offense “has in fact just been committed.” The requirement of immediacy is obvious from the word “just,” which, according to Webster, means “a very short time ago.” The arrest must be made almost immediately or soon after these acts, not at any time after the suspicion of the arresting officer begins, no matter how long ago the offense was committed.

I am also uneasy over the following observations in the present resolution which I hope will not be the start of another dangerous doctrine:

The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court’s perception that truly the grounds upon wmch the arresting officers based their arrests without warrant, are supported by probable cause, i.e., that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court.

I can only repeat my own misgivings when I dissented in the recent case of People vs. Malmstedt, G.R. No. 91107, June 19, 1991, where I noted: “The conclusion that there was probable cause may have been influenced by the subsequent discovery that the accused was carrying a prohibited drug. This is supposed to justify the soldier’s suspicion. In other words, it was the fact of illegal possession that retroactively established the probable cause that validated the illegal search and seizure. It was the fruit of the poisonous tree that washed clean the tree itself.”

I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made in the cases before us is a step back to that shameful past when individual rights were wantonly and systematically violated by the Marcos dictatorship. It seems some of us have short memories of that repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever their ideology and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less than any other person in this country. That is what democracy is all about.

FELICIANO, J., concurring and dissenting:

I concur in the result reached by the majority in the Resolution disposing of the Motion for Reconsideration.

At the same time, however, I feel compelled to dissent from certain statements made by the majority principally concerning the applicability of the “continuing crimes” doctrine to the problem of arrests without warrants. It seems clear that these statements are really obiter dicta, since they are quite unnecessary for sustaining the actual results reached in the majority Resolution. This was summarily pointed out in my very brief statement concurring in the result reached in the original Decision of the Court dated 9 July 1990. The subsequent developments in several of the cases here consolidated, which are carefully detailed in the majority Resolution, make this even clearer. Nonetheless, the majority Resolution has taken the time and trouble expressly to reiterate the “continuing crimes” doctrine as applicable in respect of warrantless arrests. Although the above statements are obiter, they have been made and, I believe, need to be addressed to some extent and the inter-relation of the “continuing crimes” doctrine with constitutional rights explored.

1. We start at the beginning, that is, the constitutional guarantee against unreasonable seizures of persons. Article III Section 2 of the Constitution reads:

Sec. 2. 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. (Emphais supplied)

Under the above provision, arrests, i.e., the constraint and seizure of the persons of individual members of society, must, as a general rule, be preceded by the securing of a warrant of arrest, the rendition of which complies with the constitutional procedure specified in Article III Section 2. Arrests made without a warrant issued by a judge after complying with the constitutional procedure, are prima facie unreasonable seizures of persons within the meaning of Article III Section 2.

2. There are, however, certain well-recognized exceptions to the norm that warrantless arrests are unreasonable seizures of persons. Those exceptions are, in our day, essentially found in Section 5(a) and (b) of Rule 113 of the Rules of Court. Section 5(a) and (b) mark out the situations where an officer of the law, or a private person for that matter, may lawfully arrest a person without previously securing a warrant of arrest. The full text of Section 5, Rule 113 follows:

Sec. 5. Arrest without warrant, when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

3. Before examining the scope and implications of Section 5(a) and (b), it is important to recall that judicial interpretation and application of Section 5(a) and (b) must take those provision for what they are: they are exceptions to a vital constitutional norm enshrined in the Bill of Rights. Exceptions to such a norm must be strictly construed so as not to render futile and meaningless the constitutional rule requiring warrants of arrests before the persons of individuals may be lawfully constrained and seized. The ordinary rule generally applicable to statutory provisions is that exceptions to such provisions must not be stretched beyond what the language in which they are cast fairly warrants, and all doubts should be resolved in favor of the general provision, rather than the exception.
1 This rule must apply with special exigency and cogency where we deal, not with an ordinary statutory provision, but with a constitutional guarantee.
2 Exceptions to such a guarantee must be read with especial care and sensitivity and kept within the limits of their language so to keep vital and significant the general constitutional norms warrantless arrests. In Alvarez vs. Court of First Instance,
3 this Court, stressing that:

II. As the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the court. these constitutional guaranties should be given a liberal construction or a strict construction in favor of the individual, to prevent stealthy encroachment upon, or gradual depreciation of, the rights secured by them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule that statutes authorizing searches and seizures or search warrants must be strictly construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U.S., 6 Fed. [2d], 353; Perry vs. U.S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613. (emphasis supplied)

held that:

. . . All illegal searches and seizures are unreasonable whith lawful ones are reasonable.
4

In People vs. Burgos,
5 this Court reiterated the above rule in the following terms:

There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant’s wife.

At the time of the appellant’s arrest, he was not in actual possession of any firearm or subversive document. Neither was he commit ting any act which could be described as subversive. He was, in fact plowing his field at the time of the arrest.

The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often vilated and so deserving of full protection.
6 (emphasis supplied)

4. Section 5(a) relates to situations where a crime is committed or attempted to be committed in the presence of the arresting officer. The fact of the occurrence of the offense, or of the attempt to commit an offense, in the presence of the arresting officer, may be seen to be the substitute, under the circumstances, for the securing of a warrant of arrest. In such situation, there is an obvious need for immediate, even instantaneous, action on the part of the arresting officer to suppress the breach of public order and to prevent further breaches then and there. Section 5(a) may, moreover, be seen to refer to overt acts constitutive of a crime taking place in the presence of the arresting officer. The term “presence” in this connection is properly and restrictively construed to relate to acts taking place within the optical or perhaps auditory perception of the arresting officer.
7 If no overt, recognizably criminal, acts occur which are perceptible through the senses of the arresting officer, such officer could not, of course, become aware at all that a crime is being committed or attempted to be committed in his presence.
8 It is elementary that purely mental or psychological phenomena, not externalized in overt physical acts of a human person, cannot constitute a crime in our legal system. For a crime to exist in our legal law, it is not enough that mens rea be shown; there must also be an actus reus. If no such overt acts are actually taking place in the presence or within the sensor perception of the arresting officer, there would, in principle, be ample time to go to a magistrate and ask for a warrant of arrest. There would, in other words, not be that imperious necessity for instant action to prevent an attempted crime, to repress the crime being committed, or to capture the doer of the perceive criminal act, the necessity which serves as the justification in law of warrantless arrests under Section 5(a).

5. Turning to Section 5 (b), two (2) elements must be coincide before a warrantless arrest may be sustained under this subsection: 1) the offense must have “just been committed” when the arresting officer arrived in the scene; and 2) the officer must have “personal knowledge” of facts indicating tha the person to be arrested has committed the offense. In somewhat different terms, the first requirement imports that th effects or corpus of the offense which has just been committed are still visible: e.g. a person sprawled on the ground, dead of gunshot wound; or a person staggering around bleeding profusely from stab wounds. The arresting officer may not ha seen the actual shooting or stabbing of the victim, and thereto the offense can not be said to have been committed “in [his] presence.” The requirement of “personal knowledge” on the part of the arresting officer is a requirement that such knowledge must have been obtained directly from sense perception the arresting officer. That requirement would exclude informtion conveyed by another person, no matter what his reputation for, truth and reliability might be.
9 Thus, where the arresting officer comes upon a person dead on the street and sees a person running away with a knife from where the victim is sprawled the ground, he has personal knowledge of facts which render it highly probable that the person fleeing was the doer of the criminal deed. The arresting officer must, in other words, perceive through his own senses some act which directly connects the person to be arrested with the visible effects or corpus of a crime which has “just been committed.”

6. The use of the words “has in fact just been committed” underscores the requirement that the time interval between the actual commission of the crime and the arrival of the arresting officer must be brief indeed. In the first place, the word “just” was fairly recently inserted in Section 5(b) by the 1985 Rules on Criminal Procedures, no doubt in order to underscore the point here being made. In the second place, a latitudinarian view of the phrase “has in fact just been committed” would obviously render pointless the requirement in Section 5(a) that the crime must have been committed “[in] the presence” of the arresting officer. In G.R. No. 86332, the warrantless arrest of Alfredo Nazareno 14-days after the occurrence of the killing with which he was charged along with other persons, cannot by any standard be justified under Section 5(b). In G.R. No. 81567, Dural was arrested without warrant while being treated in a hospital the day after the shooting of the policemen in which he was suspected to have been a participant. While 1-day may be substantially different from 14-days, still it must be pointed out that at the time Dural was arrested in the hospital, the killing of the two (2) policemen in Caloocan City far away from the St. Agnes Hospital in Quezon City could not reasonably be said to have been just committed. There was no showing, nor did the Court require it, that the arresting officers had been in “hot pursuit” of Dural beginning at the scene of the killing and ending the next day in the hospital.

7. It is worth noting that the requisite of “personal knowledge” on the part of the arresting officer who is determining “probable cause” right at the scene of the crime, is in a sense more exacting than the standard imposed by the Constitution upon the judge who, in the seclusion of his chambers, ascertains “probable cause” by examining the evidence submitted before him. The arresting officer must himself have “personal knowledge”; the magistrate may rely upon the personal knowledge of the witnesses examined by or for him in issuing a warrant of arrest. In the present Resolution, the majority begins with noting the requirement of “personal knowledge” in Section 5(b), but winds up in the next page with a very diluted standard of “reasonable belief and “good faith” on the part of the arresting officers. The stricter standard is properly applicable to the officers seizing a person without a warrant of arrest, for they are acting in derogation of a constitutional right. That the person unlawfully arrested without a warrant may later turn out to be guilty of the offense he was suspected of in the first place is, course, quite beside the point. Even a person secretly guilty some earlier crime is constitutionally entitled to be secure from warrantless arrest, unless he has in fact committed physically observable criminal acts in the presence of the arresting officer or hadjust committed such acts when the arresting officer burst upon the scene.

8. Examination of the utilization in the majotity Resolution of the doctrine of “continuing crimes,” shows that doctrine is here being used as a substitute for the requirement under Section 5(a) that the offense “has in fact just been presence of the arresting officer arrived, but rather because the person to be arrested is suspected of having committed a crime in the future. The pertinent portion of the majority Resolution reads:

. . . Dural did not cease to be, or because less of a subversive, FOR PURPOSE OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. . . . That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a “sparrow” (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebelion (or insurrection) is perceived here as a continuing offense. Unlike other so-called “common” offenses, i.e., adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objectives of overthrowing organized government is attained. (Emphasis supplied)

9. I respectfully submit that an examination of the “continuing crimes” doctrine as actually found in our case law offers no reasonable basis for such use of the dotrine. More specifically, that doctrine, in my submission, does not dispence with the requirement that overt acts recognizably criminal in character must take place in the presence of the arresting officer, or must have just been committed when the arresting officer arrived, if the warrantless arrest it to be lawful. The “continuing crimes” doctrine in our case law (before rendition of Garcia-Padilla vs. Enrile
10 does not sustain warrantless arrests of person to be arrested is, as it were, merely resting in between specific lawless and commit the moment he gets an opportunity to do so.

Our case law shows that the “continuing crimes” doctrine has been used basically in relation to two (2) problems: the first problem is that of determination of whether or not a particular offense was committed within the territorial jurisdiction of the trial court; the second problem is that of determining whether a single crime or multiple crimes were committed where the defense of double jeopardy is raised.

10. In respect of the first problem, the gist of our case law is that where some of the ingredients or elements of an offense taken place within the territorial jurisdiction of one court and some other ingredients or elements of the same offense occur in the territory of another court, (e.g., estafa or malversation) either one of the two courts has jurisdiction to try the offense. Where all of the essential elements of a crime take place within the territory of one court but “by reason of he very nature of the offense committed” the violation of the law is deemed to be “continuing,” then the court within whose territorial jurisdiction the offense continues to be committed, has jurisdiction to try a person charged with such offense. In the latter case, the offense is deemed to be continuing because some or all of the elements constituting the offense occurred within jurisdiction of the second court (e.g., kidnapping and illegal detention; libel; evasion of service of sentence). The criminal acts are regarded as repeated or as continuing within the province or city where the defendant was found and arrested.
11 Clearly, overt acts of the accussed constituting elements of the crime charged must be shown to have been committed within the territorial jurisdiction of the court where he is charged.

11. Turning to the second type of problem, the question is normally presented in terms of whether one crime or multiple crimes were committed by the accused. Where the series of acts actually alleged and proven to have been committed by the accused constituted only one and the same crime, the defense of double jeopardy becomes available where a second information is filed covering acts later in the series. Upon the other hand, where the acts of the accused constituted discrete, multiple offenses, each act comprising a distinct and separate offense, the double jeopardy defense is non-available.
12 The point worth stressing is that in passing upon the issue relating to the unity or multiplicity of offense committed, the overt acts of the accused constitutive either of the single offense or of the plural offenses, must be shown.

12. My final submission, is that, the doctrine of “continuing crimes,” which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the “continuing crime” doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the “continuing crimes” doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal dentention or arson) but rather of such problematic offenses as membership in or affiliation with or becoming a member of, a subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for instance, the following acts which constitute prima facie evidence of “membership in any subversive association:”
13

I reiterate my dissent. I submit that in spite of its “clarificatory” resolution,
1 the majority has not shown why the arrests in question should after all be sustained.

According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested without a warrant and that his arrest was sufficient compliance with the provisions of Section 5, paragraph (b), Rule 113, of the Rules of Court. According to the majority, he, Dural, was after all committing an offense (subversion being supposedly a continuing offense) and that the military did have personal knowledge that he had committed it. “Personal knowledge,” according to the majority, is supposedly no more than “actual belief or reasonable grounds . . . of suspicion,” and suspicion is supposedly reasonable:

. . . when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilty of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.
2

First, and as I held, subversion, as an offense punished by Executive Order No. 167, as amended by Executive Order No. 276, in relation to Republic Act No. 1700,
3 is made up of “overt acts.”
4 In People vs. Ferrer
5 this Court defined “overt acts” as follows:

. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge Communists in court, as the law alone, without more would suffice to secure their punishment. But the undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to overthrow the existing government by force, deceit, and other illegal means and place the country under the control and domination of a foreign power.

As Ferrer held, that above “overt acts” constitute the essence of “subversion,” and as Ferrer has taken pains to explain, the law requires more than mere membership in a subversive organization to make the accused liable. I respectfully submit that for purposes of arrest without a warrant, that above “overt acts” should be visible to the eyes of the police officers (if that is possible), otherwise the accused can not be said to be committing any offense within the contemplation of the Rules of Court, to justify police action, and otherwise, we would have made “subversion” to mean mere “membership” when, as Ferrer tells us, subversion means more that mere membership.

I find strained that majority’s interpretation of “personal knowledge,” as the majority would interpret it, as no more than “actual belief or reasonable suspicion,” that is, “suspicion . . . based on actual facts . . . [and] founded on probable cause, coupled with good faith . . . ”
6 I submit that personal knowledge means exactly what it says — that the peace officer is aware that the accused has committed an offense, in this case, membership in a subversive organization with intent to further the objectives thereof. It is to be noted that prior to their amendment, the Rules (then Section 6) spoke of simple “reasonable ground” — which would have arguably encompassed “actual belief or suspicion . . . coupled with good faith” referred to by the majority. Section 5(b) as amended, however, speaks of “personal knowledge”; I respectfully submit that to give to “personal knowledge” the same meaning as “reasonable ground” is to make the amendment as useless exercise.

What, furthermore, we have here was a mere “confidential information” that a “sparrow man” had been wounded and was recuperating in the hospital, and that that person was Rolando Dural. Clearly, what we have is second-hand, indeed, hearsay, information, and needless to say, not personal knowledge.

I would like to point out that in the case of People vs. Burgos
7 this Court rejected a similar arrest because of lack of personal knowledge, and, as the Court held, “[w]hatever knowledge was possessed by the arresting officers came in its entirety from the information furnished by [another] . . .”
8 I do not see how We can act differently here.

I do not find the majority’s reliance on the case of United States vs. Santos
9 to be well-taken. Santos involved a prosecution for coercion (against a peace officer for affecting an arrest without a warrant). Santos, however, did in fact affirm the illegality of the arrest but absolved the peace officer on grounds of good faith. Santos did not say that so long as he, the peace officer, was acting in good faith, as the majority here says that the military was acting in good faith, the arrest is valid. Quite to the contrary, Santos suggested that notwithstanding good faith on the part of the police, the arrest is nevertheless subject to question.

As far as the information leading to the arrest of Dural is concerned, the majority would quite evidently swallow the version of the military as if in the first place, there truly was an information, and that it was reliable, and that “it was found to be true;”
10 and as if, in the second place, the hospital authorities (the alleged informants) could have legally tipped the military under existing laws. We have, it should be noted, previously rejected such a species of information because of the lack of “compulsion for [the informant] to state truthfully his charges under pain of criminal prosecution.”
11 Here, it is worse, because we do not even know who that informant was.

The majority is apparently unaware that under Executive Order No. 212, amending Presidential Decree No. 169, hospital establishments are required to report cases of acts of violence to “government health authorities” — not to the military.

I am concerned that if the military were truly armed with reliable information and if it did have personal knowledge to believe that Dural had committed an offense, there was no reason for the military to ignore the courts, to which the Constitution after all, gives the authority to issue warrants. As People vs. Burgos held:

More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the whereabouts of the accused were unknown.
12

Bukas tuloy and welga natin . . . hanggang sa magkagulo na.
13

. . . Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu has not lost the right to insist, during the trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, titled the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu’s release to be reduced from P60,000.00 to P10,000.00.
14

And obviously, the majority is concerned about whether or not Espiritu’s speech was after all, protected speech, but apparently, that is also of no moment, since: (1) that is a matter of defense; (2) we are talking of mere arrests, and as far as arrests are concerned, “the Court has, in this case, titled in favor of authority,”
15 and (3) we have, anyway, given a reduced bail to the accused.

First, that the accused’s statement is in the category of free speech is not only plain to my mind, it is a question I do not think the majority can rightly evade in these petitions without shirking the Court’s constitutional duty. It is to my mind plain, because it does not contain enough “fighting words” recognized to be seditious.
16 Secondly, it is the very question before the Court—whether or not the statement in question constitutes an offense for purposes of a warrantless arrest. It is a perfectly legal question to my mind and I am wondering why we can not answer it.

What the majority has not answered, as I indicated, is that inciting to sedition is in no way a continuing offense, and as I said, the majority is not apparently convicted that it is, either. Of course, the majority would anyway force the issue: “But the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing.”
17 First, Espiritu was picked up the following day, and in no way is “the following day” “soon thereafter”. Second, we would have stretched the authority of peace officers to make warrantless arrests for acts done days before. I do not think this is the contemplation of the Rules of Court.

As in the case of Burgos in People vs. Burgos,
18 Espiritu was neither “on the verge of flight or escape”
19 and there was no impediment for the military to go through the judicial processes, as there was none in the case of Burgos.

In the case of People vs. Aminnudin,
20 this Court held that unless there “was a crime about to be committed or had just been committed,” and unless there existed an urgency as where a moving vehicle is involved, instant police action can not be justified.

“In the balancing of authority and freedom,” states the majority, “the Court has, in this case, titled in favor of authority but only for purposes of the arrest (not conviction).”
21 It is a strange declaration, first, because it is supported by no authority (why the Court should “tilt” on the side of Government), and second, because this Court has leaned, by tradition, on the side of liberty — as the custodian of the Bill of Rights — even if we were talking of “simple” arrests.

I do not understand why this Court should “tilt” . . . the scale in favor of authority . . . in this case,”
22 as if to say that normally, this Court would have tilted the scales the other way. I do not understand why these cases are apparently, special cases, and apparently, the majority is not telling us neither. I am wondering why, apart from the fact that these cases involved, incidentally, people who think differently from the rest of us.

The majority goes on:

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno’s arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II.
23

As it is, the majority has enlarged the authority of peace officers to act, when the Rules have purposely limited it by way of an exception, precisely, to the general rule, mandated by the Constitution no less, that arrests may be done only through a judicial warrant. As it is, the majority has in fact given the military the broadest discretion to act, a discretion the law denies even judges
24 — today it is fourteen days, tomorrow, one year, and sooner, a decade. I submit that a year, a decade, would not be in fact unreasonable, following the theory of the majority, since the military can claim anytime that it “found out only later,” as the majority did not find it unreasonable for the Capital Command to claim that it “came to know that Nazareno was probably one of those guilty in the killing of Bunye II”
25—and none of us can possibly dispute it.

I would like to stress strongly that we are not talking of a simple “administrative measure” alone—we are talking of arrests, of depriving people of liberty—even if we are not yet talking of whether or not people are guilty. That we are not concerned with guilt or innocence is hardly the point, I respectfully submit, and it will not minimize the significance of the petitioners’ predicament.

With respect to Wilfredo Buenaobra, I submit that the majority has, as in the cases of Amelia Roque, et al., ignored the fact that Buenaobra’s alleged “admission” (actually, an uncounselled confession) was precisely, the basis for Buenaobra’s arrest. It is to beg the question, I respectfully submit, to approve the military’s action for the reason that Buenaobra confessed, because Buenaobra confessed for the reason that the military, precisely, pounced on him. I am not to be mistaken for prejudging Buenaobra’s innocence (although it is supposed to be presumed) but I can not imagine that Buenaobra would have voluntarily proclaimed to the military that he was an NPA courier so that the military could pounce on him.

I respectfully submit that the cases Garcia vs. Padilla
26 and Ilagan vs. Enrile
27 have been better days. I do not see how this court can continuously sustain them “where national security and stability are still directly challenged perhaps with greater vigor from the communist rebels.”
28 First and foremost, and as the majority has conceded, we do not know if we are in fact dealing with “Communists.” The case of Deogracias Espiritu, for one, hardly involves subversion. Second, “Communism” and “national security” are old hat — the dictator’s own excuses to perpetuate tyranny, and I am genuinely disappointed that we would still fall for old excuses. Third, Garcia and Ilagan rested on supposed grounds that can not be possibly justified in a regime that respects the rule of law — that the Presidential Commitment Order (PCO) is a valid presidential document (Garcia) and that the filing of an information cures a defective arrest (Ilagan). Fourth and finally, it is evident that neither “Communist threat” nor “national security” are valid grounds for warrantless arrests under Section 5(b) of Rule 113.

I most respectfully submit that Garcia and Ilagan have not only been diluted by subsequent jurisprudence (e.g., People vs. Burgos, supra), they are relics of authoritarian rule that can no longer be defended, if they could have been defended, in Plaza Miranda or before our own peers in the bar.

“What is important,” says the majority, “is that every arrest without warrant be tested as to its legality, via habeas corpus proceedings.”
29 I supposed that goes without saying. But it is also to patronize the petitioners and simply, to offer a small consolation, when after all, this Court is validating their continued detention.
30 With all due respect, I submit that it is nothing for which the public should be elated.

A Final Word

As I began my dissent, in this Resolution and the Decision sought to be reconsidered, I reiterate one principle: The State has no right to bother citizens without infringing their right against arbitrary State action. “The right of the people,” states the Constitution, “to be secure in their persons, houses, papers, and effects against unreasonable searchers and seizures of whatever nature and for any purpose shall be inviolable . . . .”
31 “The State,” the Charter likewise states, “values the dignity of every human person and guarantees full respect for human rights.”
32 The Constitution states the general rule — the majority would make the exception the rule, and the rule the exception. With all due respect, this is not what constitutionalism is all about.

I submit that the “actual facts and circumstances” the majority refers to are, in the first place, doubtful, the “actual facts and circumstances” being no more than “confidential information” (manufactured or genuine, we have no way of telling) and in the second place, any information with which the military (or police) were armed could no more than be hearsay, not personal, information. I submit that the “actual facts and circumstances” the majority insists on can not justify the arrests in question under Section 5(b) of Rule 113, the rule the majority insists is the applicable rule.

Apparently, Section 5(b) is not the applicable rule, as far as Deogracias Espiritu and Narciso Nazareno are concerned; certainly, it is not the Section 5(b) I know. As I indicated, Espiritu was arrested one day after the act, allegedly, inciting to sedition; Nazareno was picked up fourteen days after it (allegedly, murder). Yet, the majority would approve the police’s actions nonetheless because the police supposedly “found out only later.” I submit that the majority has read into Section 5(b) a provision that has not been written there.

“More than the allure of popularity of palatability to some groups,” concludes the majority, “what is important is that the Court be right.”
33

One million ten thousand four hundred nine (1,010,409) have been injured as a consequence of bombing, shellings, and food blockades undertaken by the military since 1988.
34