STANDARD COLUMN: WHY THERE IS NO CONSTITUTIONAL BAR TO A HOUSE ARREST
MANILA, DECEMBER 5, 2011 (STANDARD) By Fr. Ranhilio Callangan Aquino (photo), Dean, Graduate School of Law San Beda College - May Mrs. Gloria Macapagal-Arroyo, charged with electoral sabotage, against whom a warrant of arrest has been issued, be confined to a hospital or even confined at home, or must she languish in a detention facility pending trial?
What may or may not happen in consequence of an arrest depends on the nature of an arrest.
Rule 113, Section 1 of the Rules of Court defines an arrest as "taking of a person into custody in order that he may be bound to answer for the commission of an offense." "To arrest" is therefore not synonymous with, nor does it, of logical or legal necessity, entail "to jail".
What is of the essence is that the person arrested be in custodia legis, in the custody of the law to answer for the commission of an offense. Obviously, such a person can be in custody whether in a hospital room or in his own residence, as long as he can be brought to court to answer charges against him when legal process so dictates.
So what difference is there, it may be asked, between a person facing no prosecution and enjoying the comfort of her home and one under arrest yet enjoying the comfort of home nonetheless?
A person not charged is free to move about as she pleases, to take vacations, to on go on cruises or tours and to receive whomsoever it may please her to receive into her home. Not so with a person under arrest who is detained at home. The court, through law enforcement officers, must at all times know where she is and must be prepared to present her to the court when demand is made that she be present.
Under the topic on "Arrest" in American Jurisprudence, 2nd Series, in Section 75 entitled "Detention of arrested person" we are told:
"It is the duty of an officer who has arrested a person to keep him safely until it is possible to deliver him before a magistrate; and when a person accused of a felony is unknown to him, he cannot stop at the moment of arrest to inquire into his character, his intent to escape, or his guilt or innocence, but may reasonably use discretion as to the means taken to apprehend the offender and keep him safe and secure thereafter."
There is no duty to keep an arrestee in prison, or in a detention cell or behind bars, but there is a duty to keep the arrested person both safe and safely!
Whoever enforces the writ must see to the safety of the person arrested as well as to her availability to face the processes of court.
Significantly while the Rules clearly prescribe the 'imprisonment' of anyone found liable for contempt of court, Senate has exercised its contempt powers not by sending offenders to jails, but by keeping them in offices within the Senate building. In fact, Section 14, the same rule on arrest contemplates different places of confinement. It guarantees the person arrested the right to the visit of any member of the Philippine Bar "in the jail or any other place of custody." The place of custody need not be jail.
Legally, therefore, there is nothing that prescribes jail or a detention cell as the place of confinement of a person under arrest. What matters is that the person be held at the beck and call of the court to stand trial for the offense of which she is charged.
What then of the supposed argument against so-called 'special treatment'?
When given the habiliments of a constitutional issue this becomes a question of the equal application and equal protection of the laws.
There being no law or rule binding a judge to jail someone accused pending trial, it should be clear that where the detention is to take place is a matter of judicial discretion. No matter that discretion can and has been abused, we have not expunged it from the legal system—and no legal system anywhere in the world has ever done so—because it is universally recognized that justice must, in a very real sense, be particularized.
When you put up a roadblock and declare that there shall be no entry, it is a matter of common sense that some exceptions will and must be made without compromising the effectiveness of such a roadblock. No matter what the morality of the entire martial law regime has been assailed, the fact is that under the constitutional and legal order that prevailed at the time, Ninoy Aquino was a convicted felon, sentenced to suffer the penalty of death.
It was special treatment to allow him to go to the United States for medical treatment where, after his recovery, he delivered speeches lambasting Marcos and his rule. Legally, the judgment of a military commission was reviewed not by the Supreme Court but the President and Commander-in-Chief—a military commission being an instrumentality of the military arm of the State—and Marcos chose to exercise his discretion to allow a convicted man to go abroad for treatment (or to be rid of a pain in the neck)!
Marcos of course, is now vilified as the personification of autocracy and the demise of freedom, but he exercised discretion in Ninoy's favor!
I am not saying that it is payback time. I am only arguing for the exercise of discretion that is not hindered by slogans like: "No special treatment"!
So, why should discretion be exercised in favor of allowing the former President to be confined at home or in a hospital?
In the first place, the constitutionality of her arrest is still in issue. Not only is there a pending, unresolved motion to quash the warrant of arrest.
The very regularity of the DoJ – Comelec panel that led the Comelec to find probable cause has been questioned, and the Supreme Court has still to rule. Second, there is the precarious health of the former President. She may be improving, but that is not the same thing as to say that she is in perfect health.
This is not only an appeal to mercy. It involves the former president's right to life and right against any state action that compromises or prejudices this right.
Finally, there is the matter of the value of our symbols, and former presidents are symbols. If even tattered flags are not simply disposed of in garbage bins but are ceremoniously burned, why should we relish the prospect of a former president in prison garb, receiving the same treatment that all other detention prisoners receive?
To insist that she receive no special treatment is not really to satisfy the demands of law. It must be repeated: No law or rule prescribes the prison detention of a person charged with an offense.
What there is quite clearly to me is a longing to gloat over the misfortune of Gloria Macapagal Arroyo, to see her humiliated, to make her grovel and crawl—and that is truly unfortunate for us, as a people.
Joseph Estrada was formally charged: before an impeachment court and before a regular court of justice. Witnesses testified without equivocation on his misdeeds, but it was correct to spare him from the humiliation of being a detention prisoner.
It would certainly have provided unprincipled media persons – of which we are not in short supply in this blighted land—with the "bread and circuses" of decadent Roman times to have offered them the spectacle of a former president shoved into a detention cell with the rest of the detainees, garbed in prison dress.
He was accorded special treatment—he was kept in custody in his comfortable Tanay retreat. And that was right.
Should it be wrong now, when we have not even heard the evidence against Gloria Macapagal Arroyo, and much less when there is as yet no finding of guilt?
ABOUT THE WRITER
Rev. Fr. Ranhilio C. Aquino (SJD, San Beda College, 2008, by assessment)- Vice-President for Academic Affairs, Cagayan State University; current Dean (on consultancy), Graduate School of Law, San Beda College; Chair, Department of Jurisprudence and Legal Philosophy, Philippine Judicial Academy, Supreme Court of the Philippines; Fellow, Commonwealth Judicial Education Institution (Dalhousie University, Nova Scotia), Research Fellow, Superior Institute of Philosophy, Catholic University of Louvain (Belgium) (SOURCE: WIKIPEDIA)
Biography Fr. RANHILIO C. AQUINO
Fr. Rannie did his Bachelor of Arts in Philosophy degree at the Faculty of Arts and Letters, University of Santo Tomas and graduated in 1978 summa cum laude. He went on to do a Master of Arts in Philosophy degree at the same university, completing it in 1981, summa cum laude. One year later, he was ordained a priest of the Archdiocese of Tuguegarao.
He completed his Doctor of Philosophy, major in Philosophy degree in 1988, summa cum laude, with a doctoral dissertation on human knowledge.
At Columbia Pacific University (San Rafael, California), he completed his Doctor of Jurisprudence degree, major in International Law in 1993. Since then, he has been a professor of law at the Cagayan Colleges Tuguegarao, College of Law. He is likewise professor of philosophy at the Faculty of Philosophy, University of Santo Tomas, and was recently appointed Dean of the Graduate School of Law, San Beda College.
In the Winter Term of 1993, he was admitted as a Research Fellow at the Catholic University of Louvain (Katholieke Universiteit Leuven) in Belgium.
Joining the Philippine Judicial Academy of the Supreme Court in 1998, he became a Fellow of the Commonwealth Judicial Education Institute, Dalhousie University, Halifax, Nova Scotia.
In 2001, the Supreme Court sent him to the Federal Court of Australia as part of a team of Filipino jurists led by Mr. Justice Jose Vitug who completed a course on Commercial Law.
In August of 2003, he did studies in Philosophy at Cambridge University, England. He has authored books both in philosophy and in law.
In philosophy, he wrote: A Philosophy of Education; A Philosophy of Law; and Man at Worship: A Philosophy of Religion.
In law, he authored Peace on Earth: Issues in Public International Law; Intellectual Property Law: Comments and Annotations, now on its second edition; and Private International Law. He has also annotated for Supreme Court Reports Annotated and is a regular contributor to The Lawyers' Review.
Among his lecture tours in philosophy were for the Taniguchi Foundation of Japan on Eco-Ethica. He did research on liturgy and canon law at the University of Navarra in Pamplona, Spain. He argued at a Demonstration Trial in Dublin, Republic of Ireland for the World Conference of Jurists in 2001 on an issue of international environmental law, where he also read a paper in jurisprudence.
Aside from heading the Academic Affairs Office, he chairs the Department of Jurisprudence and Legal Philosophy of the Philippine Judicial Academy, and lectures for the MCLF, Program of the U.P. Institute of Judicial Administration (UP Law Complex).
He is Parish Priest of St. Rose of Lima Parish. He is the son of Justice Hilarion L. Aquino, a retired member of the Court of Appeals, and Attorney Leticia P. Callangan-Aquino, Dean, College of Law of the Cagayan State University.
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