Abuses of Arrest and Detainment processes during the Marcos Administration (1972-1986)

In 2020, the Philippine Anti-Terror bill, despite its avowed intention to secure the safety of Filipinos, has been met with criticism.1 One comment aired by retired Senior Associate Justice Antonio Carpio expressed that the 2020 Anti-Terrorism Act would place the Philippines in a situation “worse than Martial Law”, referring to the period under the Marcos Administration.2 To examine this in retrospect, it is important to understand what legal measures were put in effect at the time to address issues of national security and public safety.

Arrest, Search and Seizure Orders under Martial Law

President Ferdinand Marcos swiftly issued a series of general orders following the declaration of Martial Law on September 1972. Through General Order No. 2 (1972), later amended by General Order No. 2-A, the Secretary of National Defense was empowered to arrest and detain a wide range of individuals pre-selected by the president. Under these General Orders, Marcos sought to capture and arrest persons who may have committed any of the following activities:

  1. Acts “in furtherance or on the occasion of or incident to or in connection with” insurrection or rebellion;
  2. Crimes against national security and the law of nations;
  3. Crimes against public order;
  4. Crimes involving usurpation of authority, title, improper use of name, uniform and insignia, including persons guilty of crimes as public officers, and
  5. Acts in violation of any decree or order promulgated by the president personally or promulgated upon his direction.3

Although the 1935 Constitution only gave Judges the authority to issue warrants of arrest, the 1973 constitution issued under the Martial Law period allowed the President to grant officers such as the Secretary of National Defense such powers.4 This ensured that Marcos would have Executive control over what would normally be a separated, judiciary procedure.

General Order No. 60 (1977) and subsequent documents formalized these various powers into the Arrest, Search and Seizure Order (ASSO).5 Their provisions grant the Secretary of National Defense the following:

  1. Authority to issue ASSOs for offenses over which military tribunals have exclusive jurisdiction;
  2. With the consent of the President, authorize other officials of the Department of National Defense or officers of the Armed Forces of the Philippines with the powers to effect ASSOs; and
  3. The ability to enforce ASSOs for crimes that can undermining national security or public order, even though these were not determined by military tribunals6

Persons arrested thru ASSOs were to be kept in captivity until their release was ordered by the president or the Secretary of National Defense.7

 

Presidential Commitment Orders

 

Presidential Decree No. 1836 (1981) enabled the president to issue orders of arrest or “commitment orders” in a state of Martial Law or where the privilege of the writ of habeas corpus is suspended.8 These Presidential Commitment Orders (PCOs) would be issued on any person who the president judged had to be arrested to repel or quell an invasion, insurrection or rebellion, or imminent danger thereof. Once more, detainees can only be released upon the president’s orders.9

 

Preventive Detention Actions

 

Despite the formal lifting of Martial Law, Marcos claimed that there were still persistent efforts being made to overthrow the government. Thus, Presidential Decree No. 1877 (1983) was passed to empower military commanders or heads of law enforcement with the ability to issue “Preventive Detention Actions” (PDA).10 These PDAs could be applied for to the President against persons who are ascertained to be committing, about to commit or may probably escape to commit acts that would endanger public order and safety or the stability of the state. Granted, the following circumstances would also have to be present in the situation:

1. Resorting to judicial processes is not possible or expedient without endangering public order and safety;

2. The judgment of the President of the Philippines to apply for a judicial warrant may prejudice peace and order and the safety of the state11

Persons arrested under a PDA could be confined for up to one year. The PDA also grants the authority to sequester all arms, equipment or property used or to be used in the commission of the crime or crimes.12 Persons can be released from custody if they are acquitted or have served their sentences. However, they can be further incarcerated by the President if, during their detention, there is evidence of the detainee continuing to engage in the acts for which they were arrested.13

The President may also, with the assistance of a review committee, evaluate whether to order the release or continue the imprisonment of persons subject to Preventive Detention Actions and Presidential Commitment Orders. Should one’s confinement be extended, the Chief of Staff of the Armed Forces and the Minister of Defense have to submit periodic status reports of detainees, together with appropriate recommendations, to the President.14

Miscarriage of the Law

While it should be considered that Marcos had to contend with internal threats to public safety, it should not be dismissed that there is comprehensive documentation of abuse committed by state security forces during his administration. Amnesty International produced reports detailing various torture cases in 197315, 197516, and 198117 respectively. These have since served as major sources of historical documentation regarding torture under Ferdinand Marcos’ regime. Various other accounts of political detainees were also documented by non-government organizations such as Task Force Detainees of the Philippines, the World Council of Churches and the International Commission of Jurists. State forces which these sources noted as particularly notorious for committing human rights violations were the 5th Constabulary Security Unit (5CSU) under the command of Lt. Miguel Aure18, the Intelligence Service of the Armed Forces of the Philippines (ISAFP) under B.Gen Ignacio Paz19, and the Metrocom Intelligence and Security Group (MISG) under the command of Col. Rolando Abadilla. It was to this extent that the Philippine Government recognized that the state had committed human rights violations during the Marcos Administration thru Republic Act No. 10368 (2013).

The nation’s past has observed abuses of the rule of law when not regulated by safeguards for due process and human rights. What was framed as a means to pursue national security instead fostered impunity. Perhaps, to avoid the same lapses of the past, a higher priority towards these safeguards is necessary before the nation is ready for such change.

 

References

1 Regencia, Ted (2020), Court challenge awaits Duterte-backed anti-terror legislation, June 9, Al Jazeera. Retrieved from https://www.aljazeera.com/news/2020/06/court-challenge-awaits-duterte-backed-anti-terror-legislation-200609050339856.html

2 Buan, Lian (2020) “PH situation ‘worse than martial law’ under anti-terror bill – Carpio”, June 17. Rappler. Retrieved from https://www.rappler.com/nation/264082-carpio-anti-terror-bil-will-put-philippines-permanent-situation-worse-than-martial-law

3 General Order No. 2-A (1972)

4 The Bill of Rights in the 1935 Philippine Constitution declares that “…no warrants shall issue but upon probable cause, to be determined 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.” (ARTICLE III, Sec. 1(3)) Compare this to The Bill of Rights in the 1973 Philippine Constitution, which modifies the text as follows: “…no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law…” (ARTICLE IV, Sec. 3.)

5 General Order No. 60 (1977), Letter of Instructions No. 621 (1977)

6 Ibid. Sec 1-3

7 Ibid. Sec 4

8 Presidential Decree No. 1836 (1981), Sec. 1

9 Ibid. Sec.2

10 Presidential Decree No. 1877 (1983), Sec. 2.

11 For instance, it may jeopardize covert intelligence or counter insurgency operations of the Government, or endanger the lives of intelligence and undercover agents whose identities would be revealed. Ibid. Sec. 2(b)

12 Ibid. Sec. 3.

13 Ibid. Sec. 7.

14 Ibid. Sec. 4-6.

15″Annual Report 1972-1973” 1973, Amnesty International Publications. P 58-59 (PDF) retrieved from https://www.amnesty.org.ph/wp-content/uploads/2014/11/pol100011973eng.pdf

16 “Report of an Amnesty International Mission to the Republic of the Philippines 22 November – 5 December 1975” (PDF). September 1976. retrieved from https://www.amnesty.org/download/Documents/204000/asa350191977en.pdf

17 “Report of an Amnesty International Mission to the Republic of the Philippines” 1981 (PDF). Retrieved from https://www.amnesty.org.ph/wp-content/uploads/2014/11/asa350251982en.pdf

18 W., McCoy, Alfred (2009). Policing America’s empire : the United States, the Philippines, and the rise of the surveillance state. Madison, Wis.: University of Wisconsin Press.

19 Robles, Raissa (2016). Marcos Martial Law: Never Again. Filipinos for a Better Philippines, inc.