International 1987 Domestic Programs Jurisprudence Rulings

Covenant Philippine Legislations and

on Civil and Constitution Projects
Political
Rights

ARTICLE 9 SECTION 2 Republic Act No. Philippines:

ERNESTO J. SAN
1084 Mass Arrests
The right of the AGUSTIN, petitioner,
1. Everyone Before APEC
has the right people to be AN ACT TO Summit vs.
to liberty and secure in their AMEND Sec. PEOPLE OF THE
security of persons, TWO HUNDRED ‘Clearing
PHILIPPINES, respo
person. No houses, AND SIXTY- Operations’
ndent.
one shall be papers, and SEVEN OF THE Target
subjected to effects against REVISED PENAL Homeless, Poor, [G.R. No. 158211. August
arbitrary unreasonable CODE and Street 31, 2004]
arrest or searches and Art.267.Kidnappin Children
detention. No seizures of g and serious The Court of Appeals ruled
one shall be whatever illegal detention. — “Philippine that the petitioner was
deprived of nature and for Any private authorities have unlawfully arrested; hence,
his liberty any purpose individual who violated the rights he was entitled to
except on shall be shall kidnap or of hundreds of preliminary investigation
such grounds inviolable, and detain another, or Manila residents and release from detention
and in no search in any other to put a cynical subject to his appearance
accordance warrant or manner deprive veneer of during the preliminary
with such warrant of him of his liberty, ‘cleanliness’ on investigation. However, the
procedure as arrest shall shall suffer the
the city for APEC Court of Appeals declared
are issue except penalty delegates,”
of that the lack of preliminary
established by upon probable reclusion temporal
said Phelim Kine, investigation did not impair
law. cause to be in its maximum
deputy Asia the validity of the
determined period to death
director at Human Information filed with the
2. Anyone personally by Rights Watch. RTC.
who is Republic Act No. “The removal and
the judge after
arrested shall examination 7438 detention of FELIPE
be informed, under oath or homeless and GONZALEZ, petitioner,
at the time of affirmation of AN ACT impoverished vs.
arrest, of the the DEFINING residents from THE COURT OF FIRST
reasons for complainant CERTAIN RIGHTS where they live INSTANCE OF BULACAN,
his arrest and and theOF PERSON and work without ET AL., respondents.
shall be witnesses he ARRESTED, due process is a
promptly may produce, DETAINED OR violation of their G.R. No. L-45233
informed of and particularly UNDER basic human December 29, 1936
any charges describing the CUSTODIAL rights.”
against him. place to be INVESTIGATION Now comes the
searched and AS WELL AS THE VICTIMS undersigned and to this
3. Anyone the persons orDUTIES OF THE COMPENSATIO Honorable Court
arrested or things to be ARRESTING, N PROGRAM respectfully shows:
detained on a seized. DETAINING AND That this is a case of
criminal INVESTIGATING Republic Act No. arbitrary detention
charge shall SECTION 14 OFFICERS, AND 7309 is the law described and penalized
be brought PROVIDING creating the under article 125 of the
promptly 1. No person PENALTIES FOR Board of Claims Revised Penal Code. That
the supposed arbitrary
before a judge shall be held to VIOLATIONS under the detention arose from the
or other answer for a THEREOF Department of fact that the complainant
officer criminal Justice granting Felipe Gonzalez was
authorized by offense without Republic Act No. compensation for arrested on January 18,
law to due process of 7309 victims of unjust 1935, on a charge of grave
exercise law. imprisonment or coercion. That the said
judicial power AN ACT detention and charge for grave coercion
and shall be 2. In all CREATING A victims of violent was dismissed by this
entitled to trial criminal BOARD OF crimes. Honorable court on petition
within a prosecutions, CLAIMS UNDER of the private prosecutor
reasonable the accused THE concurred in by Deputy
time or to shall be DEPARTMENT Provincial Fiscal, Mr.
release. It presumed OF JUSTICE FOR Teofilo D. Reyes, for lack of
shall not be innocent until VICTIMS OF sufficient evidence. That
the general the contrary is UNJUST this case was instituted by
rule that proved, and IMPRISONMENT the offended party as a
persons shall enjoy the OR DETENTION result of the dismissal of
awaiting trial right to be AND VICTIMS OF the case for grave
shall be heard by VIOLENT CRIMES coercion. That in order that
detained in himself and AND FOR OTHER a case for arbitrary
custody, but counsel, to be PURPOSES detention may prosper, it is
release may informed of the necessary that the
be subject to nature and detention must be shown to
guarantees to cause of the be without any legal
appear for accusation ground.
trial, at any against him, to
other stage of have a speedy,
the judicial impartial, and
proceedings, public trial, to
and, should meet the
occasion witnesses face
arise, for to face, and to
execution of have
the compulsory
judgement. process to
secure the
4. Anyone attendance of
who is witnesses and
deprived of the production
his liberty by of evidence in
arrest or his behalf.
detention However, after
shall be arraignment,
entitled to trial may
take proceed
proceedings notwithstandin
before a g the absence
court, in order of the accused
that, that court provided that
may decide he has been
without delay duly notified
on the and his failure
lawfulness of to appear is
his detention unjustifiable.
and order his
release if the SECTION 13
detention is
not lawful. All persons,
except those
5. Anyone charged with
who has been offenses
the victim of punishable by
unlawful reclusion
arrest or perpetua when
detention evidence of
shall have an guilt is strong,
enforceable shall, before
right to conviction, be
compensation bailable by
. sufficient
sureties, or be
released on
recognizance
as may be
provided by
law. The right
to bail shall not
be impaired
even when the
privilege of the
writ of habeas
corpus is
suspended.
Excessive bail
shall not be
required.

SECTION 12

4. The law
shall provide
for penal and
civil sanctions
for violations of
this section as
well as
compensation
to and
rehabilitation of
victims of
torture or
similar
practices, and
their families.
(2nd and Final Matrix)

Article 9 of
International Covenant on Civil and Political Rights
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty except on such grounds and in accordance with
such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and
shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable
time or to release. It shall not be the general rule that persons awaiting trial shall be detained in
custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial
proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings
before a court, in order that that court may decide without delay on the lawfulness of his detention and
order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to
compensation.
Arguelles, Keilah Shem S.

Palawan State University - School of Law

Preliminary Analysis: Section 9 of International Covenant on Civil and Political Rights and Article 3,
Section 2, 13, and 14 of the 1987 Philippine Constitution recognises that everyone has the right to
liberty and security of person and states that no one shall be subjected to arbitrary arrest or detention.
However, the former focuses solely on the rights of a person regarding arbitrary arrest and arbitrary
detention, his entitlement to be brought before a judge or other officer authorized by law to exercise
judicial power and shall be subjected to trial within a reasonable time or to release and to take
proceedings before a court while the latter although had also tackled about need of warrant of arrest, it
has more depth in terms of other rights that has an interrelation with Article 9 of ICCPR, such as, the
right of the to be presumed innocent until the contrary is proved, and shall enjoy the right to be heard
by himself and counsel, to have a speedy, impartial, and public trial, to meet the witnesses face to
face, and to have compulsory process to secure the attendance of witnesses and the production of
evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of
the accused provided that he has been duly notified and his failure to appear is unjustifiable and all
persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt
is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as
may be provided by law. The latter has a wider scope than the former, however, since the former has
a more restricted scope, it was able to explain concisely and precisely about arbitrary arrest and
detention.

State Report: As of August, the Office of the Ombudsman, an independent agency responsible for
investigating and prosecuting charges of public abuse and impropriety, reported 72 arbitrary detention
violations committed by law enforcement agencies or the AFP during the year.
General comment No. 35

Article 9 (Liberty and security of person)

I. General remarks

1. The present general comment replaces general comment No. 8 (sixteenth session), adopted
in 1982.

2. Article 9 recognizes and protects both liberty of person and security of person. In the
Universal Declaration of Human Rights, article 3 proclaims that everyone has the right to life,
liberty and security of person. That is the first substantive right protected by the Universal
Declaration, which indicates the profound importance of article 9 of the Covenant both for
individuals and for society as a whole. Liberty and security of person are precious for their
own sake, and also because the deprivation of liberty and security of person have historically
been principal means for impairing the enjoyment of other rights.

3. Liberty of person concerns freedom from confinement of the body, not a general freedom of
action. Security of person concerns freedom from injury to the body and the mind, or bodily
and mental integrity, as further discussed in paragraph 9 below. Article 9 guarantees those
rights to everyone. “Everyone” includes, among others, girls and boys, soldiers, persons with
disabilities, lesbian, gay, bisexual and transgender persons, aliens, refugees and asylum
seekers, stateless persons, migrant workers, persons convicted of crime, and persons who
have engaged in terrorist activity.
4. Paragraphs 2 to 5 of article 9 set out specific safeguards for the protection of liberty and
security of person. Some of the provisions of article 9 (part of paragraph 2 and the whole of
paragraph 3) apply only in connection with criminal charges. But the rest, in particular the
important guarantee laid down in paragraph 4, i.e. the right to review by a court of the legality
of detention, applies to all persons deprived of liberty.

5. Deprivation of liberty involves more severe restriction of motion within a narrower space than
mere interference with liberty of movement under article 12.