What is the writ of habeas corpus?

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Metro Manila (CNN Philippines) – Last week, President Rodrigo Duterte declared a nationwide state of emergency on account of lawless violence that Chief Presidential Legal Counsel Salvador Panelo said will help the government fight its wars against drugs and terrorism.

Read: Panelo: Public should not be alarmed by nationwide declaration of state of lawless violence

The declaration was made following the Davao City blast that killed 14 and injured 68. Duterte said the writ of habeas corpus will not be suspended during the state of emergency.

But Senator Richard Gordon said this week that suspending the writ for suspected drug criminals and terrorists will lead to swifter justice and prevent summary and extra-judicial killings.

But what exactly is the writ of habeas corpus?

In English, the Latin phrase habeas corpus means "that you have the body." When the Supreme Court, which has jurisdiction over habeas corpus petitions, issues the writ, it commands an individual or a government official who has restrained another individual to produce the prisoner at a designated time and place so that the Court can determine whether the prisoner's custody is legal or not.

If it isn't, then the prisoner must be released. In other words, the writ is a safeguard against warrantless arrests and illegal detention.

Constitutional right to due process

In reaction to cases of illegal detention during the martial law era, the 1987 Constitution contains several provisions to ensure that due process is followed and that warrantless arrests may only be conducted upon fulfilling certain conditions.

For starters, Article 3, Sections 1, 2 and 14 of the Constitution guarantee due process as a fundamental right of every Filipino and that a court-issued warrant of arrest is needed to detain someone for a crime, unless he or she is caught in the act.

Meanwhile, Article 3, Section 3 stipulates that any arrests made without satisfying the preceding provisions are not valid.

When are warrantless arrests allowed?

However, the Constitution states certain conditions for the writ of habeas corpus to be suspended, thus allowing warrantless arrests.

Article 3, Section 15 stipulates that the writ can only be suspended in cases of invasion or rebellion and when public safety requires it. In addition, Article 3, Section 13 says the right to bail shall remain even when the writ is suspended.

Only the President has the power to suspend the writ under Article 7, Section 18, which Duterte used as the legal basis for issuing the state of emergency.

The provision says "in case of invasion or rebellion, when the public safety requires it, he (the President) may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law."

Within 48 hours of suspending the writ, the President must submit "a report in person or in writing to the Congress," which may revoke or extend the suspension following a majority vote of both the House of Representatives and the Senate. In case of a revocation, the President must comply.

In addition, the Supreme Court may, upon the filing of any citizen, review the suspension of the writ and must promulgate its decision on it within 30 days from the filing.

The provision makes very clear that the suspension of the writ "shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion" and that any person arrested or detained while the writ is suspended must be charged within three days or else he or she will be released.

Cases of suspending the writ

The first suspension of the writ of habeas corpus after the American occupation was in 1950, when President Elpidio Quirino issued Proclamation No. 210 to help in the fight against Communist rebels.

In 1971, President Ferdinand Marcos also suspended habeas corpus through Proclamation No. 889 in response to the threat of Communist rebels and to the Plaza Miranda bombing. Most recently, President Gloria Macapagal-Arroyo suspended the writ in Maguindanao in 2009 through Proclamation No. 1959 following the Maguindanao massacre.