Suspending the privilege of writ of habeas corpus floated by President Rodrigo Duterte has slim consonance with existing provisions of the 1987 Constitution if it would be based on the “lawlessness in Mindanao”.

This is according to former Bohol governor and bar topnotcher, Victor dela Serna.

Dela Serna explained that only invasion or rebellion that threatens public safety can be the basis for the President to “suspend the privilege of the writ of habeas corpus for a period not exceeding 60 days”. 

Using as basis, the state of war, as the President had verbally declared such in the light of the serious problem on the drug menace cannot legally support the suspension of the writ of habeas corpus because it is only invasion or rebellion that is stated in the 1987 Constitution, Dela Serna added.

It might take the lengthy and tedious process of amending the Constitution for state of war to be made the additional basis for the suspension of the writ of habeas corpus, according to Dela Serna.

What might be cited as rebellion is the acts of Abu Sayyaf kidnapping tourists and women.

Dela Serna said that while it might be legally impossible, the President has the full support of the people for his determination to rid the country of criminalities and illegal drugs.

Duterte first floated the possible suspension of the writ of habeas corpus after the bombing at a night market in Davao City where 15 persons died.

The incident was attributed to the Lanao-based Maute group.

The President also cited the proliferation of illegal drugs in the country, in addition to the “rebellion in Mindanao”, as the basis that might prompt him to suspend the writ of habeas corpus.

It is required under the Constitution that the President, within 48 hours, submits “a report to Congress about the suspension of the privilege of the writ of habeas corpus”.

“In case of invasion or rebellion, when the public safety requires it, [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 forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it,” Article VII, Section 18 of the 1987 Constitution provides.

Such provision of the Constitution further states that “The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for rebellion or offenses inherent in, or directly connected with, invasion. During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released”.

The Supreme Court, under the Constitution, “may also review the factual basis of the suspension of the privilege of the writ or the extension upon the filing of a petition from a concerned citizen”. 

Dela Serna also explained that if the privilege of the writ of habeas corpus is suspended, warrantless arrests will then be allowed.

The writ of habeas corpus is a special proceeding provided in the Rules of Court as among the remedies available for compelling official action or response.

“The sole and paramount objective of a petition for a Writ of Habeas Corpus- -a high prerogative writ- -is to seek the intervention of the courts in compelling the State officials exercising custody over a person to produce that person’s body and justify his or her continued confinement,” as explained in the Manual on Remedies for Human Rights Violations.

It is also explained in the manual that “in cases of enforced disappearances, habeas corpus can operate to discover the location of a disappeared person when it has been ascertained that he or she is being confined on some illegal ground, amounting to an unlawful deprivation of his or her liberty”.