Lawyers who are present during police investigations are guided by the following questions: Does the search team have a search warrant? If so, is it valid? If so, has the correct procedure been observed?
MANILA, Philippines – The lawyers who are supposed to represent one of the owners of a Makati bar are now faced with a complaint about alleged constructive possession of illegal drugs after they were arrested and detained due to obstruction of the law.
While they were released on August 17, lawyers Jan Vincent Soliven, Lenie Rocel Rocha and Romulo Bernard Alarkon of the law firm Desierto & Desierto are now faced with complaints about resistance and disobedience and violation of a regulation about the crossing of the police.
The 3 lawyers, newly hired by the bar Time in Manila, who was raided for alleged sales of party drugs, documented the police investigation of the bar on 16 August. police the lawyers intimidated the search team and prevented them from completely seeking the bar's premises.
Video obtained by Rappler the lawyers and police officers made a confrontation.
Many groups condemned the arrests and said that the lawyers simply did their job. But what is the required procedure in situations like this? Are these costs too much?
Once on the site, what should police and lawyers do first?
On arrival at the site, police and lawyers agree that lawyers must seek the leader of the police search team, present themselves and identify who they represent.
When the police see them first, the PNP spokesman, Chief Inspector Benigno Durana, said that the police's first question should be: "Sino Kayo (Who are you)?"
This is to ensure that the authorities know who they are and what their presence on the site entails.
On the basis of police accounts and the video obtained by Rappler, the 3 Makati lawyers refused to identify their client when the robbery began. The lawyers only said that they formed a "Mr Server" seconds before they were handcuffed towards the end of the robbery.
Although it is "useful to avoid misunderstandings," said Edre Olalia, president of the National Union of Peoples & Lawyers (NUPL), that prior coordination can defeat the advocates' goal as evidence "can be bypassed, conceived or polluted. "
"Most searches are sudden and unannounced, so there is no reasonable chance [for] prior coordination, "he explained.
If the robbery has already started by the time lawyers arrive, Durana said they should coordinate with police officers guarding the robbery area. This police will be the "perimeter / security team". called. As described in the PNP manual on anti-drug operations, these teams determine "those allowed to enter the inner edge".
This police possesses the access card of lawyers who allow them to go to the team leader of the searching party.
"All unauthorized persons remain outside the perimeter line," says the manual, Durana said, with lawyers who have no authority.
Do lawyers need written permission from their client?
Which police say: PNP Chief Executive Officer Oscar Albayalde said lawyers should have "explicit permission from the owner he or she designates [the lawyer] as his or her legal counsel. "
What is explicit authority? PNP spokesman Durana said that there are only two cases that fall below:
- If the owners of the establishment are personal and identify the lawyers who represent them
- If the lawyers secure a written consent from their customers
"Why should it be documented? Because if it's verbal (the lawyer who identifies himself), it can be refused later, if it's in a lawsuit, it's just rumors," Durana said.
If lawyers could not, Durana said that the police should promptly ask the lawyers to leave. If they refuse, agents must offer to escort them, he added.
But if they continue to resist to the point that they endanger the search, Durana said the police "has more than enough reason to arrest [them]"The PNP spokesman said police officers could file legal costs, exactly the cases that were thrown at the lawyers of the 3 Makati lawyers.
What lawyers say: Legal analyst and Iawyer Tony La Viña said that lawyers should only "appear and identify themselves as lawyers of the person being searched."
"There is no need to even show a retainer contract, and integrated Bar of the Philippines (IBP) identification cards can be requested to prove identity," he said.
A written authorization can be the best and most useful for convenience, but the lack of it should not prevent lawyers representing a customer from executing a search warrant.
There are several reasons why lawyers can not immediately show a commission or written authorization, according to Dean Jose Manuel "Chel" Diokno of the Free Legal Assistance Group (FLAG).
"May sitwasyon after wala ka talagang panahon kumuha ng retainer letter," he said. "Wala can choose kundi pumunta sa lugar at magpakilala bilang abogado. Dapat igaling iyan ng pulis. "
(There are really situations where there is no time to receive a letter of formal notice, you have no choice but to go to the place and to introduce yourself as a lawyer, that must be respected by the police.)
Olalia, meanwhile, said that there is a suspicion that a person who claims to represent a customer is duly authorized to do so.
"These things can be verified anyway and there are penalties for misrepresentation if this has been proven," he said.
Diokno reiterated this and added that lawyers & officers of the courts & # 39; must be.
"Kung sakaling binobola ko sila, puwede nila akong kasuhan sa IBP, kasi professional conduct iyan, " he said. "Di naman ako pupunta diyan kung hindi ako inatasan ng kliyente."
(If I deliberately misrepresent the police, they may file a complaint against me, perhaps before the Integrated Bar of the Philippines (IBP) because it involves professional conduct.) I will not even go there if I do not have been assigned by a customer.)
The police seem to have been very rigid with regard to the required written authority and obscured the lawyers as an officer of the court. Because the lawyers intervened in the raid without permission, the police regarded them as suspects.
What can lawyers ever do to participate in the robbery?
Which police say: Durana said that lawyers can request a copy of the search warrant, and the police must immediately hand over to the lawyers.
Hence, Durana said, lawyers can follow the police in their robbery and remind them of the areas and objects covered by the search warrant.
When police officers see illegal objects "in plain view", they can grab these objects even if they are not specified in the order. For example, these can be medicines or weapons.
During the whole operation, lawyers are not allowed to make videos and photos, Durana said.
Top agent Albayalde stressed that the lawyers should not "intimidate" the police, but they must "guide" in implementing the search guarantee. Durana repeated this, admit that police officers, especially the newbie police, are easily "intimidated" by the presence of lawyers.
What lawyers say: Once lawyers have presented themselves to the team leader of the police, they can now follow the procedure and ensure that everything happens according to the law.
They can even "protest and protest if they are justified by standards and requirements", says Olalia.
There is no law that forbids lawyers to take photos & videos of the proceedings, he added, "as long as the lawyer or owner of the searched property does not hinder, impedes or prevents a valid search the right way. "
Diokno meanwhile said that the police did not have to be afraid of documentation.
"If the police do nothing illegal, why should not the lawyers take video's and photo's? It's both for their own protection and for the lawyers," Diokno said.
To say that lawyers can not document the procedure contradicts the purpose of the PNP to be transparent in anti-drug operations. This attempt at transparency was first made when the police were encouraged to use body camera's.
Why are lawyers needed during a police search?
Olalia explained that the presence of lawyers during the execution of a search warrant is important to ensure a "transparent and orderly investigation and seizure procedure" that respects the rights of the accused.
"Lawyers representing a customer or responding to legal assistance must protect the rights, abuse, manufacture, produce and manipulate evidence in a competent, careful and meticulous manner," he told Rappler.
The lawyers are usually able to find answers to questions, including: does the search team have a search warrant? If so, is it valid? If so, has the correct procedure been observed?
La Viña said that the presence of a lawyer to observe and document the procedure is a matter of the right of the person who is seeking to be subjected to & # 39 ;.
The role of lawyers in the implementation of search warrants was confirmed by no less than PNP chief Albayalde himself, but he specified that the valuation only applies to law-abiding lawyers.
"We have no problems with lawyers … It is their job to defend their client, and it is our job to implement and enforce the law," Albayalde said.
"If you are already involved or prevent us from implementing the law, you will be charged accordingly," Albayalde added.
In search warrants implemented under the Comprehensive Dangerous Drugs Act of 2002, lawyers are one of the persons required to sign the copies of the inventory & # 39 ;.
Section 21.1 of the Act provides:
"The arresting team that has the first detention and control over the narcotics must physically inventory and photograph them immediately after seizure and confiscation in the presence of the accused or the person (s) from whom these items have been seized and / or confiscated. have been taken, or his / her representative or counsel, a representative of the media and the Ministry of Justice (DOJ), and an elected public official who must sign the copies of the inventory and receive a copy thereof. "
– with reports from Lian Buan / Rappler.com