In flagrante delicto

I happened to come across a video excerpt posted online where a question was posed about warrantless arrests and the legal doctrine of “in flagrante delicto.” Simply put, the point they were trying to drive at was that law enforcement or any private citizen, may make warrantless arrests on persons posting “false information” or “fake news” articles or videos online.

The first thing to be considered before the doctrine of in flagrante delicto can even be invoked is whether or not a crime has just been, is being committed or is attempting to commit by someone, in front of or so close to his presence.

In the hypothetical scenario presented where “fake news” has been and remains posted online, the “cyber” iterations of libel or defamation may have been committed. However, a person may only be liable for the crime of libel or defamation when a person knowingly makes public a false statement, imputation or utterance with the intent to cause harm, and that such falsehood caused actual damage to the reputation and honor of an identifiable person. And all these elements must be witnessed firsthand and determined at the time of the commission of the crime for the in flagrante delicto exception to be triggered.

On the one hand , we have the right of person to vindicate their besmirched reputation and honor; and on the other, the freedom of a person to speak and express opinions. If one were to deprive another of liberty as a result of their exercise of free speech or expression, due process must be observed. The process of preliminary investigation is a not a mere procedural right but a substantive right under the due process.

True, one’s right ends where another begins. But the question who is charged to be the arbiter of conflicting rights and interests? It is only our courts.

Undoubtedly, the crimes of libel or defamation, by their nature, infringe or impose a limitation on Constitutionally-protected freedoms of speech and expression. Moreover, in flagrante delicto, as a narrow exception to due process requirement, should be interpreted strictly in favor of the accused. Thusly, before cases of crimes of libel, defamation and their cybercrime versions may even be filed, a high probability of conviction must be established via the conduct of a preliminary investigation — only then will the issuance of a warrant of arrest even be considered by a competent court.

Let our law enforcement and overzealous private citizens be forewarned that the crimes of arbitrary detention or unlawful arrest exist as safeguards to potential abuse of warrantless arrest exceptions. Not all crimes may be subject of a warrantless arrest. If the other way around were the case (which it is most certainly NOT), anyone who is a victim of any crime should be able to easily detain a person under a warrantless arrest and take a person to the police station.

As a member of the legal profession, a published commentator, and a citizen of the Republic of the Philippines, I am deeply offended at the insinuation that one could be arrested without need of warrant from a court of competent jurisdiction for one’s opinions, or for something we write, utter, or post online. I am all for accountability and responsible exercise of our freedoms, but I must insist and herein register my vehement objection, at even the mere suggestion, that the crimes of libel, defamation, or any of its cyber iterations may be subject of warrantless arrests.

Cliché as it may sound: Public office is public trust. We elected our officials to uplift our lives, promote our interests, and protect our rights and our freedoms. They are NOT, by any stretch of imagination, cloaked with the authority to stifle our freedoms and trample upon our Constitutionally-protected rights without regard to due process.