PHILIPPINES: Sulu’s emergency declaration is legally flawed 

September 15, 2010

An Open Letter to Faith Suzzette delos Reyes-Kong, senior legal officer of the Commission on Human Rights (CHR 9) by the Asian Human Rights Commission (AHRC)

Ms. Faith Suzzette delos Reyes-Kong
Senior Legal Officer
Commission on Human Rights of the Philippines (CHR 9)
2nd Floor, Philippine Veterans Bank Building
Gov. Lim Avenue and Saavedra Streets
7000 Zamboanga City

Telefax: +63 62 993 2869

Dear Ms. delos Reyes-Kong:

PHILIPPINES: Sulu’s emergency declaration is legally flawed

The Asian Human Rights Commission (AHRC) is writing to acknowledge receipt of your letter dated September 6, 2010, the full text of which is annexed below, about your response to the AHRC’s publication: “The State of Human Rights in Ten Asian Nations – 2009” wherein your name had been mentioned in page 241.

In your letter to us, you wish that your response be considered as “out of my own personal initiative” even though you hold the position of an Attorney IV of the Commission on Human Rights (CHR) regional office 9 in Zamboanga City. Our response, to you however applies to both–you being a concerned Filipino and a lawyer for the CHR.

The AHRC stood by its position from the beginning that the Proclamation No. 1 Series of 2009 declaring the ‘State of Emergency’ in Sulu is devoid of legality; thus, whether warrantless arrests and searches during this period are legally justifiable or not, is certainly not the heart of the issue.

The powers of the provincial governors in chapter III, article 1, section 465 (vii), under the Local Government Code of 1991 or (RA 7160) to “carry out such emergency measures” is only restricted to “during and in the aftermath of man-made and natural disasters and calamities”. At the early stage, we had already expressed our contempt to the steps taken by the CHR in “prepar(ing) a statement to inform the law enforcers that the proclamation of the state of emergency did not suspend the protection in the Bill of Rights” rather than questioning the legality of “Proclamation No. 1” and the subsequent issuance of “Guidelines on the Implementation of Proclamation”.

Therefore, the CHR 9 response to the Proclamation No. 1 was off the mark. There is no amount of legal explanation or notification to the police force which would be meaningful if the declaration itself is devoid of legality. It was the legally flawed Proclamation which had permitted the violation of the rights and liberty of the people; or had put them at risk. It was a product of and executed by a chief executive who had no authority at all whatsoever in his person.

What is condemnable is that Governor Abdusakur Tan, who issued the Proclamation No. 1, has not been held to account for his unlawful action. He had demonstrated and had exercised power outside the limits of the authority of his office and yet has never been held to account. I therefore urge you or the CHR to look into this.

Nevertheless, we appreciate your humility for taking responsibility and for also acknowledging that: “I blame only myself for being clumsy and inadvertently conveying the wrong message”. The AHRC remains open for any further dialogue with you and with the Commission on Human Rights (CHR).

Yours sincerely,

Basil Fernando
Policy and Programme Development
Asian Human Rights Commission (AHRC)


Ms. Loretta Ann Rosales, Commission on Human Rights, Diliman, Quezon City, PHILIPPINES


Lunzuran, Zamboanga City 7000

06 September 2010

Canton Road, Mongkok, Kowloon
Hong Kong, China

Dear Sir/Madam:

This has reference to page 241 of “The State of Human Rights in Ten Asian Nations – 2009”, as published by the Asian Human Rights Commission on July 2010, wherein I was mentioned as follows:

“Lawyer Faith delos Reyes Kong, a senior legal officer of CHR in Region 9, was quoted to have said: “it is the local chief executive’s right to declare a state of emergency, should the official see the need to uphold law and order for the benefit of the general public”. The CHR’s legal opinion also contradicts the opinion laid down by Justice Secretary Gonzalez and the ICCPR’s provisions in relation to the declaration of a state of emergency.”

The first paragraph of the same page also states:

xxx Despite irregularities and questions of legality concerning this emergency, the Governor has enjoyed a certain level of approval and tolerance, even from the Department of Justice (DoJ) and the regional Commission on Human Rights, as seen by their failure to condemn his actions.

I was dismayed by these statements and looked up the reference given by your publication. From the website of ABS-CBN News, I found the following:

Atty. Faith delos Reyes Kong, a senior legal officer of CHR in Region 9, said that although the court allows the conduct of checkpoints, “it does not give them the authority to intrude lengthily and indefinitely into the privacy of civilians.”

Kong added that warrantless arrests are also permitted under such a situation.

She clarified, however, that under the Local Government Code, it is the local chief executive’s right to declare a state of emergency, should the official see the need to uphold law and order for the benefit of the general public.

Considering that your Commission is highly respected and your publications regarded with esteem, I am alarmed by the statements attributed to me and, more importantly, the CHR. I therefore pray that I be given a chance to express myself, as the CHR suffers from any carelessness that I may have made.

The article of ABS-CBN states that I made a reference to the Local Government Code in saying “it is the local chief executive’s right to declare a state of emergency”. I can only surmise that what was meant was the power to “carry out emergency measures”. I shall not quote the specific provision of the Local Government Code as you already mentioned it in your book.

I did not intend to make a statement saying that the Governor’s proclamation of a State of Emergency was valid; much less that this was the position of our Regional Office.

CHR Region 9 did not approve of the proclamation allowing blanket searches, seizures and arrests.

At the time of the controversy, I recall that one immediate concern were reports that law enforcers were conducting checkpoints and searches because there was a “state of emergency”. Thus, I was ordered by our then Regional Director, now CHR Commissioner Jose Manuel S. Mamauag, to prepare a statement to inform law enforcers that the proclamation of the state of emergency did not suspend the protection in the Bill of Rights of our Constitution against unreasonable arrests, searches and seizures.

Hence, I was told to focus on this particularly issue and specifically address number 3 of the Proclamation, which provided as follows:

3. The conduct of General Search and Seizure including arrests in the pursuit of the kidnappers and their supporters.

On 08 April 2009, our Regional Office issued an advisory entitled “On the Conduct of General Searches, Seizures and Arrests as Contained in the Declaration of State of Emergency in the Province of Sulu”. This was disseminated to the local media and law enforcers.

CHR 9 honors and protects the rights declared in the Universal Declaration of Human Rights and I introduced the Legal Advisory by quoting Articles 3, 9 and 12 of the same.

I admit I wrote that our Office acknowledges the authority of the Governor “to carry out emergency measures and to call upon appropriate national law enforcement agencies when required by public interest in times of disasters and calamities”, which powers are stated in the Local Government Code.

This statement, however, was followed by four pages of arguments stating that arrests and searches without warrants are generally illegal, enumerating the exceptions, and asking for strict application of the exceptions to the rule.

The news article states that, “Kong added that warrantless arrests are also permitted under such a situation.” Our Regional Office has always maintained that warrantless arrests are merely exceptions to the rule. In fact, this was the point that we wanted to get across to law enforcers in the Legal Advisory, wherein I wrote:

Not having been issued by a judge after finding of probable cause and with particular description of the place to be searched and person or things to be seized, the Proclamation of the Honorable Governor is not akin to a search warrant or warrant of arrest that would make searches and arrests reasonable.

Thus, personnel of the Philippine National Police, the Armed Forces of the Philippines and civilian emergency force cannot rely solely and exclusively on the Proclamation in conducting searches, seizures and arrests. Albeit the state of emergency, houses, papers and effects may be searched and people apprehended only within the parameters of the exceptions stated in law and jurisprudence.

I cannot presume to know all measures that Commissioner Mamauag, as then Regional Director, took at the time of the proclamation. I, however, distinctly recall that Investigators were sent to Sulu and were deprived from observing the most solemn of Christian traditions, the Holy Week, with their families. I found an online article on this site: It pains me that the leadership of my superior officers, especially of Commissioner Mamauag, and the dedication of my fellow employees have been obliterated by my ineptitude.

Philippine Senator Jose Diokno put it beautifully when he said, “No cause is more worthy than the cause of human rights.” I did not mind when I was picked-upon in a local newspaper after I wrote an article defending human rights advocacy; to now appear indifferent to human rights violations gives me physical ache.

The news article referred to in your book is dated 02 April 2009. Although our Advisory is dated 08 April 2009, the principles therein were set upon us from the start of the proclamation. Until I read your book, I was not aware of the contents of the ABS-CBN publication. I do not wish to shift blame to the media; they have been helpful in our campaign in promoting and protecting human rights. I blame only myself for being clumsy and inadvertently conveying the wrong message. I only wish I had known of this earlier; I could have requested to be allowed to rectify this mistake and discuss the term “State of Emergency” itself. When I wrote the Advisory, the order given to me was to send a simple and undiluted statement to law enforcers: the proclamation did not give them any added authority to conduct arrests, searches or seizures.

Thank you very much for reading this letter and for teaching me a very valuable and unforgettable lesson. It causes me no end of shame and anguish that I was not careful and emphatic enough in my choice of words, to the extent that it gave your Commission basis to conclude that CHR 9 was complacent at the time of the proclamation. It is fortunate that I am going through this agony two years into my work in human rights: I shall need the decades of hard work ahead to redeem myself.

Very sincerely yours,

(Signed with electronic signature)
(I write this out of my own personal initiative, however, for your reference, my official position is: Attorney IV Commission on Human Rights of the Philippines Regional Office 9)

Document Type : Open Letter
Document ID : AHRC-OLT-010-2010
Countries : Philippines,
Issues : Rule of law, State of emergency & martial law,