December 10, 2022

Suspended Bureau of Corrections Director General Gerard Bantag, the alleged mastermind in the killing of broadcaster Percy Lapid, was interviewed by several media outfits to refute the accusation hurled against him.
In the same interview, he denied being in hiding and asserted he will not surrender. For his refusal to surrender, he was severely criticized by the Department of Justice, saying such is a manifestation of guilt because it is tantamount to flight.
Accordingly, Bantag’s refusal to surrender is an indication of guilt.
Bantag is correct in refusing to surrender. In the first place, there is no need for him to do so because technically, he is not yet an accused. Only an accused may voluntarily surrender.
There is no legal obligation on the part of Bantag to submit himself to the jurisdiction of the law since there is yet no warrant of arrest issued against him.
At most, he is only a person of interest until the preliminary investigation to be conducted by the Prosecutor’s Office finds probable cause to indict him for murder. This is the reason why in the charge sheet presented by the DOJ, Bantag is referred to as the respondent and not the accused.
There is a whale of difference between the two. An accused is to be tried while a respondent is merely being investigated. An accused may be arrested but not a respondent.
The term respondent pertains to someone who may or may not participate in the investigation, while an accused must, at all times, participate lest judgment be taken against him.
A respondent is a free man whereas an accused is not. This is the reason why only the latter is required to surrender.
The investigation being conducted by the Prosecutor’s Office is an administrative proceeding. It is the initial step before a complaint is filed in court.
The only function of the investigating prosecutor is to establish the existence of a probable cause. He is not allowed, much more authorized, to issue a warrant of arrest. In the same light, the DOJ’s finding is merely evidentiary in weight. It is not the same as a warrant of arrest since a warrant of arrest is a judicial function which can only be issued by a judge.
As a matter of procedure, Bantag must undergo preliminary investigation in order to legally determine whether there is sufficient proof to hold him liable for trial. If, finally, the preliminary investigation is completed and probable cause is determined, a warrant arrest may be issued.
Until then, Bantag is a free man and has every right to refuse surrender, which may even be the wrong term since only a person against whom a warrant of arrest is issued may surrender.
The call by the Justice Secretary, therefore, that Bantag should give himself up if he is really innocent is a premature demand. It has no basis in fact and in law.
Of all people, the Justice Secretary should know this. There is a procedure that must be followed and to demand the General to surrender is a judicial short-cut unworthy of enforcement. The demand is only good for publicity. It is a part of trial by publicity which is unfair and uncalled for.
Neither is surrender justified under the rules of warrantless arrest.
Warrantless arrest only applies if a crime was committed in the presence or immediate presence of the arresting officer and he has personal knowledge that of its commission or the person to be arrested is a fugitive from justice or an escapee from detention. Bantag does not fall under any of the category.
If at all, the demand made by the DOJ for Bantag to surrender is making the agency look good in the eyes of the innocent and unsuspecting public.
However, in the eyes of the law, it is looking bad and inept.