Tuesday, March 16, 2010

Appeals Court Decision on Morong 43 Sets Dangerous Precedent

By Benjie Oliveros
Analysis
Bulatlat.com


MANILA — The search warrant was highly irregular: it did not contain the correct name of the owner of the house and the list of items to be searched. There were clear violations of the detainees’ rights. They were handcuffed and blindfolded for days and denied their right to counsel and visits. Before they were allowed visits, the military brought in a fiscal who conducted inquest proceedings even if the 43 health workers were not represented by their counsels.

Worse, one of the detainees Dr. Alex Montes, 62, recounted, at the Court of Appeals hearing, the torture he endured while being interrogated. Another detainee Jane Balleta was sexually harassed, and chances are other women detainees may have suffered the same fate. Even the government’s Commission on Human Rights has declared that the rights of the 43 health workers were clearly violated.

It was obvious that the Armed Forces of the Philippines (AFP) was lying right from the start. The military initially declared that the 43 health workers were conducting a bomb-making training; later it changed its storyline claiming that the 43 belonged to the health bureau of the Communist Party of the Philippines-New People’s Army, likening them to the “Department of Health” of the communists. But eventually, it filed cases of illegal possession of explosives and illegal possession of firearms against the 43 health workers before the Morong court, perhaps because it is easier to manufacture evidences for these cases than in a rebellion case.

And yet, despite the glaring violations of the rights of the 43 health workers, the Court of Appeals (CA) junked the petition for a writ of habeas corpus. Why?

A rich man represented by a good lawyer could have been ordered freed on a mere technicality, such as an irregularity in the search or arrest warrants or a violation of the right to counsel. Even Andal Ampatuan Jr., the prime suspect in the November 23 Maguindanao massacre that claimed the lives of 57 people is having a better day in court.

However, this case goes way beyond the unequal dispensation of justice. It is already about a denial of justice. Worse, it is about the impunity in rights violations. The CA decision sets a dangerous precedent at a time when impunity is prevailing. In fact, the decision fans the flames of this impunity. It sends the signal that the military can run roughshod on the rights of people, illegally arrest, torture, and detain them, and justify it later on by filing a case in court.

Romeo Capulong, counsel for the 43, has brilliantly pointed out that the Appeals Court, in explaining its decision, has effectively revived the Ilagan vs. Enrile doctrine, which was issued under martial law.

“Once a person is duly charged in court, he may no longer question his detention through a petition for issuance of a writ of habeas corpus. The privilege of the writ of habeas corpus shall not be allowed after the party sought to be released had been charged before any court,” the CA wrote in its 20-page decision.

The Ilagan vs. Enrile Supreme Court decision was issued October 21,1985 on the writ of habeas corpus petition filed by the Integrated Bar of the Philippines, Free Legal Assistance Group, and the Movement of Attorneys for Brotherhood, Integrity and Nationalism in behalf of three Mindanao-based human rights lawyers Laurente Ilagan, Marcos Resonar, and Antonio Arellano. The three lawyers were arrested one after the other on the basis of a Mission Order issued by the Ministry of National Defense on May 10, 1985. Named respondents were then Defense Minister Juan Ponce Enrile, Acting AFP Chief of Staff lt. Gen. Fidel V. Ramos, and Brig. Gen. Dionisio Tan-Gatue, Philippine Constabulary-Integrated National Police (PC-INP) Regional Commander for Region XI based in Davao City.

During the hearing regarding the petition on May 23, 1985, the military tried to justify the arrests by citing that the three lawyers were arrested on the basis of a Preventive Detention Action and that the writ was suspended, then expounded on a supposed state of rebellion in Davao City implying that the three were involved in subversive activities. However, the Supreme Court ordered the release of the detained lawyers on that same day due to lack of evidence linking the detained lawyers to the alleged subversive activities being cited by the government to justify their arrest and detention. The PC-INP refused to release the detained lawyers and filed a rebellion case against the three before the Regional Trial Court of Davao City on May 27, 1985, which issued a warrant of arrest. The Supreme Court subsequently dismissed the petition for habeas corpus for being moot and academic citing the filing of the rebellion case against the three lawyers.

The Ilagan vs. Enrile jurisprudence was clearly in consonance with the prevailing martial rule then. It is a case of arrest now, justify later. But it has no place now that the Filipino people are supposedly enjoying their formal democratic rights.

The country is in a confused state nowadays. The May 2010 elections is fast approaching, supposedly indicating that we are no longer under martial law. But impunity in extrajudicial killings, enforced disappearances, and -with the CA decision- torture and arbitrary arrest and detention is prevailing resulting in what Karapatan calls as “undeclared martial law”. Likewise, the freedom of the press is hampered by the impunity in the killing of journalists.

If a failure of elections do occur in May – as most people fear – the picture would be complete. Pres. Gloria Macapagal-Arroyo would succeed in bringing us back to the dark years of martial rule. If not, no matter who wins in the next presidential elections, the Filipino people’s rights would still hang in the balance, as the same jurisprudences, repressive decrees, laws and polices, which were issued during the Marcos dictatorship are being used time and again to curtail the people’s rights and to suppress the Filipino people’s struggle for genuine freedom and democracy. However, it is this same struggle that would end the impunity and reclaim, nay, push further our rights to a new and higher level: when the rule of majority will be realized, not only in form but in essence.

Related Stories:
CA ruling on Morong 43 case condemned

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