Monday, April 12, 2010

Blighted: Philippine jurisprudence and State Repression – The Morong 43

By GILL BOEHRINGER
Bulatlat.com

Forty three health professionals and community health workers were illegally arrested February 6 in a dawn raid by a swarm of Philippine Army and Police personnel. Incredibly, the arrest was trumpeted as a huge triumph in the counter-insurgency program which the government of Gloria Macapagal Arroyo has been obsessively trying to complete by the end of her term, which follows the May General Elections. The 43 were labeled as communist rebels, members of the New People’s Army, which continues to frustrate all efforts to defeat it once and for all. In fact, the NPA has been racking up stunning victories in recent months as they continue their hit and run strikes at military and police targets across many provinces of the archipelago.

The plight of the 43 calls for an examination of the jurisprudence of repression in the Philippines. For after five weeks of detention in an out of the way military camp, being subjected to on-going interrogation, threats and inducements, torture and, for some, solitary confinement, the Court of Appeals rejected their case for release brought by the writ of habeas corpus. They continue to languish in detention. It is military detention, not even police detention as should be the case given that they are being held on criminal charges, not for political offenses.

The relevant facts are simple enough. At 6 am on the morning of the February 6 a joint raiding party of Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) entered property at Morong, Rizal Province belonging to Dr. Melicia Velmonte who is Chair of the Board of Directors of the Community Health Development Fund (COMMED). She is Professor Emeritus of the College of Medicine, University of the Philippines. The entry was not consented to. In fact she and others resisted the forced entry of the raiders who did not , initially, present their search warrant. Inside the compound, a noted Conference and Training Center, were 43 persons engaged in a week-long Community First Responders Training program, co-sponsored by two NGOs, COMMED and the Council for Health and Development (CHD). Amongst the 43 were 2 medical doctors, a registered nurse, 2 midwives, 2 health educators and 36 volunteer community health workers.

The AFP//NP had obtained a search warrant from the Regional Trial Court at Imus, Cavite Province, at least 100 kilometers away from Morong, which strongly suggests that they wanted a tame judge who would co-operate by not looking too closely at the request for a warrant, especially one which was unconstitutional on its face! The warrant was not specific as to the property to be searched (a fatal flaw in law); in addition the warrant was made out in the name of one Mario Condes, who neither lived at the Velmonte property nor was he there at the time, nor was he known to any of those present on the property. According to the story put out by the AFP/PNP, they had received information from a secret source indicating that Condes had been seen in public with firearms and constituted a danger to the public. There seems to have been a hint that Condes was an NPA, though precise details have not been forthcoming. It is clear that the search warrant was a fraud and was to be used as a cover for the raid on the Velmonte property.

During the raid the 43 were herded into one area while the raiders searched the rest of the compound. They claim to have discovered some weapons and some explosives. As a result, all 43 were arrested, bound and taken to Camp Capinpin in Rizal. For five days they were interrogated, some were placed in solitary confinement, some apparently tortured and harassed, threats were made to them and toward their family, and forms of inducement as well as intimidation were applied. They were told to confess to membership in the New People’s Army. Five of the 43 were separated from the others and apparently worked over physically and psychologically until they confessed to being NPAs. They have since told their relatives that they were coerced into making these false confessions.

In violation of their legal rights, none of the 43 were informed of the charges they were facing until they were charged on the 11th February, five days after their detention. Worse, they were denied access to legal counsel, a violation of their Constitutional rights. Not only were they refused legal counsel generally, they were illegally denied legal representation at the State Prosecutor’s Inquest. Further, the Inquest was entirely perfunctory, another illegality. And that failure to actually inquire into the manner by which the 43 had been detained and presented for an Inquest was disregarded by the reviewing Senior State Prosecutor who simply approved of the recommendation to lay charges against the 43. All of this was in violation of their constitutional rights under the post-Marcos 1987 Constitution.

A petition for a writ of habeas corpus was filed February 9 by lawyers retained by friends and relatives of the 43. The Supreme Court directed that the 43 be brought for a hearing at the Court of Appeals on 12 February. But the AFP claimed it could not comply due to security concerns, suggesting that the NPA would try to free the detainees. They also claimed they needed more time to prepare for the hearing. On the day, they refused to present the 43. However, charges were laid with the Regional Trial Court on February 11 as part of a deliberate legal strategy to defeat the detainees case which was based on the many serious violations of their Constitutional and legislative rights,. The RTC then issued a committal order. The charges were: 1) illegal possession of firearms and explosives; 2) violation of Commission on Elections (Comelec) ban on firearms during election period. It was these charges which became the center of the judicial disagreement in the Court of Appeals.

The Court of Appeals rebuked the AFP and directed them to present the detained persons on the 15th of February. This order was complied with, and the case was heard . But the 3 Justice bench could not come to the required unanimous decision, dividing 2-1 in favor of the detainees. Two more Justices were appointed to take part in a re-hearing of the matter. In view of the decision which went against the detainees, it might be thought that this was a clear case of Court-stacking. The Justices finally handed down their decision, on March 9.One might be forgiven for thinking this was an incredible delay-3 weeks- in which the ill-treatment and violation of rights continued. By a vote now of 3-2, the majority rejected the detainees petition, leaving them to continue to languish in the hands of the military.

The majority Justices relied on a precedent from martial law days, Ilagan vs. Enrile, to apply the doctrine of “curative informations” which allowed them to ignore the illegalities committed in the search, arrest and subsequent proceedings, as they were said to have been “cured” by the filing of criminal charges against the 43. Thus they found in favor of the AFP/PNP, and dismissed the comprehensive case for release made on behalf of the 43 by lawyers of the National Union of People’s Lawyers and the Public Interest Law Center, led by a leading Filipino human rights lawyer, Attorney Romeo Capulong.

Put simply, the majority Justices argued that the legal precedents favored the military, and that although the search and arrests could be considered illegal, this illegality was “cured” when criminal Informations, or charges, were filed in the Regional Trial Court on the basis of the recommendations from the State Prosecutors. It was their position that the law was clear: habeas corpus no longer applied; that the question of the rights of the charged persons could now be dealt with in the courts, and that the issue of their guilt or innocence could be tested in open court.

The majority decision was very narrow, legalistic and ultimately unprincipled. They were effectively saying: we deny there is any higher Constitutional principle of security from arbitrary arrest and wrongful search and seizure. This was a classic decision of a pro-State court giving virtual carte blanche to the repressive agencies of the State. It was a classic decision of a State court supporting an arbitrary and authoritarian State.

It is such decisions that Marxists have historically pointed to as indicating the repressive role of the judiciary, and the legal system generally, acting on behalf of the ruling class. Nevertheless, the struggle will continue, not just in the extra-legal resistance being mounted nationally and internationally, but within the institutions of the State. There will be further rounds of legal argument as the case is appealed to the Supreme Court of the Philippines, and also in the extra-judicial constitutionally mandated Commission on Human Rights.

But just as we learned from BLIGHTED, leading criminal lawyer Frank Chavez’ recently published expose of the pervasive corruption of the Filipino legal system, the rule of law can easily be dispensed with should wealth and/or power demand it. As has been said in the past “In the Philippines the law is only a suggestion”. Thus the Court of Appeals majority ignored the basic human rights of the 43 in favor of the forces of the State and their counter-insurgency program, OPLAN BANTAY LAYA (Operation Freedom Watch).

Law as a Site of Struggle – Sword and Shield

Of course progressives around the globe, not least in the Philippines, understand that the law is tilted in favor of the powerful elite; nevertheless, as was clear in the work of Marx and Engels (who had a very good understanding of the “politics” of law) the law is a site of struggle; it is important to use the legal system as a shield for those the State tries to repress, and even occasionally as a sword against State agencies which have failed, or refused, to carry out their duties. The writ of habeas corpus-now supplemented by the recent innovations of Chief Justice Puno, the writ of amparo and the writ of habeas data- has sometimes proved such a weapon. But circumstances differ, and in the Morong 43 case, there was a set of circumstances in which the release of the wrongfully detained 43 was always highly unlikely.

What are those circumstances which provide a context in which the case can be better understood?

First, of course, is the “requirement” by the detested President, Gloria Macapagal Arroyo, that the armed forces totally eliminate the threat posed by the New People’s Army by the end of her term, June 30, 2010. This target is clearly not going to be reached as the campaign is meeting reversal after reversal. In a number of provinces the NPA is attacking with larger units than previously, inflicting continuing casualties, especially on forces of the AFP, but also units of the PNP.

Second, there must be continuing “successes” against the NPA to de-legitimate their struggle, and to signal that the AFP/PNP are still effective instruments of repression. This is especially true as the military campaigns in the southern provinces of Mindanao and Sulu have been less than impressive. The MILF and its “lost commands”are continuing to fight a low-key insurgency in the South, while the Abu Sayyaf continues with its bandit operations in several southern provinces. Without some “successes” it is not hard to imagine that the weak military capacity of the GMA government would become embarrassingly exposed. One result of that would be a very loud clamor for inquiries into the corruption in the military establishment which has so weakened the morale and fighting ability of the soldiers on the ground.

Third, by the “capture” and display of alleged NPA members-and the Morong 43 are only one of several groups recently “captured” across the country and labeled as ‘communist rebels”- the AFP/PNP are able to disrupt the work of community groups which represent a very significant pool of motivated and trained non-elites who have realized that the State has not and will not provide for the welfare of the masses, therefore community action is required. This is a part of the historic mission of the Filipino State-crush those groups which attempt to work with and for the people, and who by their simple humanity represent a threat to the bureaucratic capitalist state and the warlords who support it. And there is a long history of attacks on the community health sector. Organization on behalf of the people is not seen by the forces of reaction as a positive development, rather it threatens the very core of the system. Despite the use of fear induced by threats, harassment and death; hunger; ill-health; and other methods of controlling the unorganized masa, the always present possibility of the people becoming organized-and astutely led- is a constant nightmare for those who wish to rule by force and feudal custom.

Fourth, as the country moves to the May elections, the “dark forces” of the politico-military complex (remember the 6 dozen or more military men surrounding GMA) are laying a foundation for “necessary” military interventions against progressive groups who are trying to work within the political framework under the Constitution. For almost a decade the Left has been increasing its presence on the political map, and the national and international stature it has gained has enabled these progressive forces to influence opinion about the present government which continues to be an embarrassment. Not only that, it represents the major barrier to continuing repression and super-heated exploitation of peasants and workers. The ruling elite would be desperate to prevent the Left from being in a position to increase its political influence with the newly elected government, especially in regard to the decade- long campaign of murder-with-impunity of trade union leaders and other social activists who are trying to democratize the country and improve the position of the masa.

Fifth, by “revealing” the subterfuge and duplicity of medical professionals and “pretend” community health workers -who according to the AFP were initially said to be “bombmakers” and NPA cadres in training, then the “medical bureau” of the NPA- fear and suspicion is instilled in the community, a growing political cynicism is given further impetus. A democratic country cannot exist when citizens distrust each other and fear or distrust the institutions of the State as well as non-State organizations. The lack of substantive democracy in the Philippines-despite the formal trappins of a democracy- suits the rulers. Their capacity to salt away millions and rule in their own interests is only possible because the people cannot unite to overthrow the structures and ideology of capitalist individualism and its attendant greed.

While it is impossible to know how these, and other, contextual matters are filtered into the conscious, and unconscious, consideration of judicial matters such as the case of the Morong 43, I would argue that they are not completely ignored by the Justices in their meditations on the law, the facts and the consequences of their decisions. Surely, in different degrees and with different understandings of the importance of such factors, Justices of Appeal are well aware of the context in which they live, as we all are. Given their elite education and years of training in an elite profession-and in most cases their elite background, or aspirations- it would be improbable that their decision-making would be uninfluenced by such matters.

Understanding the Jurisprudence of Repression

Let us look briefly at the Court of Appeals decision. It is important to remember that judges make choices. They are not tightly bound by particular precedents unless they wish to be. That point is often lost on non-lawyers. At the level of the Court of Appeals, the Justices have room to maneuver. They know that every case is different, no matter how similar they seem at a general level. There are always factual differences, and differences in context (eg time or place) which can be used to “distinguish” a precedent so the judge does not have to follow a case from the past. And of course, all laws are not the same-there are some which are more fundamental than others, some principles are basic, others are essentially pragmatic. In the Morong 43 case we can see illustrations of these propositions.

The majority admitted that the arrest and detention of the 43 was illegal from the beginning. The warrant used as a pretense to enter, without consent, the private property of Dr Velmonte was clearly constitutionally invalid for the purpose of the raid that morning. It was a general warrant, lacking in the required specificity regarding the property to be searched. Nor was the person named as the person to be arrested present at the property, or even known to anyone at the property searched. Thus on general constitutional principles the raid was invalid, any evidence discovered in the raid was “fruit of the poisoned tree” and could not be used as evidence against the 43 . (This is putting aside the fact that the evidence of weapons and bomb making equipment was surely planted).

Instead of simply doing the obvious and upholding the principles well established in Philippine jurisprudence-no general warrants, no use of illegally obtained evidence- which would have led to the release of the 43, three members of the court chose to go in another direction. They looked back to Martial Law days under the dictator Marcos, and rescued the State’s case against the 43 by a neat little judicial sleight-of-hand. According to the “precedents” which they chose to be bound by, in particular the case of Ilagan v. Enrile, there was a way to “cure” the illegality involved in the raid. The 43 had been charged in the courts, and therefore the issues of guilt and innocence-and ultimately whether they should be held or released-would be decided in their trial! So the majority refused to allow the release of the 43, rejecting the detainees arguments on the writ of habeas corpus. Since the matter had been “cured”, the habeas corpus proceeding was no longer the place for their status to be determined. For these three Justices, illegality no longer matters once there are criminal charges filed (days later of course, during which time the detainees suffered grievous violations of their human rights as “guaranteed” in the Constitution and also in Imternational Law.)

As I commented above, the Ilagan case could easily have been gotten around. It need not apply. The reason it applied was because the 3 Justices wished to have it apply. How could a Justice escape from the shadow of Ilagan? Easy. First, it was a martial law era case. That would be enough for the Justices to say: We will not use it. Circumstances no longer support the use of such a restrictive doctrine. They could also add that precedents from that particular court should be looked at as tainted, or unsafe to apply. And of course, the facts of Ilagan could be said to be substantially different, therefore it was not appropriate to follow that case. (Interestingly Ilagan was a well known oppositionist and human rights lawyer. Ironic.) Alternatively, the court could just say that the Ilagan case represented a view that was not acceptable in a democracy today, and that a competing principle had to take priority: the rights of the citizen under the Constitution include the right to be free from illegal arrest and search, especially in the security of their abode. These are bedrock principles, recognized not only in Filipino jurisprudence but also widely in the international community. Finally, a Justice could even refer to the current global situation: first, a simple statement that the world has moved on and we do not allow illegalities to be “cured” as that subverts the rule of law; or another line of attack, especially for a conservative justice, would be to say that to win in the global competition between ideologies, Filipino jurisprudence should extend the protection of the law ever more widely rather than to restrict human rights. ( An alternative version sometimes heard over the years is that “We must ensure that in fighting X we do not lose that which we value and which distinguishes us from X.” There are many other ways of putting the same point.)

The Legal Struggle Joined: Dissenters’ View

In two impressive dissenting opinions the minority Justices clearly laid out the grounds for demolishing the majority view. They both believed the case was an outrage and that the detainees should be released because of the enormity of the illegal actions of the AFP, PNP, the State prosecutors and the RTC Judge who granted the search warrant.

Justice F. P. Acosta, significantly perhaps the youngest and most junior of the judges, wrote a powerful and persuasive opinion, though only one of the other 4 judges were sufficiently impressed to join him in deciding against the prosecution. Nevertheless, his argument and use of legal material is exemplary, and thereby makes it difficult for the Supreme Court to reject the appeal from the Court’s decision. Of course all of those Supreme Court Justices who will hear the appeal were appointed by President Arroyo and thus far have not disappointed her in their previous decisions. This case will definitely be a test of the independence, and integrity, of the Philippine judiciary at its highest level.

Acosta, J. took the basic position that “this Court should always stand as a guarantor of the basic constitutional and human rights and it has the bounden duty to see to it that these rights are respected and enforced.” A clear statement of principle. Upon that foundation he was able to build the case for judicial supervision of all acts of State agents regardless of any case law to the contrary. First, he quoted from his own chosen precedents e g a 1994 decision of the Supreme Court, Allado vs Diokno: “The Constitution, particularly the Bill of Rights, defines the limits beyond which lie unsanctioned state actions. But on occasion, for one reason or another, the State transcends this parameter. In consequence, individual liberty unnecessarily suffers. The case before us, if uncurbed, can be illustrative of a dismal trend. Needless injury of the sort inflicted by government agents is not reflective of responsible government.”

From this Acosta went straight to the point: “This Court, sitting as a Habeas Corpus court, has the power to inquire into the legality of every aspect of the detention, despite the subsequent filing of the several informations against the 43 detainees…this Court is duty-bound not to take on its face the fact that informations have been filed against the detainees, and consider them as a cure to whatever violations the law enforcers may have committed against the basic constitutional rights of the detainees.”

Having set out the principled position challenging the majority decision, Acosta then turned his guns on the basis for that decision: “It becomes apparent that the doctrine in Ilagan vs. Enrile, which notably was decided during the Martial Law regime, has been used as a shield by law enforcers to escape from the court’s claws of judicial inquiry. And it is precisely pursuant to that doctrine that the court’s hands are tied thereby preventing Us to pass judgment on the very reason why the Petitioners instituted the instant case.”

Now he piles on added weight and, in effect, makes the case that the basic premise of the majority decision is an unworthy and anti-Constitutional element : “To quote the words of Justice Sarmiento in his dissenting opinion in Umil vs. Ramos ‘In my considered opinion, Ilagan vs. Enrile does not rightfully belong in the volumes of Philippine jurisprudence.’ ”

After setting out his position and undermining the very basis for the majority decision, it was simply a mopping up operation, though deftly done. Referencing the Constitution, Acosta made it clear that the search warrant was not valid because it lacked the required specificity. Since that is so, he rightly points out that it was as if there was no search, thus the items seized-being the “fruit of the poisonous tree”- could not be used in any judicial proceeding against the detainees.

He further showed that the arrests of the 43 were also invalid. There was no arrest warrant, and there were no grounds for an arrest without warrant. The latter because there was no crime being committed, or recently committed, by any of the 43. ( Even if they were communist NPAs, that is not by itself a crime). And the firearms and explosives were not in their possession when found in and under beds. (It seems they were planted during the search, which was carried out while all people in the group were held outside the buildings they had been dragged out of.)

The main safeguard against arbitrary prosecution of detained persons is a thorough Preliminary Investigation (or Inquest) by a Prosecutor supposedly independent of the arresting authority. It is their task to test the case against the accused and to determine whether it should proceed to trial. This is the Constitutional position in the Philippines. But in this instance, the Prosecutor (and his Senior Supervisor) simply fell into line with those authorities and gave them the thumbs up on the processes of the detention , and the allegations they filed in support of criminal charges. With the recommendation of the State Prosecutor that charges be laid and that the Regional Trial Court take jurisdiction over the mandated trial, the State was then in a position to argue that the Ilagan vs. Enrile concept of “curative information” could apply. With that, the fundamental illegalities of the State agents, and the serious violations of the rights of the 43, would be wiped from the slate. There is a ‘cure” for everything if that gets the State and its agents off the hook.

Again referencing the Constitution, as well as Republic legislation, Acosta was scathing about the Inquest which was held to determine what charges-if any-should be filed against the 43. Despite a clear Constitutional requirement that accused persons have a right in all criminal proceedings to be represented by legal counsel, and the elaboration of that right through the legislative requirement that “Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel”, the detainees here were refused legal counsel throughout the 5 days of their detention, including the Inquest which was, in fact, entirely perfunctory. There was no investigation whatsoever, simply a Roll Call and the Inquest was complete! The Justice commented on the nature of an Inquest that “it is subject to the requirements of both substantive and procedural due process…it goes to the very heart of the Bill of Rights provisions of the Constitution. In effect, to deny an accused of any of his rights during the conduct of an inquest proceedings would be to deprive him of his right of due process, thereby invalidating the entire proceedings. The subsequent filing of the Information based on a defective proceedings would just put at naught the most cherished right in all civilized nations. We might as well relegate the right to liberty from its prime position among the protected rights in our fundamental law to just some obscure crevice not worth revisiting. Any action on Our part upholding the detention bodes ill for this Court and the entire nation. It is a desertion of our most solemn duty as the guardian of civil liberties, instead of continuously bearing, mighty and proud, the torch of freedom to illuminate the nooks and crannies of our democratic country.”

The Justice was also scandalized that the military had refused to bring the 43 before the Court as ordered, on the 12th of February. The reason for this refusal was clearly not as reported to the court that there were practical difficulties and security concerns. It may have been, as some media commentators have suggested, to allow more time for signs of torture to disappear or at least recede. It could also be that the AFP/PNP were making a statement-they are not going to simply lie down and allow the courts to order them around. (This view is strengthened, tangentially, by their refusal to obey an order from the Commission on Human Rights to attend an open Inquiry into their behavior, scheduled for March 18.) It is also possible that they wanted to make sure they would have the tame Inquest and the laying of charges completed so that when the writ of Habeas Corpus was dealt with, the “curative Information” doctrine could then apply. But Acosta saw through their unconscionable scheme, stating that the invalid Inquest meant that the Informations laid and the correlative order by the RTC committing the 43 to trial were also invalid. Thus there could not be a “cure”, even if that concept was still a part of Philippine jurisprudence. Therefore, in his view, the detainees should be released.

Mr Justice N. B. Pizarro also dissented from the majority decision. As he stated at the beginning of his opinion, “The issues are of paramount and transcendental importance, involving as they do some of the most important rights of the Filipino in the line up of freedoms, sacrosanctly embodied in our 1987 Constitution”. Thus like Acosta, J. he would rely on the fundamental principles of human rights found in the basic law, the Philippine Constitution. It trumps such context-bound precedents as the majority had relied on, in particular the Martial Law era case, Ilagan vs. Enrile.

While much of this judgment parallels Acosta’s reasoning and the highly critical tone and language applied to the State agents, military and prosecution, Pizarro adds to the list of serious violations committed against the Constitutional rights of the detainees. Thus he notes that the “detention of the detainees is way beyond the thirty-six (36)-hour limit prescribed in Art. 125 of the Revised Penal Code.” Again, “ the informations were filed to remedy the unlawful search and arrest and render moot the issue in the instant petition for habeas corpus- a matter I cannot simply tolerate.” He then provides a homily upon the need to refuse to be beguiled by the possible short-term benefits of rights violations. Thus “Extra-constitutional measures have no place in our society. True, they may for a time be beneficial, yet the precedent is pernicious, for although established for good objects, they might, in time and as in this case, be availed for some improper purpose. Truly, therefore, there is a need to “slay the dragon at first sight” lest we be so enraptured by its paucity that we fail to recognize the embers of its fury”.

In summing up, the Justice took a swipe, impliedly, at the use of the old Martial Law precedent by the majority: “In the end, in a habeas corpus proceedings as the one at bench, an inquiry into the legality of the proceedings or processes is necessarily called for as it is crucial in safeguarding the constitutional rights of the herein detainees against an obvious and clear misjudgment. Regardless of ideology, creed, or label, the paramount consideration which admits of no inclination should be the respect for the majesty of the law, springing forth from our respect in the constitutionally-guaranteed rights of our people.”

A Progressive State Tribunal: The Commission on Human Rights

As a result of lessons learned from the Marcos Martial Law era about the weakness of the judiciary, including sadly the Supreme Court, in the face of a resolute authoritarian leader, the 1987 Constitution established a Commission on Human Rights. It is empowered “ to investigate, on its own or on complaint by any party, all forms of human rights violations involving civil and political rights…(and) provide appropriate legal measures for the protection of human rights of all persons within the Philippines…and provide for preventive measures and legalaid services to the underprivileged whose human rights have been violated or need protection”. The CHR has been involved in the Morong 43 case since the day after they were arrested. On February 7 a special investigation team went to Camp Capinpin to investigate the detention and the conditions in which the 43 were being held. They were refused entry at that time. However, the Chair of the CHR is a very determined lawyer, and there is a culture in the CHR , developed over several years, of not laying down before the military and the police. It has been an important part of the resistance to State violence and impunity for human rights abuse, including killings and disappearances. After pressure from the CHR, and media publicity, the military allowed them to carry out investigations in the Camp on three occasions. On the 25th of February they also were handed a complaint about treatment of the detainees in the Camp. This was filed by Attorney Capulong on behalf of the lawyers for the detainees and their relatives.

Following their investigations, and the information which was coming to them from various sources, the CHR scheduled public hearings into the matters arising from the February 6 raid, the detention and subsequent treatment of the 43. That hearing was scheduled for 18 March. But the military and police refused to attend, as did the Judge who granted the search warrant and the State prosecutors. The military and police said they would only attend if there was a court order, though the CHR Chair has responded that they cannot require a court order, and that they are likely to be cited for contempt of the Commission. This matter is still in dispute. The State prosecutors notified the Commission that they were relying on the sub judice rule, as well as invoking the right to remain silent. Again, these matters have not been resolved.

In the meantime the Chair of the Commission, Leila De Lima, has taken the opportunity to comment on the Court of Appeals decision, and the minority opinions in particular. In a guarded statement (because the case itself is sub judice, being appealed to the Supreme Court):

“The dissenting Justices Pizarro and Acosta do make a very compelling point about reviewing the jurisprudential development of ‘curative informations’ and re-examining our obeisance to the doctrine established by Ilagan vs. Enrile, which is a martial law-era decision…While it is true that courts must adhere to judicial precedents, especially for the purpose of maintaining uniformity of rulings, the same courts are capable of overturning themselves if the current circumstances dictate a change….Does our appreciation of human rights today differ significantly from our appreciation of the same back in 1985, the time of the Ilagan vs. Enrile case? I should hope so. But does it now require a change in our jurisprudence? At the very least, I believe it deserves more than a scant re-examination, and the CHR joins the public clamor for this re-examination of this still-prevalent practice of filing curative informations. We had seen this before, in the suspicious campaign to hold militants in detention, to languish in jail….To thoroughly examine all the conditions behind the detention of a person is within the prerogative of a court hearing a habeas corpus petition. But the prerogative becomes a duty as in the duty to animate the protective mantle enshrined in the Bill of Rights, especially where the coercive power of the state appears to be patently illegal-which, in this case is the search conducted on the strength of a warrant which fails in its validity. In this day and age, with our growing awareness and new appreciation for human rights against a backdrop of a decade marked by our adamant defiance to and rejection of crimes of impunity, is it still acceptable to “cure” human rights encroachments…. It is now up to the Judiciary to decide the course of jurisprudence on this matter. At best, we may be at the cusps of a future landmark decision that further galvanizes human rights protection. We should always aspire for the development of human rights thought. At worst, we remain where we are.”

The Continuing Struggle

The legal struggle continues. Part of that struggle is the extra-legal presence of the people on the streets. Let us do what we can to support the Morong 43. The organized force of the people in protest and opposition becomes a part of the “legal field” which will be considered by the courts despite their claims of judgement according to the law and only the law. The people help to make the law through their willingness to oppose tyranny.

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