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.
