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. (Bulatlat.com)
