Tuesday, October 26, 2010

Aquino III on the Morong 43 vis-a-vis Trillanes, et al. Amnesty: Consistently Inconsistent

by Prof. Ted Te

...would be the kindest way to describe how the President has treated the case of the soldiers who staged uprisings against Gloria Arroyo (cf. Oakwood, Pensinsula, Marine stand-off) and the 43 health workers now known as the Morong 43.

The one thing that the President has repeated over and over again is his insistence that legal cases that will be pursued by his administration should be those that are provable by evidence. That was in fact the raison d'etre for the Truth Commission and also the principal reason for the review of the IIRC report (at least, that is the official pronouncement).  It is an admirable principle.  One should not waste the time and effort--valuable resources both--of the State, through its prosecutors to pursue obviously frivolous and unprovable cases.

Early on, the President had already made plain his thinking behind the case against Senator Trillanes IV and his co-accused in the Oakwood (and Peninsula) cases.  In one of his earliest public pronouncements, he thought out loud that perhaps the detained Senator was the victim of a raw deal and effectively ordered the Justice Secretary (the same one whose panel's report was reviewed by a second panel of two lawyers) to review the case.  Thus, it wasn't surprising that the President would later on issue Proclamation 50 granting an amnesty (subject to Congress' concurrence) for all those involved in the three uprisings.  This, of course, raised a firestorm of controversy as the promulgation of the Oakwood case had been set on October 28 and prompted some to say that perhaps the timing was off and that perhaps the President was interfering with the judiciary's exercise of power.  Despite all these, the President remained consistent--he did not budge, nor did he flinch.  Proclamation 50 remained.

At about the same time, the supporters of the Morong 43 had asked the President for a review of the charges filed against them.  To which, the President obliged.  Surprisingly, however, despite a statement (which was a correct appreciation of the law)  about the apparent inadmissiblity of the evidence seized as a result of the invalid search warrant, the President chose to leave it to the court to decide.  And he has also remained consistent about this--so far. See http://www.gmanews.tv/story/203430/aquino-morong-43-release-up-to-courts

I do not understand why the President's lawyers--even the Secretary of Justice--have not advised him that the Morong 43 case is the easier case to let go.

1.  They are charged with violating a Marcos-era special law on illegal possession of firearms, ammunition and explosives. Even the President acknowledges that the search that led to the seizure of the supposed explosives and firearms is suspect and that eventually the evidence may be declared inadmissible.   Thus, eventually, the case would be for naught.  Clearly, the President's first principle in pursuing legal cases is served by withdrawing from these cases because time and effort would be wasted.

2.  The main reason for the raid was the belief that the health workers were members of the NPA.  Again, the President's lawyers ought to know that being a member of the NPA is no longer a crime.  The Anti-Subversion Law (RA 1700) was repealed during the presidency of a former General, Fidel V. Ramos.  Thus, suspicion, belief or even confirmation that they were NPA would be totally irrelevant and cannot form the basis for probable cause for a search or an arrest.  It is elementary that probable cause would consist of antecedent facts and circumstances that would lead an ordinarily prudent person (not necessarily a lawyer) to believe that a crime has been committed and that the persons to be arrested have committed it or that the place to be searched would yield fruits or effects or proceeds of the crime.  Being an NPA no longer is a crime and thus cannot form the basis of probable cause in the first place.  As an aside, the military's spokesman even came up with a really creative and novel twist to his conclusion that the Morong 43 were communist rebels;  see The Company You Keep http://www.facebook.com/note.php?note_id=307924173971.

3. The continued detention of the 43, despite the patent illegality of the original search, is a result of an odious Marcos-era Supreme Court pronouncement that Habeas Corpus, the great writ of liberty, is moot and academic and does not lie to question an inceptively illegal detention when a criminal charge has already been filed.  This is the so-called Ilagan doctrine, from Ilagan v. Ponce Enrile (Laurente Ilagan was a FLAG lawyer who was arrested, together with two other lawyers; when they questioned their illegal arrest before the SC asking for Habeas Corpus, the Court ruled that because charges had already been filed, habeas corpus was moot; this would lead to many more decisions which reiterated this principle, thus making the ruling in Martial Law doctrinal even post-Martial law; I wrote about this in Larry, Tony, Marcos http://www.facebook.com/note.php?note_id=358231423971).  The government's pursuit of the Morong 43 case further legitimates and perpetuates this odious ruling.

4.  Assuming, and only for the sake of making a last argument, that Col Detoyato (see number 2, The Company You Keep) is correct and that they are, after all, communist rebels, then wouldn't this fall squarely under the reasons for the Magdalo amnesty?  That it would further peace and reconciliation and that there is a public clamor?

Does the President have any means to end the prosecution of the Morong 43?  Yes.

He may order the Secretary of Justice to cause the withdrawal of charges against the 43, effectively nolle prosequi.  Under Crespo v. Mogul (and other cases), this motion to withdraw is subject to the court's approval but I do not seriously doubt that any court would continue prosecuting this case if the message sent is clear--the government no longer wants to pursue this case.

There is no reason for the President to be inconsistent here.  There are more than enough reasons for him to be consistent.

 (Reprinted with permission by Prof. Ted Ted)



Te, Ted. Consistently Inconsistent. 18 Oct. 2010.

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