BLIGHTED: PHILIPPINE JURISPRUDENCE AND STATE

REPRESSION - THE “MORONG 43”

Gill H. Boehringer
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 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
5 weeks of detention in an out of the way military camp, subject 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 offences.

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 5 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.

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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

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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

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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 goups 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

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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 pretence 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

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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

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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.

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(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 Constituional 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.

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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.