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.
