Morong 43: An update

The 43 health workers arrested on February 6 in Morong, Rizal will continue to languish in jail as the Court of Appeals denied their petition for writ of habeas corpus.

Dubbed the "Morong 43," the health workers have been detained at Camp Capinpin, Tanay, Rizal. The military claimed the 43 are members of the New People’s Army (NPA), the armed wing of the Communist Party of the Philippines (CPP). Their relatives and colleagues in the medical profession said otherwise.

In its 20-page decision, the appellate court said that matters concerning the February 6 arrest should just be "threshed out" in the lower court, adding that their detention "can no longer be questioned" because criminal charges had already been filed.

“Once a person is duly charged in court, he may no longer question his detention through a petition for issuance of a writ of habeas corpus. The privilege of the writ of habeas corpus shall not be allowed after the party sought to be released had been charged before any court,” the CA said, citing the Ilagan vs. Enrile doctrine, a Supreme Court ruling in 1985 during the Marcos dictatorship. The high court then declared that a petition for writ of habeas corpus becomes moot and academic once an indictment is already filed in court and a warrant of arrest or an order of commitment is issued against the person detained.

The 43 were subjected to inquest by State Prosecutor Romeo Senson of the Department of Justice on February 7, a day after their arrest.

On February 12, a day after lawyers filed the petition for a writ of habeas corpus, the Morong RTC Branch 78 presided over by Judge Amorfina Cerrado-Cezar issued a commitment order directing the jail warden of Camp Capinpin to take custody of the health workers.

The 43 health workers have been charged before the Regional Trial Court of Morong, Rizal, with violations of Presidential Decree 1866, as amended by Republic Act 8294, and Republic Act 9516 which imposes penalties for illegal possession of grenades and other explosives, as well as Commission on Elections Resolution 8714 in relation to Article 261 (q) of the Election Code, which prohibits any person, unless authorized by the Comelec, to carry firearms outside his residence during the election period.

Dissenting opinion

Two justices who were members of the original panel, Normandie Pizarro and Francisco Acosta, both dissented from the majority decision.

Originally composed of three members led by Associate Justices Portia Alino-Hormachuelos, the CA panel hearing the case added two more members last week to be able to arrive at a unanimous decision. The additional justices were Associate Justices Magdangal De Leon and Sesinando Villon.

In a report by the Inquirer.net, Pizarro and Acosta said that in upholding the arrest of the Morong 43, the court in effect “deserted its duty as guardian of civil liberties.”

“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,” Acosta said in his dissenting opinion.

He said the search warrant used by military and police operatives to raid the resort of Dr. Melecia Velmonte where the 43 were arrested was invalid. Acosta said the warrant issued was against one Mario Condes, who was not among the 43, and did not specify an exact address.

Acosta also said the inquest proceedings were not valid because the Morong 43 were denied their right to counsel. Thus, he said, the information filed in the Morong RTC was also invalid.

In his own dissenting opinion, Pizarro also maintained that the arrests and subsequent filing of charges should be nullified because the health workers’ constitutional rights were violated.

“... [T]he use of force cannot make wrongs into right. An illegal search and seizure as well as an irregular inquest cannot ripen into a valid information, otherwise referred to as ‘remedial’ or ‘curative’ information,” Pizarro said.

He said the Morong 43 were not caught in flagrante delicto, or in the act of committing an offense.

In a statement, Commission on Human Rights chairwoman Leila de Lima concurred with the dissenting opinions of the two justices, saying they "do make a very compelling point about reviewing the jurisprudential development of 'curative informations' and re-examining the Ilagan vs. Enrile doctrine."

“The dissenting magistrates emphasized the express duty to strike down and nullify illegal searches and arrests, in keeping with the Bill of Rights and the Constitution. This duty to protect rights is incongruent with the notion that precedent illegality can be corrected by criminal information, founded precisely on the illegal precedents, and thus, is equally illegal,” De Lima said.

De Lima called for the re-examination of the practice of filing curative informations.

De Lima added that it is within the prerogative of a court hearing a habeas corpus petition to thoroughly examine all the conditions behind the detention of a person. “But the prerogative becomes a duty,” De Lima added, “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 specificity.”

‘Antiquated doctrine’

Atty. Romeo Capulong, lead counsel of the 43, said that the Court of Appeals, ‘in simply adhering to the outdated Ilagan v. Enrile, seriously disregarded the litany of blatant violations of the constitutional rights of these 43 health workers from the time that they were unlawfully arrested and the continued abuse of their basic human rights in the hands of the military.

Capulong said the CA “has actually legalized the abuses committed by the military.”

In an interview, lawyer Julius Matibag, also counsel of the 43, said he and his colleagues “maintain that the case is a compelling reason for the court to modify the Ilagan doctrine and to make the case an exception.”

He said the arrest of the Morong 43 was “illegal, improper and irregular,” and that “the filing of charges within the prescribed time period does not cure the illegality of the arrest.”

Impunity

Karapatan Secretary General Lovella de Castro said that the CA decision sets a dangerous precedence when it favors the Armed Forces of the Philippines and the Philippine National Police who arrested and detained the 43 health workers.

“The CA resolution further shows the continuing impunity where human rights violations are ignored and the violators are allowed to go scot free,” de Castro said. “The tactics employed by the state authorities are resurrection of martial law tactics resorted to during the Marcos regime.”

Roneo Clamor, deputy secretary general of Karapatan and husband of the detained Dr. Merry Mia-Clamor, one of the Morong 43, said that the appellate court "has become an arm of the Oplan Bantay Laya, the counter-insurgency program of the Arroyo administration."

“The Court of Appeals is not only perpetuating injustice… It is now condoning the contemptuous disregard for due process and human rights of Arroyo’s state security forces,” said Dr. Geneve Rivera, secretary general of the Health Alliance for Democracy (Head) in another statement.

Appeal

The lawyers of the 43 health workers said they will appeal the CA decision before the Supreme Court (SC) within the week.

“We have no other recourse but to elevate the case to the Highest Court,” Capulong and the other lawyers from the Public Interest Law Center (PILC) and the National Union of People’s Lawyers (NUPL) said.

Capulong said the CA ruling violates the Morong 43’s right to due process, citing the Umil v. Ramos case. In that jurisprudence, the Supreme Court made an exhortation to all courts that in all petitions for habeas corpus the court must inquire into every phase and aspect of petitioner’s detention, from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition, that only after such a scrutiny could the court satisfy itself that the due process clause of the Constitution has in fact been satisfied, and that if the conditions set by the Constitution or the rules are not met the petitioner must be ordered released.

CHR hearing

The CHR is set to conduct its own public inquiry on the Morong 43 case on March 18, 2010.

De Lima said the CA decision will not affect the commission’s role in the Morong 43 dilemma. Aside from the issues of the legality of search, arrest and detention, the CHR is also looking into the allegations of torture, physical and/or mental/psychological, and other human rights violations, she said.

In an order, the CHR has summoned all the military officers and their superiors to attend the public hearing on the Morong 43 complaint.

Photo by Janess Ellao with permission from Bulatlat.com. Some rights reserved.

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