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Sunday, April 21, 2024

Of CHR’s mandate and also the right to bail

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When a crime is committed—a violation of the rights of others or the State, which the law defines as a crime—it is the police that investigate and, if warranted, prepare the criminal complaint. That is exactly the function of the police.

The Commission on Human Rights was not meant to be a second police force in the country. And by its structure, it cannot be another class of police.

When a robber enters your house and, in the process of robbing hurts or kills any resident of the house, the crime is robbery with homicide, and the matter is a police matter.

When a policeman is ambushed by members of a rebel group, that too is a police matter and, if is sufficiently serious, the President may invoke his “calling-out” powers and ask the Armed Forces to step in.

When, however, officers of the law and agents of the law commit crimes against the fundamental rights of citizens, that is a human rights violation. Why the difference? Because when the State—through its agents—is the offender, then you need a body that is able to call the attention of the State and to hold the State to account. That is exactly the mandate of the Commission on Human Rights. This is the reason that it is an INDEPENDENT office, tasked with seeing to the nation’s compliance with treaties on human rights. It’s powers and concerns therefore are not simply circumscribed by Philippine domestic law.

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So, in Simon v. Commission on Human Rights (January 5, 1994), our Supreme Court already taught:

Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily apparent that the delegates envisioned a Commission on Human Rights that would focus its attention to the more severe cases of human rights violations. Delegate Garcia, for instance, mentioned such areas as the “(1) protection of rights of political detainees, (2) treatment of prisoners and the present prevention of tortures, (3) fair and public trials, (4) cases of disappearances, (5) salvagings and hamletting, and (6) other crimes committed against the religious.” While the enumeration has not likely been meant to have any preclusive effect, more than just expressing a statement of priority, it is, nonetheless, significant for the tone it has set. In any event, the delegates did not apparently take comfort in peremptorily making a conclusive delineation of the CHR’s scope of investigatorial jurisdiction. They have thus seen it fit to resolve, instead, that “Congress may provide for other cases of violations of human rights that should fall within the authority of the Commission, taking into account its recommendation.

The cases covered by the mandate of the Commission on Human Rights, as cited by the Court from the deliberations of the Constitutional Commission all involve offenses by the State or agents of the State against citizens.

If all crimes —whoever committed them—were to be referred to the Commission on Human Rights, the latter would virtually be the police force of the country, something that it was not meant to be, since very clearly, the Constitution creates only one police force that is “national in scope and civilian in character”. (Article XVI, Section 6, Constitution of 1987)

Note that under Republic Act No. 10368 that provides for compensation for the supposed human rights victims of the Martial Law era, the very same concept of human rights is adopted:

(c) Human Rights Violations Victim (HRVV) refers to a person whose human rights were violated by persons acting in an official capacity and/or agents of the State as defined herein. In order to qualify for reparation under this Act, the human rights violation must have been committed during the period from September 21, 1972 to February 25, 1986: Provided, however, That victims of human rights violations that were committed one (1) month before September 21, 1972 and one (1) month afterward February 25, 1986 shall be entitled to reparation, under this Act if they can establish that the violation was committed:

(1) By agents of the State and/or persons acting in an official capacity as defined hereunder;

(2) For the purpose of preserving, maintaining, supporting or promoting the said regime; or

(3) To conceal abuses during the Marcos regime and/or the effects of Martial Law.

Very clearly then, since the Commission on Human Rights is tasked precisely with the oversight of human rights in the Philippines it concerns itself ONLY with violations of rights committed BY PERSONS IN AUTHORITY or BY AGENTS OF THE STATE against individuals. Crimes committed by the NPAs, by rebel groups, by Muslim separatists against our military officers and men are ordinary crimes and will be dealt with as police matters. They are not any less serious than human rights violations, but they do not fall within the concept of human rights for the purpose of the mandate of the Commission on Human Rights because there is already the Philippine National Police and the National Bureau of Investigation (of the Department of Justice) to deal with such cases.

On Jinggoy’s bail: I accept the proposition that repeated motions to reconsider an interlocutory orders are not by any means irregular. In this case, there was an important supervening event: the “Gloria Arroyo doctrine” enunciated by the Supreme Court that gave reason to the Sandiganbayan to alter its appreciation of the strength of the prosecution’s evidence against Estrada. In the Supreme Court’s reading of the law on plunder, it is necessary that it be clearly alleged in the Information and proved that the government official is the “principal,” or that he or she conspired with others by planning, plotting and enlisting the assent and cooperation of others. In short, plunder needs a “principal plunderer.” Using this doctrine, the Sandiganbayan found that the prosecution has not shown that Estrada was the key plunderer, and therefore the constitutional requisite for rejecting bail as a matter of right—that the evidence against the accused is strong—is not present. In fact, one might even raise the question of whether or not plunder is properly alleged.

Plunder is a very peculiar crime. Where one malverses PHP 65 Million pesos in one fell swoop, there will be NO plunder. Some other crime, perhaps, but not plunder. But when one does so in a series of acts, or a combination of acts, that is when there will be plunder.

Can Napoles be charged with plunder? Yes, because the law is clear that the plundering government official can consort with private citizens and make them his co-conspirators or accomplices. BUT: When it is even doubtful if there was plunder in the first place, then obviously charging Napoles with plunder becomes a dubious proposition as well.

Am I disturbed that Jinggoy is out on bail? NO, OF COURSE NOT. I am happy that he is out on bail, as I am happy that JPE is out on bail. In fact I commented to Ted that the real question is: Why were these three alone indicted and subsequently detained, when it was clear from Napoles’ own testimony that so many others were involved? Several times we were told by the Palace that several names were on the list. Why were the three singled out?

My theory remains unchanged; Until the Court is satisfied that the evidence against the accused is strong when the accused are charged with a capital offense or a crime punishable by reclusion perpetua or life imprisonment, IT HAS NO CONSTITUTIONAL BASIS for detaining them and denying them bail. Therefore, while bail hearing is on-going and it is not yet determined that the evidence against the accused is strong, THERE IS NO CONSTITUTIONAL WARRANT for denying them bail and curtailing so many of their liberties. This holds true for all accused.

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