MANILA, Philippines – Supreme Court (SC) oral arguments on the bid for freedom of former communist leader Rodolfo Salas on Thursday, March 12, revolved around discussions which will test the political offense doctrine that has kept Filipino key activists free for decades.
SC Third Division Chairman Associate Justice Marvic Leonen pursued a line of questioning that asks whether the political offense doctrine can afford blanket immunity, or if there should be a decision on the charges first.
The political offense doctrine states that crimes like murder, if committed in furtherance of the rebellion, should be absorbed by the crime of rebellion.
Salas was arrested February 2020 for a warrant issued by the Manila Regional Trial Court (RTC) over a case pending since 2007 about a mass grave in Inopacan, Leyte, where 15 alleged members of the Communist Party of the Philippines (CPP) were buried as part of a so-called purge of communists.
The government alleged that in the so-called purge, some CPP members were accused by party leaders of being spies, were tortured, and then killed.
Salas had already served time for rebellion and in 1991, he struck a compromise agreement with the government. One of the conditions his lawyers negotiated for him is that he no longer be prosecuted for "any common crime allegedly committed in furtherance of rebellion or subversion."
Salas' lawyer Arno Sanidad of the Free Legal Assistance Group (FLAG) believes that if the political offense doctrine is to be followed, the Leyte crimes would be crimes in furtherance of rebellion, and his client is already protected from that suit.
The political offense doctrine is what was invoked by Satur Ocampo when he was charged with the same crime. In 2007, the Supreme Court granted Ocampo bail and it is this grant of bail that has kept Ocampo free despite earnest efforts by the Duterte-time Department of Justice (DOJ) to jail him.
Absorbed by rebellion?
Leonen – who is a former member of FLAG – said during the oral arguments that the Manila RTC must be the one to determine if the Leyte crimes are political crimes, and if they are indeed in furtherance of rebellion.
"Would you know if the victims are originally members of the Communist Party of the Philippines or the NPA who were accused as spies? Would you know whether they're just ordinary civilians?" Leonen said.
"You do not know whether they are soldiers or spies or civilians. We are not sure beyond reasonable doubt. Neither is the solicitor general definite at this point, neither are we," Leonen said.
Leonen pointed out that in Philippine statutes and the Geneva convention, rape is not considered as an act of war and is not absorbed by rebellion.
"Considering that it is possible that rape is not rebellion, and that not any kind of homicide can be absorbed in rebellion...that it is possible that the murders of these individuals, maybe they're combatants already immobilized, maybe they were prisoners or war, maybe they were spies, or maybe they were ordinary civilians, or maybe still, the communist party had nothing to do with it and therefore we should not at this moment claim that these are deaths committed by the CPP," Leonen said.
Sanidad argued that the government's charges specifically allege that the CPP was behind the murders, therefore by the government's own admission, the murders were politically motivated.
"We only have to base it on the face of the information, your honor," Sanidad said.
But Leonen insisted it's a factual determination that must be made by the trial court first.
"It's legitimate for this Court to ask the trial court to hear if these cases indeed occurred...are these politically motivated, is that not correct?," Leonen asked.
"I would like to disagree, your honor," Sanidad said, continuing an impassioned back-and-forth between the former FLAG colleagues.
But time is of the essence
Leonen was making the point, as raised also by Associate Justice Alexander Gesmundo, that there are remedies that can be availed of at the Manila RTC, such as filing a petition for bail using the Enrile humanitarian grounds doctrine.
Sanidad consistently argued that their direct resort to the Supreme Court is because of time – and Salas is also 72 years old detained in a cramped Manila City Jail.
Sanidad pointed out that as early as 2007, the Supreme Court, in granting Ocampo bail, had ordered the Manila RTC to "act with dispatch" in the trial.
"But how long has it taken your honor?" Sanidad said.
Leonen said that because the judge is new then maybe the pace can pick up, and maybe FLAG can win their petitions there without having to go to the Supreme Court.
"But I can also argue that whoever will lose that case may file again up here, and so the issue of constitutionality will be here again," said Sanidad.
"[Even if the lower court] grants our petition, the prosecution will certainly question it and we will come up here. Meanwhile our client is still detained," said Sanidad.
"But that didn't answer my question, you're avoiding my question," Leonen said.
"I did not avoid your question your honor, yes we can [win in the trial court], but it can also be the other way around," Sanidad answered.
Salas is scheduled to be arraigned before the Manila Regional Trial Court on March 17.
FLAG is asking that the Supreme Court grant Salas the privilege of the writ of habeas corpus and free him now. – Rappler.com