[ANALYSIS] Unjust to De Lima, unjust to all
Perhaps it is an instructional coincidence that 2 days before the Supreme Court denied Senator Leila de Lima’s motion for reconsideration to allow her to appear in the oral arguments on the ICC Case, Zaldy Ampatuan was attending his daughter’s wedding by virtue of a furlough granted by the Regional Trial Court of Quezon City trying the Ampatuan massacre case.
On the one hand, we have a case of a sitting senator, whose continued detention on vague charges was dissented upon by 6 justices of the Supreme Court, being denied the opportunity to represent herself in oral arguments before the same Court.
On the other hand, we have a primary accused in the biggest massacre of journalists in human history, resulting in the murder of 58 human beings, being allowed to attend his daughter’s wedding.
Both occurred within two days of each other, presenting the Philippine legal community with a study in irony of how, at least on the issue of granting furloughs, considerations of justice and equity seem to evade our judges and justices.
Judge as tyrant-king
The matter of furlough has always been highly discretionary on the courts.
There are no rules or guidelines on furlough. The fact that the Supreme Court has not bothered to lay down rules on the grant or denial of furloughs is itself a testament on how this remains an area of law where the judge is allowed to act like a tyrant-king, where any decision rendered rests solely and entirely upon the judge’s discretion.
The only similar and comparative grant of power is the presidential pardon or executive clemency, a legal remnant from the medieval times of absolute monarchs where kings held the power of life and death over their subjects in the absence of any regime that recognized the modern concepts of the right to life and liberty.
In a sense, especially under circumstances where there are no written rules or guidelines, the power and discretion of the courts to grant or deny furloughs can thus be characterized as despotic, one that entirely relies on the musings of a single judge, unhampered by written rules or precedence – albeit “discretionary” is the kinder word that is used.
It is precisely because of the absence of written rules on the grant or denial of prison furloughs why we have this study in irony of a detained senator being refused furlough to represent herself before the highest court and an accused mass murderer being granted one to attend a wedding.
The contrast is absurd.
But this is exactly the reason why such absurdity exists, because of the absence of a normative construct that otherwise pervades modern society as we know it, especially in the arena of lawyers and judges known as the criminal justice system.
If one takes time to contemplate this fact, it is absolutely mind-blowing to realize that in the modern era of complex legal systems, we have allowed magistrates to possess a remnant of absolute power characteristic of the dark ages. Worse, we have allowed it to remain for so long.
But only because it is not so much a violation of rights, as it is a play on privileges that, more often than not, only applies to a social class capable of such status as to merit the attention of a court. There are no rules on furlough only because it is not a general privilege attainable by all those similarly situated.
Admittedly, common criminals without the political or social status and the lawyers to access the courts for such privilege ordinarily are not granted furlough. It is not every day that courts grant furloughs to poor criminals who are denied bail. One might have to be a former president, a senator, or in the case of Zaldy Ampatuan, a powerful figure, in order to even contemplate applying to the courts for a temporary leave from detention.
In actual practice, furlough is limited as a privilege to detention prisoners with either status or title. Laying down clear rules and guidelines will necessarily have the effect of democratizing the privilege.
Thus, in a highly stratified society such as ours, where privileges of social class apply even among – or especially among – prisoners, writing rules on furlough will have unintended consequences. Since, in current reality, equal application of the privilege to all prisoners similarly situated is more of an exception than the rule, the problems to the judiciary that written rules would create might prove overwhelming.
At present, the paramount drawback of absolute court discretion in the grant of furloughs is that it can be used as a political tool even against prisoners with the political status to apply for it.
The uneven grant of furloughs by courts to public figures, as our study in contrast of the De Lima and Ampatuan cases shows, demonstrates how political elements are factored in in the exercise of the court’s discretion.
While other political figures were allowed, in the past, to be with their families during Christmas, graduations, and weddings, there could only be one explanation to the courts’ repeated refusal to give De Lima an even break.
And this is because her case remains a highly politically-charged case, one that is even personal to President Duterte, who appoints judges and justices to the courts.
We must remember that the President himself laid the groundwork for De Lima’s prosecution, pronouncing her guilt and promising her destruction even before the House hearing and the National Bureau of Investigation probe into the Bilibid drug trade started. From day one, the President himself was De Lima’s accuser, prosecutor, judge, jury, and executioner.
This is the strong arm of the state at play. And in political cases where the highest official of the land, who is in charge of appointing judges and justices, has a personal stake, even courts become a part of this strong arm, whether wittingly or unwittingly.
Thus, even in the simple request for a temporary leave to speak before the Supreme Court, in a case that directly challenges the President’s withdrawal from the international tribunal that can one day order his arrest and try him for crimes against humanity, De Lima’s political persecution continues. Indeed, during dark periods of strongman rule, our courts, even the Supreme Court, have demonstrated a capacity for cooptation.
Even the post-EDSA Supreme Court has recognized this tendency in the Martial Law Supreme Court where, instead of becoming the guardian of constitutional liberties against the strong arm of the state as espoused in the case of Brocka v. Enrile (G.R. Nos. 69863-65; December 10, 1990), the Court merely becomes part of the workshop that forges a strongman’s iron rule.
In its experience with dictators and strongmen, the High Court – not as a collection of specific individuals, but as the third branch of government ordained under the Constitution to check the excesses of an authoritarian President – still has to demonstrate that capability to fulfill such constitutional ideals on which its very reason for being is founded: to challenge impunity, to oppose authoritarianism, to uphold the bill of rights, and to protect citizens from the brazen strong arm of the State.
This is certainly not to blame the current members of the Court during said particular periods. From a sociological vantage point, they might even be helpless to do otherwise. After all, the judiciary remains a part of the State, neither separated nor uninfluenced by it.
The way it dispenses justice will always be a reflection of the State’s reality.
Its challenge however, is to not make the strong arm of the State its own, regardless of how it is doomed to remain a part of it.
There is no other way to describe the decisions on De Lima’s request for a furlough by the Regional Trial Court in the case of her son’s graduation and by the Supreme Court on her appearance as counsel for the ICC case: these are unjust to De Lima, an injustice to all of us. – Rappler.com