The impunity of hiding

Theodore Te
When government turns the presumption of innocence on its head by condoning acts of defiance by powerful people who go into hiding, then something is horribly wrong

Theodore TeThey are not the only ones who have gone into hiding. Many others have, before them. They are, however, among the more prominent ones: a senator, former chief of the Philippine National Police and ex-presidential candidate; a former congressman and retired commanding general of the Army’s 7th Infantry Division in Central Luzon; and a former governor.

All 3 held high positions in government. All 3 were, at the time of the hiding, charged with very grave felonies — all involving the taking of lives. All 3 had warrants of arrest issued against them.

All 3 went into hiding instead of facing the charges. And, in all 3 instances, stones are left unturned in an overwhelming display of official indifference.

I do not need to mention their names. They are known to all. 

Their faces are etched in the collective memory, not only of their victims but also of the nation. “Wanted” posters do not need to be posted (as, in fact, ironically, they have not been posted), their faces are well-known. Yet, they remain free despite legal process issued by the courts of the land.

What’s wrong with this picture?

‘Presumption of guilt’

The Constitution presumes everyone innocent until the contrary is proven beyond reasonable doubt.  

Case law in the Philippines, however, still indulges a disputable “presumption of innocence” arising from unexplained flight (the presumption is based on Proverbs 28:1 “The wicked flee when no one pursues, but the righteous are as bold as a lion.”).

I would be the last person to talk lightly of the presumption of innocence. I have been a defense lawyer practically my entire professional life and, in many instances, that presumption is the only thing that keeps a client out of jail.

But when government turns the presumption of innocence on its head by condoning acts of defiance by powerful people who, by going into hiding, can evade the apparently short arm of the law, then there is something horribly wrong with this picture.

The lack of “official outrage” over the Senator’s successful one-year hiding was the litmus test of how seriously the government would take official law-breaking.  

It doesn’t matter that, when he surfaced, the charges against the Senator had already been dropped (aided by a Court of Appeals dismissal of a prima facie finding and the incomprehensible and, to this date, unexplained refusal by the former Solicitor General to assist the private injured parties in their resort to the Supreme Court).The fact is, the hiding was done while the warrant was pending and live.

The President was elected to enforce a path that is “straight and narrow.” It is a standard best set by example. It is a standard best shown by images of zero tolerance to any form of official law-breaking.

The Senator who hid should have been the perfect example, even before the one who said “I am sorry” and the one who cries on the balcony. Yet, every stone was left unturned in the one year that he was in hiding.  

And when he surfaced, attempts by a well-meaning Justice Secretary to investigate where he hid were met by an icy rebuff in the form of a warm welcome to the returning legislator in the Palace itself. There has not even been an official demand for the police to explain how such a prominent person could have hidden for one year.

To this date, no one, other than he and a set of unnamed accomplices and accessories, knows where he went and how he hid.

Because the Senator hid and the government did not seek, the former general and the former governor have followed suit. If not for the tenacious defiance of the same well-meaning Justice Secretary,  the former Palace occupant would have followed suit.

What can be done?

If the executive branch does not want to act, then the other branches should.

1. The Court and its power. A warrant of arrest is a judicial process. It is the “long arm of the law,” reaching beyond cities and municipalities, enforceable at any time anywhere. These three situations have shown just how short the reach of a warrant can be.

Under the Constitution, the Supreme Court is the only entity authorized to make rules on “practice and procedure.”  It should be a source of singular concern for the Court that judicial processes, such as a warrant duly issued by a trial court, may be flouted simply by successfully hiding.

The constitutional presumption of innocence contemplates that a person, accused of a crime no matter how horrific, will be treated as innocent in court.  Yet, that presumption is tarnished when an accused flouts judicial process and evades arrest without accountability and is even, when he does surface or is arrested, accorded that same presumption as if nothing had happened.  

Within the grant of its powers under the Constitution, the Court has the authority to craft rules to ensure that the orderly administration of justice is achieved. Serious thought should be given to coming up with such rules that would balance a good faith invocation of the presumption of innocence and the desire to avoid malicious and oppressive prosecution and that presented by the three situations.

2. The Congress and its duty. The Revised Penal Code is a very old law. It is severely outdated and needs to be amended and reviewed. These 3 instances that demonstrate impunity show just how outdated the Penal Code is.

Under the Revised Penal Code, a voluntary surrender mitigates liability and reduces a sentence that may be imposed by the court. There is no counterpart that aggravates liability for hiding where the clear intent is to evade the service of a warrant of arrest and is, thus, done in bad faith. 

Article 5 of the Revised Penal Code makes it incumbent on the courts to apply the law and to point out deficiencies in the law that make it unjust, outdated or simply wrong. Even without the courts pointing this out, however, Congress may, and should, consider amendatory laws that would ensure impunity as an aggravating circumstance.

Despite the rhetoric surrounding the impeachment and trial of the Chief Justice and the charges against the previous Palace occupant, what these 3 instances show is that impunity is alive and well on this path that should be “straight and narrow.”

Impunity happens when those in power turn a blind eye and a deaf ear to demands for accountability.  It also happens when they turn a blind eye and a deaf ear depending on who is on the other end.

Impunity also happens when the blindfolded lady not only peeks but keeps her arms folded. – Rappler.com

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