(Note: Congressman Locsin, a Harvard-trained lawyer and at one time presidential counsel and speechwriter of President Corazon C. Aquino, was one of those asked by the Supreme Court to deliver a paper at the National Consultative Summit on Extrajudicial Killings and Enforced Disappearances—Searching for Solutions, July 16-17).

IMAGINE a situation where killings and disappearances are taking place. The victims form a distinct and disliked, though by no means unpopular political grouping. In fact, they have the most populist agenda of any other. The victims are not prominent members of their persuasion. They are not even zealous militants or even militants at all. They are mere rank and file; social workers in short. The crimes show a pattern pointing to security agents as the perpetrators. More than a pattern, it is the conclusion of a presidential commission. The authorities are reluctant to investigate the murders and disappearances. More, the authorities are openly dismissive of the problem. Gratuitously, yet with a knowing air, they deny the crimes are taking place. Yet, contradictorily, they blame the crimes they deny are taking place at all on the victims themselves, adding that in a sense the victims have only themselves to blame for adhering to a cause detested by the military. “They are begging for it” is heard from their lips. And yet the Constitution that covers both victims and suspects protects freedom of belief without any distinction; the last distinction having been erased by the repeal of the antisubversion law.

 Alabama in the 1960s? No. US President Johnson sent in US marshals to protect the victims and enforce their rights. The hypothetical situation might well be the Philippines today under a government that, out of complicity with or fear of the perpetrators, will do nothing, leaving only a newly elected Congress, already too absorbed in its forthcoming perks to pay back the cost of its recent election, to take any serious notice let alone action. Leaving a Court anxious not to say alarmed but constrained by the passive role to which judicial tradition and the constitutional text confine it.

The Court wishes to do more regarding a situation that does not yet amount to an actual controversy because one of the parties is missing and the other party denies having anything to do with it, occasionally expressing doubt the other party really is missing. And it is logically impossible to prove a negative.

But there are mothers crying for missing children, children who were once there and are no more. The Court wishes to do more; hence this Judicial Summit. The Court desires to expand the reach of existing rules, or promulgate new ones, for the protection and enforcement of constitutional rights.

To that end, the Court wishes to revisit the rules of evidence such as hearsay, circumstantial, forensic and the like. These are well within the Court’s competence, since it promulgates the rules. It wishes to review as well policies and rules governing the conduct of police investigations. These are arguably executive in character though neglected in police practice. It seeks to explore more remedies for aggrieved parties than the writ of habeas corpus, in a situation where the corpus, so to speak, cannot be had from authorities who deny having it; and where persistence in the search might ironically be rewarded with the permanent disappearance of the victim.

Congress is asked to provide its inputs on the situation that has led to this crisis in our justice system, where killings and enforced disappearances have been traced by a presidential commission to state security agents, and perpetrated with complete impunity and such disregard for constitutional safeguards as to invite grave doubt that we live under a rule of law. If we supposedly live under a rule of law but the principal laws are not systematically left unenforced in key cases by those principally charged to enforce them, why have the Supreme Court at all? The Nazi courts are said to have had a near fine record in purely commercial cases, unmarred even by anti-Semitism since all the Jews had already been relocated. These Nazi precedents may still be standing and, if not openly cited, nonetheless consulted for their illumination on commercial and civil laws. Precedents from Japanese Imperial courts are deeply respected. Yet neither society, more vibrant and coherent even than the democratic ones that succeeded them, is yet deemed to have had a genuine rule of law or judicial system.

Strictly speaking, this is not a problem for the passive receptacles of cases, as the Court modestly describes the judicial function—when and if, that is, the executive brings them before the courts. But the problem is precisely an executive that sits on its hands and thereby stains them with these crimes. As a result, by the Court’s own initiative, the weakest and least dangerous branch of government must pit itself against the most powerful and lethal; the circumspect power of deliberation against the brazen power of the sword, with the petty power of the purse counting pennies on the side.

To be brutally honest, Congress can have no fruitful role to play in this dilemma, if it were expected simply to craft more new legislation to curb violations of constitutional rights. From where I sit, thickening the thicket of legislation may confer a passing comfort for the small shade that the shrubs may give, but it will not result in the smallest progress in addressing the utter disregard of such legal safeguards as the Constitution and past congresses have already put in place.

Adding more will not help. As the saying goes, there is no problem so big you can’t turn your back on it. Even congressional threats, which are forthcoming only where perks are in peril, won’t help. The Constitution mandates the automatic reenactment of the previous budget in a stalemate. Congressional investigations would help if they were competently conducted and mentally honest, and executive officials cooperated, as they have not done with or without E.O. 464. And contempt is out of the question where the tenures of Speaker and Senate President would be at risk.

What seems to be doable is for the judiciary to be quicker and more aggressive in addressing human rights cases even under existing rules where legal standing and actual controversy exist. Give the executive no leeway to tell the families of the victims, “So sue us and see how far that gets you.” A recent Court of Appeals decision shows how far. Or rule quickly and with finality—as the Court just did after almost a year—on the validity of the arrest and detention of Leftist lawmakers; and use the occasion of its ruling to express in the strongest terms the Court’s uneasiness if not alarm over the human rights situation in the country. There is a limit to circumspection and the Court can, in practical terms, really, do no wrong.

In short, strike down offensive executive actions as fast as they are correctly protested—I emphasize the qualifier “correctly”—and the executive will get the message and the citizenry, feeling reassured that effective recourse lies somewhere, will be further emboldened to do what is firstly their responsibility and not the Court’s: stand up for their rights. That will answer the criticism from the groups representing the victims that to protest is to step forward and hang around with a bulls-eye painted on one’s chest.

Besides, if the Court became aggressive, on whom would discredit fall if the Court’s orders are ignored—the Court which makes no pretense of power or the executive which willfully neglects to use its power as the Constitution mandates? Lincoln’s assumption of the presidency did pose a distinct danger to a US Supreme Court that had favored the slave power. But this is not a Lincoln presidency nor is this country one so divided between two sincere and equally strong convictions about a universal but coarse democracy encompassing all colors and conditions, or a refined but limited polity.

Would the Executive retaliate? Any way it attempts to, it will invite the withdrawal of society’s support. Would Congress retaliate? I submit it will not, out of indifference to the issue and the individual member’s respect for the future utility of the Court in their own cases. Congressmen would rather stay friends with the justices, that sorry excuse of an impeachment of a previous chief justice notwithstanding.

In fact, we can expect Congress to view the crisis of government as yet another opportunity—like the two failed impeachments, the last of which was based on seven boxes of old newspapers and obsolete COCs—where are those boxes now by the way?—to feather nests as both Senate and House did.

In fact, impeachment will only put the executive more firmly under the heel of the military that stands between it and its fear of the mob, thereby driving the executive authority firmly into the assassins’ fold.

Indeed, setting aside all cases—as Justice Denning says in Due Process of Law is regularly done—so as to deal swiftly and aggressively with those involving the curtailment of basic rights and liberties would signal all concerned that the Court is prepared to use all the tools in its legal arsenal, and exploit every opportunity for judicial activism to uphold those rights and liberties and the rule of law itself without which the judicial function will be reduced to the formal condemnation of the victims of tyranny and the validation of oppression as happened during Martial Law. The judicial function loses its principal purpose when the rule of law for all serious intents and purposes ceases to operate except in the comparatively trivial matter of commercial cases. 

In this regard, I invite the Court’s attention to the literature on the judicial activism of the Israeli Supreme Court which has established constitutional norms where none existed —such as freedom of expression, press, association and public assembly, as well as equality regardless of Palestinian race and religion; going  to the extent, according to a paper by Ariel Bendor, of enforcing good government. Even in cases of national security, the Israel Court has proscribed coercion and torture and the detention of a Muslim community in negotiating the release of Israeli hostages. “The policy of the [Israeli] Supreme Court in the sphere of [legal] standing and justiciability [is] based on giving preference to the rule of law;” i.e., the need to protect and preserve the rule of law itself “as opposed to the institutional interest of the court” to steer clear of political issues that invite retaliation from the political branches of government. “This is because without judicial imposition of the law,” says Bendor, “the law would not be upheld” at all.

Bendor seems to be of the view that where key laws are ignored, a passive court should take an extended vacation. While it sits it implicitly legitimizes the grossest illegalities.

Furthermore, Bendor argues that the doctrines of legal standing and justiciability are not really meant to foreclose judicial intervention even in cases involving national security. They exist merely to give, initially, the upper hand to the political authorities. We do this ourselves with the presumption of the regularity of official action.

Congress’s role in all this, it seems, is limited but not nonexistent. When the occasion arises, Congress can pass resolutions supporting the Court’s activism. Or not.

To be sure, the Melo Commission Report recommends some legislative initiatives: such as the creation of a single investigative body, civilian in composition and independent of the military and the police, with its own budget, and tasked to look into and prosecute complaints against uniformed personnel. Appointments, however, are an executive prerogative and retired military suspects or those who can be depended on to be afraid of them will be the most likely nominees.

The Melo Commission Report recommends a special law for strict chain-of-command responsibility in the military and police with respect to “extrajudicial killings and other offenses committed by personnel under their command, control or authority.” But this begs the question whether these crimes will be seriously investigated and prosecuted in the first place so as to put in judicial jeopardy even mere triggermen let alone those who gave or hinted the orders. Only then can an enhanced conception of command responsibility kick in.

Whether it’s Court or Congress or even the Executive—to be fair, it is the only one to seriously tackle the issue by constituting the misunderstood Melo Commission—any serious attempt to address the problem of extrajudicial killings and enforced disappearances must be anchored on the key findings of that commission, whose report is complete, comprehensive and fair despite the boycott of its proceedings by the side of the victims.

In brief, these are its highlights:

There is an epidemic of extrajudicial killings of activists to an extent sufficient to cry for the special attention of concerned authorities. The numbers are alarming, despite the variance (a low of 111, according to the usual suspects, and a high of 724, according to the victimized sector), but more alarming is the impunity with which they are carried out.

Along the same lines, UN Rapporteur Philip Alston said that the dispute about the actual numbers isn’t what’s important because “the impact of even a limited number of killings of the type alleged is corrosive in many ways. It intimidates vast numbers of civil society actors, it sends a message of vulnerability to all but the most well-connected, and it severely undermines the political discourse which is central to a resolution of the problems confronting this country.” The threat has crept even to the well-connected as shown by the disappearance of Jonas Burgos into a vehicle traced to the military.

In other words, these killings are not part of a decapitation strategy—which would be just as wrong—aimed at the insurgent leadership. They are deliberately random to create an atmosphere of terror that will preempt membership in, not to mention activism by the Left; instilling terror at the mere thought of either option. Not surprisingly, a Jesuit priest, in a paper submitted to the National Defense College, encourages a freer hand for the military in addressing what the author sees as the aggravated freedom of belief that was spawned by President Fidel V. Ramos’s injudicious repeal of the Anti-Subversion Act. In other words, the way to address the root of rebellion is to make it painfully, not to say excruciatingly unthinkable to even ponder that option. Alston’s observation echoes that of the Sabato Commission investigating the Argentine Dirty War; that it was the small who were particularly targeted. If you can die painfully for even a minor infraction, would you even dream of serious political action? The dispute over body counts recalls why Albert Camus would not debate Sartre on the issue of which side, the Left or the Right, killed more and for better reasons: the arguments must consist of hurling corpses at each other.

The Melo Commission Report concluded not only that militant activists are the obvious targets but “it should be carefully noted that the victims…were all noncombatants. They were not killed in armed clashes or engagements with the military.” In short, they were assassinated, usually in the same fashion—killers on motorbikes—proving the poverty of the military imagination.

Indeed, the Melo Commission Report went on, circumstantial evidence indicates that  “a certain group in the military, certainly not the whole military organization, is responsible for the killings. To maintain otherwise would be closing one’s eyes to reality.” Indeed, General Palparan, the poster boy of the anti-insurgency campaign, told the Melo Commission “that he had no reason to believe that the killings were perpetrated by the CPP/NPA.”

If the Leftists are not doing it to themselves, who is? The signs are abundant, says the Melo Commission Report, that General Palparan had actively encouraged the men under him, in at least three areas where he was assigned as field commander, to “neutralize” activists tagged as “enemies of the state”—a category that does not exist in law, conventions of warfare or articles of war. To be sure, he denied ordering any killings but granted that he may have inspired the triggermen. Congress reacted by swiftly confirming his promotion in time for his long-awaited retirement. Congress truly has no role in addressing the problem except to step aside.

The Melo Commission pointedly recommends General Palparan’s prosecution on command responsibility: either for not stopping his men from carrying out the killings or for encouraging a climate conducive to their commission. So as not to deny dubious credit where it is due, Palparan would not categorically deny, in a House of Representatives hearing, that under his command there are special teams operating at night, wearing bonnets, or masks, with the apparent mission of extrajudicial elimination of so-called enemies of the state. Apparently, he feared the prospect of perjury more than murder.

But it is not General Palparan alone who has created a climate conducive to extrajudicial killings and enforced disappearances. For many years now, the Executive and the Armed Forces leadership have failed to establish clear parameters for fighting insurgency while upholding constitutional rights—and where parameters existed, confusing rather than clarifying them.

In September 1992, around the anniversary of Martial Law of which he was an architect, President Fidel V. Ramos signed the law he had actively encouraged Congress to pass, repealing the anti-subversion act (RA 1700), thus making communism legal in the Philippines. The incumbent president, then a senator, supported the repeal. Showing she understood its import, she said on August 22, 2002, that while certain groups still adhere to the communist cause, they had nothing to fear from the law so long as they do not have armed components. To be more precise, they were safe so long as they did not take up arms against the government. “What is abhorred and proscribed is the use of armed struggle to attain political ends,” her Press Secretary underscored.

So far, so clear, it is not rocket science. Soldiers in the field understand it even if, lately, they feign confusion because their officers say that, since there are many legal ways by which peaceful groups can legally help criminals like the NPA, what is the difference between that and aiding and abetting and adhering to the enemy. The difference is this: the first is essence of the political process we have been encouraging the Left to join; the second is treason which is possible only in a time of war against a foreign enemy.

Aiding and abetting this contrived confusion, the Palace issued Executive Order 546 on July 14, 2006, as the spate of assassinations that the Melo Commission has traced to the military was attaining exuberant proportions. EO 546 returns the police to military direction, for the express purpose of reinvigorating the military’s anti-insurgency campaign; thereby resurrecting in operational terms the quasi-military Philippine Constabulary that the new Constitution had extinguished in law. While the Constitution forbids criminalizing any organization and proscribes guilt by association, EO 546 appears to create the category of “enemy of the state” whom government may hunt down with every resource at its command. This explains the paralysis that suddenly afflicted the PNP’s Task Force Usig after announcing progress in the investigation of the Jonas Burgos abduction, possibly implicating the 56th Infantry Battalion in Norzagaray, Bulacan.

The Melo Report concluded: “By declaring persons enemies of the state, and in effect, adjudging them—by decree without trial, I might add—guilty of crimes, these persons have arrogated unto themselves the power of the courts and of the executive branch of government.”

In other words, EO 546 is effectively a bill of attainder and the extrajudicial killings and enforced disappearances inspired thereby show that the executive branch is already operating a parliamentary system—not the modern version but the same kind as impeached, attainted and executed the Earl of Strafford in the ill-fated reign of Charles I.

In conclusion, while Congress could well adopt more laws to expand the power of the Court to prosecute human rights violations with greater effect, one should not hold one’s breath. The first and last resort of Congress is its power to do nothing until the problem is buried with the last activist. Congressmen like to think that professing a fierce anticommunism will improve the chances of getting US visas for their maids.

Beyond the need to restore a comprehensive rule of law which transcends the usual limitations on the judicial process of legal standing and justiciability, there is this too to consider. Quoting Brandeis the Melo Commission Report concluded, “crime is contagious” and allowing government to break the law at will invites anarchy and retribution. If one starts shooting enemies out of hand, they may start shooting back. In sum, a congressional contribution to the Judicial Summit cannot improve on the Nike advertisement in advising the Court on this matter: Just do it.

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