Sunday, June 17, 2007

Trillanes, not guilty by 11 million votes

The Philippine Supreme Court in People vs. Hernandez (July 1956) has defined political crimes as
those directly aimed against the political order, as well as such common crimes as may be committed to achieve a political purpose. The decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance “to the Government the territory of the Philippine Islands or any part thereof,” then said offense becomes stripped of its “common” complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.
The Supreme Court in Hernandez has further clarified that murders, arsons and robberies “are mere ingredients of the crime of rebellion” if committed as means “necessary” for the perpetration of the rebellion.

At the time of the Hernandez decision, coup d’etat had not been specifically defined by Philippine law as a crime; it is so now - in the same category as rebellion or insurrection- under Article 134-A inserted in the Revised Penal Code of the Philippines, pursuant to a law (Republic Act 6968, October 1990) enacted during the presidency of Cory Aquino whose government has been subjected to at least eight coup attempts. R.A. 6968 in effect has reversed what the Court in Hernandez has found as “the settled policy of our laws on rebellion, since the beginning of the century, (which) has been one of decided leniency, in comparison with the laws in force during the Spanish regime.”

For the Court to view political crimes only from the standpoint of the state is quite understandable. There is however a broader dimension of political crimes according to criminologist and author Jeffrey Ian Ross. For instance, Ross considers treason, subversion or for that matter coup d’etat as aptly “oppositional political crimes” or anti-systemic crime; whereas governments also commit political crimes, or appropriately “state crimes,” such as extra-judicial killings of militants and dissidents, invasion or preventive war in violation of international laws or plain betrayal of public trust, political crimes that Philippine laws do not specifically define and criminalize in the same way that coup d’etat had not been so defined and criminalized prior to R.A. 6968. Opportunely, the Constitution defines “betrayal of public trust,” and possibly extra-judicial killing within the ambit of “high crimes,” as “impeachable offenses.”

The capital punishment of impeachable offenses not otherwise criminalized is only the pre-termination of the tenure of the officeholder found guilty. Acquittal, on the other hand, is a reaffirmation of the electoral mandate originally given.

In the case of President Arroyo, two of the political crimes in the nature of impeachable offenses she was accused of in the second impeachment proceeding against her are the following:
1) That she “appointed Virgilio Garcillano as COMELEC Commissioner and interfered with and manipulated the official election duties of the latter to orchestrate and implement electoral fraud” and that “During the 2004 election period, [Arroyo] engaged in unlawful correspondence with Commissioner Garcillano . . . wherein she directed/countenanced/abetted the commission” of various “electoral frauds”;

2) That she “has allowed, abetted and countenanced the assassination and summary executions of 690 political dissenters and 42 media practitioners, the involuntary disappearance of some 176 persons, the torture of 320 persons in the hands of government authorities.
President Arroyo has avoided being placed in jeopardy of punishment in relation to the above allegations simply by setting up technical roadblocks and procedural defenses, which the majority in the House has accepted as proper. Consequently, Arroyo has succeeded to avoid, wisely or unwisely, the political cleansing process intended by the Constitution to wash off the political crimes she has been charged with. To borrow from the argot of the Maguindanao election saga, one could think of it as a case of failure of un-election, since after all the inverse electoral mechanism, as an aspect of political sovereignty, is what an impeachment proceeding is all about.

On the other hand, coup d’etat according to the Revised Penal Code is committed as follows:
Article 134-A. Coup d’etat; How committed. — The crime of coup d’etat is a swift attack accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communications network, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Philippines by any person or persons, belonging to the military or police or holding any public office of employment with or without civilian support or participation for the purpose of seizing or diminishing state power. (As amended by R.A. 6968).
Revealing in this regard is the following excerpt from an interview with navy officer Antonio Trillanes conducted by Ellen Tordesillas and Victor Reyes during the election campaign (Trillanes, elected a senator in the May mid-term national election remains under military detention being one of the leaders of some 300 military men who call themselves the Magdalo group now accused before the civil courts for staging a coup d’etat in July 2003 and of conduct unbecoming an officer and a gentleman before a military court):
Q. When you decided to enter the political arena, many took it that you have renounced the use of force to effect change. Is the reading correct?

A. It’s impossible for me to do that now especially that I’m detained. But like I said in previous interviews, rebellion is justified if the government goes against the interest of the people. That’s in the preamble of the UN Declaration of Human Rights. It’s also in the US Declaration of Independence.

Q. Does the situation right now warrant that?

A. I believe so. I believe the environment is ripe for that. Because we have a president who has no mandate. Somebody who cheated in an election. Somebody who has no qualms of killing her own people just to stay in power, among other crimes that she has committed like plundering the wealth of this country, selling our country’s independence. These are tantamount to treason.
The issues being raised in this piece are: Does the election of Trillanes operate to quash the coup d’etat case against him and the Magdalo group? If so, is the case before the military court a mere ingredient of coup d’etat and therefore quashed along with the underlying offense.

Coup d’etat like rebellion is, to invoke John Locke, “an opposition, not to person, but authority.” (In fact, the right of revolution in the American Declaration of Independence is a Lockean dictum.) That authority is the people collectively speaking. Criminal laws against coup d’etat or rebellion are thus enacted for the protection of that collectivity in the same manner that the constitutional proscriptions against impeachable offenses in a presidential impeachment are for the protection of the people against their own elected chief executive.

So in coup d’etat as in impeachable offenses the substantive injury of the offense is done directly to the collectivity, the state itself. In the event the indicted sitting president is found guilty of an impeachable offense, the relief provided to the injured party, the people, is a mid-course withdrawal of their own electoral mandate, which results in the president being unseated from office.

The converse is true if the putschists or mutineers, whose intent and motive against authority may have been aborted, instead seek and court - upon essentially the same platform that have driven them to rise in arms - the people’s mandate, to put them into office and thereby allow them peaceably carry out their political purposes. The ultimate consequence of such a mandate if won is a direct verdict of acquittal (or otherwise a grant of pardon) from the selfsame source of all authorities. Moreover, based on the Hernandez doctrine, ingredient elements of the political crime, such as conduct unbecoming an officer stripped of its military character, are deemed extinguished with the quashing of the underlying offense.

When it comes to political crimes, the indirect un-election device of impeachment, in a way a negative articulation of the sovereign will through the people’s representatives, is as much a purging (and polity regenerating) process as a direct action by the people themselves in an election, beyond any doubt a positive and democratic expression of the same will.

The rights and liberties of the Honorable Senator Antomio Trillanes, a nationally elected public servant like the President, deserve full respect from the military authorities. For, in the words of Chief Justice Roberto Concepcion in Hernadez, “individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be denied upon mere general principles and abstract consideration of public safety.”

The foregoing issues that have occupied our attention put to rest, it behooves the public to now dedicate greater interest and resources to dispense justice for the slain Musa Dimasidsing, the election supervisor and fearless Maguindanao poll fraud whistleblower who refused to be muzzled, and to the other heroes of Eleksyon 2007, by whose patriotism and self-abnegation Filipinos will continue to believe in their democracy. The dark psyches behind this dastard crime, who operate with “gunpowder mentality” - most certainly not citizen Trillanes and others of the same mold - are the real threat to our republic.


Blogger Jaxius said...


I would leave the questions in the first paragraph of your comment in MLQ’s blog. They are rather rhetorical upon which my answers will never be definitive though I may want it to be.

I would concentrate on the questions on the second paragraph.

Did the Ruling in Gonzales vs Chief of Staff reversed the Hernandez Doctrine?

No. It did not have to. The Hernandez Doctrine pertains only to common crimes being subsumed under the charge of rebellion, and by extension, the charge of coup d’etat. Conduct unbecoming is an administrative offense. It is an act violating the discipline required of an officer of the armed forces. The administrative character of a charge of conduct unbecoming is revealed by the punishment attached to it, separation from the service which cannot be dispensed by a civil court.

I guess that also answers the question whether the Court is barred from reinstituting Hernandez Doctrine because it never discarded it.

On the third question, I think that as a lawyer, you know that the courts cannot read into the law what is not there. It would seem contradictory that you criticize the Court for inventing “constructive resignation” yet would ask it to invent “constructive absolution by election”.

Just to add some comments on your original post, RA 6968 did not reverse the settled policy of our laws in rebellion. The heavier punishment RA 6968 is justified by the betrayal the military and other government officers commit by rebelling against the government they swore to protect.

June 27, 2007 6:59 AM  
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