Killing the rule of law

"The Opinion then continued to narrate how the state twisted the law in depriving Leila de Lima of procedural and substantial due process."


It is ironic that the rule of law in this country diminished the most during the tenures of two lawyer presidents—Ferdinand Marcos and Rodrigo Duterte. In the case of Duterte, he has only just begun.

Marcos did it in one stroke when he illegally detained many opposition figures at the beginning of martial law. Duterte has been more subtle, killing the rule of law one person and institution at a time, the latest of which is Maria Ressa, embattled leader of Rappler. But before Maria, there was Chief Justice Maria Lourdes Sereno. And before the latter, there was Leila de Lima. And of course, worst of all, there are the tens of thousands mostly poor people killed in the illegal war against illegal drugs.

Going back to De Lima, her freedom was certainly one of the first targets of Duterte and exemplifies the slow demise of the rule of law in the Philippines. This was two years ago.

The legal opinion by the Working Group on Arbitrary Detention adopted on August 2018 concerning the case of De Lima illustrates this very well. The Working Group was created by the United Nations Commission on Human Rights. As a party to International Covenant on Civil and Political Rights, the Philippine Government received a communication from the Working Group on this case but the former chose not to reply.

At the outset, the Opinion enumerates the instances regarded by the Working Group as arbitrary deprivation of liberty, thus: (a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (category I); (b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the Covenant (category II); c) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravitas to give the deprivation of liberty an arbitrary character (category III) (d) When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy (category IV); (e) When the deprivation of liberty constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings (category V).

The Opinion then sets forth the factual background of Senator Leila de Lima’s case which I shall substantially reproduce below.

Thus: from July 2010 to October 2015, the report pointed that Senator De Lima served as Secretary of Justice. During her term, Sec. De Lima’s actions led to the incarceration of a former President and three senators, as well as the filing of criminal cases against several congressmen, all for plunder and corruption. She also led the raid of the National Penitentiary in Muntinlupa City, Metro Manila, which is also known as the New Bilibid Prison to confiscate contraband items, isolate 19 identified drug lords and gang leaders, also known as the “Bilibid drug lords” or“Bilibid 19,” and paralyze the drug network that existed in the prison facility; that several of the Bilibid drug lords filed cases with the Ombudsman and the Court of Appeals against Ms. De Lima. Reportedly, their lawyer is one of Ms. De Lima’s detractors. In addition, the lawyer is also the counsel of the former President who was in detention, as mentioned above, and who expressed a desire to see Ms. De Lima in jail. The lawyer allegedly has talked to his clients and their networks, and prepared potential willing witnesses to testify against Ms. De Lima in exchange for their preferential treatment under the new administration, including possible executive clemency. Allegedly, some other inmates also agreed to provide “coached testimonies” against Ms. De Lima in exchange for prison amenities and privileges.

As an elected senator, De Lima filed a resolution calling for an investigation into extrajudicial killings during the President’s war on drugs. In addition, on 11 August 2016, the President told reporters in Davao City that he would destroy her in public and began daily accusations and sexist insults. The President released a so-called drug matrix, purportedly showing that Ms. De Lima was at the heart of the drug trade operations inside the New Bilibid Prison.

In December 2016, three criminal complaints for illegal drug trading were filed against Senator De Lima with the Department of Justice. The evidence presented before the Department of Justice was the same evidence offered by the Secretary of Justice during the congressional hearing on the Bilibid drug trade. A source alleges that the Department of Justice considered whether there was sufficient evidence to charge Ms. De Lima in court after the Secretary of Justice had already prejudged Ms. De Lima’s guilt during the congressional hearings.The Secretary of Justice and the Department of Justice acted both as prosecutor and judge in the determination of probable cause to charge her in court. Under national laws, the Department of Justice, when acting as a preliminary investigator, acts as a judge and must decide independently and impartially. For the source, this was violated when it was the Secretary of Justice himself who presented witnesses and effectively “prosecuted” Ms. De Lima in a trial by publicity at the congressional hearings. The witnesses had been convicted of various criminal offenses and by law were even prohibited from being presented in court as State witnesses.

The Opinion then continued to narrate how the state twisted the law in depriving Leila de Lima of procedural and substantial due process. In fact, certain rights enshrined in the Universal Declaration of Human Rights have been violated, in particular the rights guaranteed.

How the Working Group came to this conclusion will be elaborated in the next column.


Topics: Ferdinand Marcos , Rodrigo Duterte , Leila De Lima , Universal Declaration of Human Rights , Maria Lourdes Sereno
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