The Enrile cases

As part of my storytelling to my students on the martial law era and the Edsa revolution,  on the occasion of the 30th anniversary of the latter on the 25th of this month, I tell my law students the story about the many cases decided by the Supreme Court that has Juan Ponce Enrile named as respondent/defendant against charges of violating human rights or petitioner invoking the same constitutional rights he was previously charged with breaching. I share these stories through a series of three to four columns, starting with this one.

Enrile was martial law administrator of the Marcos government and co-leader of the military uprising that led to the 1986 people power revolt. He is currently a sitting senator of the republic, detained and facing charges for corruption related to the Priority Development Assistance Fund scandal. He has just been released on bail for humanitarian considerations.

The cases involving Enrile tell us a lot about our country, our history in particular and how justice continues to elude us. At the end of this series, on the week we celebrate the Edsa revolution, I will reflect on what this failure means and where this could take us in the 2016 May elections when Bongbong Marcos could conceivably win as vice president.

Let me start with the  leading case of Aquino Jr. v. Enrile, decided by the Supreme Court in 1974. When martial law was proclaimed in September 21, 1972, Senator Benigno Aquino, Jr., together with Ramon Mitra Jr., Francisco Rodrigo, and Napoleon Rama, the stalwarts of the opposition fighting against the dictatorship, were arrested and held pursuant to General Order No. 2 of the President (September 22, 1972), “for being participants or for having given aid and comfort in the conspiracy to seize political and state power in the country and to take over the government by force. 

Aquino and colleagues filed petitions for habeas corpus. But while eventually all the petitioners were either permitted to withdraw their petitions or released from detention subject to certain restrictions, Aquino remained in detention. In fact, formal charges of murder, subversion and illegal possession of firearms were lodged against him forcing him to challenge the jurisdiction of the Military Commission trying him. 

Faced with Aquino’s remaining legal challenge, the court had to confront the issue of whether or not the court could inquire into the validity of Proclamation No. 1081. Put more simply, is the question political or justiciable in character? Paraphrased another way, are not the issues raised in the petitions related to the propriety or constitutional sufficiency of the issuance of the proclamation purely political, which are not for the Judiciary, but for the people and the political departments of the government to determine?

Five justices, namely, Justices Makasiar, Antonio, Esguerra, Fernandez and Aquino held that the question was political and therefore its determination was beyond the jurisdiction of the High Court. Arrayed on the side of justiciability were four justices including Justices Castro, Fernando, Teehankee and Muñoz Palma who held that the constitutional sufficiency of the proclamation may be inquired into by the Highest Court. 

Justice Barredo, on the other hand, believed that political questions were not per se beyond the Court’s jurisdiction, but that as a matter of policy implicit in the Constitution itself the Court should abstain from interfering with the Executive’s proclamation.

Justice Makalintal who penned the decision sided with non-justiciability when he opined that the political-or-justiciable-question controversy has become moot and purposeless as a consequence of the general referendum of July 27-28, 1973. With the ruling of non-justiciability having attained the majority vote, the High Court decided to dismiss all petitions. 

An interesting side story of this case involved Senator Jose W. Diokno. He was one of the original petitioners but later he withdrew from the case, stating that he had lost confidence in the Supreme Court after it ruled that the 1973 Constitution was in effect.

Almost 10 years later, the Supreme Court would revisit the issue of illegal detentions in Garcia-Padilla v. Enrile. In 1982, Sabino Padilla and eight others out of the 14 detainees were then having a conference in the dining room at Dr. Parong’s residence. These individuals, together with a few others totaling 14, were previously under surveillance by the authorities as they were suspected of engaging in subversive activities being members of the Communist Party of the Philippines. It was during this meeting that they were arrested by the Philippine Constabulary by authority of a Presidential Commitment Order and brought to an undisclosed location. 

Not knowing the whereabouts of her son Sabino, Josefina Padilla, went to the Court praying for the issuance of a writ of habeas corpus to direct respondents then-Minister of National Defense Enrile, Gen. Fabian Ver, Gen. Fidel Ramos and Lt. Col. Colonel to produce the bodies of the missing individuals. 

In the resolution of the Court, the writ of habeas corpus was issued and respondents were required to make a return of the writ. At the hearing of the petition, the Solicitor General contended that the so-named persons were arrested and are being detained for offenses with respect to which under Proclamation No. 2045, the privilege of the writ of habeas corpus continues to be suspended; in effect saying that the privilege of the writ of habeas corpus is unavailing as to them. Hence, courts cannot inquire into the validity and cause of their arrest and detention. 

Before the Court, the legality of the Presidential Commitment Order was put in issue. 

Speaking for the majority of the Court, Justice De Castro said that the arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. Hence, according to J. De Castro, the arrest and detention of persons ordered by the President through the issuance of Presidential Commitment Order PCO is merely preventive. The majority further stated that a Presidential Commitment Order, the issuance of which is the exclusive prerogative of the President under the Constitution, may not be declared void by the courts, under the doctrine of “political question.”

Disagreeing with the majority, Justice Teehankee opined that notwithstanding the suspension of the privilege of the writ of habeas corpus, the higher and superior mandate of the Constitution guarantees the right to bail and vests the courts with the jurisdiction and judicial power to grant bail which may not be removed nor diminished nor abdicated. 

My next column will summarize next the infamous ruling of Ilagan vs. Enrile. Decided in 1985, a year before the revolution, that case justified the continuing detention of three Davao lawyers for crimes they did not commit.

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