The Ilagan and Brocka Cases

This is the second of three columns on Supreme Court decisions that have Senator Juan Ponce Enrile as a protagonist, either as a respondent accused of violating the human rights of citizens or as a petitioner invoking constitutional rights against the state. In the cases I discuss in this column, Ilagan vs. Enrile and Brocka vs. Enrile, as he was in the Aquino and Padilla cases discussed in the first column of this series, the senator is the principal respondent as defense secretary and minister of defense of the Marcos dictatorship.

In 1985, Attorney Laurente C. Ilagan was arrested in Davao City by elements of the PC-INP and detained at Camp Catitipan on the basis of a Mission Order allegedly issued by the Ministry of National Defense. Subsequently, two other lawyers were arrested and detained on the basis of a Mission Order.

A petition for habeas corpus was filed by and on behalf of the three detained attorneys on the ground that their arrests were illegal and violative of the Constitution, since arrests cannot be made on the basis of Mission Orders and that there appears to be a military campaign to harass lawyers involved in national security cases. The petition also contended that their detention was improper arrest, and that no preliminary investigation has been conducted.

 In this case, the government argued that the detained attorneys were arrested on the basis of a Preventive Detention Action (PDA) issued by the President on Jan. 25, 1985; that the Writ of habeas corpus is suspended as to them by virtue of Proclamation No. 2045-A. Subsequently, they further argued that the petition for habeas corpus had been rendered moot and academic by virtue of the filing of an Information against them for Rebellion, a capital offense, before the Regional Trial Court of Davao City and the issuance of a Warrant of Arrest against the three detainees.

In a unanimous decision, the Court, through Justice Ameurfina Melencio-Herrera, stated that the remedy is not a petition for a Writ of Habeas Corpus but a Motion before the trial court to quash the Warrant of Arrest, and/or the Information on grounds provided by the Rules or to ask for an investigation/reinvestigation of the case. The Court further stated that habeas corpus would not lie after the Warrant of Commitment was issued by the Court on the basis of the Information filed against the accused.

As a result, the petition for Habeas Corpus was dismissed for having become moot and academic. The Court pronounced that the three detainees were now detained by virtue of a Warrant of Arrest issued by the Regional Trial Court of Davao City in relation to the criminal case for Rebellion filed against them before said court.

The Ilagan doctrine has been roundly criticized for being anti-democratic. Unfortunately, it is still routinely invoked by prosecutors to justify detention of accused even when the original arrests were illegal. A few years ago, in the celebrated case involving 43 health workers illegally arrested in Morong, Rizal, the Court of Appeals justified the workers’ continuing detention citing this unfortunate precedent.

The Ilagan decision, rendered in 1985, was one of the last decisions of the Supreme Court before the Edsa revolution.

The Brocka vs. Enrile case, decided in 1990 by a different Supreme Court, illustrates the change of regime and what a difference democracy makes.

The case started on Jan. 28, 1985 when movie director Lino Brocka and theater director Behn Cervantes, both icons in their artistic fields, were arrested along with their companions (this included Howie Severino of GMA-7, then a teacher at the Ateneo de Manila High School), were arrested by elements of the Northern Police District following the forcible and violent dispersal of a demonstration held in sympathy with the jeepney strike called by the Alliance of Concerned Transport Organization (ACTO). Thereafter, they were charged with Illegal Assembly before the RTC-Quezon City. Without prior notice to their counsel, Brocka, et al. were subsequently charged with Inciting to Sedition.  

In their petition for habeas corpus, Brocka, et al. as petitioners, contended that respondents’ manifest bad faith and/or harassment are sufficient bases for enjoining their criminal prosecution, aside from the fact that the second offense of inciting to sedition is illegal, since it is premised on one and the same act of attending and participating in the ACTO jeepney strike. They maintain that while there may  have been a complex crime from a single act (Art. 48, RTC), the law does not allow the splitting of a single act into two offenses and filing two informations therefor, further, that they will be placed in double jeopardy.

The main issue raised before the Supreme Court was the legality of enjoining the criminal prosecution of a case. And in a unanimous decision, the Court granted the petition and enjoined the criminal prosecution of Brocka et al. for the second offense of inciting to sedition.

According to the Court, Brocka, et al. have clearly shown the circumstances to show that the criminal proceedings had become a case of persecution, having been undertaken by state officials in bad faith. The Court added that the hasty filing of the second offense, premised on a spurious and inoperational PDA, certainly betrayed the respondent’s bad faith and malicious intent to pursue criminal charges against Brocka, et al. It further noted—“. . . the tenacious invocation of a spurious and inoperational PDA and the sham and hasty preliminary investigation were clear signals that the prosecutors intended to keep Brocka, et al. in detention until the second offense of “Inciting to Sedition” could be facilitated and justified without need of issuing a warrant of arrest anew.”  

I have a personal story about the Brocka case. One of those arrested with the film director was Al Alegre, a close friend and house mate at the “House of Being,” an apartment in Katipunan Avenue that several of us philosophy teachers, students and alumni shared in the early 1980s. Because Al was also detained, I attended the bail hearings in that case and was able to witness two great women lawyers—Judge Miriam Defensor Santiago and defense counsel Haydee Yorac, both also UP Law professors at that time—in action. That experience inspired me to take up law and to become a human rights lawyer.

In the next column, I will summarize two cases where, this time, we see a twist: Minister Enrile, no longer the martial law administrator, now invokes constitutional rights that were denied those he had custody of during the Marcos years. Enrile vs. Salazar and Enrile vs. Sandiganbayan are the names of those cases and the lessons they impart says a lot about rule of law, or lack of it, in the Philippines.

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