Friday, October 23, 2015

Philippine Judiciary vs. UN Opinion

The so-called discussion on the Opinion of the UN Working Group on Arbitrary Detention bothers me.

First, I still have to see the full text of the Opinion. I searched online, visited the websites of the Office of the Human Rights Council and the UN Working Group on Arbitrary Detention, and read the Annual Reports and Opinions rendered by the HRC and the Working Group, respectively. I failed to get a copy or the full text of the Opinion anywhere.

Second, it all started when, in a news conference last week, Lorenzo G. Gadon, a lawyer of Mrs. Arroyo, shared an e-mail by international lawyer Amal A. Clooney, who brought Mrs. Arroyo’s case to the UN Working Group for Arbitrary Detention.

The email says in part, “The UN opinion finds that the detention of former President Arroyo was arbitrary and illegal under international law because the Sandiganbayan court failed to take into account her individual circumstances.”

“As a result of the Government’s violations, the Working Group recommended reconsideration of Mrs. Arroyo’s application for bail in accordance with the relevant international human rights standards and to accord Mrs. Arroyo with an enforceable right to compensation,” Amal Clooney also messaged GMA’s lawyer.

The email is obviously self-serving. Amal Clooney was the lawyer who took the case to the UN Working Group on behalf of GMA (Arroyo). 

Third, I expected that Amal Clooney should have at least attached a copy of the Opinion to her email so lawyer Gadon could read it in full and show it to the Press at the conference. It was not done.

Yet, the Philippine Press ate and swallowed the email quotes of Amal Clooney as if they were the actual Opinion of the UN Working Group.

Reactions and reporting were completely based on this self-serving email of Mrs. Clooney. ABS-CBN, I understand, tried to obtain a copy of the Opinion by calling the Secretariat of the UN Working Group but was unsuccessful.

Let's assume that the Opinion says it the way Mrs. Clooney emailed to GMA’s lawyer. The opinion of the UN Working Group on Arbitrary Detention is precisely that, an opinion. It does not have the force and effect of law. It is not enforceable and cannot mandate the Philippine Courts to subscribe to its opinion, which admittedly followed in full the opinion of Clooney, who in turn followed in full the opinion of GMA’s lawyer. In short, its opinion is as strong and as persuasive as your opinion and mine. At the end of the day, the Philippine judicial process rules as decisions are made based on facts, evidence, the Constitution, laws, and jurisprudence.

The Working Group was set-up under Human Rights Council resolution 1991/42. The same Council in resolution 1997/50 specifically states, “Deprivation of liberty is NOT arbitrary if it results from a final decision taken by a domestic judicial instance and which is in accordance with domestic law.” In fact, experts of the UN Working Group are advised to consider the independence of the judiciary of the State Party before rendering their opinion. They are required to be discreet and objective.

Sandiganbayan is the same court that detained, tried, and eventually convicted former President Erap Estrada for the similar non-bailable offense of plunder. The judicial process happened under the watch of then President Gloria Macapagal Arroyo who could not impose her will to an independent judiciary.

As opined by Sandiganbayan Presiding Justice Amparo Cabotaje Tang, "We have our own judicial process. That has to be observed and the 1st division of the court has precisely observed this process in place. I don't think the court has violated any international law."

"The court has always observed all the processes that are in place in the country. She (GMA) filed a petition for bail that was heard. Evidence was presented. After due evaluation, the court came up with its resolution.”

Tang said the decision would stay unless there is a radical change that can serve as a ground for change in the resolution. 

There is the difference – One is a Court Decision. The other is an Opinion. The former is enforceable while the latter is not. Not even the political branches of the Philippine government – Congress and the President can interfere or influence a judicial decision.

I suspect that the moves of GMA’s lawyers seem to be part of a PR campaign that would justify the granting of bail to GMA by the Supreme Court. After all, the majority of the current SC justices are appointees of former President GMA. 

The question is basically this: “Which should prevail, the Rules of Court as promulgated by the Philippine Supreme Court or the Opinion of the UN Working Group on Arbitrary Detention?”

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