Sunday, November 13, 2011

Flight and plight

Flight and plight

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"x x x.

Lacson’s flight. Note however that flight is damning only when “unexplained”; only when unrebutted by contrary evidence. Though admitting that “evading arrest may be legally difficult to justify,” Lacson was in hiding for 14 months, from his “disappearance” on Jan. 4, 2010, until he “reappeared” on March 26, 2011. He thus avoided detention as a consequence of the non-bailable double murder case filed against him a month after he fled.

Lacson aborted his flight only after the charges against him were “dismissed” and the arrest warrants “nullified” by the Court of Appeals (CA) on Feb. 3, 2011. By tanking the charges though Lacson was still at large, the CA encouraged lawlessness and disrespect for the rule of law. However, the CA explained that the Supreme Court allows petitions for certiorari even when the accused “is at large and evading arrest.”

For Lacson, however, the issue of whether he could be indicted anew for the Dacer-Corbito case is still open since the CA’s decision was based on “lack of probable cause,” not on an acquittal after Lacson had been arraigned and pleaded “not guilty.” The defense of double jeopardy attaches only after the accused has been arraigned.

Gloria’s plight. Compared to Lacson’s, former President Gloria Macapagal-Arroyo’s plight is a bit more complicated. She cannot go abroad due to a watch-list order (WLO) of Justice Secretary Leila de Lima. In her Supreme Court petition filed on Nov. 8, Arroyo insists that her constitutional right to travel cannot be “impaired except in the interest of national security, public safety or public health, as may be provided by law.” Au contraire, De Lima cites Department of Justice Circular 41, promulgated ironically during GMA’s reign, authorizing her to issue the WLO.

To be sure, the oft-cited Supreme Court decision on the right to travel (Marcos v. Manglapus, Sept. 15, 1989) barred the return of former President Ferdinand Marcos for reasons of “national security” even when not “provided by law.” This policy-oriented interpretation of the Constitution tried to balance this constitutional right with the national interest.

GMA’s petition asks for a temporary restraining order (TRO) to enable her to fly while her case pends. Clearly however, an ex-parte TRO will practically decide the whole case without any hearing. So it may be best to require respondents to comment on the petition and to call for an early oral argument. This, I think, is the fair and transparent way of handling this paramount case with far-reaching consequences.

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