Morass

The degree of civilization in a society can be judged by entering its prisons. – Dostoevsky.

The shocking images of our overcrowded jails expose a humanitarian calamity. These past weeks, we’re discovering out that our prisons are even more rotten. The Bureau of Corrections is a petrie dish of corruption and abuse. And its not just those behind bars that are guilty. The ones who hold the keys may even be worse. 

Until this “wildfire” conflagrated, there was very low public interest in the conditions, issues and pressures of the correctional system. The prison sector has aptly been termed the forgotten, the invisible. How can the inadequacy of accountability measures be now denounced when we didn’t care enough to check in the beginning? We were ok with the high walls when it was transparency that was needed; with the life and death power of administrators over the prisoners at their mercy. Did we not applaud when PNP Special Action Forces were called in to manage the control deficit at Bilibid? Better to throw tough love at it than embrace the burden of getting down and dirty to understand it. In the end, we placed our trust in a decorated marine captain.

A working criminal justice system is the foundation of a free society. Sir Winston Churchill, a staunch prison reform advocate, stood up in Parliament to declare: “A calm and dispassionate recognition of the rights of the accused against the State, and even of convicted criminals against the State … a desire and eagerness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punishment … and an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man – these are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it.”

He believed that “The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.” This ethos is summed up in his statement: “show me your prisons and I will show you what society you live in.” 

The congressional hearings show that not only has our prison system failed to find that treasure in the heart of men, it has instead produced a different kind of beast. And we are not speaking of the ones inside even though, in several instances, these places are more suitably called pounds than prisons.

So, this colossal loss of confidence. And its getting uglier by the day.

Swamp. The worst case is the A-1 intel report that freedom is for sale inside the Bilibid prisons. Now, culprits may point to legislative carelessness that enabled this scenario to evolve. It’s not their fault that our lawmakers couldn’t make the time to write a simple, cohesive statute. 

But even if this were the best case, how do you justify the BuCor action? It’s as if the implementors saw a loophole and, instead of plugging it, proceeded to take advantage of it.

Equally important as avoiding any miscarriage of justice is what has been termed the “appearance of justice”. True, they may have been confident that their interpretation was legally permissible. But, seriously, did it appear just? Its not enough that justice is actually done but that it appear to be so. And this should generate, per Justice Felix Frankfurter, “the feeling so important to popular government that justice has been done.”

How important to us is this feeling? Like the impeachment and federalism debates, we are again the overnight GCTA professors. But it doesn’t take society’s seasonal proficiency in law to see that our confidence in our corrections system has been shattered. How important is it? Our outrage speaks for itself. 

Quicksand. The order to re-arrest those convicted of heinous crimes released on GCTA presents a multidimensional legal question. Having gone through legal process, these ex-convicts are, by right, free men. They’re not escapees. As such, they can only be arrested with warrants issued by the court. Even the Supreme Court cases invoked in support of the Presidential order refer to situations where the released convicts had to be re-arrested on the strength of the Supreme Court’s own warrants.

The functioning of the three branches in this instance evidences their equilibrium. Congress exercised oversight, thru congressional investigations, to establish the deficiency in this particular legislation. It is now the Executive’s turn to properly implement the same. It is their duty to correct the previous wrong interpretation and to hold to account those responsible. They can’t avoid calling out those who erroneously applied the law and neither should they avoid the command responsibility. 

But can the President just press rewind and proceed to make the released men criminals again by his own fiat (a legislative power) and order them arrested (a judicial power)? This is first among the critical questions that need answers. Inevitably, the courts will have to intermediate and ensure that there is no overstepping of boundaries. With the hurricane of damage all around, magistrates must be vigilant that core values of rule of law and due process do not, themselves, get swept up into the maelstrom.

Fiat justitia ruat caelum. Let justice be done though the heavens fall. This may be the philosophy behind the Presidential assumption of control even when presented with this monumental fait accompli. With public opinion behind him, his burden is light. 

But this same standard will be applied by the Courts and they bear the heavier burden. Because, in the end, it is their first duty to remind us of what should constitute true justice.