FREEDOM DELAYED IS FREEDOM DENIED

Discrimination Against Muslim Race?

FREEDOM DELAYED IS FREEDOM DENIED


By  BERTENI "TOTO" CATALUÑA CAUSING

Freedom cannot be equated to money or life.

There may be money. But if there is no freedom, what is money?

There may be life.  But if there is no freedom, what is life?

This I write in relation to the cry for freedom of two young Muslim men arrested as they were mistaken for MILF rebels and detained for more than two (2) years at the Philippine National Police (PNP) Custodial Center although the 30 cases of arson and 56 cases of robbery were dismissed in so far as they are concerned.

These young men are Kamarudin Aguil Awal and Salahudin Kanakan Eson. I committed my service for their liberty.  Due to this, I filed an "Urgent Petition for Writs of Amparo and Habeas Corpus" before the Supreme Court on June 15, 2012.

The Supreme Court acted quickly on June 19, 2012, directing the PNP and the OSG to bring forth the bodies of Awal and Eson to the Court of Appeals and submit a verified return explaining the reasons for detention of the two.

Now, I summed up all my arguments. 

There are at least six (6) reasons why the detained persons subject of this extraordinary proceeding, KAMARUDIN AGUIL AWAL and SALAHUDIN KANAKAN ESON, must be ordered released, NOW.

I

First, there is no more criminal case pending against them. 

The Regional Trial Court of Midsayap, Branch 18, where the information sheets for arson and kidnapping, ordered the dissolution or quashing of these indictments against them.

Along with the order that quashed the same indictments, the same trial court ordered the release of Mr. Kamarudin Aguil Awal and Mr. Salahudin Kanakan Eson.

That order enjoys the presumption of the law.  It was issued in the performance of an official function of the same trial court.

Undaunted, the prosecutor in charge in Cotabato province filed a motion for reconsideration from the order quashing the informations and stood firm that the persons subject of this proceeding cannot as yet be released and the order of release can be stayed.

 The same RTC denied the motion.

The prosecutor became bolder. He went beyond the Rules of Court. He filed a second motion for reconsideration. 

It is succinct that a second motion for reconsideration cannot be rejected by a trial court because the Supreme Court has not given it such authority to do so. To the contrary, the Rules of Court promulgated by the Highest Court prohibits a second motion for reconsideration.

What is important now is this: THE ORDER OF THE RTC OF MIDSAYAP HAS LONG BECOME FINAL, NOT ONLY EXECUTORY, WHEN THE PERIOD OF 15 DAYS LAPSED FROM THE DAY THE COTABATO PROSECUTOR RECEIVED THE DENIAL OF THE MOTION FOR RECONSIDERATION.

In other words, IT IS UNDISPUTED, THERE IS NO MORE CASE.

It is immaterial whether the RTC of Midsayap committed an error of judgment or a grave abuse of discretion. The fact remains that the PNP or the Office of the Solicitor General or the Department of Justice DID NOT FILE ANY CERTIORARI FROM THE ORDERS OF THE RTC OF MIDSAYAP.

Feeling hopeless coupled with the fact that the detainees have been detained at the PNP Custodial Center in Camp Crame, Quezon City, the former lawyer of the detainees filed a petition for the writ of habeas corpus before the RTC of Quezon City, Branch 220.

The RTC of QC ordered the release of Mr. Kamarudin Aguil Awal and Mr. Salahudin Kanakan Eson.  The PNP Custodial Center headed by Colonel Cesar Magsino refused to heed the writ.  Instead, he filed a motion for reconsideration.  The same was denied.  Deliberately, he filed a second motion for reconsideration: another prohibited pleading.  The same was denied, again, by the RTC of QC.

The Office of the Solicitor General (OSG) compounded the destruction of the rule of law.  It even filed a Petition for Certiorari, instead of advising the PNP to obey to the order of the RTC of QC.

Why the OSG did that? Why?


II


            Second, there is no law giving right to any public officer to withhold the order of release.

            The basic concept of freedom says that only a due process can deprivation of liberty be allowed.

            The due process referred to here begins from the enactment of a law defining acts to be punished with restrictions from freedom.  It then goes to the publication of that law to inform the general public that if they commit such acts they will be jailed.

            This is the wisdom behind why criminal law application is prospective.  This is the reason why a Latin maxim was born: “Nullum crimen nulla poena sine lege.”

            This is the reason why the Constitution’s Bill of Rights, treats liberty at the top, in Section 1 of Article III of the Constitution that says: “No person shall be deprived of liberty without due process of law.”

            This is also the reason why the Constitution’s Bill of Rights emphatically said in Section 22 thereof, “No ex post facto law or bill of attainder shall be passed.”

            Now, I ask the OSG, the top lawyer of the people, that has dual function of fighting for the innocent and seeking conviction for the guilty.

            I also ask the Philippine National Police and the Regional Trial Court of Pasig, Branch 70.

            Has there already been a law passed and published imprisoning a person if it happens that his custodian filed a motion for reconsideration from the court’s order releasing him from prison?  The petitioner and this advocate are not aware.

            If there is no law giving right to the custodian to continue the detention if the custodian filed a motion for reconsideration from the order releasing the detainee, then why are the authorities withholding these two pitiful souls?

            Is it discrimination?

            Is it because the two persons do not pray like the captors?

            Is it because the two persons belong to the race of people whose names sound ugly and offensive to the ears?

            Is it because Kamarudin Aguil Awal and Salahudin Kanakan Eson belong to one of the marginalized tribes in the country?

            What if Kamarudin Aguil Awal was named Peter Aquino and Salahudin Kanakan Eson was named John Cruz? Will the captors do the same?

            What if they were children of Col. Cesar Magsino?  Will the superintendent still imprison them?

            We have seen history teaching that discrimination has been a root of rebellion.  When will we ever learn?


III


            Third, allowing the PNP, the OSG and the RTC of Pasig, Branch 70, sitting in Taguig, to continue to withhold the action to release the two will destroy the Revised Penal Code.

            It will render inutile Article 124 and 126 therein.

            Article 124 punishes the detention of a person without authority. 

Article 124’s punishment depends on how long the detention was committed.  Up to three days begets up to prision correccional minimum.  More than three days but up to 15 days begets up to prision correccional maximum.  More than 15 days but up to six (6) months begets up to prision mayor.  More than six months begets reclusion temporal.

            Article 126 punishes the act of delaying the release of a detainee from the day of the receipt of an order of release. The scales of imprisonment are the same as in Article 124.

            WHAT WILL WE DO NOW WITH ARTICLE 124 and ARTICLE 126?  After all, the top enforcer of criminal laws and the top lawyer of the land are disrespecting it?

            This is no less than exceedingly disgusting and revolting to the conscience of men and of the world of decency and democracy!

            If the Supreme Court at once decreed that seizure of evidence in violation of the seizure law invalidates all evidence as “fruits of poisonous tree” because allowing them will render the law on violation of domicile law inutile, can we not do the same in this case because Articles 124 and 126 are also at risk in the same manner?


IV


            Fourth, jurisprudence is abundant to teach that any order of release to freedom is immediately executory.

            One of these case laws, Commissioner Rufus B. Rodriguez vs Judge Rodolfo R. Bonifacio, RTC Branch 151, Pasig City, AM No. RTJ-99-1510, November 6, 2000, says:
Neither is this Court persuaded by the argument that the May 27, 1999 Order was not yet executory because BID’s Motion for Reconsideration stayed its execution.
By its very nature, habeas corpus proceedings are always characterized by promptness or speed.  It is always timely to recall this categorical affirmation in the ponencia of Justice Malcolm in the landmark case of Villavicencio v. Lukban, supra:
The writ of habeas corpus was devised as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom.
Therefore, only an injunction from a Higher Court could restrain enforceability of the May 27, 1999 Order which, by its unmistakable language, directed the “immediate release” of petitioner Ma Jing.

V


            Fifth, if the government that has been doubted by the rebels as to its sincerity to comply with its pledges, how much more damage to trust can happen if it cannot even be decent to obey its own rules, particularly that says: “No man shall be imprisoned without a case.”

            Awal and Eson are sons of Maguindanao families. It is in this tribe that many of the rebels in the ranks of the MILF, MNLF and the new one, Bangsamoro Islamic Freedom Fighters (BIFF), come from.

            Can our government that is talking peace with the MILF be trusted for all its representations?

            Confidence-building measures are indispensable in peace negotiations in order for the discussions in the search of peace road to run smoothly.



VI


            Sixth, suspicions, however great, cannot substitute evidence.   They are nothing more but suspicions.

If the PNP failed to prove their case against KAMARUDIN AGUIL AWAL and SALAHUDIN KANAKAN ESON before the RTC of Midsayap, Branch 18, what else will they do?

            It is better to allow a hundred criminals roam the streets than detain one innocent person.

            A minute of imprisonment is a lifetime of predicament. If justice delayed is justice denied, a right delayed is also a right denied.

            If not now, when shall we free these men?  If not this Court, who else will?

            FREEDOM DELAYED IS FREEDOM DENIED.

            YOUR HONORS, FREE THESE MEN, NOW! 
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