By Hilario G. Davide, Jr.
Response or Initiative?
Some years ago, a short prayer became very popular. It still is. It goes by various names, but I prefer Prayer for Serenity because that is the blessing it seeks, and that has been its effect on me in so many difficult moments. It reads:
Lord, grant me the courage to change the things that can be changed
I breathed this prayer as I watched in horror the television footage of this century’s “day of infamy,” 11 September 2001. I find solace in it whenever my own country reels from our share of terrorism. It is on my lips as I agonize over what the terrible specter of terrorism, both global and domestic, demands as response from the judiciary, and, closer to home, the Philippine judiciary of which I am the present steward.
I am sure we all agree there should be no change in our resoluteness to bring about the change that should eradicate Terrorism. But we who are magistrates, judges and justices must once more pray for serenity, for there is a response proper to the judiciary, and there are avenues not open to it. And while we excel at crafting catchy phrases about the power of the courts – such as the well-worn line that real power consists not in writing the law but in saying what it means – in our more sober moments, we all acknowledge that there is a becoming reticence that makes of the judiciary a less aggressive component of government than legislatures and executives. We are unanimous on one fundamental premise: that the judiciaries of each state must be venues not only for reacting to terrorism, but for addressing it effectively.
Even the existing international judicial organs – such as the International Court of Justice and the ad hoc International Criminal Tribunals, one for the former Yugoslavia and the other for Rwanda, and the long awaited International Criminal Court whose Statute, the Rome Statute, was recently ratified by the requisite minimum number of States and which will take effect on 1 July 2002, -- are, I submit, correctly characterized as reactive in much the same sense that in most jurisdictions, courts adjudge only when an actual controversy is brought before them for resolution.
Courts, whether domestic or international, respond to causes of action, or to breaches of the law, and so they will respond to cases of terrorism, and they must do so with that degree of coherence and consistency that will leave no doubt that judiciaries are capable of dealing with terrorists and their trade in a manner that is not frightened, but characteristically rational and just. While I am not well prepared to cast a negative vote on ad hoc mechanisms for dealing with incidents of terrorism, such as ad hoc tribunals, military tribunals, or hastily promulgated rules for summary procedures, I must clearly express my preference for the proposition that the regular courts, and the established judicial institution, be given the chance to instruct society on its capacity to cope with this particular challenge, and concomitantly to evolve both substantively and procedurally from these tests.
But even granting the reticence that is proper to the judiciary, I respectfully submit the thesis that we on the Bench are capable of a considerable degree of initiative directed at the engineering, operation, accessibility and dependability of our courts, and of the judicial system. The serenity we pray for also bestows on us the fortitude to make of our judiciaries, both international and domestic, instruments of peace and justice that do not cower before the shadows of lawlessness and terror.
I beg us all to resist the temptation to attribute to terrorism – no matter the blood and carnage it leaves in its wake – some mythic magnitude that makes it larger than life. John F. Kennedy held fast to a creed that kept him firm while the world was on the brink of catastrophe during the Cuban Missile Crisis. He said: “The problem is man-made. Therefore, it can be solved by man.” Terrorism is man-made; therefore, it can be solved by men and women of resolve. The Bench is not a refuge from the strife. It is the institution that embodies humanity’s unequivocal refusal to capitulate to irrationality.
In our robes and wigs, with our tomes of learned treatises and our treasury of citations, precedents and doctrine, we are indeed an odd lot wading through mangled corpses, dodging sniper fire, and ramming the law into the barrels of guns. But in this oddity our service to humanity and the world as judges and jurists must be a vision of a well-ordered society distilled in articles of the law, or of treaties, in codes as well as in judicial precedents, in the erudite disquisition and treatises of authorities. We must faithfully maintain this vision, though odd in these troubled times.
Access to Justice and Terrorism
It is bad enough that terrorists strike fear, no longer in local communities, nor within states alone, but in the entire global village. It is even worse, however, that no matter how reprehensible and dastardly the deed, they may still receive acclaim and accolade as “heroes” or “martyrs” from communities. This phenomenon highlights two concerns: first, the color of moral justification terrorists and their supporters invoke; second, the sad but persistent fact of marginalization. They are not unrelated concerns, for if we look beyond our characterization of terrorists as criminals deserving of unmitigated punishment, we will also find that they present themselves as champions of their communities, nations or peoples whose marginalization – whether real or imagined – they deeply lament and boldly vindicate.
There is broad-based consensus in my country that access to justice ought to be high on our list of priorities. For us, this has meant not only multiplying courts and increasing the number of judges, but bringing procedural rules up to date and equipping judges and court officers, principally through judicial education, with the competencies that attend to the demands of vulnerable sectors. Put otherwise, it is my view that when, within each State, we make our courts and the institutions of redress accessible to all, we address in considerable measure the problem of marginalization, and strip all would-be terrorists of the vestiges of moral entitlement or legitimacy they claim. When the venue for rational redress and the orderly resolution of controversies and claims is accessible, then none should be heard to complain that violence was the only means to call much delayed attention to long-festering social injuries.
One judicial venue is the re-examination of the present doctrine of locus standi or standing before our institutions of redress. In the Philippines, the issue of locus standi before the Supreme Court has always been an issue for spirited debate. The knee-jerk reaction of many is to hew rulings on standing along traditional lines, that is, the more restrictive criteria that require allegation of actual harm, damage or detriment particular to the party who claims standing. In a number of cases, writing for the Court, I enunciated a more liberal reading of the doctrine that allowed the court to pass on issues of pressing concern to our citizenry while keeping within the bounds of the “actual controversy” requirement of the Constitution of the Philippines. In fact, in a frequently cited case, Oposa et al. vs. Secretary Factoran, (G.R. No. 101083, 30 July 1993) I even sustained the standing of minors to bring suit, not only in their behalf, but also in behalf of generations yet unborn, to shield the country’s dwindling natural resources from farther degradation. I believe it is far more preferable to allow an issue of urgency of transcendental importance to be argued before and passed upon by the courts than to leave aggrieved parties with the feeling of helplessness born out of a strict and unrelenting application of traditional, if not outmoded, concepts of standing and personality.
About two years ago, advocacy groups, religious and civic leaders sought to enjoin the entry of American troops into my country under the terms of the Visiting Forces Agreement that the Philippine government had entered into with the United States of America. They asked the Supreme Court to nullify the agreement. The public respondents raised the issue of locus standi, pointing out that none of the petitioners met the requirements of standing that had been set forth in more restrictive pronouncements of the Court. Although we agreed with the respondents that the petitioners lacked standing under more traditional standards, we nevertheless ruled: “[I]n view of the paramount importance and the constitutional significance of the issues raised in the petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes cognizance of the petitions xxx” (Bagong Alyansang Makabayan v. Zamora, 342 SCRA 449, 480 ).
More recently, our Supreme Court was asked to pass upon the legality of the joint military exercises between Philippine and U.S. troops. Quite significantly, the Court observed that “the entry of American troops into Philippine soil is proximately rooted in the international anti-terrorism campaign declared by President George W. Bush in reaction to the tragic events that occurred on September 11, 2001.” The petitioners had come to court in their capacities as citizens, lawyers and taxpayers. The Solicitor General raised the issue of their standing. The Supreme Court, however, would not be deterred from settling an issue of urgent concern by recourse to a classical notion of standing. Reiterating its doctrine about liberalizing standing in cases of transcendental importance and grave national concern, the Court gave the petition due course, although it ultimately held in favor of the exercises. (Lim v. Honorable Executive Secretary, G.R. 151445 [April 11, 2002]).
When persons in the fringes of national life have access to judicial process, and when their attempts to seek redress from the courts are not peremptorily barred by archaic concepts of standing, the very hospitability and accessibility of our judicial system would be the strongest condemnation of any recourse to violence and anarchy.
Judicial Independence as a National Venue
Aristocracies have long gone the way of oblivion. I am arguing, however, for an aristocracy of the judicial office as one national venue for a confrontation with terrorism. Our recent experience teaches us that those whom we characterize as terrorists are resolute, if not rabid partisans: ethnic, cultural, religious or political. The government itself, at least in most working democracies, is partisan. What philosophers call the phenomenon of resentment partly explains terrorism. When the weak have been pushed into a corner by the powerful, unable to stand to the full force and fury of the strong, the weak will strike back in whatever insidious manner available, such as, for example, suicide attacks, hate literature, and even anthrax.
But where a venue offers itself as neutral, or where a forum offers itself that allows all to be heard, there is an alternative to the bitter fruit of resentment.
Every judiciary then, though necessarily a part of governmental machinery, should, by constitutional provisions strengthened further by statutes as well as firm judicial tradition, keep itself above partisanship and maintain that aristocratic pose that allows it to be a credible, competent and morally ascendant referee to contending parties. For many a group given to terrorism, after all, the battle-lines are clearly drawn: It is “Them” against “Us,” and no matter how simplistic this may be, it is, I believe, what makes all of us fair game! Terrorists do not choose their victims, because the great divide does not allow for further qualification: Simply “Them” and “Us.”
I finally believe that an independent judiciary perceived to be independent allows a tertium quid, a third term, to break the naïve simplicity of this disjunction. When the judiciary is not beholden to the government in power, nor captive of any power sector, then it is, by itself, the venue against violence and lawlessness. Recourse to the courts should always offer plaintiffs and defendants alike the hope that it will be the soundness of their cause that makes the difference, and not any force of arms.
The more aloof then our judiciaries are to the makers of policy, the more surely they can be counted on to mediate between conflicts of policy. The more indifferent our judiciaries are to power-brokers, the more effectively they can effect submission to the rule of law. In my country the present Constitution which was prepared by the Constitutional Commission of 1986 and ratified on 2 February 1987 by an overwhelming majority of the votes of the electorate in a plebiscite held for the purpose, enshrines safeguards of the judiciary’s independence. Many feared that these safeguards fashioned an oddity, a government by the Judiciary. Our experience has proven this fear unfounded, and while we will not be lacking in critics, the fact is that our courts are swamped with cases. This, I think, is an assurance that the aristocracy that we have designed for the Philippine judiciary was not a bad idea after all.
Defining the Offense of Terrorism
It is not easy to find a definition of “terrorism.” Various international attempts to define it had been made as early as 1937 when the League of Nations prepared a draft of an International Convention for the Prevention and Punishment of Terrorism. Since 1963 the United Nations Organization has adopted twelve multilateral treaties on terrorism. Then we have the 1994 General Assembly Declaration on Measures to Eliminate International Terrorism and the 1997 International Convention for the Suppression of the Financing of Terrorism.
We also note that domestic municipal laws of countries do not penalize terrorism per se. I understand that, of late, the United States has enacted its International Crime Control Act of 1998 and the United Kingdom has enacted its Terrorism Act of 2000. In my country there are, so far, three pending measures – two in the Senate and one in the House of Representatives – to define and punish terrorism.
The problem of naming the animal can no longer be postponed. From the perspective of penal law, legislatures the world-over and international organizations must arrive at a policy decision. Is it terrorism itself that is to be defined and punished as a crime, or do we prosecute the predicate acts and so deal with them? If it is the latter option we take, most statute books are quite capable of dealing effectively with such acts for murder, homicide or manslaughter, physical injuries and battery, kidnapping and illegal detention, and damage to property are punished as crimes in virtually all jurisdictions.
There is, however, a very special advantage in defining the crime of terrorism, and in punishing it as such. The intent to strike fear in the population, threaten a government, or paralyze the functioning of State pursuant to some political, ethnic or religious agenda would be what we would characterize in Philippine penal law as the “qualifying circumstance” of the crime. Taking this course of action in developing penal law first serves the useful purpose of recognizing, and holding abhorrent, unacceptable and reprehensible, the criminal intent of striking fear and terror, of intimidating and of threatening. Then too, cognizance of the mens rea in cases of terrorism would appropriately convey the gravity of the offense. “Battery” or “physical injuries,” for example, does not adequately capture, for purposes of prosecution, the gravity of mauling or beating persons with intent to cow an entire community into submission. Fortunately, there is international precedent for this proposal. Article 30 of the Statute of the International Criminal Court makes the “mental element” – mens rea – a requirement for a finding of culpability. In the Elements of Crimes agreed on by State-Parties to the ICC, crimes against humanity, for example, defined by Article 7 always include the knowledge or intent to afflict a community with a wide-spread attack.
Refining the Concept of Universal Jurisdiction
Still further to my proposal that we take the necessary steps to define and punish the crime of terrorism, I suggest that national legislatures classify it as a “crime in violation of the law of nations.” This has two consequences: first, it will render applicable the “doctrine of universal jurisdiction”; and, second, it will provide for concurrent jurisdiction between international courts and domestic courts, and allow for the latter to yield jurisdiction to international courts according to treaty obligations.
While strictly, Prof. Ian Brownlie (Principles of Public International Law, 4th Ed., 304-305) is right in pointing out the difference between the principle of universal jurisdiction and the punishment of such crimes as violations of the laws of war, it still is a fact that genocide, war crimes and crimes against humanity are of concern to all nations of the world, that every State can prosecute, try and punish offenders even absent any of the more traditional bases of jurisdiction such as territoriality, nationality, passive personality and national protection. If, as it should be, terrorism is so abhorrent to international public policy as to confer jurisdiction upon every State to apprehend, prosecute and try terrorists no matter their victims’ nationalities or the locus of the crime, the effect, it has commonly been hoped, would be that terrorists will hardly find any safe haven among most of the nations of the world.
Clearly, we whose decisions and opinions shape jurisprudence are in a privileged position to refine this most useful concept of international law.
The terrorist rattles his saber to strike fear. It may not be for us justices, judges and jurists, to man the front-lines and there deal with terrorists head-on. It would, however, be the victory of terrorists were we, high-priests of the law, to cower in fright and withdraw in apathy into the sanitized confines of archaic and obsolescent versions of such legal concepts as standing, jurisdiction and crime.
I hope to have proposed more than just the prosecution and the punishment of the terrorist. I hope to have proposed that we deny any terrorist the excuse that he or she was never heard, had no access to the institutions of justice, was confined to the margins and to the fringes of society, was the victim of State lawlessness or criminality.
There remains much wisdom from on high in the vision of the prophet who foretold that only when all receive the blessings of justice shall swords be forged into plowshares, and spears into pruning hooks. I am incorrigible in this belief.
May we see in our generation a world free from terrorism where the rule of law, justice and peace forever reign. And I pray that the high priests of the law in the judiciaries of various States be unceasing in their resolve and toil to realize this vision.
All the best!