Monday, December 07, 2009

The Unintended Brilliant Legal Strategy

The Philippine government placed Maguindanao, a province in Mindanao, Philippines under Martial Law. The public has been generally supportive of this aggressive military action as a proportionate response to the massacre of more than 60 people in broad daylight. Martial Law has been in effect only for two days and the government has unearthed, literally, in various places, dozens of high powered firearms, thousands of ammunition and machine guns. The biggest problem of the government though is justifying the imminent danger of rebellion. This is because the government chose the "Martial Law" option. I suggested the "Doctrine of Equivalent Action" instead. (Read my blog on this topic). The government is set to file rebellion charges, separate of the charges of murder. We must note that direct evidence is always the problem in criminal prosecution. It is not far out to say that the government has no strong direct evidence linking to the Ampatuans although the circumstantial evidence is overwhelming. Enter Martial Law. I have realized that the government has a very powerful brilliant legal strategy on hand. The gathering of evidence using search warrants are tedious because it requires "personal" hands-on knowledge of the applicant for the warrant before the courts issue warrants. This procedural due process is obviously inefficient and inadequate but then efficiency and due process are usually contrapuntal. With the advent of Martial Law, however, there is a dramatic strategy that is available to the government. Under the cloak of Martial Law, any gathering of evidence that would been illegal, are suddenly, legal, as a consequence. There is speed, efficiency, universality of scope. The illegally gathered evidence are now legal and can be used in the courts of law. And since rebellion, which is a political crime, and murder, which is a crime against persons, are being prosecuted separately and independently, then failure in the prosecution of the former crime does not automatically mean failure in the prosecution of murder. What is the brilliant strategy I am referring to? The brilliant strategy is using the mantle of Martial Law to illegally gather evidence but instead of prosecuting them under political crimes, the suspects are charged with the ordinary crimes of murder. Thus, Martial Law is used to gather evidence and but the evidence is used to prosecute for murder under ordinary courts using ordinary criminal procedure. This avoids any political cloud because the procedure is definite and clear: prosecution of murder under the rules of criminal procedure. A brilliant strategy, indeed, and the government is commendable for this legal strategy. But are they that brilliant to have the foresight to think that far ahead? Or is it the unintended consequence? Or maybe, it is the Street Strategist seeing what everybody else has seen and thinking what nobody else has thought? --

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