PRESIDENT Duterte said in a recent speech:
“There in France, they can detain a person almost indefinitely, under the French law. And the French law says you are guilty, and you have to prove your innocence. Gano’n ‘yan. Presumption dito, inosente ka (It’s like that. Here in the Philippines the presumption is, you are innocent),” he said.
A veteran anti-Duterte columnist was almost in religious ecstasy gloating over what he claimed was an unforgivable boo-boo for a President of the Republic. The French embassy promptly issued a press statement saying that “the presumption of innocence until proven guilty is at the core of the French judicial system.”
Read on, and you will find that despite what at first impression seem to be shocking statements about the country that claims to be the ”cradle of human rights,” Duterte is correct, or very nearly correct.
Duterte was nearly correct when he said that the French “can detain a person almost indefinitely, under French law.” Duterte’s mistake was that he didn’t qualify that the French laws he was referring to were those aimed at fighting terrorism.
A paper by the US-based think-tank Brookings Institution pointed out: “Pre-trial detention (in France) can last for up to four years in terrorism cases with the investigating magistrate effectively determining the pace of the investigation and therefore the trial.”
If a terrorism suspect is held without trial for four years while the investigators look for evidence against him in their own sweet time, isn’t he being presumed to be guilty? If it were you who was detained for four years without trial, wouldn’t you say you felt that you were “almost indefinitely” jailed?
Guilty for future acts
In fact, the current centerpiece of the French approach to terrorism not only in effect presumes a suspect guilty until proven innocent. Believe it or not, there is a French law, Law 96-647 of July 22, 1996, that says that a terrorist suspect can be charged for committing terrorism in the future.
This law penalizes what is called “criminal association in relation to a terrorist undertaking” (“association de malfaiteurs en relation avec une enterprise terroriste”). The international NGO Human Rights Watch (HRW) explained what it is about (emphasis mine):
“It allows the authorities to intervene with the aim of preventing terrorism well before the commission of a crime. No specific terrorist act need be planned, much less executed, to give rise to the offense. Intended to criminalize all preparatory acts short of direct complicity in a terrorist plot, an association de malfaiteurs charge may be leveled for providing any kind of logistical or financial support to, or associating in a sustained fashion with, groups allegedly formed with the ultimate goal of engaging in terrorist activity.”
The HRW reported: “The vast majority of terrorism suspects are detained and prosecuted on this charge. According to government statistics, 300 of the 358 individuals in prison for terrorism offenses in September 2005—both convicted and those awaiting trial—had been charged with ‘association de malfaiteurs’ in relation to a terrorist undertaking.”
It means for instance that if military intelligence manages to eavesdrop on a conversation among Muslims that it would be a good idea to attack Davao City, that audio tape would be enough for the police to arrest and detain for up to four years those who were heard having that conversation. And if you just allowed this would-be terrorists to use your living room to discuss their plan, you would be charged and thrown in jail too.
Also, under the recent French anti-terrorist laws, a suspect involved in terrorism, drug trafficking or organized crime cases can be detained incommunicado, without being charged in court for as long as four days.
In our case, even under martial law, you have a right to consult a lawyer the second you are arrested, and can be detained without charges only up to one-and-a-half days.
While he controls Congress, Duterte should ask it to pass similar laws. So we won’t be accused by the likes of the French human rights militant Agnes Callamard, we should just copy word for word the English translation of France’s Law 96-647 of July 22, 1996. Duterte wouldn’t need to go through the big hassle of declaring martial law, if we have laws similar to the French laws on terrorism.
Imagine, under such a charge as “criminal association in relation to a terrorist undertaking,” suspected members of the communist New People’s Army—which after all has been declared a terrorist organization by the US—could be arrested and detained for four years.
The need to fight terrorism, however cannot be an excuse for French laws that essentially presume a terrorist suspect guilty. French criminal laws are harsh, according to one explanation, because these originated from the need to fight criminal gangs that emerged after the chaos of the French Revolution that threatened the stability of government.
Indeed, the notion that French law presumes an accused guilty has been so widespread that it is an item in the respected debunker of fake news snopes.com, which tried to disprove it, although unconvincingly.
That notion was bolstered by the infamous, so-called Outreau trials that started in 2004 which was such a scandalous abomination of justice in France that it shocked the nation. About six films were made on this episode.
I watched just a few months ago one of this, a dramatization, Présumé coupable(translated as “presumed guilty”, although the movie’s title was solely “Guilty”), which depicted in detail how the French prosecutorial system was so against a suspect that it had been seared in my mind that, as Duterte thought, France’s legal system does presume an accused guilty, that he has to prove his innocence.
In that very sad episode, French authorities astonishingly presumed that 18 residents of the working-class town of Outreau in northern France were guilty of sexual abuse and rape of a dozen minors, even of their own children, even if they had no past criminal records and were known to be ordinary law-abiding citizens. One of them, who is the subject of the movie, was even a bailiff. The allegations were based entirely on the claims of three residents, who didn’t even know them.
Were the French authorities, using the Embassy’s words, guided by the principle of “the presumption of innocence until proven guilty”? If they were, the 18 suspects would not have been jailed for years, their lives ruined.
After four years in prison while the trial went on, and with one dying in jail, all the 18 accused were acquitted. The three accusers admitted they were lying; one of them was portrayed in the movie as being crazy. Then President Chirac called the episode a “judicial disaster” and extended the French government’s official apology to those very falsely accused.
The French parliament investigated the case, and found flaws in the judicial system that in effect presumed an accused guilty, until he proves himself innocent. One big defect was the dominant role of the magistrate.
This was dramatized well in the “Presume Coupable” movie, in which the magistrate was fresh out of college, had so many cases to handle, and was so driven to prove his mettle as a prosecutor that he ignored all the evidence provided by the accused. The French legal system, if adopted here, would in effect make our fiscals (prosecutors), the accuser, the jury, and the judge.
In the way of the real world though, the supposed universal right of being presumed innocent until proven guilty is a myth. It is a reality only if anybody accused of even the most heinous crimes is immediately released after being charged.
If he is presumed innocent, shouldn’t a suspect be freed without even requiring bail? But you would reply: bail or incarceration is necessary to prevent his flight from justice. But I thought we were presuming him innocent, in which case he wouldn’t flee?
Under a dictatorship, I was detained for two years as then Philippine Constabulary Chief Fidel Ramos presumed that I was guilty of subversion, no need for a trial. Under a so-called rule of law, President Gloria Arroyo was accused of misuse of PCSO funds and spent four years in detention before she was acquitted. Was she presumed innocent?