So shocking to the conscience

In his book the “Last Utopia: Human Rights in History” (Harvard University Press, 2010), Samuel Moyn argues that human rights as a concept did not really take off in the West until the late 1940s. And even so, for its proponents, “it was just another way of arguing for one side in the Cold War struggle.”

But as early as 1936, our Supreme Court, through the inimitable pen of Claro M. Recto — polyglot, nationalist, and founder of the Civil Liberties Union — was denouncing an hacienda for oppressing a tuba dealer, calling the former’s acts a travesty that properly belonged to the feudal era when “human rights were unmercifully sacrificed to property rights.”

To be sure, Serafin Hidalgo drove his own automobile to deliver his goods to aficionados, who happened to live on the premises of Hacienda Sangay, very near the plaintiff North Negros Sugar’s azucarera at Hacienda Begona.

The sugar central owner had begrudged its own laborers’ imbibing of Hidalgo’s concoction, and barred the latter from also peddling his goods there.

Interestingly, Recto called North Negros Sugar’s tact “so shocking to the conscience.” For the sugar central owner’s feared road to its laborers’ perdition had all along been open to public use, and by its own doing. Even carabaos were allowed to pass for free; why not Hidalgo, who had been religiously paying the gate fee of 15 centavos per trip?

Consider what else the Supreme Court had considered to be shocking to the conscience prior to this: a judicial sale of foreclosed real estate for a grossly inadequate consideration (1909), the sale of a defaulting mortgagor’s land by the sheriff without notice to the mortgagor (1913), and the fraudulent registration of lands belonging to the Bagobo—yes, the lumad!—after a questionable foreclosure sale (1934).

The phrase’s legal pedigree may even be of an earlier provenance. It’s one from a wholly different regime — International Humanitarian Law, which predates International Human Rights Law. I am referring to the Martens Clause of the 1899 Hague Convention prohibiting depredations in war upon the “requirements of public conscience.”

It was a formula invoked to great effect in the Philippine war crimes trial of the defanged Tiger of Malaya, Japanese general Tomoyuki Yamashita (1945). It most recently saw a grand restatement in the 1998 Rome Statute of the International Criminal Court, which condemns “unimaginable atrocities that deeply shock the conscience of humanity.”

Hidalgo may also be the very first Philippine case to juxtapose a shocked conscience with the denial of what the Supreme Court considered a human rights entitlement.

It surprisingly presents an early articulation of contemporary discussions on business and human rights 85 years later.

Yet, granted that Recto and jurists of his generation were heirs to the Christian roots of such a notion of public conscience, you might also wonder if, really, they were given to hyperbole when they spoke of a shocked conscience, in light of our present predicaments.

Lawyers accused of being communists fall like flies in a hail of assassins’ bullets.

They are among 61 judges and lawyers reportedly killed in the country since 2016.

Red-tagged petitioners against the anti-terrorism law are gunned down.

A lawyer for some of them is attacked by unidentified malefactors with a screwdriver.

A judge who freed red-tagged journalists over defective warrants end up being red-tagged, too.

Nine activists are killed in a series of raids one bloody Sunday by police and Army operatives.

All this, in the middle of a drug war that has killed more Filipinos than US soldiers had been killed in the armed conflict in Iraq in the last 20 years.

Could our Supreme Court justices show us the way back to our lost conscience of humanity?

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Romel Regalado Bagares is an alumnus of the UP College of Law and the Vrije Universiteit Amsterdam. He teaches international law at two Manila law schools.