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In times
when the exercise of power tends to exceed the limits
laid down by the law, and when the law itself is
perceived to be mangled by power, a people, cowed by
power, finds its liberty restored by the weakest branch
of government: the Judiciary, specifically the Supreme
Court.
It’s
remarkable how the weakest branch, which can only say
what the Constitution is under the Rule of Law but has
no power to enforce it (the Executive branch has the
monopoly of might) can boost the sagging morale of a
society in crisis. Our society would have remained in
constitutional limbo if the Supreme Court had not struck
down Executive Order 464, the calibrated preemptive
response (CPR) policy and Proclamation 1017, followed
recently by the dismissal of the charges against the
so-called Batasan 6 (one of whom, Crispin Beltran, was
already detained) and other militants, coupled with a
stinging rebuke for the prostitution of the legal
process for political ends.
Advocates of elegant (prim?) legal rhetoric may cringe
at the language employed by ponente Associate Justice
Antonio Carpio but they can certainly appreciate the
passion aroused by the scandalous violation of the
fundamental principle of presumption of innocence: the
state prosecutors, in a rush to judgment, made short
shift of the standard preliminary investigation. Worse,
as the decision pointed out, the secretary of justice
had even prejudged the case.
But, of
course, the Court’s decision is not final and executory,
for the solicitor general, despite reports that the
secretary of justice considered appealing the decision
as “a waste of time,” announced that the government will
file a motion for reconsideration as ordered by the
secretary of justice. Making sense of the secretary of
justice’s remark about appealing as a waste of time and
at the same time ordering the solicitor general to file
a motion for reconsideration is a puzzle that will have
to be unraveled by legal historians and students of
logic and the English language.
The more
interesting thing, however, is the legal opinion of the
solicitor general, as reported by the Philippine Daily
Inquirer. “Alarmed” by the ruling because “the High
Court had supposedly undermined the power of trial
courts and her office to determine ‘probable cause’ for
prosecution,” she was ordered by the DOJ to file a
motion for reconsideration in view of the ruling’s
“far-reaching and adverse consequences on the criminal
justice system” and to “prevent court rules from being
‘trampled upon.’” (“Probable cause” doesn’t mean
“probability.”)
“My
office,” she said, “is not the only law office of the
national government but also the tribune of the people.
We sometimes take sides that are adverse to government
agencies. If the government prosecutor cannot be allowed
to determine what is probable cause, how can we
prosecute cases?”
I am
only guessing, but I don’t believe the Supreme Court
will engage the solicitor general in a media debate on
that “issue.” However, as one with no legal background,
I cannot resist pointing out that the solicitor general
is not “the tribune of the people.” If that term for an
institution of Republican Rome is to be loosely used for
our time, the “tribune of the people” is the Ombudsman,
or on another level (in which the function is not
exercised), the House of Representatives.
As to
the prosecutor’s right to determine “probable cause,”
it’s certainly the Supreme Court which has the power and
authority to determine whether the determination is
according to established procedure. She further alluded
to “technical matters,” but “technical matters” are not
insignificant, they are only “technical matters” when
used outside the legal framework, but within it,
“technical” affects “substance.”
“Time-honored and well-established principles on
criminal law and procedure were trampled upon. . . The
decision will disturb long-established principles on
criminal law and procedure which are in place for the
protection of both the accused and the state.” This is a
place where legal angels will fear to tread, as it’s
difficult for this layman to see how insufficient
preliminary investigation toward establishing “probable
cause” can protect the accused. But it surely gives an
edge to the prosecuting state.
It
cannot be argued that this is just a case of difference
of legal opinion since the contending parties are
lawyers. But they can agree, perhaps, with George Evans
Hughes’s words: “We are under a Constitution, but the
Constitution is what the judges say it is, and the
Judiciary is the safeguard of our liberty and of our
property under the Constitution.” (It’s churlish to ask
whether the determination of probable cause lies with
Justice Carpio alone, as if as ponente, he is the sole
justice and not the Puno Court.)
“When
arms speak,” said
Cicero,
“the laws are silent.” But not when you have the Supreme
Court.
While
it’s also true that the law is an illusion when not
served by power, power not served by law is a menace.
The difference lies with the Supreme Court.
*****
TRANSPARENCY International hailed the Supreme Court for
“standing against the Palace.” Apparently, the media,
aside from space constraints, used the term “Palace”
instead of “Malacańang” to demarcate democratic and
constitutional reason from the arrogance of power.
Executive Order 464, forbidding officials from
testifying before a Senate investigating committee (also
invoked by officials from testifying at other
congressional inquiries), CPR (not Carlos P. Romulo but
calibrated preemptive response), limiting freedom of
speech, freedom of assembly and the freedom to seek
redress and air dissent against government abuses on the
theory that “excessive” exercise amounts to
“destabilization,” and Proclamation 1017, empowering the
military and the police to arrest people suspected of
holding antigovernment (ergo, subversive, terrorist or
revolutionary) views and to close business and
industries deemed to advocate destabilization,” are on
the face of it unconstitutional and undemocratic, but
because the Executive branch has commander-in-chief
powers, citizens have to observe and obey them until the
Supreme Court had to declare them, as it did,
unconstitutional.
In the
usual view, the Supreme Court’s decisions are a blow
against the Arroyo administration, but in the larger
sense, they are assaults against tyrannical power. There
aren’t enough people outraged by these executive orders
and proclamation, if not through indifference but
through timidity—notably the elite, proving, it appears,
Arthur Goldberg’s contention that “the great can protect
themselves, but the poor and the humble require the arm
and shield of the law.” Require, yes, but won’t usually
get it without the Supreme Court.
But the
Supreme Court cannot go around military camps and police
precincts in order to find out if its decisions on
behalf of law, liberty and justice are enforced.
Powerful as the conscience of a democratic republic, the
Court is not an enforcer. All it can count on is the
faith of the people and their courage, if need be, in
fighting for their rights when these are trampled upon,
with the rulings of the Supreme Court as their
inspirational armor.
However,
there were times when the Supreme Court wasn’t exactly
perceived as a guardian of liberty and the Rule of Law.
It had allowed the suspension of the privilege of the
writ of habeas corpus on the basis of the government’s
perception of threats to national security; it upheld
martial law, emergency powers and the juridical anomaly
called the law on plunder. There are also those who
argue that its participation in Edsa 2 was questionable.
Therefore, there have been “political considerations” in
the behavior of the Court. These are questions which
legal scholars will be debating for some time.
But in
the ruling on Batasan 6 and other militants, the use of
the term political considerations is of a familiar
order. In the suspension of the writ, the upholding of
martial law and the participation in Edsa 2, the
politics could plausibly be considered as outside the
Court’s purview. It could be strongly argued that at
stake was the stability of the nation, for otherwise,
its fate might have been settled by blood running in the
streets. What the present ruling means, then, is that
the legal process is, indeed, prostituted for the
pleasure and convenience of politicians.
As it
is, appointments in the Judiciary smack of prostitution
in the sense that political considerations often play a
part, and this doesn’t exclude appointments to the
Supreme Court in spite of (or because of) the Judicial
and Bar Council. Legal experts lay the blame on the
exemption of justices from the confirmation process. The
time-honored argument is that this would shield them
from politics even if their appointment was political.
On the
other hand, corruption in the Judiciary is no news
either, which is due partly to the miserable budget for
the Judiciary and the shamefully low salaries of judges.
That’s not mentioning the clout that elected and
appointed officials have on judges whose appointments
they had promoted.
Despite
all this, however, the people rely on the Judiciary for
the redress of their grievances—and justice still
manages to be done.
Few
people know the tribulations and humiliations that some
justices of the Supreme Court had to suffer before they
got there, and when even securely on the bench, they had
to maintain a stiff upper lip when they were bypassed
for the top job. There are stories and stories known to
practitioners. Given the political system, it’s amazing
how enough justices, whatever the story behind their
ascendancy, manage to make the crucial decisions of the
Supreme Court models of legal sagacity—monuments to the
constitutional tradition of liberty and justice.
Somehow, the dubious ones are overwhelmed by the true
jurists or are eventually influenced by them through
osmosis.
Presidents naturally want their SC appointees to be
supportive of them, but they have often been
disappointed when one or two did not turn out to be
toadies. The “probable cause” is that the Supreme Court
is the crowning achievement of any lawyer with juristic
ambition, even if one or two would aspire to a political
or other office when they retire (though the seemly coda
should be a life of philosophical contemplation). It’s
only reasonable to assume that the Court is the best
venue for the unbridled exercise of their intellectual
and moral faculties.
When
taken, that opportunity inevitably rubs many political
leaders and operators the wrong way. As George
Sutherland observed, “Arbitrary power and the rule of
the Constitution cannot both exist. They are
antagonistic and incompatible forces, and one or the
other must of necessity perish whenever they are brought
in conflict.” In the conflict, the weak Supreme Court
prevails because of the people’s faith in the Rule of
Law.
It’s a
faith that can be eroded, however, should the Supreme
Court be discredited by its own behavior or by
machinations of those who resent its power of judicial
review, claiming that it encroaches on the political and
economic fields when it makes rulings actually based on
the Constitution. The foes of judicial review insist
that the Court must march with the times, meaning that
it must rule according to changing circumstances as the
holders of political power see it.
These
“strict constructionists” have a point, but they fail to
appreciate that the Supreme Court isn’t clueless about
changing circumstances, except that its remedies must
also hew to the expanding areas of human rights, which
now embrace, by virtue of the UN Universal Declaration
of Human Rights (and reflected in our own Constitution),
economic, social, cultural, gender, children and
environmental as well as political rights (Law professor
Rhonda Copelon called it the indivisible framework of
human rights, quoting Eleanor Roosevelt, then chairman
of the UN Human Rights Commission: “You can’t talk civil
rights to people who are hungry.”)
Restraining judicial review will ultimately trivialize
the civilizing mission implicit in a democratic
constitution.
But the
intention of “parliamentarians” is to render the Court
toothless under the guise of keeping in step with the
times. It’s a murky charge because the Court is pictured
both as intrusive and conservative when it’s the
evolving institution as against the politics which is
retrogressing.
This is
the achievement and promise of the Puno Court; wags (if
they choose) can call it the Law’s Revenge. |
