|The Long View
A color of constitutionality
Last Monday, I ran into someone respected in legal circles, and asked him what he thought would happen in the Supreme Court. He said the case of Romulo Neri’s invoking executive privilege was cut-and-dried: The real issue was whether it was being invoked to cover up a crime. Legitimate claims of executive privilege would no longer apply if a crime was involved. Another issue is transparency as a general rule of democratic governance. And the voting to look at, he confidently said, was the 8-5 vote of the Court rejecting the Department of Justice’s ban on the media playing the “Hello, Garci” tapes.
Why so, I asked?
On a high constitutional issue involving the basic principles of democracy, he said, the justices would vote on the merits and not according to their loyalties to the President. This would be a case to be studied for a long time to come. Justices would be loath to sacrifice their reputations by engaging in legal contortions to defend the indefensible.
And yet, there continued to be talk of a 7-7 split in the Supreme Court. And then, on Tuesday night, it emerged that a compromise had been reached.
When news came of a compromise hammered out between the justices and the Senate, my instinct was to consider the whole thing a sellout, and my thoughts turned to the last time the Court disgraced itself: when it validated martial law. This was what Ferdinand E. Marcos wrote in his diary early in the morning of Sept. 25, 1972: “I asked Justices Claudio Teehankee, Antonio Barredo, Felix Macasiar and Felix Antonio to see us. They insisted that the government should submit to the Supreme Court for the Court to review the constitutionality of the proclamation of martial law, Proclamation No. 1081.”
Matter-of-factly, Marcos recounted, “So I told them in the presence of Secretaries Ponce Enrile and Vicente Abad Santos as well as Solicitor General Estelito Mendoza that if necessary I would formally declare the establishment of a revolutionary government so that I can formally disregard the actions of the Supreme Court.”
And with a kind of malicious glee, he recounted the reaction of the intimidated justices: “They insisted that we retain a color of constitutionality for everything that we do.”
Three months later (on Jan. 27, 1973) he noted, contemptuously, that the justices seemed inclined to vote his way, but wanted assurances they would keep their jobs under a new constitution. Two days after that, in another dinner in which he [Marcos] made the case for his being dictator, he recounted Justice Fred Ruiz Castro reassuring him, “I get the message, Mr. President.”
Three months later (on Apr. 2, 1973) the Supreme Court voted 6-4 in the famous Javellana v. Executive Secretary case, to recognize the validity of the new Marcos constitution.
That was the lowest point in the entire history of our Supreme Court. The institutional memory of the Court continues to be haunted by that infamous decision. And this is where the views of another lawyer bear thinking about.
A prudent view, as the lawyer explained it to me, might be this: The Supreme Court avoided having to rule on a tough issue, right now, while enhancing judicial supremacy in such matters. How? By having virtual control over the Senate proceedings yet avoiding setting the bounds of executive privilege in broad points at an emotional point in our history. Now the Supreme Court can rule over specific questions. The lawyer calls it a “deft” move: deciding the issue in broad terms might unwittingly emasculate the presidency as an institution. Ruling on specific questions, however, limits the issues. It allows for an incisive ruling limited to a particular case. So, from the lawyer’s point of view, the compromise offer was a sober and masterful play of checks and balances. No need to gut the presidency as an institution just because one rat happens to hold office at the present time.
I am not interested in what Neri has to say on Friday. Or where his testimony will lead. Not only because it’s possible he will perjure himself, but also because, in the end like any bureaucrat, he and the growing number of executive officials who’ve made possible the various questionable deals of this administration have left a paper trail.
And so, the real question is this: Does the paper trail still exist, or has it been destroyed?
This is what the Senate should be zeroing in on, but for lack of intellectual wattage seems not inclined to do. And yet, for all the defects and lack of resources of the administration’s critics, the Palace too, despite its surplus of resources, keeps radicalizing the population: Its efforts to withhold the evidence get more obvious by the hour.
The Palace’s response to pressure even from moderate quarters has been to continue playing everyone for a fool. The bishops issued their statement; the Palace pretended to study papers and then invited the bishops to a formal “dialogue” to convince them that Executive Order 464 might be scrapped, but its essential functions should be retained by other means. Meanwhile, it continues lobbying the bishops one by one, led by its collaborators in the “Diocese of Malacañang.”
The National Economic and Development Authority, according to the newspaper Business Mirror, is also working to keep documents locked up, by crafting new rules that would accomplish the objectives of EO 464. The Department of (in)Justice has announced that the ZTE national broadband network (NBN) deal will continue to enjoy “the presumption of regularity,” while Secretaries Eduardo Ermita, Peter Favila and Leandro Mendoza forced the President away from her effort to wriggle out of responsibility for the deal, and pin the blame on her subordinates.
This suggests the paper trail is so wide, and so damning, that the Palace can’t muster the means to destroy it.
Imagine the implications of that.