Before the bar of history

There are points of no return. These points can either be foreseen or suddenly take place; but if foreseen, then they require people who see what’s looming, to make a decision as to which side they will take.

President Marcos proclaimed Martial Law on September 23, 1972, antedating it to September 21, and actually signing his proclamation on September 22. The Constitutional Convention elected in 1971 had to endure some of its delegates being arrested while others, caught by martial law overseas, in exile. A background on the controversies that hounded that convention can be found in my entry, Why revolts fail, from May 1, 2006, including an extract from Delegate Augusto Caesar Espiritu on the pressure on the delegates to sign a charter practically hand-written by Marcos himself.

Anyway, as the the main decision in Javellana v. Executive Secretary itself chronicles, on November 29, 1972, the Constitutional Convention finished its work, complete with a grinning Diosdado Macapagal handing over the document to Ferdinand Marcos at the Executive Building. The next day, November 30, 1972, Marcos issued a Presidential Decree submitting the proposed constitution to the people for ratification in a plebiscite scheduled on January 15, 1973.

Cases were then filed in court questioning the Marcos decree, on the grounds that the 1935 Constitution could only be replaced by following the constitution’s provisions concerning the ratification of a new charter; among these provisions was that only Congress could call for a plebiscite and appropriate the funds required to hold one.

As the Supreme Court itself noted, meanwhile, on December 17, 1972, Marcos issued an order “temporarily suspending the effects of Proclamation No. 1081″, to allow free and open debate on the proposed charter -the absence of these freedoms having provided the basis for the plebiscite’s being challenged before the courts- but on December 23, 1972, Marcos suddenly announced he was postponing the plebiscite. He then formalized his announcement by issuing General Order No. 20 on January 7, 1973, postponing the plebiscite “until further notice.” He then suspended his suspension of Martial Law!

The Court then noted that up to that point, it had refrained from deciding challenges to Marcos’s call for a plebiscite, since the main grounds for the cases was that only Congress could make that call; and Congress, it noted, was due to meet in regular session on January 22, 1973.

Then Marcos announced (January 1, 1973) that instead of a plebiscite, “Citizen’s Assemblies” would be convened from February 19 to March 5, 1973; over the next few days the questions to be asked changed; and finally, the date for the assemblies would be January 10-15, 1973. Eventually it emerged that the Citizen’s Assemblies would be asked to ratify the new constitution.

The Court tried to deliberate with dispatch, but as the Chief Justice noted in the decision,

On the same date January 15, 1973 the Court passed a resolution requiring the respondents in said case G. R. No. L-35948 to file “file an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973,” and setting the motion for hearing “on January 17, 1973, at 9:30 a.m.” While the case was being heard, on the date last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and said that, upon instructions of the President, he (the Secretary of Justice) was delivering to him [the writer] a copy of Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer returned to the Session Hall and announced to the Court, the parties in G. R. No. L-35948 inasmuch as the hearing in connection therewith was still going on and the public there present that the President had, according to information conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning.

Recently Mon Casiple recounted to me how, in those anxious days, opponents of Marcos had gotten hold of copies of the proposed constitution with notations and amendments in Marcos’s distinctive handwriting; this information as well as efforts undertaken by some of the delegates, suggested to Marcos that if an honest plebiscite were to be held, the proposed constitution would be rejected and presidential elections would have to be held in November, 1973.

Marcos had no intention of going, not after his great autogolpe, but he was also nervous over the possibility that the initiative he’d seized by proclaiming martial law might be lost, as his opponents caught their breath and public opinion was given a chance to rally around institutions such as Congress or the courts. Congress, as I wrote 12 years ago in The Road to Edsa, was easily attended to by Marcos:

…the traditional opposition, meeting in different houses after Ninoy Aquino’s arrest to console themselves rather than to conspire. So reminiscent of the meeting of Filipino politicians in Speaker Yulo’s House, as the Japanese were about to occupy Manila in 1942. During these meetings, the idea of convening a special session of Congress to declare Proclamation 1081 null and void was brought up-one of which was said to have taken place in Ninoy’s cell (an unlikely story). The following day the legislative building was occupied by troops who “dismantled the offices, carting away equipment, tables and chairs.” Someone had squealed or the rooms were bugged.

The first priority of Martial Law had been to silence the media and arrest critics; then, with the armed forces as the battering ram, to subdue Congress and intimidate the Supreme Court. Subsequently, to keep holding referenda to validate the dictator’s acts.

The last obstacle to Marcos’s ambitions, though, was the Supreme Court. And when it failed, essentially by throwing up its hands and pleading that it had been overtaken by events, Marcos could heave a big sigh of relief knowing that what a legal system ordains, even if not just, enjoys the presumption of regularity.

If Marcos sensed that a free and fair plebiscite would have rejected the proposed 1973 Constitution, and that furthermore, if he knew the Supreme Court was inclined to agree with those who argued only Congress could call for a plebiscite, and appropriate funds for that purpose; and if Marcos knew, further, that if Congress convened, it might start holding inconvenient debates on Martial Law: then he couldn’t allow Congress to convene and he couldn’t allow a free and fair plebiscite. But if he padlocked Congress and held a sham referendum, there would still be the problem of the Supreme Court declaring him, the man who’d proclaimed the Constitution his “passionate obsession,” essentially an outlaw, a usurper. But put another way, if the Supreme Court raised no obstacle to his actions, however constitutionally unsound, then ex post facto, the court would legalize what was done extraconstitutionally.

And this is what the Supreme Court precisely did; and by doing so, it guaranteed that the burden of proof would shift from Marcos to his critics, as far as whether his regime was justified or not.

This defining moment, and how, for courts, it comes to defining decisions,is what I tried to point out in my Arab News column for this week, Why a Chief Justice Would Think of Resigning.

In my column I quoted Justice Antonio Carpio’s recollection (in A Reminder to Justices) of how law students at the time, reacted to Javellana v. Executive Secretary, and how that decision has come to haunt all subsequent high courts:

I was a second year student at the U.P. College of Law when the Supreme Court handed down Javellana. In my eyes as a law student, the gods of Padre Faura, supposedly the last bulwark of democracy in our country, fell from their high pedestals the day they decided Javellana…

Now, whenever a major constitutional issue comes up before the Court, I always ask myself and even some of my colleagues, could this be our Javellana…?

Marcos, in his diary, said in his own version of events, that the Justices were spineless, were more concerned with keeping their jobs, and susceptible to his great gifts of argumentation. While he never caused publication of his diary during his lifetime, independent of him, the public arrived at the same conclusion.

It is in the context of Chief Justice Concepcion’s travails that the recent behavior of Chief Justice Puno needs to be understood; and why the public statements of the Chief Justice have been echoed by many lawyers. In the Concepcion court, by some accounts the crucial votes were provided (in favor of Marcos) by Justices Querube Macalintal and Fred Ruiz Castro, both of whom were appointed Chief Justice by Marcos; while Marcos doesn’t really mention Macalintal, we know that after he retired from the high court, he became Marcos’s decorative Speaker of the Batasang Pambansa, while Castro is quoted by Marcos in his diary as being a cooperative kind of fellow.

In his column for today, A sense of propriety, Manuel Buencamino clearly spells out why Justices need to zealously avoid even the hint of impropriety during their deliberations:

Teresita Leonardo-de Castro wrote the ponencia despite allegations she was appointed to the Supreme Court as a reward for convicting former President Joseph Estrada of plunder. The allegation may or may not be true, but it is there, so out of delicadeza, she should have inhibited herself from the Neri case.

Arturo Brion arrived at the Court after all the proceedings, except the voting, had been completed—but that did not stop him from voting in favor of Neri.

Lawyer Teddy Te said of the two justices: “There is an unsurprising lack of shame in Brion voting on a petition where he did not participate and where popular sentiment held that his appointment was precisely to forestall the effects of a Velasco inhibition. There is also an uncharacteristic lack of delicadeza in De Castro writing for the majority, where her appointment was clearly seen as a reward for convicting Estrada.” Amen.

There was a clamor for Presbitero Velasco to recuse himself because he was reportedly a close friend and golfing buddy of Neri. He denied they were close, he said they only played golf once, and then he closed his eyes and covered his ears.

Leonardo Quisumbing, although not an Arroyo appointee, has two members of his family who are. His wife is chairman of the Commission on Human Rights, courtesy of Gloria Arroyo. His daughter is executive director with the rank of undersecretary in the Presidential Human Rights Committee, the Palace in-house body tasked with defending the obscene human-rights record of the Arroyo administration.

Renato Corona cannot claim Neri is just an acquaintance. He and Neri were high-school classmates at the Ateneo. In addition, they were together in Malacañang; Corona as Palace chief of staff before Gloria appointed him to the Supreme Court, and Neri as Neda chief before he was transferred to the Commission on Higher Education for trying to moderate greed.

Corona’s association with Neri, without even mentioning the indiscretion of Mrs. Corona signing a manifesto supporting Gloria Arroyo, should have been ample reason for inhibition.

To be fair, Supreme Court justices are human; their decisions are neither infallible nor completely free of human frailties.

“Our judges,” as Thomas Jefferson said of his country’s magistrates, “are as honest as other men and not more. They have the same passions for party, for power and the privilege of their corps.”

That’s why it’s vital that those who sit on the bench take great pains to act with propriety. They must always appear to be above and beyond reproach.

The issue is not whether such questions or even impressions are fair or unfounded; but once made, they can only harm the Court just as they tarnish individual Justices, because eliminating all doubt would have been so easy: inhibition.

But they didn’t inhibit themselves; they did so, despite the questions raised; this guarantees the questions will continue to be raised and their decision not to inhibit themselves placed in the context of the decision itself, and the circumstances surrounding that decision.

Following up on its report, SC ruling on Neri shows a Palace-controlled court: sources, which described how the Palace lobbied for a favorable decision, ABS-CBN and Newsbreak yesterday published Inside story: SC justices had pre-determined votes on Neri case, written by Marites Vitug. These articles explain why inhibiting themselves was not an option for the Justices being questioned, because their inhibiting themselves, based on their voting records, would have necessarily led to a defeat for the administration.

Here’s Vitug’s account:

The justices voted even before reading the final draft of the decision.

The vote of 9 to 6 in favor of Neri was done at about noon of March 25—but the decision was signed in the afternoon. The justices were given time to make changes in their opinions, including de Castro, who came up with a third and final draft at about 3 PM.

One justice, we learned, did not get to read the ponencia until Tuesday morning—and voted with the majority.

We gathered that in the morning of March 25, during the en banc meeting, de Castro came up with a second draft because it was pointed out that her ponencia “went overboard”, according to sources privy to the deliberations. The revisions “toned down” the ponencia.

…The Supreme Court (SC) was under public pressure to arrive at a decision as the Senate was still in the midst of investigating the alleged bribery in the NBN deal. Senate inquiries were carried live on national TV and widely covered by the media.

It was also unusual that the SC announced the date they were going to hand down their decision. A lawyer with access to the SC said that “the nation awaited the (SC) decision.”

Thus, even before de Castro submitted her ponencia, several justices had already circulated their separate opinions. Chief Justice Reynato Puno decided in favor of the Senate in his extraordinarily long (120 pages) and history-laden opinion. Justices Antonio Carpio, Alicia Carpio-Morales and Consuelo Ynares-Santiago were on the same side as Puno.

Ynares-Santiago was not in the en banc meeting but she left a 10-page opinion before she took off for her overseas trip.

On the other side, favoring Neri and the executive, five justices filed their separate opinions: Arturto Brion, who was barely a week on the job, Renato Corona, Dante Tinga, Antonio Eduardo Nachura, Presbitero Velasco, Jr.

After the majority voted with de Castro, the minority justices renamed their separate opinions to dissenting opinions. Those in the majority renamed theirs concurring opinions.

…Lawyers with access to the Supreme Court tell us that the voting outcome, 9 to 6, and the justices who would be on each side, were almost predictable.

Among those who voted in favor of Neri, six have been seen to consistently vote in favor of the administration: Renato Corona, Antonio Eduardo Nachura, Dante Tinga, Minita Chico-Nazario, Presbitero Velasco, and de Castro.

Two justices who joined this group were described as “straddlers”—Leonardo Quisumbing and Ruben Reyes—because they positioned themselves in the middle and did not make their votes known until the last minute.

Quisumbing and Reyes did not write their separate opinions. In the final decision, both signed “In the result”, meaning, they agreed with the conclusion but not with the stated reasons.

…Former Senator Jovito Salonga, in a separate interview with ABS-CBN, said that this kind of voting is “unconstitutional.” He cited the Constitutional provision which states that judges and justices should always come up, in their decisions, with the facts of the case, the law, and their conclusion. This way, the judges and justices are prevented from voting without reasons.

“That’s a nothing vote,” a former Supreme Court justice said, referring to “In the result” kind of voting. “That’s part commentary on the justices who were either unprepared or were pressured.”

This way of voting is tolerated, however, in the Supreme Court and has even become a common practice, lawyers we talked to said…

Two things have thus emerged out of the Neri case. One, the Supreme Court justices had pre-determined votes and they voted along partisan lines. Two, the chief justice’s leadership style—he is not one to build consensus—failed to encourage a full debate.

While it is a fact that the Supreme Court is an institution that is not insulated from the politics of the times, what is worrisome, some say, is that it has become partisan…

…What the process shows, in this case, is that most of the justices had fixed positions. “Discussions could go on but no one would change his or her position,” one of the lawyers with intimate knowledge of the High Court said.

In this setting then, what role does a chief justice play?

“It is not necessary for the chief justice to build consensus,” one lawyer who has studied the Supreme Court said. “But he or she should encourage full debate especially in such an important case.”

So the issue at hand is larger than whatever the present decision being debated contains; it is about the process surrounding the Court’s handing down that decision, a process which reveals what was at stake for the Palace and which required those sympathetic to the Palace to ignore questions that would have made previous Justices blush and inhibit themselves.

Last Sunday’s Inquirer editorial, The bar of history, called for the entire legal profession to recognize the crisis of confidence facing the Supreme Court. The editorial contains two quotes from Cynthia Ozick‘s essay, “Of Christian Heroism”:

Three ‘participant’ categories of the Holocaust are commonly named: murderers, victims, bystanders. Imagination demands a choosing. Which, of this entangled trio, are we? Which are we most likely to become?

and this (which appeared here back in 2006 as a Quote of the day):

When a whole population takes on the status of bystander, the victims are without allies; the criminals, unchecked, are strengthened; and only then do we need to speak of heroes. When a field is filled from end to end with sheep, a stag stands out. When a continent is filled end to end with the compliant, we learn what heroism is. And alas for the society that requires heroes.

Alas, indeed, whether in the context of something unprecedented like the Holocaust or a political crisis, because what was formerly, for all, simple citizenship, and what was once expected of everyone, that people, as individuals and members of a community, act according to the bare minimum of what’s expected of humanity, suddenly, doing simply decent things takes on the aspect of the heroic: which is galling to those who excuse their own inaction, not least because those fulfilling their duties are no different from those justifying their refusal to act.

The Marocharim Experiment, in another but related context (Jun Lozada, and in answer to an anonymous critic who therefore stands in for many others in the “anti-anti-Arroyo” camp) offers an eloquent rebuttal to those who feel galled:

[Y]ou refuse to lay a single finger on that other suspected corrupt government official, the President herself. Why? “Because there is no alternative to GMA.”

Since when? So you’re telling me that when she committed that infamous “lapse in judgment” years ago, she did it because “there was no alternative?” I’ll give you alternatives to the President that I’m sure you will dispute. I’m sure you will disagree with me that the Vice President, the Senate President, the president of your local women’s club, the president of the jeepney association, are alternatives to Mrs. Arroyo. There is no such thing as “no alternative.”

You say your parents fought at EDSA. Mine did, too. They pushed for alternatives to Marcos at a time when “there was no alternative to Marcos.” Why can’t we do the same? Since when did GMA become the permanent President of the Philippines?

As Rousseau writes: “The strongest is never strong enough to be always the master, unless he transforms strength into right, and obedience into duty.” This is the backbone of the social contract. Mrs. Arroyo has transformed strength into might, and obedience into passivity. She has violated the social contract: EO 464, emergency powers, political killings, media violence, holiday economics, and the “mere” fact that she “protected her votes” in 2004.

* * *

“Anonymous” claims that we can’t oust GMA, much less can GMA remove herself from office, because “the law does not say otherwise.” He/she asks: “What did you do about it, save for shouting in the streets?”

Pardon the childish retort: what did YOU do about it?

I shouted in the streets demanding for justice and fairness because my vote was compromised. My future was jeopardized. Why? It was the only thing I can do: to exercise my Constitutionally protected right to voice out my discontent.

You, on the other hand, tolerated it. You allowed it to happen. In your blind, passive, non-critical support of the President who can do no wrong, you allowed this to happen. You exercised your right to remain silent. Here’s the strange part: you were never arrested. You cannot invoke the right to remain silent when you are free. When your freedoms are violated, you should be anything but silent, much less anonymous.

So I guess I cannot blame the President for everything after all. Let’s face it: as a “savage anti-GMA fanatic,” I only have YOU to blame for this. Now doesn’t that suck? You, in your search for truth and in all your bravado of patriotism, allowed the President to call a COMELEC official, allowed her to “protect her votes,” and in effect, you are allowing her to hush up over the NBN-ZTE deal.

How patriotic of you. What a hero you are. Shame on you. No, to reiterate, damn you.

* * *

Which brings me to those two words. I did not “invent” that “moral code.” You know why you feel so insulted with a “Damn you?” Because it burns in deep, dude. It hits you right on the spot. I’m not asking you to back up your version of the truth: I’m demanding that you stand by your version of the truth. That you man up to it. At this point, you don’t.

And this continues to be relevant in the case of the Supreme Court. The decision has consequences -and they are being felt even now.

Today’s Inquirer editorial, Three monkeys, points to the immediate consequences of the Supreme Court’s decision -consequences, incidentally, independent of what the decision itself may have said, or even intended, or even how, rationally, the decision should be interpreted, much less implemented, since, as lawyers are eager to point out, it isn’t a doctrinal decision.

But whether it’s a doctrinal decision, or not, is beside the point -the point is, it’s effects are there, for all the world to see. And if there are those who would tolerate or even applaud those effects, there are others who won’t stand by as it happens.