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May 01

Philippines Free Press Commentary: Silence and consent

Philippines Free Press

May 1, 2010

Silence and consent

By Manuel L. Quezon III

THE patron saint of politicians is St. Thomas More. Pope John Paul II in his Motu Proprio proclaiming More as such, pointed out “he refused to take the oath [to recognize the king’s rejection of the primacy of the pope] requested of him, since this would have involved accepting a political and ecclesiastical arrangement that prepared the way for uncontrolled despotism.” In this manner, and through his martyrdom, More “distinguished himself by his constant fidelity to legitimate authority and institutions precisely in his intention to serve not power but the supreme ideal of justice.”

More’s biographer Richard Marius (according to J.D.M. Derrett, in his article, “More’s Silence and His Trial,” in the English Historical Revue) put great emphasis on More’s refusal to make any public statement on King Henry VIII’s decision to take on a new wife and place himself at the head of the Church in England. The king’s councilors, knowing his great prestige, in conducting More’s trial for treason kept giving him chances to somehow publicly state he was adopting the king’s position. Instead, More stubbornly held to his “loud silence.”

At the heart of More’s silence was that silence itself was put forward as an indictable crime by the king’s prosecutors, while More himself maintained it was no crime: in fact the assumption of English law at the time was that “silence implies consent,” the same sort of argument put forward by Justice Secretary Alberto Agra to suggest he enjoys the full support of the President.

Derrett explained the implications of More’s stubborn refusal to publicly endorse the king’s actions as follows: “Now silence was no crime by common law, but the men who developed the law of treason under Henry VIII had civil law at their disposal, whether for their consciences or their contrivances; and indeed if important men were to be allowed to escape punishment for concealing their opinion, and their consultations with dissidents, no statutory enactment of constitutional opinions or principles could have any hope of success. In that world of experiment where, as Marius would have it, the deaths of the Carthusian martyrs, of Bishop Fisher, and of More, were foregone conclusions, the international notion that failure to disclose what was going on — clearly capable of being conceived as within the common-law offence of misprision of treason –was in itself a crime under the lex Iulia maiestatis, could be exploited opportunistically, and be carried (as Henry’s reign showed abundantly) where the needs of the time took it.”

Therefore More could not shield himself by prudently pleading, as a later minister of a head of state, Gilbert Teodoro Jr. tried to do, “privileged information” when asked his opinion and knowledge of President Arroyo’s actions. More, in a sense, argued a medieval version of this; he was a former minister of the Crown; he was being asked to make an explicit endorsement of actions the king undertook; More refused to endorse, but also made no categorical denunciation: rather, the king’s ordering his trial for treason was an explicit statement of the real collision, between the king’s arguments and More’s conscience as a loyal Catholic.

Hence More’s famous statement on the scaffold, that he died the king’s good subject –but God’s first. This is the path all politicians who hold religious convictions are supposed to take; and it is, indeed, one that even those with a wholly secular orientation are supposed to adhere to, when a higher law collides with the whims and wishes of established authorities. Soldiers and statesman alike are supposed to refuse illegal orders, no matter the cost to themselves in terms of career and the bearing the full brunt of the law.

Justice Secretary Agra argues that he did the right thing in ordering murder charges against ARMM Gov. Zaldy Ampatuan and Maguindanao vice-governor Akmad Ampatuan. He says the President, in so far, holding her peace despite the public outrage that’s ensued, is obviously of the same opinion. The authorities have shrugged off the walk-out staged by state prosecutors furious over the instructions they received, saying it’s just a squabble within the Department of Justice. This is a cunning sort of thing to do, because it immediately reduces the outrage of the prosecutors and the families of the victims into an opinion like any other –while upholding the presumption of regularity by executive officials that’s been such a useful tool for the Palace to blunt criticism of its controversial actions.

As Senator Edgardo Angara smoothly advised, the President shouldn’t even intervene because the whole thing is “a purely judicial matter.” Why, after all, even concede an inch to the court of public opinion, when the disposition of the pending cases can be confined to the court of law? Anyone dissatisfied with it is, after all, welcome to take the path of the indignant state prosecutors –they can walk out, and good riddance, as far as the Palace is concerned. Agra said he is allowing the prosecutors to express their sentiments but expects them to follow orders –or else.

And as for allegations he accepted a bribe to take a dive for the Ampatuans –well, the Secretary of Justice says he might have a libel case or two in store for such rumor-mongers.

Our prayerful and hard-working President must be thinking, in a biblical vein, “well done, good and faithful servant.”

6 comments

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  1. Carl Cid Inting

    “Why, after all, even concede an inch to the court of public opinion, when the disposition of the pending cases can be confined to the court of law?”

    Just wondering, isn’t that the way it should be?

  2. mlq3

    No. There are things properly sorted out in the court of public opinion; just as there are things only properly disposed of in a court of law.

  3. Carl Cid Inting

    James L. Gibson, who writes extensively about government, the law and political science has this to say about the U.S. Supreme Court and the court of public opinion:

    “The impact of public opinion on the Supreme Court is a delicate and controversial subject. To the extent that the Court needs to adjudicate specific legal disputes within a defined factual framework pursuant to established legal principles, the justices, like all judges, are supposed to immunize themselves from any form of bias, including public opinion.”

    “The Constitution was framed deliberately to insulate the Court from public opinion. The Founding Fathers, many of whom had misgivings about popular rule, sought to develop an institution that, although not completely disconnected from the political process, would be shielded from the public in ways quite unlike the other so?called political branches. Justices enjoy life tenure, can be removed from office only through a complicated procedure of impeachment, and may not suffer any diminution in compensation.”

    “The institutional protections that the Court enjoys have survived even though its decisions often have engendered bitter opposition. Although critics of the Court for two centuries have proposed numerous constitutional amendments and other Court?curbing measures to make the Court more responsive to the popular will, most failed.”

  4. mlq3

    That is neither here nor there as far as the point I wanted to make. If it involves life, liberty, or property, then these things are more properly the ambit of the courts precisely because you do not want lives or property or liberties subject to mob rule, public opinion running riot; but in other things representative goverment including the representatives themselves ought to be responsive to public opinion -just as it’s the public and not judges who normally decide who becomes a representative.

  5. Carl Cid Inting

    So does this mean that judicial processes should be dispensed with?

  6. mlq3

    This is precisely the false choice the Palace spokesmen hopes people will feel they have to make. No one is saying the law or the legal system should be dispensed with; but there is such a thing as expanding the coverage of law or legal processes to areas more properly the sphere of public discourse; what is put forward is precisely what marcos scoffed at as “technical legalism” in private and proclaimed the triumph of law and a revolution from the center in public. the administration has used the courts to corral messy issues and bog them down in litigation, while going its merry way pointing to the presumption of legality and other doctrines that provide camouflage for its doing illegal things.

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