COUNTERREVOLUTION BY SUPREME COURT

By Philip M. Lustre Jr.

LAWYER MEL Sta. Ana, law dean of Far Eastern University, one of the country’s prominent schools of legal education, said it right when, in an FB post, he said the following: “From an institutional context, there is an emerging public perception, rightly or wrongly, that the Supreme Court, instead of encouraging accountability, is fomenting impunity.”

To substantiate his opening statement, Atty. Mel, who counts on prominent lawyers Jovito Salonga, Neptali Gonzales, Crispin Baizas, Antonio Abad, and Commission on Elections chair Andres Bautista as among his predecessors, said the following: “Consider the case of former President Joseph Estrada. Choosing whether he was granted absolute pardon, which will negate liability, or conditional pardon, which will reinstate the criminal penalty for plunder in case of violation, the Supreme Court chose absolute pardon.

“[Take] the case of Ilocos Sur Rep. Ronald Singson who was caught in possession of illegal drugs and was jailed in Hongkong. Deciding whether or not such act was a crime involving moral turpitude enough to expel a public official from his office, the Supreme Court decided that it was not.

“Then came [Mayor Jejomar Binay Jr.] case, involving the “Condonation Doctrine” which says that a re-elected official is already considered administratively forgiven for his past wrong-doing and cannot be suspended/expelled from his present position. The Supreme Court abandoned the doctrine but nevertheless exempted Binay from its application.

“In the [Juan Ponce Enrile]-bail case - no less than one Justice, with whom three others agreed , dissented from the majority decision and made observations such as ‘special accommodation,’ ‘selective justice,’ ‘unique, special and exceptional’ treatment and more seriously, ‘impunity’. Associate Justice Marvic Leonen said:

“‘Our collective liberty, the kind that ensures our collective meaningful existence, is put at risk if justice is wanting. Special privileges may be granted only under clear, transparent and reasoned circumstances. Otherwise, we accept that there are just some among us who are elite. Otherwise, we concede that there are those among us who are powerful and networked enough to enjoy privileges not shared by all.

"’This dissent rages against such a premise. It is filled with discomfort with the consequences of the majority’s position. It cannot accept any form of impunity.’"

As parting shot, Atty. Mel said: “With the Supreme Court decision exculpating GMA of plunder, the SC has its hands full in persuading all, not just the followers of GMA, that the decision is fair and square. Indeed, it may, in fact, be so, but that is just the SC's burden, especially with four (4) dissenting opinions.”

Atty. Mel wrote a profound critique of the several controversial decisions of the Supreme Court. To his credit, he described on what could be regarded the restoration of the culture of impunity that once ravaged this country, a restoration that is now taking place with the help of the Supreme Court.

I would like to go farther than what Atty. Mel has expounded in his post, which, although brief, is direct, candid, and meaningful.

I maintain that what is taking place is a counterrevolution. It is going back to the ways of the old. It is the restoration of the same order, where the plunderers and other parties that had earlier raided the national treasury are getting back in power.

The counterrevolution is not being led by the incumbent president, or any other party in power. It is being led by the Supreme Court, which, as an institution and a bedrock of our restored democracy, has rendered controversial decisions that have raised more questions than clarify the current legal issues.

Strangely, the counterrevolution is led and waged by an institution composed of unelected and unelectable magistrates. Strangely too, the counterrevolution has, as its very center, the judiciary, which, as the third branch of government after the executive and the legislative branches, is regarded the weakest with neither the power of the rod nor the power of the purse to use.

Revolution as a theme in its political developments is not new in the Philippines. The old Partido Komunista ng Pilipinas (PKP), since its birth in 1930, had launched but failed to lead a proletarian revolution intended to destroy the ruling political and economic elite and install the working class as the ruling class.

Its successor, the outlawed Communist Party of the Philippines (CPP), since its birth in 1969 and until now, has been pursuing a “national democratic revolution,” where workers and peasants comprise the main forces of a “people’s war” against the established order. It has the equally outlawed New People’s Army as its military arm and the National Democratic Front as its political arm.

Dictator Ferdinand Marcos had his own concept of revolution, no matter how distorted and self serving. Marcos claimed to have declared martial law in 1972 mainly to pursue his own revolution, which he branded as the “democratic revolution.”

His “democratic revolution” was a “revolution from the center,” meaning the presidency, Marcos said it was meant to crush the conspiracy of the Right, composed of the old oligarchs, who never liked him and sought his downfall, and the Left, or the emerging communist and social democrat rebel forces.

But it was more of a counterrevolution during those days. His “democratic revolution” meant to perpetuate himself in power; his martial law was intended to establish one-man rule. A critic declared it a “counterfeit revolution.”

Hence, his democratic revolution was reduced to an empty slogan, when the people rose as one in the historic 1986 EDSA People Power Revolution to topple his dictatorship. It is hardly the topic of scholarly discussions, as scholars have never accepted it as a genuine revolution.

The People Power Revolution has restored the liberal democracy, the kind the country has inherited from the American colonial rule. The People Power Revolution has restored the democratic structures and traditions, which Marcos sought to demolish through a single stroke of the pen, or when he declared martial law in 1972.

Cory Aquino’s successors did not take advantage of any polemical discussions about revolution and its dynamics. Fidel Ramos provided some lip service to the EDSA Revolution, of which he was one of the major players.

Erap Estrada hardly gave any reference to the EDSA Revolution, not even lip service during his 30 months of incumbency as president. His limited mind could hardly grasp topics and concepts of profound magnitude.

When the Second EDSA People Power Revolution toppled him and took him to prison, Estrada alleged he was a victim of a “conspiracy” of the rich people and civil society. Without the gift of reflection to see things in perspective, Erap has never fully understood what truly struck him during those turbulent days of latter part of 2000 and 2001. He did not even understand why he was imprisoned for five years.

Gloria Macapagal-Arroyo, Erap’s successor, did not give any damn about this concept of revolution. She does not find meaning in that loaded concept. It was enough for her and her husband, Mike, to rule to complete the remaining 42 months of Erap’s term and six years of her own term after she got elected under anomalous circumstances in 2004.

For her, the concept of revolution was almost nonexistent. She hardly gave reference that the very same thing that had put her into power. She never put into practice the mandate of Second EDSA People Power Revolution.

The culture of impunity, which her administration had cultivated to the fullest, was a violation of the mandate of Second People Power Revolution. Instead of pursuing an anticorruption agenda and a revolution in governance, which should be properly viewed as the expression of the people’s will in the Second People Power Revolution, GMA and his cohorts raided the national coffers and entered into various deals that only manifested their corrupt ways. 

It has been estimated that the government had lost slightly over P100 billion in shady deals under the GMA administration. It could be described as revolution in plunder and corruption.

PNoy appeared to have righted the course and launched his own revolution, which he did not describe as such. Tuwid na Landas (Right Path) was his way of pursuing the mandate of the Second People Power Revolution, particularly good governance. The anticorruption theme that dominated his administration was meant to flush the country of its corrupt elements.

Meanwhile, the Supreme Court has been never been an active participant in revolutions, or any political cataclysms of game-changing magnitude. It has been a pious, albeit silent, arbiter of judicial issues, of which its decisions form part of the laws of the land. Its passivity extends to the fact that it only renders decisions on issues that have been brought forth by various parties and concerned citizens.

The Supreme Court, during the premartial law era (1900-1972), has been described as a paragon of virtues and integrity, as it ruled with perceived fairness and equanimity on the many judicial and legal issues brought for its erudite discussions and decisions.

Outstanding jurists like Roberto Concepcion, JBL Reyes, Arsenio Dizon, Calixto Zaldivar, the pair of Pedro Tuazon and Ramon Diokno (father of Jose W. Diokno), who wrote their ponencias in flawless Spanish, are just some who gave honor and prestige to the Supreme Court.

It was Marcos, the dictator, who corrupted the Supreme Court, when it became the defender of the martial law regime – and the dictatorship. The numerous decisions that sustained the dictatorship and even praised it as “the best thing that has ever happened” to the country strengthened the perception that it was not the Supreme Court of old, but an institution composed of the “supreme cowards.”

The current Supreme Court is noted its mishmash of undecipherable judicial doctrines, which are being criticized not just by legal luminaries, but by its own magistrates, who have taken the dissenting opinions, or minority views.

The doctrines posited by the majority are hardly taken as conservative or liberal doctrines, as what could be observed in the U.S. Supreme Court, but doctrines fitted for convenience and restoration of the old order.

By all means, they represent a judicial counterrevolution, or some full swing attempts for reversal of what has been achieved before. It’s sad that the Supreme Court has become an instrument for the restoration of the old elite. It is not forward; on the contrary, it is going backward.