by Fr. Ranhilio Callangan Aquino
Manila Standard
October 18, 2010
Reading what was obviously a speech prepared for him by his unhelpful band of lawyers, Noynoy Aquino implored the Supreme Court—in a tone that was clearly not plaintive but ominous, especially when he referred to a narrowly averted “crisis” between the Court and Congress—to be more respectful of otherbranches of government. He was bemoaning the “status ante” order (“status quo ante” is a confusing juxtaposition) issued by the High Court in respect to one of the so-called “midnight appointees”. He was peeved, it was only too clear, that the Supreme Court of the land had dared intrude into his relentless and merciless purge of all those wearing colors in any way associated with the hues of Gloria Macapagal Arroyo. That is how infantile our national leadership is, and like a brat, he threw a tantrum at the court’s order.
We derisively referred to a “subservient press” in the Marcos days. Is it any better now? True, journalists may not be arrested or surveilled but they are no less as subservient, especially when in the employ of media enterprises that have a stake in the present administration. In this regard, the reported resignation of Maria Theresa Ressa is most telling. You do not need lengthy paragraphs to read the story of a shamefully subservient media—the very same media that calls the Supreme Court “the Arroyo Court”—clearly an attempt to denigrate it and to detract from the people’s trust in its judgments. Why was that epithet not used of the Court when it ruled repeatedly against GMA during her incumbency? It diluted her power to restrict the appearance of executive officials before congressional hearings by distinguishing between those conducted in aid of legislation and those pursuant to the oversight functions of Congress. It denied her the power to take over public utilities owned by private corporations in times of national emergency, ruling that this was a legislative, not an executive prerogative. It called her declaration of a state of emergency nothing more than “the calling out power” already granted a president by the Constitution, and it declared the “calibrated pre-emptive response” illegal—if it meant more than “maximum tolerance”. These were serious reversals. To GMA’s tribute—and I will pay her tribute even if it may not be politically sound these days to do so, she had the decency and the statesmanship to submit to the orders of the Court. This is the first time, in modern times, that a President castigates the Supreme Court, of course while wearing the same smile he wore when talking about the massacre of the hostage victims!
Fundamentally, separation of powers and checks and balances serve to uphold ”popular sovereignty” that, in discourse theory, means that it is not the say-so of any ruler, that makes a law valid but the power of rational exchange. In this respect, communicative action—that action that takes place when members of society, treating themselves as equals, engage in collective will-formation—is said to be “juris-generative”, generative of binding law. The Supreme Court must check on the Executive, as it does all other branches, agencies and instrumentalities of government, under what is commonly known as the broadened “certiorari” power of the Supreme Court, so that every use of that force that is reserved to the State is justified and legitimated by valid law. This forestalls the appropriation of power for reasons and purposes not sanctioned by law. In this particular case, the petitioner had asked the Court to determine whether or not P-Noy had wielded the tremendous powers of the presidency consonant with the Constitution and the laws in booting him out of office. What is so offensive about that? In fact, the Court has not yet ruled against the executive issuance; it has only asked that it be allowed to determine where rights lie.
I am profoundly disturbed by the unease of a president with judicial review, especially when he has not exhibited a superior degree of mental acuity and juridical sophistication! True, there are democracies that do not provide for the extent of review our courts presently exercise. But if that is the way we wish to go, then let us go about the long-delayed task of amending the Constitution, something that P-Noy has repeatedly said he is not too eager about! But for as long as the fundamental law of the land defines judicial power in terms of the duty of the courts to determine whether any branch, office or agency of government has acted with grave abuse of discretion, then it is not possible for the court, without seriously breaching the constitution, to renege on its bounden duty by being more deferential and yielding!
The President said that he kept mum when the Supreme Court issued a similar order against the Lower House in regard to the impeachment processes against Ombudsman Merceditas Gutierrez. Clearly, he was suggesting that he did the Court a favor in keeping his peace. That was no favor. It would have been wrong of him to order his minions in the Lower House to ignore the Supreme Court. One thing however is clear: When a president refuses to comply with the orders of the Supreme Court, or abets disobedience by others—including the public—of such orders, when a President warns of a crisis when his gambit is interdicted by the High Court on constitutional or legal grounds, that, to my mind constitutes a “culpable violation of the constitution”.
Rather than play this childish game of “keep off my back and I will keep off yours” it may be more intellectually challenging to pay heed to the logic of justification. The Legislature justifies measures it passes into law by appealing to the norms in the life-world that are then thematized to the extent that they are referred to in the process of justification. We changed the “default” property regime of married couples from conjugal partnership of gains to absolute community because that has been the unwritten but acknowledged norm of property relations between Filipino spouses. At other times, in the end, legislative justification must provide such reasons as will allow all those affected by the law to accept it (on rational grounds) and that will respond to challenges and to objections. The justification of a judicial decision is quite something else. The primary audience of every judgment consists of the parties that come before the court, but because judicial interpretations of law form part of the legal system, the ultimate judicial audience is in fact broader: the entire body-politic. But a decision is valid that has been rendered pursuant to established process by a forum vested by law with jurisdiction (in all its aspects). While legal formalism may not be the most ideal theory or position, consistency is nevertheless a principal criterion of the validity of judicial decisions—consistency with the entire corpus of laws and with that body of juridical convictions we call jurisprudence. Equally compelling however is the demand of reason that judicial decisions pay homage not principally to the letter of the law but to the fairness and justice—difficult concepts, to be sure—that every law intends. It is this that discourse should be concerned with, not turf. I wish that Malacañang led the nation in more intelligent discourse than embroil branches of government in petty turf wars!
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