Wednesday, November 23, 2011

The ‘Arroyo 8’ justices

I am reprinting here an article written by Atty. Ted Laguatan in the Philippine Daily Inquirer. He is a San Francisco based lawyer who is a member of the California Bar. He does complex litigation and is the Legal Counsel and Spokesperson for US Pinoys for Good Governance. He provides assistance to the Filipino OFWs in the Marianas who are facing unjust deportation charges from oppressive local authorities. He is a member of Ateneo Grupo58.

This article talks about the current conflict between Gloria Arroyo and the feisty DOJ secretary Leila de Lima in the battle involving the Supreme Court and the Executive Department. The article published in the Philippine Daily Inquirer is the most read in the newspaper's "Hot Reads" and has garnered numerous responses reflecting the opinion of many Filipinos.

The ‘Arroyo 8’ justices
By Ted Laguatan

Tuesday, November 22nd, 2011
Should the 8 Arroyo Justices be allowed to continue to abuse the nation?
Concerned about former President Gloria Macapagal-Arroyo (GMA) and her husband, former First Gentleman Jose Miguel “Mike” Arroyo (FG),  eluding prosecution for serious crimes — Secretary of Justice Leila de Lima correctly issued a watch list order (WLO) or hold order — to prevent them from going abroad and maybe escaping.
Perhaps sensing that charges were about to be filed against them, GMA and FG petitioned the Philippine Supreme Court to issue a Temporary Restraining Order (TRO) to invalidate the WLO — reasoning that GMA needed to get medical attention which she claimed was not available in the Philippines.
“Hogwash!”  quips one Filipino specialist doctor trained in one of the best medical establishments in the U.S.  ”We have so many qualified competent doctors here trained abroad who can attend to her.” Secretary of Health Dr. Ike Ona echoed the same sentiments.
Oral  arguments on the TRO petition were scheduled on November 22, 2011 — a normal procedure which would give all parties the opportunity to present their positions — consistent with procedural due process principles.
But instead, what did eight  Supreme Court Justices do? Led by GMA midnight appointee Chief Justice Renato Corona and seven other GMA appointees, the eight rushed the unilateral approval of the TRO petition — not giving the government the opportunity to present counter arguments and not waiting for the scheduled oral arguments to take place.
As if on signal, the Arroyos rushed to the airport the same day seeking to board a flight to Singapore.  They reserved five different flights to Singapore using different airlines. From there, their itinerary included a flight to Spain, a country with which the Philippines has no extradition treaty — and which really does not exactly have international renown for exceptional medical expertise.
These facts suggest that de Lima’s concerns are not without basis.
Showing uncommon common sense, Secretary de Lima stayed the WLO preventing the Arroyos from leaving.
Fr. Joaquin Bernas, S.J., former dean of the Ateneo law school, known as a “Constitutionalist” takes  the position that the decisions of the Supreme Court should absolutely always be obeyed. Otherwise, he asserts, we will have chaos or risk having a Constitutional crisis.
He asserted the same stand when the Supreme Court composed of GMA appointees confirmed the midnight appointment of Renato Corona as Chief Justice — even if precedent law indicates that this is illegal.  Bernas is absolute in his position that the Supreme Court should always be obeyed.
He criticizes Secretary de Lima in his column — that she should have immediately obeyed the TRO of the Supreme Court and allowed the Arroyos to travel — even if there is a risk that the Arroyos may escape prosecution and never return.
Issue: Should the decision of the Supreme Court be absolutely obeyed at all times?
Here’s my take on this:
The concerns of Secretary de Lima who represent the people of the Philippines are legitimate concerns. This is not the same as saying  that the Arroyos do not have individual rights. Everyone recognizes that they do.
But if the eight Justices of the Supreme Court were acting in good faith, they would have given the government the opportunity to present counter arguments against the Arroyos’ TRO petitions and waited for the submission of briefs and the oral arguments before making a decision.
The government who collectively represent the Filipino people should be afforded the  same procedural due process rights as the Arroyos. If the eight justices do not see that or refuse to see it, surely, it should be obvious that de Lima, as an individual — has due process rights.
In emergency situations, a proper court may unilaterally issue a TRO to instantly prevent some harm from occurring where the facts clearly suggest this might happen.
This is not the situation here. Even  GMA’s doctors affirm she is in no immediate danger of dying or suffering irreparable injury.  They even state that she should recover in a few months.
Nevertheless, in her petition for a TRO, Arroyo insists that she needs to immediately go abroad for medical treatment. On its part, the government will be claiming that GMA can get the necessary treatment in the Philippines and that more likely than not, she is using her illness as an excuse to be able to leave the country and elude prosecution for the serious charges of plunder and electoral sabotage — no bail offenses for which she could spend a very long time in jail if convicted.
As in every case,  credibility is  always an issue. It is only proper for the Justices to scrutinize if the parties are telling the truth and which party has the weightier more rational arguments — before making their decisions. At all times, the Justices are supposed to remain neutral and fair and base their decisions on proper procedure and objective evidence.
Here, the eight Arroyo appointed Justices never provided the government the opportunity to present written briefs contra to the TRO petitions nor did they bother to wait for the scheduled oral arguments which would have taken place in a few days. Instead, contrary to the protestations of the five dissenters, they unilaterally granted the TRO petition  of the Arroyos.
Notwithstanding these irregularities, Constitutionalist Fr. Bernas declares that this tyranny of a clearly biased majority cabal of justices should nevertheless absolutely be obeyed.
Having gone to  a Jesuit law school in the United States and continuously  doing cases in California and federal courts for some thirty years which includes litigating many complex immigration and human rights cases involving US Constitutional Law, I am somewhat sad to see  that a Jesuit priest who is also a lawyer  — fails to see the more important issue here.
With no disrespect intended, I note that Fr. Bernas takes a mechanistic absolutist position in declaring that the decisions of the Supreme Court should always be followed.
I grant, that in general, the decisions of the Supreme Court should be followed — unless they are in conflict with moral laws — as in this case. As a matter of conscience, man made laws should be ignored, disobeyed and fought against where they conflict with moral law.
There was a time when slavery and segregation  laws were part of the United States Constitution. Some law professors and Constitutionalists admonished that the law had to be obeyed  simply because it was the law — notwithstanding the terrible injustice and extent of suffering that this inflicted on other human beings who were not even defined as human beings under this same law but as chattels or personal property.
Some humanists like Henry David Thoreau were willing to go to jail  and suffered personal consequences rather than accept and give legitimacy to such anti-human laws.
The laws are made for man rather than man being made for the laws. Some laws are clearly unjust or the way some good laws as applied are clearly unjust. Conscience dictates that in these situations, civil disobedience should be resorted to. Mahatma Gandhi, Nelson Mandela, Martin Luther King, Ninoy Aquino, Jose Rizal – all these great men listened to the calling of their hearts and  moral law rather than to tyrannical artificial laws made by corrupt greedy men.
They paid heavily, some with their lives, to be true to God’s law that they found within their deepest selves – but with their sacrifices, unquestionably  left the world a better place for others.
Here,  by their actuations, eight  pro Arroyo  Justices show that they  are placing the interests of their patron above that of the Filipino people. They are using their official powers to dish out laws or orders that tyrannize and brutalize the rights of the citizenry. How different is this from the tyranny of an individual dictator?
It is one thing for  a Constitutional law professor to explain  that in general, Supreme Court orders should be obeyed.  It is another thing for him to say they still need to be obeyed even if clearly tyrannical, unjust and immoral.  Fr. Bernas may sincerely believe he is promoting public order with such admonition.
In actuality, he is  creating instability and distrust by insisting that the public accept and swallow the unpalatable biased decisions of a majority of Justices in the Supreme Court who are all GMA appointed.
Let’s take a second issue: Should the Executive branch risk causing a Constitutional crisis by defying the Supreme Court?
Defying biased eight pro Arroyo  is not the same as disrespecting the Supreme Court as an institution. Secretary de Lima is simply affirming the rights of the Filipino people in taking a stand against judicial tyranny.  This important stand inevitably needs to be done now at this point in Philippine history.  It is not the end of the world if President Simeon  Aquino assumes this risk which he should.  In fact, he is showing true moral leadership if he does.
This touchy situation of a majority of Justices, who by their actuations,  show more loyalty to GMA and to themselves than to the people and to principles of promoting justice –  needs to be resolved now.
Unless resolved now, it will repeat itself. The Secretary of Justice and the Ombudsman can file all kinds of charges against the Arroyos and their cronies, exert tremendous efforts and spend millions to win these cases.
Assuming they win, expect these cases to be appealed to the Supreme Court and to the waiting hands of the biased Arroyo 8.  Let’s  call a spade a spade. What will happen there is predictable and foreseeable. They will decide in favor of GMA. Fr. Bernas will again say we should absolutely accept their decision.
Faced with a Supreme Court with a majority of Justices clearly loyal to GMA, what then should President Aquino and Secretary de Lima do?
They should continue to defy the Arroyo 8 Justices when they come out with unjust results – such as ordering de Lima to obey the TRO and allowing GMA to depart.
Aquino should use all of his formidable political powers against the Arroyo 8.
He is the the elected President of the Philippines – voted into office by millions of Filipinos. They expect him to provide strong moral leadership. He is the Commander in Chief of the Armed Forces. Under him also is the NBI and the PNP. He also has tremendous other resources at his command. Most importantly, he has the support of the Filipino people in the fight against corruption and injustice.
What about these eight justices?
They were appointed by a discredited President who like her husband is  perceived as having betrayed the country with their unbridled greed and corruption. The midnight appointee Chief Justice and the seven others have no credibility in the eyes of the people.
If the President and Justice de Lima defy their orders, the people will understand and support them knowing they do it for the sake of justice and that it is the right and moral thing to do.
What will the Arroyo 8 do – hold de Lima  in contempt? Aquino can simply just immediately pardon her.
Who will the eight order to arrest de Lima? The President has the loyalty of the Armed Forces, the PNP and the NBI.
The President should not hesitate to use his political powers to accomplish good for the sake of the people. He cannot allow 8 questionable individuals who repeatedly abuse their discretion in using their offices to thwart the ends of justice.
He should pressure them to resign or caused them to be impeached. Replacing them with new Justices should bring back credibility and respect back to the Supreme Court as an institution.
The people will love him more for showing strong moral leadership.

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