Monday, November 7, 2016

OPINION: Supreme Court in the dock | ABS-CBN News

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Back on September 14, 2009, in The Explainer I tackled the question of Rehabilitation, how political leaders confront being disgraced and try to rehabilitate themselves. At present the most sustained effort in this regard has been that of the Marcoses, which I’ve tracked for a long time: see Marcos Heirs Prove Incapable of Leadership, from December 28, 2005; Restoration, from September 14, 2006; The Marcos restoration, from July 6, 2009; and Showdown, from February 10, 2010. The Supreme Court is now the field of battle where the victory or defeat for this campaign will be decided. And here, the Supreme Court’s own history: particularly the example of former Chief Justice Concepcion in the case of Javella v. Executive Secretary, becomes highly relevant: not only in terms of what he wrote and what he did in that decision, but what he did afterwards. It was he who made the present Supreme Court more powerful –and the bearer of much more responsibility—than its predecessors under our past constitutions. When, as one of the commissioners tasked with writing the 1987 Constitution, he sponsored the constitutional provision making it the duty of the Supreme Court to settle not just controversies involving legally-demandable rights, but to determine whether or not there has been a grave abuse of discretion on the part of any instrumentality of the government, he essentially moved to make it exceedingly difficult for the Supreme Court from washing its hands of a controversy ever again, so long as what confronts it is not a hypothetical question.

A specific question based on an official’s decision, now confronts it. Recalling his experience in 1973 (and you can find it in the actual Supreme Court decision), Concepcion pointed out that aside from the legal games of Marcos, any citizen could see what a sham the so-called “ratification” of the 1973 Constitution was –including the justices themselves who do not live isolated from the world. But faced with a choice between recognizing –and acting—on the mockery of the law going on, or hiding behind the excuse that the court had been overtaken by events, the majority chose to hide. The recollection of Justice Antonio Carpio –that he, along with many law students, saw this clearly and lost respect for the court—has been widely quoted.

The choice confronting the court now is similar though at first blush seemingly much more petty. It’s a choice between what could arguably be called preferring tunnel vision over a broad vision of what regulations and laws, taken together, are supposed to mean: including whether they can be used to camouflage the identity of Marcos as dictator and tyrant.

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