Monday, December 5, 2016

Making sense of the SC, Marcos burial, and the democratic process -

See - Making sense of the SC, Marcos burial, and the democratic process

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The majority of the Supreme Court has spoken. It has deferred to the President’s executive power and found that “there is no clear constitutional or legal basis to hold that there was a grave abuse of discretion amounting to lack or excess of jurisdiction which would justify the Court to interpose its authority to check and override an act entrusted to the judgment of another branch.”

There are a couple of pithy aphorisms that come to mind in trying to make sense of the Supreme Court’s majority decision. There is Oliver Wendell Holmes’s famous observation in Northern Securities Co. v. United States, that: “Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” Then there is also Robert Jackson’s remark in Brown v. Allen, that the Supreme Court is “not final because [it is] infallible, but [it is] infallible only because [it is] final.”

Judicial power is usually described as the power to “settle actual controversies involving rights which are legally demandable and enforceable.” But Article VIII, Section 1 of our 1987 Constitution provides for more: it also includes the ability of the courts to determine “whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” This “expanded” power of judicial review was proposed by the Framers to minimize the application of the so-called “political question” doctrine — applied so often during the years of the Marcos dictatorship — that holds that some issues in their nature, “are fundamentally political, and not legal” so that if a question is thus fundamentally political, then the court, in deference to the principle of separation of powers — so the logic goes— should refuse to hear the case.

In exercising this specific aspect of judicial review, the Supreme Court has also highlighted what is already patent in the Constitutional text: that for abuse of discretion to merit judicial review, it must be of a grave nature, and by “grave” the Court has said that the exercise of discretion must be characterized by “a capricious and whimsical exercise of judgment so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and despotic manner because of passion or hostility.”

Notwithstanding this general characterization, the boundaries of what constitutes “grave abuse” as applied to particular circumstances have expanded and contracted depending not only upon the specific particularities of a case, but also (and more realistically) according to the individual and collective values, principles and priorities of the judges sitting in judgment on the case.

In Ocampo v. Enriquez, the Supreme Court was able to find, and using what some would characterize as a “narrow and legalistic” approach to the application of its power of judicial review, that the President did not commit any grave abuse of discretion. As honest students of the law, we will probably have to concede that based on these laws (or absence thereof), President Duterte did not, in fact, gravely abuse the exercise of his discretion as Chief Executive of the Philippines. This is notwithstanding the documented human rights violations during the 11 years of Martial Law and beyond and the massive corruption and theft of government resources during his tenure as President. After all, Lady Justice is blind, and the Supreme Court is not a trier of facts (though judicial notice of history is allowed under our Rules of Court). Understood from this standpoint, the decision of the majority can, at the very least, be characterized as legally correct. Could the Supreme Court have decided any differently? Certainly – the dissents penned by Justices Sereno and Carpio more than illustrate this point. But 9 will always be more than 5, and the majority of the Court carried the day.

Where then, does this leave those who are adamant that former president Marcos is not a hero?

On the one hand, the majority’s decision in Ocampo is a fine example of the limits of the judiciary under our tripartite system of government, particularly as regards its power of judicial review. Some have described this as the “counter majoritarian difficulty”: that by exercising its power to nullify the acts of co-equal branches of government (that is, the executive and the legislature), an unelected court could substitute its will for what would effectively be the will of the majority, who have acted through their duly-elected representatives. And this, perhaps, is what the majority in the Ocampo decision is saying: “There are certain things that are better left for history - not this Court - to adjudge. The Court could only do so much in accordance with the clearly established rules and principles. Beyond that, it is ultimately for the people themselves, as the sovereign, to decide, a task that may require the better perspective that the passage of time provides. In the meantime, the country must move on and let this issue rest.”

In other words, the “correctness” of the burial of President Marcos is now a matter to be decided through the democratic process - that is, politically, and not judicially: the remedy, therefore, is now no longer through the courts, but through the legislature, the ballot box, or through the parliament of the streets. Whether that process will be successful for those who decry Marcos’s burial is, unfortunately, a numbers game. And that numbers game has so far tilted towards the 16 million Filipinos who voted President Duterte into power. Without sounding facetious, though: as they say in basketball – bilog ang bola (the ball is round) – and the 16 million today may not be the same million tomorrow, or in one month, or in one year. The legislators who are silent on this issue today, may not be silent on this or other similar issues tomorrow, or in one month, or in one year. Who knows – the President may even change his mind. The wheels of democracy grind slowly in this way but, like history, it grinds (or bends) toward justice. Therefore: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. [Art. III, Sec. 4, Phil. Const.]

Do I agree that former President Marcos should be buried in the Libingan ng mga Bayani? I do not. To bury him there would be the first step down the slippery slope that will end with a revision of Philippine history: that former president Marcos was anything other than a dictator and a thief. It is not only I who says this, but the Supreme Court also: This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after causing 20 years of political, economic and social havoc in the country and who within the short space of 3 years seeks to return, is in a class by itself [Marcos v. Manglapus].

Jefferson says that the price of democracy is vigilance. And in this time of great national divide on what, only 30 years previous in 1986, seemed to be as settled as the triumph of good versus evil, or of the light versus the darkness, the call goes out again to the heroes of EDSA to guard against the dying of that light – or perhaps, more crucially, to pass on that light to the younger generation. By what we have seen of them over the last days – and thankfully - they have accepted this call willingly, and with brave and defiant hands. There may perhaps still be hope, after all. –

PJ Bernardo is a parter at a Singapore-based law firm and practices finance and foreign investment law. He was a member of the faculty of the Ateneo Law School, where he also received is law degree in 2005. He pursued post-graduate studies in international finance at Harvard Law School in 2012. He hopes to return to teaching, his first love, in the very near future.

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