Monday, March 20, 2006

Is the Supreme Court Infallible?

(YES. BUT ONLY BECAUSE THE SUPREME COURT CAN CHANGE ITS MIND!)
JOAQUIN BERNAS, S.J., is the favorite Constitutionalist of many people, especially those who supported the Edsa 1 and 2 People Power events, though much distinction-making between them has lately been fashionable. Being not only a Roman Catholic priest and a leading light at the Ateneo de Manila University, as well as legal circles generally, Father Bernas is also a literal forefather of the post-Marcos Republic, as an original member of then President Corazon Aquino's Constitutional Commission, which drafted the current 1987 Freedom Constitution. As with our most influential thinkers, Fr. Bernas is also a newspaper columnist for the Philippine Daily Inquirer. Fr. Bernas wreaks a devastating essay of retrospective on the most infamous legacies of the Philippine Supreme Courts with his superb piece this week, THE SUPREME COURT AS LEGITIMIZING AGENT-- (a tour of the worst Decisions of the Philippine Supreme Court)
WE ARE WONT TO SPEAK OF THE SUPREME Court as the last bulwark of our liberties and the ultimate defender of constitutionalism. That is the general truth. This is true because of the Court's power of judicial review which leads to the truism that the Constitution, including the Bill of Rights, means what the Supreme Court says it means. Thus it is that, in the history of our nation, there have been instances when the Supreme Court has legitimized official action offensive to human rights and disruptive of constitutionalism. Hence, as we await the decision of the current Supreme Court on the constitutionality of the gag rule in Executive Order 464, and of Proclamation 1017 and the various official actions it occasioned, as well as the uses of BP 880, it might be salutary to review how our Supreme Court has sometimes, to our national regret, played around with sacred constitutional principles.
This was only Fr. Bernas' lead. Please read the rest of his piece. He wonders what the present Supreme Court will do with all the weighty cases before it and yet to come! But I shall leave for Father Bernas' sharp scalpel the gruesome task of laying bare to the brave reader, the execrable depths to which past Philippine Supreme Courts have sunk in the past, in the canine service of Marcos the Dictator, in the legitimization of several intellectually and morally reprehensible Decisions of the almighty Supreme Court. It seems to be his parabolic but effective means of expressing a lack of confidence in the Supreme Court of Artemio Panganiban to RISE to the level of moral and intellectual ethos required to successfully rule and decide these matters. CPR... EO 464...BP 880...Proclamation 1017...the Garci Cases, looming impeachment, rebellion and coup d'etat charges against senators, congressmen, journalists, soldiers, mutineers...the morass of potentially landmark cases gathering at the High Court, or rotting there, is a real challenge to the Chief Justice Artemio Panganiban.

IS THE SUPREME COURT INFALLIBLE?
Fr. Bernas deserves a lot of credit for administering this medicine now to whatever is left of the thinking Public. It has not been even slightly his fault, (but for a religious association), that the Public paradoxically is still taught to believe in the INFALLIBILITY of the Supreme Court, despite this history of successively lower nadirs attained by its past incarnations. I think this has something do with the fact that in Roman Catholicism, the teachings of the Roman Pontiff are deemed to be infallible in certain special cases, but the distinctions have historically been lost even on the most faithful. Thus the legitimate desire for an ideal, infallible Supreme Court, to a willing suspension of disbelief that in any particular case the Supreme Court might be wrong. I believe that the Constitution is what the Supreme Court says it is, but I also believe that the Supreme Court can REVERSE any past decision it has made! It does not seem reasonable to me, outside of a religious theology, to believe otherwise about the Supreme Court of any democratic country.

A Layman's Tenet: THE ONLY INFALLIBILITY ACCORDED TO THE SUPREME COURT LIES IN ITS CORRIGIBILITY...THE INHERENT ABILITY TO REVERSE ANY PAST DECISION.

Yet we await with bated breath for Father Bernas to go all the way, having opened up this line of questioning...am waiting for Father Bernas to confront the constitutional and moral issues of EDSA 2 in the light of Proclamation 1017. What does he think for example, about Estrada vs. Arroyo (March 2001) now? Wasn't that also the same sort of Vast Leftist Rightist Conspiracy complete with a Military Mutiny which the government is now making VIDEOS about?--

4 comments:

HILLBLOGGER said...

Hi Dean,

I believe not all Filipino cops are aware of the Universal Declaration of Human Rights.

A copy of the declaration SHOULD BE POSTED (and translated if
necessary in the local dialect) MANDATORILY in every police station and precinct, in each classroom and in every public building in the whole archipelago for the Filipino population to read and realize that they have RIGHTS.

In the same manner that a copy of the ARTICLES OF WAR should be posted in every military building and every Philippine Navy ship for all military officers and men to know their duties and responsibilities.

Rizalist said...

too late...the police are in the tit-for-tat game being run by mike defensor now against dinky soliman and the black-n-white -- the so-called Middle Forces. The military IS frozen in place, for the moment, by a morally inconsistent but ironclad discussion of the Articles of War and the sanctity of the chain of command with officers and the rank and file. I guess that's what the "private dialog" is all about. I'm very curious about the charge spec against Danilo Lim...i bet it would be point for point APPLICABLE to Angie Reyes' 2001 Mutiny.

HILLBLOGGER said...

Never too late DJB.

There are articles in the Articles of War that will open the eyes of many a good officer and man as to where their duties and responsibilities lie.

As to Lim's "mutiny" & Angie Reyes mutiny: I doubt they will charge Lim with mutiny. Won't wash - technically won't hold water unless Senga declares unequivocally that Lim had incited him to commit mutiny. If mutiny it is, it will be mutiny against Senga as AFP Chief of Staff. Besides, Senga committed a technical blunder if indeed Lim had committed mutiny (REMEMBER, MUST BE COMMITTED BY AT LEAST 3 OTHER OFFICERS & MEN - ONE OFFICER OR MAN CANNOT COMMIT MUTINY) when he failed to have Lim arrested on the spot and failed to notify Esperon immediately, Lim's commanding general on the spot of Lim's arrest. All of these things plus it will be Senga's word against Senga.

While it is incumbent upon the direct superior of Lim to recommend a court martial (Esperon in this case), Senga himself could have recommended the Court Martial because he was directly implicated.

For the moment, the only military offence that closely resembles mutiny committed by Lim is INSUBORDINATION. However, I have no doubt Esperon will produce fabricated charges against Lim. Senga must tell the truth!

Charging Querubin with mutiny will lead to Angie - and as you say "i bet it would be point for point APPLICABLE to Angie Reyes' 2001 Mutiny."

Worse, it will lead to Gloria's and MajGen Espinoza's own coup d'état.

HILLBLOGGER said...

Hi Dean,

I am not a proponent of Philippine partitioning but with your permission, may I plug in the following because I believe the issue is worthy of a real honest to goodness public debate:

Thank you. - HB

THE SOUTHEAST ASIA FORUM AT THE WALTER H. SHORENSTEIN ASIA-PACIFIC RESEARCH CENTER

10th Seminar, 2005-2006 Academic Year
Thursday, 13 April, 12:00 pm-1:30 pm

Philippines Conference Room
Encina Hall, Third Floor
616 Serra Street, Stanford University
Stanford, CA

Partitioning the Philippines: Is It Desirable? Is It Realistic? A Scholarly Conversation

David C. Martinez, Author, activist, and independent scholar

and

Lela Noble, Professor of Political Science (Emerita), San Jose State University

Poverty, inequality, and corruption plague the Philippines six decades after independence. Of the past five presidents, only one took office and left it without military intervention, and he was a general. In his controversial book, A Country of Our Own (2004), David Martinez describes the Philippines as a failed state. The country in his eyes comprises five regions: Cordillera, Luzon, The Visayas, Mindanao, and Bangsamoro. He proposes holding legally binding referenda in each of these regions to determine whether those who live there wish to remain inside the Philippines or form their own independent country. In a conversation moderated by Stanford’s Don Emmerson, Martinez and the Filipinist scholar Lela Noble will examine arguments and evidence relevant to a crucial question: Is the nation-state project still valid for the Philippines?

David C. Martinez was born in the Philippines. At law school in Silliman University he was a medal-winning debater. He became an activist lawyer, was briefly detained when then-President Marcos declared martial law, fled the Philippines, and eventually reached the US, where he now resides. His essays have appeared in the Philippines Free Press among other publications, and he is a prize-winning author of fiction and poetry as well.

Lela Noble has written extensively on the Philippines. Her authored or edited books include Organizing for Democracy: NGOs, Civil Society, and the Philippine State (1998); Philippine Policy toward Sabah: A Claim to Independence (1977), and her articles have appeared in such journals as Asian Survey and Solidarity. From 1996 to 2002, she was dean of the College of Social Sciences at San Jose State. Her PhD is from the Fletcher School of Law and Diplomacy.
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