Unanimous But Solomonic, Justice Moot and Academic

FACT: Not a single real person was found GUILTY of any crime in the three recent Supreme Court Decisions on EO464, CPR and PP1017, even though numerous laws and statutes are said to have been brazenly violated by acts deemed illegal and unconstitutional. I'm sure this verity is covered by the usual presumptions of regularity.

FICTION: There are no episodes of Perry Mason where the verdict was partially innocent or partially guilty. At least Hollywood understands the common man's expectation of the appropriate climax to a courtroom drama.

QUESTIONS: In what sense can it actually be said that Petitioners won and Respondents lost anything but some controversy long moot by subsequent events, and is only endlessly academic now? How enforceable is the Court's resolve that future constitutional aberrations be averted by its mere Decision-making?

There is no doubt that a unanimous or nearly unanimous Decision by any Court gives it a certain moral force. But when the thing over which the Court finds such strong agreement upon leads to a verdict that reads "WHEREFORE, the Petitions are granted in part...", ordinary citizens are naturally confused because we expect that a Decision handed down by the final arbiter of the Constitution, the very Court of Last Resort, ought to result in a definitive verdict like GUILTY or NOT GUILTY. It doesn't seem to do justice in the real world to have a decision which does not make a decisive evaluation of that kind. It doesn't seem, in other words, that the Court was trying the human beings accused of awful crimes against other persons and against the Law itself in these Decisions, but rather it was analyzing and ruling upon disembodied pieces of paper with decrees and orders and proclamations written on them. In these Decisions, the Supreme Court does not give the impression of judging real villains in the real world, but of noticing the undotted I's and uncrossed T's of certain only partially unconstitutional prose, striking down here and there the most egregiously violative passages, described by Justice-Columnist Isagani Cruz as "a spanking with a felt slipper."

Indeed, WHO has actually suffered any censure or pain when the Court strikes down (in 16 point Times New Roman Bold) Section 2b of some executive order? What does it actually mean for the common sense of just retribution and the rule of Law that no one at all is to be punished even if the Decisions all rise to stentorian timbre in their condemnation of unconstitutional and illegal acts?

It is a remarkable shock for as many of her supporters as her detractors to discover that President Gloria Macapagal Arroyo cannot seem to be stopped or even slowed down, not even by the Supreme Court! The Palaces is remorseless, despite three progressively more strident and negative Supreme Court Decisions against her policies and actions since Gloriagate got going, all in the space of the last few weeks: Senate v. Ermita (on the EO464 Gag Rule); Bayan v. Ermita (on CPR/BP880) and Randy David v. Gloria Macapagal Arroyo (PP1017).

These unanimous or nearly unanimous Decisions have not produced any apparent remorse or repentance on the part of Malacanang Palace and the President's men I think because their Solomonic disposative portions weaken the moral force of the Decisions by a quintessential ambivalence and equivocation. It is not the kind of Decision one expects: Guilty or Not Guilty. Go Free or Go To Jail. Instead, these Decisions leave wiggle room for continuing strife and disagreement about fine legal and constitutional issues.

Among those who have until today continued to express optimism and hope, (if never quite complete confidence), in the Supreme Court, I can think of no one more eloquent in his chagrin at the evolving turn of events since the Decisions were handed down, than Dean Raul Pangalangan of the University of the Philippines College of Law, who smolders in his PDI column today...(perhaps sensing the inherent futility of mere Decisions from the "weakest branch of govt" against a supernally determined Chief Executive.)...

Trifling With Constitutional Sanctities (PDI Dean Raul Pangalangan): As I have written earlier in this space, I am a partisan in this case, having argued before the Court (together with professor Harry Roque) in behalf of Randy David, Akbayan president Ronald Llamas and Rep. Lorenzo Tañada III. I disagree with the Court that all these civil rights violations can be separated from PP 1017. Can we thus insulate President Arroyo from all responsibility?

Both the majority and the dissent confirm that those who violate civil liberties must be punished. The President took an oath "to preserve and defend [the] Constitution [and] execute [our] laws." The Constitution says that she "shall ensure that the laws be faithfully executed." Has she called the erring military officers to answer for violations, or has she in fact promoted or rewarded them?

The Court has thrice rebuffed the President's faulty legal measures: EO 464 and the stifling of the congressional power of inquiry; the calibrated preemptive response relied upon to unleash anti-riot police upon civilians; and now, PP 1017. Has she actually disclaimed, disowned, disavowed any of the acts chastised by the Court?

When she signed PP 1017, her Cabinet secretaries declared that this would authorize warrant-less arrests and the seizure of private businesses. Under the "alter ego" theory, acts by the Cabinet secretaries are acts by the President. Is she really that distant from the civil rights violations? Since February 24, the day a national emergency was declared, has she taken a single step to correct those who had erred? Or has she embraced their acts as her own?

Felix Frankfurter said: "The accretion of dangerous power does not come in a day. It does come, however slowly, from ... unchecked disregard of the [laws] that fence in [state power]." Elsewhere, US courts have cautioned: "[I]llegitimate ... practices get their first footing ... by silent approaches and slight deviations .... It is the duty of the courts to [guard] against [such] stealthy encroachments."

Stealthly encroachments upon Constitutional sanctities indeed! Considering the transcendental nature of the issues that came before it in the 2006 PGMA cases, others have noted the Supreme Court's deficiency in the timing of its Decisions, which indeed have come months after the subsequent events had already rendered even a most academically learned and rhetorically strident Supreme Court Decision, moot and academic. Here for example is today's PDI Editorial:

Delayed Relief (PDI) It is for the public to demand that there be accountability on the part of the executive branch which has been declared three times in a row to have gratuitously and dangerously exceeded its authority. But it is for the judiciary to intervene sooner, so that what is wrong can be set right, and not merely declared improper after all the improper objectives of the authorities have been achieved, and thus made irreversible.

Thus despite the Court's claim in David v. GMA, that it would not evade the substantive issues involving PP1017 by declaring the issue moot and academic by virtue of PP1021, their long DELAY in deciding the cases has already brought about that effect!

UNANIMOUS OR NEAR UNANIMOUS, BUT AMBIGUOUS AND SOLOMONIC The fact of the Decisions being unanimous or near unanimous leaves me cold. In fact, the 11-3 Decision on PP1017, David v. GMA at least produced an interesting "exchange" between Justice Dante Tinga who led the three dissenting judges, and Chief Justice Artemio Panganiban who filed a reply to the dissent by way of concurring with the majority. (Also covered in Dean Pangalangan's piece). Yet in every case, there is countervailing facet of the Decisions: all of the them grant the petitions only in part, creating the impression of them as being "Solomonic."

The exact nature of this equivocation will lead now to the usual endless commentaries and debates (of which we are ineluctably a part) over WHAT the Decisions ultimately mean in the real world and for future Decisions.

But considering the transcendental nature of the issues involved in these cases, I think this ambiguity or Solomonic equivocation, real or not, diminishes the moral force of the Decisions by giving the Palace enough "wiggle room" to rationalize its past actions, and continue in its aberrant ways, while the rest of us stew in the outrage and frustration not only at that Justice has already been delayed, but also that Justice is continuing to be denied by the Palace, fatuously and disdainfully.