The Chief Justice's Foot In The Supreme Court's Mouth

UPDATE: #3:Ishmael Kahn explains the alleged "judicial error" the Chief Justice Panganiban has raised.

UPDATE #2: It is completely self-serving, now that he happens to be Chief Justice, for Artemio Panganiban to accuse a previous Court of having unjustly executed a convicted child rapist, since he dissented in the original decision. So there is no admission against his own interests here, or "humility." Instead there is the admission of a purely ideological purpose. He claims to prove how irrevocable capital punishment is. Heck if this is his proof for that, maybe those who support the abolition ought to take a second look!

UPDATED: Panganiban's original comments on the Leo Echegaray decisions were bad enough, but his defense of them as a mere expression of his "personal opinion" does not hold up to scrutiny. Consider his reason for NOT also commenting on the Erap cases: he says the plunder case might come up for review in the Supreme Court and thus become sub-judice. But the case that former Pres. Estrada is talking about has nothing to do with his current plunder trial. Erap is referring to the two Supreme Court Decisions, Estrada vs. Arroyo (March, 2001) and Estrada vs. Desierto (April, 2001) in which the Davide Court did several amazing somersaults with Panganiban in the co-starring role:

(1) They declared as "constitutional throughout" the military-judicial coup d'etat-based REGIME CHANGE which the Supreme Court itself actively and essentially caused by declaring the Presidency vacant on 20 January 2001. No matter how the people power ideologues midrash the event, there would have been no regime change in 2001 if only the Supreme Court decided to think about the fax that Mrs. Arroyo sent them on that same morning of 20 January 2001 for even a week or so, and carried out the explicit Constitutional requirements on presidential succession by permanent disability. Which of course they did not do in the 45 minutes they spent between 11:36 am when the fax arrived, and the arrival of Chief Justice Davide at the Edsa Shrine to administer the regime changing oath!

(2) To do that, they first reversed their own finding just before noon on 20 January 2001 that Pres. Joseph Estrada was permanently disabled at that time, and which they affirmed in a Resolution on Monday, 22 January 2001.

(3) Realizing that foreign recognition of the Arroyo govt, such as by the US, hinged on the understanding that Pres. Estrada HAD resigned by 20 Jan 2001, they took 2 months to invent CONSTRUCTIVE RESIGNATION, thus changing the reason for the regime change. But it was NOT the reason they declared the Presidency vacant to begin with!

(4) The two decisions stand as thumbs in the nose of the Law. They can't properly be taught in the Law Schools and are a hideous embarrassment!

Estrada vs. Arroyo and Estrada vs. Desierto are separate from the plunder charges, though of course one is contingent on the other. But the 2001 Regime Change is not now sub-judice and won't be even when the plunder decision comes up for automatic review as a capital case.

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Maybe the Death Penalty abolition is the sugar coating on the CHACHA pill. Remember folks, for Chacha to continue the Supreme Court must REVERSE itself on Santiago vs. Comelec, which decision also declared something that must now be reversed--that the people's initiative is dead for lack of an enabling law. So isn't that what Panganiban's loquaciousness is a set up for?

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Seems to me that Chief Justice Artemio V. Panganiban has just cut the legs out from under the High Court's Bench and called into serious doubt its entire recent record with his eyebrow-raising post-judice pronouncement over the weekend that the Supreme Court majority commited a judicial error in the 1999 Leo Echegaray case, effectively executing a convicted child rapist unjustly. (But not him, of course, since he dissented!)

Paradoxically, I thank the Chief Justice for unwittingly confirming the persistent claim made on this blog that there is nothing infallible or final about Supreme Court decisions. Even if the Supreme Court has ruled with seeming finality on something, Justice must be pursued until it is right.

Yet the "judicial error" Panganiban refers to in this instance is not quite what you might think. There was no horrible mistake as such, or grave abuse of discretion, or transcendental miscarriage of justice (unlike on the event shown at right). Or the wrong guy. No. Leo Echegaray was beyond any reasonable doubt, guilty as charged of raping the child of his common law wife. In 1996, the Supreme Court affirmed the lower court's judgement and Leo was executed for his crime in 1999. But now cries Panganiban, wagging his Chief Justice's finger at the nasty, murdering other justices of the Davide Court, Leo should only have gotten life in prison because there was this technicality see: the complaint against him and the criminal information leading to his arrest did not in fact mention that he was the common-law husband of the victim's mother. Now wrap your brain around this: the penal code specifically imposes the death penalty on rapists who are the common law husbands of their victim's mothers, but Chief Justice Panganiban claims the Court should have given poor Leo life in prison based on the minor technicality that this fact was not mentioned in the original criminal complaint against him!

Ishmael Kahn, the current Supreme Court administrator reacted by pointing out that though the fact was not in the complaint itself, it was amply proven and discussed and known to the Court as a fact during deliberation. In other words the "judicial error" that Panganiban ascribes to the 1999 Echegaray decision is this: the Supreme Court did the right thing for the wrong reason. It ignored the technicality that was in effect dealt with by the Court's deliberation.

Reacting to media queries for clarification, the Chief Justice Big Mouth back-tracked a little today and said it was just his "personal opinion." But he admits the real reason for his sudden pronouncement that they killed a man unjustly in 1999: he just wanted to prove that under a regime where the Death Penalty is an option "erroneous" decisions cannot be corrected. That may be true, but it is really beside the point in the Echegaray case. Methinks Panganiban overstretches and picks quite the wrong example to prove that point. He is also practicing again, what he and Davide and the Edsa Dos conspirators did in 2001: "The end justifies the means."

To come out now speaking as Chief Justice is just not playing by the Rules of decency or institutional integrity. It is unseemly in a Chief Justice and casts the entire Court's record now in serious doubt. A murmur of commentary and grumbling is rising in the background about such loquaciousness from the Chief Justice in cases and historic issues that could easily come before the High Court this year. On Monday, former President Joseph Estrada suggested that the Supreme Court ought to then review its entirely erroneous decision declaring the Presidency vacant on 20 January 2001 and swearing in then Vice President Gloria Macapagal Arroyo, under circumstances that most freshmen law students end up chuckling and grimacing about.

But no. Chief Justice Panganiban told reporters at an Independence Day celebration that he would not comment on that since Estrada's case was bound to come up to the Supreme Court. Well whoop-dee-doo Mr. CJ. That could happen in the Leo Echagaray case now, and the six other men executed in that same time period. Likewise, the law passed by the Congress abolishing the death penalty has not yet stood judicial or even "political" review, so a major constitutional case on Capital Punishment could come before the High Court. In fact, it is almost certain that that will happen.

So! What does this do to the Court of Last Resort? To judicial impartiality? To Blind friggin' Justice?? But judicial partiality and partisan political activity from the Bench, were ever Panganiban's and Davide's and Edsa II's original sin anyway. So, what's one more mockery of the Rule of Law when the cause is so obviously sanctimonious like abolition of the death penalty? Or the overthrow of a president in a civilian military coup d'etat still defended by moralists who call themselves Civil Society?

It should be remembered that in the case of Edsa Dos, it was a positive ACT of the Supreme Court following an obviously factually erroneous finding that the Presidency was vacant, namely, the swearing in of Mrs. Arroyo by then Chief Justice Hilario Davide. She would NOT have become President then without that act! Damn putschists. I think Davide and Panganiban deserve capital punishment for this. Or at least a hundred pushups. Something!

RAUL PANGALANGAN almost has me won over to his point view on the death penalty in his PDI column essay this week, A Passion for Reason: The Quality of Mercy. He presents at least three cogent and potent arguments against capital punishment

The most powerful pragmatic argument was that the death penalty has failed to deter crime. The true deterrent is the reasonable certainty of being caught and convicted. I am not sure if Congress looked at the numbers when it repealed the death penalty law, or if such reliable data were available at all. But of this I am certain: if the goal was deterrence, we are better off with a CSI-capable National Bureau of Investigation, a Richard Goldstone or Louise Arbour as prosecutor, and a Harry Blackmun as judge...

Moreover, death is too final a verdict in an imperfect of world where police and courts err, and civilized legal systems have preferred to let the guilty live “because the constable blundered.” Justice Blackmun said: “[T]he inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution.”

The other compelling practical argument was that our justice system is flawed. First, it is anti-poor, and the death penalty is disproportionately borne by those who cannot afford able counsel. Indeed, the US Supreme Court, in the leading case Furman v. Georgia, struck down the death penalty as “cruel and unusual” if it was arbitrary, as when it was racially biased, or it offended society’s sense of justice.

Regarding the deterrent effect of the death penalty, I am sure that some are deterred and some are not. Unfortunately from a statistical point of view, we, the public are necessarily made aware mainly of those who are NOT deterred. Naturally. Those who ARE deterred will never make it to the front pages and news hours. But if partial deterrence is not compelling enough to someone philosophically, I would suggest the following reasoning.

My own position is that Capital Punishment should not be taken off the table as an option. It should be used but rarely and in the spirit not of punishment or retribution, but as part of society's right to defend itself. The existence of people like Abu Musab Al Zarqawi, or the Abu Sayyaf Bandits, or indeed Leo Echegaray himself, argues for the view that Capital "Punishment" is actually just a bad name for a violent but necessary form of self-defense by Society itself. Capital Punishment to me, is actually not a purely judicial function, but an extension of National Defense and is philosophically defensible in that context.

INDEPENDENCE DAZE: Manuel L. Quezon III produces a charming essay today on the issue of WHEN Philippine Independence Day ought to be celebrated. It's a cheerful sally into an old issue on a day of desultory speeches. The sparse audience listening to a sleepless and puffy-looking President Gloria Macapagal Arroyo furiously fanned itself in what looked like oppressive heat and humidity at the Luneta's Quirino Grandstand this morning.

Bambi Harper writes what sounds like a valedictory and farewell. Historian, antiquarian and I guess, soon to be a graduating Inquirer columnist, she'll be missed in that line-up. By a few.

Donald Sensing at Winds of Change quotes a certain Jordanian bridegroom on Zarqawi...how Allah is in the war on terror, but NOT on Al Qaeda's side!,