Monday, January 22, 2007

The Supreme Court and Trial By Election

Baycas in the Comment Thread yesterday posts a reaction from La Vida Lawyer (Marvin Aceron) on the "finality" and "unappealability" of Supreme Court decisions as a reaction to Alan Paguia's essay, The Rule of Force--
Doesn't our Constitution say that the Supreme Court is the supreme interpreter of the law of the land? I can still hear Fr. Bernas, S.J., one of ONLY two living experts in Constitutional Law the other being Justice V.V. Mendoza, lecturing that judicial power is the prerogative of the Supreme Court to decide rightly or wrongly over legal issues and still be right. What does that mean? It means that in our constitutional system of government whatever the Supreme Court says over a legal issue, be it logical and lucid decision or arbitrary word salad, is the last word on the matter. The rule of law compels us to obey what the Supreme Court says. That's why some years back when Prof. Alan Paguia lost a big case in the Supreme Court, he published an advertisement appealing to God Almighty to reverse the Supreme Court. In other words, if you lose a case in the Supreme Court, there is no place to appeal anymore but Heaven. If the Supreme Court says, for example, that lunatics can be lawyers, nobody can argue against that. Not the President. Not Congress. It's the law. Hell, we have many lawyer lunatics selling little booklets of their own.

It is the Supreme Court's interpretation that Arroyo's succession is legitimate. Erap resigned, albeit constructively. It is a ruling that will probably be remembered as one of the ugliest, if not the ugliest. But the Supreme Court Justices could have just written the lyrics of "Impossible Dream" to support the decision and Fr. Bernas would have said it's the exercise of judicial power -- rightly or wrongly -- it is right. That's the law. It's final. There is no appeal to a higher court. So how can the ruling of the Supreme Court be a triumph of the rule of force?
Ah yes, the old comfortable argument that the Constitution means what the Supreme Court says it means. But IS there no higher court than the Supreme Court?

Yes there is! The PRESENT Supreme Court of 2007 is not the same as the PAST Supreme Court which issued the anomalous ugliness called Estrada vs. Arroyo, in March 2001. The present Surpeme Court can overrule, revise, or reverse any past Decision by a past Supreme Court! That is how Santiago v. Comelec has been "reversed" on the matter of an enabling law.
That is how, after over a century of PRO-SLAVERY decision making, the US Supreme Court nonetheless came to bless the Manumission of the Negro Race by Abe Lincoln.

In other words, the supreme power of the Supreme Court is that it can always CORRECT itself.
The greatest virtue in every democratic institution is CORRIGIBILITY. Which is why it is FALSE to claim that that there is anything fundamentally permanent or final about any particular Supreme Court Decision, since they are all subject to change BY the Supreme Court itself.

Frederick Douglass, the great American Justice and abolitionist had this to say--
"Your forefathers were men of peace; but they preferred revolution to peaceful submission to bondage. They were quiet men but they did not shrink from agitating against oppression. They showed forebearance but they knew its limits. They believed in order but not the order of tyranny. With them nothing was "settled" that was not right. With them, justice, liberty and humanity were "final" -- but not slavery and oppression. You may well cherish the memory of such men, for they seized upon eternal principles, and set a glorious example in their defense. Mark them."
I hope this point stimulates further discussion on the alleged finality of Supreme Court decisions. Yesterday's decisions are not final relative to the possibilities of tomorrow!

But let me now tackle the more other important proposition in La Vida Lawyer that "There is no appeal to a higher court." Based on the argument on finality, one could easily claim that there IS appeal to a higher court--that the present Supreme Court is indeed, capable of reversing the past Supreme Court, though "appeal" may have to come indirectly or through some new case.

I believe there is a far more interesting notion that deserves consideration--


Marvin Aceron's analysis (written in 2003) of Alan Paguia's The Rule of Force does not do justice to the truly provocative ideas therein, namely that Hilario G. Davide, Jr. was acting not as Chief Justice (though he was dressed for the part) but a co-conspirator with GMA on 20 Jan 2001--for there was no justiciable case before him to justify his suddenly appearing at the Edsa Shrine to swear her in. He should instead have reconvened the Impeachment Trial which was his explicit duty as Presiding Judge. What Estrada vs. Arroyo (March, 2001) actually decided was that Davide and Reyes and GMA were totally innocent of any crime or violation of their oaths of office. Only Erap did wrong and even did something he denies to this day--he allegedly resigned. It is an awful stretch to claim that the FACTS of history are what the Supreme Court construes them to be

Thus the real intellectual challenge that Paguia hurls down to lesser mortals is that the Case of Joseph Estrada cannot be fairly and impartially tried by the Supreme Court, that it should not have been called Estrada v. Arroyo, but Presidency vs. the Supreme Court, or Estrada vs. Davide! This is an intellectual challenge because Paguia identifies the case as a juridical rarity, a case that could not possibly have been contemplated by the framers of the Constitution. A case, where the Chief Justice throws the Constitution out the window, purportedly "to prevent violence", then the Supreme Court blesses the illegal and unconstitutional regime change that resulted from their Chief's actions. They even had to change the reason for the swearing in from permanent disability to constructive resignation.

Since Erap was clearly denied DUE PROCESS when his impeachment trial was conveniently and immorally aborted after it became clear he had the numbers for acquittal, Prof. Alan Paguia claims that Erap has indeed, lost the PRESUMPTION OF INNOCENCE and can no longer be tried "fairly and impartially" by the Supreme Court.

This leaves us all in a moral dilemma. I personally believe that Erap was guilty of Plunder, but I also believe Davide and Reyes and GMA are guilty of Dereliction of Duty to a treasonous and Constitution-annihilating degree. All of them violated their sacred oaths.

How can a case such as this be decided in which the President Joseph Estrada basically accused the Supreme Court Chief Justice, the Chief of Staff of the Armed Forces and the Vice President of the Philippines of ovethrowing him on 20 January 2001, and the passage of time only seems to confirm with greater clarity the truth of that accusation?

I think it lies in the concept of TRIAL BY DEMOCRATIC ELECTION.

Where after all does the Supreme Court or any branch of government get its power? What is the source of the spring but the People's will and sovereignty?

I think Joseph Estrada should run for the Senate of the Philippines and let the people decide a case that the last six years have only proven, cannot be tried fairly and impartially, or brought to any kind of morally satisfying conclusion, by the Supreme Court. And yes, Davide, Reyes and GMA also need to be brought before the bar of the Constitution and the people that gives it vitality and power.


Jego said...

I dont get the bit about Erap not being able to be tried fairly and impartially. Why not? Isnt the Supreme Court now different from the Supreme Court that swore in GMA? The case hasnt even reached the Supreme Court yet.

Rizalist said...

It has to do with Due Process. Like when a criminal suspect is tried using evidence that is illegally obtained.

Erap was denied due process when, as President, he should have been immune from suit, yet was illegally deposed.

That means his present trial does not accord him due process rights. In particular he has lost the presumption of innocence and has already been prejudged.

That is what is meant by he cannot be given a fair and impartial trial!

Jego said...

That means his present trial does not accord him due process rights. In particular he has lost the presumption of innocence and has already been prejudged.

Im sorry. Maybe Im dense but I still dont get the legal niceties involved. He is prejudged because he was deposed? It's just inconceivable to me that our own Supreme Court could be guilty of prejudging a case when a) the case hasnt reached it yet, and b) it's not the present Supreme Court that deposed Erap. It was the Davide Court that did.

The legality of his ouster is a separate case from his alleged plunder, is it not? Even if the courts find that his ouster was illegal, his term is over and therefore has lost his immunity. Couldnt the courts declare a mistrial and retry the case?

engineerOFW said...

DJB, Estrada (and no sitting president) was NOT immune from suit for :

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment.

marvin said...

Hey DJB,

I've changed my mind. I was wrong. While indeed the Supreme Court has the last word, it also has the prerogative to change its last word. It has been proven in many instances. Thus, I have to agree -- until justice is served, the Supreme Court's word is not final.

Rizalist said...

Thanks very much for that Marvin Aceron La Vida Lawyer)!

I too was wrong in my understandings of this whole thing, and I would say it was two whole years after Edsa 2 all happened that I saw how wrong I was. In fact I'm not done correcting some of my own erroneous notions regarding these things.

I guess, it is either we live by the Constitution, or die by it!

Rizalist said...

EngineerOFW--Welcome to Philippine Commentary. Spot on! I spoke with imprecision. Indeed Erap was not immune from impeachment; however, the conviction or acquittal deserved by both him and the People suffering through it, was not to be had. Instead Davide just swore in the Vice President.

You are right. The only DUE PROCESS that Erap should have undergone was impeachment AND trial. But that was aborted, and denied to him.

It is the first and fundamental right of any criminally accused person that he be accorded DUE PROCESS. Otherwise everything that happens is legally null and void. For example, suppose there is an illegal search and seizure of incriminating evidence, a clear violation of "due process." Then, any use of such evidence become unfair and illegal, such that any trial, even of a really bad and notorious person, becomes abhorrent to the moral sense of the Constitution for Justice and Truth to be unattainable except under the Rule of Law.I guess that is the other name for due process, Rule of Law.

What Erap is being tried under is not that, but what Paguia called the Rule of Force.

I call it the Rule of Unelected, Unaccountable Judges for whom the Constitution is a mere plaything.

Jon Mariano said...

If Gloria turned out to be not as bad as she is now, these kind of arguments won't have the same appeal as it is having now.

Although knowing what and who is right and wrong is a good thing, most would look the other way if a "bad" thing brought good things to the majority. That's for our being as infants when it comes to democracy.