As I understand it, when the Supreme Court convened Tuesday to hear the petition of the never-elected former President Gloria Macapagal-Arroyo for that temporary restraining order (TRO), the main issue was not whether or not the Department of Justice’s circular restricting individuals’ right to travel is constitutional — at least not yet, anyway. The issue was whether or not the Court should temporarily order the Department to defer the implementation of the said circular right away, without hearing what the government has to say first.
It is true that the right to travel is a fundamental constitutional right, to be restricted only by law and when three constitutional conditions are met, namely, public safety, public health and national security. But it is also true that, rightly or wrongly, there have been legal loopholes that allowed state institutions to restrict it even without enabling laws. The Supreme Court itself, for instance, prevents all employees of the Judiciary from leaving the country without its permission.
The justification for the DOJ’s circular is that preventing individuals from travelling as a means to ensure that the state can exercise its power to prosecute crime is part of the residual powers of the Executive. Whether this is unconstitutional or not is the subject of a legal debate. I personally think it is, but that is for the Supreme Court to decide. What’s interesting to note is that this circular was issued by the Arroyo administration itself, which begs the question: If Arroyo didn’t think that preventing individuals on the DOJ’s watch-list order from leaving the country is unconstitutional then, why does she think it is unconstitutional now? Well, the government has an answer: Arroyo, now facing possible indictments for plunder and electoral sabotage, is merely trying to evade justice. The fact that pronouncements made by the Arroyo camp on her medical condition is inconsistent and that her travel itinerary is questionable—the “sick” woman is attending conferences in countries that have no extradition treaty with the Philippines— seem to buttress this suspicion.
For these reasons, writes Justice Ma. Lourdes Sereno in her dissenting opinion, would it not have been prudent for the Supreme Court to hear what the government has to say first before issuing the TRO? Eight justices of the Court, all of whom are Arroyo appointees, do not think so.
Do you agree with these eight justices? Neither do I. And neither does the feisty Leila de Lima, who refused to honor the court’s decision, thereby causing that breathtaking commotion in the airport that we all saw on our TV sets.
Now, one may disagree with the Court’s decision. One may heckle the court and question its integrity. One may scream his lungs out to express outrage. But to defy the Supreme Court is something one may not do, especially if that someone is the Secretary of Justice. When the DOJ refused to enforce the TRO just because it thinks that it should be heard first, even though the Supreme Court, rightly or wrongly, had already ruled otherwise; it was in effect putting the law in its hands, so to speak.
Secretary De Lima’s actions have pushed the country to the brink of a constitutional crisis, a collision of two co-equal branch of government. Instead of recognizing a lawful order from the highest court of the land, the Executive chose to square off with the Judiciary. In a nation of laws, constitutional crises happen only when there’s a dispute and the Constitution and the laws are silent on how to resolve it. In the case of the current spat between the DOJ and the Supreme Court, however, there’s no such ambiguity; the Court prevails. But apparently, the Philippines is not a nation of laws.
The thing is, Secretary De Lima’s actions are supported by the people, including, surprisingly, many of the country’s legal minds. It was a political decision, they say, not a legal one. The Supreme Court is not an unassailable arbiter, and when it abuses its discretion, someone must make it accountable. The problem with this view is that is presupposes that when people think that a court of law is wrong, they may defy it. I think this is a dangerous paradigm. If everyone is free to defy the courts, then what do we need these courts for? If everyone is free to defy the courts, we might as well get rid of these courts and let everyone be allowed to interpret the law.
In fact, the law provides a mechanism to hold errant justices accountable. That mechanism is called impeachment. True, there are nuances that make this mechanism extremely difficult, or even useless; but this doesn’t dilute its value. If Filipinos want their institutions to work, they should strive to strengthen them.
It is very important for Mrs. Arroyo to be brought to justice indeed. But one must wonder if it is actually that important that the country should be willing to ignore and even defy its own laws and institutions– which it has painstakingly been trying to build through the years– thus diminishing their importance, and even risk a constitutional crisis, in pursuit of it. This is not even just a legal or political question anymore; it’s also sociological. The Philippines has to consider also the perspective of its society’s long-term transition to modernity, which requires the strengthening of laws and institutions and the withering away of its penchant for sacrificing these for impulsive, emotional, albeit very justifiable, considerations.