You may heckle, but you may not defy

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.

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4 thoughts on “You may heckle, but you may not defy”

  1. I think the case is very specific. It is only when the Supreme Court, and not any other court, is wrong and it’s wrong decision could lead to an urgent irreparable harm are we justified in disregarding its order.

    It is true that impeachment exists as a means of checks and balance but I would agree with Dean Raul Pangalanan in his Inquirer article that the Executive should not be precluded from not enforcing the decision of a corrupt and illegitimate Supreme Court. Although historically, and this has been pounded in our heads, it has been the Executive branch that abuses its power and needs checking, the Supreme Court is not immune to corruption. Why is is that the Judiciary can check the Executive and the Legislative but not the other way around?

    Plus, the decisions of the Supreme Court are only legitimate as far as they are reasonable, and from here they derive their power or authority. It could never enforce its decision by persuasion through the purse or the sword. Therefore, if a decision is unreasonable, and oppressively unreasonable at that, exceptional circumstances as this case calls for exceptional responses.

    No one is under the illusion that court orders can be defied, not in Arroyo’s case or in the future. That is why everyone, even the Supreme Court, is giving legal reasons to justify with the non-compliance (during the en banc session, through a majority vote, it was held that there was non-compliance with the second condition of the TRO by Arroyo’s camp which made the TRO ineffective).

    Lastly, civil society is aware of the need to strengthen institutions and undergo the proper routes. But I would tend to believe with all the responses that have come out, especially Randy David’s analysis, civil society should not strengthen a corrupted institution.

  2. Jesus, I wrote this entry when the events were still unfolding. I have to concede that, indeed, the Supreme Court is different from other courts since its verdict carries with it irreparable harm that can be very, very difficult to undo. I think we also agree that the present Court has a very questionable moral authority. But I think we disagree on three things.

    Firstly, I don’t think the Executive, as Dean Pangalangan argues, should be allowed to check on the Judiciary as President Jackson had done, which is to ignore its orders. When the framers of our constitution formulated the checks and balance, they made the mechanisms lean towards the Judiciary and the Legislative, since the Executive is more susceptible to corruption. But you are right, the Judiciary, too, can be corrupt and the Executive must also be empowered to check it. But the fact is, the Constitution does not give such power to the Executive yet, and we can’t just let the Executive assume extra-constitutional powers yet, even as such powers may arguably be derived from moral law, because I think it dilutes the Constitution. At any rate, the Executive can exercise its political influence over the Legislative to utilize impeachment against the Judiciary, so we can’t really say that the Executive has no remedy.

    Secondly, It is true that the Arroyo case is an extra-ordinary situation and the Executive may have been morally justified in its actions. But this is a dangerous precedent that could be utilized in the future by a corrupt Executive. When do we know if there is a valid extra-ordinary situation that requires similar actions? Who would determine it? The fiasco ended in a very favorable result since Secretary de Lima had good intentions. But I wonder, what if a popular Executive pull what Secretary de Lima did for the wrong reasons in the future?

    Thirdly, to allow due process to continue is not just to strengthen a corrupted institution. I think it will more importantly strengthen the process and the institution, which is important. Once the process and the institution are stable, we can always work to root out institutional corruption. Civil society can be vigilant and vigorous in shaming the justices, or asking their representatives to impeach errant justices, or forcing their president to appoint only qualified justices. It is true that this may not give us immediate remedy for immediate harms, but I think that’s a bitter pill we have to shallow for the long-term viability of our institutions. When we recklessly disregarded our constitutional processes in Edsa II, we reaped enormous consequences, one of which is the corruption of our Supreme Court. I think we should be careful not to make similar reckless shortcuts.

    But at the end of the day, it is good that Secretary de Lima has justified her non-enforcement of the TRO through legal justifications and made it appear to be a non-defiance. I have to admit that what she did was a great political gamble that has obviously paid off.

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