By Raïssa Robles
I read with great interest a Philippine Star story on lawyer Oliver Lozano’s impeachment complaint filed against President Benigno Aquino III entitled ‘Direct assault on SC another impeachable offense.’
Lozano implied that PNoy was worse than dictator Ferdinand Marcos because PNoy had publicly castigated Supreme Court Chief Justice Renato Corona. Lozano was quoted as saying the following:
“Even former President (Ferdinand) Marcos when he declared martial law, bowed to the Supreme Court rulings, all the critics were free to question (the) presidential decree(s) issued during that time,” he (Lozano) said.
He said when Marcos declared martial law, he based all the presidential decrees on the Constitution and the rule of law and he also bowed to any decision handed by the high court.
Marcos, according to Lozano, was able to justify the declaration of Martial Law to prevent the communists from taking over the government.
“The Supreme Court has ruled that martial law was not a dictatorship but a constitutional authoritarian rule to restore order in the country,” he said.
There are a few things, perhaps, that many people do not know about Lozano, who as it so happens, I’ve interviewed many many times. First, he is an out-and-out Marcos loyalist who shot to prominence after the dictator was driven out of the country in 1986. To him Ferdinand Marcos did nothing wrong, he was a wonderful person.
Second he often filed impeachment complaints against Gloria Macapagal-Arroyo when she was president. It was meant to “immunize” her from more serious impeachment charges.
Under the internal rules adopted by the House of Representatives dominated by Arroyo’s allies, only the first impeachment complaint could be entertained. Lozano most often than not filed first.
So when Lozano states that Marcos “bowed” to all Supreme Court rulings and Marcos based all presidential decrees on the Constitution and the rule of law – there’s that famous phrase again – we should take that with a mountain of salt.
As it so happens and as you might expect, the truth is exactly the opposite of what Lozano says. Far from being an independent, credible and impartial institution, the Supreme Court during Martial Law was a craven, cowardly institution that bowed to Marcos’ every whim, endorsed his every act and rushed to do his bidding.
Marcos successfully bent the SC to his will for 14 years.
After declaring Martial Law on September 21, 1972, he hijacked the ongoing Constitutional Convention at gunpoint (he jailed some and “persuaded” the rest to attend sessions in a hall guarded by armed soldiers). Dangling a promise to make the convention delegates instant members of an interim legislature, Marcos was able to get the Con-Con to approve a new Constitution that he himself fashioned. It gave him law-making powers and legitimized his illegal declaration of Martial Law. That was Step One.
Step Two was accomplished when the Supreme Court ruled that all that Marcos did was IN ACCORDANCE WITH THE RULE OF LAW.
So you see why I grimace whenever I hear that phrase RULE OF LAW.
Marcos needed to hold a plebiscite to ratify his new Constitution. Initially, the dictator Marcos did schedule a plebiscite to meet the requirements of the 1935 Constitution for a valid ratification of a new one. But he suddenly postponed the plebiscite a week before it was to take place.
Instead, he directed the holding of “citizens’ assemblies” (CAs) to conduct a referendum “on important national issues.”
Ten suits were filed before the Supreme Court to stop or void this highly doubtful manner of ratifying a charter – one method used, in some cases, consisted of people being asked to raise their hands if they were hungry. Those who did were counted as YES votes.
The Supreme Court dismissed all the suits in a ruling dated March 31, 1973, after Chief Justice Roberto Concepcion received a copy of Marcos’ Proclamation No 1102.
In that proclamation, Marcos said the citizens’ assemblies had met and they had allegedly asked Marcos to:
(1) consider the CA’s approval as THE ratification;
(2) not to convene an interim national assembly to serve as the legislature;
(3) to postpone elections indefinitely; and
(4) to continue Martial Law.
This shameful ruling is known by every law student as Javellana v. the Executive Secretary.
If you go to the Supreme Court website, you won’t find a single word about this dark side of its history.
Has the SC ever said sorry to the Filipino people? I don’t recall.
The Supreme Court in 1973 nailed the coffin shut on democracy. Democracy stayed buried for 14 years.
In its infamous ruling, the Supreme Court said that even if the Constitution had not been ratified by a body or agency “not duly authorized” by the 1935 Constitution, the court could no longer inquire into the validity of the ratification because people had already accepted and obeyed its laws and the government was already operating under it.
Vox populi, Vox dei.
Perhaps the most telling image of how low the Supreme Court had sunk was that iconic photo of the Honorable Chief Justice Enrique Fernando holding up an umbrella for Imelda Marcos – the conjugal half of the Marcos dictatorship.
Fernando was Marcos’ presidential legal counsel before the former appointed him to the Supreme Court. When Marcos made him Chief Justice he sealed his reputation as his lackey by always affirming the constitutionality of Marcos’ actions.
This is why I’m skeptical whenever anyone says we should bow to all SC decisions because we should always follow THE RULE OF LAW.
Because once upon a time, the SC invoked THE RULE OF LAW to perpetuate a repressive regime.
Inexplicably, last October 13, Supreme Court Chief Justice Renato Corona told a gathering of judges in a speech entitled The Philippines’ judicial frontliners: responding to the challenges of the times:
Never before has the entire judiciary, even in the days of martial law, been subjected to so much disrespect and lack of civility from sectors we sincerely consider to be our partners in nation-building.
He seems to have a different recollection of the Supreme Court during Martial Law. Unless – oh my God – he believes the dictator Marcos who had reduced the SC to a smiling eunuch was the judiciary’s sincere partner in nation-building.
And last year, I really do believe as an English major that the Supreme Court again invoked THE RULE OF LAW to enable President Arroyo to skirt the constitutional ban on midnight appointments in order to appoint her long-time senior aide Corona.
I know, being justices, the members of the high court are far wiser than I am. I’m just an English major dissecting the grammar of the following sentence in our Constitution:
Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service ore endanger public safety.
The main Subject and Verb in this sentence are –
a President or Acting President shall not make appointments
Preceding this main Subject and Verb is an adverbial clause denoting when this action is to take place –
Two months immediately before the next presidential elections and up to the end of his term
Then the main Subject and Verb is followed by a qualifier in the form of a clause –
except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety
This section is very specific. The only exception made to the ban is on temporary appointments to executive positions. That’s all.
This section is silent on appointments to judicial positions. Everyone thought THAT was covered by the ban until then President Arroyo raised the idea that it was not.
Justice Lucas Bersamin, who penned the decision favoring Arroyo’s interpretation said this was indicated in the deliberations of the 1986 Constitutional Commission.
Can the Integrated Bar of the Philippines please put up online the entire deliberations of the 1986 Constitutional Commission so that we, the people, can read it and understand our Constitution better?
Similarly today, everyone thought the Department of Justice was authorized to issue Watchlist Orders – which Arroyo’s government had done for nine years – until Arroyo herself questioned the constitutionality of all watchlist orders including those her own government had issued.
Justice Bersamin said that if a ban on judicial appointments was contemplated it should have been spelled outright in another section of the Constitution dealing with the judiciary. But it was not.
Following his line of reasoning, I’d like to pose this question. Did you know that in the section dealing with the qualifications of a President, it is very specific that only MEN can become president because nowhere does it say that women can be elected president?
Look closely at Section 2. It states:
No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding such election.
Following Bersamin’s reasoning, the constitutional commissioners would have placed “unless he OR SHE…”
Since they did not, then Gloria Arroyo is an illegitimate president since her being one violates the Constitution.
I know this reduces everything to absurdity but I believe that was what the SC did last year. And their decision became THE RULE OF LAW.
Just two more things.
First, the SC action enabled Arroyo to appoint her THIRD Chief Justice.
How greedy is that. She had already appointed two to the post and she wanted to appoint one more who would actually stay on beyond the term of her immediate successor.
You know, the appointment of a Chief Justice is very very important in a democracy. A president carefully chooses one who he believes reflects his views on important matters such as the economy, population, corruption, judicial reforms, to name a few. If a president has conservative views, he chooses one who is also conservative.
But since the SC said she could appoint Corona, then so be it because we should all follow THE RULE OF LAW.
Notice, too, that last year the post of Chief Justice only became vacant on May 17, 2010 – or a week after the May 10 election. Election automation provider Smartmatic had earlier promised that by that time we would have a good idea of who the next president would be. And that’s what happened.
But Arroyo went on to swear Corona into office on May 17 even though a new president had already been elected.
Speaking of Corona, I stumbled on something interesting the other night.
Recall that before Corona became Chief Justice, reports surfaced that his wife was an Arroyo appointee – the president of John Hay Management Corporation.
After being sworn in by Arroyo, Corona announced that his wife would resign her John Hay post, but only effective June 30, 2010 when Arroyo stepped down from office.
At that time, Corona told reporters that his wife did not earn much from the position and that it was no thanks to Arroyo that his wife was in John Hay because she had been working there since 1992.
What Corona forgot to divulge at that time was his wife’s actual salary which he described as “not much”.
According to the Commission on Audit website, “not much” was P1,915,002.79 million pesos for the year 2009 and P972,148.30 for six-months’ work in 2010. It was Arroyo who appointed her chairman and later president of John Hay.
You can download the file that contains her 2009 and 2010 earnings from the COA website.
Cristina Corona’s earnings became part of the conjugal property and in that sense, Associate Justice Corona benefited directly from these.
However, there is nothing in our RULE OF LAW that says a wife of an associate justice cannot be a presidential appointee earning top dollar. Maybe it’s another gap in our law.
The last time I interviewed Corona one-on-one was inside his office at Malacañang Palace shortly after the 2001 Edsa 2 revolution. He told me then that his dream was to become a member of the Supreme Court. I told him he was probably going to get it. He achieved that dream soon enough.
Now he has reached another crossroad in his life.
Arroyo – his former boss and his wife’s former boss – has been charged with a capital crime. What does his heart and soul say in the middle of the night when his justice robe is off. Can he really bear making decisions that could pain Arroyo and give her grief? Or please her no matter what the cost and be forever painted as her version of the late Chief Justice Enrique Fernando?