After the defeat, what now?

IS THE Supreme Court afraid of the truth? Why did it decapitate the Philippine Truth Commission (PTC)? Why are unelected justices undermining our elected President’s promise to ferret out corruption and to punish the perpetrators during the past regime? So readers asked me after the Supreme Court declared unconstitutional Executive Order No. 1 (EO 1) and thrashed the PTC. (Biraogo v. PTC, Dec. 7, 2010)

Goals and means. President Aquino himself was irate. He lambasted “those pretending” to be deaf and blind, vowing, “while I am here, I wouldn’t allow that Filipinos would be oppressed.” Even more upset was Solicitor General Jose Anselmo Cadiz who berated the decision as a “payment of gratitude” by the justices appointed by former President Gloria Macapagal-Arroyo.

To be fair, the Court’s 46-page decision, penned by Justice Jose Catral Mendoza, anticipated these virulent attacks, “Of all the branches of the government, it is the judiciary which is most interested in knowing the truth and so it will not allow itself to be a hindrance or obstacle to its attainment. It must however be emphasized that the search for the truth must be within constitutional bounds…”

The 60-page concurrence of Justice Arturo D. Brion was more explicit. It argues that while the goal of truth finding may be laudable, the means envisioned to achieve it—the opening of the PTC’s hearings to full media glare—violates due process. The widespread publicity will allegedly make it difficult for the Ombudsman and the courts to render judgments contrary to the public biases generated by unfriendly media.

In her 53-page dissent, Justice Maria Lourdes P. A. Sereno counters, “these arguments betray a poor view of the Filipino people.” She asserts that if a judge cannot resist public pressures, “the fault lies not in the creation of (the PTC) but in the judge’s character.”

P-Noy’s options. I will no longer reprise the arguments pro and con the Court’s decision. They have already been aired extensively during the last 10 days. I believe the critical question is: after this defeat, what now? To my mind, P-Noy has four major options.

First, file a motion for reconsideration as proposed by Cadiz. Considering however the lopsided vote of 10-5 and the tenacity by which the justices debated the issues in their voluminous opinions (with a combined total of 356 pages!), it will be the height of folly to expect a reversal. I do not think anyone can put any more arguments than those so brilliantly written by the five dissenters.

The second option is to follow the ponencia’s suggestion: “a revision of the executive issuance” to mandate the PTC to investigate also the “earlier past administrations” with “reasonable prioritization.” The decision held that P-Noy had the authority to create the PTC but that by singling out the sins “during the past regime,” EO 1 violated the equal protection clause of the Constitution.

This suggestion is iffy since only three justices concurred unqualifiedly with the ponencia. The six other members of the majority of 10 concurred only “in the result.” They opine that EO 1 is unconstitutional not only because of its violation of the equal protection clause but also because the President had no power to create “an independent body.”

Justice Sereno dubs the ponencia’s advice a “red herring,” because “a reading of the decision indicates that the moment the prioritization hints at focusing on the Arroyo administration, then the majority is ready once again to strike it down.” Justice Conchita Carpio Morales wisely points out that if the ponencia merely wanted to include all prior administrations, it should not have invalidated the entire EO 1 since “the remaining portions can stand independently of the assailed portions…”

Revitalize the PCGG. Wild is the third option proposed by militants: impeach the 10 justices who thrashed the PTC. P-Noy quickly shot this down because it will erode his equally important work of propelling the economy. “If we are going (to engage in) intramurals such as an impeachment case, our attention and focus will be diverted. There will be many lost opportunities,” he explained.

I agree with the President but for a different reason. I do not think justices should be impeached solely and purely for issuing allegedly wrong decisions. After all, in our democracy, they are the ultimate arbiters of what is legal and what is not. As US Supreme Court Justice Robert Jackson once wrote, “We are not final because we are infallible, we are infallible because we are final.”

The fourth and I think the best option is to use the Presidential Commission on Good Government (PCGG) in chasing the grafters. Under the law, the PCGG could investigate “such cases of graft and corruption as the President may assign to the Commission from time to time.”

Over the years, the Supreme Court has repeatedly upheld PCGG’s constitutionality. Even Chief Justice Renato C. Corona concedes its invincibility, saying “unlike the present embattled and controversial Truth Commission, the PCGG was created by President Corazon C. Aquino pursuant to her legislative powers…”

In his dissent, Justice Antonio T. Carpio despairs that, by striking down EO 1, the Court’s majority of 10 “crushed the hopes of the long suffering Filipino people for an end to graft and corruption in government.” I think P-Noy could revive such hopes by revitalizing and directing the PCGG to take over the botched mission of the Philippine Truth Commission.

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