A dysfunctional court system

First of two parts

You only respect an institution if it deserves respect, you do not respect it of itself. An institution is made up of men and women so is only as good as those men and women are. As this report shows the Philippine court system is severely dysfunctional. It’s quite simply, a mess. I put much of its problem down to what afflicts almost every sector of Philippine society—lack of money. You can’t expect much of a judge you pay P25,000/month, or a clerk of court who gets P12,000. Honesty is bound to suffer and the best people won’t be attracted, except a few true idealists.

The Supreme Court, which should set the model, does, one could say, but in a negative manner. It is not a court that can be respected as recent cases show.

I’ll probably get into trouble for this, but I’ve got to address it. The President has made eradicating corruption the cornerstone of his administration, and we all applaud him greatly for it. But he must have the support of others. Within his administration he’s now got it with the resignation of an ombudsman so, so obviously working to block any investigation that might, however remotely, be connected to Gloria Arroyo. An ombudsman the Supreme Court protected by issuing a temporary restraining order preventing Congress (a constitutionally independent body over which I believe they should not have such power) from impeaching Ombudsman Merceditas Gutierrez.

He’s now got an ombudsman who’s proven her independence and determination to uncover and decide on the truth, regardless. Together with a Justice Secretary similarly disposed, things might finally start to happen— except for one thing:

The Judiciary.

The very foundation of a democracy is of a fair, moral, ethical society. To achieve that laws are created to define the role of individuals in that society so that they, in the main, conform to it.

The Supreme Court is the final arbiter and interpreter of what is right and what is wrong, it is not to isolate law unto itself and bury its head in legalistic interpretations. Lower courts have little choice but to do this, but the SC’s primary role is to ensure we live in a fair, moral society and to do what is best for the people. If this weren’t so, then all SC decisions would be unanimous because there can only be one interpretation of the letter of the law.

The Arroyo soap opera is a perfect example. The Justices can decide, as eight of them did, that the right to travel supersedes the right to hold suspected criminals. It is said that the Supreme Court must be obeyed because that’s the final rule of law, and if it’s ignored or its decisions violated then society breaks down. I agree but on one condition: the Supreme Court is acting lawfully. I cannot see how a court can issue a TRO without hearing both sides. If it doesn’t, then it means any Tom, Dick, or Harry can ask for a TRO for the flimsiest of reasons—and be granted on the whim of the court. There was no great urgency to rush—less than 24 hours would you believe—an order to allow Gloria to fly. I don’t think anyone will deny she’s a flight risk and that the cases being prepared against her are very serious. This is no mere mortal, this is a former leader of the country being charged with offenses that would jail her for life if found guilty. The court is obligated to consider the greater good of society in making its decisions. The greater good of society very, very obviously was to wait a couple of days to hear the arguments of both sides and then make an informed choice. Not a biased ignorant one, because that, given the circumstances, is what it must have been. It sets a very dangerous precedent.

Five days would have made no difference to Gloria’s health but all the difference in the world to the fairness of the decision. Even the correctness of the decision. The dissenting justices agree with me or, more correctly, we are in agreement in this interpretation.

I base my judgment of Supreme Court decisions on how Tony Carpio votes. I knew Tony many years ago (deliberately kept away while he’s a SC justice) so I know him well enough. He’s a sound, level-headed and, most importantly, independent thinker. So how he decides carries a lot of weight with me. I have a list where you’ll note he is in the minority that decides in opposition to many controversial decisions. It makes you wonder. Just look at these –

Case #1: EO1 creating the Philippine Truth Commission. The SC, voting 10-5, ruled that EO 1 is unconstitutional as it “violates the equal protection clause of the constitution as it singles out investigation of graft and corrupt practices in the previous administration.”

The 10 who voted to junk EO1 were all GMA appointees. Dissenters were Carpio, Sereno, Carpio-Morales (now Ombudsman), Nachura, and Abad.

My opinion on this case as an independent, logical thinker:

Of course you single out for investigation only those you suspect of the crime. Otherwise taken to its absurd, but logical conclusion, if this thinking was applied elsewhere, the police would have to equally investigate 94 million people when someone is suspected of murder, not just the prime suspects. As Justice Conchita Carpio-Morales so cogently said “…this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed ‘one step at a time.’ In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded…There is no constitutional requirement that regulation must reach each and every class to which it might be applied; that the Legislature must be held rigidly to the choice of regulating all or none.” More specifically how can you investigate Estrada, he’s already been investigated—and found guilty. You’d put him in double jeopardy. Maybe you could investigate Ramos, but no one ever accused him of such crime. And we’d investigate Cory? That would bring the wrath of the people down on the Court. EDSA-4 (or is it 3) would ensue.

Case #2: Former Socio-Economic Planning Secretary Romulo Neri asked the High Tribunal to uphold his executive privilege as he refused to answer questions during the Senate hearing on the anomalous NBN-ZTE deal. The Supreme Court ruled in favor of Neri (9-6); Some opposition senators asked the SC to reconsider—and for 3 SC justices to inhibit themselves (Brion, Velasco & Corona). A motion for reconsideration was filed but this was junked by the high tribunal.

The justices who voted in favor of Neri were Corona, De Castro, Nazario, Velasco, Nachura, Tinga, Brion, Quisumbing and Reyes.

The dissenters were former Chief Justice Puno, Carpio, Azcuna, Carpio-Morales, Martinez, Ynares-Santiago.

There was no national security or public health/safety at risk by Neri’s possible disclosures, only the possible perfidy of Gloria. The government is a government of a democratic Filipino people, they have the inherent, even constitutional right to know what their government has done.

Case #3: Then Ombudsman Merceditas Gutierrez asked the SC to stop the Congress from hearing the impeachment proceedings filed against her. Voting 8-3 on September 14, 2010 the High Tribunal issued a “Status Quo Ante Order” preventing the HoR from proceeding with the impeachment case. Dissenters were Carpio, Sereno, and Carpio-Morales.

There was more than enough evidence of the non-action of the Ombudsman. The congress had every right to investigate her, being a constitutionally independent entity.

Case #3.1: Status Quo Ante Order on Gutierrez lifted by the SC. On Feb. 15 the SC voted 7-5-2, which effectively lifted the SC’s status quo ante order. Those who voted to lift the status quo ante order earlier issued by the SC were the following: Antonio Carpio, Conchita Carpio-Morales, Ma. Lourdes Sereno, Roberto Abad, Jose Catral Mendoza, Eduardo Nachura, and Martin Villarama Jr while the 5 justices who voted in favor of Gutierrez were: Chief Justice Renato Corona, Arturo Brion, Lucas Bersamin, Teresita Leonardo-De Castro, and Diosdado Peralta (all GMA appointees). Continued tomorrow. –Peter Wallace, Manila Standard Today