(Below are excerpts from a speech I chose not to deliver last Thursday before the Rotary Club of Manila because of the lateness of the hour and the crowded program, to the relief of the grateful audience. This is the shortened article I promised instead.)

WHAT is justice? Justinian defined it many centuries ago as “the constant and perpetual wish to render every one his due.” Cicero earlier described it as “the crowning glory of the virtues.” Yet Clarence Darrow, that unreformed atheist, said, “There is no such thing as justice—in and out of court.” Speaking of the same subject, Oscar Wilde. the great satirist, asserted, “The good ended happily and the bad unhappily. That is what Fiction means.”

Whatever our concept of justice, I believe our commitment to it must begin with the courts—of justice, as we call them. Although holding “neither purse nor sword,” the judiciary is an indispensable ingredient of the democratic government. The lifeblood of every libertarian regime pulsates in the vitality of its judicial system and the capacity of the courts to uphold the majesty of law.

This recalls a pertinent incident involving Justice Oliver Wendell Holmes, who was appointed in 1902 by another great American, President Theodore Roosevelt. Holmes was the embodiment of his honorific title, Roosevelt the implacable foe of the tycoons of Wall Street.

In a number of cases based on the Sherman Anti-trust Law, the justices of the US Supreme Court supported Roosevelt in his bold challenge to the big corporations. The lone dissenter was Holmes who called the law an “imbecile statute.” Roosevelt was so enraged that he reportedly exclaimed for all to hear: “I could carve out of a banana a man with more backbone than Justice Holmes!”

I am not describing the members of our Supreme Court as bananas in comparing some of them, albeit unfavorably, to Justice Holmes. Holmes it was who said that freedom of expression protects not only the thought that agrees with us but also the thought that we abhor. If our present magistrates do not agree with that magnificent truth, I am ready for their anger.

The Supreme Court of the Philippines was like a pure and innocent maiden until its chastity was ravished by martial law. Having savored the thrill of surrender during that lustful period, it has learned the practical benefits of accommodation with the political departments as a more convenient way of life. A regrettable example is Mabanag v. Lopez Vito, where it dismissed the constitutional challenge to the Parity proposal as a political question and thus gave Americans more rights to our natural resources than our own citizens.

That craven case has since been reversed by more courageous decisions, but it continues to seduce the Supreme Court to go astray every so often. We had that reasonable fear before with the present tribunal composed of all appointees of President Arroyo except for one solitary figure from a past administration. However, that apprehension dissolved in 2006 when it decided three leading cases—Senate v. Ermita, Bayan Muna v. Ermita and David v. Arroyo—that assured the overjoyed nation that its allegiance was not to Malacañang but to the rule of law.

But, alas, our elation was short-lived. Early this year, the Supreme Court that before seemed so righteously bold reconsidered its bravura and decided to repent, not for its sins but its ungratefulness to its benefactor. In Neri v. Senate, it sustained the President’s executive privilege covering the dark secrets of the malodorous ZTE contract despite the people’s constitutional right to transparency in government.

As a former member of the Supreme Court, I can say that it is easy to support any decision it chooses to make, good or bad, and for whatever motives. This can be done with jurisprudence. Chief Justice John Marshall of the US Supreme Court reportedly used to say after coming to his own unresearched but “gut” conclusion on a pending case, “That is our decision, gentlemen. Let Justice Story find the precedents.”

Our high tribunal during martial law found enough jurisprudence to justify the Marcos despotism even as there were also enough contrary rulings from braver courts. These better cases were buried in unmarked graves like the desaparecidos of the dictator.

Some of the justices who supported the Neri decision, many of whom are close friends of mine, may claim that they acted in good faith. But that presumption is disputable by the also human traits of fear and selfishness, which are normal in some if not many of our judges, including justices.

My sympathies and admiration are for the minority dissenters led by Chief Justice Reynato S. Puno, together with Justices Antonio Carpio, Consuelo Ynares Santiago, Alicia Austria-Martinez, Conchita Carpio Morales and Adolfo Azcuna. The majority justices who chanted hallelujahs for their President are better ignored here in this gathering of free souls.

The national enterprise should be not the resurrection of tyranny but a courageous commitment to justice. This should be the first task of the Supreme Court, for the rest of us to follow.