Judicial heroes and villains

Up to now, more than a month after I wrote “SC stood tall in crucial cases” on Jan. 29, I still receive harsh comments lambasting the nine Supreme Court justices who agreed to the interment of President Ferdinand Marcos’ remains in the Libingan ng mga Bayani (Ocampo vs Enriquez, Dec. 8, 2016).

Wake-up call. If I were still sitting in the high court, I would have voted with the minority. However, unlike the critics, I have not lost faith in the majority and still believe that they can be relied upon to uphold the national interest in crucial cases. Neither can I agree that they are all rabid Marcos partisans or blind followers of President Duterte, who “verbally” ordered the interment.

If that were so, how come some of them, like Justices Mariano C. Del Castillo and Estela M. Perlas-Bernabe, sided with Chief Justice Maria Lourdes P.A. Sereno, Justice Bienvenido L. Reyes (who inhibited in the Libingan case) and Justice Alfredo Benjamin S. Caguioa, in unanimously forfeiting the ill-gotten wealth of the Marcoses in the First Division case (Estate of Marcos vs Republic, Jan. 18, 2017) I discussed last Sunday?

Before condemning the justices, the critics should first read their opinions and consider their voting track record. Though they disagree with the justices, they should not too easily label them as bigots or incompetents. Otherwise, the critics would be guilty of the very biases or faults they accuse the justices of.

Instead of blaming the Court and the justices, the critics should look at themselves and ask why they lost the Libingan case. They need not burn bridges unreasonably. At the very least, they should take their defeat as a wake-up call and fortify themselves for bigger battles that lie ahead. Truly, “eternal vigilance is the price of liberty.”

Infamous cases. Of course, I also realize that, historically, the Court had issued some really bad decisions. Worst among them is Javellana vs Executive Secretary (March 31, 1973) that upheld the ratification of the 1973 Constitution by the mere raising of hands during barangay assemblies (not by secret ballots in a nationwide plebiscite), thereby legitimizing Marcos’ martial law regime.

That decision eventually led to the vilification of the majority, some of whom became notorious as Marcos lackeys and judicial villains. It also ushered in the judicial heroism of the minority, especially Chief Justice Roberto Concepcion, Justice Calixto Zaldivar and Justice Claudio Teehankee who became CJ after the 1986 Edsa uprising.

Such stories of judicial heroes and villains are not unique to the Philippines. For instance, the US Supreme Court, too, has had its share of ignoble decisions, the most infamous being Dred Scott vs Sandford (March 6, 1857). This case ignominiously ruled that black slaves, though born in the United States (where citizenship is determined by the place of birth), were not American citizens but mere “possessions” of their white masters and therefore not entitled to the protection of the federal courts.

This decision led to the historical condemnation of the decision writer, Chief Justice Roger Taney, as a judicial villain. The United States had to amend its constitution to correct the Dred Scott anomaly.

On the other hand, for authoring Marbury vs Madison (Feb. 24, 1803), Chief Justice John Marshall was hailed as a judicial icon. He defined the role of the Supreme Court and conceived its power to overturn unconstitutional acts of the president and Congress. His huge statue dominates the interiors of the Court.

Our justices are well aware of these and many similar cases. They know that one day soon, they, too, could be hailed as heroes or condemned as villains by history.

Where’s the loot? Still on last Sunday’s column, many readers ask: How much of the alleged ill-gotten wealth of the Marcoses had actually been recovered? What happened to it? I think these questions should be answered fully by the Presidential Commission on Good Government which was created in 1986 by President Corazon Aquino precisely to recover he Marcoses’ ill-gotten wealth. The PCGG owes this overdue explanation to our people.

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