Recalling his experience in 1973 (you can find it in the actual Supreme Court decision), former chief justice Roberto Concepcion pointed out that aside from the legal games of Marcos, any citizen could see what a sham the so-called “ratification” of the 1973 Constitution was — including the justices themselves who do not live isolated from the world. But faced with a choice between recognizing — and acting — on the mockery of the law going on, or hiding behind the excuse that the Court had been overtaken by events, the majority chose to hide. The recollection of Senior Associate Justice Antonio Carpio — that he, along with many law students, saw this judicial surrender clearly and lost respect for the Court — has been widely quoted a few years ago, in the wake of Chief Justice Reynato Puno’s crowning his chief magistracy with the gift of overturning the traditional view that a president is prohibited from making midnight appointments — or, to be precise, that the ban applied to everything but appointments to the Supreme Court.
The other lesson of the opening event in what, many hoping against hope, was the vicious cycle that led to the appointment, then removal, of Renato Corona — a cycle that included, and hopefully ended with, the appointment, then removal, of Maria Lourdes Sereno—was that even when institutions surrender, there is always the hope of taking a personal stand. I’ve often told the story of how, when President Elpidio Quirino lost his bid for reelection in 1953, he decided he should pay some political debts by making some midnight appointments. One of them was to former chief justice Manuel Moran, whom he’d convinced to leave the Supreme Court to become our first ambassador to Spain. But Moran, even if he wanted to return to the Supreme Court, declined the appointment. Moran said that presidents should have a free hand in making important appointments, including the Supreme Court. Moran’s delicadeza cost him his chance to return to the Supreme Court.
Perhaps it was naïve at the time, considering how the Supreme Court had a majority, led by its then chief justice, Puno, willing to overturn decades of tradition and expectations of official behavior buttressed by law, against midnight appointments. Corona was more than willing to drink from the poisoned chalice he was offered—as critics of Sereno also point out she was willing to do when her appointment to replace him in turn overturned the venerable tradition of seniority as a basis for selecting a chief justice. It was, after all, a pretty threadbare tradition by that point, with quite a few presidents having set aside the seniority rule.
Calls for delicadeza — whether on the part of presidents or their appointees — and how these calls generally fall on deaf ears, reveals what Randy David calls our “crisis of modernity.” Delicadeza expects “a private conscience to draw the line beyond which it would be dishonorable for a public official to go, a line which only impersonal law should draw,” to paraphrase a 1953 Philippines Free Press editorial. It essentially asserts the power of peer pressure. But peer pressure only works if there is such a strongly held consensus on types of behavior that going against type will lead to social punishments.
Living, as we do, in an era when a presidential campaign achieved victory on the basis of mocking “decency,” it’s difficult to understand why anyone, anywhere, would think appeals to tradition or delicadeza should work. Concepts like seniority, appeals to tradition, or suggestions that an unofficial code of behavior should govern what officials do, have lost their power, or, put another way, their deterrent effect. In many instances the deterioration can be seen to have taken place over decades. So it leaves nearly everyone implicated.
But then, if, as Rizal once said, “The glory of saving a country is not for him who has contributed to its ruin,” where does that leave the official who wants to end a vicious cycle? Take the dilemma confronting whoever is offered the position of chief justice: can you, should you, accept? The position was made vacant by an act of judicial assassination in 2018 and not even surrender to a dictator as in 1973. Who in their right mind would accept such a job, to preside over a Court whose majority membership are the most disreputable in our history? But why not? The majority of the disreputables will retire soon; and it is, perhaps, the perfect moment to provide what has been lacking — leadership in the Supreme Court. Ironically, to accept or decline will be seen as a classic case of delicadeza — or lack of it.