The ‘only boss’ at battleground of principle

Hilario Davide Jr., singlehandedly holding the nation together through sheer integrity, remains my image of a chief justice. I walked to Edsa with the Class of 2001, listened to him speak at my graduation then and, with the greatest of pride, entered his alma mater, the UP College of Law. This image broadened to include Justice Antonio Carpio’s stand against a sham people’s initiative for Charter change and Chief Justice Reynato Puno’s rallying the nation against extrajudicial killings. Thus, the so-called assault on the Supreme Court comes as a visceral blow. Natalie Portman almost whispers, “So this is how liberty dies… with thunderous applause.”

However, the players are woefully inferior to Davide, Carpio and Puno. Gloria Macapagal-Arroyo in her neck brace claimed to be a human rights victim. The Court’s instant TRO was answered with the House of Representatives’ instant impeachment complaint, an incomprehensible rant with shoddy legal citation that congressmen hopefully read. Justice Secretary Leila de Lima claimed her police power creates exceptions to the constitutional right to travel other than the explicit “national security, public safety and public health.” Supreme Court spokesperson Jose Midas Marquez “suggested” judges go on nationwide strike. Ferdinand Topacio bet his ball. Elena Bautista-Horn opened her mouth. Glaringly absent from this circus is any semblance of principle, and President Aquino’s grand crusade against corruption has degenerated into, per the

Inquirer’s editorial cartoon, petty name-calling with Chief Justice Renato Corona.

The President and Congress have a duty, equal to the Court’s, to interpret the Constitution. Common sense dictates that they must interpret their source of authority. In 2003, then Justice Puno reiterated this duty as rooted in the separation of powers and counseled the Court not to rule on an impeachment complaint against Davide to allow Congress’ interpretation to first be heard. In 1893, in one of the first Harvard Law Review articles, James Bradley Thayer noted that Congress is the Constitution’s primary interpreter; its laws affect every facet of life but go unreviewed unless a case is brought.

It is indubitable that the sovereign people have the ultimate duty to interpret the Constitution. To say that the people themselves are heard only during elections is to disbelieve our democracy’s design and to have been left by the times. The speed at which ideas spread through Twitter and Facebook facilitates the expression of the people’s will outside the polls and the streets, and Harvard Prof. Laurence Tribe describes the “invisible constitution” shaped by experience. That it is impossible to concretely gauge the people’s will is no reason to discard it, as some later learned at the polls and the streets.

It is indubitable that the President, Congress or the people themselves may challenge a decision’s doctrine. In the fledgling United States, Thomas Jefferson pardoned those sentenced under the Sedition Act, a law he thought unconstitutional. Abraham Lincoln challenged Dred Scott, the infamous ruling that slaves were not citizens, and eventually fought a war over slavery. In the post-Great Depression recovery, Franklin Delano Roosevelt challenged antiquated Court doctrines on economic regulation. Finally, it is indubitable that the Court’s doctrines may ultimately be challenged with impeachment.

The absence of principle is damning, however, with a Chief Justice impeached. To engage the Court on a battleground other than its own reasoning debases its special independence from fickle politics. A president who argues principle with the Court is statesmanlike; a president who merely argues his losing record is a sore loser screaming at the referee after fouling out.

It is doubly troubling that the so-called bullies refuse to argue principle because there is a wealth of dubious doctrine in the assailed decisions. Biraogo v. Philippine Truth Commission cited equal protection to strike down the latter because it was aimed only at officials of the Arroyo administration and not those of previous ones. The Corona Court thus elevated corrupt lackeys to the same plane as victims of apartheid and segregation, cheapening Edsa’s legacy with the stroke of a pen. One might also question the grammatical acrobatics that justified Corona’s midnight appointment, the all-powerful letter that led the Court to reverse itself to the detriment of labor unions, and the Microsoft Word defense against plagiarism.

Joseph Estrada’s impeachment underscored that we are critical of our duty as the “only boss” when confronted with it. The overwhelming popular support currently behind the President and the House will surely dissipate unless concrete evidence and clear principle replace crude ravings.

This impeachment is not about Mr. Aquino, Arroyo or Corona, or even De Lima, Horn or Marquez. It is about once again placing our democratic institutions under intense scrutiny as a new generation of voters with no firsthand memory of Edsa emerges. An accounting of the judiciary must not degenerate into a superficial question of whose side are you on. It must be an accounting of its very doctrines to ensure that these adhere to the principles the President, Congress and the “only boss” believe our nation stands for. As Stanford Dean Larry Kramer cautioned: “To nudge popular institutions out of the life of the Constitution is to impoverish both the Constitution and the republican system it is meant to establish.”

Oscar Franklin Tan was chair of the Philippine Law Journal in 2005 and student speaker at his 2007 Harvard Law School graduation. He twice won the Cortes Prize in Constitutional Law at the UP College of Law.