The Judiciary as Gatekeepers

I have often heard of the term “gatekeepers” in relation to print media, gatekeepers being the editors who are in charge not only of newspapers but key sections of it. The front page, for example, is a most important page, most often the most important one. Its editor, therefore, is the most important gatekeeper next to the editor-in-chief.

The integrity of gatekeepers determine the integrity of newspapers and other publications. Of course, the publishers most of all have the first say. However they do that from the very beginning and then hire the editorial staff to keep not only policies but special directions and instructions, if any. Thereafter, it is the editors’ game, and it is usual for many publishers to have themselves or family members occupy key editorial positions.

But gatekeepers do not refer only to print media, or any kind of media for that matter. Gatekeepers are everywhere in life, in homes and offices, in business and in government. Decidedly, gatekeepers lose much of their special importance in very transparent or competitive environments. Transparency and keen competition demand even playing fields, and even playing fields neutralizes the need of gatekeepers.

The Philippine political environment is only transitioning from a feudal past, an oligarchy, a dictatorship, a struggling democracy to one where transparency and competition make possible even playing fields. Even in business, professionalism fluctuates according to the owners’ definition of it. Multinationals from developed countries have become more dispassionate about the universal application of policies, forcing even stockholders or senior management to toe the line of the policies they themselves set. The rule by exception does occur, but in muted ways and careful not to attract legal problems.

Indeed, the struggle to rise above the patterns of the past where the rule of the few more than equality or egalitarianism dominates governance is an arduous and dangerous journey. Whoever or whatever has been dominant intends to remain so, and the linger that dominance has been, its stubbornness to perpetuate itself is often aggressive, even violent. Gatekeepers in strategic institutions play important roles in keeping the status quo in control.

The Judiciary is one institution that can be the most powerful protector of the status quo. When it does so, even dictatorships become blessed with a veneer of legitimacy. The Supreme Court during the regime of the dictator Marcos was a most pliant one. It hardly mattered that thousands were killed, tortured, maimed or made to disappear. Justice was simply a title of the senior members of the Judiciary, it had little to do with justice itself. Even today, crimes of history are declared rewritten because the letter of the law and legal protocol can declare the guilty innocent.

Prosecutors from government, by the nature of their training, their compensation, and the atmosphere of governance and leadership, often fall short of the skill and resources of many private law firms. Over time and political leaderships more concerned about the perks of power than upholding the higher interests of the public can mold a corrupt judicial system that runs more from bribes and favors than truth and justice. And for those who idealism and integrity as lawyers enable them to resist the lure of corruption, dirty judges and justices give the coup de grace to their nobility,

The Supreme Court, and in a special way, the Chief Justice, can be the game changer in our nation’s struggle for truth and justice  to finally be the operating system of society. Usually, it is the Supreme Court or the Chief Justice who tempers or even overrules the Executive or Congress , two branches of power deemed more powerful in day-to-day governance than the Judiciary.

Instead, we have a President declaring as policy a return to equality with his inaugural “walang wang-wang” and a Supreme Court Chief Justice accepting a midnight appointment, unable to correctly compute his assets and liabilities, forgetting to report bank accounts with tens of millions, and fighting ferociously with legal tactics to keep the contents of his foreign deposits secret. And it is even not Rene Corona’s mis-declared or un-declared wealth that offends, but the greater mis-declared or un-declared wealth of the one who gave him his midnight appointment.

While a people wait for their most senior officials to lead the way for reform, the corruption in the Judiciary remains unaddressed. Worse, the smartest lawyers together with the Supreme Court act as though there are no buying and selling of cases, as though lawyers are not the middlemen who negotiate bribery. It would seem that of the three branches of government, the Executive and the Legislative have been openly accused and labeled as corrupt while the Judiciary goes about its merry way strengthening the public view that justice is only for the rich because justice is for sale.

It seems that many in the Judiciary and the law profession forget that it is the spirit that gives birth to form, intent to the letter of the law. When the form, or the letter, loses fidelity to the source of their existence, it is perversion of the worst kind, betrayal of the public trust of the highest order, akin to a mother raped by her son. In Pilipino, there is a succinct terminology for this – bantay salakay.

The Filipino must rethink many things, must reflect on whether his dreams and aspirations for the present and future generations can afford to have gatekeepers protecting a dark past and an ugly pattern of corruption that is so shameful it strips our nation of our dignity, our honor. People Power removed a dictator twenty-six years ago. Today, people power may have to raise the bar and be gatekeepers for transparency and integrity.