Wars

Ma. Lourdes Sereno had a very interesting thing to say to the Judicial and Bar Council (JBC) when it was her turn to be interviewed last week. Appointing an “outsider” as chief justice, she said, was like appointing a civilian rather than a general to lead an army to war. The notion of appointing an outsider to patch up the fissures or rifts within the Supreme Court was a case of trying to solve a nonexistent problem. “What is there to heal? There is nothing to fix.

“Our justices have the quality that after heated arguments, we laugh at our own jokes even when they’re corny… There were no recriminations (after the Corona impeachment). No one said, ‘This impeachment trial happened because of your dissent.’ We were laughing and being professional about it.”

Earlier, Antonio Carpio expressed a kindred view. The tradition, he says, has been to appoint the most senior member of the Supreme Court chief justice. “That tradition encourages the incumbents in the appellate court, including the Supreme Court, to look forward to the day that they will be senior and will have the chance to be chief justice.” He is currently the most senior member of the Court.

Sereno’s metaphor is a felicitous one. Arguably, it stretches things a little—a civilian and general being cut out of a different cloth than an “outsider” and “insider” in the Supreme Court who are both lawyers. But making allowances for the hyperbole to drive home the point about the different world justices inhabit, which can be alien even to other members of the legal profession, I agree. Appointing an “outsider” will be like appointing a civilian to lead an army to war.

Which is why I’d prefer one.

That’s so where the war is like the Vietnam War or the Iraq War. Infinitely preferable to have a civilian rather than a general waging it. A general can only ask how best to prosecute it, which in the case of Vietnam meant asking how best to kill as many Vietcong as possible, never mind if it included as many civilians in the process. A question that was answered, among other methods, by the napalm bomb. Theirs not to reason why, theirs but to do and die, as Alfred Lord Tennyson put it in his heroic poem about the charge of the Light Brigade, which in fact was an idiotic, senseless and completely suicidal assault by a saber-armed British cavalry against Russian artillery in the Battle of Balaclava during the Crimean War.

You have a civilian to wage a Vietnam or Iraq War, there might not be a war to begin with. His first instinct won’t be to ask how best to prosecute it, it will be to ask why in God’s name they’re in it at all. Or closer to home, the situation won’t be to ask like Fabian Ver when told by Marcos to jump from a building, “What floor, sir?”; it will be to say like Juan Tamad, “After you, sir.”

That is the kind of war the Supreme Court has been fighting all this time.

At the very least, the problem is not that the justices are in a state of acrimonious dissension, the problem is that they are not. They are in a state of smug camaraderie from inbreeding. It is not unlike the “mistah” system in the military where people observe a pecking order religiously on pain of being treated like, well, an outsider, the better to make one’s transition to the higher ranks smooth. Hell, to make sure one rises up at all. It breeds a culture of conformity, if not omerta. You may express a dissenting opinion in Court decisions but you may not complain about your colleagues however their behavior is egregiously unethical.

Sereno, of course, has been a notable exception, dissenting from the Court’s decision to reopen the PAL case, which it had already ludicrously ruled with finality three times, warning that it would “open a Pandora’s box full of future troubles for Philippine judicial decision-making.” But she is precisely that, an exception and not the rule.

At the very most, which is why I say the Supreme Court has been waging a war like the Vietnam or Iraq War, the problem is not that the justices do not know their law, it is that they do not know their justice. Or put another way, it is not that they do not know their means, it is that they do not know their ends. Or put still another way, it is not that they do not know their law and their means, it is that they have forgotten that law is but the means to an end, and that end is justice. Theirs not to reason why, theirs but to say goodbye.

That became patent, if it had not been made so already by the Erap impeachment trial, indeed if that had not been made so already by Gloria’s law, which made black white and white black, in the Corona impeachment trial. The chief justice in particular gave a contemporary face to Marcos’ proposition that if you could find, or invent, a law to justify something, it must be just. That trial proved not just that non-justices are “outsiders” to the Supreme Court, entities who could never hope to inhabit the world the justices did, it proved that the people themselves were so.

The divide was unbridgeable. On one side was a tiny group who believed that the law should shape reality, and on the other the people themselves who believed that reality should shape the law. On one side was a tiny group who believed that the law was verse, chapter, and tome, and on the other the people themselves who believed that the law was history, experience, and a sense of right and wrong. On one side was a tiny group who believed that the law was in good shape, justice was being done, above all to themselves who grew prosperous by the day, and on the other the people themselves who saw law as comatose, if you were rich you would never see the dark of a jail cell.

Continuity is the last thing the Supreme Court needs, a violent break with the past is first.

That’s a war best led by a civilian.