Uninhibited

When a whole division of the Sandigabayan asks to be excused from trying a highly controversial plunder case, one is tempted to ask: Isn’t that precisely what an antigraft court was created to do? Should the judges be surprised at the high-powered parties they have to confront? Or is the ancient adage true that “laws are like cobwebs, which may catch small flies, but let wasps and hornets break through”?

The recusal exposes the vulnerabilities of Filipino judges, and chastises both the judges themselves and the Filipino public they are sworn to serve. The judges must stand fast and honor their duty to render “judgment according to law.” The public should remain vigilant that the judges not use legal technicality to derail the heroic drive to end corruption.

The three judges of the Sandiganbayan’s Fifth Division wish to inhibit from the pork-barrel-related plunder case against Sen. Jinggoy Estrada. Their one-page letter to Presiding Justice Amparo Cabotaje Tang was simple and straightforward. “May we request for [sic] our recusal in the above-indicated criminal cases for personal reasons.” It was cryptic and doesn’t say what those “personal reasons” are, and leaves everyone—the accused, the prosecution, the judiciary and the Filipino people—guessing.

Their request to inhibit can be seen in two ways. The first is the mainly legal. When do the rules allow a judge to be excused from judging a case? The duty to judge is so peremptory that, the law says, a judge is duty-bound to decide even in a case where the law is silent. “No judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.”

The Code of Judicial Ethics lists the permissible grounds for inhibition, and they all pertain to conflicts of interest. The judges’ cryptic language (“personal reasons”) itself undermines the bedrock values of the Code, which says that judges by their conduct must enhance “public confidence in the judicial system” and the “moral authority and integrity of the judiciary.” We are left to speculate what reason prompted the request.

We can locate two so-called “canons of judicial ethics” that the judges can claim. One is “independence,” the judges’ duty to decide cases “on the basis of their assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influence, inducement, pressure, threat or interference, direct or indirect, from any quarter or for any reason.” Indeed, the Code says that judges must even “be independent in relation to society in general.” The other is the canon of “propriety,” which calls on judges to “disqualify themselves from participating in any proceedings in which they are unable to decide the matter impartially or in which it may appear to a reasonable observer that they are unable to decide the matter impartially.”

If the judges’ reasons were truly “personal,” then perhaps each of them can tell us how their independence and impartiality had been compromised. Did anyone speak to them? But if their reasons were shared by the entire division—e.g., pressure from public opinion—then all the Sandiganbayan justices suffer from the same problem. Who will be left to decide the case then?

That is why we turn to the second way of looking at the case, which is from a strategic viewpoint. Courts are supposed to decide cases dispassionately, oblivious to public opinion and indifferent to partisan pressures. Unidentified sources in the Sandiganbayan have reportedly cited the extreme political pressures brought to bear upon the judges in the pork barrel cases. So what did the recusing judges expect to achieve with their letter?

The most short-term is personal for the judges concerned, and that is to be rid of the burden of hearing the pork barrel case and let it be someone else’s headache. The medium-term benefit is for the next set of judges assigned to the case (assuming that recusal was granted), who thus enjoy the benefit of having a public already forewarned of the pressures they face, and presumably more inclined to accept whatever decision they make. But the long-term effect on the Sandiganbayan as an institution is to confront as candidly as possible its role in ending corruption in our country. Its role is not to find every legal excuse in the book to let the accused off the hook. Its role is to ascertain whether public money has been diverted to private pockets, and to ensure that those who betrayed the public trust shall be exposed and punished. The court may be neutral vis-à-vis the parties, but it is not neutral vis-à-vis the cause of eliminating corruption.