THE STUNNING Supreme Court decision in Enrile vs Sandiganbayan is in truth, and in the trenchant phrasing of the dissenting opinion, a “special accommodation”—an extraordinary privilege for a politician who remains one of the country’s most powerful men despite a year in detention on plunder charges. To engineer this privileged arrangement, the eight-person majority who voted in favor of Sen. Juan Ponce Enrile had to twist this way and that, to rationalize its decision. That the honorable justices seemed to have found constitutional bases for their ruling only confirms the perception that lawyers can rationalize virtually anything. Where there is political will, there is a legal way.
Associate Justice Lucas Bersamin wrote the ponencia effectively granting bail to Enrile in a nonbailable case; he was joined by Associate Justices Presbitero Velasco Jr., Teresita Leonardo-De Castro, Arturo Brion, Diosdado Peralta, Mariano del Castillo, Jose Perez and Jose Mendoza.
It is of no small moment that seven of these justices (all except Velasco) also joined in yet another controversial decision, again written by Bersamin; they formed the bulk of the nine-person majority that upheld in 2010 President Gloria Arroyo’s so-called midnight appointment of Renato Corona as chief justice. That ruling also squinted determinedly at the Constitution until the meaning of the provisions began to appear as the justices saw fit.
In De Castro vs Judicial and Bar Council, the high court reasoned that the express limitation on the power of the president of the Philippines to make appointments two months before the presidential elections does not apply to the Supreme Court. Why? Among other credibility-straining reasons: Because the framers of the Constitution placed the pertinent provision under Article VII, which is “devoted to the Executive Department,” rather than under Article VIII, which is “dedicated to the Judicial Department.”
Here is the argument that would shame a first-year law student: “Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions.”
This is an astonishing view of the fundamental principle of the separation of powers. Many limitations on the scope of the executive’s duties and responsibilities can be found under other articles; those limiting the scope of the work of Congress can be found not only under Article VI, which defines the legislative department, but in other articles as well. And so on and so forth.
The dissenting opinion of Justice Conchita Carpio Morales made short work of such twisted thinking. “Section sequencing alone … does not suffice to signify functional structuring. That the power of judicial appointment was lodged in the President is a recognized measure of limitation on the power of the judiciary, which measure, however, is counterbalanced by the election ban due to the need to insulate the judiciary from the political climate of presidential elections.”
The Enrile decision is rich with similar embarrassments. Aside from the damning fact that the high court granted Enrile’s petition by creating a new, ill-defined argument on humanitarian grounds, an argument that the petitioner himself did not raise, there is also the tortuous thinking that sought to anchor the ruling on basic principles.
Perhaps the most absurd is the one the majority of the Court referred to again and again. “Nonetheless, in now granting Enrile’s petition for certiorari, the Court is guided by the earlier mentioned principal purpose of bail, which is to guarantee the appearance of the accused at the trial, or whenever so required by the court.”
The argument is that the imposition of a steep enough cash bond would compel the accused to appear at his own trial (so as not to forfeit the money). Correct as far as it goes—but the Bersamin decision stretches this principle beyond the breaking point. If in fact the main consideration of the high court was Enrile’s appearance at his own plunder trial, what better guarantee could there have been than continuing detention at the headquarters of the national police?
In bending over backwards to extend a humanitarian courtesy to Enrile, the majority ended up twisting justice.
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