Arroyo’s pleas political, not human rights issue

Former President Gloria Macapagal-Arroyo

It would be the supreme irony to allow GMA (Gloria Macapagal-Aroyo) to invoke our most sacred human rights protections to escape justice. That would be her supreme, final perversion of our democratic institutions. While countless voices have correctly quoted human rights law, our democracy must recognize GMA’s pleas as a political, not human rights, issue.

Our Bill of Rights is our democracy’s greatest triumph. It is “counter-majoritarian”; it empowers the weakest member of our society to stand against the most powerful members. Wind and sunshine may enter the humblest hovel, but the king must first knock at the door.

The Bill of Rights is applied by the courts with very strict scrutiny in favor of the disadvantaged for whom “those political processes ordinarily to be relied upon to protect minorities” historically do not work: From the Maguindanao massacre victims to millions of starving children who might be fed and clothed with the money from the fertilizer and ZTE scams.

That is why we must pierce legal rhetoric to see what is really at stake.

Portrayed as victim

One, Gloria Macapagal-Arroyo has been portrayed as the victim boxed into a corner and fighting for her survival. Lest we forget, the supposed underdog here is a former President and now a member of the Philippine Congress, with loyal allies and appointees in high places, with a formidable war chest at her disposal, much of it our own money, the criminal complaints say. She is not a political nobody by any stretch of the imagination.

Two, if there was any legal sleight of hand, it lies in the TRO, which consolidated the separate cases of Gloria Macapagal-Arroyo and Jose Miguel Arroyo. In a discussion of this case with some law school classmates, it was asked: How did Mike get to benefit from Gloria’s medical emergency?

Consolidated petitions

Gloria and Mike filed two separate SC petitions to challenge their respective watch-list orders. Consolidating the two petitions looks procedurally innocuous. After all, since both cases deal with the same issues (the invalidity of the watch-list order) and ask for the same remedies (the issuance of an allow-departure order), why not indeed hear them together?

Going by newspaper accounts, only Gloria, but not Mike, has invoked a medical emergency to be allowed to travel. And yet when the ban on Gloria’s travel was lifted, Mike likewise became free to leave by virtue of the consolidation.

Three, the Arroyo camp makes it appear that all that is at stake now is a mere temporary restraining order, emphasis on temporary. They are correct, but only if we look merely at the surface.

After all, the issue is the validity of the watch list powers of the Department of Justice (DOJ), and the TRO does not purport to settle that question on the merits and with finality. The TRO is an interim measure taken while the merits are still pending. It is merely preliminary and provisional in character.

But lest we forget, if she doesn’t return, all the pending cases are effectively frustrated.

Exhibit A

Her own versions of her health condition raise many questions. Her list of destinations are mostly (not all, it turns out) nonextradition states. And finally, even if she finds herself in an extradition state, she can still claim asylum as a refugee, or at the very least, invoke the state’s duty of “non-refoulement,” to not return a person to the country of origin where she faces the risk of persecution.

When she applies for asylum, videotapes of the airport drama of Tuesday night will be Exhibit A.

Secretary Leila de Lima’s insistence that the TRO is held in abeyance pending reconsideration can be seen as reflecting its true nature as potentially the permanent disposition of the Arroyo charges, or an attempt to buy time while the DOJ actually files at least one case against Arroyo and secures a judicially ordered hold-departure order or, lastly, an outright defiance of the Supreme Court.

In case of the last, various voices have warned us that to defy the Supreme Court is to imperil the rule of law that we regained at Edsa I. By defying the court, De Lima calls the bluff, as if to say: The court is damaged goods. It is they who jeopardize our rule of law by lending their imprimatur to impunity.

Political solution

I would be the first to call for the rule of law, but the image of GMA the human rights victim gives pause. As the Inquirer’s editorial called for, this issue needs a political, not a strictly legal, solution. We must stop looking at the neckbrace and wheelchair in a vacuum and allow our democracy’s checks and balances to play out at the very highest level.

It has been said that the Supreme Court can withstand defiance, but it cannot withstand ridicule, and the Arroyo court has clearly dissipated its reservoir of public trust. The ultimate guardian of our Constitution is “We the People.”

What De Lima is really doing is, beyond the Constitution’s explicit text, asking people to recognize that this is really a political issue. President Aquino seems willing to be judged by history alongside Arroyo and the Arroyo court. Perhaps we should let him.

Legit President checks SC

The textbooks say that to condone a secretary of justice ignoring a Supreme Court order is to go down a slippery slope. However, history has shown that when the referee is punching alongside a boxer, the Filipino people have been ready to throw away the rulebook and reclaim their ultimate authority at Edsa.

Faced with GMA as human rights victim, this is not the best time to demonstrate our commitment to rule of law, to grant a reviled former President her fundamental right to travel, but the worst time, to allow her to escape with impunity in a final, irreparable mockery of the rule of law.

Whereas in 2006 a respected Supreme Court deployed its powers to check a dubious President in Professor Randolf David v. Arroyo, today should we not allow a legitimate President to deploy an extraordinary power to check a dubious Supreme Court?

The President’s greatest and perhaps most desperate check on the judiciary is to ignore it. In a famous fictional account, President Andrew Jackson ordered: “John Marshall has made his decision, now let him enforce it!” It is said that the judiciary wields neither purse nor sword, and its sole means of enforcing decisions lies in its moral authority. Perhaps we should allow the President to confront a court that has lost it.