OPINION: Supreme Court in the dock

The Explainer: Manuel L. Quezon III

Posted at Nov 02 2016 06:51 AM

Burt Lancaster in the film Judgment at Nuremberg, explaining how so many things can be excused by fear.

THIS coming week, and possibly the weeks that follow, will refocus public attention on the Supreme Court as it deliberates on petitions opposing the burial of Ferdinand E. Marcos in the Libingan ng mga Bayani. By all accounts, the justices divide along the following lines: some are focused on the letter of the law, and others, on the spirit of the law.

By the letter of the law I mean that some justices are looking at the many laws and regulations governing the Libingan to see if there are specific grounds to reject the President’s instructions to have Marcos given an official burial in that place. By spirit of the law I mean that other justices are going beyond the particular rules and regulations governing who can be buried at the Libingan, to justify overturning the President’s instructions. Other justices may be somewhere in between.

Some observers say that the majority of justices, if you go by the questions they’ve asked, are inclined to rule that the President’s instructions are not only presumed to be legal, but are outside the jurisdiction of the court. That to get involved would be to get tangled up in what is essentially either a political question, or one in which there is no compelling reason to intrude on the powers of the presidency. A few justices, going by the same observers, suggest that there are members of the court who view the forthcoming decision as one having implications that go beyond interpreting the rules for official burials: that what will be decided will be nothing less than whether history, speaking through the pens of our justices, will officially rehabilitate Marcos.

We like to think of our justices as learned, almost monkish, people, free of partisan passions, and clinically detached from the raging arguments of the present. They are supposed to be people who think only of the law, and justice, incorruptible and unbiased. What we do not normally think of them as, are imaginative people. Or people necessarily imbued with a sense of history regardless of how often they invoke past cases, since they can always innovate and set aside the precedents of the past.

But these --imagination and a historical sense-- are the fundamental requirements, I would think, for a decision on the Marcos burial that merely settles an argument over regulations while ignoring its broader, and deeper, implications for our society as a whole.

As they ponder on the case, I wonder if their predecessors come to mind as they make their way into their chambers every morning.

The steps leading to the Supreme Court are flanked by the statues of two Chief Justices by Julie Lluch: Cayetano Arellano, our first chief justice, and Jose Abad Santos, our foremost martyr in World War II. Personally, I beliee there should be two other Chief Justices honored with statues: Manuel Moran, the first Chief Justice of the independent republic, and Roberto Concepcion, the last Chief Justice under the 1935 Constitution.

In The Explainer for March 24, 2010 (“Supreme Court Challenge”) I told the story of how, when President Quirino lost his bid for reelection in 1953, he decided he should pay some political debts by making some midnight appointments. One of them was to former Chief Justice Manuel Moran, who he’d convinced to leave the Supreme Court to become our first ambassador to Spain. But Moran, even if he wanted to return to the Supreme Court, declined the appointment. Moran said that presidents should have a free hand in making important appointments, including the Supreme Court. Moran’s delicadeza cost him his chance to return to the Supreme Court.

The story of Roberto Concepcion and the consolidated cases questioning the legitimacy of the “ratification” of the 1973 Constitution, is a long one. I’ve told most of it in “Why a Chief Justice Would Think of Resigning” (Arab News, April 2, 2010), and “Showdown with the Supremes,” (Rogue Magazine, September, 2014). Essentially it boiled down to this: for martial law to succeed, Marcos had to padlock Congress before it reconvened in January, 1973; to be able to do that, he needed a new constitution approved even if he knew the public would vote to reject it; to get around a rejection in a fair and free referendum, he manufactured a plebiscite, and then pressured the Supreme Court to go along with the results. The Explainer for April 7, 2008 (“May it please the Court”) described how “he courted and threatened its members. Chief Justice Concepcion... pointedly observed Marcos also kept the court off-balance… When it voted on Javellana v. Executive Secretary, essentially, the Supreme Court threw up its hands and pleading that it had been overtaken by events… And this is what the Supreme Court helped Marcos do: it guaranteed that the burden of proof would shift from Marcos to his critics, as far as whether his regime was justified or not. The Chief Justice was so heartbroken he went on leave ahead of the expiration of his term.”

These four, former Chief Justices illustrate that for a justice, one must not only love, but live, the law, knowing that beyond wielding one’s pen, how one exercises one’s conscience and decides to take –or not—take a stand, are of vital importance, too. Arellano set the bar for personal integrity and judicial dedication; Abad Santos chose death rather than betray his responsibilities as Acting President of the Philippines in areas not occupied by the enemy; Moran would not go back to the bench if it was at the cost of fundamental constitutional principles –or personal honor—and Concepcion quietly, but pointedly, resigned when felt the high court had betrayed its responsibility before country and history.

Back on September 14, 2009, in The Explainer I tackled the question of Rehabilitation, how political leaders confront being disgraced and try to rehabilitate themselves. At present the most sustained effort in this regard has been that of the Marcoses, which I’ve tracked for a long time: see Marcos Heirs Prove Incapable of Leadership, from December 28, 2005; Restoration, from September 14, 2006; The Marcos restoration, from July 6, 2009; and Showdown, from February 10, 2010. The Supreme Court is now the field of battle where the victory or defeat for this campaign will be decided. And here, the Supreme Court’s own history: particularly the example of former Chief Justice Concepcion in the case of Javella v. Executive Secretary, becomes highly relevant: not only in terms of what he wrote and what he did in that decision, but what he did afterwards. It was he who made the present Supreme Court more powerful –and the bearer of much more responsibility—than its predecessors under our past constitutions. When, as one of the commissioners tasked with writing the 1987 Constitution, he sponsored the constitutional provision making it the duty of the Supreme Court to settle not just controversies involving legally-demandable rights, but to determine whether or not there has been a grave abuse of discretion on the part of any instrumentality of the government, he essentially moved to make it exceedingly difficult for the Supreme Court from washing its hands of a controversy ever again, so long as what confronts it is not a hypothetical question.

A specific question based on an official’s decision, now confronts it. Recalling his experience in 1973 (and you can find it in the actual Supreme Court decision), Concepcion pointed out that aside from the legal games of Marcos, any citizen could see what a sham the so-called “ratification” of the 1973 Constitution was –including the justices themselves who do not live isolated from the world. But faced with a choice between recognizing –and acting—on the mockery of the law going on, or hiding behind the excuse that the court had been overtaken by events, the majority chose to hide. The recollection of Justice Antonio Carpio –that he, along with many law students, saw this clearly and lost respect for the court—has been widely quoted.

The choice confronting the court now is similar though at first blush seemingly much more petty. It’s a choice between what could arguably be called preferring tunnel vision over a broad vision of what regulations and laws, taken together, are supposed to mean: including whether they can be used to camouflage the identity of Marcos as dictator and tyrant.

So now the Supreme Court is in the dock. The speech of Burt Lancaster in the movie “Judgment at Nuremberg” is worth recalling to end of this piece, just as the video clip of the scene started it:

Janning: I wish to testify about the Feldenstein case because it was the most significant trial of the period. It is important not only for the tribunal to understand it, but for the whole German people. But in order to understand it, one must understand the period in which it happened.

There was a fever over the land, a fever of disgrace, of indignity, of hunger. We had a democracy, yes, but it was torn by elements within. Above all there was fear, fear of today, fear of tomorrow, fear of our neighbors, and fear of ourselves. Only when you understand that can you understand what Hitler meant to us, because he said to us:

"Lift your heads. Be proud to be German. There are devils among us, communists, liberals, Jews, gypsies. Once these devils will be destroyed your misery will be destroyed."

It was the old, old story of the sacrificial lamb.

What about those of us who knew better, we who knew the words were lies and worse than lies? Why did we sit silent? Why did we take part? Because we loved our country. What difference does it make if a few political extremists lose their rights? What difference does it make if a few racial minorities lose their rights? It is only a passing phase. It is only a stage we are going through. It will be discarded sooner or later. Hitler himself will be discarded -- sooner or later. The country is in danger. We will march out of the shadows! We will go forward. FORWARD is the great password.

And history tells how well we succeeded, Your Honor. We succeeded beyond out wildest dreams. The very elements of hate and power about Hitler that mesmerized Germany, mesmerized the world. We found ourselves with sudden powerful allies. Things that had been denied to us as a democracy were open to us now. The world said, "Go ahead. Take it. Take it! Take Sudetenland! Take the Rhineland! Re-militarize it! Take all of Austria! Take it!"

And then, one day we looked around and found that we were in an even more terrible danger. The ritual begun in this courtroom swept over the land like a raging, roaring disease. What was going to be a "passing phase" had become the way of life.

Your Honor, I was content to sit silent during this trial. I was content to tend my roses. I was even content to let counsel try to save my name, until I realized that in order to save it, he would have to raise the specter again. You have seen him do it. He has done it, here, in this courtroom. 

He has suggested that the Third Reich worked for the benefit of people. He has suggested that we sterilized men for the welfare of the country. 

He has suggested that perhaps the old Jew did sleep with the 16 year old girl after all. Once more, it is being done -- for love of country.

It is not easy to tell the truth. But if there is to be any salvation for Germany, we who know our guilt must admit it -- whatever the pain and humiliation.

I had reached my verdict on the Feldenstein case before I ever came into the courtroom. I would have found him guilty, whatever the evidence. It was not a trial at all. It was a sacrificial ritual in which Feldenstein, the Jew, was the helpless victim.

Hans Rolfe: Your Honor, I must interrupt. The defendant is not aware of what he's saying. He's not aware of the implications!

Janning: I am aware. I am aware! My counsel would have you believe we were not aware of the concentration camps. Not aware. Where were we? Where were we when Hitler began shrieking his hate in Reichstag? Where were we when our neighbors were being dragged out in the middle of the night to Dachau?! Where were we when every village in Germany has a railroad terminal where cattle cars were filled with children being carried out to their extermination! Where were we when they cried out in the night to us. Deaf, dumb, blind!!

Hans Rolfe: Your Honor, I must protest!

Janning: My counsel says we were not aware of the extermination of the millions. He would give you the excuse: We were only aware of the extermination of the hundreds. Does that make us any the less guilty? Maybe we didn't know the details. But if we didn't know, it was because we didn't want to know.

Emil Hahn: Traitor! Traitor!

Judge Haywood: Order! Order! Order! Put that man [Hahn] back in his seat and keep him there.

Janning: I am going to tell them the truth. I am going to tell them the truth if the whole world conspires against it. I am going to tell them the truth about their Ministry of Justice. Werner Lammpe, an old man who cries into his Bible now, an old man who profited by the property expropriation of every man he sent to a concentration camp. Friedrich Hofstetter, the "good German" who knew how to take orders, who sent men before him to be sterilized like so many digits. Emil Hahn, the decayed, corrupt bigot, obsessed by the evil within himself. And Ernst Janning, worse than any of them because he knew what they were, and he went along with them. Ernst Janning: Who made his life excrement, because he walked with them.

Additional readings:

For the unintended consequences of decisions to bury controversial leaders, see my article, Unintended consequences of Napoleonic solutions. For the specific complications in the Marcos burial case, see The law says Marcos is a hero—and it also doesn’t and Notes on the Marcos Medals. See my blog entry, Before the bar of history

See the following The Explainer scripts: Remembering Martial Law, September 17, 2006; The nuts and bolts of martial law, September 17, 2007; Plebiscitary Democracy, November 6, 2006; Marcos in retrospect, February 19, 2007; May it please the Court, April 7, 2008; 1987 Constitution, July 29, 2008; Why Marcos Lost, February 15, 2010. 

See my columns, Why a Chief Justice Would Think of Resigning, April 2, 2008; Showdown, February 10, 2010 and Form and substance from May 19, 2010. 

Disclaimer: The views in this blog are those of the blogger and do not necessarily reflect the views of ABS-CBN Corp.