Saturday, November 26, 2011


Joaquin G. Bernas, S.J.
The ideal virtue that is desired of a court, whether it is a single judge court or a collegial body, is “the cold neutrality of an impartial judge.” This, of course, is a consummation devoutly to be wished but not always attained.
An interesting phenomenon to watch is an oral argument in the Supreme Court. Those expected to argue are the lawyers of the opposing parties. The justices are expected to be neutral observers, more or less. Sometimes it is more and sometimes it is less. You can tell from the questions of justices to whom their minds belong.
Sometimes you can also tell the leaning of the justices from their vote even on preliminary matters. Take the vote on whether to remand the issue of the validity of the joint Comelec-DOJ counsel. A preliminary question was whether to remand the preliminary matter to the redoubtable Judge Mupas or to keep it in the Supreme Court. Remanding the case to a one judge court can make a big difference. You can get speedier action from a one judge court than from a collegiate court. In a one judge court you only have to “convince” one judge, whereas in a collegiate court you have to work harder to “convince” more judges who might have the backing of invisible forces.
Also part of the judicial system is the prosecutorial power of the executive arm of government. The executive arm also has to show fairness. And determination, of course. And, ah, yes, speed. As one admiral is reported to have commanded his men during a naval battle, “Full speed ahead and damn the torpedoes.”
But how handle the torpedoes in litigation? In an effort to balance things and to do away with criminal impunity, the temptation to appeal to a thousand past wrongs as justification for looking at present wrongs as remedially right can be blinding. Can an eye for an eye and a tooth for a tooth save the nation? Is this higher law?
Indeed, what we often see, confirmed again and again, is that in an imperfect world we do not always have perfect justice. We work to achieve the ideal. But in the end, we just have to wait for the Last Judgment when the sheep will finally and fairly be separated from the goats.
The Central Issue. To my mind one central issue in the ongoing litigation is whether the executive department, independently of court orders, can curtail a citizen’s right to travel. This issue in turn depends so much on the meaning of the tricky phrase “as may be provided by law.”
The Bill of rights says “Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.” Is the phrase “as may be provided by law” limitive or expansive? In other words, should the provision of law authorizing impairment always be related to “national security, public safety, or public health,” or does the phrase mean that Congress is free to provide grounds for impairment in addition to national security, public safety, or public health? If it is the latter meaning, the phrase added by the 1986 Constitutional Commission should have been “or as may be provided by law.”
On the other hand, if the meaning of the phrase is limitive, that is, any restrictive provision of law must be related to national security, public safety, or public health, how closely must the law be related to these three? A case in point is the current justification of Hold Departure Orders and Watch List Orders. DOJ Circular 41 purports to base it on a provision of the Administrative Code which authorizes the Department of Justice to “investigate the commission of crimes, prosecute offenders, and provide immigration regulatory services, . . . to institute measures to prevent any miscarriage of justice, without, however, sacrificing the individual's right to travel.” If this broad prosecutorial and investigatory power of the DOJ can authorize restriction on the constitutional right to travel, can it also justify restriction on other constitutional rights, e.g., of the rights of the accused found in Section 14 of the same Bill of Rights?
Conceivably, the DOJ restriction on GMA is being imposed on the argument that she is a flight risk and can therefore frustrate investigation and prosecution and that therefore, to that extent, her escape from investigation and prosecution can be a threat to “public safety.” Voila, the Constitution is satisfied! Should the Supreme Court buy that argument?
And what about her health condition? To my mind the argument based on the state of her health is a distraction or a decoy. (Incidentally, a fellow Jesuit who had a similar surgery in St Luke’s in the same week as GMA is back in his post in Naga but with a neck brace.) The fact alone that her condition might not be life threatening is not sufficient to justify denial of the right to travel. The denial must be based on something else and not on the lack of humanitarian basis. We are waiting for the Court to sort out the arguments.
Speaking of speed. This week the Mindanao massacre of two years ago was recalled. The clamor, especially coming from relatives of victims, was for speedier justice. The prosecution is encountering torpedoes all around. What can the admiral do? Will the supersonic speed and the triple determination in the GMA prosecution be applied to the Mindanao massacre? If this is what the Palace rhetoric means, it is a welcome development. Full speed ahead and damn the torpedoes!
28 November 2011

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