COMMENTARY: Remembering the Martial Law Supreme Court

MELBOURNE, Australia (MindaNews / 26 Aug) – In a couple of weeks, the entire nation will be commemorating the declaration of Martial Law. Allow me to initiate the process with a paragraph from the article of Professor Dante Gatmaytan-Magno about the case of Javellana vs. Executive Secretary entitled, Changing Constitutions: Judicial Review and Redemption in the Philippines.

Note that the Supreme Court in this case ruled that Ferdinand Marcos railroaded the adoption of the proposed Constitution in 1973. The citizens’ assemblies he organized wherein the ratification of the proposed constitution was determined by a show of hands were declared to be improper and could not be the basis to legitimize a constitution.

In fact, the Court opined that this exercise was an absolute farce not only because of its inherent inanity but more so because Marcos’ guns and goons were outside the halls where these assemblies were held. A scenario which obviously precluded any legitimate outcome arising at all from the said process.

Professor Gatmaytan-Magno wrote─

“In Javellana a majority of the Supreme Court declared that the 1973 Constitution was not properly ratified. However, because the constitutional requirement of two-thirds of the Court voting to declare a law unconstitutional was not met, the Court also concluded that the new charter was already in effect. That decision allowed Marcos to govern under a dictatorship until he was forced out of office in 1986. Since that time, the Supreme Court has had to live with the realization that it became an accomplice to the emasculation of Philippine democracy. Many wonder if the Court will allow itself to be used in a similar fashion at some point in the future—or the present.”

As we contemplate further on the evils of Martial Law, I believe the good professor asks a very good question that is particularly relevant today in light of current events─ Will the Supreme Court allow itself to be used in a similar fashion again?

Reflecting on this query is indeed timely given the Court’s recent decision in the case of Enrile vs. Sandiganbayan [GR No. No. 213847, August 18, 2015] allowing accused plunderer, Senator Juan Ponce Enrile, to post bail.

The Court in this very case laid out the parameters of the right to bail as follows─ “The general rule is, therefore, that any person, before being convicted of any criminal offense, shall be bailable, unless he is charged with a capital offense, or with an offense punishable with reclusion perpetua or life imprisonment, and the evidence of his guilt is strong.”

By simply applying common sense, it is quite obvious that the only legal reason to allow Senator Enrile to post bail is if the evidence of his guilt is weak. But the Supreme Court cannot make a determination in this regard because it is not a trier of facts. In this particular instance, only the Sandiganbayan can perform this task.

So how did the Supreme Court justify granting this accused plunder the privilege to post bail? I present here the very words used by the ponente, Justice Lucas Bersamin─

“In our view, his social and political standing and his having immediately surrendered to the authorities upon his being charged in court indicate that the risk of his flight or escape from this jurisdiction is highly unlikely. His personal disposition from the onset of his indictment for plunder, formal or otherwise, has demonstrated his utter respect for the legal processes of this country. We also do not ignore that at an earlier time many years ago when he had been charged with rebellion with murder and multiple frustrated murder, he already evinced a similar personal disposition of respect for the legal processes, and was granted bail during the pendency of his trial because he was not seen as a flight risk. With his solid reputation in both his public and his private lives, his long years of public service, and history’s judgment of him being at stake, he should be granted bail.”

In the spirit of remembering, the person being described by Justice Bersamin here is the same one who lied to the nation to give Marcos justification to declare Martial Law. The very same person who instigated coup attempts against President Cory Aquino during the early years of her administration. A person now accused of plunder, a capital offense formerly punishable by death!

Do these previous acts really justify the ascription on Senator Enrile as having a “solid reputation”? In fact, would not such a troubling history comprise a “social and political standing” that would actually justify disallowing bail? Indeed, I am truly finding it very hard to see a person with such a track record as someone who respects legal processes.

Senator Enrile himself has unravelled the farcicality of the decision to grant bail. According to the majority opinion, the “fragile state of Enrile’s health presents another compelling justification for his admission to bail”. And yet the very next day upon gaining temporary liberty, the good senator was up and about at the Senate.

Therefore, can Justice Bersamin reasonably expect Filipinos not to be suspicious of his ponencia? The public is clearly dismayed by the Court’s palpable preferential treatment of Senator Enrile. And Filipinos cannot be blamed if they believe the Supreme Court has once more become an “accomplice to the emasculation of Philippine democracy” on account of this case.

After four decades, the integrity of the Highest Court in the land is once again in question. And the tattered reputation of this institution will persist for as long as the perpetuators of this widely perceived injustice continue to roam its hallowed halls. The fact is filing the complaint against the dissenting justice, Justice Marvic Leonen, and a Rejoinder will not remove the stink of this decision.

Sadly, the only way for Filipinos to have faith again on the Supreme Court is for Justice Bersamin and those who sided with his dubious decision – Justices Presbitero Velasco Jr., Teresita Leonardo-De Castro, Arturo Brion, Diosdado Peralta, Mariano Del Castillo, Jose Perez and Jose Mendoza – to resign immediately.

Indeed, this unfortunate realization comes from our nation’s bitter experience with the Martial Law Supreme Court after they provided the legal stamp to the Marcos dictatorship. None of the “guilty” justices resigned.

[MindaViews is the opinion section of MindaNews. Atty. Michael Henry Ll. Yusingco is a practicing lawyer. He is presently completing a Masters of Law and Development in Melbourne Law School. He recently published a book entitled, Rethinking the Bangsamoro Perspective.]