The potent difference

Under the present republican system holding sway in the Philippines, including its considerable distortion, corruption and aberrations in practice, the cards are heavily stacked in favor of the executive branch. Thus, the real "check-and-balance" among the three branches of government can only be achieved through dynamic interaction and engagement of either one or both branches (legislative and judicial) with other sectors of society, including or not the least, the democratic mass protest movement.

Last Tuesday, 200 protesters, including around 120 who traveled in a caravan of vehicles all the way up to Baguio City from Manila, were pleasantly surprised that they were allowed to march up to the entrance to the Supreme Court compound instead of being immediately dispersed by the hundreds of policemen deployed to secure the Court against them. Their representatives were earlier ushered into the office of Chief Justice Reynato Puno by the assistant Clerk of Court after being informed that Mr. Puno had announced to the mass media that he was ready to receive a delegation from the protesters.

I, representing Bayan, together with Fr. Joe Dizon (Solidarity Philippines) and RC Constantino, delivered an Open Letter to the SC justices (www.petitiononline.com/toSC/petition.html) initially signed by 36 individuals reflecting a rainbow of political colors such as protestant bishops Felixberto Calang( IFI), Alex Wandag (ECP), Roman Tiples (UCCP) and Filomeno Ang (IFI); Maita Gomez (Action for Economic Reforms); Bro. Armin Luistro (Lasallian Justice and Peace Commission); Rafael Mariano (Anakpawis); Betina Legarda (Concerned Citizens Movement); Leloy Claudio (Ateneo de Manila faculty); Prof. Ramon Guillermo (UP faculty); Attorney Adel Tamano (UNO); Raymond Palatino (Kabataan Party List) and Netty Sillacos (Citizens for ConCon).

The letter called on the justices to reconsider the 9-6 majority decision upholding former National Economic Development Authority (NEDA) Director-General Romulo Neri’s claim of executive privilege over three questions asked of him by senators investigating the scandal-ridden national broadband network (NBN) deal. In addition, three justices who had voted in favor of Mr. Neri, namely Justices Brion, Velasco and Corona were asked to inhibit themselves from voting on the Senate’s Motion for Reconsideration since their independence from Malacanang had been placed under a cloud of doubt and therefore their votes on the Neri case, compromised.

Ellen Tordesillas, a journalist who was able to join us in the unexpected brief meeting with Mr. Puno, recalls that when asked about the possibility of the justices reversing their decision, Puno replied tersely but meaningfully, “Who knows? We might.”

Dire warnings abound that the Senate’s MR is an exercise in futility given the demonstrated clout of Malacanang on the majority in the Neri case consisting of Justice Teresita de Castro as ponente and Justices Leonardo Quisumbing, Renato Corona, Dante Tinga, Minita Chico Nazario, Presbitero Velasco, Eduardo Antonio Nachura, Ruben Reyes and Arturo Brion. (All of them except Mr. Quisumbing were appointed by President Arroyo and the last one was a Cabinet member who supported Mr. Neri’s refusal to answer the Senate’s questions on the NBN scam shortly before joining the Court and voting to uphold Mr. Neri’s invocation of executive privilege.) Opposition senators who had been hot on the heels of the national broadband network anomalies appeared more anxious than upbeat and even unsure if not reluctant about the MR.

The Court’s subsequent decision to give due course to the Senate motion, by asking Mr. Neri to comment, is a truly welcome reprieve. It certainly appears that the almost universal negative reaction from both legal and non-legal luminaries, including former Chief Justice Artemio Panganiban, former SC Justice Isagani Cruz and constitutionalist Fr. Joaquin Bernas to name a few, and the still small yet dramatic protest actions that attended the filing of the Senate MR in Manila and the en banc SC deliberation in Baguio, served to warn the majority assenting justices not to dismiss the motion outright or risk provoking a firestorm of protest.

According to Justice Cruz, “The people cannot be blamed for suspecting that President Arroyo has blocked the continued probe of that notorious agreement because she herself and her husband are secretly and directly involved in its high-level iniquities. Otherwise, she should be the first, as the political and moral leader of the nation, to expose the unbelievable hideousness of that contract.”

Former CJ Panganiban had opined before the March 25 Court decision, “The only independent and credible state institutions that the public still trusts in the search for truth are the Senate and the Supreme Court. Should these two fail to unravel the complete truth, the people…may finally lose hope in our normal democratic processes. They may once again take to the streets and the plazas to forge what CBCP President (Archbishop) Angel Lagdameo calls a ‘new type of people power.’”

After the Court decided in Mr. Neri’s favor, Mr. Panganiban pointedly said, “… by giving the ‘presidential communications privilege’ presumptive confidentiality, the majority inexplicably expanded kingly prerogatives. It unreasonably suppressed the truth.” Nonetheless he himself countered, “I would like to believe that the Neri decision is a mere aberration and would not suffice to label the present tribunal as the Arroyo Supreme Court. But then, it must quickly choose what it wants to do. Is it to serve or to check President Arroyo?”

The issues go even beyond “truth and accountability” re the ZTE-NBN corrupt deal or even Mrs. Arroyo. It is about how the entire system of rule in this country, unless checked, is heavily stacked in favor of the clique in power and how there are built-in measures and mechanisms that can be perverted to preserve this unjust status quo to the detriment of the common good.

What the Supreme Court eventually chooses to do will certainly be determined not only by what takes place in the judicial arena. The hard-earned lesson for us in countless battles against anti-people state policies, malfeasance in office and intractable abuse of authority: the people cannot simply rely on Congress, even with a marginally oppositionist Senate, nor the “court of last resort” to provide the sufficient and effective check to an imperviously autocratic Chief Executive like Mrs. Arroyo.

It takes the democratic protest movement – in the form of marchers in the streets; mass meetings in farms, factories, schools and communities; circles of genuine and untrammeled “discernment” among the middle forces; critical analyses and calls to action in the mass media; and firm, principled opposition from below even in the bastions of conservatism and reaction such as Parliament, the civilian and military bureaucracy and in the institutional churches – to make the potent difference.

The people’s struggle for democracy, justice, economic prosperity and social progress requires perseverance and tenacity, seizing all opportunities, using all available avenues, linking arms in cooperation and coordination with all positive forces and respecting differences, while working hard in a principled manner, to overcome them