Flight from justice

The overriding and unstated premise in the controversy over the “constitutional crisis” provoked by the Supreme Court order allowing former President Gloria Macapagal-Arroyo and former First Gentleman Miguel Arroyo to travel abroad and the Justice Secretary’s insistence on barring them from leaving on the basis of a departmental “watch list order” (WLO) is that the issue being decided on is the ordinary citizen's constitutional right to travel.

However the events that led up to the highly dramatic attempt of the Arroyos to leave the country some hours after the SC decision came down indicate that the issue was more than that. Or even that it was not that at all.

In the first place, GMA and FG are not your ordinary citizens. If they were, it is unthinkable that the SC would have given the petition the same priority they accorded the Arroyos. But lady justice being blind, we can grant that our highest magistrates would treat everyone equally, and also not give consideration to the fact that the Arroyos have hundreds of millions if not billions of reasons to leave the country and contemplate not returning, since these have nothing to do with the issue of constitutional rights.

The Supreme Court voted along clearly partisan lines: eight justices, all GMA appointees, voted to allow the Arroyos to travel; five who contravened are either Aquino appointees or have had a political falling out with GMA.

The speed with which the decision was made (oral arguments were still to be heard the following week) was highly unusual. It seemed the better part of prudence for the High Court to have exercised greater care and circumspection in this highly controversial and politically-charged case but evidently this was set aside.

The circumstances under which the Temporary Restraining Order (TRO) was issued and received were, to say the least, suspect. The GMA camp appeared to know in advance what the SC decision would be, when it would be issued, and what the prerequisites for the order to become immediately executory were.

Thus the lawyers were able to comply with amazing dispatch. The tickets to Singapore for the GMA travel party were already booked on all possible flights and carriers for the same day of the SC decision. Before the day was over the Arroyos were attempting to fly out.

Most important of all, the “temporary relief” granted to the Arroyos citing their constitutional right to travel and even the right to life (accepting uncritically the Arroyos’ claim that GMA needed life-saving medical treatment abroad) would render the main case (whether the WLO that kept them from traveling is valid or not) moot and academic. The SC had practically given the Arroyos judicial “license to flee” as pointed out by the National Union of People’s Lawyers.

The real issue confronting us is not about an individual’s constitutionally-guaranteed right to travel. GMA’s lawyers cleverly couched the issue for the SC in such a manner to provide the majority pro-Arroyo justices the legal ground to issue a TRO and likely declare the Justice Department’s WLO unconstitutional. But take note that the current champions of this right never questioned it during GMA’s incumbency when it was issued by her Justice Secretary. Is it because they were never on the receiving end of the curtailment of such a fundamental right?

This is also not about seeking urgent and unavailable medical treatment abroad although the invocation of such grounds provides the pro-GMA SC justices the opening to cite the basic right to life and humanitarian grounds for deciding that GMA be allowed to travel.

The top-notch doctors and facilities that the Arroyos relied on to save FG when his life was threatened and to which GMA initially availed of to address her neck problems are all available still. The Philippine Medical Association and individual orthopedic surgeons as well as the Health Secretary have all attested to the fact that while Mrs. Arroyo is recuperating from her previous operations any other procedures such as a bone biopsy and work-up on possible metabolic deficiencies may all be done inside the country with no question as to accuracy and reliability.

Contrary to the vociferous claims of the GMA camp, this is also not about political persecution by the Arroyos’ political enemies. Apart from President Benigno Aquino III’s propensity for attributing everything that is wrong or problematic in his administration to the sins, foibles and follies of his predecessor, his administration has yet to file a single legal case against GMA whether for corruption or electoral fraud much less for gross violations of human rights. All the cases filed against GMA and her cohorts have been by progressive party list congress persons and social activists, human rights victims and various good government advocates.

Justice Secretary Leila de Lima’s frantic attempts to forestall the execution of the TRO are last-ditch attempts to delay the inevitable in the hope that the people will blame the SC and not the Executive for government’s abject inability to exact justice for the Arroyos’ high crimes against the people.

The Aquino administration’s failure to investigate, do assiduous case build-up, file proper charges in court and competently prosecute these cases have all paved the way for what is being touted by the media as “De Lima’s dilemma” but which boils down to Mr. Aquino’s glaring lack of political will.

The apparent "constitutional crisis" that is manifesting itself in a showdown between the executive and judiciary has little to do with upholding constitutional rights although it has taken that issue as its arena of contention. The crisis stems from the Philippine state having to maintain a facade of being democratic and operating under the rule of law, purportedly to preserve peace and order, under conditions of worsening economic difficulties, increasing public restiveness and the festering contradictions among the factions of the ruling elite, in this case between the ruling Aquino regime and the out-of-power Arroyo clique.
Long before this, and especially under the Marcos dictatorship, the entire Philippine state has been in disarray, with the executive and legislative branches caught in all kinds of scandals, anomalies, fraudulent and criminal activities including gross human rights violations.

The GMA regime's contribution was to brazenly get away with all these with impunity through a masterful contravention and even use of laws and legal processes. Its misuse and abuse of the courts to harass the opposition and progressive leaders and cover up extrajudicial killings and other grave human rights violations severely undermined the integrity of the judicial system including the Supreme Court hitherto regarded by many as the last remaining credible institution in government.
The Puno and Corona Supreme Courts put their own credibility under question with decisions that could only kindly be described as questionable or controversial. The SC has reversed and even flip-flopped on its own issuances apparently due to powerful intervening interests.

This being the case, this current "crisis" will not find its resolution even with the Arroyos' constitutional right ostensibly upheld by their imminent flight from justice. #

Published in Business World
18-19 November 2011