To Take A Stand

“I am an accidental chief justice. I know that you have expected maybe another individual to be appointed to this office,” said Chief Justice Lucas Bersamin when he spoke before justices and employees of the Supreme Court in the first flag-raising ceremony attended by him as chief justice. So he asked his colleagues: “Please accept me. I ask you to welcome me, to love me, to support me, to help me in my 11 months.”
When Pres. Rodrigo Duterte appointed Supreme Court Associate Justice Teresita de Castro as chief justice, he explained that he was abiding by the tradition of seniority as she had been in the Court longer than any of the nominees at the time. Senior Associate Justice Antonio Carpio had declined his nomination. But Lucas Bersamin was only the third most senior justice among the four nominees for the top post of the high tribunal. Justice Carpio, who at the time had accepted his nomination, was senior to him by eight years and Justice Diosdado Peralta by a couple of months.
In the case of Chief Justice Bersamin, the President defined seniority in terms of service in the entire judiciary instead of service in the Supreme Court as had been the time-honored definition. He named Justice Bersamin chief justice as he had served in the judiciary the longest, having been judge since 1986.
Absent during that ceremony were Justices Carpio, Peralta, and Estela Perlas Bernabe. Non-attendance in flag ceremonies at the Supreme Court grounds is often seen by observers as lack of support for the chief justice. That is most probably the reason why CJ Bersamin had to ask the justices present that day to accept, love, and support him. But acceptance or respect is not imposed and begged for, it is earned and offered. Apparent from his plea is that he had not earned it in spite of his having served 32 years in the judiciary.
He also “asked for unity to bring a good image back to the judiciary.” The call for unity was unnecessary. Most of the time the great majority of his colleagues, past and present, including Pres. Benigno Aquino appointees Francis Jardeleza and Bernabe, voted the same way he voted. But it is that very unity that had ruined the image of the entire judiciary, in particular the Supreme Court, as the great majority of the members of the Court have been united in handing out rulings in favor of the powers that be.
Justice Bersamin and the great majority of his associates in the Court voted to:

• uphold Pres. Gloria Arroyo’s midnight appointment of Renato Corona as chief justice;

• strike down as unconstitutional President Noynoy Aquino’s executive order creating the Truth Commission because it limited its scope only to the previous Arroyo administration;

• uphold Congress’ creation of a new congressional district to allow Pres. Arroyo’s son Dato to run in a district where there was no formidable opponent;

• dismiss the disqualification complaint against Pres. Arroyo’s son Mikey, who ran as a nominee of the party-list of tricycle drivers and security guards;

• stop the impeachment proceedings against then Ombudsman Merceditas Gutierrez, the Arroyos’ friend;

• uphold Neri’s invocation of executive privilege, thereby preventing the Senate from extracting from him Arroyo’s involvement in the NBN-ZTE bribery case;

• uphold the arrest of Sen. Leila de Lima, rabid critic of Pres. Duterte, over alleged involvement in illegal drug trade;

• acquit Gloria Arroyo of the charges against her;

• force Chief Justice Sereno, who had blocked Pres. Duterte’s orders to judges, to go on leave;

• uphold Pres. Duterte’s imposition of martial law in Mindanao;

• uphold his extension of martial law in Mindanao to the end of the year;

• give cognizance to the quo warranto petition against Sereno;

• nullify Sereno’s appointment as chief justice.

As associate justice of the Supreme Court, Lucas Bersamin has enacted new laws favorable to the appointing power. In August 2015, he declared that “Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail despite imperilling his health and life would not serve the true objective of preventive incarceration during the trial.” The Supreme Court ruled, therefore, that the fragile state of Sen. Juan Ponce Enrile’s health presented a compelling justification for his admission to bail.
Associate Justice Marvic Leonen vented in his dissenting opinion that the granting of bail to Sen. Enrile for humanitarian reasons set a dangerous precedent. The decision “will usher in an era of truly selective justice not based on clear legal provisions, but one that is unpredictable, partial and grounded on the presence or absence of human compassion,” wrote Leonen. Many eminent lawyers said the decision was contrary to the rule of law.
Justice Leonen said that the decision was “especially tailored” for Enrile. I wrote in this space that year that it was “couturiered” exclusively for former president Arroyo, who appointed Bersamin to the Supreme Court. I called the attention of the readers of the column to what Associate Justice Bersamin, who penned the decision, said of Sen. Enrile, “With his solid reputation in 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.” Only former president Gloria Arroyo among the many ailing lolos and lolas in prisons can be described similarly.
That is why no human rights lawyers had the audacity to petition for bail for the hundreds of enfeebled septuagenarians and octogenarians languishing in penal colonies and city jails on the basis of the new law because none of those ailing lolos and lolas had reputations comparable to those of Sen. Enrile and former Pres. Arroyo nor have any of them had long years of public service.
Every court, including the Supreme Court itself, is bound by the Bersamin ruling. In the legal community, the Supreme Court’s pronouncement is law. Bail will be granted if the poor health of the petitioner justifies it, even if not presented by the accused as the basis of his plea for provisional liberty.
That is why when former First Lady Imelda Marcos was found guilty of seven counts of graft by the Sandiganbayan, no political adversary of the Marcoses, no high-profile victim of marital law abuse, no political analyst, no ordinary citizen thought that she would spend a day in jail. She was expected to invoke the Bersamin doctrine.
In his column in the Inquirer last Sunday, retired Supreme Court Chief Justice Artemio Panganiban wrote that in July 2016, Gloria Arroyo “was acquitted, among other reasons because the Supreme Court ruled, for the first time, that in a prosecution for plunder, the ‘main plunderer’ must be identified in the information and proven during the trial before any alleged conspirator can be convicted. Again, this novel ruling was penned also by CJ Bersamin and is now a binding jurisprudence in plunder cases.”
The retired chief justice thinks that the lawyers of former First Lady Imelda Marcos are going straight to the Supreme Court in the hope that another new doctrine that would acquit Mrs. Marcos would be handed down by the Supreme Court. That is a distinct possibility with Lucas Bersamin as the chief justice of the Supreme Court.
I expect the Bersamin Court to rescind the Sandiganbayan’s order to Ramon “Bong” Revilla, Jr. to return to the national treasury part of the P124.5 million bribe money. If the Sandiganbayan found no direct evidence that Revilla received any kickback from Janet Napoles, the Bersamin Court would find no reason for Revilla to return any part of the P124 million.
Given the present composition of the Supreme Court and with Lucas Bersamin as chief justice, we can expect new doctrines in law favorable to the ruling power and its allies and minions to be handed down.
Oscar P. Lagman, Jr. is a member of Manindigan! a cause-oriented group of businessmen, professionals, and academics.