A monumental slip of the tongue

In her effort to express fittingly her profound gratitude to President Rodrigo Duterte for making possible her acquittal from plunder charges, former President Gloria Macapagal Arroyo got so carried away as to make a monumental slip of the tongue. Said she: “I thank you that when you became President, you provided the atmosphere in which the Court had the freedom to acquit me of the trumped up charges of my successor and your predecessor, so that the Court voted 11-4 in my favor, including half of those who were appointed by my successor.”

In effect, she admitted publicly and formally that the Supreme Court of the Philippines acts on the basis of the president’s directions and wishes. So far-reaching are the implications of Ms. Arroyo’s revelation that the Supreme Court’s Public Information Chief and Spokesperson Brian Keith Hosaka immediately gave the assurance that no one can tell the Supreme Court how to handle or decide on a case. He declared: “The public can be assured that the Supreme Court has and will always act independently, and free from influence from the other branches of government. The Supreme Court is guided by the rule of law and its decision are always based on facts, laws, and reason.”

That assurance of the spokesperson of the Supreme Court falls flat considering that Ms. Arroyo was very specific about what she was grateful for — that Mr. Duterte made it possible for the Supreme Court to acquit her.

In the very first month of Mr. Duterte’s presidency, the Supreme Court, voting 11-4, acquitted Ms. Arroyo of the charge of plunder over the alleged misuse of P366 million in PCSO funds from 2008 to 2010, or the tail-end of Arroyo’s presidency. During his campaign for president in 2016, Mr. Duterte said there are grounds for Ms. Arroyo’s acquittal. He also said repeatedly he “owed” much to her as she had contributed to his campaign funds.

Ms. Arroyo said that the 11 votes in her favor included the votes of half of the justices appointed by President Benigno Aquino, cleverly giving the impression that President Aquino’s appointees to the Supreme Court constituted a substantial number of votes to her favor. Actually, nine of the members of the Supreme Court at the time the decision was made were her own appointees to the Court. Eight of them voted to acquit her.

Of the six appointees of President Benigno Aquino, Associate Justices Bienvenido Reyes, Estela Perlas-Bernabe, and Francis Jardeleza voted in her favor. Justice Reyes was Mr. Duterte’s classmate in San Beda Law. He was the one who swore Mr. Duterte in as president. Justice Bernabe’s voting record reflects a bias towards President Duterte’s position on certain issues. She also voted in favor of the burial of Ferdinand Marcos in the Libingan ng mga Bayani, the imposition of martial law in the whole of Mindanao, and the extension of martial law in Mindanao to the end of this year.

The Supreme Court has been known to decide specific cases according to the justices’ loyalty to the appointing authority, or their prior personal or political relations. All President Duterte had to do was say he wanted Ferdinand Marcos buried in the Libingan ng mga Bayani, martial law imposed in Mindanao, and Chief Justice Sereno ousted from the Court and his appointees to the Court obliged.

The Supreme Court during Ms. Arroyo’s presidency was no different. In 2015, the Court ruled that the fragile state of Senator Juan Ponce Enrile’s health presented a compelling reason for his admission to bail. Justice Lucas Bersamin, who was named to the Supreme Court by President Arroyo, penned the decision. He proposed the granting of bail to Enrile because of the latter’s “solid reputation in his public and his private lives, his long years of public service, and history’s judgment of him.”

I saw that as Justice Bersamin’s move to set a precedent so that Ms. Arroyo, the only one who could be described similarly among the many ailing lolos and lolas (grandfathers and grandmothers) in prison at the time, would be granted bail like Senator Enrile. The election of Mr. Duterte made the use of Justice Bersamin’s scheme unnecessary.

In 2010, the Court dismissed the disqualification complaint against Mrs. Arroyo’s son Mikey, who was running as a nominee of the party list of tricycle drivers and security guards, citing that the case was outside its jurisdiction. In contrast, the Court stopped the impeachment proceedings against then Ombudsman Merceditas Guiterrez, a close friend of Mr. and Mrs. Arroyo, when impeachment is well outside the jurisdiction of the Court.

The Court also upheld Congress’ breakup of the 1st District of Camarines Sur into two to allow Mrs. Arroyo’s son Dato and Rolando Andaya, former three-term representative of the district, to run in separate districts.

The acquittal of Ms. Arroyo was criticised by other justices as enabling impunity by raising the standards of plunder too high. Justice Bersamin, who wrote the decision, introduced the principle of a main plunderer. The principle says that for a crime of plunder to be established, a main plunderer has to be identified.

Because no main plunderer was named in the P366-million PCSO intelligence fund scam, Justice Bersamin ruled that the P366 million must be evenly divided into 10, the number of the accused. As the quotient of P36 million is below the plunder threshold of P50 million, no one of the 10 accused should be charged of plunder. A number of justices dissented to the principle of main plunderer as, according to them, the law does not say anything about main plunderers.

In his column after the acquittal of Ms. Arroyo, retired Supreme Court Chief Justice Artemio Panganiban wrote that Gloria Macapagal 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.” The novel ruling penned by Justice Bersamin has become binding jurisprudence in plunder cases. It is the ruling that former Senator Jinggoy Estrada has invoked in his petition for dismissal of the charges of plunder against him.

It is said that Supreme Court justices are to interpret the law, not make the law. In the case of the acquittal of Ms. Arroyo, there were no laws to interpret. Justice Bersamin simply wrote his own opinion, which recognizably were favorable to his patron Gloria Macapagal Arroyo, and his fellow Arroyo-appointees in the Supreme Court endorsed the opinion willingly and gladly to become law of the land.

In his column last Sunday, Mr. Panganiban wrote: “Let me just say that while new justices may feel a debt of gratitude to the appointing authority during their first year in office, they know only too well that the temporaries of the moment are always overtaken by the permanencies of history.”

True, people remember Chief Justice Enrique Fernando, not as a brilliant jurist, which he was, but as a lackey of Ferdinand Marcos, a reputation enhanced by a photograph showing him holding an umbrella over the then First Lady Imelda Marcos. They remember Chief Justice Renato Corona as the only high-level Philippine official to have been impeached and convicted. One of the impeachment complaints was his consistently ruling with partiality for former President Arroyo in cases involving her administration.

Chief Justice Lucas Bersamin may go down in history in the same vein.

Oscar P. Lagman, Jr. is a retired corporate executive, business consultant, and management professor. He has been a politicized citizen since his college days in the late 1950s.