“This is something that I will tell you — I wanted to delay the vote because I did not like to take part in it, because I did not like the public like the media speculating that I cooked or orchestrated the result. I always told you, rigging in the Supreme Court is not possible because there are so many involved,” retiring Chief Justice Lucas Bersamin told reporters after the Supreme Court, sitting as the Presidential Electoral Tribunal (PET), deferred once again the voting on whether to dismiss Mr. Ferdinand Marcos, Jr.’s electoral protest or to proceed with it.
I infer from that statement that the decision has been made and that it is controversial because it goes against PET Rule 65 that says if there is no substantial recovery in the pilot provinces, the protest may forthwith be dismissed without further consideration of the other provinces mentioned in the protest. Rumors are that the PET has decided to proceed to the 3rd cause of action of Mr. Marcos’ protest despite the much bruited information that no substantial recovery was made by him.
The voting had been deferred three times before that last en banc session of the Court/Tribunal presided over by Chief Justice Bersamin, leading civil society groups to suspect him of orchestrating the associate justices of the Court to a decision favorable to Mr. Marcos, a suspicion he considers unfair.
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, and Mr. Bersamin had long been battling a perception of subservience to the presidents responsible for his rise in the judiciary. He was a trial court judge in Quezon City in 2003 when President Gloria Macapagal Arroyo elevated him to the Court of Appeals. She appointed him to the Supreme Court in 2009.
Justice Bersamin as well as the other associate justices appointed to the Court by President Arroyo voted to:
• uphold President 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 President Arroyo’s son Dato to run in a district where there was no formidable opponent;
• dismiss the disqualification complaint against President 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 Romulo Neri’s invocation of executive privilege, thereby preventing the Senate from extracting from him Arroyo’s involvement in the NBN-ZTE bribery case.
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.” Consequently, the Court ruled that the fragile state of Senator Juan Ponce Enrile’s health justified his admission to bail.
Associate Justice Marvic Leonen dissented, saying the decision would “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.” I saw the ruling as Justice Bersamin’s scheme of providing justification for the grant of bail to Mrs. Arroyo who was then under hospital arrest for plunder and electoral fraud. She was confined in a hospital supposedly because of a life-threatening spinal disorder. All photos of her in the hospital showed her wearing a neck brace and in a wheelchair.
The ruling was rendered inutile in July 2016 when Mrs. Arroyo was set free by the Court without the Bersamin doctrine being invoked. Mrs. Arroyo was acquitted 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 ruling was written by Justice Bersamin and is now jurisprudence in plunder cases.
It is said that Supreme Court justices are to interpret the law, not make the law. In the cases of the granting of bail to Mr. Enrile and in the acquittal of Mrs. Arroyo, there were no laws to interpret. Justice Lucas Bersamin simply wrote his own opinions, which recognizably were favorable to his patron Mrs. Gloria Macapagal Arroyo, and his complaisant colleagues in the Supreme Court endorsed those opinions willingly and gladly to become laws of this afflicted land.
It will be recalled that during the 2016 presidential campaign, candidate Duterte said he would support the call for Arroyo’s release from hospital arrest. Just two weeks after Mr. Duterte was sworn in as president, Arroyo walked free, sans neck brace and wheelchair. After all, their patron is now an ally of the President.
In a function honoring her, Mrs. Arroyo, addressing President Duterte, said: “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.
Mr. Bersamin’s also showed a tendency to vote in favor of President Rodrigo Duterte’s policies and actions. He voted to:
• allow the burial of former president Ferdinand Marcos in the Libingan ng mga Bayani, in compliance with President Duterte’s wish;
• uphold the arrest of Senator Leila de Lima, rabid critic of President Duterte, over alleged involvement in the illegal drug trade;
• force Chief Justice Maria Lourdes Sereno, who had blocked President Duterte’s orders to judges, to go on leave;
• uphold President 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.
President Duterte named Justice Bersamin chief justice on Nov. 26, 2018. It is the time-honored tradition to name the chief justice of the Supreme Court from the most senior among the associate justices. But Justice Bersamin was only the third most senior justice among the four nominees for the top post of the high tribunal. Justice Carpio was senior to him by eight years and Justice Peralta by a couple of months. In the case of Justice Bersamin, the President defined seniority in terms of service in the entire judiciary instead of service in the Supreme Court. Justice Bersamin had served in the judiciary the longest, having been a judge since 1986.
A week before his retirement on Oct. 18, Chief Justice Bersamin bade goodbye to the associate justices, saying “I have always endeavored to be true to my oath of office and have always discharged my duties and responsibilities in the best lights that God has endowed me with.” Addressing his long-time colleague in the Supreme Court, Justice Antonio Carpio, he said, “You were the epitome of professionalism in the court. You have left an indelible mark about commitment and fealty to the rule of law. It is hard for me to imagine how the deliberations of the court will be like after your retirement. Both of us will be gone.”
Indeed it will be hard to imagine how the deliberations in the Supreme Court will be like when the archetype of a jurist subservient to the powers that be and the epitome of a justice committed to the rule of law are gone.
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.
