This essay is a response to a Manila Standard column written by dear friend and colleague Tony La Viña, titled “Inconvenient truth about impeachment” (Aug. 1).

Tony’s essay is actually a series where he argues that the Supreme Court (SC) decision penned by Justice Marvic Leonen is a significant expansion of judicial power into territory long reserved for politics.

In the same breath, Tony writes: “For the record, I have deep respect for the Justices — many of whom, including the ponente, I know personally. I do not doubt their integrity or independence.”

My piece however does not focus on the correctness or incorrectness of the SC decision. Tony and other great legal minds have discussed the issue thoroughly. My message is about understanding Marvic. I will call the senior associate justice by his first name because like Tony, I know him personally.

Like Tony, I understand where Marvic and the SC are coming from.

To be sure, we can disagree with Marvic. But this must be a healthy debate or disagreement, unlike what’s happening in the public sphere where strident voices are impugning Marvic’s character.

In a healthy debate, we must understand the perspective of Marvic and SC. We must have “empathy” even towards our adversaries. An example is the story of Robert McNamara on how John Kennedy averted a war with the Soviet Union and Cuba by defusing the Cuban missile crisis through empathy. Kennedy’s adviser, Tommy Thompson who knew well the Soviet Union’s head, Nikita Khrushchev, prevailed upon Kennedy to avoid using military force and thus avert a nuclear war in resolving the missile crisis. Reading Khrushchev’s mind, Thompson argued that Khrushchev’s threat was meant to display his toughness to his Soviet constituency but internally, he wanted a graceful exit in resolving the missile crisis.

Here, McNamara defines empathy as understanding the perspective of the enemy. McNamara defines empathy thus:

“We must try to put ourselves inside their skin and look at us through their eyes, just to understand the thoughts that lie behind their decisions and their actions.”

Let’s try to put ourselves inside Marvic’s skin. Let’s walk in Marvic’s shoes.

Marvic is not even an enemy. All the more he deserves empathy.

Empathy does not mean being in agreement with the other party. In the context of strategy, it is about understanding the opposite view towards making better calculations, better decisions.

Furthermore, we will be mistaken to treat Marvic, the Justice, as our ally. He is no longer a civil society advocate; he is a jurist (Tony reminds me). As jurist, he pens decisions not based on what we, the advocates, want or on what is politically correct, but based on impartiality and objectivity. This is the tradition that is embedded in the saying that “justice is blind.”

But at the same time, Marvic, a product of the University of the Philippines (UP) College of Law, is influenced by the legal realism of Oliver Wendell Holmes, Jr., the former US Supreme Court Justice. Upon entering the College of Law building, one is greeted by a quotation from Holmes inscribed on the college’s central wall: The business of a law school…is to teach law in the grand manner, and to make great lawyers.” For Marvic, law in the grand manner is about being critical, being provocative, being controversial. Indeed, he has always been provocative and controversial.

Another famous saying from Holmes is: “The life of the law has not been logic; it has been experience.”

Here, Marvic’s experience is not just about his experience of being victimized by an arbitrary impeachment attempt (which failed). Regardless of this experience, Marvic has seen how impeachment has been used to eliminate political enemies or to grab or perpetuate power by hook or by crook.

Regardless, too, of Marvic’s political leanings (which he ought to keep to himself), Marvic as the jurist wants to apply law in a grand manner for society’s betterment. He cares about good institutions. And he thinks the impeachment process has been bastardized. While impeachment is a political process, Marvic eschews impeachment characterized by arbitrariness, short-cuts, and intense partisanship. That’s the sad reality in the Philippines. And Marvic and the SC want to correct this. But as Tony pointed out, the correction might turn out to be “overboard.” Another term to describe the decision is “overcorrection.”

Nonetheless, finding the delicate balance between the legal and the political is a challenge. Specific contexts dictated by prevailing political, social and economic conditions influence the tilting of the balance to either the political or the legal. I remember what the late Chito Sta. Romana said about an independent or neutral foreign policy: It has an equilibrium shaped by geopolitical realities. But that equilibrium is not static, and the equilibrium is not exactly located at the dead center.

Some decisions Marvic has made, including the one on the impeachment of Vice-President Sara Duterte, are controversial. But let it be said that such decisions are anchored on his deep knowledge and interpretation of legal philosophy, ethics, doctrine, rules and norms.

Another perspective to understand Marvic is his grasp and use of law and economics. He, too, is a product of the UP School of Economics.

The way that impeachment is being done serves partisan politics or trapo politics. Marvic wants to change the behavior (and the incentives) of an essentially trapo Executive and Congress. He wants institutional efficiency. He sees the current practice of impeachment, which if not reformed, will result in tremendous long-term costs to Philippine institutions.

Of course, Marvic and the SC, are all fallible. So are we. No one has the monopoly of what is correct.

My appeal thus is: Have empathy. Understand where Marvic or the SC is coming from.

Marvic is definitely not going to be the caricature of being an “umbrella boy.” Neither can he be accused of making a subjective decision solely based on his own personal traumatic experience with impeachment.

And this is where Tony’s knowing Marvic well becomes constructive and invaluable.

Tony is well familiar with Marvic’s view and attitude towards law and the legal system.

I likewise have known Marvic for close to four decades. And we worked closely as board members of Legal Rights and Resource Center, wherein Marvic was our guiding light.

We are aware of Marvic’s complex persona — his genius, his scholarly mien, his being a terror teacher, his audacity, confidence and strong will, his quirks and idiosyncrasies. An appropriate tagline for Marvic is: Marvic the Maverick.

But to repeat what Tony said, Marvic is now a jurist, and he is constrained by the parameters that he has set as a jurist. We may agree or disagree with him. I, for one, support the criticism raised by others like Tony and Justice Azcuna — that the change in the rules is better applied prospectively.

And so, let’s not cancel Marvic.

Filomeno S. Sta. Ana III coordinates the Action for Economic Reforms.

www.aer.ph