Can we send an ex-president to jail?

Everything we know about the way our institutions work points to the near impossibility of doing that.  It is true that we can summon enough political will to depose a sitting president by peaceful extraconstitutional means.  And we have proven this not once but twice. Yet nothing in our experience gives us reason to hope that we can ever punish the powerful who are corrupt by simply allowing existing judicial processes to take their course.

The principal obstacle to truth and justice in the prosecution of the powerful does not come from their mass supporters but from their well-paid elite lawyers who specialize in finding loopholes by which to delay the proceedings and exhaust the patience of judges and prosecutors.   Cases fail to take off for a variety of reasons.  With time, the public mood changes, the sense of urgency that attended the filing of the case dissipates, documents are lost or corrupted, witnesses vanish without a trace, and the memory of the crime fades. Soon the cry for justice is replaced by a call for healing.

That was what happened to the cases against the Marcoses and their cronies.  More than 30 cases were filed against them at the Sandiganbayan in 1986.  None of these prospered far enough to send anyone to jail.  In contrast, all the human rights cases brought against Marcos before U.S. courts were resolved with dispatch in favor of the complainants.

We failed to indict Marcos before a Filipino court because he had fled abroad and the shaky government of President Aquino was afraid to bring him back to face trial.  But even after Marcos’s death, our prosecutors could not mount a sustained effort to prove the cases against the Marcoses and their cronies. The government kept changing its lawyers, while the Marcos family retained only one, Estelito Mendoza, who knew the cases like the back of his hand.  In the meantime, the official attitude toward the Marcos hidden wealth shifted from outright confiscation to a negotiated sharing with the Marcos heirs.  In such a climate, the question of guilt became irrelevant.

Today justice remains as elusive in the cases against the deposed president, Joseph Ejercito Estrada. In the aborted impeachment trial of Estrada we saw a preview of what lawyers can do with “technicalities.” Through endless debate, they can prevent any case from advancing.  But we also saw what the wisdom and tenacity of a presiding judge can do to ensure a fair and orderly trial.  An intelligent and confident judge like Chief Justice Hilario Davide, Jr. can patiently follow all the basic points before they are completely lost in the tedious exchange of arguments, and rule on every issue without equivocation.   The public would not have seen any of this if the broadcast media were not allowed full access to the proceedings. People Power II would have been impossible if the public had not been given a chance to form its own judgment of what was right, what was fair, and what was reasonable.

It is not the specter of Erap supporters going on a rampage to prevent the arrest of their idol that haunts our nation at present.  It is the corrosive effect of delay, institutional inertia, and official vacillation that does.  The loyalists will always be there, taunting the police to take them seriously, but their numbers will never be huge enough to divide the country.  We saw them during Marcos’s time; they will be resurrected in Erap’s time.  But now that Erap is no longer president, it is doubtful if Brother Mike Velarde’s El Shaddai flock or Bishop Erano Manalo’s Iglesia ni Cristo followers can ever be mobilized, as they were last year, to serve as people power props for Erap.

What about the military?  A recalcitrant military added to the nation’s problems after the ouster of Marcos.  The Aquino government could not move with any decisiveness on any major issue for fear of provoking another coup.  Today the situation in the military is far more reassuring, thanks to the professionalism of its top leadership. At the height of the impeachment crisis, Gen. Ping Lacson would have been the only one who had the motive and the capability to mount a military action to save Erap or to replace him.  But he too is now fighting for his own survival.  If he wins as senator in the coming May election, he may be Erap’s presidential candidate for 2004.

Nothing can bring Estrada closer to jail and affirm the correctness of People Power II more than a determined and transparent effort to prove the cases against him in court.  The trial must be continuous and must allow full coverage by the mass media.  The pleasure of seeing him arrested must neither dictate the pace of the proceedings nor should it be subsumed under the pragmatic necessities of an electoral campaign.  The Sandiganbayan must perform its work fairly and efficiently, and in full view of a vigilant public. The media must do their work and enrich the public’s understanding of the crimes for which an ex-president is being tried.

If we fail once more to agree on what is true and to make justice work, we should in the future not expect to send any person to jail for corruption.  We are a demoralized and cynical people.  We have learned to live tentatively with flawed institutions.  Only the political courage of generations has saved us from our dysfunctional institutions.  Let that courage shine through once more in the trial of a corrupt and morally unfit leader.


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