One of the most difficult problems we face today as a modernizing society is how to strengthen the division of labor among our various institutions. The traditional way is to assign to key institutions the power to speak for and trump the others. The modern way is to keep these institutions apart so they do not interfere in each other’s work. Every day our society grapples with this great challenge.
Controversial issues that have recently come our way mirror the crossroads in which we find our nation today. They would not appear so formidable if we kept our eyes focused on the road to modernity.
The election of detained Navy officer Antonio Trillanes IV to the Senate in 2007 is a good example. This is an instance where the political system creates a problem for the legal system. The case poses two questions. The first is: Does the election of Trillanes erase the legal charges against him? The answer, clearly, is “No.” The venue for settling legal disputes is a court of law, not the voting precinct. The second question is: Should he be allowed to exercise his duties as senator? The answer definitely is “Yes.” Trillanes was permitted to file his candidacy. He won and promptly took his oath of office. So long as he has not been convicted, he has to be allowed to do his work as senator. How this may be done within the bounds of the law is for the Courts, not the Senate, to decide.
Sometimes, it is the legal system that creates problems for the political system. A perfect example is the trial for plunder of the former president, Joseph “Erap” Estrada. Many fear that no matter what the Sandiganbayan’s verdict is, it will have political consequences. If he is found innocent, they say, his ouster in 2001 loses its validity, and he may well use this as a reason to reclaim the presidency. If he is pronounced guilty, that would be as good as declaring the legitimacy of Gloria Macapagal Arroyo finally resolved.
I agree that the Sandiganbayan’s ruling either way will probably have an impact on the nation’s politics. But I can’t see why the Sandiganbayan should allow itself to be ruled by political imperatives. It would be irrational to demand of the courts that their decisions be at all times politically acceptable. A requirement like this would cripple the judicial system.
If Erap is declared innocent, he should be freed. Whether he should be reinstated after that is not a legal question but a political one. The Supreme Court has long ruled that the former president relinquished the presidency in 2001 by an act of “constructive resignation.” We may not agree with the SC’s decision, but that is how the legal system saw it. From a legal standpoint, Erap’s exit from the presidency is a closed issue. His possible vindication in the plunder case cannot re-open it. He may indeed decide to use the Sandiganbayan verdict as a platform to regain the presidency. But that would be a political act seeking resolution in the political terrain, not a legal one.
Similarly, a guilty verdict for Erap cannot be tantamount to a resolution of the legitimacy issue against Ms Arroyo. The legality of her succession to the presidency is not in question. It is her legitimacy that is being challenged. Legality is to law as legitimacy is to politics. The legitimacy challenge arises not only from the dubious circumstances (e.g., the part played by the military in plotting Erap’s ouster) surrounding Ms Arroyo’s assumption of the presidency in 2001. It also has to do with her involvement in the manipulation of the 2004 presidential election, as shown by the Hello Garci tapes — which has made her hold on the presidency politically tenuous.
The only modern course for the Sandiganbayan to take on the Erap case is to promulgate a decision based solely on a clear interpretation of the law and a fair appreciation of the evidence. If it gives a good account of how it arrived at its decision, the court cannot be faulted for the political consequences it may trigger in the process.
The issues stemming from the confusion of functions appear not only in the intersection between law and politics. They are perhaps even more visible in the boundary between religion and politics. Here the problems are recurrent. As the recognized guardians of a culture’s moral code, religious institutions are wont to poke their noses into nearly every sphere of social life. Modernity seeks to curtail this role. But the process of differentiation is slow and painful in societies like ours. What is legal, legitimate, or economically rational is not always regarded as moral. In pre-modern societies, religious institutions would demand that their moral code take precedence over others. In the process, they prevent the other institutional spheres of society from evolving their own normative codes.
Interestingly, Pope Benedict XVI, often reviled as a conservative, takes a very modern view of the place of the Church in the secular world. In his recent visit to Latin America, he told the Conference of Bishops: “The political task is not the immediate competence of the Church. Respect for healthy secularity, including the pluralism of political opinions, is essential in the authentic Christian tradition. If the Church were to start transforming herself into a directly political subject, she would do less, not more, for the poor and for justice because she would lose her independence and her moral authority, identifying herself with a single political path and with debatable partisan positions….To form consciences, to be the advocate of justice and truth, to educate in individual and political virtues: that is the fundamental vocation of the Church in this area.”
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