Poor Gloria

By a vote of 10-5, the Supreme Court struck down President Benigno S. Aquino III’s Executive Order No. 1 creating the Truth Commission as violative of the constitutional right to equal protection. The high court bars the commission from investigating unresolved high-profile cases of wrongdoing committed under the previous administration.  To do so, says the Court in effect, would be to discriminate against former President Gloria Macapagal Arroyo. Shakespeare was right: “The devil can cite Scripture for his purpose.”

It is a supreme irony that a political figure like Ms Arroyo, who was the country’s most powerful politician for nine years, and who today, as a member of Congress, remains the most influential leader of the opposition, should be invoking a constitutional right that is historically associated with the powerless, the poor, the excluded, and the oppressed.  She demands equal protection even as she retains the shrewdest lawyers to defend her. She wants the allegations against her to be heard in the same venues that hear everybody else’s cases — tribunals she had packed with her own dependable allies.

That quest for equal treatment by one of the country’s wealthiest and most powerful citizens is what the Supreme Court has just granted.  As an ordinary citizen, I am dying to read the legal casuistry that the justices will be propounding to justify this brazen misuse of a vital constitutional right.  I believe one has to be spitefully cynical to praise this decision, the way Rep. Edcel Lagman does, as the triumph of the rule of law.

This is a complex issue, and, not being a lawyer, my interest in it is primarily sociological.  The “equal protection clause” in our Constitution is taken from the United States Constitution, specifically from the 14th Amendment.  This clause was meant to protect all citizens against governmental laws and actions that discriminate on the basis of race, skin color, social class, religion, national origin, etc.  More recently, it has been expanded to include protection against discrimination based on sexual orientation.

The bedrock of this clause is the principle of inclusiveness.  What it is basically saying is that differences as those mentioned above should have no relevance in the eyes of government – except in the case of affirmative programs aimed at lessening these differences. Only those classifications or distinctions that can be grounded on reason may be taken into account.  For example, admission into and graduation from the university must be based solely on academic achievement — not on religion, gender, race, or social class, etc.  Another term for this principle is “selective indifference.”

Curiously, despite the announcement, the complete decision has not yet been published by the Court. Apart from the equal protection clause, we don’t know what other grounds were relied upon by the court to declare the truth commission unconstitutional. Which particular provision of the executive order precisely violates the equal protection clause?  Is it the creation of a special body armed with functions that institutionally belong to existing agencies like the Ombudsman and the Dept. of Justice?  Is it the singling out of offenses committed during the Arroyo administration? Is it the explicit identification of Ms Arroyo as a possible respondent in these cases?  Or is it all of these? In short, where lies the defect of EO 1?

It is difficult to imagine that the justices could be objecting to the creation of a presidential body to investigate an event, an issue, a problem, or a case.  Past presidents have done this before. Congress regularly conducts investigations (“in aid of legislation”) of wrongdoings, including those that have already been brought to the courts.  Moreover, the truth commission is not invested with the power of prosecution.  Its principal mandate is to collect facts.

If the objection is to the selective focus on offenses committed under the past administration, does affiliation with the previous regime fall under the scope of those forms of differentiation prohibited by the Constitution?  If, let us say, the office of the President created a special task force to investigate loans that were contracted and big ticket projects that were approved by the preceding administration, would this fall under the category of prohibited classifications?  Again, I do not think anyone can seek shelter under the Constitution’s equal protection clause to shield oneself from such investigations.

What then is left is the possibility of discrimination against Gloria Macapagal-Arroyo on the basis of her person.  Is she being investigated because of her gender, ethnicity, skin color, religion, political ideology, or social class? Or is she being investigated because she is suspected of having used her enormous presidential powers to break the law, to conceal wrongdoing, and to block all previous attempts to bring out the truth behind unresolved cases like the “Hello Garci” tapes, the fertilizer scam, the NBNZTE deal, etc?  The little I know about constitutional rights tells me that these are not meant to provide protection to anyone against investigation for possible involvement in a crime.

Poor Ms Arroyo has to show she is being explicitly singled out for who she is rather than what she has done.  By the same token, the distinguished members of the Supreme Court have to convince us that their decisions are based on an objective appreciation of the facts and the law, rather than on their loyalty to the person who appointed them.