Rule of law and public esteem

The arrest the other day of former President Gloria Macapagal-Arroyo on charges of electoral sabotage has been hailed by those who seek to make her accountable for her past actions as the triumph of the rule of law. Her family, lawyers, and allies, on the other hand, have called her arrest a mockery of the law, drawing attention to the unusual haste in which the investigation was conducted, the charges were filed, and the arrest warrant issued. Though they see differently, both perspectives proceed from a legal standpoint. People think this is as it should be under the rule of law.

But, “rule of law” is a misnomer. The more accurate phrase would be “rule according to law.” For, law itself does not rule. Political power belongs to the political system. Law is there to regulate and check the use of this power – to make sure it is not abused. The effective exercise of this function, however, rests on the law’s ability to demonstrate its autonomy from politics, money, religion, family and other social ties. Otherwise, the legal system sheds off its legitimacy, which is the sole basis of the respect it commands.

Obviously, if political power can be abused, so can the interpretation of the law. In a democracy, the ultimate check on political abuse is the prospect of impeachment or punishment at the polls. But what is the check on the issuance of arbitrary orders by magistrates of the highest court? The answer is also impeachment, a political solution.

The reality, however, is that in a constitutional democracy, a nation seldom gets to the point of impeaching its justices. So desperate is the need to maintain the fiction of an impartial legal order, especially in young democracies, that a society will sooner turn a blind eye to the incompetence and lack of integrity in its judicial system than risk eroding the system’s credibility. That is how the rule of law comes to be equated with the rule of justices. When justices are corrupt and ignorant, this situation all too often translates into the rule of money and political favors. But, still, advocates of the rule of law would prescribe unconditional obedience to the courts rather than expose the corruption at the core.

It is this dysfunctional state of affairs that the Aquino government boldly challenged when it ignored the temporary restraining order issued by the Supreme Court allowing Arroyo to leave the country, despite the criminal cases facing her. The reasons offered by the Department of Justice were couched in legal terms: they wanted to see the actual written order itself rather than rely on media announcements by the court administrator. Later, the government said it wanted to see a document showing that the conditions for the TRO had been fully complied with. But it is clear to any observer that the government was defying the high court. This is unthinkable in societies where justices are held in higher esteem than politicians. Yet in a society that had seen how Ms Arroyo had deftly manipulated the legal system, it seemed the only sensible thing to do.

Some say that in doing so, the Aquino government risked plunging the country into a constitutional crisis. That may be so; I don’t know if there is a punishment for it that is worse than losing the presidency itself by an extra-constitutional route. I am sure P-Noy is aware of this. But it is important to note that this is still the price we are paying for having allowed unscrupulous politicians like the former president to pack the judiciary and the bureaucracy with unworthy individuals who swore to do her bidding in exchange for their appointments. All this is rooted in the reckless way we set aside the Constitution in 2001 to unseat a duly elected president who had violated public trust. Having installed her, the nation became hostage to Arroyo’s unceasing quest for political survival.

It is interesting that today Arroyo’s defenders loudly accuse the Aquino government of a gross lack of civility, decency, and compassion in the latter’s handling of the cases against the ailing former president. They were silent when the same moral values were being freely flouted during her presidency.

The public will not forget how GMA insisted on exercising the prerogative to name the new chief justice of the Supreme Court in the last weeks of her presidency, when, out of civility or courtesy, she should have left this choice to her successor who had already been elected.  They will remember how she named the palace gardener and her personal manicurist to government boards just before she stepped down from office in mindless disregard of their qualifications. Is this decent? Most of all, they have not forgotten how, after assuming the presidency in 2001 under doubtful circumstances, she caused the humiliating arrest and detention of the duly-elected president she had just deposed. Her arrogance and lack of compassion during that critical moment provoked an uprising by the urban poor who regarded the ousted Erap Estrada as their champion.

Yet, none of these brought Arroyo close to prison. Indeed, nowadays the punishment for moral lapses is no more than a loss of public esteem. And so, politicians like her are wont to think that public esteem is not as important as winning elections, wielding power, and staying out of jail. What they do not realize is that, when these battles are waged in public, in the full glare of media, nothing matters as much as public esteem. It is what gives substance to legal claims and political power. Too bad for GMA, she has none left that she can call upon now that she desperately needs it.

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