Winning Against Enemies of the Rule of Law

It is time to bring this war against the law to its end, before everything ends.

I greet the appointment of my fellow Ateneo Law School professor Alexander Gesmundo as the newest Chief Justice with cautious but real optimism. He inherits his predecessor’s twilight initiative to investigate the terrain of this brutish war against law and justice. It is under his watch that the community will air its grievances and its fears, that the Court Administrator will prepare the report on it all, that the Supreme Court will enact the necessary actions to take Law and its instruments away from those who wage war on it, especially by using its instruments. 

He may be President Duterte’s appointee, both to the Associate chair and to the present one, and I have disagreed with some of his high-profile votes, but I and many others also know the man. Law may not be war, but she must also dance with politics as well as with ordinary life’s compromises, and dance adroitly. Chief Justice Gesmundo has the mind for the task. His students know him not only as well-versed in the law, but also in legal developments here and abroad, and I encourage him to pay heed to his global peers’ troubles to better inform how the Supreme Court will face her present troubles. Before his appointment to the Sandiganbayan in 2005, he served as a trial lawyer for, and later Assistant Solicitor General in the Office of the Solicitor General, so he is no stranger to the trial court’s duels from both sides of the bar. He will need that familiarity in the long years to come, as courtrooms literally become extensions of battlefields both of war’s political struggle, and the war on Law. 

I observe the Philippine Supreme Court to be a structurally conservative institution, unwilling to stretch its constitutional boundaries, admittedly for all the right reasons. We lawyers are sworn to uphold the Constitution, even when others, with grave abuse of discretion, try to twist it to unrecognizable forms, to give a veneer of legality to the illegal. Even one of the most progressive minds of the Court, Associate Justice Marvic Leonen is bound by that loyalty, and we can see that in his line of questioning just as we can see it in CJ Gesmundo’s in previous cases. Yet even within the Constitution’s restraints, there is room for philosophical debates on how far the Judiciary can go, and the Court is not without its existing powers. Strict constructionist it may be, but the Court can leverage its constitutionalist tendencies for Rules innovations such as the writs of amparo (adapted from Latin America) and kalikasan (ours by source). Again, an experience shaped at home and open to those abroad will be to the Chief Justice’s advantage. 

Gesmundo and his Bench peers will not be alone in this challenge. No judge alone saves the court, but he will have to look on the other side of the bar for him to do his duty. He will not be left wanting. Following Bloody Sunday, the community of lawyers, law professors, and law deans penned a letter to the Supreme Court calling for reforms in the judicial determination of search warrants, to make it an actual determination and not just a rote ritual easily exploited. I’ve signed on to this letter as well. 

We call for a review and recall of the authority of the Executive Judges to issue “remote” warrants enforceable anywhere; limitations to wholesale warrant applications, automatic Supreme Court review of warrants enforced with death as a result, and otherwise emphasizing statutory and case law that warrants must be applied for and executed reasonably: reasonable cause, reasonable means and times. That the search warrant, from start to finish, is executed with the highest of Reason, not arbitrarily, not mechanistically, and certainly not abusively.  

In the Court of Appeals’ denial of the National Union of People’s Lawyers and Karapatan’s earlier application for a writ of amparo was a disappointing failure to hear the beating of the war drums. The entire Judiciary, the entire legal system, and its newest Chief Justice cannot, must not ignore the sound of the drums now. But we do not march to the beat of those drums. We march for Law, for the end of this war on Law. And how Alexander Gesmundo and the Court he leads will respond, creatively even as he must uphold the system he swore to, to bring this war to its end will be his legacy to that system.

It started with the Drug War Deaths. It escalates with Bloody Sunday and the red-tagging. What some fail to see, or refuse to say, is that history has shown that when you wage a war on Law, when you kill all the lawyers, it all ends in utter darkness. 

It is time to bring this war against the law to its end before everything ends

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