Lawfare

Intensifying partisanship and deepening polarization will inevitably spill over into all our institutions of governance. This includes the judiciary.

We all saw how the ombudsman moved with unusual swiftness in charging Sen. Rodante Marcoleta and three others with plunder. On receipt of the rather bizarre charges, the courts had no recourse but to jail the accused and deprive them the right to bail as prescribed by a rather imperfect law.

The detention of Marcoleta et al effectively silenced the group. Until they were arrested for plunder for donations made to an electoral campaign, Marcoleta and Mike Defensor specifically were actively digging into allegations money looted from flood control projects flowed to a number of highly placed politicians. Some believe silencing the duo is the point of it all.

The ombudsman, likewise, announced that an investigation is currently underway on Sen. Loren Legarda and her son Rep. Leandro Leviste over legislation that benefitted the son’s solar energy investments. Not coincidentally, the NBI declares it uncovered a plot allegedly financed by Leviste to lure Executive Secretary Ralph Recto into an embarrassing predicament. Leviste denies the accusation.

More recently, the Department of Justice filed charges of grave threats against the sitting Vice President. The charges involve the same stressful incident for which the Vice President was impeached by the House. The impeachment is currently being tried in the Senate, with the public exhibiting increasing disinterest in the proceedings. Some see the filing of grave threat charges in regular court as a back-up plan in case the prosecution in the Senate trial fail to win conviction.

The Vice President has asked the court to quash the case. Her camp obviously sees the filing of such a case as an attempt to subject the second highest official of the land to the humiliation of appearing before a court to post bail on a case of doubtful merit.

The motive for filing the case may be pure harassment. But the court is obliged to accept the case, go through the motions of assessing its merits and, in all possibility, proceed to trial.

More than the other cases that might be described as “lawfare” by a ruling faction determined to silence its critics, the charge brought against the Vice President for utterances made during a moment of extreme emotional distress could be politically explosive. Beyond examining the merits of the case, the public will be paying intense attention to the behavior of the judiciary.

The judge presiding in this case will be subjected to great scrutiny by partisans of either side. Their leanings will be ruthlessly examined. Anything the judge says will be speculated upon. Such is the way things go in this age of social media – and especially in a country where well-endowed troll armies try to shape public opinion.

Cases such as this one will test the mettle of our judiciary. It cannot avoided cases – no matter how unseemly – that land on its lap. The best it could do is to act with impeccable neutrality and decide on the basis of its best lights.

The corruption scandal and all the accumulated incompetence tarred our institutions. Both the executive and legislative branches of our tripartite government have lost the public’s trust. We see that in the terrible numbers all the reputable opinion polls deliver.

Our judiciary has somehow weathered the collapse in public confidence in the two other branches of government. So far.

Despite all the constant whispers of corruption committed by what Joseph Estrada so famously called “hoodlums in robes,” trust in the judiciary somehow subsists. In a season where there is general distrust of government, the judiciary somehow commands some respect. This condition, however, is tenuous.

The expectation is for the courts to act with utmost prudence and propriety to keep the public’s trust. In this particularly challenged time, when everything else seems to fail, the courts offer all of us some hope that justice somehow prevails. Hopefully the judiciary does not break under great political pressure.

The Supreme Court, to be sure, is feeling the challenge of this age where our politics threatens to go completely awry. The bench found the courage to declare the first impeachment effort against the VP to be unconstitutional. That first impeachment attempt was barbaric.

The Court was courageous when it found the transfer of PhilHealth funds unconstitutional. By command of the Court, the funds where returned to health care.

A parallel case, where funds of the Philippine Deposit Insurance Corporation (PDIC), which belongs to depositors, were commandeered by the government, may deserve the Court’s scrutiny. The Court is asking inconvenient questions about Congress’ actions on “insertions” and “unprogrammed funds” that could lead to rulings about improper budgeting. Probable rulings on this matter could serve to reduce the space for looting.

The irresponsible behavior of both the executive and legislative branches of government opened the nation to the monumental betrayal that happened. To be sure, there is need to correct procedures and practices that led all of us to chronic failure in governance.

It might be too much to ask the judiciary to save us from failed governance. Some of what needs to be done is beyond its own institutional means to accomplish.

But in every case where combatants choose to use our courts as arenas for political scheming, we hope the sense of fairness never fails.