Judging Estrada

It is widely speculated that the Sandiganbayan will finally rule on the plunder case of former President Joseph Ejercito Estrada within the next few weeks. “Erap” has been in detention for the past six years.

Many are convinced the government has failed to prove its case, but nobody is betting Erap will be acquitted. Such is the nature of this case. The question, therefore, is not so much how the court will judge Estrada, as how the people will judge the court that will judge him.

The court ruling must not simply satisfy the law. It must above all satisfy the society’s public conception of justice. Justice, according to Rawls, today’s leading commentator on the subject, is the first virtue of social institutions, just as truth is the first virtue of systems of thought.

Many people believe Erap’s case is purely political; that Estrada is in jail because Mrs. Arroyo is in Malacanang; that had Estrada agreed to sign a letter of resignation and leave the country after he was driven out of office on January 20, 2001, he could be sunning himself by the sea in Sta. Barbara, the French Riviera, or Cancun.

Many will not accept anything short of an acquittal. But an acquittal completely destroys the basis of Mrs. Arroyo’s climb to power, so it is completely out of the question. A conviction is inevitable. Now, of what charges will Estrada be convicted? If he is convicted of plunder, the people will want to be satisfied on what evidence is he being convicted of that crime? If he is convicted of a lesser offense, the people will ask, why was he ever accused of a non-bailable offense if all the government could prove was a much lesser offense?

A partial acquittal will not please Estrada’s supporters at all. It will only confirm the sordid capriciousness of the charges, and justify their demand for retribution. Convicting Estrada on all the charges, on the other hand, would not only show the brutish nature of the regime but above all provoke possible violence among his supporters, and set the standard by which Mrs. Arroyo’s prosecutors could deal with her when her time of reckoning comes.

It is beginning to look like a win-win situation for Erap, and a lose-lose situation for Mrs. Arroyo. If acquitted, Erap wins; if convicted on any of the charges, he becomes a political martyr. For Mrs. Arroyo, it is like going to Iraq without an exit plan. The only possible way out, it appears, is for her to dribble the case, if that could still be legally done, and delay the sentencing until she leaves Malacanang. The court could then acquit Estrada without a political upheaval that could sweep her away to kingdom come. But this would mean delaying the judgment by two and a half years, and justice delayed is justice denied.

Mrs. Arroyo’s dilemma on how to end this case is the clearest proof that there is nothing right about the jailing of Estrada. The Sandigan justices share this dilemma. Being part of the regime that seized the presidency from Estrada, they cannot possibly return a verdict of not guilty. That would strike at the foundation of the regime and call to question their participation in it.

Thus, the question is no longer how the justices will judge Erap but rather how the people will judge the justices. The law and those who enforce and interpret the law have long become suspect. But justice requires that the law be above suspicion--- in its formulation, in its interpretation, in its enforcement and administration.

As Pope Benedict XVI points out in his celebrated exchange with the German philosopher Jurgen Habermas, the strength of the law, not the law of the stronger, must always prevail. Suspicion of the law, revolt against the law will arise, he writes, when law itself appears to be no longer the expression of a justice that is at the service of all, but rather the product of arbitrariness and arrogance of those who have the power to use the law on others for their own ends.

The use of several thousand troops, as announced, to suppress any spirited reaction to the verdict will demonstrate not the strength of the law, or the justness of the sentence, but rather the law of the stronger. It could suppress any spirited reaction, but it cannot possibly quench the outrage and spirit of rebellion that might consume the hearts of those who believe justice has once again been stepped upon, and that it cannot go on forever.

Albert Camus has said that injustice can only be allowed to go so far; that a point is reached where even the slave in chain must rebel. Mrs. Arroyo is understandably concerned that the verdict on Estrada does not provoke a military coup; we should be concerned that it does not mark the beginnings of a real uprising, or a civil war.