Sunday, September 9, 2007

Don’t worry about a coup, guard against a civil war

The justices of the Sandiganbayan form part of the structure that upheld the legitimacy of the regime that grabbed power from President Joseph Ejercito Estrada and jailed him on charges of plunder in 2001. They cannot possibly contradict themselves now and dismantle the basis of Mrs. Gloria Macapagal Arroyo’s presidency by acquitting Estrada of the charges for which he has been detained these last six years.

They are expected to convict Estrada, and very few doubt they will do so. What penalty they will impose is still an open question, but in what direction they will rule is no longer one. How the people will judge the Sandigan and the Arroyo administration is now the more important question.

Technically, the Sandigan will be the one handing down the judgment. But as far as the people are concerned, it will be President Arroyo herself who will be pronouncing the sentence. Most 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.

The Sandigan will do everything to show that its ruling is in accordance with law. That will not be enough. The ruling must above all satisfy what John Rawls calls the society’s “public conception of justice.” There must be a consensus that the judgment is just, and that will most certainly be difficult to achieve.

Not everyone may grant Estrada’s innocence. But even those who do not believe he is innocent know that he is being persecuted by people who have committed and continue to commit infinitely worse crimes, for which they have not even been charged in court. On the eve of the verdict on Estrada, the nation is reeling from a multi-billion peso scandal in which at least ten billion pesos are expected to go to some government officials in illegal payoff.

In the Estrada case, not many understand why the former provincial governor who had confessed to having diverted One Hundred Thirty Million Pesos from the provincial treasury of Ilocos Sur was given immunity from prosecution just because he was willing to allege, without any credible corroborating evidence, that he delivered the same amount to Estrada. In the normal operation of the law, the least guilty party may be offered immunity in order to act as state witness and go after the most guilty, not the other way round.

Of what charges then will Estrada be convicted? If plunder, the people will want to know on what evidence he is being convicted. If a lesser offense, the people will want to know why was he ever accused of a non-bailable offense if all the government could prove was a much lesser crime?

A partial acquittal will only confirm the sordid capriciousness of the charges. Convicting Estrada on all the charges, on the other hand, would not only show the brutish nature of the regime but above all provoke a spirited reaction among his supporters. It will also set the standard by which future prosecutors could deal with Mrs. Arroyo when her time of reckoning comes.

Grim as it may look, it could be 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, however, it is like going to Iraq without an exit plan.

Mrs. Arroyo’s dilemma on how to end this case without creating a firestorm is the clearest proof that there is nothing right about the jailing of Estrada. Thus, the question is no longer how the justices will judge Erap but rather how the people will judge the justices and the Arroyo administration. 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.

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.

Injustice can only be allowed to go so far; a point is reached, Albert Camus has long warned, when even the slave in chain will rebel. Mrs. Arroyo is understandably concerned that the verdict on Estrada does not provoke a military coup; we should be more concerned that it does not provoke a mass revolt or a civil war.

Sunday, September 2, 2007

Marcos honor or Marcos wealth?

One of the saddest stories we read today is about Rep. Ferdinand “Bongbong” Marcos, Jr going to court to “recover” from Mr. Lucio Tan, the tobacco, beer, hotel and airline tycoon, what the congressman says are corporate assets that belonged to his late father.

Particularly painful is the fact that former Secretary of Justice Estelito Mendoza, the late former president’s ablest and most trusted lawyer, is the one telling Bongbong, on behalf of Mr. Tan, that he has no valid claim.

There appears to be a similar effort to “recover” from Gilberto Duavit, a former Malacanang official, purported Marcos shares in GMA Channel 7, which used to be owned by Bob Stewart, an American citizen, before martial law closed it down. Duavit became its principal “owner” when it finally reopened; but it was never adequately reported how Stewart lost it to Duavit.

There could be a few more such cases.

Why do we find these sad? Because not everyone accepts the caricature of Marcos drawn by his political enemies, yet these stories tend to confirm their claim that he spent his presidency piling up so much hidden wealth, which he put in the hands of his cronies.

For as long as Marcos lived, he vehemently denied such charges. He broke with the Lopezes while Fernando Lopez was his Vice President after the Lopez-owned Manila Chronicle started running a daily editorial cartoon which satirically suggested that he owned almost everything in the Philippines. In 1973, Lopez’s position as Vice President was formally deleted from the Constitution.

One expected the Marcos heirs to be particularly sensitive to this issue. But in publicizing their claim to hidden assets supposedly owned by Marcos, they unwittingly relegated his reputation to the background. Of course, it remains to be shown in court whether the wealth in question was legally acquired or ill-gotten, but history rarely relies on the courts when judging eminent men. This is what truly saddens.

In 1969, I joined the Marcos Cabinet at the ripe old age of 29. For ten years, I served Marcos at close range. His brilliant mind and extraordinary political will captured my imagination, as they did most of the nation’s. He bested all his adversaries in their own game, and for all the attacks that he took, he stood taller than those who tried to promote their own venal selves by depicting him as evil.

Even Marcos’s old ideological enemies on the Left grudgingly concede it now. A random survey conducted not too long ago among professors and students in the hotbed of anti-Marcos activism before and during martial law rated Marcos as the president who had done the most for the country, bar none. He had a clear and unclouded view of the national purpose, and he fought for it when dealing with friend and foe alike. His resolute defense of the national interest brought him in conflict with the strongest forces, and finally brought him down. But he did not fall because he had become hopelessly corrupt; he became corrupt because he fell.

Once he fell, everything was done to damn him as evil. On their first day, rapacious elements of the new regime carted off valuable jewellery, priceless paintings, works of art, monetary instruments and mountains of cash as spoils of power, and simply assigned their grand theft to the fallen “kleptocrat.” Large vats of “demonstration” caviar and countless invoices and receipts from the most expensive shopping centers abroad mysteriously materialized amid the debris inside the sacked presidential palace, oddly untouched by the surging mob, for the exclusive delectation of the foreign press.

Imelda’s shoes were then put on display in a final condemnation of her profligacy, unmindful of the nameless other women in the rich enclaves of Metro Manila who probably owned as many pairs. And then the deluge of hurriedly written books, by foreigners who knew nothing or next to nothing about Marcos or the Philippines, all in an attempt to inscribe for posterity the reasons why Marcos had to be taken out.

Twenty-one years after the event, some serious scholars seem finally prepared to do an honest reassessment of Marcos, in light of what has since happened to the country, to Southeast Asia, to China and the world. This is significant progress, even though the last of his enemies will still not allow his remains to be buried in the ground where the law does not allow a sitting president’s dead dog to have precedence over a fallen president.

The Marcos heirs should be the first ones to see this. They should be the first ones to avoid creating a distraction that could prevent this first sliver of light from breaking through the thick fog of political prejudice and hate.