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.