Caught in the crossfire

The “hospital arrest” of former president Arroyo for the non-bailable offense of electoral sabotage filed before the Regional Trial Court (RTC) of Pasay City, Branch 112 is indeed a welcome development. It has somehow eased the tension building-up between the Executive and Judicial Branch of our government due to the controversy surrounding Arroyo’s attempt to travel and seek treatment of her ailment abroad.

More importantly this latest development has confirmed the glaring fact repeatedly pointed out before, that the current very damaging confrontation between the Supreme Court (SC) and the PNoy government, particularly his Department of Justice (DOJ) Secretary Leila De Lima could have been averted if the latter has simply done her job more expeditiously and without much fanfare. The charges could have been filed earlier when Arroyo’s sickness has not supposedly deteriorated yet to such an extent as to be used as an excuse for going abroad; and before Arroyo got wind of impending moves against her through De Lima’s “telegraphing of punches” in several press conferences.

From the time De Lima announced on August 15, 2011 the alleged electoral frauds committed in the 2007 election by Arroyo and others, when the joint Fact Finding Committee was just created and has not yet started with its job of determining the facts, a series of behind the scenes maneuvers have been taken by the Government and the Arroyo lawyers showing that the “process” has not gone through the normal and ordinary course.

Per De Lima’s directive, the FFC must have submitted its report to the joint Preliminary Investigation Committee (PIC) on October 21, 2011. But it was only on November 14, 2011, after the Arroyo lawyers have already filed with the Supreme Court (SC) a Petition for the issuance of a Temporary Restraining Order (TRO) against the WLO previously issued by De Lima, when the PIC completed and submitted its report to the Comelec recommending the filing of charges of electoral sabotage against Arroyo and others. Then after the SC issued the TRO on November 15, 2011, the Comelec by a vote of 5-2 already recommended the filing of the charges in the Regional Trial Court of Pasay City on November 17, 2011.

Unfortunately in these series of moves and countermoves having all the earmarks of a political game of chess, the SC has been caught in the crossfire and has been badly damaged even as it merely performed its judicial function according to the Constitution. When it issued the TRO by a vote of 8-5, it was immediately assailed as biased in favor of Arroyo simply because the eight justices who voted for the TRO were Arroyo appointees even if said TRO itself is unquestionably based on constitutional ground and issued pursuant to the rules. The SC issuance of the TRO has been assailed not because it is invalid but because it is pro Arroyo and anti-government.

Then when the TRO, which was “immediately effective until further orders”, was being implemented after the supposed compliance with the conditions for its issuance, Justice Secretary De Lima refused to follow it and instead gave instructions to the people of the Immigration Bureau at the airport to honor the WLO she issued and not the TRO issued by the SC. This open defiance of a valid and lawful order of another co-equal branch of government is indeed unprecedented and dangerous as it undermines the more superior authority of the Judicial Branch represented by the SC to interpret and enforce the basic law of the land. Defying a lawful SC order merely because one disagrees with it may really be a popular political move but it is definitely subversive of the principles on which a democratic country like ours is founded.

Hence the SC cannot be faulted because of its recent moves of swiftly calling for an en banc session last Friday to immediately tackle the PNoy administration’s Motion for Reconsideration of the TRO and then deny it. The SC is also justified in ordering De Lima to “show cause” why she should not be cited for contempt because of her open defiance of the TRO. While the TRO may have become moot and academic as far as the issue of Arroyo’s right to travel is concerned, it still has some binding effects as far as the issue of whether or not De Lima is guilty of contempt of court is concerned. Citing De Lima for contempt of court may further boost her political stock but this should not deter the SC from doing so if called for. The issue here is legal, not political.

Furthermore, the question of whether or not the WLO issued by De Lima pursuant to the DOJ’s Administrative Circular 41 is constitutional must still be resolved by the SC with finality so that jurisprudence can be established for future cases that may arise where the WLO may again be issued. The arrest of Arroyo may have eased the tension between the Executive and Judicial Branch, but this tension will not be completely defused until Arroyo’s petition is resolved on the merits.

To be sure, the SC must be firm and unwavering in all these steps it has taken so far. It is the best way to draw the bold lines separating the major branches of government, to insulate it from politics and to preserve its independence, integrity and dignity as the guardian of the rule of law.

On the other hand PNoy also deserves to be lauded in his efforts to clean the government of fraudulent acts and corrupt practices by first of all prosecuting and bringing to justice officials of the past Administration headed by Arroyo. But he should see to it that the style and manner of carrying out this laudable purpose should not lead us again into the brink of crisis we are now going through.