Freedom in chains

Freedom in chains
First posted 03:04am (Mla time) Mar 12, 2006
By Isagani Cruz
Inquirer

MY article last Sunday discussed Proclamation No. 1017 as if it were still in effect although I had written about it in the past tense the day before. I had e-mailed my articles for last weekend the other Thursday but had revised them when GMA lifted her edict on March 3. Nevertheless, it was my original unedited version and not its revision that was published on March 5 as a result of some mix-up.

Except for the tense lapse, the views I expressed there in defense of freedom of expression remain unchanged. The eloquent statements I quoted are eternal verities that did not become irrelevant because of the formal withdrawal of Proclamation No. 1017. With or without that questionable decree, freedom of expression continues to be the paramount safeguard of liberty in democratic societies.

Neither the issuance nor the subsequent withdrawal of Proclamation No. 1017 has diminished freedom of expression as "the instrument and the guaranty and the bright consummate flower of all liberty."

I repeat Justice Holmes' opinion that this freedom exists not so much for the thought that agrees with us as for the thought that we abhor. Otherwise, there would be no need at all for such a toadying license. If all it would guarantee was to sing panegyrics in favor of those in power, freedom of expression would be a vicious weapon to muzzle peaceful opposition. Justice Jackson would call it "a teasing illusion, like a munificent bequest in a pauper's will."

President Arroyo has herself made it threateningly clear that she would not relent in the arrest and prosecution of those elements plotting against her government. Her soldiers and policemen are still determined to hound and punish all those who would sabotage her regime and oust her from her imperiled perch in the Palace of the People. My mention last Sunday of that proclamation still in the present tense may not really have been a mistake after all.

The continued threat of Proclamation No. 1017 is the reason why the petitioners against it are asking the Supreme Court to squarely rule on the constitutionality of the order as against the claim that its formal withdrawal by President Arroyo has rendered it moot and academic. They feel that their challenge should not be conveniently dismissed as no longer viable because that ruling, while technically correct, would nevertheless ignore the realities of the present situation.

This brings to mind my own experience on a similar question that was raised in Evelio Javier vs. Commission on Elections, 144 SCRA 194, which was raffled to me in 1987. After making an initial study of the case, which the old Supreme Court had purposely sat on, I recommended that we grant the Solicitor General's motion to dismiss it on the ground that it had become moot and academic.

Chief Justice Claudio Teehankee thought differently, however. He felt that the new Supreme Court should take a categorical stand on the important issues raised in the petition and its historic significance on the subsequent downfall of the Marcos dictatorship. We should, he suggested, "give a message" to the nation of the mission and methods of the new Judiciary. I saw his point and so began my ponencia with the following justification:

"The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the issue has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future."

The Supreme Court has every right to ignore the above observations as mere obiter, considering the many serious questions awaiting its decision. The challenge to Executive Order No. 464, for example, is still unresolved since it was filed five months ago to seek the intervention of the high tribunal in the serious constitutional dispute between President Arroyo and the Senate.

The usual ploy of the military when sued in habeas corpus proceedings is to simply release the detainees and then move to dismiss the petition for having become moot and academic. The motion is usually granted. This might also be the practice of President Arroyo in trying to get off the hook where the cards appear to be stacked against her, as in that pending case.

Such a solution would also be welcome to the 14 incumbent justices of the Supreme Court, 12 of whom are appointees of President Arroyo. These beneficiaries would naturally avoid annoying and embarrassing the person who is the principal reason they are sitting on the highest court in the land. Hopefully, however, they are stalwart justices whose first loyalty is to the rule of law and will boldly vote, for or against GMA, only as their conscience bids them.

Let's wait and see-soon.