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The Covenant of the Court of Appeals’ Justices

(Article published in the Oct 1, 2008 issue of Manila Standard Today)  

When then President Ferdinand Marcos on national TV declared that he had a “covenant with the people,” I winced.  And when the Justices of the Court of Appeals, mid-last month signed a document entitled “Covenant,” I winced even more.  In both instances, what to me is a sacred word was profanely spoken.

 As learned from the Jesuit fathers who taught me that theology is not religion, “covenant” was term of sublime meaning used by the children of Abraham, signifying the special relationship between the Supreme Being and His people.  “Covenant,” says Fr. John C. Haughey, S.J., “means embrace, His embrace of them as beloved. He would hold Israel as His own and care for her as His beloved if she would yield to this startling initiative.”  It is thus like a contract, but very unlike it since it is not between parties who are equals.  Haughey stresses, “this was not an embrace of equals but of creatures by their Creator, of the limited by the Infinite, the endemically need by the Source of all Goodness and Power.”

 It was thus inappropriate for Mr. Marcos to have used “covenant” to justify his refusal to step down from the presidency that in the minds of us street marchers had lost its legitimacy.  He was in a superior position engaging in an embrace alright; but it was power that he was tightly embracing, not the people.  The people he had been trying to choke, not embrace, into submission.


But Mr. Marcos, to his credit, was at least very clear in his intentions.  As for the honorable justices of the Court of Appeals signatory to the “Covenant”, it is not, with due respects, very obvious to some, myself included, who precisely they meant to take into their embrace by their much-publicized “Covenant”.

 As correctly understood by Mr. Marcos, the covenant was a spontaneous initiative, a free invitation, from One who was not under any compulsion to do so, addressed to another free agent to act as the addressee’s caregiver par excellence. He had a perverse justification to assume the role: having declared martial law, he indeed was this side of heaven the source of all goodness.

 Having placed themselves in the paradigm of the ancient covenant, the signatory justices, one would expect, to take the role of being the fountain of blessings.  But the very first paragraph suggests that they are placing themselves on the other side of the embrace.  They make no bones about their low estate.  Thus they wail:

 “The recent turn of events has plunged the credibility of our Court to its lowest.  Our reputation as an institution has been badly tarnished.  We have been subjected to sweeping generalizations, have been called names, have been despised and insulted.  Yes, the tide of adverse public opinion has left us battered and bruised.  And we silently hurting.  Our hearts cannot help but grieve.”

 Never mind the incongruity of the word “silent” immediately following the not-so-quiet shouting matches before the Supreme Court’s fact-finding committee the previous week.  More inconsistent with the initiative of the true covenant is the tenor of the signing justices’ protestations.  Unlike Yahweh reminding the Jews of what He in his power joyfully gave them, their honors wept bitterly and in humility (not feigned, I am sure), much like Job who lamented:

 “All my friends have forgotten me; my neighbors have thrown me away./ My relatives look through me as though I didn’t exist./My servants refuse to hear me; they shun me like a leper./My breath sickens my wife; my stench disgusts my brothers./Even young children fear me; when they see me, they run away./My dearest friends despise me; I have lost everyone I love.”

 I was tempted to cite too as the justices’ model the words of the suffering servant in Isaiah.  But that would have been an unwarranted hyperbole since not one has yet been seen hanging on a tree.

 The second paragraph does little to clarify the confusion of covenant roles.  It is a confounding blend of Esperon resolve (“we will not be cowed into helplessness nor shall be give up”), current corporate management shibboleth (“we shall take this devastating situation as a challenge”) married with Couples For Christ’s slogan (“pin our hope on our God who will vindicate us”). 

 Only in the third paragraph does “covenant” show up.  But before the “embrace” word makes its appearance, the front act is provided by an unabashed quote from the Holy Scriptures as the justices resolve to “move on ‘forgetting what is past and striving forward to the goal that is set before us.’”  The Adversary, as we are reminded, is not the only one who can quote the bible. 

 The heart of the Covenant, wherein the signing justices speak with “one heart and one mind” is a long sentence, and so, with the permission of the honorable court, I wish to break it up into its several clauses for easy understanding.  First clause is “to dispense justice with honor, independence, impartiality and integrity.”  It is a clearly recognizable mirror of the main ideas of the first three canons of the Code of Judicial Ethics. Canon 1 says that “a judge should uphold the integrity and independence of the Judiciary’; Canon 2 that he “should avoid impropriety and the appearance of impropriety in all activities; and Canon 3 that he “should perform official duties honestly and with impartiality and diligence.”

 The second clause commits the justices “to be subservient only to the truth” echoing Rule 3.02 asking the judge to “endeavor diligently to ascertain the facts and the applicable law unswayed by partisan interests, public opinion or fear of criticism.”  The rest of the clauses are “feel good/motherhood statements” such as “to give our utmost in everything that we do; “to continue doing good” (on the premise, highly questionable in minds of some but generally accurate by me, that they are presently doing good, and so in the future they shall “continue” to do so); and “to hold ourselves accountable to the Supreme Judge so that our Court may be a haven of fairness and righteousness.”

 It may have been due to the excitement of the hour, or to the rush in cranking out the document over the week-end in time for the Monday morning flag ceremony, or to sheer inadvertence, none of the clauses of the Covenant mention any resolve on the part of the justices “to be the embodiment of competence”, the very first demand required of a judge by the very first rule in the very first canon.

 As expected, the last paragraph of the Covenant rang with the same “rah-rah” spirit of the first two: the justices “shall arise, overcome and emerge victorious.” “By God’s grace”, we are assured that they “shall move, fully strengthened and healed.”  Finally, they are decided to “give meaning to the adage that the Court shall be the last bastion of democracy.”  Then, the final cheer: “TO GOD BE GLORY” resounding like the early martyrs walking calmly towards the lions’ open jaws eager to bite off their heads for breakfast.

 I am sure it was a typographical error, or at most, a stylistic lapse; but every time, in the preceding paragraphs the good Justices referred to the Court of Appeals, they used “our Court.”  However, in the last paragraph, before the cheer, the “last bastion of democracy” was referred to as “the Court”.  Did “the Court” mean the Supreme Court or the Court of Appeals?  If the Supreme Court, then what is the Court of Appeals to be the last bastion of? But, if the Court of Appeals, what does that say of the Supreme Court?

 To be honest, the “Covenant” of the Court of Appeals Justices, if I may say so with due respects, falls short of what the real Covenant was, both in substance and style.  It is an impressive contract amongst peers, perhaps even a worthy compact like Sikatuna’s and Legazpi’s, sans the shedding of blood; but certainly not anywhere near the Covenant of old, between the Supreme and the limited.

 I guess that it was that theological infidelity of the justices’ Covenant with the Arc in Sinai that prevented Justice Jose L. Sabio, Jr. from affixing his signature to his colleagues’ inspired document.  The good justice, as we all know by now, knew his distinctions and nuances very well.