Monday, May 17, 2010

On the matter of oaths.

I could have subtitled this post as "More ways to get back at the Devil!" But that may too much for our readers!

Sir Thomas More, a.k.a the Man for All Seasons is also remembered as the Man Who Lost His Head for an oath. Of course, it is not JUST an oath for according to More, an oath is nothing but words and by the words it may be possible to take or not to take an oath. Robert Bolt's award winning play (which was turned into an multi Oscar winning movie) A Man for All Seasons has More (played by the great thespian Paul Scofield) say the following

"What is an oath then, but words we say to God?"

And from here is we can take another view of the Noynoy Aquino won't take his oath from Mr Chief Justice Corona but from his barangay captain issue which has hit the social networking sites and has our most esteemed Law deans, law students and interested non-lawyers discussing the issue. Some people say that the Constitution doesn't say that the Chief Justice should administer the oath. The lawyers and even the CJ himself agrees. Others say that by taking the oath from the barangay captain, Noynoy shows humility (which this writer says ...... never mind!). Some who are obviously who are not fans of the Noy say he is a "brat" or more kindly "petulant"! And still others say it is a protest for Mrs Arroyo's appointment of Mr Corona (which is legal and constitutional according to the Court itself). I would agree to that!

Dean Marvic Leonen of the UP College of Law says that this break in inaugural traditions may damage more our institutions of government. Some of my lawyer friends agree. Their point is that the Judiciary (Judicature to the Brits) is an co-equal branch of government. So it seems that by having the CJ administer the oath, the President respects this constitutional arrangement. This is tradition rather than a legal requirement.

But why is there a tradition like this? And here I base my discussion from an excellent, readable and not made for law students book on the Philippine Constitution written byAtty Emmanuel Santos. We have to go back to the Medieval period where philosophers like Thomas Aquinas wrote that man made laws were subject to a higher law. The source of this higher law is none other than God himself who is Perfect Justice personified. Thus the Sovereign took his/her coronation oath from the Archbishop (who gets his authority from the Vicar of Christ the Pope) The idea is this high cleric represents God's Justice.

The Sovereign in his/her oath promises to 1) govern his/her subjects according to their laws and customs, 2) execute Law and Justice with Mercy, 3) Ensure the Establishment of the Church

Most of the modern European monarchies require a similar form of oath with the exception of the third promise in realms where no church is established.

The idea in these oaths is that the people's liberties are respected and the Sovereign receives their consent.

In Republics, there is no Monarch and the people are sovereign. The President takes the Oath and he/she promises to 1) defend and uphold the Constitution, 2) do justice, 3) executes laws and 4) serve the nation. The form of the oath is similar to the Coronation one but without guaranteeing religious establishment (which is not allowed in our constitution).

Since in a Monarchy, the Sovereign is the Fount of Justice and Mercy, he/she needs to take the Oath from the Archbishop. But in a Republic the President is not the Fount of Justice and Mercy (although the power of the President to give pardons and commutations can be argued as the Monarchical prerogative of the President for there is no check and balance to this power). Justice is given by the co-equal branch of government and this is none other but the Judiciary which is headed by the Chief Justice of the Supreme Court.

The Supreme Court (which I now call the Supremes) is the last word with regards to the interpretation of the law. It is infallible in this regards. Mr Justice Robert H Jackson (who is remembered by most as the prosecuting lawyer in the Nuremberg trials but we Pinoys should remember him as the Justice who administered the Oath to President Manuel Quezon while in exile) famously summarized the role of the Supremes

"We are not final because we are infallible but infallible only because we are final"

The Supremes are like God with respect to law. They are final and infallible (unless they change their minds and God has the right to change His mind!)

So by taking the Oath from the Chief Justice, true humility is demonstrated. The Head of State is under the law and not above it. Likewise the Sovereign is under the law and not above it. And all are under God's law. This is the essence of that tradition. It need not be written IN the super wordy 1987 Philippine Constitution!

I would agree with many legal minds. Noynoy Aquino by taking his oath from a barangay captain would damage our institutions. The co-equal branch of government, the Judiciary would be snubbed. As a matter of fact, the barangay captain is under the supervision and control of the President for he/she is an elected executive. There is something very silly about a subordinate administering an oath to a superior. A co-equal can administer the oath or a superior but there is nothing more superior than the President in our system of government.

Some legal minds have expressed concern that the soon to be proclaimed President-elect has shown a tendency to be cavalier about the law and the constitution. The question in my mind is echoed in More.

"Will he cut down every law to get at the Devil?" According to More, England was planted with laws from coast to coast. The Philippines which every sane Pinoy knows is more corrupt than England probably has more laws than England! (Recall Tacitus' "the more corrupt the Republic, the more numerous are the laws.")

Son the temptation to cut down the laws to get at the Devil (the big campaign issue here is corruption) is so great. The next President has to resist the temptation.

More advised his son-in-law, Roper to give the Devil the benefit of law for safety's sake.

Now in our justice system, you need the Supreme Court for that.

That's another reason why Noynoy should not snub the court (and say a prayer to Saint Thomas More). The Devil is everywhere you know!



2 comments:

gil said...

Sir:

Thank you for your clarification of the traditions behind taking the oath of office before the CJ; it provides a dimension that many non-lawyers (myself included) are not aware of.

'Ignorance is bliss', indeed. I - along with others - could so easily have continued perorating about oaths before CJs "not being in the constitution" without understanding the traditions or the reasons behind it.

Things are clearer now.

Thank you.

Having said that, however, other questions and issues come to mind.

I cannot help but wonder, for example, why you (and most lawyers, it seems) keep on focusing on Noynoy Aquino as 'damaging the institution' if he refuses to take his oath before CJ Corona without giving due consideration (it seems) to the institution being damaged already because of a midnight appointment which, in itself, flies against tradition.

Wouldn't taking an oath before someone who is the personal embodiment of that damaged institution imply acceptance of the 'damage'?

I think the issues here go beyond what is 'legal' and 'constitutional' as defined by an already damaged (in the public's eye) institution. Dare I say that this already goes to what is moral and 'right' as defined by one's conscience and understanding not only of what is the 'law' as defined by a Supreme Court whose actuations in recent months hark back to another Court during martial law which abdicated its role in society by providing the 'legal' clothing to an immoral act?

Are we confusing the person with the institution? Or are both synonymous with the other?

Ben Vallejo said...

We can't repair a damaged institution by doing a damaging act.