Monday, December 12, 2011

The Justice has the Crown: Fr Bernas quotes Thomas More

Sir Thomas More, The Man for all Seasons
The Philippines House of Representatives has the necessary numbers to begin impeachment proceedings against Supreme Court Chief Justice Renato Corona. In an ironic but wry comment, for the first time a respected constitutional lawyer, the Reverend Father Joaquin Bernas SJ has quoted Sir Thomas More's timeless "the devil and the rule of law" soundbite. But Fr Bernas does not name More as the source of the quote and that is the real downer!  Thomas More isn't your any ordinary lawyer. He is a Catholic saint and martyr. He was once Chancellor of England, which equivalent in our congressional system as the Chief Justice and President of the Senate combined. Ferdinand Topacio Esq will pale by comparison since More won't trade his eggs for mere "lawyer's drivel"! BTW, his wife Lady Alice Middleton was tempted many times to do so!

In my commentaries on Philippine politics and the rule of law, I have always alluded to Thomas More, who lost his head because King Henry VIII of England wanted the Crown to remain on his head and his male issue. As the story goes, it was a female issue from Henry's loins that brought England to glory for ever! But Henry never saw that happen. What Henry saw was the probably the first major change in England's constitutional arrangements since the Magna Carta. Henry had Parliament pass a series of acts culminating in the Acts of Supremacy, which made the King the Head of the English Church. Thus the English Church was separated from the jurisdiction of the Pope in Rome.

More argued quite correctly that Henry cannot have Supremacy over the Church since the canons of Christendom and his coronation oath deny him this power.

" this Indictment is grounded upon an Act of Parliament, directly repugnant ,to the Laws of God and his Holy Church, the Supreme Government of which, or of any part thereof, no Temporal Person may by any Law presume to take upon him, being what right belongs to the See of Rome, which by special Prerogative was granted by the Mouth of our Savior Christ himself to St. Peter, and the Bishops of Rome"

More and a host of English Catholics refused to recognize the King's supremacy and many lost their heads. Thus the Crown was secured from foreign intervention and a new Church by law established but at a inestimable price which resulted in England losing "things of beauty". With More gone, a new Chancellor, Thomas Cromwell executed the King's policies but in the end lost his head too!

In England then as now the Monarch is Sovereign. Legally she has absolute power, but she is limited and bound by convention and thus has really very little political power to speak of. This powerlessness is shown by the fact that if Parliament issues a death warrant for the Monarch's head, she will be bound by convention to sign it! However, convention dictates that she exercise her power through her ministers who advise her and the electorate provides a check on the absolute powers exercised in the Queen's name. Thus in practice, almost all these powers are exercised by her government who are responsible to Parliament. If the government loses confidence of Parliament it has to resign and an election is called.  In the Philippines, then as now, the People are sovereign but the Constitution allows their power exercised only through the Constitution which defines three separate but co-equal branches of government. The President as representative of the people executes these powers of which he has competence. Similarly Congress as representatives of the people in assembly  does what is within their powers and the Courts do so within theirs.

This is the context of Fr Bernas commentary. But in our case, the Chief Justice has the Crown and the President just his balding head. So it is a wry but ironic commentary. Noynoy wants to have the Supremacy over the Justices which the Constitution denies him. But like Henry he can get the parliament to bend to his will and so the impeachment steam locomotive is well steaming along!

The Reformation  set the stage for the English Civil War which neither was much about religion but about who is Supreme over the realm. A King's head was the price for the battle between the supremacy of Parliament over the Crown. In the end, Parliament won and so we see the system of Constitutional monarchy in England today which Pope Benedict XVI praised in a speech to the British political establishment in Westminster Hall as

"This country’s Parliamentary tradition owes much to the national instinct for moderation, to the desire to achieve a genuine balance between the legitimate claims of government and the rights of those subject to it. While decisive steps have been taken at several points in your history to place limits on the exercise of power, the nation’s political institutions have been able to evolve with a remarkable degree of stability. In the process, Britain has emerged as a pluralist democracy"

But the EDSA constitutional system which Fr Bernas help aborning did not evolve into a way of moderation in our political life.

Thus he warns

"In this critical moment of our constitutional history, my hope is that the justices of the Supreme Court, imperfect though they may be, will not capitulate and that others in the judiciary will not tremble in their boots and yield what is constitutionally theirs to President Aquino. If they do, it would be tragic for our nation.

Impeachment. Impeachment is very much in the air. It is a legitimate tool enshrined in the Constitution. But it is a two-edged sword. It can be an instrument of reform but it can also be an instrument of vindictive persecution carried out by blindfolded followers. For this reason the Constitution has surrounded the process with safeguards which limit the number of people subject to impeachment and which makes its success difficult to achieve."
These issues remain the same issues that Thomas More lost his head for.  
"Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!"
The famous Devil quote comes to us through  Roper's biography of his father-in-law Thomas More and Roper wrote it as how he heard More said it. In any  movie, stage play, teleseries on Tudor England, these lines are said by actors playing More's character exactly as the real More said it almost 500 years ago . These lines are so sacred for democratic societies where liberties are defended and lived! 
Impeaching the Crowned Justice for the Devil's purpose is fall into the hole of Gloria Arroyo's making. The constitutional system will collapse and with it Noynoy Aquino's presidency.

No comments: