By Fr. Ranhilio Callangan Aquino

According to a discourse theory of law and of democracy such as advocated by Jurgen Habermas, the House of Representatives is the institutionalization of the communicative power of the people. Through the election of the members of the House and its procedures, communicative power generates binding, valid law. This is the reason I hate to see the processes of the House trivialized. This is why I earnestly urge the members of the chamber not to allow it to be demeaned. There are two measures from which it must keep a safe distance?like one keeps his distance from the plague.

The first is the utterly senseless attempt to impeach Chief Justice Reynato Puno. Of course, brandishing the sword of impeachment is always one way of gaining media mileage and the hearings and proceedings incidental to an impeachment complaint no matter how unmeritorious have some way of conferring celebrity status on those who choose to star in such a lurid show. The Chief Justice has handled himself with dignity: no diatribes against the instigators of this thoughtless move, no explanation for his actions that would have only dignified the baseless charges, only a straightforward commitment to decide as his best lights allow him to. It should be obvious to anyone with a little common sense that the proper complainants in a charge of hindering the promulgation of a judgment of the high court would be the associates of the Chief Justice, the members of the court. But none has cried ?Foul!? None has come forward to complain that Reynato Puno stood in the way of the promulgation of a judgment due for promulgation. When one who is not a member of the court uses as ?evidence? of supposed wrong doing an unpromulgated, albeit supposedly signed, ?advanced? (read ?leaked?) copy of the judgment, all that one has really is hot air. An unpromulgated judgment is no judgment at all and evidences nothing, except a surreptitious if not criminal attempt to pry into what should be off limits except to the members of the court. I have been a professorial lecturer of the Philippine Judicial Academy, an office of the Supreme Court, for the past nine years. I know the Chief Justice, and I have always studied his ponencias with keen attention and diligence because they always demand such assiduous reading. One never trivializes with a Reynato Puno ponencia. He is no stranger to dissents. Taking a lonely position is not new to him. He was chosen for the highest magistracy by President Arroyo, but he has rendered opinions at various times adverse to the position maintained by Malaca?ang. He has reached the acme of his career. There is really hardly anything more than anyone can offer him. More to the point while he will heartily joust with those who do not agree with him in legal argument, it is not characteristic of him to stand in the way of the promulgation of a majority position with which he may dissent.

Is it wrong for the Chief Justice to ask his colleagues on the court to review conclusions of fact or of law on which a consensus has already been reached by the majority? I am not saying that this is what happened. I do not pretend to be privy to the inner workings of the court. With good reason, the justices deliberate behind closed doors and not even the Clerk of Court is allowed into the chamber where they deliberate. I raise a theoretical, academic question, and I submit an answer in the affirmative. For as long as a judgment has not yet been promulgated, what title of law would it be that would forbid the Chief Justice, or any member of the Court, from asking for another round of discussions on the matter? If the Chief Justice did improperly hinder the promulgation of a judgment that should have been promulgated, then his colleagues on the court should have protested this serious irregularity. None has done so. None else is competent to aver that he did so.

The Lower House should likewise steer clear of attempts to revive the death penalty even for the detestable offense of drug peddling. Legislation must always distinguish itself from knee-jerk reactions so common to the excitable and to the unsettled. Not too long ago, Congress of the Philippines made up its mind about the practice of ending the lives of human beings after some judicial ceremony. It was a thoughtful response to an emerging universal consensus against the death penalty. None of the international criminal tribunals?the Tribunal for Former Yugoslavia, that for Rwanda and the International Criminal Court?has any provision for the death penalty. The Second Optional Protocol to the Covenant on Civil and Political Rights obligates state-parties to abandon that barbarity that the death penalty is. It is no whim that inclines the global community against the death penalty. It is rather the mature moral conviction that there is something terribly amiss about engaging in the very same murderous conduct? even if vested with the solemnity of judicial process?that is condemned by law. It is concomitant with the realization that the protest against injustice that every criminal indictment is does not call for the elimination of the offender but for the restoration of the ruptured order of society that must include the rehabilitation of the offender. The myth that there are human persons beyond ?retrieval? is the articulation of a dangerous posture, and a tacit admission of society?s morally bankrupt position: that some persons are dispensable.

While some constitutional law professors maintain that there is no irreconcilability between the constitutional prohibition of cruel and unusual punishment and the possibility of legislation prescribing the penalty of death, I cannot, for the life of me, understand how any form of imposing the death penalty can be humane. The very distress visited upon a convict by the knowledge that his life is to be ended before its natural course and by the deliberate will of his fellowmen is cruelty visited upon another human being. The traditional line from jurisprudence that ?cruel? in the constitutional prohibition should not be read to include the pain, anguish and distress that come with the imposition of the death penalty is an incredibly pathetic and attempt to re-work the semantics of ?cruel?, and worse, one that does not succeed! What difference is there between the terror experienced by a ?dead man walking? and the hapless victim of a hijacker who awaits the terrible shot coming from a pistol held to his temple? I can anticipate what the advocates of the death penalty will give in riposte: Nego paritatem?I deny the parity because the ?dead man walking? deserves to walk the ?last green mile?! But that really begs the question because it is my position that no person ever deserves such cruelty. If the only reason that one maintains that anyone else deserves to walk the painful way to the electric chair, the gallows, the firing squad or the lethal injection chamber is that he has committed a heinous crime, then one is talking vengeance, not arguing reasonably?and we are supposed to have outgrown this immaturity.

Not too long ago, Congress made the wise decision to affirm the indefeasible dignity of the human person, no matter the heinousness of his acts, and to abstain from the very heinousness that it condemned. We should not allow our Legislature to appear like some wimp and reverse itself after having enunciated thoughtful and laudable policy!

rannie_aquino@rannieaquino.com