Martial law babies

Recently, Randy David noted that in one concurring opinion, Associate Justice Marvic Leonen “positions himself not merely as an interpreter of the law but as an arbiter of what is moral and just,” ending his column by getting to the heart of the matter: “This style of adjudication will not sit well with those who believe the Court’s role is limited to interpreting the law.” (see “Interpreting Justice Leonen,” 8/10/25)

Leonen can point to one of the framers of our present Constitution, former chief justice Roberto Concepcion, for introducing language that makes it a duty of the courts to determine whether there has been “grave abuse of discretion amounting to lack or excess of jurisdiction.” You can approach any lawyer for interesting examples of how the Supreme Court invoked this duty when it came to lower courts—cases involving “capricious or whimsical exercise of judgment,” or so scandalous that it represents an “evasion of a positive duty or a virtual refusal to perform a duty enjoined by law,” or when the judicial power is exercised in an “arbitrary and despotic manner by reason of passion and hostility.”

What if you attributed any or all of the above to a justice or a cabal of justices? Because they like to do it, let us begin this discussion on lawyers by invoking the Roman poet Juvenal: Quis custodiet ipsos custodes? Who will guard the guardians? Why, the House of Representatives, of course, or any citizen, once their complaint is endorsed by a representative.

But that’s politics, you might shriek, adding this often-quoted phrase from the purple pen of Leonen: “When impeachment is weaponized for personal gain or political retaliation, it undermines its legitimacy … [and] feeds public cynicism in the entire impeachment process.”

Superficially, one can’t find an exception to this, but precisely only if one keeps things on a superficial level.

In the first place, whether or not someone is motivated by personal gain is not for a justice or a citizen to determine, because it is ultimately indeterminable. There is actually no difference between Senate President Francis Escudero and Associate Justice Leonen, the detractors of the eyebrows of the former, or the lack of a coiffure of the latter, aside.

They are both highly trained lawyers, have been in the public eye for a generation, are products of the state university and its college of law, have achieved high office by virtue of election by the sovereign people or confirmation by their legitimate organs, and thus represent, in parallel, the pinnacle of the legal profession.

Neither seems fazed by invocations of that precious thing, tradition, either past precedents themselves or the traditional understanding of things (“Tradition,” G.K. Chesterton observed, “means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about.”)

This disregard for widely accepted notions is the affliction of those who think they know better, and the condition of your soul has little to do with it: Escudero can arch his eyebrows when everyone objects to his debating the obvious meaning of “forthwith,” but he will do what he did. Leonen “clearly departs from a plain reading of the Constitution’s impeachment provisions that one is hard-pressed to see where it is coming from,” as David scrupulously pointed out, but he will still do what he did, decreeing new conditions to impeachment that must be retroactively applied. Both suffer from the same conceit: the satisfaction of doing the previously unthinkable, from a position of authority that brooks no opposition.

Both are heirs to the Marcosian attitude toward the law as a series of obstacles to be surmounted. The daring is the thing: in the case of the late president Marcos Sr. and his principal legal lieutenants, like Estelito Mendoza, to demonstrate that it’s actually easy to get away with it, and one charitably ascribes to Concepcion and Leonen the naïve feeling of accomplishment that comes from proving it was hard but not impossible.

So another Latin maxim does us well: de gustibus non est disputandum. There is no accounting for taste. Which accounts for why both end up tasting bad. As public officials, they should be judged, not on the basis of who vouches for them or condemns them, but for what they say and do in the conduct of their duties.