narrative

Tilting at Windmills

Just then they came in sight of thirty or forty windmills that rise from that plain. And no sooner did Don Quixote see them that he said to his squire, “Fortune is guiding our affairs better than we ourselves could have wished. Do you see over yonder, friend Sancho, thirty or forty hulking giants? I intend to do battle with them and slay them. With their spoils we shall begin to be rich for this is a righteous war and the removal of so foul a brood from off the face of the earth is a service God will bless.”

“What giants?” asked Sancho Panza.

“Those you see over there,” replied his master, “with their long arms. Some of them have arms well nigh two leagues in length.”

“Take care, sir,” cried Sancho. “Those over there are not giants but windmills. Those things that seem to be their arms are sails which, when they are whirled around by the wind, turn the millstone.”

[Excerpt from The Ingenious Knight Don Quixote of La Mancha by Miguel de Cervantes, 1604]

This week, the president’s allies in the House of Representatives numbering 188 voted to impeach Chief Justice Renato Corona. This came after a flurry of attacks against the high court launched by the president himself on numerous occasions. The ‘rap sheet’ or articles of impeachment contains allegations previously laid by him before the chief justice in a legal forum where both were present.

They include his voting record as a member of the Supreme Court that seems to favour the former president and now congresswoman Gloria Arroyo which was claimed to have been responsible for the loss of public trust in the institution he leads as shown by its extremely low rating in the SWS public opinion polls. The prefatory statement issues the charge that

Never has the position of Chief Justice, or the standing of the Supreme Court, as an institution, been so tainted with the perception of bias and partiality, as it is now.

It then proceeds to build a narrative to support its case. Beginning with his close association with the former president prior to his appointment to the Supreme Court, his voting record as member thereof before assuming his present role, followed by his acceptance of Mrs Arroyo’s ‘midnight appointment’ to be its chief, and the numerous incidents in which the court displayed its ‘bias’ towards the Arroyos. It is peppered here and there with allegations of improper use of public funds and nepotism.

On the face of it, there seems to be a strong case to be made against the Chief Justice, but whether it can be proven in such a way that would lead to a conviction is another matter altogether. The articles certainly tell a coherent story, but as any legal expert will tell you, in most matters that involve the high court, there are legal merits on both sides. In defending himself, Corona will simply have to recite the legal underpinnings of the high court’s decisions.

It will then appear that Congress (and the president) can impeach any member of a co-equal branch of government simply for making decisions that they find disagreeable. This means war between the executive and judiciary with each side claiming the other overstepping their boundaries and seeking to establish a dictatorship by one branch.

At the moment, the palace has the moral ascendancy. The high court is already viewed with suspicion by the public. Pursuing this case against Corona and by implication the rest of the court that he leads however could place suspicion on the president’s motives because of the Hacienda Luisita ruling which disadvantaged his clan. P-Noy by taking this bold step has highly discounted the risk of losing the moral high ground.

Secondly, most of the accusations save for the one involving Corona’s failure to file a statement of assets, liabilities and net worth (which might not be an impeachable offense based on previous court resolutions) involve decisions made by the entire bench not the chief justice alone.

The high court’s decision to exempt itself from midnight appointments, the creation of a new congressional district that became the seat for Mrs Arroyo’s son, the injunction against the lower house of Congress in hearing an impeachment complaint (its sole prerogative) against the ombudsman appointed by her, the exoneration of one of the justices for plagiarism by a committee comprised of magistrates, the injunction it issued against the secretary of justice’s hold departure order on Mrs Arroyo which it said was in effect despite the non-fulfilment of certain conditionalities were all made by a majority of the court.

Given the collegial nature of this body, the prosecution will have to prove that Corona exerted some kind of influence akin to a Jedi mind trick that forced other justices to side with him against their free will. Either that or Congress will have to impeach all the members of the majority who voted with him for showing bias. That will take some doing. Even if they (by ‘they’ I not only mean the prosecution, but the president) succeed in this (and there are already plans afoot to impeach two other justices), their side could suffer from what economists call the winner’s curse.

Having spent so much time and effort in this game to the detriment of all else (with the economy sputtering to a halt, which is what a 3.2% GDP growth figure represents), there will be hardly enough space for the government to move on policy matters as the legislative process gets tied up with the trial/s. Investor confidence could dissipate (adopting a wait and see attitude) as the country becomes wrapped up in the unfolding political saga. It seems that winning legitimately as in the case of this lawful and constitutional exercise could come at a heavy economic price for the republic.

Thirdly, while the public mood towards the Corona court is certainly non-supportive, it is quite spurious to lay the grounds for an impeachment complaint based on the fact that the accused garners very low esteem from the respondents to a survey no matter how representative it is. To begin with, let us assume for a moment that this low rating is due to the poor quality of decisions rendered by the court.

The articles of impeachment claim that this is because the court is biased in favour of Mrs Arroyo. An alternative explanation is that the justices sitting on the bench are simply not up to scratch and that their legal credentials were not properly screened. This too was asserted in the complaint. But whose job was it to screen presidential nominees to the high court anyway? Shouldn’t they bear responsibility for this outcome, not the appointees?

Also, the fact that the ‘bias’ explanation fits the narrative that the palace weaves makes it credible in the minds of the public in search of meaning behind events, but it does not necessarily make it true. Impeaching the Chief Justice based on his voting record on cases that affected Mrs Arroyo suffers from the law of small numbers. ‘How many cases does it take to prove that someone is biased?’ you might ask. Well that is precisely the problem. We cannot really use statistics to prove it one way or another. Of course an impeachment trial is more political than legal, which will make the outcome a product of naked power rather than a triumph for the rule of law.

The foregoing analysis lays down the reasons why I believe the impeachment of Renato Corona is more about the administration tilting at windmills than pursuing what it calls ‘reform’. The meaning of that word has become so mangled in its usage by the government that it has been equated to sending Mrs Arroyo to jail.

In the narrative of the palace, the president is the chivalrous knight who has come to rescue the nation, which is the helpless damsel in distress, from the villains of the republic, Mrs Arroyo and her ilk. It makes for wonderful imagery and rhetorical flourishes, and anyone or any institution that strikes a discordant note upsets the psychological balance derived from this plot and deserves to be called an Arroyo sypathiser.

Yesterday, the Chief Justice began to weave a narrative of his own. He spun it as I said above an encroachment by the executive on an independent judiciary, a creeping dictatorship through legal and constitutional means (alluding to the method used by Ferdinand Marcos). It is quite ironic that the son of the twin icons of democracy should be accused of making such an audacious attempt at witling it down.

Our minds naturally seek coherence. This makes us susceptible to several cognitive biases. This is often achieved by creating causal relationships. The entry of P-Noy into the 2010 presidential race after the death of his mother—it was all pre-ordained (based on hindsight bias). His elevation to the highest post in the land was to serve one purpose, and that is to send the villainous Mrs Arroyo to the dungeon beneath his palace (based on confirmation bias). From there, the nation will achieve its destiny of greatness (halo effect).

Unfortunately, reality is not quite as neat. The real world is much more complex and random as our minds would wish it to be. The successful prosecution of Mrs Arroyo and her minions by itself will not move us any closer to the rule of law or to economic deliverance. These things are achieved through actual hard work and good fortune. In fact, the real reforms that could move the country closer to these ideals can be achieved in spite of Mrs Arroyo and the high court.

The fact that many of them will now be delayed due to the impeachment trial means that we are actually farther away from achieving our potential than we were before. The words ‘downgrade’ and ‘catch-up’ are once again on the lips of credit rating agencies. As it turns out, the very windmills that the government seeks to joust with in its anti-corruption drive are the very mechanics of government that help deliver bounty to the nation.

Unfortunately, P-Noy and his allies have made up their minds. This court which has upset them once too often in their ‘quest’ can do no right, just as the knight leading the charge against it can do no wrong. The same goes for Renato Corona and his sympathisers. They believe the president is out to get them, and that this impeachment trial is a vendetta masquerading as a crusade against injustice by the high court.

How much longer will the nation be captivated and spellbound by the romance of these cognitive illusions? How much longer will people ‘dream the impossible dream’ as the country languishes at the bottom of the heap? Someone has to play the role of Sancho Panza and unmask the romanticism woven by both sides for what it really is: a farce.