Bequeathing an independent court

MANNY Pacquiao’s stunning victory over Oscar de la Hoya seems to have catapulted boxing to the top of Philippine sports. I personally prefer basketball. But whether in boxing or in basketball, an impartial referee is non-negotiable. Had the referee been biased or unfair, Pacman’s victory would have been skewed.

Indispensable impartiality. Indeed, referees must be fair and even-handed and perceived as such by the athletes and the fans. They must be familiar with the rules of the game; they cannot enforce what they do not know. And yes, they must have the moral courage to call the fouls and throw out players when needed. They must be impervious to bribes, indecent proposals and undue influence.

If all these are essential in sports, what more in controversies involving the life, liberty, security and well-being of our people? Most definitely, impartiality is indispensable. Aptly then, the Constitution mandates all magistrates, from the Supreme Court down to the lowest court, to be “of proven competence, integrity, probity, and independence.”

For easy recollection, I have—in my books, speeches and articles—restated these essentials as the four “ins” of an ideal judge: independence, integrity, intelligence and industry. Litigants want to be sure, first and foremost, that judges are independent; that they are beholden to no one; that they will decide cases only according to their legal merit; and that they must “let justice be done though the heavens may fall!”

Of course, judges are also expected to be competent and hardworking; they must know the Constitution and the laws and be able to apply them uniformly and consistently with previous decisions that have similar facts and issues. And that they are immune to the plague of “ships”: friendship, relationship, kinship and fellowship. While it is the first attribute, independence is strengthened by integrity, intelligence and industry. Verily, these three reinforce and build on the first to assure a trustworthy judgment.

Constitutional guarantees. To show the preeminence of independence, the Constitution goes to great lengths in guaranteeing it to the judiciary as an institution and to the judges as individuals. In contrast, after listing the three other qualities, the Charter hardly mentions them again.

Thus, the Charter guarantees the tenure of all judges. Once appointed, they serve continuously until age 70. Supreme Court justices may be removed from office only by the tedious process of impeachment. On the other hand, lower court magistrates may be disciplined or ousted, solely by the Supreme Court, not by the president or Congress.

So too, the salaries of magistrates cannot be decreased during their terms of office and the budget of the judiciary cannot be reduced by Congress below that of the previous year. Once approved, the judicial budget shall be “automatically and regularly released.”

The Constitution also bars Congress from enacting laws that lessen the powers of the Supreme Court. Furthermore, to increase the appellate jurisdiction of the Court, Congress must first secure its advice and consent. Moreover, the president’s power to appoint members of the judiciary is limited to a list of at least three lawyers nominated by the Judicial and Bar Council (JBC). To insulate them from politics, appointees to the bench no longer need legislative confirmation.

Judicial legacy. Because of the critical role of the JBC in ensuring judicial independence, various citizens? groups, notably the Bantay Korte Suprema (BKS), have coalesced to assure transparency and accountability in the nomination process.

In my Nov. 23, 2008 column, I expressed apprehension that the recent reorganization of the Senate may decapitate the BKS by removing Sen. Kiko Pangilinan as the Senate’s representative in the JBC. Fortunately, his replacement, Sen. Chiz Escudero, has amply demonstrated prudence in his actions, like opting for open voting and securing a Senate consensus before casting his ballot. Instead of decapitation, the Senate has in fact strengthened the nomination process by having Pangilinan in the BKS and Escudero in the JBC. Parenthetically, Chief Justice Reynato S. Puno follows the same procedure by voting only for the choices of the Court (which I did too when I was CJ).

I hope President Macapagal-Arroyo quiets down public anxiety by choosing a non-controversial appointee to the first of the seven Supreme Court vacancies this year. She would be well advised to name a known independent to this first vacancy so she could demolish public apprehension that she would pack the Court to extend her reign beyond 2010.

The JBC has already sent its list of five nominees to the President. They are Court of Appeals Justices Martin S. Villarama Jr. and Portia A. Hormachuelos, Sandiganbayan Presiding Justice Diosdado M. Peralta, Sandiganbayan Justice Francisco H. Villaruz Jr. and Ateneo Law Dean Cesar L. Villanueva.

An independent Supreme Court is indispensable to democracy. Once our people lose trust in the Court, they will turn to less than constitutional methods to make their will prevail. That would not be good for the country or for GMA.

For too long, critics have accused GMA of wrecking our democratic institutions by appointing undeserving candidates. Now is the time to prove them wrong. A grateful people will yet treasure her and damn the critics. Now is the time to start bequeathing a great legacy—an independent and trustworthy Supreme Court. Will she?

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