The Sona and the Supreme Court

MANILA, Philippines—Tomorrow, the nation’s eyes and ears will be focused on President Aquino’s first State of the Nation Address (Sona). With a landslide electoral mandate and a stratospheric 88 percent approval rating in the latest SWS survey, P-Noy will be cheered not just in Congress but everywhere else in the country and in this planet.

Critical collaboration. I do not have the space to comment on all the problems facing P-Noy. Instead, I will carefully observe how he will define his relationship with the Supreme Court. His initial encounter with the Court was chilly. Dismayed by the its decision allowing outgoing President Gloria Macapagal-Arroyo to appoint the new chief justice, he broke tradition and invited the decision’s forceful dissenter, instead of the new chief, to induct him. I think this is symbolic of his desire for transparency, accountability, gravitas and ethics from the justices.

Nonetheless, I am sure he realizes that the Court is a co-equal and co-independent branch of government. Hence, I think he will not maintain an unduly hostile stance, lest the Court be tempted to use its vast powers and stymie his plans, especially his judicial reforms. Neither should the relationship degenerate to coziness, lest the Court becomes subservient (as the “Arroyo Court” was perceived to be), always ready to obey executive whims and to defend presidential excesses, even if it means reversing age-old jurisprudence and inventing monstrous judicial fiats.

Ideally, the relationship should evolve to what the late Jaime Cardinal Sin called “critical collaboration,” collaborative in executive initiatives to reform society but critical in safeguarding the supremacy of the Constitution.

P-Noy can take refuge in the settled doctrine that in case of doubt, the courts are duty-bound to uphold executive actions, arising from the presumption of good faith and regularity in the performance of official duties. Only when there is grave—repeat, grave—abuse of discretion can the Supreme Court reverse or modify executive actions and programs.

So too, justices are answerable to history. Published in books and electronic libraries, their decisions are scrutinized minutely and eternally by lawyers and non-lawyers alike. Recently, they discovered that investigative journalists, like Marites Vitug, and civic groups, like Bantay Katarungan, have become bolder in exposing perceived judicial misconduct.

However, the real test of the justices will come when they face cases involving former President Arroyo and her family. For instance, will they, like the Commission on Elections, bend entrenched jurisprudence to indulge the party-list ambition of Mikey Arroyo? How will they dispel public perception of their alleged personal loyalty to the former first family?

Only four justices. Unfortunately for P-Noy, GMA not only appointed all the incumbent justices; she also chose relatively young jurists such that during his term of six years ending on June 30, 2016, P-Noy will, in the normal course, be able to name only four Supreme Court members.

One Supreme Court vacancy was created by the elevation of Renato C. Corona to the top post. P-Noy will be able to name two more jurists in June next year when Justices Conchita Carpio Morales and Antonio Eduardo B. Nachura retire. The fourth will be chosen after Justice Roberto A. Abad turns 70 on May 22, 2014. Justice Martin S. Villarama Jr. will end his term on April 14, 2016 but P-Noy will probably not appoint his replacement, consistent with his abhorrence for midnight appointments; April 14, 2016 falls within the 90-day period banning appointments prior to the 2016 elections.

In contrast, all past presidents named many more jurists than P-Noy will. Even during his abbreviated tenure of two and half years, Joseph Estrada installed one chief justice (Hilario G. Davide Jr.) plus six justices (Bernardo P. Pardo, Arturo B. Buena, Minerva P. Gonzaga-Reyes, Consuelo Ynares-Santiago, Sabino R. de Leon Jr., and Angelina Sandoval-Gutierrez). Yet, P-Noy will be able to choose only four during his entire six-year term.

Cerebral and leadership skills. In any event, we will know the caliber of the Court he wants when he names his first Supreme Court appointee on or before Aug. 15. The Judicial and Bar Council has started screening and interviewing the 28 applicants. Per past practice, it will probably recommend to the Palace only three to five nominees.

The Constitution requires four attributes from jurists: “proven competence, integrity, probity and independence.” Apart from these, P-Noy will probably want his first Supreme Court appointee to personify his mantra of “Kung walang corrupt, walang mahirap.” Hence, I think he will be looking for one with demonstrable savvy in economics and leadership, who will fight for principles, not personalities; ideologies, not cults.

While the public is enthralled with lawyers passionately arguing their cases, the truly critical debate takes place inside the Court’s chambers where, away from prying eyes and insolent ears, the justices use their cerebral and leadership skills to sway each other. This is where legal wars are ultimately won or lost.

My own judicial philosophy of “liberty and prosperity under the rule of law” coincides with P-Noy’s mantra, except that his is negatively stated, “anti-corruption and anti-poverty,” while mine is positively phrased, “pro-liberty and pro-prosperity.” If only for this similarity, I will keenly watch how the JBC screens its nominees and how P-Noy will select his first SC appointee.

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