Securing judicial imprimatur

OUR PRESENT system allocates the great powers of government to three major branches: legislative, executive and judicial. To bring about the prosperity and well-being of our people, they are expected to work together. At the same time, each of them is mandated to check the errors and misdeeds of the others. While successful governance is the ultimate target, abuse is ever present and must be checked.

Presidential dominance. Historically, presidents have always wanted dominance. Most of them have been able to sway Congress but the Supreme Court has often been a thorn. To lord over the country, the shrewd Ferdinand Marcos not only declared martial law and abolished Congress, he also cowed the Supreme Court by appointing all its members and restricting its powers. Instead of checking abuses, the Marcos Supreme Court became his legitimizing rubber stamp. Claiming to have very limited power, the Court allowed Marcos to rule the country without effective judicial review.

Upon her ascension to the presidency in 1986, Cory Aquino—to renew the sparkle of democracy—demanded the resignation of the entire judiciary and appointed her own choices to the Supreme Court (that in fairness included some veterans—like Ameurfina A. Melencio-Herrera and Hugo E. Gutierrez—who were perceived to be independent of the Marcos regime) and other courts.

More significant, the 1987 Constitution strengthened judicial prerogatives. The Constitution-makers at the time believed that the past Supreme Court could have disemboweled the dictatorship had it been granted sufficient authority and independence.

Duty, not power. So they gave the entire judiciary—not just the Supreme Court—the specific duty to intervene and strike down “grave abuse of discretion” committed by any branch or instrumentality of government. To stress, the Constitution imposes this intervention as a duty, not just as a power or authority. A power can be relinquished, but a duty cannot under any circumstance be evaded or relinquished.

Because of this bounden duty to strike down grave abuse of discretion, the Supreme Court became “activist,” never hesitating to intervene on almost every matter under the Philippine sun, to the chagrin of every president since then: Fidel V. Ramos, Joseph Estrada, Gloria Macapagal-Arroyo. Even Cory Aquino suffered setbacks in the hands of the independent Supreme Court she created.

During her nine and half years in office, President Arroyo was able to appoint 20 SC justices, some of whom retired during her term such that she was able to replace them with younger jurists. In fact, in 2009 alone, she was able to name seven new justices, almost half of the whole Court. She was also able to appoint three chief justices: yours truly, Reynato S. Puno and the incumbent Renato C. Corona, who will sit for eight more years, much longer than P-Noy’s six years.

In contrast, P-Noy will be able to appoint only four justices; the first—Justice Maria Lourdes P. A. Sereno—was named last August 13. He has to appoint two more in June 2011 after Justices Conchita Carpio Morales and Antonio Eduardo B. Nachura retire. He will choose the fourth after Justice Roberto A. Abad turns 70 on May 14, 2014. Justice Martin S. Villarama will hang his robes on April 14, 2016, but P-Noy will probably refrain from appointing a successor, per his stance against midnight appointments, since that date falls within the prohibited period.

P-Noy’s options. P-Noy cannot hope to dominate the Supreme Court by declaring martial law a la Marcos because his mother, the icon of democracy, will haunt him. Neither can he institute a revolutionary government like Cory because he won his mandate via an unquestioned popular vote, not through a people power revolution. Nor can he name all of the justices like GMA, unless by some unforeseen cause they all resign or die or are impeached.

But he has his own strength to secure the Court’s imprimatur: his overwhelming popular mandate. Despite the bungled Hong Kong hostage crisis, P-Noy still enjoys a wide 71 percent public approval. He could use this great asset to remind the Court subtly that the Filipino people are behind his leadership and program of government.

True, decisions are not won or lost on the basis of popular palatability but on reasoned arguments flowing from legal principles and precedents. But the Court is not immune or averse to public opinion. It must, like any other public institution, face its critics. To succeed in a face-off, it must enjoy residual public trust. This is why it created a Public Information Office, and why at times the justices come out of their cocoons to defend their acts.

Not having the sword of the military, which is wielded by the president, or the power of the purse, which is controlled by Congress or the “raging mob,” the Supreme Court is effective only as long as it retains the faith and trust of the people. Without public support it will become inutile for it cannot enforce its own pronouncements.

At the same time, P-Noy should make sure that he is legally right. He can retain his strength only as long as he is perceived to be right. He must have seasoned legal gladiators and battle-tested advisers capable of independently reviewing the work of his gladiators. As I wrote last week, cases are won or lost not only on the analytical formula of facts times law equals decision (F x L = D) but also on the sociological method of personality times stimuli equals decision (P x S = D).


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