Supreme Court in peril
President Duterte may yet end up the record holder of the biggest number of Supreme Court justices appointed during his six-year term, second only to the late president and dictator Ferdinand Marcos, who had 31 appointees, but in a 19-year period (1966-1985).
In comparison, the presidents after Marcos have these numbers of appointees to the high court: Corazon Aquino, 19 in six years; Fidel V. Ramos, 14 in six years; Joseph Estrada, six in two years; Gloria Macapagal Arroyo, 21 in 10 years; and Benigno Aquino III, six in six years.
By the end of his term (barring unforeseen events), Mr. Duterte would have appointed at least 15 justices and most probably another 11, or a total of 26, depending on how future vacancies and appointments are configured.
Since he assumed office in July 2016 to the end of 2017, Mr. Duterte has appointed four justices to the high court — Samuel Martires, Noel Tijam, Andres Reyes Jr., and Alexander Gesmundo. Of the 15 sitting justices (including the Chief Justice), 11 will retire between August 2018 and May 2022 (the month before Mr. Duterte leaves office).
Justices Presbitero Velasco Jr. and Teresita Leonardo-de Castro will retire this year; Martires and Tijam will retire in January 2019, after they shall have served only one year and 10 months; Justices Mariano del Castillo, Francis Jardeleza, Lucas Bersamin, and Antonio Carpio will retire between July and October 2019; and Reyes will retire in July 2020. Justices Diosdado Peralta and Estela Perlas-Bernabe will retire in March and May 2022 (just months before Mr. Duterte ends his term).
The 11 justices who will replace those retiring between August 2018 and May 2022 will bring Mr. Duterte’s total appointees to 15, including the first four appointments made in 2017.
In addition to the 15, new vacancies can be created (possibly another 11), assuming that the tenure of the 11 new justices would be of short duration (e.g., one year and 10 months in the cases of Martires and Tijam) and would end during Mr. Duterte’s incumbency. Should this happen, which is not far-fetched, it would raise the number of his appointees from 15 to 26.
Like the biblical miracle of the multiplication of the loaves and fish, there are also political ways of multiplying or creating multiple vacancies even in an institution as “hallowed” as the Supreme Court.
Given such large-scale vacancies to fill, it is almost like giving any president the power to undertake a sweeping reorganization of a coequal branch, which could undermine its independence.
By the time Mr. Duterte vacates the presidency, the 15-member Supreme Court will have a “supermajority” made up of the 12 or 13 of his appointees (with Chief Justice Maria Lourdes Sereno — granting she survives impeachment efforts — and Justices Marvic Leonen and Alfredo Caguioa as the “superminority”).
Switching to a side issue (but with grave and far-ranging implications nonetheless), and depending on the outcome of the politically charged House hearings on the Russian-roulette kind of impeachment complaint filed against the Chief Justice, the President may yet have the chance during his term to replace his coequal—the head of a coequal branch—with whom he was at odds early on regarding the war on drugs.
The high court itself—which is currently beset by dissension and disrespected by its own members who have lost their civility and self-respect—is in real peril of becoming a “banana” court, on the way to being a virtual adjunct or subbranch of the executive branch, and reduced to a mere democratic ornament.
And with what certain justices have made of themselves, with their ugly deportment in a coup-like scenario staged (of all places) in the House impeachment hearings, and prescinding the pros and cons of what they (like whistleblowers), may have testified on ex parte against a colleague and primus inter pares during those hearings (in aid of the complainant), they may have betrayed the very institution they symbolize.
Finally, this early, those with the right connect may now be salivating and forming a queue, in a mad scramble and ardent jostling for the much coveted vacancies in the Supreme Court.
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Senen Y. Glinoga is a former municipal judge, a retired senior partner of Accralaw, and a former president of the Tax Management Association of the Philippines.
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