As I See It

Keep politicians out of Supreme Court

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The Foreign Currency Deposits Act (FCDA) was passed by Congress decades ago, when we had a shortage of foreign exchange and investments. Some rich Filipinos were afraid of peso devaluation and therefore kept their savings in dollars. But we had currency controls, so some corrupt Filipinos deposited their dollars in banks abroad to keep these out of the reach of the Philippine government. Also, foreign investors were shying away from the Philippines because of the same currency controls.

So the FCDA was passed to keep the dollars here and to invite more. The law guaranteed the secrecy of foreign currency deposits in Philippine banks. The banks are prohibited from revealing to anyone the deposits in foreign currency with them. The only exception is when the depositor executes a waiver allowing an examination of his bank accounts.

The Code of Conduct for Government Officials and Employees and the law requiring the filing every year by all government officials and employees of their statements of assets, liabilities and net worth (SALNs), as well as the Unexplained Wealth Law, were enacted by Congress to fight the spreading corruption in the government. Investigators looked into the SALNs to find out whether or not the public official or employee enriched himself while employed in the government. If the official cannot explain the source of assets beyond the limits of his legitimate income, these are presumed to be ill-gotten and are forfeited in favor of the government.

Alas, because the laws are contradictory (one guarantees the secrecy of foreign currency deposits while the others mandate transparency), the corrupt are using one law against the others. As former Chief Justice Renato Corona argued in his defense at his Senate impeachment trial, the FCDA, which assures secrecy, nullifies the transparency provisions of the later laws even though jurisprudence dictates that laws passed later overrule earlier ones.

Because of this contradiction, there is now a clamor for all public officials to sign waivers to the secrecy of their foreign currency bank deposits. Those who have nothing to hide have readily signed waivers but those who do will, of course, use the FCDA as an excuse not to. What will happen is that while the bank deposits of honest officials will be open to scrutiny, those of corrupt ones will continue to be hidden. Which defeats the very purpose of the SALN and the Unexplained Wealth laws.

Now then, instead of asking public officials to sign waivers, why not just include the waivers in the SALN forms? When the official signs his SALN, he also signs the waiver.

If that requires legislation, Congress should waste no time in passing an amendment to the SALN law that will, in effect, repeal the absolute secrecy provision in the FCDA and prevent a repetition of the unfortunate Corona affair.

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With the removal of Corona as Chief Justice, there is now a scramble among members of the judiciary, lawyers, and politicians to be appointed as his replacement. President Aquino has set the correct first step: the Chief Justice should come from inside the Supreme Court. Personally, I think the seniority rule that has been followed for decades should be continued to avoid infighting and intrigues among the associate justices.

There is another reform that I propose when it comes to appointing associate justices: that appointees should come only from the bench, the academe, and the ranks of practicing lawyers. Politicians should be excluded. Politicians have a tendency to spoil a basket of good apples.

In recent years, more and more politicians have been appointed to the Supreme Court. There was a time when about a third of the justices were former congressmen, senators and Cabinet members.

The high court must be above suspicion at all times to maintain the people’s trust and confidence in the rule of law. How can it be above suspicion when there are ex-politicians among its members? Politicians make a lot of debts during their terms in public office and it is not far-fetched for some of these people to whom the justices owe debts to collect on these favors when a case where they have an interest reaches the high court. And as the Corona affair has shown, the case is resolved in favor of the friend even if the merits of the case favor the other side. That would make Lady Justice cry in shame.

Hopefully, that would not happen too often. But like one rotten apple that contaminates a whole basket of good ones, just one such case will destroy the people’s faith in the judiciary. The best thing to do is not to appoint a politician to the high court. Politicians have most of the privileges in the government—pork barrel, allowances of all sorts, power and influence, appointment of relatives and friends to cushy government positions, award of fat contracts to favorite companies, etc. Let’s limit their privileges to the Supreme Court.

Besides, the entry of politicians into the high court disillusions the members of the lower courts. The ambition of every member of the bench is to be appointed justice of the high court. That prompts them to perform better in the lower courts so that they would be promoted to higher courts and, ultimately, to the Supreme Court. That ideal is destroyed when outsiders elbow out judges from the high court. They become cynical and just enrich themselves as much as they can in their present positions. No use aspiring for a higher position.

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