Judicial brinkmanship

Reacting to my column on Aug. 5 that President Duterte would be appointing a majority of the Supreme Court justices before reaching his midterm on June 30, 2019, many feared that the high court would lose its independence, succumb to political pressures and thereby ruin the system of checks and balances upon which our constitutional order is anchored.

They cited several “foreboding” cases, like the burial of President Ferdinand Marcos’ remains at Libingan ng mga Bayani, validation of martial law in Mindanao, ouster of CJ Maria Lourdes P. A. Sereno, etc., allegedly showing the Court’s tilt toward political accommodation. Worse, by the end of his term on June 30, 2022, the President would have named 13 of the 15 magistrates, including the chief justice.

Many also warned that the Judicial and Bar Council (JBC), which vets judicial appointments, also leans in favor of Palace favorites. Already, of its seven members, three are President Duterte’s allies: Justice Secretary Menardo Guevarra and JBC regular members Toribio Ilao Jr. and Jose Mendoza, both San Beda alumni.

Soon, he would be naming the new chief justice who will chair the Council, plus one more vacant regular membership slot. And even the sixth seat reserved for Congress is vulnerable to political pressure. Only the slot for the Integrated Bar of the Philippines, now occupied by Maria Milagros Fernan-Cayosa, seems to be out of the President’s loop.

Should we all panic from a “presidential capture” of the judicial branch? Panic, no. But be vigilant, yes.

Historically, presidential attempts to dominate the judiciary are not really new. In fact, all presidents, not only here but

also in the United States and elsewhere, appoint justices who, in their view, will help propel their programs of government.

During the Marcos martial law era, the entire judiciary reeled from presidential pressure, producing black-hole cases like Javellana vs Executive Secretary (March 31, 1973) that validated the ratification of the 1973 Constitution by a raising of hands during barangay assemblies, not by secret ballots in a nationwide plebiscite.

Yet, in spite of Marcos’ cleverness, he could not prevent the rise of judicial heroes among his appointees, like CJ Roberto Concepcion, Justices Claudio Teehankee (who later became CJ), Cecilia Muñoz-Palma and Ameurfina Melencio-Herrera. Of course, judicial villains rose, too—too many to list in my limited space.

President Corazon Cojuangco Aquino appointed all the justices when she ascended to power. Yet, she did not always get what she wanted. The Court remained generally independent.

President Gloria Macapagal Arroyo, during her nine-and-a-half-year incumbency that is second in length only to Marcos’ 21, named a majority and eventually the totality of the high tribunal, including three chief justices.

But she did not completely control the Court. For example, she failed to get the Court’s imprimatur in the people’s initiative to adopt the parliamentary system. Neither was her executive issuance granting herself emergency powers upheld.

In the final analysis, the ascendancy of the Court depends to a large measure on the justices’ adherence to the four constitutional standards of “proven competence, integrity, probity and independence.”

And this adherence is what public vigilance must insist on, given that, to help the justices protect the people’s rights against executive abuses, the Constitution gave the Court the extraordinary power to invalidate acts done with grave abuse of discretion.

At the same time, the Court is also duty-bound to observe, when appropriate, the prima facie presumption of the regularity and validity of executive actions designed to promote public welfare.

The Court’s brinkmanship in balancing its protection of the people’s rights vis-à-vis its axiomatic respect for executive actions is the ultimate test of its independence. In this sense, public vigilance insisting on the observance of the four constitutional standards will protect the people’s rights and also secure the justices’ place in history. While not all jurists will be hailed as judicial heroes, no one wants to be

remembered as a judicial villain.

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