Judicial subservience and independence

With the elevation of Justice Rodil V. Zalameda, former chair of the 17th Division of the Court of Appeals, President Duterte’s appointees now constitute a clear majority (eight of the 15 members) of the Supreme Court. And as I pointed out in this space on 7/21/19, he will be able to name three more before the end of this year, with the retirement of Justices Francis H. Jardeleza (on Sept 26), Lucas P. Bersamin (Oct 18) and Antonio T. Carpio (Oct. 26), thus giving his appointees a supermajority of 11, with a bonus of naming a new CJ to replace Bersamin.

Some critics fear a subservient Court. They say that the President will control all three branches of government and the vaunted system of checks and balances would be rendered inutile.

In fact, even without such supermajority, they add, the President already enjoyed favorable rulings in such “foreboding” cases as the burial of the late President Ferdinand Marcos in the Libingan ng mga Bayani and the quo warranto ouster of CJ Maria Lourdes P. A. Sereno.

This fear was aggravated when former president and former speaker Gloria Macapagal Arroyo, during an appreciation dinner held in her honor on July 9 by her former colleagues in the House of Representatives, credited to the President her acquittal by the high court, penned no less by the current CJ Lucas P. Bersamin when he was still an associate justice.

Exclaimed the former president: “Most of all, I thank you (referring to Mr. Duterte who attended the dinner) that when you became President, you provided the atmosphere in which the Court had the freedom to acquit me of the trumped-up charges of my successor and your predecessor, so that the Court voted 11-4 in my favor, including half of those who were appointed by my successor.”

Immediately denying the innuendo, the Court’s chief public information officer Brian Keith Hosaka assured the public “that the Supreme Court has and will always act independently and free from the influence of the other branches of government…”

I cannot speak for the present or future Courts, but I dare say that in the past—except during the martial law regime of Ferdinand Marcos—it has, more often than not, spoken and acted independently.

President Corazon Aquino appointed all the justices when she ascended to power via a revolutionary government. Yet, the Court remained independent as it struck down some of her acts and edicts.

Even President 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 court’s membership. But she did not control the Court.

Modesty aside, I owe her my appointment as chief justice, yet the Panganiban Court, though dominated by her appointees, promulgated several major decisions against her wishes: Senate v. Ermita (April 20, 2006) unanimously invalidated her claimed executive privilege; Bayan v. Ermita (April 25, 2006) unanimously voided her “calibrated preemptive response” policy; David v. GMA (May 3, 2006) reversed, by a vote of 11-3, her emergency powers; and Lambino v. Comelec (Oct. 25, 2006) junked, 8-7, the people’s initiative to install the parliamentary system here.

Despite these, my personal relations with her remained cordial and friendly. Even after I had retired, she invited me occasionally, through then Foreign Secretary Alberto G. Romulo, to the Palace for consultation on vital state matters.

My point is that the Court, despite being composed of the appointees of an incumbent president, could still be independent when the facts and circumstances require it. The President and the Court could disagree without being disagreeable.

Indeed, critics should not condemn the Court simply because the majority or totality of its members owes their appointments to the incumbent president. The justices are fully aware that their decisions and votes are recorded eternally in books and other repositories from where the public, including their heirs and descendants, continuously review and rate their performance all the time.

The justices know what our people expect from them, namely, fealty to the constitutional mandate of “proven competence, integrity, probity and independence,” with emphasis on “independence.”

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