BEYOND THE BEND: Will there ever be judicial independence in the Philippines?

MELBOURNE, Australia (MindaNews / 18 May) – Anomalies in our constitutional order were highlighted by the recent Supreme Court decision on the quo warranto petition against Chief Justice Maria Lourdes Sereno. One of which is the fragility of our system of separation of powers.

To truly appreciate the negative impact of the Sereno decision, the doctrine in the very old case of Angara vs. Electoral Commission must be recalled:

“The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed “judicial supremacy” which properly is the power of judicial review under the Constitution.” [G.R. No. L-45081, July 15, 1936]

In short, “the Constitution means what the Supreme Court says it means”. This was the constitutional mindset under the 1935 Constitution which was carried through both in the 1973 and 1987 charters.

Hence, we may disagree with the decisions of the Supreme Court, but to say they are unconstitutional defies logic. They may be wrong, immoral and even ridiculous, but it will always be constitutional as per the judicial review powers established by the 1987 Constitution.

The sad fact is the opinion of the community only matters when the Supreme Court says it does. I think this is an abomination which Filipinos must collectively address.

Pertinently, former Chief Justice Puno and Atty. Rudy Robles are trying to make this change by pushing for the establishment of a Constitutional Court in the Consultative Committee’s draft federal constitution.

The 1987 Constitution established three co-equal branches of government, executive, legislative and judiciary, with the intention of neither one being superior to the others. The charter envisions each branch autonomously functioning within its own mandated competency, with a directive to hold each other accountable as well as an invitation to cooperate and coordinate when warranted.

Ironically however, executive authority designed by the 1987 Constitution has given life to a president who is so powerful that the lawyer for the Government of the Republic of the Philippines, like everyone else within the central bureaucracy, functions at his beck and call. Ostensibly, the checks and balance constitutional arrangement will always be under threat.

An omnipresent Chief Executive will definitely have a strong influence over the two other branches of government. With the judiciary specifically, this was clearly shown by President Ferdinand Marcos when he appointed close and personal allies to the Supreme Court.  The case of Javellana vs. Executive Secretary [G.R. No. L-36142, March 31, 1973] is evidence of how a strong and powerful president can make justices of the highest court in the land submit to his will.

Note that the Supreme Court in this case ruled that President Ferdinand Marcos railroaded the adoption of the Constitution in 1973. The citizens’ assemblies he organized wherein the ratification of the charter was determined by a show of hands were declared to be improper and could not be the basis to legitimize a constitution.

In fact, the Court opined that this exercise was an absolute farce not only because of its inherent inanity but more so because Marcos’ guns and goons were outside the halls where these assemblies were held. A scenario which obviously precluded any legitimate outcome arising at all from the said process.

And yet, according to Professor Dante Gatmaytan-Magno in his article, Changing Constitutions: Judicial Review and Redemption in the Philippines─

“In Javellana a majority of the Supreme Court declared that the 1973 Constitution was not properly ratified. However, because the constitutional requirement of two-thirds of the Court voting to declare a law unconstitutional was not met, the Court also concluded that the new charter was already in effect. That decision allowed Marcos to govern under a dictatorship until he was forced out of office in 1986.”

Some have argued that President Rodrigo Duterte is doing a Marcos by filling up the Supreme Court with appointees from his law school. This bold critique is getting harder to refute because the Court has consistently churned out decisions in favor of his administration. For Mindanaons, the affirmation of the extension of Martial Law is the most painful.

To be fair, President Gloria Macapagal-Arroyo also appointed her long-time associate, the late Renato Corona, to the Supreme Court. Indeed, even President Benigno Aquino III appointed very close allies to the Court, case in point is former Chief Justice Sereno herself.

It is worth recalling that in appointing Sereno as top magistrate, President Aquino disregarded the long-held tradition of respecting seniority within the High Court. In fact, Sereno was so junior her designation meant skipping over several more senior justices.

Of course, appointing whoever they deem fit for the judicial post is well-within the power of Presidents Arroyo, Aquino and Duterte. But a firm and genuine adherence to the constitutional tenet of separation of powers would have compelled them to choose qualified and deserving candidates who had no personal ties with them.

But the president’s almost monarchical status always trumps an uncompromising belief in the principle of separation of powers. This is fatal because from the community’s perspective, the privileged standing of the Supreme Court is often exploited for purposes of personal vendetta and political accommodation.

Indeed, history has shown that the executive’s dominant influence over the judiciary always results to the degradation of our constitutional order. Javellana vs. Executive Secretary, Marcos vs. Manglapus, and now Republic vs. Sereno are just a few examples.

Professor Gatmaytan-Magno still referring to the Javellana case, perfectly describes the fear in the minds of many Filipinos now, to wit:

“Since that time, the Supreme Court has had to live with the realization that it became an accomplice to the emasculation of Philippine democracy. Many wonder if the Court will allow itself to be used in a similar fashion at some point in the future—or the present.”

(Michael Henry Ll. Yusingco, LLM is a legislative and policy consultant, law lecturer, a Non-Resident Research Fellow in the Ateneo School of Government, and author of the book, Rethinking the Bangsamoro Perspective. He is a regular contributor in various news and public affairs organizations in the Philippines and Australia.)