Integrity of the Supreme Court

“The most critical aspect here is that an appointee may owe a debt of gratitude not to the JBC but to the President.”

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The Supreme Court is replete with shame and glory. In quite a few times, the tribunal had its darkest hours.

Supposedly honorable men had to leave to save the court from shame. In other times, it was replete with fame, respect and glory.

It might be said that the tribunal started losing its integrity and honor when the late Chief Justice Roberto Concepcion, on the alleged prodding of Ferdinand Marcos, created the present Judicial and Bar Council which usurped the functions of the Commission on Appointments.

The purpose was noble. The Court had to be saved from the intrusions of politicians. But it turned out later that the JBC often becomes a rubber stamp. The President, in truth, is the Judicial and Bar Council.

While the JBC has the noble duty of selecting the most qualified lawyers for the judiciary, it is actually operating under the whims and caprices of the President.

The candidates who, by the judgment of the JBC, are the most qualified, can be rejected by the President.

The President can transmit to the JBC, the names of candidates she prefers clearly for her own protection. They do not have the best qualifications but they get the appointments.

Before the creation of the JBC, the President was extremely careful in nominating candidates for the judiciary, specially to the Supreme Court. The Chief Executive is shamed when his nominee is by-passed or rejected by the CA.

By-passed, rejected or confirmed, the decision by the Commission on Appointments is collegial.

The JBC works in reverse. It makes a collegial decision of submitting a list of candidates to the President. The President alone makes the sole decision on who to appoint. The JBC makes the President even more powerful. She does not merely by-pass or confirm a nominee. She can ask the JBC for other names. Under the CA, when a candidate is by-passed or rejected, the President submits other nominees. Under the present system, the President usurped the functions of the CA. She can also usurp the functions of the JBC.

The most critical aspect here is that an appointee may owe a debt of gratitude not to the JBC but to the President.

The ideal is to appoint a most qualified candidate whose loyalty is limited to the Constitution, not to the President who appointed him.

There is this observation that a politician should never be appointed to the Court.

The late Chief Justice Manuel Fernan resigned before his time to run for vice president. He lost.

Former CJ Hilario G. Davide was a member of the Batasan in the days of the dictatorship.

At present, the Court has Associate Justice Dante Tinga, a former congressman from Taguig, and newly appointed Antonio Eduardo Nachura, former congressman from Samar, who was briefly Solicitor General before going to the Supreme Court.

These times are not the days of glory I am talking about.

There were politicians before them who elevated the respect for the Court to its peak. Those were the days when Claro M. Recto and Jose P. Laurel knew nothing but one duty: defend the Constitution at all cost.

Calixto Zaldivar was a congressman from Surigao when he was appointed to the Supreme Court by Diosdado Macapagal in 1963. He played a sterling role.

Before them stood, a young man, slightly more than five feet tall, who imposed on himself a feat that has not been repeated up to this day.

Mariano Honrade de Joya, born in my barrio in Lipa, resigned long before his time.

He told President Manuel Roxas that his income from the Supreme Court could not support the needs of a growing family. He had 12 children.

The Supreme Court has had its share of dark chapters. The late Justice Hugo Gutierrez had to resign because of what was seen as a scandal in handling a case of the Philippine Long Distance Telephone Co.

Justice Ramon Fernandez was forced to protect his name and honor when he resigned because of a bar examination scandal.

In the time of Ferdinand Marcos, Justice Vicente Ericta resigned for the same reason.

At least they resigned and saved the Court.

Times have changed. The fact that a member of the Court, including the Chief Justice, feeling that he owes a debt of gratitude to the President is often subjected to extreme pressure by the Executive Department.

But pressure does not always work. Speaker Jose V. de Venecia asked local justices during an international conference in Manila to approve the Peoples Initiative as a mode of changing the Constitution. President Arroyo worked in her own quiet way.

The Court gave them the back of its hand. The Court also declared unconstitutional Presidential Proclamation No. 1018 which was a disguised version of martial law, EO 464 and the Calibrated Pre-emptive Response which was authority for the police to use brutality on citizens exercising their rights to air grievances.

The rejection of Proclamation No. 1018, EO 464, and CPR, in the face of extreme pressure, is a welcome sign that the Court cannot be told what to do when the justices feel the Constitution is being violated, trampled upon, or in fact raped.

I have begun to see, rightly or wrongly, that a new member of the Court, is usually accommodating, pliant, to the importunings of the Executive Department. Paying back a debt of gratitude, I guess.

But all in good time, he begins to realize that he has only one duty to perform: Defend the Constitution at all costs.

My impression is that the defense of the Constitution as it should be, is the predominant sentiment of the Court.

I am personally comforted by the fact that the case of the People’s Initiative was junked on a tenuous vote of 8-7. On motion for reconsideration, the magistrates spoke with one voice. They rejected People’s Initiative unanimously.

They embarrassed the President in the name of the Constitution.

The next five

Five justices will retire by the time President Arroyo steps down in 2010.

One might say that the majority of honorable magistrates who make decisions affecting the Executive Department in their best lights and not in obedience to the President, will soon be a minority. The tribunal will be an Arroyo Court.

Associate Justice Romeo Callejo retires on April 27. He is to be replaced by Labor Secretary Arturo Brion who was plucked from the Court of Appeals or Teresita de Castro, presiding justice of a division in the Sandigan.

In my book both of them are qualified.

From what I have seen, the nominee appointed would show gratitude to the President in his initial years. The example is Justice Nachura. Instead of inhibiting himself from participation in the deliberation of the Piatco case which he fought when he was solicitor general, he voted for the approval of a petition for certiorari.

But as his immersion in the necessity of defending the Constitution progresses, he will become independent.

Yet, there is a perception that four magistrates continue to be loyal to the President and not the Constitution. One, not the most industrious, has been promised to become Chief Justice. I dread that day, if he is appointed CJ.