It is really just about accountability

I was wondering why a lot of lawyers, some of them my dearest friends who I know actually know better, think of the Supreme Court the way members of the Opus Dei think of the Pope: totally unassailable. To me, I see the Supreme Court as just one more human institution subject to human failings and as such must always be accountable for its actions. To say that one has to defend the Supreme Court, right or wrong, is simply going back to the dark ages and not worthy of thinking people in a modern democracy.

The concept of the Supreme Court’s infallibility had largely been absurd to me. I remember a dinner table discussion many years ago when I was still in high school on this same topic. My older sister, who was then reviewing for the bar examination (she was a UP Law class valedictorian and was among the top ten that year) was discussing it with Carmelo V. Sison, who later became her husband and a UP Law professor. I was being my usual precocious kibitzer of a kid brother.

I remember Carmelo saying that “the law is what the Supreme Court says it is.” Even when they are obviously wrong? I remember asking. Yes, he said, even if the SC is wrong, it is right… because it is at the foundation of law and order in a civilized society.

Fresh from my high school civics class, I asked, “what about check and balance?” I could see the Constitutional wisdom in making sure no branch of government gets too powerful… the other branches are there to balance each other out.

Well, I was told, Congress can exercise its power over the purse on the Supreme Court. Or Congress can exercise its right to impeach the members of the Court. The Executive branch can control budget releases. The Executive branch also controls the police and the armed forces and the Court, a toothless tiger, needs these resources to implement its decisions.

The real power of the Supreme Court over the two other branches is its moral ascendancy… its being above the normal political fray… its being a collegial body of wise men (and women) with no other interest other than to see justice is delivered. That’s something the current Court can hardly honestly claim for itself.

The Court’s loss of prestige started in that sad day in September 1972. That was when a most beloved institution in our democracy fell apart as martial law was declared. Soon enough the Supreme Court Chief Justice was holding an umbrella over the head of the First Lady, something I found most demeaning for someone who holds such an exalted position.

Actually, the martial law Supreme Court did much worse than having its head playing aide-de-camp to the dictator’s wife. It ratified the dictatorial decrees of Mr. Marcos, giving legal imprimatur to our loss of civil liberties and allowed a kleptocracy of cronies to thrive. It failed to live up to its role as the defender of our Constitutional liberties. Unlike the heroic Jose Abad Santos, the martial law justices preferred not to peer into the barrel of a gun.

Martial law ended but somehow, the Supreme Court was never really quite the same again. Sure we had respectable Justices who were academically distinguished and some who had good reputations from their years in the bar and bench. But it never again became the institution one would put up on a pedestal and hail as the protector of our rights and the impartial arbiter of conflicts.

I was shocked one afternoon some years after EDSA 1 when I chanced upon the inauguration of an outlet of the Mrs. Fields cookie chain at Mega Mall. There he was, the Chief Justice of the Supreme Court in his distinguished grey eminence cutting the inaugural ribbon. It was as undignified a situation as a Supreme Court Chief Justice could get himself in.

On the case at hand, my take on it is simple. We have to make the Supreme Court more accountable to the people. As an over reaction to martial law, the framers of the Cory Constitution made the judicial branch a bit too powerful for our own good.

In an attempt to make our courts more independent of politicians, a Judicial and Bar Council was created to pass on appointments. Our experience during the Arroyo years shows that the JBC simply did deliver on the promise. Whoever the President wanted to appoint, she managed to get the JBC to include in the list of nominees she was supposed to choose from. That process proved inferior to a public vetting by the Commission on Appointments as provided in the 1935 Constitution.

The way it is instituted now, the Supreme Court seems the most powerful of the three branches of government. It can veto anything the two other branches want to do. Not only that, the Constitution has given it the power to, on its own, delve into actions of the other branches whenever it thinks there is abuse of discretion.

Yet, there is no one a citizen can run to and complain about abuses or mistakes of the SC because it is the last word. Some people are warning of a dictatorship, this is it. A journalist who did an in-depth report on the inner workings of the Supreme Court was sued for libel. What lower court judge would dare go against a sitting SC justice? SC Justices should not be onion skilled about criticism because it is the only remaining way to keep them honest.

It was not surprising the Supreme Court turned out to be the perfect vehicle for Mrs. Arroyo to use as her ultimate protector after she left office. And as the articles of impeachment point out, her loyal appointees in the court have lived up to her expectations. Ironically, they now have the gall to call themselves independent. This was what P-Noy was bristling about.

Thus, I found nothing wrong when P-Noy told the Chief Justice to his face his feelings about him. P-Noy’s litany of the Court’s failures is pretty much at the back of a lot of people’s minds. I thought it was P-Noy’s duty as our elected leader, to let the Chief Justice and the Arroyo camp know that we, P-Noy and the nation, are on to their game and we will not stand for it.

So the impeachment resolution was fast tracked. But the SC also fast tracked the issuance of the TRO that would have allowed Mrs. Arroyo to fly away from the serious charges she is facing here. I do not buy the argument of many lawyers that P-Noy is courting a constitutional crisis. Impeachment is part of the Constitution, it is a process provided there for the purpose of making the members of the Court accountable. What’s wrong with that?

To me, the Supreme Court majority acting like an Arroyo Court is the real constitutional crisis. An independent Supreme Court is not just one that is independent of Malacañang but also of Mrs. Arroyo. What the impeachment process hopefully will do is recover that independence of the high court the framers of our Constitution had in mind.

I am all for respecting the Supreme Court, the institution. But respect is earned. The SC must always be able to rule from a moral high ground, something it had lost these many years. It is to the credit of a post martial law justice caught plagiarizing to quickly resign. That was the last time the interest and the reputation of the Court were placed above that of any of its members.

But those days when delicadeza can still be counted upon are over. Not only did a justice who was recently caught plagiarizing not want to resign, the Supreme Court acting like a fraternity of juveniles, censured the UP professors who thought he should. Times have indeed changed and definitely not for the better.

I agree with my colleague Peter Wallace when he wrote in his Manila Standard column that “the law is the servant of society and is obligated to act in a manner that is best for society.” The country’s economic development depends on a Supreme Court worthy of our respect. No investors, local or foreign, will risk capital in a country where the judicial system is iffy as it flipflops on decisions so many times like an auctioneer looking for the highest bidder. Business needs certainty in the short if not the medium term. As Peter pointed out, “the Philippines has to break out of the morass it’s now in but it won’t with the court system that now exists.”

That, I believe, is what P-Noy is trying to achieve, have a court system we can respect, as is his duty to ensure.

 Boo Chanco’s e-mail address is [email protected]. He is also on Twitter @boochanco