THE LEGAL FRONT
By JUSTICE ART D. BRION (RET.)
In no time at all, the public’s fixation on the choice of our elected leaders shall be displaced by its interest in changes within our unelected judiciary.
Still unknown to many perhaps, major changes in the composition of our Supreme Court will take place this year. Four more justices – the senior ones – shall retire from the service, thus almost completely changing the composition of the Court sitting when President Duterte was sworn into office.
Since June 30, 2016, Justices Perez, Brion, Mendoza, Sereno, De Castro, Velasco, and Reyes, the incumbent justices when President Duterte assumed office, have left the judiciary. Four more justices – Justices Del Castillo, Jardeleza, Bersamin, and Carpio – will leave before 2019 is over.
Thus, 11 of the 15 justices originally sitting in June, 2016 are or will be gone. The court, with a new composition, would almost be a different court. Only Justices Peralta, Bernabe, Leonen, and Caguioa (four of the original 15) will remain.
These changes constitute a major compositional shift. With new justices will come new views and positions possibly affecting even previously settled legal doctrines and principles.
In the US, this kind of change signified a major shift in decisional directions as the US Supreme Court revisited past precedents along liberal-conservative lines. New rulings hewing to conservative thinking have emerged, touching on travel ban for Muslims, voting rights, abortion, racial gerrymandering, labor unions, and workplace arbitration – important and sensitive areas of American life.
To be sure, changes will also transpire in our own court’s rulings as our new justices respond to changes in our society, politics, and national developments. But I doubt if the changes will be along liberal-conservative lines as have been happening in the US; no clear division along these lines exists or appears to be developing in our Supreme Court.
Whether partisan political considerations shall dictate the thrust and tenor of court decisions will be a question in many minds, given the extent of the court’s compositional change and President Duterte’s opportunity to appoint a majority of the court. Not a few have accused the court in the past of being “political” by kowtowing to the sitting president or to the presidents who appointed them.
This accusation is largely undeserved. From my own experience, most of the justices I worked with saw the issues based on their individual non-ideological values or interests, cultural background, upbringing, education and experiences. The politics or interests of the sitting or appointing presidents rarely, if ever, actively figured in the deliberative process or in the justices’ decisions.
Note, for example, the DAP and the PDAF cases where the administration had active interests to protect and where the court, almost unanimously, ruled against the administration based on strict legalities. The controversial Truth Commission and the Reproductive Health cases were similarly decided along strictly legal lines.
A divided court ruled on the Hacienda Luisita, the Grace Poe, and the Ponce Enrile bail cases with differing results.
In Hacienda Luisita, the court – along legal lines – ruled against the interests of the sitting president whose family owned the hacienda. In contrast, in Grace Poe, personal sentiments rather than strict legalities appeared to have prevailed in deciding Senator Poe’s Filipino citizenship and residency status. Internal differences in handling the case, to a large extent, influenced the grant of bail in Ponce Enrile.
Under President Duterte, the court ruled in the administration’s favor on the martial law cases, thus effectively setting new perspectives on the legality of martial law declarations. The rulings, however, cannot wholly be considered concessions by the court to the sitting President.
The court, together with the public and the administration, struggled with national survival issues – the Islamic terrorist attack in Marawi and stability concerns in Mindanao. It was against this backdrop that it established its views on how massive terrorism – a relatively new phenomenon in the Philippines – fitted into the specified grounds and the coverage of martial law declarations. These factors, in varying degrees, interacted to bring about the court’s martial law rulings.
The interesting cases to watch under a new court composition would be the the cases that Senators De Lima and Trillanes would bring, given that these potential petitioners are politicians who have given strong political color to their cases.
These cases, in my view, may not be difficult cases to decide from the perspective of legality, but the public may nevertheless consider these rulings controversial because of their partisan political color. The public verdict may turn based on the approaches and tenor of the court’s decisions.
A governance reality that the nation and the court have to live with is an appointment process that can hardly escape the clutches of politics. This is the cost we pay under the constitutional democracy we copied from the United States.
Judicial appointments are made by a president whose duties are largely political and who formulates (in tandem with a political Congress) and implements policies.
It cannot be lost on him that justices and judges are uniquely in the position to pass upon the validity of his policies and their implementation. Thus, his considerations in appointing judicial officials might just be different from those in play in appointing other officials.
Our Constitution, unfortunately, is neither powerful nor pervasive enough, to overcome human nature and its tendency to favor those of like mind, views, and sentiments, and to disfavor those with contrary views.
Aware of these realities, the Constitution has interjected a Judicial and Bar Council in the judicial appointment process, but experience has shown that the JBC – itself the product of a political appointment process – might not be enough to insulate the judicial appointment process from partisan politics. Its consideration of the application of deposed Maria Lourdes Sereno for chief justice serves as a good example of a JBC that had grievously erred.
But experience also shows that magistrates – with the exception of a few – metamorphose and generally adopt an independent stance when they assume their judicial office, based mainly on the obligations they assumed under their judicial oath of office.
To be sure, the exceptional few who violate these obligations should not be the cited models and should not be enough to characterize the judiciary as a whole, or the Supreme Court specifically, as a non-independent tribunal subservient to partisan political interests.
To do so would be an unfair characterization and a disservice to the judiciary of the many who honorably discharge their assumed duties. Rather than be unfairly critical, the public should be alert, discerning and ever ready to expose the individual justices or judges who violate their oaths.
Nevertheless, the quality of decisions and the exercise of independence of the court I saw can, on the whole, still be improved. I hope these improvements will come with the court’s new composition.