PerryScope
By Perry Diaz

Recently, a Manila newspaper prefaced its editorial, “The new chief justice must not be anything less than a tower of moral virtues. He must also be a firm champion of judicial independence, the principle of the separation of powers between the three co-equal branches of government.”

This brings to mind my article, “Judicial Independence” (November 24, 2006), which I wrote in the aftermath of the Supreme Court decision that dismissed the petition for a people’s initiative to amend the Constitution.  Had the High Court approved that petition, it would have paved the way for then President Gloria Macapagal Arroyo to become Prime Minister under a new parliamentary system for which the petition was intended.

The following is what I wrote on the subject of “judicial independence” six years ago.

Judicial Independence
November 24, 2006

The recent decision of the Philippine Supreme Court to dismiss the petition for a people’s initiative to amend the constitution to replace the presidential system with a parliamentary form of government has created a political storm. With a bare 8-7 majority, the decision penned by Associate Justice Antonio T. Carpio caught a lot of people by surprise. People close to President Gloria Macapagal Arroyo were expecting the Supreme Court to vote in favor of the petition by at least a 9-6 majority. Why not?

It is interesting to note that President Arroyo appointed 11 of the 15 justices of the Supreme Court. Although former President Fidel Ramos appointed Supreme Court Justice Artemio V. Panganiban originally as Associate Justice in 1995, it was President Arroyo who appointed him as Chief Justice last year. Of the 11 Arroyo appointees — including the Chief Justice — six voted for the rejection of the petition. The two justices appointed by deposed President Joseph Estrada also voted with the majority. Of the five female justices, four voted with the majority. Indeed the majority vote against the initiative would tell us that the Judicial Branch of the government has maintained its independence and integrity — a healthy sign that democracy is still alive in the Philippines.

In the 52-page decision authored by Justice Carpio, he said that the High Court “cannot betray its primordial duty to defend and to protect the Constitution.” He asserted that to allow the “constitutionally infirm initiative, propelled by deceptively gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the Constitution.” This was in reference to documented reports that those signing the petition did not know what they were signing. There were reports of signature-buying and coercion by barangay leaders. Justice Carpio wrote: “For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the proposed changes before signing.” He alluded that by deceiving the signatories, the entire nation was deceived as well. Carpio concluded that “an initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendment is most likely a deception, and can operate as a gigantic fraud on the people.”

Who is Justice Carpio? Born in Davao City of Ilocano father and Visayan mother, Carpio was President Arroyo’s first appointment to the Supreme Court. Appointed on his 52nd birthday in 2001, Carpio is the youngest among his peers in the High Court.

Carpio earned his undergraduate degree in Economics from Ateneo de Manila University in 1970 and obtained his law degree from the University of the Philippines in 1975 where he graduated Cum Laude and valedictorian. He placed sixth in the Bar Examination in the same year. He was a member of the Sigma Rho fraternity and also served as Managing Editor of the Philippine Collegian, the official organ of U.P. In 1980, he and two other Sigma Rhoans — Arthur Villaraza and Avelino Cruz, who recently resigned as Arroyo’s Secretary of Defense — founded the law firm Carpio, Villaraza and Cruz.

Carpio served as the firm’s managing partner until his appointment in 1992 by then President Fidel Ramos as Chief Presidential Legal Counsel. In 1997, he returned to law practice and also served as the Executive Director of the ASEAN Business Law program of the UP College of Law. In 1998, President Ramos awarded him the Presidential Medal of Merit. In 2001, President Arroyo appointed Carpio as Associate Justice of the Supreme Court.

The Supreme Court under the leadership of Chief Justice Panganiban and his predecessor, Hilario Davide, Jr., has been steadfast in protecting the sanctity of the constitution of the republic. And there is nothing more important than the issue of changing the constitution itself. Chief Justice Panganiban was the swing vote that tilted the High Court to vote in favor of Justice Carpio’s opinion — two jurists who would have reason to show “loyalty” to President Arroyo for appointing them to their current positions. But they demonstrated their independence beyond doubt and their acts further reinforced the democratic foundation of the nation.

With Chief Justice Panganiban’s impending retirement by the end of 2006, President Arroyo — for the second time in her presidency — is going to appoint another Chief Justice. Traditionally, one of the senior associate justices — for a number of good reasons — is chosen for the post. Recently, however, an “outsider” — Senator Miriam Defensor-Santiago — has been nominated for the top post. While Miriam, as she is fondly called, is undoubtedly qualified for the position, there are reasons for apprehension to her appointment as Chief Justice.

Miriam’s background in jurisprudence is par excellence. She graduated cum laude from the UP College of Law in 1969, earned a Masters of Laws degree from the University of Michigan in 1975, and finished her law doctorate after only six months. In 1983, she was appointed as Presiding Judge of a Regional Trial Court in Quezon City. In 1992, she ran for President and lost. In 1995, she ran for Senator and won. She ran again for President in 1998 and lost again. In 2004, Miriam made a political comeback when she ran for Senator and won. Her term ends in 2010.

If Miriam is going to be appointed Chief Justice, she is going to cross the boundary that separates the Legislative Branch and the Judiciary Branch of the government. While it is perfectly legal for her to make the move, there are questions — and doubts — that would always be hovering over her head. She’ll bring to the High Court all the political baggage that she may have accumulated over the years. Think of the hordes of political leaders and supporters — most of who may have contributed money to her campaigns — to whom she owes “utang na loob” (debt of gratitude). Is she going to exercise judicial independence in making her decisions? Or would she succumb to pressure from her political benefactors and base her judicial decisions on “political expediency”? As Chief Justice, she may be recused from participating in deliberations regarding cases where she may have — real or perceived — conflict of interest with people involved in those cases.

President Arroyo should desist from appointing a political figure to the Supreme Court. The wall that separates the Judicial Branch from the Legislative Branch must remain impenetrable. To put a revolving door between the two branches of the government would compromise the integrity — and independence — of the judiciary system. President Arroyo should — nay, must! — appoint from the ranks of the best and the brightest jurists of the land. And to appoint politicians, particularly political allies, to the High Court could invariably give unchecked — if not absolute — power to the Executive Branch. As Lord Acton warned more than a century ago, “Power tends to corrupt, and absolute power corrupts absolutely.” It was true then, it is truer today.

“Arroyo Court”

In 2009 and the early part of 2010, at least seven justices including Chief Justice Reynato Puno retired.  This gave Gloria an opportunity to stack the High Court with justices who were loyal to her.  When Puno retired early, it gave Gloria a golden opportunity to appoint Justice Renato Corona — her former Chief of Staff when she was Vice President — as Chief Justice. That was the end of the High Court’s independence.

Now that Corona is removed from office, the Judicial and Bar Council is faced with a daunting challenge. What yardstick would they use to measure a nominee’s independence?   With 65 nominees and two applicants for the Chief Justice position, the “process of elimination” would be quite interesting to watch.

(PerryDiaz@gmail.com)