Passion For Reason
The other meaning of ‘political court’
By Raul Pangalangan
Philippine Daily Inquirer
First Posted 21:16:00 04/22/2010
THE INQUIRER’S EDITORIAL on Thursday struck at the heart of the raging debate on whether President Macapagal-Arroyo is entitled to appoint the new chief justice: the “uncomfortable truth” about the “public perception of the high court as politically partisan.” I share that concern but offer another way to telling what makes a court political. All courts are political. It’s just a difference of whether they are attuned to the crass politics of personal favors (bad), or to the loftier politics of constitutional values (good).
Locally, a judge is considered “political” if he decides according to forbidden loyalties to favor either his political patron or the highest bidder among the litigants. That is politics in a conspiratorial, Machiavellian sense. That is “politics with a small p,” and it is wrong. To find those judges, you must turn to Sherlock Holmes.
Abroad, there is a classic school of thought called Legal Realism advanced more than a century ago by Oliver Wendell Holmes Jr., who recognized that all judges are human beings affected by the whole range of biases acquired over a lifetime—and that, he said, was simply inevitable. The goal therefore was to expose and surface those biases, and test them against the values enshrined in the Constitution. When a judge adheres to “politics with a capital P,” it is good. That is why Holmes concluded: “The business of a law school is … to teach law in the grand manner and to make great lawyers.”
Holmes said: “The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose… But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form.”
The critics of the Supreme Court have embraced the wrong Holmes. That is why the Supreme Court’s latest ruling contained a “Final Word,” which is worth quoting here.
“It has been insinuated [that] because all the Members of the present Court were appointed by the incumbent President, a majority of them are now granting to her the authority to appoint the [next] Chief Justice. … The insinuation is misguided and utterly unfair. … The Members of the Court vote on the sole basis of their conscience and the merits of the issues. Any claim to the contrary proceeds from malice and condescension.”
I am prepared to grant as much to the Court and lament the personal attacks, especially against Justice Renato Corona and, even worse, against his wife. The mudslinging demeans both the office of the chief justice and the Court itself.
SC critics are better off with the Legal Realist test. For instance, they invoke the separation of powers and the independence of the judiciary from the executive. The SC decision rightly says that, on the contrary, if you want the chief justice to be inclined to check the president, it’s better to have the outgoing president do the appointing. From a purely textual standpoint, they’re absolutely right. If the goal is to have checks and balances, why have the “check-er” appointed by the “check-ee”? But from a historical standpoint, they cannot be more wrong. The true threat to the Constitution right now is an outgoing Arroyo scheming to insulate herself from the courts after her presidential immunity dissipates into thin air by June 30, 2010.
That only brings us to the next problem: translating what is historically necessary into what is legally correct. The real feat of the Supreme Court is that it gave logical form to a substantive conclusion that I personally think is really far out, as I have explained in past columns.
The Court had several choices. One, it could have washed its hands and declared the case premature. Two, it could have affirmed established doctrine, and held that judicial appointments including that of the chief justice are covered by the elections ban. And three, as it actually has done, the Court has seized the bull by the horns, reversed the case-law, and ruled that the elections ban did not apply to the appointment of the chief justice.
From the standpoint of legal doctrine, either Option 1 or 2 would have offered the path of least resistance. Either way, the Court would be able to reconcile what is historically desirable with what is legally settled. But Option 3 takes the cake because it pushed for deviations from established doctrine while extending the reach of a lame-duck President, insulating herself from justice.
To take Option 3, the Court had to deviate from settled rules: that its clashing provisions must be reconciled and that the two competing clauses of the Constitution here can be reconciled by merely letting the next president appoint. The lowest point was when the Court gratuitously addressed a question not even raised squarely before it—whether the President can appoint even without a list from the Judicial and Bar Council—and suggested it would say yes.
On the other hand, what troubles me with the usual criticisms of the latest SC ruling is the ideological position that courts should mechanically apply the law and not interpret it, as if that were ever truly possible, and that courts should mainly adhere to established doctrine and never reverse it. Remember that the most magnificent strides in civil rights were made by bold justices who dreamt of a more just world and dared to stretch legal texts way beyond the rigid meanings that had caused pain to countless innocents.
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see:
http://opinion.inquirer.net/inquireropinion/columns/view/20100422-265878/The-other-meaning-of-political-court
