Friday, September 4, 2015

What kind of president should we elect if we want a better Supreme Court?

See - BusinessWorld | What kind of president should we elect if we want a better Supreme Court?

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The next president will choose the members of the Cabinet who will help run the executive branch of the government. Perhaps even more crucial, the president who is elected in 2016 will appoint no less than 10, or a majority of members of the Supreme Court. Yes, Virginia, this is unbelievable but true. No less than 10 members of the Supreme Court are retiring during the term of the next president.

We still have a long way to go in our journey toward a truly civilized government of laws, rather than of men.

Because the current Supreme Court is largely dominated by appointees of the highly political former President Gloria Macapagal Arroyo, we have, during the last five years, encountered questionable Supreme Court decisions, often penned by Associate Justice Lucas P. Bersamin whose ponencias often escape logic, or worse, the law. Decisions by the current Supreme Court majority have often been a heavy burden, like a yoke around the neck of Daang Matuwid.

The latest decision, which was to grant bail to Senator Juan Ponce Enrile, accused of plunder, and therefore, according to law, is not allowed bail, is incredible. The crime of plunder is a capital offense, punishable byreclusion perpetua and therefore non-bailable.

How the Supreme Court arrived at the majority decision to grant bail to Senator Enrile is unbelievable. And if not reversed, it has set a dangerous precedent where the Supreme Court can in effect violate the law.

Let me quote from Bersamin’s ponencia: “With his solid reputation in his public and his private lives, his long years of public service, and history’s judgment of him being at stake, he should be granted bail.”

The public is not unaware of the public exposé of Senator Enrile’s wife Cristina of his constant philandering. There are also enough victims of martial law who on orders of then Martial Law administrator Enrile were arrested and incarcerated with unspecified bases. Enrile also cooperated in the exploitation of coconut farmers as Chairman of the Marcos-era United Coconut Planters Bank. Enrile’s vast wealth, considering that he has been in public service since the Marcos presidency, is hard to explain.

Those who voted to grant bail to Senator Enrile were Justices Presbitero J. Velasco, Jr., Teresita J. Leonardo de Castro, Arturo D. Brion, Diosdado M. Peralta, Mariano C. del Castillo, Jose P. Perez and Jose C. Mendoza, all appointees of former President Arroyo. Justice Bienvenido L. Reyes recused. The dissenters were Justices Antonio T. Carpio, Estela M. Perlas-Bernabe, Marvic Mario Victor F. Leonen and Chief Justice Maria Lourdes A. Sereno. Although appointed by President Gloria Macapagal Arroyo, Justice Carpio has been generally independent in his voting behavior from the majority.

Already there is understandable hue and cry from various quarters, including the radical left and families of senior citizens for equally compassionate release of their own, who are “languishing in jail”. How will the Supreme Court deal with these issues?

The symbol for justice shows a blindfolded Lady Justice holding a balanced scale, indicating all are equal before the law. Shall we therefore release all senior citizens from jail, whatever their crimes? The precedent has been set. No one should be more equal than others.

When Mr. Leonen’s dissenting opinion found its way into the media, Mr. Bersamin wailed that the “vow of silence had been violated”; he did not question Mr. Leonen’s opinion. I say, to Hades with the “vow of silence.”

Supreme Court justices, like other government officials must be accountable to the people, under our Constitution.

This majority of the Supreme Court justices, more or less, is the same one that voted to release 20% of sequestered San Miguel shares to Eduardo “Danding” M. Cojuangco Jr. justified in the same Bersamin’s ponencia that there was no evidence that Mr. Cojuangco was a Marcos crony. This, despite the fact that Mr. Cojuangco was so tied up with Marcos’ interests that he rode on the same plane that flew the Marcoses to Honolulu in 1986. This was the statement which then Associate Justice Conchita Carpio-Morales, in her dissenting opinion referred to as “the biggest joke of the century.” Mr. Cojuangco speedily sold these shares to his partner, Ramon S. Ang. Joey Faustino, Executive Director of the Coconut Industry Reform Movement has asked for an investigation of Lucas Bersamin for “possible gross ignorance of the law, knowingly rendering an unjust judgment and other alleged violations of ethical standards.”

This majority also legitimized the midnight appointment of the disgraced and impeached Chief Justice Renato C. Corona against the law barring presidential appointments 60 days before the next presidential election. Sec. 15, Article VII of the 1987 Constitution provides that “Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service”

Justice Teresita Leonardo de Castro, who while still at the Sandiganbayan presided over the conviction of former president Joseph Estrada for plunder, unbelievably voted with the majority, as no less than the ponencia against disqualification of Estrada as Mayor of Manila.

This is also the Supreme Court that has flip-flopped on its decision regarding the case for illegal dismissal won by the Flight Attendants and Stewards Association of the Philippines on which the Supreme Court reversed itself. Motion for Reconsideration for this has been pending for years. Meanwhile, ownership of Philippine Airlines has returned to Lucio Tan, under whose management the illegal dismissal was alleged to have been committed.

Alleluia, during the next administration, all of these justices, who have comprised the majority, will retire. We should joyously clap our hands and say goodbye, good riddance to the whole lot. But who will take their places?

The next president will appoint their replacements. This is a question that has to be confronted by the voters.

What kind of president should we elect? The president will have enormous powers, not only over the choice of his Cabinet, but crucially, in the choice of the incoming justices of the Supreme Court.

In fact, the next president will also choose the next Ombudsman because current Ombudsman Conchita Carpio-Morales will retire in 2018. Whence comes such another?
Our choice of the next president must go beyond popularity. We must consider the candidates’ values and unquestionable, mature judgment of character and the facts, which will determine the kind of justice system we shall have for six years.

Will the next Supreme Court bring us closer to a civilized system of justice based on the law; or will we suffer a tragic setback? This matter has to be discussed and considered seriously by the leaders of business, academe and civil society.

Teresa S. Abesamis is a former professor at the Asian Institute of Management and an independent development management consultant.

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