Tuesday, April 5, 2016

BusinessWorld | What would the next president’s Supreme Court be like?

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Oscar P. Lagman, Jr. 
Member of Manindigan! 

“The next president gets to appoint 10 Supreme Court justices. The wrong choice might mean that black becomes white and white becomes black because they can interpret. Ten Supreme Court justices. And that’s why we need to be very, very careful. It will change the entire character of our judicial system. It will, therefore, change the entire character of the rules and regulations under which we live as a society,” Mr. Mar Roxas told members of the Makati Business Club and the Management Association of the Philippines last week.

I took the statement as a veiled warning that in the event Vice-President Jejomar Binay gets elected president, he would fill the Supreme Court with his political allies and personal friends who would find without basis all the graft and corruption charges leveled against him, his wife, and his son, resulting in the dismissal of the cases.

It will be recalled that President Ferdinand Marcos packed the Supreme Court with his former classmates at the University of the Philippines College of Law, earning for the once venerable tribunal the label “rubber stamp” as his classmates considered all his decrees constitutional, in effect legitimizing the martial rule of Mr. Marcos.

Of much more recent memory was the unlamented Corona Court which at one time was populated entirely by appointees of President Gloria Macapagal-Arroyo. Mr. Corona’s appointment as chief justice was itself deemed a big favor from President Arroyo as it was done during the period when the outgoing president was prohibited by the Constitution from making appointments. Feeling beholden to President Arroyo, Chief Justice Corona and the great majority of the members of the Corona Court consistently ruled in favor of her in cases involving her administration and her sons Mikey and Dato.

Mr. Binay’s classmates in UP Law and his comrades in the Movement of Attorneys for Brotherhood and Integrity are ineligible for appointment to the Supreme Court as they should all be beyond 70, the mandatory retirement age for members of the Court. However, many classmates of his daughter Abigail in Ateneo Law would all be eligible for appointment to the Court during his incumbency if he is elected president as they are all natural born citizens (they would not have been admitted to the Philippine Bar if they were not), are in their 40s, and would have been practicing law for 15 years.

Two of Cong. Abigail Binay’s classmates are already in choice government positions: Atty. Richard Roger Amurao, acting chief of the Presidential Commission for Good Government and Atty. Maita Chan-Gonzaga, commissioner of the same government agency. Former Chief Justice Pedro Yap was a commissioner of the PCGG before he was appointed associate justice.

Of course, Mr. Binay’s choice of justices would not be limited to former classmates in law school and colleagues in the human rights movement. I would consider a likely nominee to the Supreme Court under a Binay presidency Atty. Martin Subido, his present legal counsel and former classmate/Law partner of daughter Abigail. Mrs. Arroyo’s chief justice, Renato Corona, was her chief of staff from the time she was the vice-president to the time she was president before she appointed him associate justice and subsequently chief justice. Atty. Alfredo Benjamin Caguioa was President Benigno S. C. Aquino III’s legal counsel before he appointed him associate justice. Atty. Paolo Rico Quicho, spokesperson of Vice-President Binay, would be eligible as associate justice of the Court by 2019 only when he would have practiced law for 15 years.

I tend to think Atty. Claro Certeza, managing partner of the law firm Subido Pagente Certeza Mendoza & Binay, and counsel of Mr. Binay in his many legal battles, would be at the top of Mr. Binay’s list of nominees for associate justice of the Supreme Court. Another would be Leyte Representative Martin Romualdez‚ that is if he loses his bid for the Senate. He is in the senatorial ticket of Mr. Binay. He is a graduate of the UP College of Law and is president of the Philippine Constitution Association.

Jesuit priest Joaquin G. Bernas, Dean Emeritus of Ateneo Law School wrote about the human character of the Supreme Court in his column in the Inquirer in 2010. I quote here excerpts from his article:

“I have always held that the constitution means what the Supreme Court says it means, until the Supreme Court changes its mind. And, yes, the Supreme Court does, once in a while, change its mind. The Supreme Court has decided with finality that the President may appoint a Chief Justice even during the two-month period immediately preceding a presidential election.

“The current decision is a reversal of a 1998 decision which upheld the challenge made by President Diosdado Macapagal to incumbent President Garcia’s appointments made during the prohibited period. The current decision upholding the daughter’s desire to do what the father opposed will stay unless perhaps six years from now a Supreme Court with a different composition should revert to what the Macapagal pater believed.

“I also must accept the fact that, like the Church, the Supreme Court is a human institution that is not perfect. Of the Church it is said that it is an institution semper reformanda, always in need of reform. That the Court and the judiciary in general have room for reform is a human given.

“I am also certain that the new Chief Justice as well as the other members of the Supreme Court are not blind to this human given. And I doubt that they would claim that the choices made of them by their benefactress were the best she could have done for the nation.”

Then there is what retired Supreme Court Chief Justice Artemio V. Panganiban wrote in his Inquirer column, also in 2010:

“The sociological school of legal philosophy holds that to predict how case would be decided (by the Supreme Court), one must consider the personality of the magistrate and the various stimuli attendant to a case per this formula: personality times stimuli equals decision (P x S = D). The personality of a magistrate includes intrinsic qualities like upbringing, education, relationships, etc. Stimuli refer to how he/she responds to externals like public opinion, peer pressure, religious leaders, medical condition, appointing authority, appointment sponsor, close friends, etc.”

The observation of Fr. Bernas and the exposition of former Chief Justice Panganiban affirm that justices of the Supreme Court sometimes decide on the basis of personal considerations.

As I wrote two weeks ago, the justices of the Sereno Court, in particular the Chief Justice herself, Ma. Lourdes Sereno, Associate Justices Presbitero Velasco, Marvic Leonen, and Francis Jardeleza have decided on the basis of personal considerations.

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