Herman Tiu Laurel
6/18/2012
How often in my four decades of active involvement as a citizen in our nation's politics have I heard people and the media complain about the subservience of the Supreme Court (SC) to the President?
I remember as far back as the early years of the authoritarian rule of President Ferdinand Marcos how his chosen Chief Justice (CJ) Enrique Fernando, who served in that post in the most crucial years of 1979 to 1985, was lambasted by newspapers and activists alike. Fernando's association with Marcos was so blackened that even his basic gentleman's gesture of holding up an umbrella to shade then First Lady Imelda Marcos was seen as a proof of his obsequiousness.
Indeed, since the time of CJ Fernando to this day, the same suspicion about every Philippine Chief Justice has lingered; and so it will be the same for a BSA III-appointed CJ.
Despite the noise for the likes of Henares, De Lima et al., PeNoy will certainly choose a neutral sounding name to dispel any notion of a "beholden CJ." But who is he kidding?
Last week this space floated the idea of the 15 members of the SC choosing among themselves their "primus inter pares" as CJ, an idea that stemmed from Alan Paguia's comprehensive review of Art. VIII Sec. 9 of the Constitution, including his review of the "residual powers" of the President which evinced no constitutional basis for the appointment of the CJ by the Chief Executive.
These findings have been confirmed by Bono Adaza who has also come out strongly for ending the traditional but wrong practice of the President appointing the CJ.
Paguia likewise assured me that the 1986 Constitutional Commission's transcript reveals no discussion that can support the appointment of the CJ by the President. It was Adaza who supplied the possible answer to the mystery of the constitutional provision that seems so serendipitous for those seeking greater independence for the nation's high court.
As assemblyman from Misamis, Adaza had one of the closest collegial relations with former SC Justice Cecilia Muñoz-Palma at the Batasan Pambansa. He noted during our discussion of the issue on my GNN program that Muñoz-Palma was always obsessed with the SC's independence and was one of those who pushed doggedly for the independence of the budget of the Judiciary.
Muñoz-Palma later became chairperson of the 1986 Constitutional Commission where, Adaza believes, the former SC Justice personally influenced the formulation of Art. VIII Sec. 9 that leaves out any role of the Executive and Legislative branches of government in the selection of the chief magistrate--unlike the US Constitution which gives its President and Senate the power to nominate, and the latter to confirm, that country's Chief Justice.
In the Philippine Constitution, the role of the President and the Judicial and Bar Council (JBC) ends with the nomination and appointment of the "Members of the Supreme Court." And that logically makes the CJ selection process open to election by members of the SC.
As the democratic principles and aspirations upon which our government is established are founded on the "separation of powers" of the Executive, Legislative, and Judicial branches of government, as well as the "system of checks-and-balances," the two Houses of Congress elect their respective leadership--the Senate President by the senators and the Speaker of the House by the district and party-list representatives.
It therefore stands to reason that the highest body of the Judiciary, the Supreme Court, should also choose its leadership from among itself--a process that will undeniably enhance its independence.
Especially in the Filipino cultural context where "utang na loob" is rubbed in so deeply, the final CJ selection process that is free of any influence by the Executive and limited to the wisdom and consensus of the justices themselves will undoubtedly strengthen that august body's autonomy.
This autonomy of the highest court of the land is extra-critical in these crucial times for the Philippines, with issues such as the BangsoMoro "substate" and the burgeoning restoration of US military and nuclear presence looming over the horizon.
Fortunately, not a single person I have talked to on this proposed change of practice fails to be convinced after some clarification. It is, therefore, the right thing to do; and if, as Paguia stresses, Aquino III wishes to go down in history as a transcendent statesman, he would yield to this correct and constitutional application of the said proviso and leave the SC members to decide the matter by themselves.
However, given the realities and our experience with the manifest dictatorial intentions of the present government that is, moreover, backed by the US Embassy, it is left to us citizens and the people the struggle to institute the right practice of the selection of the CJ and to provide the SC members the basis for taking the right action, with the hope that they, being given a chance to correct a wrong, will have the courage to pursue this just course for the Judiciary.
In the next week or so, both Adaza and Paguia--with some citizens and taxpayers, God willing--may file a petition to question and/or stop the appointment of a Chief Justice by the President. Since both lawyers have on their own shouldered the filing costs of many public interest cases in the past, I thought it only fair that from hereon we should seek the participation of the public in enabling our volunteer legal eagles to keep up the fight.
Any petition filed before the Supreme Court already requires a P6,000 fee, plus P1,000 for photocopying. Thus, I am collecting donations for this next petition.
For your convenience or to make arrangements for pick-up of donations, please text me at 0917-8658664. We will record all donations and acknowledge them on our radio program, TV show, and through this column. Remember: Any amount is welcome.
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