Debasing the CJ post

DIE HARD III

Herman Tiu Laurel

6/25/2012

From the noisy media circus atmospherics the past two weeks surrounding the scramble of Cabinet-member wannabes and outsiders for the Judiciary's top post, to the buzz on whether or not these nominees' Judicial and Bar Council (JBC) interviews should be televised, down to the paparazzi fervor with which these prospective candidates are being introduced to the public, all efforts in finding a replacement for ousted Chief Justice (CJ) Renato Corona ultimately bring up one question: Isn't this a debasement, a trivialization, of what in the past was considered a rarefied post, along with the essential attributes of detachment and transcendence that the candidates — not just for the Supreme Court (SC) but for the Judiciary as a whole — are supposed to possess?

Thus, it was with a sense of disbelief that I witnessed the likes of the country's chief tax collector showing off her wares in a cable news interview and of law deans and professors parading themselves to catch media attention, like in a burlesque show. It really is a sad spectacle; and sadder still when you think of how low it speaks of the ruling powers' regard for the Judiciary.

One CJ qualification raised by Malacañang spokesman Edwin Lacierda, in obvious support of 51-year-old Bureau of Internal Revenue (BIR) Chief Kim Henares, was on the matter of age. He told Palace reporters that since "age is not a factor," a CJ candidate does not have to be old. What did he mean by that?
First of all, being 40 is not necessarily "young" to the younger set. Despite that, 50 can now be the "new 40" and 60 the "new 50." Moreover, someone who is 60 can even conceivably be 40 in many respects since it is now widely believed that the mind determines the age. Therefore, someone at age 51 who is crabby, myopic, tyrannical and oppressive can really be an 81-year-old Mubarak in mental state. Got that, Lacierda?

Well, perhaps to buttress his argument, Lacierda also cited the case of US Federal Supreme Court CJ John Roberts, who, upon assuming his post at age 50, serves as an example of a young person appointed to the zenith of the Judiciary. What he failed to note, however, was whether or not this young appointee indeed had a sterling record of public service to begin with.

Objections were already raised about Roberts' pro-right, anti-abortion leanings that allegedly triggered some violence by extremist groups prior to his appointment. Then, in his five years at the helm, a number of major, yet unsettling, changes came about under his leadership, which led retired Justice Sandra Day O'Connor to lament, among other things, Roberts' reversal of her major contribution to US jurisprudence of imposing spending limits on political campaigns.
So besides the 40-year-old age requirement for Philippine CJs, should there be any room for petty ageism? Moreover, given the importance of the CJ's position, have we ever had any in-depth, ideological, or jurisprudential discussion on issues relating to the CJ's appointment?

Sadly, it has always been the case of the Chief Executive and his spokesmen, the Legislature, and the media being at the forefront of providing leading, albeit shallow and mediocre, questions in whatever discussions, with politicians, media, relatives, friends of JBC members, or law fraternities holding sway on a personal or parochial basis.

Such a debased (or debasing) process of naming, vetting and appointing the next CJ clearly creates worse conditions for any nominee, as he will no longer be unaffected; will likely feel obliged to respond to private and public parties to which he may feel indebted; or will fear chastisement if he displeases one or the other source of support for his appointment.

We must therefore take a second look at the serendipitous findings of lawyers Alan Paguia and Homobono Adaza in reviewing Article VIII Section 9 on the Judiciary: That there is no constitutional basis for the nomination by the JBC and the President's appointment of the CJ.

Given the fundamental principles upon which our nation's democratic system is supposedly founded (namely, the separation-of-powers, checks-and-balances, the independence of the Judiciary) and taking heed of the caveat from an old adage that says "Absolute power corrupts absolutely," we must end the practice of appointing a CJ from outside the SC once and for all in order to enhance the high court's independence and detachment and for it to focus purely on the interpretation and execution of the Constitution and all its laws.

It is for this reason that Paguia, Adaza, Jojo Borja, myself, and several others will be filing a petition before the SC this Thursday on the issue.
Our thanks thus go to citizens Ric Palompon of Manila, Editha of Batangas, Bonifacio from the South, Romeo Lopez, Olive of Bulacan, Mrs. Villanueva of Mandaluyong, Mrs. Borja of Iligan, and Glen of QC for sending in donations for the filing fee and photocopying. To the few donors who have not sent in their names, we wish to thank them as well. Because of your generosity, I believe we will have enough by the date of filing. Mabuhay to all the conscientious and pro-active citizens who are continuing to support our cause!

(Tune in to 1098AM, dwAD, Sulo ng Pilipino/Radyo OpinYon, Monday-Wednesday-Friday, 5 to 6 p.m.; watch Destiny Cable GNN's HTL edition of Talk News TV, Saturdays, 8:15 to 9 p.m., with replay at 11:15 p.m.; visit http://newkatipunero.blogspot.com for our articles plus TV and radio archives)

RP democracy's chance

DIE HARD III
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.

 

(Tune in to 1098AM, dwAD, Sulo ng Pilipino/Radyo OpinYon, Monday-Wednesday-Friday, 5 to 6 p.m.; watch Destiny Cable GNN's HTL edition of Talk News TV, Saturdays, 8:15 to 9 p.m., with replay at 11:15 p.m.; visit http://newkatipunero.blogspot.com for our articles plus TV and radio archives)

Unbridled freedom

BACKBENCHER

Rod P. Kapunan

6/16-17/2012

Mahathir Mohammad who served as Malaysia's prime minister for 22 years stands as a maverick leader to the Western-oriented ideology called liberal democracy. He incurred the ire of the West for bluntly telling the world that their version of freedom has become their very instrument to retard democracy that often destroys the indigenous democratic values of the people. In short, Mahathir is telling us that too much freedom is incompatible to progress, just as no amount of progress is possible without it.

That was the gist of the speech he delivered on the occasion of his conferment as honorary professor by the country's premier and oldest university, the University of Santo Tomas. As usual, the controversial straight-to-the-point critic of freewheeling democracy hits the nail on the head of many who continue to look at the Western democratic model as their panacea to solving the problems of corruption and economic backwardness in their society. Mahathir said that real democracy is not all about freedom. Half of that imposes the innate responsibilities that go hand-in-hand in the exercise of freedom.

It is from this standpoint that Mahathir concludes that unbridled freedom often leads to anarchy with those who are wily enough to anticipate the outcome, taking advantage of the situation to commit graft and to abuse to the hilt their power, thus destroying the essence of democracy which they are supposed to institutionalize. It is in this context that Mahathir rejects the American brand of liberal democracy and calls it a failure for accordingly within that system is a built-in mechanism that tends to weaken, erode, and even destroy the native system of an orderly society.

Such values that antedate the Western system are often discredited as hindrance to the advancement of modern freedom that is seldom understood. Traditional moral values that for have long served as foundations for harmony and order in their societies are recklessly substituted by novel freedom which is an artificial creation of modernity. Worse, those clamoring for unrestrained freedom often invoke it as sort of indivisible right, unmindful that freedom has never been an absolute proposition. Put differently, the boundary of one's freedom ends where the boundary of one's responsibility begins. To cross beyond that penumbral political demarcation is to violate on the rights of others.

The problem however is that the liberal democratic orientation of freedom, which is often equated as synonymous to democracy, is in our tendency to value freedom instead of protecting our rights. Such is the case because we have sanctified freedom as immutable. We never even bother to look back that in our unrestrained exercise of freedom, we have only managed to push our country to the precipice of chaos. Despite our overtly gratuitous accommodation of too much freedom, coupled by an idiotic interpretation of democracy, we continue to slide backward when supposedly it was the West that advanced to us these formulas that could propel us to progress and prosperity.

We refuse to correlate the economic success of Malaysia and many of our more economically successful neighbors in Asia to their adoption of a responsible system of democracy —that the greater part of freedom is responsibility. For that, we in effect vandalized the Western system imposed on us. This is apparent by the absence of civic consciousness among our people. In fact, civic consciousness as a form of responsibility is nobler because its aim is to achieve a higher level of progress.

Freedom, for whatever one would say of it, is always selfish and individualistic. As Mahathir rightly noted, our observance of absolute freedom is to propagate anarchy in our society. It is on this score why the theoreticians of Western liberal democracy purposely obviate the truth – that to achieve the higher goals of collective progress and prosperity would equally demand from our people their collective sacrifice and discipline. Rather, any attempt to adopt that system is instantly denounced as authoritarianism, and any leader who might set the tone to impose discipline is branded as a dictator. The West continues to proscribe this approach despite the fact that untrammeled freedom has led to the moral decadence in our society.

Mahathir and many other leaders like President Marcos have their reservations about the ideology that has netted nothing positive to our people. Many suspect that the imposition by the West of the liberal democratic system is a subtle form of subversion because countries adopting it sooner found themselves economically at the bottom of the pit, mired in graft and corruption, deep in debt, and often traumatized by violent civil disorder. The net result is the institutionalization of a very weak central government that is pliant to foreign dictation and exploitation, yet made grateful for the assistance and protection extended to it.

Thus, as the West continues to orchestrate that brand of licentious freedom, our people descend to the bareness of instinctively acting like dogs. As the cycle of failure continues, it is the West that takes out from us the advantage of anarchy, while leaving to us the disadvantage of having to engage in what we might say "political cannibalism" at its worst.