The Supreme Court and Philippine politics

Cui bono? Who benefits if Justice Puno is kicked out of office?… The patrimonialists and the advocates of constitutional revision…

For the past few weeks, the Philippines has been going through a series of controversies involving alleged corruption, abuse of authority, and very high-profile crime. In itself, this is neither unusual nor, cynically speaking, very exciting. Scandals have followed an annual cycle for over 5 years, a political El Nino to which the citizenry has become, if not apathetic, then passively aggressive to view it much like a typical soap opera: engrossing but irrelevant. After all, the past few controversies have yielded little real fruit in social change, political reform, or even settled criminal convictions, and by now the people have come to expect little but entertainment from the occasional whistle-blowing.

Nonetheless, this particular cluster of scandals is unique in having, at its nexus, the central institutions of the justice system, and in having a whole spectrum of implications for the political system. It was sordid enough when the Philippine Drug Enforcement Agency (PDEA) and the Department of Justice trading barbs on network television over an allegedly busted drug bust. Now, however, no less than the Chief Justice of the Supreme Court has been accused of wrongdoing and subjected to an impeachment complaint, which seems to be centered on an unsigned court decision over which the whole court, and not the Chief Justice alone, has discretionary powers. The injustice of the attack is palpable, as the ANG Kapatiran Party declared in its statement (here):

The process of impeachment, as a part of the system of checks and balances of the Constitution, was created to protect the people from betrayal by its highest servants. Its use to attack a man of integrity and the integrity of the judiciary is a rank subversion of the will of the people. Worse, it violates the canons of reason and justice that, even before they were enshrined in law, were written by God Himself in the nature of man and society.

To determine who is really behind the campaign to get rid of the Chief Justice, we have to ask: To whom the good? Cui bono? Who benefits if Justice Puno is kicked out of office? The most obvious answer is the losing party in the subject case, who, learning of impending defeat, decided to take pre-emptive action by accusing a magistrate of impropriety. This led the Asia-Pacific Bar Association to warn against making impeachment a de facto remedy for losing litigants-because nothing could be more dangerous to an independence judiciary than a forum for second-guessing its decisions.

However, as Father Robert Reyes and other analysts have pointed out, there is a darker and deeper possibility.

Juridically, the Philippine Supreme Court is more powerful than most of its kind in the world. One need only the compare the minuscule powers of the French Court de Cassation, a legacy of the post-revolutionary suspicion of the royalist-dominated judiciary, or even of the UK House of Lords, though its powers were recently augmented with the enactment of a Bill of Rights. As in the United States and Germany, the Supreme Court in the Philippines has, in procedural terms, the primary appellate jurisdiction to interpret the Constitution, even to the extent of declaring statutes of the legislature to be invalid for being unconstitutional. Its authority was made even greater after the 1986 Revolution, when the Supreme Court was given special review powers over declarations of martial law, and the whole judiciary was explicitly declared to have the power to rule over abuses of discretion.

This made the judiciary a plum political prize, much the way the American court is fought over by successive Democrat and Republican administrations because of its power over government policies. There is, however, this added twist, that whereas the US justices are appointed by the President and confirmed by the Senate, those in the Philippines (like those in, I think, Israel) are selected by the President from a list submitted by a screening board, the Judicial and Bar Council, many of whose members are appointed by the Executive. There is no direct participation by the legislature except in its having a representative on the Council.

Because of the relative political uniformity of the governing class, we had not felt the politicization of the Court immediately after 1986, but the years since, particularly the controversial accession of the President in 2001, have vastly increased the Court’s profile and the importance of its individual members. This has increased even further in succeeding years due to the polarization of Philippine society between supporters and opponents of the increasing centralization of the patrimonial system.

The supporters count in their camp the advocates of a patrimonialist democracy on the model of Tammany Hall and, more classily and less cleanly, the Roman Republic. On the other hand, the popular base of the opponents (as distinguished from their politician wing) is composed of non-patrimonialists, among them the urban middle class and the Catholic Church, whose alliance comprises the political Center that guards the Constitution with its Liberal-Social-Christian Democrat orientation; and the Left, both the social democratic and the national democratic factions.

However, as we pointed out earlier (here), the urban middle class is increasingly enfeebled by social forces, while the loss of her paramount leader and the weakening of her middle-class allies have weakened the Church politically (as we saw when the movement to extend compulsory agrarian reform was defeated in the landlord-dominated Congress, despite vocal support by the Church and a bishop’s actually joining the farmers’ hunger strike). As for the Left, it is too divided between the various hues and sub-hues of revisionists and reaffirmists. This leaves, as the main institutions of Liberal-Social-Christian Democracy, the noisy but fangless Senate and the passive but powerful Supreme Court. The Court in fact has waged a subtle campaign over the past few years to strengthen democratic institutions and human rights, like when it sponsored efforts against the killing of Leftist activists.

Enter the movement to revise the Constitution and create a federal, parliamentary, and unicameral government, which would get rid of term limits, separation of powers, and the gadfly Senate, the main barriers to smooth patrimonial government. With the ambiguity of the provision on constitutional amendment (which, because it was copied from the unicameralist 1973 Constitution, doesn’t say whether the 2 house of Congress would vote jointly or separately), the 1987 Constitution must be interpreted by the Supreme Court to determine whether the Senate can block, as it will certainly try to block, the proposed revision. This makes the decision of the Court critical, and its internal politics much more significant.

This is where Justice Puno comes in, for if reports given to us are correct (but please consider what follows to be rumor in the process of being verified), the Supreme Court right now is divided between patrimonialist justices, non-patrimonialists led by Justice Puno, and the swing justices who are the Philippine equivalent of the moderate (or maybe indecisive) US justice Sandra Day O’Connor. If Justice Puno is gotten rid of, then the patrimonialists will be vastly more powerful in the Court, and they might be able to influence the Court to decide in favor of patrimonialist positions. When the question of constitutional amendment comes to a vote, they may be able to keep the Senate from being able to block the proposed revisions.

Therefore, who benefits if Chief Justice Puno is removed from the office? We answer, subject to the receipt of additional information, that the patrimonialists and the advocates of constitutional revision would benefit from his ouster or from the ouster of Justice Carpio. Now, does this mean that they are behind the movement to impeach Justice Puno? Not necessarily, but this does mean that, should it come to a vote, they would have an additional reason to vote against the Chief Justice. Whether the Members of Congress would do so, when practically speaking, such an impeachment would certainly be defeated in the Senate, is the big question. We just hope that this time they would remember to follow justice. It would begin their redemption for having punched the teeth off agrarian reform.

God bless us all.