“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. 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,” Presidential candidate Mar Roxas told members of the Makati Business Club and the Management Association of the Philippines in March 2016.
It would not take a new president or 10 new Supreme Court justices for black to become white and white to become black or for our judicial system to change the entire character of the rules and regulations under which we live as a society. The Supreme Court has been turning black into white and white into black since the time it was packed with President Gloria Arroyo’s appointees, many of whom had previously been at her service.
Chief Justice Renato Corona was once her chief of staff, Antonio Nachura her chief presidential legal counsel, and Arturo Brion her secretary of labor and employment. Teresita de Castro was chairperson and Diosdado Peralta a member of that Sandiganbayan special division that heard the plunder case of former president Joseph Estrada. It is generally believed that they were rewarded for Mr. Estrada’s conviction with an appointment to the Court.
Her other appointees were Antonio Carpio, Conchita Carpio Morales, Presbitero Velasco, Lucas Bersamin, Mariano del Castillo, Roberto Abad, Jose Perez, and Jose Mendoza. In one period of her presidency, only one of the 15 associate justices was not appointed by her.
The Supreme Court Appointments Watch and the Bantay Korte Suprema expressed the fear that President Arroyo’s appointment of her former minions to the Supreme Court would provide her a shield against prosecution of charges of graft and corruption. She allayed those fears, claiming her appointees are independent as they were nominated by the supposedly independent Judicial and Bar Council. But two ex-officio members of the Council, the chairpersons of the justice committees of the Senate and the House are invariably political allies of the president. Another ex-officio member is the chief justice who at the time happened to be her own appointee, Renato Corona.
As feared, Ms. Arroyo’s appointees to the Court, with the exception of Justices Carpio and Morales, voted in her favor on issues that concerned her. They upheld her midnight appointment of Corona as chief justice, in contravention of the constitutional provision prohibiting the president from making an appointment two months before the end of her term. They struck down as unconstitutional President Benigno Aquino’s executive order creating the Truth Commission because it limited its scope to the previous Arroyo administration only.
They upheld the creation by Congress of a new congressional district to allow President Arroyo’s son Dato to run in a district where he had no formidable opponent, in violation of the Constitution as the new district did not meet the population size required by the Constitution. The same justices dismissed the disqualification complaint against President Arroyo’s son Mikey, who was running as a nominee of the party-list group of tricycle drivers and security guards.
They stopped the impeachment proceedings against then Ombudsman Merceditas Gutierrez, a friend of the Arroyos, when impeachment proceedings are outside the jurisdiction of the Court. They upheld NEDA Director-General Romulo Neri’s invocation of executive privilege, thereby preventing the Senate from extracting from him President Arroyo’s involvement in the NBN-ZTE bribery attempt.
Black continues to be turned into white and white into black even with the infusion of justices appointed by Presidents Aquino and Duterte. Together they acquitted, without the usual legal blather, Ms. Arroyo of the charges of plunder in connection with the misuse of P366 million in lottery funds during her presidency in spite of the fact that the charges were filed by the Ombudsman. But the same justices upheld the arrest of Senator Leila de Lima over alleged involvement in illegal drug trade even if the allegations were made by witnesses who have been convicted of murder, kidnapping, rape, or other crimes involving moral turpitude.
They took cognizance of a quo warranto petition on Chief Justice Sereno in spite of the fact that it was filed way past the filing period prescribed by the Constitution. They ruled that the quo warranto petition was in accordance with the law in spite of the fact that the Constitution says the chief justice can only be removed by impeachment.
Father Joaquin Bernas, Dean Emeritus of Ateneo Law School, once wrote about the human character of the Supreme Court in his column in the Inquirer in 2010. Here are excerpts from his article:
“Í 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.”
One reason given by Arroyo appointees for upholding the appointment of Corona as chief justice during the prohibited period was that a high-profile case could not be heard without a chief justice — even if there was no big case being heard at that time. Among the justices who advanced that argument, only five still sit in the Court. The same five justices voted to force Chief Justice Sereno to go on an indefinite leave, never mind if the Supreme Court acting as the Presidential Electoral Tribunal was at that time hearing the high-profile protest of defeated vice-presidential candidate Bongbong Marcos.
As Dale Carpenter, who writes and teaches in the area of constitutional law, wrote: “If citizens cannot trust that laws will be enforced in an even-handed and honest fashion, they cannot be said to live under the rule of law. Instead, they live under the rule of men corrupted by law.” Well, Filipinos have been living under the rule of justices corrupted by law.
The appointment of Teresita de Castro as Chief Justice will fortify the character of the rules and regulations under which we have been living as a society since President Arroyo packed the High Court with her minions.
She said President Duterte appointed her chief justice even if he didn’t know her personally. “I don’t think the President will do anything to impair the independence of the judiciary,” she added. Having known how De Castro had voted on the issues pushed by President Duterte — acquittal of Ms. Arroyo, martial law in Mindanao, its extension to the end of the year, ouster of Sereno from the Supreme Court — the President doesn’t have to do anything to influence the De Castro Court.
President Duterte would be as happy with the de Castro Court as President Arroyo was with the Corona Court now that De Castro had obtained by virtue of the President’s diktat the distinction of Chief Justice and an additional 50% in her pension.
Upon her appointment as chief justice, she declared: “I want the De Castro Court to be remembered as the court that restored collegiality in the Supreme Court.” With the cause of her bitterness eliminated and now joined by like-minded justices, the De Castro Court can do what the Corona Court did with marked abandon: freely turning black into white and white into black.
Oscar P. Lagman, Jr. is a member of Manindigan! a cause-oriented group of businessmen, professionals, and academics.