Last of three parts

For Supreme Court watchers, next year will be a turning point for the Tribunal with a major changing of the guards. President Arroyo will have an opportunity to appoint seven new members.

In an ideal world, that means seven new independent justices. Essentially however, it could mean Arroyo’s tighter hold on the High Court, which could impact on future cases involving her and her family. 

If the ruling on the Moro homeland agreement is to be used as gauge, Arroyo already has seven justices sympathetic to her. Observers say the appointment of more allies in the SC could provide insurance for her, meaning protection after her term expires in 2010. Her political opponents have vowed to make her pay for her supposed misdeeds after her term ends.

She could strengthen her hold on the Court “by appointing younger justices who will have longer years in the SC,” a lawyer with intimate knowledge of the Court acknowledged.

Already, her appointees perceived to be loyal to her have undermined the leadership of Chief Justice Reynato Puno. Former Chief Justice Artemio Panganiban raised the possibility of the Court being labeled as an Arroyo Court following victories by the government in some critical cases.

In those cases, like that of Social Security System head Romulo Neri who won on the issue of executive privilege, Puno was with the minority.

Puno may not publicly admit it, but he acknowledges what lies ahead.

In a speech delivered before Court of Appeals justices and staff last Oct. 21, Puno talked about Jesus’s encounter with the Pharisees who were about to condemn a woman for committing adultery. The story, Puno said “told us that in making decisions, we should not be concerned with gaining popularity points. The story tells us that after rendering a judgment, Jesus was left alone. His judgment did not sit well with the majority. It was not popular. Jesus as judge found himself not only in the minority but in the minority of one.”

Puno said the story showed “that truth, justice, peace and righteousness were questions that cannot be decided by a majority vote.” He reminded justices that they “should not be terrorized by the tyranny of numbers.”

As if describing the current set-up in his Court, Puno said: “Indeed, we will often find ourselves in the minority. But we must shake the paralysis of the powerless coming from the lack of numerical support.”

GMA appointees beyond 2010

With six justices retiring next year and another one making an early exit due to health reasons, a real possibility exists that the SC under Puno may be an Arroyo-controlled institution. “That is how the cookie crumbles,” commented a CA justice who is seeking to bag one of the seven posts. The justice suggested that the new SC make-up next year “may have been part of a game plan all along.”

There could be some basis to this conspiracy theory.

Four of the retiring justices (Justices Minita Chico-Nazario, Dante Tinga, Adolfo Azcuna and Ruben Reyes) were appointees of the President while only two were not (Justices Leonardo Quisumbing and Consuelo Ynares-Santiago). Justice Ma. Alicia Austria Martinez’ stint is supposed to expire on Dec. 2010 but opted to retire in April next year for health reasons.

The first four of Arroyo’s appointees (including Martinez) have terms of office that enable them to stay in the SC beyond her term. The succeeding appointees however have shorter terms, having been named to the High Court a few years shy of the mandatory retirement age of 70. (The pattern was only broken when she named Justice Presbitero Velasco who will be in the SC until 2018).

This has enabled Arroyo to make multiple appointments before she steps down and more or less determine the character of the Court. As for the seven new vacancies next year, Arroyo could choose to appoint justices with longer terms of office, which may deny the next president a chance to determine the SC composition during his or her administration. The minimum age requirement before one is appointed to the SC is 40 years-old.

“With the seven vacancies in the SC occurring in one year, never since the restoration of democracy has the SC and the judiciary faced the exercise of the power of appointment by Malacañang in such a manner and in such a short period.  The highest vigilance is necessary if we are to ensure that the exercise of such a power within such a short period is not abused,” Pangilinan told abs-cbnnews.com/Newsbreak in an earlier interview.

Amending the charter

Another CA justice who is nominated to the SC said a controlled Court would come in handy in interpreting vague provisions in the Constitution which may be challenged in relation to a government or congressional action.

For instance, the Constitution states that in amending the Charter, “the Congress may, by a vote of two-thirds of all its members, call for a constitutional convention or by a majority vote of all its members, submit to the electorate the question of calling such a convention.”

One school of thought argues that it refers to both Houses of Congress voting jointly, while another argues that the two Houses should vote separately. The justice said. “Who will interpret such vague provisions but the SC?”

How the SC would interpret the provision could be crucial: the government, supported by allies in the House of Representatives, has been pushing for a constitutional amendment in an attempt, the opposition says, to perpetuate Arroyo’s stay in power.

The exceptional circumstance which the SC is set to undergo next year and its crucial role in checking possible abuse has prompted some members of the Judicial and Bar Council, which vets candidates to judicial posts, to engage stakeholders and the public in pressuring the appointing power that only those with integrity, probity and independence are named to the SC.

An independent JBC?

Will the JBC rise up to the challenge?

The shortlist that the JBC would come up with and the President’s choice for the first vacancy could set the tone for the six succeeding appointments. The first appointment will be for the post to be vacated in Jan. 2 by Justice Ruben Reyes whose short stint took only one year and five months.

Those in the judicial circle are not raising their hopes high. Of the sixteen candidates vying for the Reyes post, half are from the CA. But with the bribery scandal that hit the appellate court, it is unlikely that anyone of them would be picked, at least for the first vacancy.

It is widely acknowledged among judges and justices that political connections or “backers” are key in getting appointed. Thus, Malacañang is able to influence the vetting process.

While the JBC is supposed to vet the candidates for the President’s consideration, the reality is that Malacañang has a say on the final shortlist, sources familiar with the selection process told us.

For an SC vacancy, the JBC submits to the President five names. These five have garnered the most number of votes from the eight-member JBC.

If a Malacañang ‘pick’ is not on the list, the Palace sends it back to the JBC for supposed review. The move indicates to JBC members that someone should be included in the shortlist.

In the case of Sandiganbayan Justice Gregory Ong who was named by Arroyo to the post last year, the JBC submitted more than the usual number of names in the shortlist. Newsbreak reported earlier that Ong was backed by parties close to Malacañang. However, questions about his nationality prompted the Palace to withdraw his appointment to the SC.

Retiring Justice Reyes, Newsbreak also reported, tirelessly lobbied for his SC appointment, endorsed by religious blocs Iglesia ni Cristo and El Shaddai.
 
Hope for the SC

We interviewed some of the prospective candidates to the SC and they say that the Court remains independent. If chosen, they said they will try to maintain this independence.

CA Justices Martin Villarama Jr. and Portia Hormachuelos say that they will decide and vote according to the law and not to pressure. “I won’t be pressured. I’ve been (with the judiciary) for 22 years and I could retire tomorrow with full benefits. Besides, history will judge you,” Villarama said.

Hormachuelos prides in having no political backer.  “I don’t owe anyone anything. I have no backer,” she said, when asked if she feels obliged to pay a debt of gratitude to Arroyo if picked for the SC. As if to underscore her lack of political connection, Hormachuelos said: “I have been nominated five times before.”

Rodolfo Robles, one of the three nominees who comes from the private sector, insists that the Court remains independent. “It is not easy to conclude that prejudices play a part. People have to understand the procedures. Ordinary people do not understand technicalities.”

A lawyer with intimate knowledge of the Court said the ties that bind the justices to Malacañang may not stay for the long haul.

The lawyer said that once Arroyo is no longer in power, her loyal appointees may finally assert independence. But that rests on two factors: the nature of the case and the character of the next chief justice.

If the case has to do with protecting the President and her family, the lawyer explains, then Arroyo’s appointees may still side with her. But in other cases that involve government, they can show their independence.

The leadership of the next chief justice is crucial. Puno has been known not to exert moral suasion on his colleagues, allowing Malacañang to intrude into the Tribunal’s affairs.