The Incomplete History of the Supreme Court

There is something missing in the Supreme Court’s history: it does not mention anything about its role in the establishment of the Marcos dictatorship. This history is summarized in a brochure that can be downloaded from the Court’s website. It begins with a blurb on pre-colonial judicial systems but ends abruptly with the “Filipinization of Supreme Court” from 1916 to 1935. It says nothing about Javellana v. Executive Secretary[1] and Ferdinand Marcos’ successful attempt to adopt a parliamentary form of government.

In Javellana, a majority of the members of the Supreme Court declared that the 1973 Constitution was not properly ratified. However, because there were not enough votes to say otherwise, the Court also concluded that the new charter was already in effect—that it had come into effect through popular acquiescence. Marcos dodged term limits by staying on as Prime Minister for another 13 years. The Supreme Court has had to live with the realization that it became an accomplice to the emasculation of Philippine democracy.

Such a pivotal moment in the Court’s history is recorded in a variety of sources. As I have written elsewhere:

Since it was established under the American colonialism the Supreme Court was “a respected, independent and powerful legal force in Philippine politics and government.”[2] The Court enjoyed a reputation for competence and rectitude[3] and was “the most important legitimizing institution in the Philippines”[4]

Long before the end of Marcos’ rule, the public respect formerly accorded the Supreme Court and its reputation for independence had dissipated.[5] By the time Marcos was deposed in 1986, the Court was regarded by many Filipinos as subservient to the President[6]and had become a pliable instrument of the president’s will.[7] Even the Supreme Court acknowledged “many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and self-respect” that will require time and effort to repair.[8]

Javellana was a monumental mistake by the Philippine Supreme Court. It sanctioned a revision of the constitution that completely disregarded the law. It served the interests of politicians who ushered the country into Marcos’ martial law regime. Since then the Supreme Court has never recovered the respect it once enjoyed. Javellana is a self-inflicted wound which had consequences the Supreme Court has never fully recovered from which serves as a reminder of what the Court has done before and what it is capable of doing. I do not see what harm admission of this mistake can do to the Supreme Court.

Javellana could explain the current apprehension about the seven impending Supreme Court vacancies in 2009. Renewed efforts to amend the Constitution coupled with this opportunity to pack the Court with the President’s allies raise fears that the Supreme Court could reprise its role and sanction another attempt to keep the President in power.

Already there are speculations that pro-amendment forces want the Court to decide that the House of Representatives alone may sit as a constituent assembly for purposes of amending the Constitution. If the Supreme Court agrees with this argument, the President’s allies can bypass the Senate and make the changes in the Constitution that they desire. The Senate so far has refused to play along with any attempt to alter the Constitution.

The Court has a responsibility to learn from its own mistakes in the past. It’s refusal to acknowledge the dark chapters of its history serve only to embolden those who want to undermine constitutionalism and the rule of law by forcing changes in the Constitution that have no popular support.

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[1] See Javellana v. Executive Secretary, 151-A Phil. 35 (1973); 50 SCRA 30 (1973).

[2] C. Neal Tate, The Judicialization of Politics in the Philippines and Southeast Asia, 15:2 International Political Science Review 187, 188 (1994).

[3] Id. at 189.

[4] C. Neal Tate & Stacia L. Haynie, Authoritarianism and the Functions of Courts: A Time Series Analysis of the Philippine Supreme Court, 1961-1987, 27 Law & Soc’y Rev. 707, 708 (1993).

[5] Id.

[6] C. Neal Tate & Stacia L. Haynie, The Philippine Supreme Court under Authoritarian and Democratic Rule: The Perception of the Justices, 22: 3, Asian Profile, 209-224 (June 1994).

[7] Carl H. Landé & Richard Hooley, Aquino Takes Charge, 64 Foreign Aff. 1087, 1087 (1986). The Supreme Court’s credibility needed immediate repair. Upon assuming power from the Marocs government in 1986, Corazon Aquino “almost immediately reestablished a Supreme Court, staffed with several new Justices, and this court quickly ascended to a position of respect that nearly matched that of its pre-martial law predecessor.” Tate, supra note 20 at 190.

[8] Animas v. Minister of National Defense, G.R. No. L-51747, December 29, 1986.

Philippine Supreme Court Appointments 2009

I am a little puzzled over the concern over the coming vacancies in the Supreme Court. In 2009, the Supreme Court will have seven vacancies and constitutionalist Fr. Joaquin Bernas and civil society groups are calling for increased citizens’ participation in and closer scrutiny of the choice of nominees to the Court.

I have reservations about these efforts and what they seek to achieve.

President Macapagal-Arroyo has already appointed 14 different Justices after she became President in 2001, 12 of whom are still sitting on the Court (two have already retired). Of those who are retiring next year, two of them—Consuelo Ynares-Santiago, Leonardo Quisumbing—were appointed by other Presidents. This means that in 2009, Arroyo would have increased the number of her appointees from 12 to 14. Chief Justice Renyato Puno, who was appointed by President Ramos will be the only one Justice not appointed by President Arroyo.
President Arroyo already appointed 80% of the membership of the Court. After she fills all seven vacancies next year she will increase the number of appointees to 14 or 93% of the membership of the Court. Will this increase really matter considering the fact that the Supreme Court decides by majority vote?

There is nothing extraordinary about next year. The turn over rate at the Supreme Court is so high that there is at least one vacancy every year. All Philippine Presidents get a chance to appoint Justices. Corazon Aquino appointed the entire membership of the Court before the Judicial and Bar Council began operations and appointed seven more Justices thereafter. Fidel Ramos appointed 14 Justices when he was President. Arroyo had a similar opportunity to fill six vacancies in 2002. Even Joseph Estrada who was booted out of office after only 31 months in office was able to appoint 6 Justices.

The sheer number of appointees alone does not make the Justices’ objectivity suspect. If this was the case, then Arroyo should have won every time her administrations actions have been challenged before the Supreme Court. But this is not the case.

These efforts to check the President’s power to appoint Justices of the Supreme Court assumes that the selection process under the 1987 Constitution is basically flawed. Is it? How do we rally civil society to this latest cause without some categorical empirical conclusion that the JBC’s operations are flawed?

I think it sheer luck that Arroyo has this opportunity to control the composition of the Court. But that is all that it is: luck. Because we are unable to remove Gloria Macapagal-Arroyo from office—and this is a whole other story—we should learn to live with the consequences of her continued stay in office.

Lynching Obama

The US elections have sunk to an all-time low as Republican rallies turn into lynch mobs calling for the death of Senator Barrack Obama. Both John McCain and Sarah Palin should take credit for inciting the crowds as they continue to ignore the issues and launch personal attacks on Senator Obama.

Khaled Hosseini, author of "The Kite Runner" reacts to this phenomenon in the Washington Post. Frank Rich also has a take on the topic in The New York Times.

Lopsided

Joe Biden so elegantly wiped the floor with Sarah Palin during the vice presidential debate that only rapid Republicans could not have seen or would not admit it. That there is even some discussion that the debate was a tie can be explained because the audience did not expect a lot from Governor Palin. Queen Latifa got it on the nose during SNL's satirical take on the debate:

"Due to the historically low expectations for Gov. Palin, were she simply to do an adequate job tonight, at no point cry, faint, run out of the building or vomit, you should consider the debate a tie."

The reality was, as News 7's political editor pointed out:

"But this wasn't a tie.

Sarah Palin was cheerful and friendly...folksy and puckish...but she did not speak with authority or confidence. In contrast, Joe Biden was all business. His experience--in Washington and in debates--was obvious. At times, this debate sounded as if it were between a seasoned professional and an earnest amateur who needs seasoning.

So my winner tonight was Joe Biden. His answers were disciplined and so was he: he was direct...smart, but not cute...and he did not play any gender politics."

McCain: Misleadership

More on John McCain's campaign:

Truthiness Stages a Comeback

By FRANK RICH
Published: September 20, 2008

http://www.nytimes.com/2008/09/21/opinion/21rich.html?ref=opinion


The Push to ‘Otherize’ Obama

By NICHOLAS D. KRISTOF
Published: September 20, 2008

http://www.nytimes.com/2008/09/21/opinion/21kristof.html?ref=opinion

Missing McCain

I saw one of the ugliest moments of the US elections last Sunday when Rudolph Giuliani recited one lie after another with a straight face when he appeared on Meet the Press. It appears that lying to win public office permeates the entire Republican campaign. John McCain is the biggest disappointment of all. Liberal friends who wonder who they would vote for if they were Republican always conclude they would end up voting for McCain because he had one thing most Republicans do not seem to have: integrity. It appears McCain has also discard that feature.

Richard Cohen's column in the Washington Post today captured my views on this matter:


The Ugly New McCain

By Richard Cohen

Wednesday, September 17, 2008

Following his loss to George W. Bush in the 2000 South Carolina primary, John McCain did something extraordinary: He confessed to lying about how he felt about the Confederate battle flag, which he actually abhorred. "I broke my promise to always tell the truth," McCain said. Now he has broken that promise so completely that the John McCain of old is unrecognizable. He has become the sort of politician he once despised.

The precise moment of McCain's abasement came, would you believe, not at some news conference or on one of the Sunday shows but on "The View," the daytime TV show created by Barbara Walters. Last week, one of the co-hosts, Joy Behar, took McCain to task for some of the ads his campaign has been running. One deliberately mischaracterized what Barack Obama had said about putting lipstick on a pig -- an Americanism that McCain himself has used. The other asserted that Obama supported teaching sex education to kindergarteners.

"We know that those two ads are untrue," Behar said. "They are lies."

Freeze.

Close in on McCain. This was the moment. He has largely been avoiding the press. The Straight Talk Express is now just a brand, an ad slogan like "Home Cooking" or "We Will Not Be Undersold." Until then, it was possible for McCain to say that he had not really known about the ads, that the formulation "I approve this message" was just boilerplate. But he didn't.

"Actually, they are not lies," he said.

Actually, they are.

McCain has turned ugly. His dishonesty would be unacceptable in any politician, but McCain has always set his own bar higher than most. He has contempt for most of his colleagues for that very reason: They lie. He tells the truth. He internalizes the code of the McCains -- his grandfather, his father: both admirals of the shining sea. He serves his country differently, that's all -- but just as honorably. No more, though.

I am one of the journalists accused over the years of being in the tank for McCain. Guilty. Those doing the accusing usually attributed my feelings to McCain being accessible. This is the journalist-as-puppy school of thought: Give us a treat, and we will leap into a politician's lap.

Not so. What impressed me most about McCain was the effect he had on his audiences, particularly young people. When he talked about service to a cause greater than oneself, he struck a chord. He expressed his message in words, but he packaged it in the McCain story -- that man, beaten to a pulp, who chose honor over freedom. This had nothing to do with access. It had to do with integrity.

McCain has soiled all that. His opportunistic and irresponsible choice of Sarah Palin as his political heir -- the person in whose hands he would leave the country -- is a form of personal treason, a betrayal of all he once stood for. Palin, no matter what her other attributes, is shockingly unprepared to become president. McCain knows that. He means to win, which is all right; he means to win at all costs, which is not.

At a forum last week at Columbia University, McCain said, "But right now we have to restore trust and confidence in government." This was always the promise of John McCain, the single best reason to vote for him. America has been cheated on too many times -- the lies of Vietnam and Watergate and Iraq. So many lies. Who believes that in Afghanistan last month, only five civilians were killed by the American military in an airstrike, instead of the approximately 90 claimed by the Afghan government? Not me. I first gave up on the military during Vietnam and then again when it covered up the death of Pat Tillman, the Army Ranger and former NFL player who was killed in 2004 by friendly fire.

McCain was going to fix all that. He was going to look the American people in the eyes and say, not me. I will not lie to you. I am John McCain, son and grandson of admirals. I tell the truth.

But Joy Behar knew better. And so McCain lied about his lying and maybe thinks that if he wins the election, he can -- as he did in South Carolina -- renounce who he was and what he did and resume his old persona. It won't work. Karl Marx got one thing right -- what he said about history repeating itself. Once is tragedy, a second time is farce. John McCain is both.

McLies

There is one other component to the Republican campaign for the presidency that I left out in the last blog: Lies.

The New York Times summarized the criticisms well and Paul Krugman's latest piece is also enlightening.

FactCheck.org had a specific analysis of McCain's claims about Obama's tax policy proposals and found that "McCain misrepresents Obama's tax proposals again. And again, and again."

The list is already endless and the campaign has just begun.