Tuesday, November 25, 2008

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.



[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.

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