Amid doubts, Chief Justice Bersamin reiterates judicial independence

MAKATI—Chief Justice Lucas Bersamin on Tuesday reiterated his claim of judicial independence, in response to a question on separation of powers and the supposed perception that the President controls the Supreme Court.

“I don’t think that the President has ever controlled the Supreme Court,” he told a group of businessmen gathered in Makati for a meeting of the Management Association of the Philippines (MAP) and the Judicial Reform Initiative (JRI).

Bersamin was invited as speaker.

“Maybe there was another time in our history that that was the general perception, that it was probably warranted. But after that period of our history, I don’t know any period when the President ever had actual control of the Supreme Court,” he added.

Bersamin has been asserting judicial independence since he took office in November, amid concerns that his and the Supreme Court's voting record tended to favor the policies of President Rodrigo Duterte.

Since his appointment as top magistrate, the high court has ruled in favor of the third extension of martial law in Mindanao, the closure of Boracay island for rehabilitation, and has not resolved a petition questioning the Philippines' withdrawal from the International Criminal Court before the withdrawal took effect in March, among others.

But the top court has also issued a writ of kalikasan over the West Philippine Sea, a writ of amparo and habeas data in favor of lawyers of the National Union of People's Lawyers, and required the solicitor general to release to petitioners records of "Oplan Tokhang", all of which were directed against officials of the executive.

Bersamin initially acknowledged the question was difficult to answer, because “there is no way of gauging perception,” but he went on to debunk it anyway, citing numerous instances when the number of appointees a President has on the high court did not lead to a subservient judiciary.
 
“In the case of President Arroyo, for instance, she was there for 9 years and she was able to appoint so many justices. But I don’t think you would tell that she really controlled the Supreme Court. Many of her own appointments turned against her. They even went very explicitly against her commands,” he said.

Arroyo appointed as many as 14 justices in the high tribunal, including Senior Associate Justice Antonio Carpio.

But she suffered losses in some key executive decisions with the Supreme Court, partially striking down Presidential Proclamation 1017 (declaring a state of emergency and authorizing warrantless arrests) and Executive Order 464 (preventing officials from the Executive Department from testifying in Congress without the President’s consent), and unanimously declaring unconstitutional her calibrated preemptive response policy, which prohibited rallies without permits.

The Supreme Court also rejected the Arroyo administration-backed Sigaw ng Bayan move to amend the Constitution through people’s initiative with Carpio writing a sharply worded ponencia calling the initiative gathering signatures from people without showing the full text of the proposed amendments “most likely a deception” and “gigantic fraud.”

In contrast, Bersamin said in his response, Arroyo’s successor, President Benigno Aquino III, only made 4 appointments to the high tribunal, “including the one who was later on removed from the position of Chief Justice,” referring to former Chief Justice Maria Lourdes Sereno who was ousted last year by her peers via a quo warranto petition.
 
Sereno had accused Duterte of being behind her ouster, a claim the President has denied.

Next to Arroyo, Duterte is expected to appoint as many as 13 justices to the high court, with only associate justices Marvic Leonen and Alfredo Benjamin Caguioa — both Aquino appointees — left by the time his term ends in 2022.

“As far as the incumbent President is concerned, he will get the opportunity to appoint so many of them. Now history . . . it’s still too early for us to tell,” he said.

“But as far as I’m concerned, when I am there, I have not experienced any doubt on where I stood on certain issues. Here, you have 15 independent-minded people who talk about cases. And when you get a majority that’s very democratic, it does not call back to the Office of Malacañan to account for the number of votes that a certain issue might get either way.”