First of three parts
Sometime before the Supreme Court voted on the high-profile case of the homeland agreement with the Moro Islamic Liberation Front, two justices reportedly received calls from the Palace. They were initially in favor of declaring the agreement unconstitutional. The message from the caller was: Declare the ancestral domain agreement moot and academic.
But in a narrow vote, the Palace lost. The intervention fell short of one vote.
What went wrong?
Court insiders say that Malacanang was confident it had the numbers that it took a belated attempt to conduct a loyalty check. “They were not talking with each other; they were just taking orders from the Palace. No one in the Court acts as the shepherd,” our source who is privy to the deliberations, told us.
Thus, when the smoke cleared and eight justices voted to declare the MOA-AD unconstitutional, some hailed it as a redeeming moment for the Court. From the outside, the perception was that the Supreme Court found the courage to reassert its independence from Malacanang.
But this glosses over the fact it was a close vote, 8-7, with the deciding vote coming from the only one President Arroyo has not picked, Justice Leonardo Quisumbing—an appointee of former President Ramos.
The Palace was hoping that the SC would only declare the case moot and academic for two reasons: so that the Palace would avoid further embarrassment; and so that the opposition would not have more ammunition in its impeachment complaint versus the President.
Those who argued to give merit to the petitions against the MOA-AD, led by Justice Conchita Carpio-Morales as the ponencia (or writer of the decision), got an unexpected support from Justice Ruben Reyes Jr. who has been perceived to be loyal to Malacanang.
Reyes left his vote with the en banc before he went on vacation, splitting the two opposing camps, 7-7. Up to the last minute, sources privy to the deliberations said the case could have swayed either way, with no one able to divine how the 15th vote, coming from Quisumbing, would go. Quisumbing has always been known in the Supreme Court to change his mind, even at the last minute, about his vote.
The SC ruling granting the petition to declare the Memorandum of Agreement on the Ancestral Domain (MOA-AD) with the Moro Islamic Liberation Front as unconstitutional may have raised hopes that the High Court is not after all a rubber stamp of President Arroyo.
Before this, the High Court was reeling from negative perception that it is stacked with Arroyo allies as a result of its decisions on key cases involving the President and the executive branch.
The Court strengthened executive privilege when it silenced former Neda head Romulo Neri by disallowing him to appear before the Senate to answer sensitive questions on the failed ZTE broadband deal. Then, the Court declared the ZTE contract moot and avoided ruling on the substance of the controversial deal.
Thirteen of the 15 members of the Tribunal are her appointees. Sure, they have been vetted by the Judicial and Bar Council, with the exception of Reynato Puno who was automatically considered for the Supreme Court post, but there is no doubt that they were her personal, if not political, choices.
Survey: predictable votes
We did a survey of voting patterns of Supreme Court justices. Data compiled by abs-cbnNews.com/Newsbreak on SC decisions with political implications tend to support the perception that appointees of President Arroyo are protective of her.
Our analysis of political cases or cases that are of political interest to the Arroyos from 2004 to 2008 show an unmistakable voting pattern, a divide that gives a clue on where each of the justices stands, politically. The pattern acts a blueprint, making it easier to predict how some justices would vote on a particular issue.
For instance, three of the incumbent justices have consistently voted in favor of government while four have sided with government in two-thirds of the cases they participated in. One on hand, only one justice, Consuelo Ynares-Santiago, has taken an all-out opposite stand, arguing against the Arroyo government’s interest in 16 out of 20 cases surveyed, or a high 80 percentage.
Ynares-Santiago is the only Estrada appointee left in the SC.
The three justices who have been religiously voting for government interests belong to the batch appointed in 2007: Antonio Nachura, Teresita de Castro and Arturo Brion. They were part of the seven minority justices who sought to declare the MOA-AD case moot and academic.
Under the Puno Court, there is a growing perception that the Tribunal is a co-opted rather than a co-equal branch. But others argue that some magistrates decide against Malacanang no matter the issue.
The Puno Court, essentially, has been divided against pro-Arroyo and anti-Arroyo groups. Joaquin Bernas, dean emeritus of the Ateneo Law School and a noted constitutionalist, described one of the groups as “generally known to be protective of the executive power” while the other faction as having a “record of vigorously disagreeing with the President.”
The existence of a power bloc loyal to the President takes its toll on the independence of the Court. In a letter to the editor published in a daily last Sept., former Senate president Franklin Drilon called on the SC “to address prevailing perceptions that the judiciary is losing its independence due to political interference and pressure from Malacañang.”
The former senator said the image of the judiciary suffers “when people suspect that judges and justices are being appointed, not because of their competence and probity, but because of their adherence and blind loyalty to Malacañang.”
Drilon did not name specific cases but recalled that “during the regime of former President Ferdinand Marcos, the Philippine Supreme Court suffered extremely poor credibility due to its subservience to the president.”
Independence is crucial
Among the three branches of government, the judiciary is said to be the weakest since it does not have police power to enforce its rulings. It depends on the executive branch to implement these. It relies on the legislative branch for its financial requirements and on the executive for its operations.
But the judiciary in essence is a co-equal branch, and this it exercises through its check- and-balance function, by striking down any grave abuse of discretion committed by the two other branches.
To ensure its independence, the judiciary enjoys fiscal autonomy. Under the Constitution, its budget cannot be decreased by Congress below what had been appropriated the previous year and “after approval, shall be automatically and regularly released.”
But financial independence is only one side of the coin. The more encompassing question is how independent the Court is from the executive or legislative branches and the pressure these two exert on the judiciary.
One of the basic principles, as adopted by the United Nations, is that the independence of the judiciary “shall be guaranteed by the State and enshrined in the Constitution…It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.”
Moreover, the basic principles state that “the judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”
Ideally, this should be the case. But as a Court of Appeal justice observed, in a politically charged environment like in the Philippines, other factors, such as justices’ beliefs, inclinations and aspirations play a crucial role on how laws and rules are interpreted.
Next: Some justices are more loyal than others