FROM the time the Supreme Court was completely Filipinized in 1935, presidents have paid keen attention to the selection and appointment of justices. It helped that most of our presidents were lawyers, and lawyers always have pretensions to scholarship and a love of the “pure” study and application of the law. Presidents believed they could find a kind of post administration vindication and prestige in their choice of appointments.
Even Ferdinand Marcos, who has done more than anyone before or since to debase and prostitute the legal profession, put great stock in his choices for the Supreme Court. A number of his appointees became thorns in his side even when the court as as an institution proved itself a gutless accomplice to martial law. After the Edsa Revolution, when President Aquino received the resignations of the entire court and was thus able to appoint the entire bench, the Supreme Court shed its collaborationist past and has enjoyed, more or less, a new found prestige and standing among the people.
Politics of the most cynical kind may permeate the other two branches of government, but presidents and congresses have tried to have politicking stop at the doorstep of the high court. While it is true judicial appointments of all kinds have always been colored by political considerations, in appointments to the Supreme Court the political consideration has usually consisted of rewarding political allies and friends who have proven to have too much integrity or intelligence to be of much use politically. Presidents have been content to prove that in the highest judicial appointments, at least, they can think and act as statesmen.
It in view of this long and generally distinguished pragmatic political tradition that the mess –and there is no other word for it other than it being an utter mess- surrounding the appointment and withdrawal of the appointment, of President Macapagal-Arroyo’s latest nominee to the Supreme Court is so appalling.
The facts themselves may be given short shrift.
On February 10, President Gloria Macapagal-Arroyo appointed Sandiganbayan Presiding Justice Minita Chico Nazario to the Supreme Court. On March 8, the Palace confirmed that the president had withdrawn the appointment. This is the first time since the Supreme Court was Filipinized in 1935, that a supreme court appointment has been taken back: the first time in 12 administrations. What is more, the circumstances surrounding the appointment and its withdrawal remain mired in controversy.
Unlike most previous administrations, the appointment of a justice to the Supreme Court requires no congressional approval; the potential nominees are limited to a list provided the president by the Judicial and Bar Council. It is noteworthy that in previous presidencies, that required congressional, therefore highly political, approval for nominations, presidents did not withdraw their nominations, presumably because only those of sufficient reputation and prestige were considered. Yet in a supposedly non partisan selection process, an appointment was made then withdrawn with the most reprehensible partisan considerations being whispered about as the reason.
The travails of Justice Nazario points to a larger defect, or shortcoming, of the present dispensation, which is the underwhelming nature of so many of its appointments to crucial positions. We need only recall the manner in which Joseph Estrada’s presidency was given a boost by his decision to succeed Andres Narvasa with Hilario Davide, Jr., much as Estrada may regret that decision now. We can only consider how posterity will view this “first” under the Arroyo administration.
We might add that an appointment to the Supreme Court is the considered the culmination of a lawyer’s career; and that the rejection of such an appointment was not risked in the past, because it would disgrace the nominee. The withdrawal of an appointment to the highest court cannot be viewed in the same light as the withdrawal of an appointment to the cabinet, for example. The latter is widely understood to be subject to the vagaries of the most vulgar kind of politics; the former is meant to uphold and enhance the majesty of the law.
Whether it is intended or not, the withdrawal of Justice Nazario’s appointment does not speak well of Nazario, the justice system, and the appointing authority. It sends the signal that everything is subject to the insinuation that all must be colored by political considerations; it leaves as its message that institutions such as the Sandiganbayan are at the mercy of the competency of particular judges, because a judge cannot move on without leaving things off kilter; it strengthens the conclusion that the judgement of the president when it comes to crucial appointments is neither sound, nor courageous, nor imbued with the vision required of statesmanship.