A long time ago in a society far different from ours today, members of the Supreme Court were so jealous of their independence and so concerned with their integrity that they lived almost monkish lives.
Chief Justice Ramon Avanceña, for example, would dutifully attend official functions, but he would walk in, shake hands in the reception line, and walk straight out, having done his official duty while avoiding any opportunity for improper consultations with other officials present. Even the children of justices at that time, only played with the children of other justices, so that their parents would be spared being influenced by the parents of their children’s playmates.
Chief Justice Manuel Moran retired from the Supreme Court to become an ambassador, but when he was offered an opportunity to be reappointed to the Supreme Court, he declined-–because it was conditional on being a midnight appointment.
Chief Justice Roberto Concepcion, when the Supreme Court disgraced itself by declaring the Marcos 1973 Constitution in full force and effect, went into early retirement –even if it was a matter of only a few days before he was due to retire, anyway—out of heartbreak over what happened to the Supreme Court, which had been threatened with being abolished by President Marcos if they either questioned martial law, or declared his new constitution improperly approved.
The difficulty with our first generations of justices of course was that they believed in delicadeza, which is personal honor. You always hear the saying we need to have a regime of laws and not men, and the personal examples of these previous justices betrays the problem with delicadeza. It’s personal when impartial law and ethics ought to apply to everyone in every institution, and not on personal opinion on what’s proper or not.
Today, we live in a different world. Still, lawyers read the decisions of the Supreme Court and the individual concurring or dissenting opinions of justices to examine and understand the thinking behind the decisions. For lawyers and legal scholars, the background –essentially unprovable—of how a decision was arrived at, is immaterial and irrelevant. Only the decision and the penned opinions matter.
For everyone else, whether journalists or political scientists or the public, there are other ways to look at the Supreme Court and its decisions.
The first is on the basis of who appointed the Justices. This is based on the belief that a president, in appointing a justice, does so from a particular point of view, say a philosophy on law or how laws ought to be interpreted.
The second, related to the first, is whether patterns can be seen in the decisions, at least those considered important ones. The idea is, justices appointed administration by a particular will likely have a particular orientation you can see in how they vote in particular cases. Some might even go as far as to say aside from considerations of law, there are political considerations at play that individual members could be aware of when they write their opinions and cast their votes.
The third is from an institutional perspective, meaning whether the decisions of the High Court strengthened or weakened things like the separation of powers, our democracy, and so forth. This is related to the first and second, too: if they belong to a group, or cohort, within the Court that tends to think in an identifiable way, and if their thinking is revealed in patterns of voting, then this behavior will have an effect at certain times, when cases arise that can shift how government functions.
So let’s tackle the first.
In our present court, three presidents have appointed its membership.
President Arroyo appointed 21 justices in her nine years, of whom 7 are still in the Supreme Court. Antonio Carpio, her first appointment, is now the Senior Associate Justice; Justices Velasco, De Castro, Peralta, Bersamin, del Castillo are her other incumbent appointments, including Justice Mendoza who will be retiring in August.
President Aquino appointed 6 justices in his six years, of whom 5 are still in the Supreme Court: Chief Justice Sereno, and Justices Bernabe, Leonen, Jardeleza and Caguioa. Justice Reyes retired just a few days ago.
President Duterte has appointed two in his first year in office, Justices Martires and Tijam. The President is expected to appoint a total of 10-11 in his six-year term, which will make him one of the most influential presidents in terms of determining how the court will vote for years to come.
As for the second, in terms of voting patterns, if any, you can look at some recent hot-button decisions. Let’s take three for example. The Enrile bail case, the Marcos burial case, and the Martial Law case just recently decided.
On the Enrile Bail Petition, Justices Bersamin, Brion, De Castro, Del Castillo, Mendoza, Peralta, Perez and Velasco voted in favor; 100% of them were Arroyo appointments.
On the Marcos burial, Justices Velasco, De Castro, Brion, Peralta, Bersamin, Del Castillo, Perez, Mendoza, Bernabe, Jardeleza, Martires and Tijam voted in favor. That breaks down to: 66.6% of Arroyo appointments, 33.3% of Aquino appointments and 100% of Duterte appointments.
On Martial Law, Justices Velasco, De Castro, Peralta, Bersamin, Del Castillo, Mendoza, Reyes, Bernabe, Jardeleza, Martires, and Tijam voted in favor. That breaks down to: 100% of Arroyo appointments, 40% of Aquino appointments, and 100% of Duterte appointments, being in favor.
You could say even if the smallest, the most consistent bloc is the Duterte bloc, followed by the Arroyo bloc, with the Aquino bloc split.
Which brings us to the third way of looking at Supreme Court decisions, which is, in crucial cases, is the balance in favor of strengthening or weakening institutions? This is perhaps the most subjective of all.
This has been the focus of reactions to the Supreme Court’s decision on Martial Law, where broadly speaking, 14 justices said the President had sufficient factual basis to proclaim martial law. Three justices, Sereno, Caguioa and Carpio further said the president should have proclaimed it in a more limited area. Only Justice Leonen rejected the proclamation of martial law, period.
Note that this decision was on the question of whether the president lacked a factual basis to make his proclamation. It was not a decision on whether Congress should have convened in Joint Session to decide whether to approve or reject the proclamation.
There are perhaps three views to what the Supreme Court decided. One is from a former Chief Justice; the other, from the Dean of a Graduate School of Law; and the third is from the Fourth Estate.
Former Chief Justice Artemio Panganiban seems to belong to the optimistic the glass is half-full school. First, he says the decision asserted the Supreme Court’s right to weigh in on martial law. Second, it emphasized that there need to be two conditions: invasion or rebellion plus the public safety requiring it; and third, clarity. The decision clarified that martial law is part of a president’s menu of options in a crisis; and that furthermore, the decision limited the Supreme Court’s role –it can only decide on the basis of what the president submits in terms of information, and not engage in its own fact-finding—while clarifying what Congress can do. Unlike the Supreme Court, Congress can ask and look for all the facts it wants, beyond what the president submits in his report. And finally, it clarified that martial law has many limits, not least the Constitution remaining in force and all the rights it guarantees.
Fr. Ranhilio Aquino comes from a different perspective, one which believes the decision is a timely turning away from an unhealthy preoccupation with Ferdinand Marcos. There are times when a president must act decisively when the country is in danger. He welcomes the decision as a timely reminder of what he argues is a necessary power which requires making a decision only a president is competent to make.
The Philippine Daily Inquirer, for its part, in a recent editorial, argues that precisely because the Supreme Court limited itself in terms of facts, it handicapped its ability to fulfill the role given it by the Constitution. Furthermore, the Supreme Court said the president could impose martial law even in places where no invasion or rebellion was taking place— which the editorial argues, is actually a grant of addition powers to the president.
In the end, whichever of these opinions you might share, one thing is clear. We continue to have a reverence for the Court, or at least an instinct to obey it, whether or not we actually take the time to read what the Justices say. In this, Ferdinand Marcos said it best: we Filipinos, he said, “will accept any kind of radical reform provided it is constitutional and legal.”