If President Aquino chooses an outsider to lead the Supreme Court, this will only be a second in Philippine history. The first happened in extraordinary circumstances: when the Japanese occupied the country, Jose Yulo was appointed chief justice. He was speaker of the House of Representatives at the time.
This is a rarity because tradition in the Court is like an unwritten law; hierarchy is king. The most senior justice usually gets appointed as chief justice.
Four times in the past—in the Court’s more than a hundred-year history—this tradition was disregarded. Two of these happened in the 1920s, when the country was colonized by the United States. The two other incidents took place in recent history.
Ferdinand Marcos bypassed Justice Claudio Teehankee Sr. for chief justice and Gloria Macapagal Arroyo did the same to Reynato Puno. Both were eventually appointed to lead the Court. For Teehankee, it was after Marcos was deposed in 1986 when President Corazon Aquino named him chief justice. As for Puno, he waited 11 months for his turn, after Artemio Panganiban retired.
Today, PNoy seems intent not only on breaking this tradition, once more, but on doing the unusual: appoint someone from outside the Court to lead the 14 justices, 2000 judges and thousands of personnel. To the insiders, this will be considered an insult, that none of them are deemed deserving of the post. Some of them will even think that it is meant to shame them.
I’ve been trying to understand where PNoy is coming from. His advisers say that once he has made up his mind, it is difficult to convince him to change his view. We’ve seen his stubborn will at work in the move to impeach Chief Justice Renato Corona and earlier, Merceditas Gutierrez. Some in his circle had cautioned him about going after the country’s top judge and the Ombudsman. It was foolhardy, they thought. But he succeeded and made history.
So why should he return to normal and follow tradition when he has already created a new normal in his presidency?
I’ve found answers in our recent interview. “Now, we’re changing the status quo, we’re disturbing so many people’s rice bowls,” he told us when asked what prepared him to do battle with the Supreme Court.
What’s one more “rice bowl” to displace?
Traumatized by SC
There’s another layer to PNoy’s mindset. My sense is, he’s been traumatized by his experience with the Court. Throughout our interview, he kept harking back to his first year as president when the Supreme Court pummelled him when it killed the Truth Commission. He had been thinking about this even when he was congressman, a body patterned after South Africa to address human rights violations in the country. But it had since evolved into a fact-finding panel that would probe corruption during Arroyo’s regime. This became his first executive order, his first step in fulfilling his campaign promise of bringing back honesty in government.
But he was stopped in his tracks by a Court that overreached its power, out to protect a past president who appointed most of the justices.
It took him some time to get over this defeat which he saw as unjust and unfair. Since then, he has repeated this in a number of his speeches.
Some in the Court shared his view. As Justice Antonio Carpio wrote in his dissent, “History will record the ruling today of the Court’s majority as a severe case of judicial overreach that made the incumbent President a diminished Executive in an affront to a co-equal branch of government…”
Then came E.O. 2 which revoked all midnight appointments in the executive made by Arroyo. The Court initially rebuffed PNoy when, by issuing a status quo ante order, it upheld the appointment of the chair of the National Commission on Muslim Filipinos, Bai Omera Dianalan-Lucman, who questioned E.O. 2.
“The potential result of this will be chaos and paralysis in the Executive Branch of government,” Aquino said in a statement in October 2010. “This tests the limits of the Supreme Court’s constitutional authority, and could precipitate a clash with another separate, co-equal branch of government.”
Months later, in January 2012, the Court backed off and avoided a potential collision with Malcañang. (This came weeks after Corona was impeached by Congress.) It passed on the various petitions challenging E.O. 2 to the Court of Appeals saying that these were cases that needed evidence and since the Court was not a trier of facts, it was best for the appellate court to take over.
I’ve read many of PNoy’s speeches and statements that touched on the Court but I only got a real feel of his sentiments during the interview. He appeared to be personally wounded. After going over these early defeats in the Court, he said, in a reflective tone, “I never imagined that government itself can be harassed by a co-equal branch. Harrassed, stymied. I think in Tagalog you can say it better: kaya palang maapi ang gobyerno.”
At the same time, he recognizes the principles of separation of powers and checks and balances. “I don’t mind being checked,” he told us. “I don’t mind being criticized that what we are doing is not completely correct.”
The President seems to be struggling between these two thoughts. Which one will prevail: a desire to shake up the Court driven by personal hurt? Or a desire to reform the Court driven by his unyielding rhetoric of transparency and accountability?
This is a momentous episode in our history. We hope that in making his choice of a chief justice, PNoy does not end up diminishing his presidency.
By Marites Dañguilan-Vitug
02 July 2012