Who will save the Supreme Court?

The Supreme Court is the highest court of the land.  It is the final interpreter of the Constitution – the basic law that constitutes us, the Filipino people, into a distinct nation-state.  Indeed, the Constitution is what the Supreme Court says it is.  To be able to perform this crucial function in any reliable way, the Court has to be seen as standing above politics.  Otherwise, the Constitution loses its power to regulate politics.  For this reason, one of the toughest crises that can befall any nation is the erosion of the credibility of its highest court.

This can happen, for instance, when the court keeps reversing its decisions, including those that are supposed to be “final and executory.”  This can also happen when members of the Court become predictable in their judgments, not on account of their philosophical or ideological inclinations, but because of their political loyalties.  The result is that citizens can no longer look to the Court as a source of stable definitions of what is legal and illegal.

But who will check the Supreme Court when it allows itself to be a tool of partisan strife? In two successive editorials expressing dismay over the recent SC ruling allowing presidential “midnight appointments”, the Inquirer (03/25/10) reminded the justices: “The judiciary’s real authority lies in citizens who know the difference between right and wrong.  That is the one source higher than the Supreme Court.”

In fact, the judiciary’s authority lies not outside but in the Constitution itself, insofar as this document embodies the people’s sovereignty. Unless the existing constitution is thrashed, only the court can save itself.  Impeachment would not be a solution. To impeach an entire Court for its partisan decisions is to place justice openly at the mercy of politicians – precisely what is being criticized in the controversial ruling on midnight appointments.

In 1986, following a popular uprising supported by the military, Cory Aquino assumed the presidency.  One of her first acts was to throw away the 1973 Constitution.  Invoking her power under a “Freedom Constitution,” she demanded the resignation of the Supreme Court justices identified with the previous regime, and reorganized the entire court. At that moment, it became clear that a constitution is, in the words of the legal scholar Friedrich Schlegel, “nothing… but fixed unrest, arrested revolution, the bound (but at the same time) absolute state.”

The country came close to this situation once more in 2001, after mass demonstrations and the subsequent withdrawal of allegiance of the military forced President Joseph Estrada to leave his official residence.   On the authority of the entire court, Chief Justice Hilario Davide swore in Vice President Gloria Macapagal Arroyo as president.  The constitutionality of Ms Arroyo’s succession to the presidency was promptly questioned before the court.  But, instead of treating it as a political question, the court took cognizance of the issue and ruled in favor of Ms Arroyo.  The unanimous vote of the justices, says Marites Vitug in her book Shadow of doubt, “was seen as a matter of survival.” She quotes a member of the court at that time: ‘If they dissented, then they had to resign since they did not recognize the legitimacy of the government.”

It will be seen from these events that the power of the Supreme Court rests on nothing more than what the constitution gives to it.  But, this is far from saying that constitutions and the high courts that interpret them serve no real function.  They do.  That function is basically ideological — to promote the promise of a non-arbitrary state, of a political order that accepts legal limits to its own actions.  The German sociologist Niklas Luhmann expressed it more bluntly: “Constitutions in the modern sense of the concept were invented under the protective umbrella of the persisting (medieval) illusion that politics could be constituted as a legal order.  And this practice continues in order to make invisible the fact that the real limitations on the sovereignty of political systems are power struggles and the strategic calculations of political elites.”

Let us apply this chastening insight to the current situation in the

Supreme Court, especially in relation to the political strategy of Gloria Macapagal Arroyo.  If Luhmann is correct, then it is futile to expect the high court as presently constituted to act as a check on Ms Arroyo.  If it is determined, it will always find a legal way to do her bidding.  The controls that matter in the final analysis lie in the realm of politics itself — in the capacity of political players to forge strategic coalitions and muster majorities.  Law only provides the formal confirmation of what already exists politically.

Many of us are stunned by Ms Arroyo’s cavalier attitude toward institutions.  Unlike ordinary mortals, she seems simply not awed by them.  Clearly, her staying power as a politician resides in this — that she looks at the law not as a moral guide but merely as a tool of politics.  That she cares little what happens to the judiciary as a social institution.  That her weapons of choice, ultimately, are coercion and remuneration.  Not since Marcos has the nation seen a politician quite like her.