Outgoing President Macapagal-Arroyo’s appointment of Renato Corona as the new Chief Justice was burdened from the start by the public perception that she was putting him there to protect her when she is no longer president. He had loyally served her as presidential legal counsel. More important, in crucial landmark cases, as an associate justice of the high court, he generally favored her administration, proving – in the public eye – his personal allegiance to his president.
In turn, Ms Arroyo has shown how far she would go to ensure Corona’s appointment. Ignoring jurisprudence on “midnight appointments,” and brushing aside political prudence, she insisted on exercising her power to appoint the next chief justice even after the electorate had already chosen her own successor. The high court, packed with her appointees, stretched the limits of legal construction to let her have her way, proving to critics what a hopelessly politicized court it had indeed become.
It is difficult to imagine how an outgoing president, already widely despised because of the way she has abused presidential prerogative, can continue to act as if she owed no one an
explanation. There is time enough for justice to catch up with Gloria Macapagal Arroyo. But a nation must rise above its leaders, especially those, who, like her, were thrust to power by an improbable confluence of events. We must learn to look at the larger scheme of things in which reality objectively unfolds, regardless of how it may appear to us at first blush.
If we set aside for a moment our perception of the personal and political nature of the circumstances surrounding his appointment, we may begin to see the functionality of having Chief Justice Corona preside over an Arroyo-appointed court. This is the whole irony of it.
No, this is not an attempt to draw consolation from an obvious injury. Let’s start from the given that we are a nation that is aspiring to secure the independence of the judiciary, especially from politics. We know that this goal has not been easy. Appointments to our judicial system are shaped at every point by wielders of political authority who cannot distinguish between partisan and state interests. Judges, like most public officials in our culture, are in turn typically unable to set aside debt of gratitude, friendships, and personal ties in the conduct of their work. Every attempt to insulate judicial appointments from politics only seems to generate the opposite effect.
We have seen what happens when a president stays in power too long. By being able to pack offices like the Supreme Court with her own choices, she leaves a deep personal mark on the nation’s institutions — and not in a positive way. A four-year term is more than enough for a president like Ms Arroyo to destroy the sturdiest of institutions; her being in office for nearly ten years can only but spell calamity.
But, if an independent high court is what we aspire to have, nothing could be more conducive to that ideal than a court that precisely owes nothing to an incoming administration. Though some of its members may nourish a lingering attachment to a president who plucked them from anonymity and made them justices, that president will soon no longer be in power. The conditions of possibility for an autonomous judiciary are clearly upon us. They were brought into being ironically by an outgoing president who sought until the closing days of her term to complete her domination of the nation’s highest court. To appreciate this fact, we must look beyond the Arroyo presidency.
The function of a modern legal system is to stabilize society’s expectations of what is permissible and what is not. It performs this function well when there is visible consistency in its actions and decisions. It falters when it allows political, religious, or economic objectives to supplant its own code and interfere in its operation. That is when its decisions become whimsical, strained, and arbitrary.
The autonomy we claim for the legal system is the same autonomy that is claimed for politics, religion, science, art, education, and the economy in a modern society. This is the essence of modernity – the functional differentiation of institutional spheres. In today’s societies, this seems to be the only viable response to social complexity. The old social orders founded on hierarchy and inherited privileges are no longer sustainable in the present world. It is not a question of whether modernity is good or bad. We know that modernity brings its own curse. The issue rather is whether there is any alternative in the long term if a society wishes to survive.
While this concept owes much to the writings of the contemporary theorist Niklas Luhmann, the idea is not new. It was known in 17th century philosophy as the “sovereignty of spheres.” God, wrote Abraham Kuyper, “did not give all his power to one single institution but gave to every one of these institutions the power that coincided with its nature and calling.” Accordingly, every institution contributes to society by pursuing its own distinctive telos.
Courts that compromise their calling by behaving as if they were nothing but tools of politicians and businessmen lose their function and influence in society over time. As the public learns not to rely on their decisions, new structures take their place. It is not the function of politics to whip judges into line when they stray. The legal system itself will develop its own way of dealing with them. That is when we know we have evolved into a modern society.