What judicial autonomy means

Some quarters have depicted the impeachment of Chief Justice Renato Corona as an attack on the judiciary, a co-equal and autonomous branch of government. It is difficult to see how this is so. In the first place, a chief justice is not the entire judiciary, just as a president is not the entire executive branch. Corona is being impeached precisely for betraying the oath of his office, the same charge that President Joseph Ejercito Estrada faced in 2000 when he was subjected to an impeachment trial.

But, more to the point: why equate criticism of institutions with an attack on their autonomy? All institutions are subject to criticism all the time – congress, the presidency, the military, the church, the schools, the mass media, etc. Why should the judiciary be immune from criticism? The important thing is that institutions that have attained autonomy in the course of social evolution are able to take criticism and withstand pressure, and thus preserve their independence. What exactly does this mean?

Let us take the judiciary as an example. The courts are part of the legal system of society. When we say the legal system is autonomous from the other systems (like the political system or religious system), what that means basically is that it operates according to its own code, its own procedures, and its own medium.

The code for the legal system is legal/illegal.  Its medium consists of legal suits, petitions, statutes and rulings. Judges and lawyers are expected to see and judge things exclusively in terms of what is lawful and unlawful. Indeed, what is lawful does not always coincide with what is economically profitable, or politically expedient, or morally proper from a religious standpoint, or truthful in the scientific sense. All these terms belong to society’s other function systems. But the law has its own work to do that is important to society.

Judicial autonomy simply means that the system sticks to its own code and medium, and does not subordinate its decision-making to the codes of the other systems. When the courts can no longer decide on cases without waiting for instructions or cues from outside the system, we say they have lost their autonomy. This happens, for instance, when decisions are routinely offered for sale, or are subject to personal debt of gratitude, or when they are dictated by political and ecclesiastical authorities. This does not mean that the courts must shut their eyes and ears to what is happening around them. All it means is that they stay normatively closed even as they remain cognitively open.

This is how a modern society functions.  It relies on the stable functioning of co-equal institutional systems. When one system deviates from its own code, its performance becomes erratic and cannot be depended upon by the other institutions as a basis for their operations. The latter will thus find ways to remedy the situation.

Perhaps, the relevant question to ask, given the circumstances we now face, is whether the judiciary, from the lowest court to the highest, can issue decisions without being constrained by their fear of a supposedly powerful “super-president.” This issue has been raised, but I do not see that this is what is taking place at the moment. This may, of course, happen as it did happen during martial law. But in a society with a free media and a vocal opposition, political pressure and its outcomes would be difficult to hide. Media would be all over the place. Decent members of the judiciary, and there are still many, would recoil and perhaps resign in protest.

It is different, however, when judges march in the streets to protest the impeachment of a chief justice. They are taking sides on an issue that is already under the jurisdiction of the Senate acting as an impeachment court. Are they doing so as ordinary citizens or as judges? Are they not violating the law when they declare a court holiday and march on the streets on government time? They must know that street protest is not a medium available to judges as judges. Are they not undermining the authority of their own courts when they express their partiality on a case that belongs to another co-equal branch of government?

This brings us to what is perhaps the crux of the matter. Immediately after he was impeached by the House of Representatives, Chief Justice Corona spoke publicly against President Aquino, accusing him of wanting to control the high court by seeking the appointment of a chief justice “he could hold by the neck.” He must know that that was not the proper venue in which to defend himself nor was the polemical language he used the medium appropriate to his position as a magistrate. The question now is: Can Corona continue to sit in judgment over cases in which the Aquino administration or Mr. Aquino himself is a party?

I suppose not. If he does not take a leave from his position while he is on trial, he would have to inhibit himself from taking part in such cases. This is why it is very important for the rest of the associate justices to steer clear of any action that might be interpreted as taking sides on this issue.

Autonomy does not mean immunity from criticism or pressure. What it means rather is that, in the face of all these, an institution can summon enough will to protect and stay within the basic code of its operating system. The flipside of autonomy is authority, the legitimate power to command or make decisions. When an institution loses its autonomy, it thereby also undermines its authority.

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