When the President criticizes the Supreme Court

In a political system like ours where governmental power is exercised by three co-equal and autonomous branches, disagreements are to be expected. That is how the system works.  Each branch of government functions as a check on the others. But the manner in which this check is to be carried out varies from one branch to the other.

The legislature can impeach a president or a justice of the Supreme Court. In turn, the Supreme Court can restrain any action of the legislature or the executive. Wielding the power of the purse, the executive can trim the budgets of the other branches, or delay the release of allocations. But, again, actions of the executive can be questioned by the legislature or before the courts.

In many instances, we may hear a president criticize Congress for not acting fast enough on priority measures like the budget. But, it is not often that we hear a president publicly criticize Supreme Court justices. I suppose this is because we put magistrates, especially of the highest court, on a pedestal, as an expression of our commitment to the rule of law. In return, we expect justices to stay above politics and to manifest virtue in their personal lives.

Staying above politics, however, has not been easy, particularly for the justices of our Supreme Court.  Each one of them is appointed by the president based on a list submitted by the Judicial and Bar Council.  In a society like ours, debt of gratitude to the appointing authority cannot be ignored. Often, it outweighs professional considerations. This is even more so when the appointing authority handpicks choices for sensitive positions with an explicit eye for their proven personal loyalty.

In modern societies like the United States, Supreme Court justices are chosen not only for their sterling professional qualifications but also for their perceived ideological leaning. Although the latter is neither officially avowed nor required, people do take it into account when they assess the suitability of a nominee.  We don’t do that here. For us the main concern is always the capacity of an appointee to rise above personal gratitude and affinities. This reflects an acute awareness of the persistent dangers posed by personalistic norms to modern institutions.

At no other time in our nation’s history, except perhaps in the period of martial law, were our institutions more engulfed by politics than during the presidency of Gloria Macapagal-Arroyo. This stemmed from her dubious accession to the presidency in 2001 after the ouster of the duly-elected president, Joseph Ejercito Estrada. The Supreme Court found a way of legalizing the removal of Estrada, but Arroyo continued to be beleaguered by challenges to her legitimacy. Instead of putting these challenges to rest, the massive fraud that attended her reelection in 2004 only further weakened her claims to the presidency. As a result, throughout her term, she became preoccupied with political survival and acceptance.

Wielding her appointing powers and her broad control of the budget as tools of patronage, GMA generously rewarded political lackeys and apologists with cushy positions in government corporations. She named individuals who had been loyal to her to high offices, including the Supreme Court. She controlled the military by naming favorite generals to senior positions in the armed forces, and by packing the Cabinet with retired military personnel. She dispensed public money like largesse to favorite local government officials. She coddled provincial warlords like the Ampatuans who complied with her every whim by manipulating electoral outcomes. She did not care that what she was creating in the process was a bonfire of the nation’s institutions.

She has much to account for now that she no longer enjoys immunity from criminal prosecution. But having anticipated a moment like this, she had made sure she would be fully covered. She stepped down from the presidency, but retained political power as a member of Congress. People who benefited from her patronage are everywhere, quick to come to her defense. But, in the middle of all her legal troubles, she now finds herself turning as a last resort to the magistrates she appointed to the Supreme Court, most of all, Chief Justice Renato Corona.

Corona’s midnight appointment by Arroyo was an incredible act of political brazenness. No one believed she would press it. The Constitution barred her from making any appointments, except temporary ones in the executive branch, two months before the next presidential elections until the end of her term as president. The seat of the chief justice would not be vacant until May 17, 2010, or six days after the election, when the new president would have already been known. But Corona’s patroness went ahead and appointed him anyway, defying the letter and spirit of the law and going against all the norms of courtesy and delicadeza. Not surprisingly, the rest of the Arroyo court sustained her.

It is in the nature of our culture that we bristle at personal slights, but seldom take offense at the systematic damage done to our institutions. P-Noy took a different route the other day. At the great risk of appearing discourteous, he gave vent to his deep frustration with Arroyo’s magistrates in the presence of Corona himself.  It is an encouraging sign that the public seems to side with President Aquino, whose shaking voice betrayed not only anger but a certain discomfort at having to tell people to their faces that they ought to be ashamed of themselves.