Aquino’s tirade vs SC seen to backfire
MANILA, Philippines – He aimed the gun but stopped short of pulling the trigger.
President Aquino is fast establishing a reputation as being the only President to have engaged the Supreme Court in successive head-on battles that could have permanent adverse effects on the independence of the judiciary.
For exercising its power of judicial review, the Supreme Court, considered the weakest branch of government, was at the receiving end of Aquino’s televised tirade Monday, July 14.
It was one of the most caustic speeches he has ever directed at the Tribunal since the calibrated attempt to remove former Chief Justice Renato Corona, who was perceived to be former President Gloria Macapagal Arroyo’s puppet magistrate. Aquino said, "My message to the Supreme Court: We do not want two equal branches of government to go head to head, needing a third branch to step in to intervene. We find it difficult to understand your decision."
Seen as a major obstacle to his administration, the gameplan was to oust Corona and replace him with the President’s own choice. Back then, the still highly popular Aquino emerged victorious in the first round, but with a high price.
Court observers say Corona’s successful ouster sent a chilling message to the other magistrates who were appointees of Arroyo. One recently retired magistrate, Justice Roberto Abad, even described the Tribunal as “a wounded Court.” (READ: Justice Abad: 'We have a wounded court')
If Aquino’s first frontal attack was directed at one individual, this time, he was seen as targeting an entire institution.
Triggering the fresh round of assault is the controversial ruling on the Disbursement Acceleration Program which the SC essentially declared unconstitutional. In his televised speech, Aquino single-handedly overhauled the SC decision, maintaining the spending program is legal. (READ: Aquino hits SC, insists DAP is legal)
And for that, Aquino achieved a number of firsts, an SC justice said.
“As far as I know, this is the first time in Philippine history that a sitting President has publicly attacked a unanimous decision of the Supreme Court as legally wrong. This is also the first time that a sitting President has publicly threatened to impeach the Justices for a judicial decision that does not jibe with his own legal conclusion. This is, moreover, the first time that a President, or anyone in a position of responsibility in government, has publicly argued that a mere provision of the Administrative Code prevails over a categorical command of the Constitution. Wonders never cease!” the magistrate said in an email reply.
To be sure, previous presidents Fidel V. Ramos, Joseph Estrada and Arroyo had their share of clashes with the High Court, but they stopped short of undermining its independence head on.
As in the past, when the institution is under threat, SC justices – regardless of political sympathies, indebtedness, and inclination – tend to close ranks to defend it.
De La Salle University Political Science Department professor Gladstone Cuarteros observed that rather than intimidating the justices, Aquino’s provocative words only “emboldened them to maintain their position that the DAP is illegal.”
Instead of taking a second look at their decision, “the justices will strengthen their position against DAP. In that sense, the President’s speech backfired.”
Cuarteros said the President must be hurting that his own appointees failed to at least back him up on the DAP issue. “I would not say they should have voted for the legality of DAP. But the President is at least somehow expecting they could cushion the impact.”
Since assuming office in 2010, Aquino has stacked the Court with 4 appointees, including Chief Justice Maria Lourdes Sereno. A fifth one is waiting in the wings, with Abad’s retirement.
The SC voted 13-0-1, with Justice Teresita De Castro abstaining.
Aquino said Malacañang will file a motion for the High Court to reconsider its ruling on the DAP, but given its unanimous vote, a reversal is highly unlikely, former Justice Jose Vitug said in a separate interview. Appointed by Ramos in 1993, Vitug retired in 2004.
“It has never happened during my time that the Court made a reversal on a unanimous ruling,” Vitug said. “Flip-flopping, if you may call it, only happens when there are close results in the voting. And it happens when there is a change in the membership of the SC,” Vitug added.
Skirmishes between the executive and the judicial branches, and even between the legislative and judicial branches are nothing new.
During the time of Aquino’s mother, the late President Corazon Aquino, the High Court under former chief justice Claudio Teehankee was largely deferential to the president. However, in the latter years of Mrs Aquino administration, the justices began to speak independently.
In the book, The Judicialization of Politics in Asia, UP-Baguio political science assistant professor Alejandro Cienca Jr wrote that it was during the closing years of Aquino’s term that the judiciary “began to test the limits of its expanded judicial review powers and demonstrate its independence.” Ignoring the popularity of Aquino, some of the justices expressed their opinion in the Marcos v. Manglapus case that the deposed strongman and his family should be allowed to return to the Philippines.
It was during the Ramos administration that the friction between the executive and judiciary reached a higher level. With the political climate starting to stabilize, Ramos saw it fit to push for economic reform policies – from liberalization to deregulation and privatization.
The SC, this time led by then chief justice Andres Narvasa, was largely seen as an “obstructionist” Court which refused to play along. In the Manila Hotel case for instance, the Court upheld the Filipino First Policy which blocked a Malaysian company from acquiring control of the historic hotel. Ramos saw the ruling as inconsistent with his liberalization and privatization economic policies.
The Narvasa Court also struck down the first Oil Deregulation Law that sought to allow more players in the energy sector. Also a highly politicized issue at the time, Ramos faced his biggest political rally – with the Church, the opposition, and the left finding themselves shoulder to shoulder to oppose the law.
The Court also stopped in its tracks Ramos’ apparent bid to extend his stay in Malacañang when it rejected a signature campaign or a people’s initiative to amend the Constitution. The Court ruled that the people’s initiative mode lacked an enabling law for proposed amendments in the Charter. It was a one-two punch for the Ramos government as the people’s initiative also sought to lift the term limits of elective officials and remove economic protectionist policies on foreign investments.
Drawing the line
The Court’s judicial activism reached a higher level when they declared Estrada as having effectively resigned from the presidency following EDSA 2 in January 2001. The Court ruled that Arroyo rightfully assumed the presidency as Estrada's constitutionally-mandated successor.
Ironically, the Court was then led by chief justice Hilario Davide, who actively lobbied for the High Tribunal's top post when Estrada was president.
Under Arroyo, the SC continued to exercise its judicial review powers on economic policies, striking down a number of contracts that would have allowed more foreign investments. The most notable one was the liberalization of the mining industry, which the SC initially shot down. However, the SC found itself reversing itself on this issue. It was largely believed that the reversal was the handiwork of then Justice Artemio Panganiban, who would later clinch the chief justice post.
While the Tribunal was less supportive on economic policies, the justices, who were mostly appointees of Arroyo, were for the greater part, protective of her politically. For instance, the SC blocked former National Economic Development Authority director-general Romulo Neri from disclosing what he knew about the multi-billion-peso broadband deal with China’s NBN-ZTE that dragged former first gentleman Mike Arroyo into the controversy.
The SC upheld Neri’s right to invoke executive privilege before a Senate inquiry.
The Tribunal, specifically under then chief justice Reynato Puno, was not always beholden to Arroyo on political matters. It also drew the line between political issues and civil rights issues – with the SC tilting the balance in favor of human rights issues.
Among the issues the Court diverged from Arroyo were the calibrated preemptive response (CPR) order that banned people from staging street protests without permits, and the arrests and raids conducted when Arroyo declared a state of emergency. The High Court, voting unanimously in April 2006, ruled unconstitutional Arroyo's CPR order. In May 2006, it also said that while the state had the right to protect itself, warrantless arrests violated the Constitution.
It was also under Puno’s watch that the SC promulgated the writ of amparo (following the rash of disappearances of activists and leftist members, and the habeas data) which allows families of victims of forced disappearances to have access to their cases.
While the SC and the previous presidents did not always see eye to eye, a semblance of civility was observed by both parties. If there was simmering animosity, the former presidents – in general – did not shoot the messenger.
The only exception to the mutual respect observed between the branches of government was the failed impeachment attempt on Davide over the alleged misuse of the Judiciary Development Fund (JDF). A special fund created in 1984 by former president Ferdinand Marcos, the JDF was earmarked for cost-of- living allowances and court office equipment and facilities. The Supreme Court chief justice is given exclusive power to authorize releases and expenditures from the JDF, thereby ensuring the independence of the High Tribunal.
Two impeachment complaints were filed against Davide in 2003 over alleged anomalies linked to the JDF. The first filed by former president Joseph Estrada in June of the same year was dismissed in the House of Representatives. The second initiated by some members of the Nationalist People’s Coalition in the House of Representatives was declared unconstitutional by the Supreme Court as no impeachment cases can be initiated against the same official more than once within a year. In this clash of the Titans, with the exception of 3 justices, the gods of Padre Faura rallied behind Davide.
Judicial review and statesmanship
Clearly, the constant source of irritants between the executive and the judicial branches is the latter’s power of judicial review, which is vested by the 1987 Constitution. Section 1, Article VIII vests judicial power with the SC and the lower courts, which “include the duty of courts to settle actually controversies…and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.”
Essentially, the 1987 Constitution, which was drafted during the time of Aquino’s mother, designed a Court that can effectively serve as check and balance on executive and legislative powers.
Has Aquino crossed the line and failed to respect this constitutional principle?
Vitug said the President cannot expect the judiciary to always agree with him, although he qualified that Aquino has all the right to be peeved out of sheer frustration. What should be promoted is a healthy exchange of ideas and positions, with inflammatory, potentially divisive language being tempered.
Cuarteros observed that Aquino failed to act as a statesman with his attacks on the SC, allowing his personal feelings to get the better of him. “His actuations were very emotional. His body language gave him away. He stammered and used language like ‘excuse me’ that were not statesmanlike.”
Cuarteros said the President’s advisers, including the speechwriters, should have focused on why the government resorted to DAP and its benefits rather than telling the Court that they got it wrong. “He has two audiences there: the public and the SC. The one that got the most attention was his tirade on the SC. He should have focused on the greater objective, which is to explain to the public what DAP is,” Cuarteros said.
As early as October 2013, however, Aquino had already gone on national television to defend the DAP. This was before the High Court began hearing oral arguments on the controversial program. (READ: Ahead of SC hearing, Aquino defends DAP)
But another political analyst, Dr Edna Co of the UP-National College of Public Administration and Governance, disagreed with the view that Aquino took the issue personally, saying he acted rationally and well within his limits. “He said the government will file an MR (motion for reconsideration). The government has the right to file an MR. He did not say he will defy the SC,” Co said.
She also said the observations and suggestions that Aquino is bullying the SC is “perception-based” which is subject of one’s “political color” if one looks “beyond personality and focuses on the bigger picture.” Aquino is just expressing a sentiment, Co said.
In pointing out that the SC might have overlooked the Administrative Code which Aquino cited as legal basis for the implementation of the DAP funding, the President is only asking the Court to “take a second look at its ruling," Co said. Besides, the SC has from time and again, also been prone to reversals, such as the flip-flopping rulings on the party-list system and cityhood issues. – Rappler.com