MANILA, Philippines – She is primus inter pares or the first among equals in a bench of 15 intellectuals at the Supreme Court (SC). In the last 5 months of impeachment hearings at the House of Representatives, it appears that her equals have turned against her.

Chief Justice Maria Lourdes Sereno now has to do the tough balancing act of defending herself from accusations, but in a way that doesn’t deepen existing fissures in an already divided court.

“She has to listen to these complaints. They’re not impeachable [offenses], they’re management gaps, but it’s important for her to listen, because it’s important for her to have the confidence of the court, on procedural and management issues,” said legal expert and court observer Tony La Viña.

Don’t exacerbate

Sereno vowed to address all accusations against her in a “highly probable” Senate trial.

“This is one-sided, right? It’s obviously one-sided….Now that the Senate has trial-type proceedings, both sides will need to be heard and you will get a fuller picture of that, in context and everything else,” Sereno said in a one-on-one Rappler Talk interview last Thursday, February 15.

She promised to address strong accusations against her such as blocking a courtesy call of Court of Appeals (CA) justices on President Rodrigo Duterte, as claimed by SC Associate Justice Andres Reyes, and other “transgressions” that SC Associate Justice Teresita Leonardo-de Castro brought up before the House of Representatives.

The public is certainly waiting for Sereno’s answers to many questions, but La Viña said the Chief Justice and her lawyers should be careful not to “exacerbate” the tensions.

For one, La Viña said she should not take the witness stand.

“That was the biggest mistake of Corona. It’s beneath the Chief Justice to be confronted, because you extremely diminish yourself even if you do it well,” La Viña said, adding that the same goes for the President and leaders of Congress.

Healing process

From Sereno’s own words, it does not seem like the healing process has started.

When asked if she has started to reach out to the justices to settle personal differences, she said: “There are only a limited number of things we can do to address the emotions of others. Largely how you deal with your emotions is your personal accountability. If the other person wants you to be on good terms again and you’re not going to allow them because of your difficulty of managing your emotion, that’s the problem of the person who has those kinds of emotions.”

Emotions or not, all 15 of them have to talk to each other every Tuesday, when they conduct their en banc sessions to discuss decisions that would have a great impact on the country’s laws and policies.

According to Sereno, the SC has stayed professional and productive, despite personal differences.

“There is a way of managing emotions so they don’t get in the way of productivity. I am trying my best to ensure that the output of the court is something that Filipinos can be proud of,” the Chief Justice said.

Impact on decisions?

In high-profile cases of the SC in recent years, Sereno has been in the minority. Could her sour relations with some justices caused that?

“Nobody knows, I’m not in the room with them. But that’s human nature, I would suppose that you’re trying to convince each other to vote for each other’s opinions,” La Viña said.

Under SC procedures, a case is raffled off first to a justice who would be member-in-charge, followed by deliberations. This is in contrast to the rules of the US Supreme Court where they deliberate first, before assigning a justice in the majority to write the decision.

“Because they raffle without a decision, the ponente drafts the decision and leads the discussion. The one who got the case doesn’t know if he’s majority and he has to convince to get his votes,” La Viña said.

Such was the case in the 2006 SC decision to junk the Arroyo administration-backed petition to carry out Charter Change through a mode called People’s Initiative.

Newsbreak reported then that the assigned ponente was then chief justice Reynato Puno. Before the SC announced its ruling, a newspaper had reported that the petitioners had won, citing a draft decision written by Puno.

It turned out that Puno had lost to the swing vote of former associate justice Consuelo Ynares Santiago, relegating his draft decision to a dissenting opinion, and assigning the ponencia to Senior Associate Justice Antonio Carpio instead.

Newsbreak quoted a justice then: “[Santiago] saved the day for us.”

Minority Chief Justice

In the recent 10-5 vote of the SC to uphold the constitutionality of the re-extension of martial law in Mindanao, Sereno was on the losing side again.

In her dissenting opinion, she criticized Associate Justice Noel Tijam’s ponencia as making the court “more vulnerable to political forces, rendering itself inert in exercising the power of judicial review.”

Whether she took pains to explain her view to Tijam or to the rest of the justices in their en banc sessions, we can only guess.

But notable in that decision, the justice who changed votes to join Sereno’s side was Associate Justice Francis Jardeleza, who, months before, had just accused the Chief Justice of committing treason.

In July 2017, when the SC first upheld the constitutionality of the proclamation of martial law, Jardeleza was in the majority. He later switched sides and agreed with Sereno and other original dissenters – Carpio and Associate Justices Marvic Leonen and Benjamin Caguioa – that there was no sufficient factual basis to reextend martial law in Mindanao.

“The facts and experience from this case…have opened my eyes to the mischief that a ‘permissive’ approach to the President’s ‘prudential estimation’ of the public safety requirement can cause,” Jardeleza said.

He also echoed the dissenters’ fear, saying: “It would open the country to the possibility of a permanent state of martial law, as the Philippines has a long history of rebellions motivated by diverse religious, ideological, regional, and other interests.”

It is this Jardeleza-Sereno dynamic which causes La Viña to believe that justices’ votes are not driven by personal relationships but by conscience.

Trust in the SC

In the 2018 World Justice Project Rule of Law Index, the Philippines dropped 18 slots to rank only 88th out of 113 countries.

According to Integrated Bar of the Philippines (IBP) national president Abdiel Dan Elijah Fajardo, the index means the judiciary is no longer an “effective check on the executive department.”

Leonen also went as far as saying that the recent SC decision on martial law “enabled the rise of an emboldened authoritarian.”

This puts the SC in a precarious situation, with the court set to decide on high-stakes issues such as the war on drugs, the election protest against Vice President Leni Robredo, and eventually, even the proposed amendments to the Constitution.

For Sereno, it is about standing one’s ground.

“Why should anyone fear being in the minority? As long as you know you’re in the right, that’s what makes for character. It’s never popularity, because it’s so easy to flow with the voice of the mob,” she said.

If tensions on the bench continue, can Filipinos still trust the SC?

“Mata-trust nila ang fact na pinag-uusapan namin nang husto ang mga issues. ‘Yan ang duty ko as a Chief Justice. Nagse-certify ako na kami ay nag-uusap, nagdi-discuss, nagkakaroon ng banggaan. Kapag nakakakita ka ng dissenting opinions matapos ang isang usapan, malimit, masidhi ang mga puntos na binabanggit doon….’Yun ang maa-assure ko sa kanila, na ang proseso ay umiinog, na ang process ay nasusundan,” Sereno said.

(They can trust the fact that we discuss issues thoroughly. That’s my duty as a Chief Justice. I can certify that we are talking, we are discussing, we are clashing. When you see dissenting opinions after a discussion, passionate points are often raised….That’s what I can assure the people, that the process is being followed.)

But is that enough?

“That’s the minimum to come from them, but that’s not really enough. We need them to make the right decision. A series of wrong decisions will mean people will lose trust in the system. A series of bad decisions will mean the rule of law will be characterized as a failure,” La Viña said.

A good first step would be to mend ties, according to La Viña.

“If you’re Chief Justice, it’s important to have good personal relationships. You might have different points of view, but it’s important to be able to accept each other as being of good faith, as being faithful to the law,” he said.

– Rappler.com