WHY GMA'S IMPEACHMENT MAY NOT SUCCEED

For the fourth time the impeachment complaint against Pres. Gloria Macapagal-Arroyo has been junked, with the House justice committee voting against if for insufficiency of substance. According to Rep. Edcel Lagman, the recital of facts supporting the allegations of wrongdoing by the president was insufficient and failed to "ensnare" her.

But the spirit of pro-impeachment congressmen has not been dampened. Even as the impeachment is yet to be brought before the House plenary session - a battle they are likely to lose again given the difficulty of mustering the 80 votes needed for a favorable resolution of endorsement of the impeachment complaint - they are already eyeing the Supreme Court as the next battleground.

Once a petition is filed with the Supreme Court challenging the House's action on the impeachment, anti-impeachment solons are expected to assert the political independence of the House as a co-equal branch of government. They will claim separation of powers, political question and judicial restraint - the traditional grounds for resisting judicial review of actions by the executive and legislative branches of government.

Given the prevailing trend in our jurisprudence, however, these justifications may no longer be decisive. Francisco, Jr. v. House of Representatives, which also involved questions on an impeachment complaint before the House - making it therefore on point, not only reaffirmed but unequivocally settled the extent of judicial power to review actions of other branches of government whenever there is grave abuse of discretion that amounts to lack or excess of jurisdiction. The courts almost always find grave abuse of discretion when the challenged action violates the constitution.

As long as the petitioners are able to show that the House transgressed constitutional limitations in the manner it dealt with the impeachment complaint, there is a strong likelihood that the Supreme Court will entertain the petition. Besides, unlike the US Supreme Court which retains the discretion on whether to entertain petitions filed before it, our Supreme Court is duty-bound by the present constitution to rule on such petitions; it has not only the power but the duty to exercise such power.

The challenge that faces pro-impeachment congressmen is the way the Supreme Court justices will vote on the merits of the case. If Neri v. Senate Committee is any indication - where a divided Supreme Court upheld President Macapagal-Arroyo's executive privilege in connection with the testimony of former NEDA Director General Romulo Neri before a senate investigation committee on the controversial ZTE-NBN deal - pro-impeachment groups may not get a favorable decision. Nine of the justices who voted in favor are the president's appointees, and for a court with 15 members nine is more than enough to carry a decision.

In a recent survey by ABS-CBN of the voting patterns in the Supreme Court, over cases involving the administration, the same nine justices have voted more than 50% of the time in favor of the administration, which shows a strong tendency to favor possible anti-impeachment respondents.

Strong political and pragmatic considerations may sway a majority of the Supreme Court to vote against the viability of the impeachment. Aside from the propensity of presidential appointees to favor their benefactor, the 2010 elections are fast approaching and justices might not be willing to put the country in another exercise that will test the country's political stability while preparations for the upcoming elections are underway. The attitude might be to allow the president to finish her term since barely two years of it remains.

THE LINK BETWEEN SC APPOINTMENTS AND GMA'S TERM EXTENSION

With the rare opportunity of replacing almost half of the members of the Supreme Court next year, Pres. Gloria Macapagal-Arroyo is under suspicion of manipulating the nomination process to ensure that only those who will support her in the High Court are appointed.

Those who take this view, former House Speaker Jose De Venecia in particular, have linked this to a possible move by the president to extend her term of office beyond 2010. In anticipation of a challenge before the Supreme Court of the move to amend the Constitution and consequently, the extension of the president's term of office, they believe President Macapagal-Arroyo will only appoint justices who will cast favorable votes for her.

Contrary to what Malacañang would like us to believe, that President Macapagal-Arroyo has no plan of staying in the presidency beyond 2010, De Venecia's words deserve to be taken seriously, after all he used to be one of the president's closest political allies. Although De Venecia does not have much credibility when it comes to decrying Malacañang, this one is probably one of those instances where he deserves credit. His close association with the president for a long time makes him one of the most credible persons to know how the president thinks.

Those who still doubt the enormity of the Supreme Court's power to shape a nation's political landscape need only look a few years back when President Macapagal-Arroyo was installed into power in 2001 at the height of EDSA II, after the impeachment proceedings against then Pres. Joseph "Erap" Estrada was prematurely terminated. In an unprecedented move, the Supreme Court issued an en banc resolution authorizing then Vice President Macapgal-Arroyo to be sworn into office as president. In effect, the Supreme Court legitimized the assumption to office of Gloria Macapagal-Arroyo despite the absence of a formal petition challenging the legitimacy of Estrada's presidency before the High Court - a highly unusual move.

While the Supreme Court's action was viewed by many as proper and necessary in preventing the nation from sliding into political turmoil and chaos, many legal analysts also criticized the High Court for improperly embroiling itself into a political controversy and abandoning its constitutional role as an independent judical body that should be beyond the influence of public opinion.

In a very real sense, therefore, one could see how decisive a role the Supreme Court plays in the nation's political life. As the final arbiter of all legal controversies and the ultimate authority in declaring what is constitutionally proper, the Supreme Court is vested with very important powers in shaping the direction of the country with finality - economically and politcally - in a way that no other branches of the government can do. While congress has the sole power to legislate laws, the president may veto them and even if such veto is overriden, they remain open to challenges before the Supreme Court and could possibly be struck down for unconstitutionality. The president, on the other hand, may set the course for the nation's economic and political direction, but with the expanded powers of the Supreme Court under the Constitution to correct any act of government that is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the Court can effectively check the president's actions - although traditionally they would have been characterized as political in nature and, therefore, not subject to judicial inquiry.

Given this immense power once its jurisdiction is invoked - or even when it is not invoked as what happened in 2001 - there is every reason to fear that President Macapagal-Arroyo could use the filling of vacancies in the Supreme Court next year to serve her personal and political interests.

This is the reason why Supreme Court appointments in the United States are followed with a high level of interest than appointments in other branches of the government. In a Congressional Research Service report on the history and politics of appointments in the US Supreme Court, it was found out that the US Senate is less deferential to the president in the choice of Supreme Court appointees.

Since under the present Constitution appointments to our Supreme Court are not subject to senate confirmations, it is not likely that members of the JBC would go into the judicial philosophy - or the lack of it - of any of the candidates. Being a non-political body it is less inclined to dwell into this matter. In fact, under its rules, the JBC merely limits itself to the legal requirements of appointment to the judiciary. The political aspect is left to the president upon making her choice from the short list of nominees submitted to her.

A senate confirmation could pave the way for vetting candidates on their political inclinations. Appointees, for example, could be questioned about their concept of what should constitute political questions among controversies confronting the nation and, therefore, not subject to review by the courts. They could be asked about their thoughts on the extent of the Supreme Court's certiorari jurisdiction in checking or limiting the exercise of powers by the other branches of government. Do they hold conservative or liberal views about these things? Do they favor more governmental regulations or individual freedom?

To my mind these issues are as equally important as the candidates' qualifications and backgrounds, for we should be apprised how future Supreme Court justices will wield the sword of the country's foremost judicial power in ruling on important political and individual liberty issues that helps shape our nation. What do you think?

SUPREME COURT APPLICANTS WITH PENDING CASES

Of the 12 applicants for the Supreme Court post to be vacated by Justice Ruben T. Reyes in early January of next year, three of them are reportedly facing charges.



According to an inquirer report in its SC Appointment section, Solicitor General Agnes Devanadera is facing plunder charges before the Office of the Ombudsman for allegedly benefiting from a questionable supervision of the Poro Point Special Economic Zone and Freeport Zone in San Fernando, La Union. The other two candidates with pending cases are former BIR Commissioner Jose Mario Buñag and Court of Appeals Justice Juan Enriquez.



It is important that appointees to the country's High Court be free of blemishes that cast doubt on their integrity and competence. The JBC should leave no stone unturned in making sure that whoever it recommends to the president for appointment should only be those with proven competence, integrity, probity and independence as required under Article VIII, Section 7(3) of the Constitution.



The JBC should strictly adhere to its rules of not recommending any applicant with pending criminal cases or, in case of incumbent members of the judiciary, those with administrative cases that are serious or grave that affects the fitness of the candidate.

VETTING OF SUPREME COURT NOMINEES

As the year 2009 nears, preparation for the appointment of new Supreme Court nominees is underway as nearly half of the High Court’s members are poised to retire this coming year. As a matter of fact, 12 candidates are now being vetted for the post to be vacated by Justice Ruben T. Reyes in early January of next year.

Public advocacy groups, such as the recently formed Bantay Korte, and political observers are raising concerns that this huge number of vacancies that will be created in the Supreme Court in just a year’s time could be used by President Gloria Macapagal-Arroyo – who will have the opportunity to fill all the vacancies before her term ends in 2010 – to safeguard her interests by appointing those who will return the favor should cases involving her land on the doorsteps of the High Court.


We know, of course, that the Supreme Court is composed of 15 members and with the appointment of six grateful justices next year and one more in 2010, when Chief Justice Reynato S. Puno retires, President Arroyo could be assured of seven votes in the Court’s chamber, not to mention Justice Renato Corona who, as the president’s former chief of staff when she was still the vice president, could be counted in her favor.

Whether these fears are unfounded or not, to my mind the important question to be addressed is how effective and credible is the vetting process for prospective appointees to the Supreme Court.


At present, Supreme Court appointees are selected by the president from a list of at least three nominees (known as the “short list”) for every vacancy, that is submitted by the Judicial and Bar Council (JBC) after several applicants for such vacancy are screened.

With the JBC being composed of diverse members from both the public and private sectors, proponents of the system contend that the current selection system is insulated from politics, unlike in the past where only the Justice Secretary submits nominees for the President to appoint.

The suspicion, however, is that the president usually submits a list of her own candidates or indicates favored ones who as a matter of course always end up on the short list.

The problem I see with the current system is that there is not much transparency and publicity in the manner the JBC goes about its business, so much so that there is not much public participation in the process or public participation is practically nil.

As future occupants of the country’s highest judicial body that lays down important decisions for the nation – especially in the areas of civil liberties and exercise of governmental powers – nominees to the Supreme Court should be subjected to the same publicity and rigorous scrutiny, if not more, that the controversial and colorful personalities in congressional investigations are confronted with.

In the United States, the process of confirming and approving appointees to its Supreme Court is considered of utmost importance and in fact appointees are subjected to more scrutiny than other appointees of the president in the executive department. On average it takes about two to three months by the US Senate to confirm or deny Supreme Court appointees.

The present process of selecting Supreme Court nominees in our country might have been depoliticized by the 1987 Constitution, but with a Justice Secretary on board, who is the president’s alter ego, and four ordinary regular members who owe no accountability to any constituency, the influence from a sitting president might just be too strong a temptation to resist.

If, however, appointments to the Supreme Court are subjected to senate confirmations, which the 1987 Constitution does not provide, the vetting process could acquire more exposure and invite public discussion. Never mind the grandstanding, legislators will be more inclined to dig into the appointees’ records and engage them into a discussion of their qualifications, personal background, and judicial philosophy or the lack of it.

With a senate confirmation – in addition to the JBC process – there would be a check and sharing on the president’s appointing power for members of the Supreme Court, similar to the appointment for certain members of the executive branch.

It is true that by adding senate confirmation the process becomes politicized, since party affiliations and alliances will play major roles in determining appointees. There would also be the likelihood that if majority of the members of senate are party mates or allies of the president the principle of check and balance may not serve its purpose.

All these fears, however, are realities we all have to contend with under our present political and governmental structures. Party politics will always play an important role in matters of governance. What is important is that the selection process will become more transparent and invite more public discussion, aside from the fact that senators, administration allies or not, will most likely engage themselves in the discussion and debate that could bring more information out for the public to digest.

Furthermore, for fear of not being able to select only the most qualified and best legal minds for the country’s high court, there is a strong likelihood that senators would become more circumspect in confirming or denying appointees to the Supreme Court, and the prospect of a rigorous confirmation would make applicants with questionable background think twice in submitting their applications.

It will be recalled among observers of US politics that in 2005, Pres. George W. Bush appointed White House counsel Harriet E. Miers to succeed Justice Sandra Day O'Connor after announcing her retirement from the US Supreme Court. But after much criticism and public controversy over her appointment President Bush withdrew her appointment.



This is the importance of transparency and public participation in the selection process. Of special significance is the media's participation. By generating discussion on the background and qualifications of a candidate for the High Court and closely guarding the selection process every step of the way, public opinion could play a vital role in weeding out unfit candidates and generating support for the most qualified ones.

THE NEW PUNO SUPREME COURT

By next year, almost half of the members of the Supreme Court will be vacated with the retirement of six associate justices. Already, the Judicial and Bar Council (JBC), the constitutional body tasked to recommend appointees to the judiciary, has started screening and interviewing candidates for the position to be vacated by Associate Justice Ruben T. Reyes on January 3, 2009.



The crucial question now that must be asked by every concerned citizen is how effective and reliable is the vetting process being undertaken by the JBC? It is good to know that a new group called "Bantay Korte" - composed of lawyers, legislators, legal scholars and civic-minded people - has been formed to follow closely the selection process, aside from the existing public interest organizations out there. But more than anything else, the best measure to ensure the integrity of the selection process is by making the proceedings of the JBC completely transparent and participatory, which means involving the public in a vigorous discussion.



There should be equal, if not more, publicity to the proceedings of the JBC as the candidates for the highest court are being interviewed about their qualifications and backgrounds, in much the same way as congressional hearings are publicized. For years much of the JBC's proceedings seem to have been shrouded in secrecy; the public does not even know who its members are, except perhaps Sen. Francis Pangilinan. The media - print and broadcast - should be given unfettered access to the JBC's records and proceedings, for after all there should be nothing confidential about the candidates for the highest judicial post.



Full exposure of the candidates (I mean their backgrounds and qualifications) should be made so that the public may dig into their records and see how truly fit they are for the Supreme Court. Public discussion and debate about the candidates' fitness should be made in the media.



Of particular importance that should be emphasized in the criteria for selecting appointees to the SC is the stand of the candidates on the Bill of Rights, especially on freedom of speech. How do the candidates view the importance of free speech in a democratic society like ours? Are they more disposed in shielding the government and its functionaries against public scrutiny or in allowing the public become more vocal in matters of governance. For sure, the present Supreme Court, under the able leadership of Chief Justice Reynato Puno, has shown its fidelity to this important constitutional right as shown by its recent decision in Chavez v. Secretary of Justice. With the impeding substantial change in the High Court's composition, however, this unswerving fidelity to free speech might also meet a drastic change.



Of course, there is also the fear that the new appointees might be beholden to the president, who would ensure favorable decision for her should cases affecting her in the future, especially after she steps down from office, land on the doorsteps of the High Court. So let us all keep a watchful and vigilant eye on this important development.

FREEDOM OF SPEECH AS THE
CORNERSTONE OF DEMOCRACY

Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights, were considered the necessary consequence of republican institutions and the complement of free speech. This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations.

In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system. This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom. Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms. For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant.

Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom. What is embraced under this provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, in which it was held:

". . . At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent."

Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means of assuring individual self-fulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change. As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wide-open.

Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence. When atrophied, the right becomes meaningless. The right belongs as well -- if not more – to those who question, who do not conform, who differ. The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us.

The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority.

[Chief Justice Reynato S. Puno, speaking for the Supreme Court in Chavez v. Gonzales, G.R. No. 168338 (February 15, 2008)]