Wake Up, Philippines!

Should politicians be appointed to the judiciary?

Posted in Judiciary by Erineus on April 22, 2009

By Neal Cruz
Philippine Daily Inquirer
First Posted 04:25:00 04/22/2009

Should politicians be appointed to the judiciary? This was the topic of last Monday’s discussion at the Kapihan sa Manila with Rep. Ruffy Biazon of Muntinlupa and former Rep. Gilbert Remulla of Cavite as guests. Both of them answered in the negative. Politicians should not be appointed to the judiciary. Politicians have many debts, allegiances and vested interests; judges and justices have to be independent and totally objective and fair to be able to give true justice. The two—politicians and justices—can never mix, they said.

“Once a politician, always a politician,” Biazon emphasized.

If a political ally or protégé has a case in a judge’s sala, how would the judge decide, they asked. Objectively and fairly—that is what he should do, they answered their own question.

But it doesn’t usually happen that way, Biazon said. The judge can’t help but be biased in favor of his ally. That is human nature.

And even if the judge does decide objectively, there is always the impression in the minds of the public that he is biased if the decision favors his ally. That erodes the faith of the people in our system of justice.

This is especially serious in the Supreme Court where important legal and constitutional issues are decided, and where the justices are sometimes divided. Supreme Court justices should always be perceived as totally objective, but how can that be when some of them are former politicians with debts of gratitude and political baggage weighing them down.

Right now, there are at least two former congressmen in the Supreme Court: Associate Justices Dante Tinga and Eduardo Nachura. The two have been asked to inhibit themselves from participating in an election case because of their political background and because the sitting congressman who is the subject of the election protest is deemed their ally. Obviously, there are litigants who are not confident of the justices’ objectivity.

Former Chief Justices Hilario Davide and the late Marcelo Fernan were also politicians before they were appointed to the Supreme Court. Davide has been criticized for his handling of the impeachment case against President Joseph Estrada. When the prosecutors walked out of the Senate session hall, Davide should have dismissed the impeachment case for failure to prosecute, the critics said. Instead, he went to EDSA and administered the oath of office to then Vice President Gloria Macapagal-Arroyo. He was rewarded later by Ms Arroyo who appointed him (illegally, say critics) ambassador to the United Nations after he retired from the Supreme Court.

On the other side of the coin, former Chief Justice Andres Narvasa has also been criticized for acting as one of the counsels of Estrada in the impeachment and plunder cases against him. Although there is no prohibition against it, retired justices, and especially retired chief justices, should be barred from appearing as counsels for litigants in courts of law, observers say. Justices are viewed with such awe and respect in the courts that judges and lawyers are intimidated by their mere presence, they say. (Which is unfair to the other side.) And anyway, justices have handsome retirement pay; they do not need the additional income.

The legal community has been talking about a land case already decided with finality by the Supreme Court. Yet the Court reopened the case and later reversed the decision when a retired Supreme Court justice, working as counsel for one of the litigants, wrote a private letter (arguing his case)—not a formal petition or motion—to the Chief Justice. Another land case, involving the same claimant and also already decided by the high court, was also reopened and reversed en banc.

There is another important reason politicians should not be appointed to the Supreme Court. It robs the career judges who rose from the ranks of the chance to be appointed to the high tribunal. To become a Supreme Court justice is the ambition of all lawyers. That is the incentive for lower court judges to perform well.

Yet when a vacancy opens in the Court, who gets appointed first? The politicians, the Cabinet members, usually the secretary of justice, the solicitor general, the presidential legal adviser—the people close to the appointing power. Right now, Ombudsman Merceditas Gutierrez, Solicitor General Agnes Devanadera, a former politician, and presumably Justice Secretary Raul Gonzalez, are the frontrunners to fill up vacancies expected in the Court very soon.

This is a big blow to the morale of the judges and justices in the lower court, who are waiting in the wings for the realization of their dreams. Their disappointment sometimes forces judges to leave the straight and narrow path and “to provide for their future” instead.

But how do you ban the appointment of politicians to the judiciary? The Constitution does not include being a politician as a disqualification for appointment to the judiciary. Congress cannot pass a law superseding the Constitution.

The President chooses from a list recommended by the Judicial and Bar Council. The JBC has no rule banning politicians either. It is supposed to be independent but it is subjected to intense pressure—from Malacañang and other lobbyists. So what do we do?

Amend the Constitution. But that is dangerous. Open the Charter to amendments and the politicians may extend the terms of office of the President and themselves—for life if they can get away with it.

Amend the Constitution one provision at a time, like an ordinary bill passing through Congress, as Speaker Prospero Nograles has proposed for his economic provisions, or as the Americans have amended their own Constitution. But only after the 2010 elections.



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