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Monday, June 25, 2018

Lessons from Sereno fiasco, and why Justice Carpio should change his mind

IF there is any lesson to be learned from the debacle that befell Maria Lourdes P.A. Sereno, it is that the Supreme Court must be insulated from politics.

And if there is anyone who should be blamed for what happened, it should be no other than former President Benigno S. Aquino 3rd. Noynoy’s sins are twofold. He used his presidential powers to instigate, and like a puppet-master, direct from his office, the ouster of sitting Chief Justice Renato Corona simply because he didn’t like Corona. And second, he appointed Sereno, his classmate and political ally, to take the post that Corona vacated.

These two acts effectively politicized the judiciary, and worse, Aquino did it by assailing the institution of seniority in the court. Vengeance towards Corona as one whom he perceived to have hurt his family’s business interests in Hacienda Luisita juxtaposed with a preferential treatment towards Sereno who, while the most junior member of the court, was nevertheless a kindred spirit, a classmate who shared his politics, and who happened to have provided the lone dissenting voice in the Corona Court on the Luisita issue.

What made Noynoy’s crime worse was that Sereno presided over the court with such an erratic adherence to procedures, that she even became a recidivist in undermining the en banc by making decisions without its authority, or contrary to what it had decided. She tried to hide her being a political animal, but her partisan biases have never been a secret, and in fact they were eventually revealed in her campus tours, speaking engagements, and during her interview with BBC’s Stephen Sackur. The BBC host took note of the fact that her behavior was conduct unbecoming of a chief justice.

In order to correct the travesty, the only option we thought was available was impeaching Sereno. But going by the confidence of her camp to fight it out in a Senate trial, it was not even certain if we could have found 16 senator-judges who would convict her. In hindsight, had Sereno been impeached by the House, and the articles of impeachment transmitted to the Senate, there was a good chance that she would have been acquitted.

It is indeed a stroke of genius that Solicitor General Jose Calida opened another avenue that is also available but was simply thought to be not legally possible. Before Sereno, no one would have ever thought that a quo warranto could be used to remove a chief justice. In fact, until today, pro-Sereno legal pundits and politicians remain convinced that it was unconstitutional.

But the court has spoken with finality. Perhaps, and in hindsight, it is more appropriate for the Supreme Court, sitting as a collegial body, to have been the one to execute the act that was necessary to correct an anomaly that perverted its own traditions, processes and institutional practices. An impeachment would have been one that looked at Sereno vis-à-vis her actions against the republic. The quo warranto was one where the court told Sereno that she had no right in the first place to be judged as a member, for she simply never acquired authority and legitimacy to be treated as such.
Critics and Sereno herself insist that the President’s hand was behind her ouster. Granting without admitting that this is true, the ouster was still accomplished through a process that existed within the ambit of a judicial proceeding, where the justices decided on the basis of their understanding of the law and the Constitution, and not as an outcome of an impeachment process where partisan senator-judges were influenced to render a decision. President Noynoy Aquino influenced the Senate to oust Chief Justice Corona, even disbursing DAP funds to those who voted to convict him. It is going to be a tall order to prove any allegation that President Duterte influenced, even bribed, the eight justices to oust Sereno.

And now, the position of chief justice is vacant. History is offering us an opportunity to complete the recuperation of the judiciary, by making sure that the time-honored respect for seniority will be reinstated, and to make sure that the appointment will not be politicized.

This is precisely why appointing Senior Associate Justice Antonio Carpio to the post of chief justice would be most fair, just and right. Appointing him as the next chief justice will definitely honor the seniority rule since he is the most senior of the members in terms of rank.

More importantly, a Chief Justice Carpio will dispel any allegation by the opposition of a politicized court and will insulate the President from any criticism that he is turning the court into a subservient rubber stamp. On key issues, Carpio has in fact voted against the President. He voted against the Marcos burial and the martial law declaration in Mindanao.

People who oppose Carpio point to his previous association with a law firm about which many do not hold favorable opinions. Others also raise issues with his alleged association with the political opposition.

But as chief justice, Carpio is only one vote of 15. It is doubtful that he can twist the arms of his colleagues to yield to whatever imagined agenda he would have, if any. Carpio may be a persuasive, erudite justice, but he has found himself on the dissenting minority on many key issues, including that of the quo warranto ouster of Sereno.

The position of Chief Justice embodies an institutional symbolism that speaks of the principle of the judiciary as an independent, co-equal branch of government. Certainly, one should not consider political affiliation as the force that should determine who should take the post.

Sereno’s invalid appointment besmirched the judiciary for its sheer partisanship. It will be foolish for us to ask the President to confine his choices only to those who hold views that are politically acceptable to him. If he does, then the republic will once again lose the opportunity to ensure the independence of the judiciary, and we would have squandered the chance to learn a lesson from Sereno’s ouster.

I certainly hope that Justice Carpio would reconsider his decision not to accept any nomination, his reason being the fact that he finds it improper for him to benefit from a decision he disagreed with. In fact, and with all due respect to Justice Carpio, it is more principled to benefit from a decision that he disagreed with. It will only highlight that his vote on the quo warranto was not a self-serving move.


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