The judicial system has been in the news lately. The Supreme Court issued a temporary restraining order (TRO) on the signing of the GRP-MILF Memorandum of Agreement on Ancestral Domain (MOA-AD). Then, it affirmed its unpopular decision to uphold executive privilege over the constitutional right to information and the Congressional prerogatives in investigation in aid of legislation. Lastly, the Court of Appeals lost one of its justices and had others either suspended or reprimanded by the Supreme Court for acts unbecoming of a justice in the case of the GSIS vs. Meralco.
The judiciary, particularly the Supreme Court, had always been viewed as the last line of defense in a democracy. The military, often portrayed as the last line, is not–it is an arbiter of democracy. When it decides, it can defend democracy or it can–such as in time of Marcos–ruin it.
The reason for this Supreme Court’s role is constitutional. It stands between the two other republican branches, the Executive and the Legislative, and arbitrates differences between them. In the 1987 constitution, the framers added the power 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.”
This power is in addition to its administrative powers over the courts, including the Court of Appeals. When the Supreme Court disciplines its ranks, it always earn high marks from the people. However, the work needed to cleanse the lower judicial bodies of their unsavory reputation is herculean–a labor of a lifetime. The disciplining of CA justices happened within an unusual setting–the epic battle for control of one of the country’s biggest corporation between an economic elite family, on the one hand, and the country’s most politically powerful family and its allies, on the other hand.
The Supreme Court decision on the executive privilege issue, however, earns for itself a very low mark and dangerously tilted the balance between the Executive and the Legislative branches irretrievably in favor of the former. It thus brought nearer the day of absolute power to an already very powerful presidency. In the current political crisis, this is a real temptation.
The Supreme Court TRO on the MOA-AD signing basically postponed the day of decision on the Executive’s prerogative in peace negotiations. Due to the blatant violations of the constitution in the MOA-AD and the overreaching by Malacañang of its powers, everybody is expecting a Supreme Court finding for “a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Executive.” If it refuses to decide on the issue (because of a convenient “moot and academic” argument provided by the Solicitor-General), then it will allow the resurrection of the MOA-AD.
On balance, the Supreme Court teeters on the crumbling credibility ledge of its own making. It is hard-pressed to define (and actually live up to) its role as the third branch of government. The creation of an automatic pro-Malacañang majority is suspected and this may impinge on its own credibility. A highly-credible Chief Justice in minority adds to the problem of credibility.
The Supreme Court may need to do a lot more hard work, not only to return credibility to the entire judiciary, but–more importantly–to preserve its own. The wavering last line of defense that is the Supreme Court must withstand the assaults on its independence and render justice to everyman, including the president of the Republic.
This must not only be done but it must also be perceived as such by the people. Otherwise, the military becomes the arbiter of our democracy.