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Sunday, April 27, 2008

Antonio Carpio: A Reminder to Justices

Written by Justice Antonio T. Carpio
Friday, 25 January 2008

The most important qualification of a judge is independence.

The title of the book of author Evelyn Miranda-Feliciano, A Test of Courage, says it all. The ultimate test for any Supreme Court, and for the Justices who compose it, is in layman's language, the test of courage. In constitutional lingo, this is the test of independence, for the Constitution mandates that a member of the Judiciary, and more so a Justice of the Supreme Court, must be "a person of proven independence. "

I have always said that the most important qualification of a judge is independence, not brilliance. In fact the Constitution does not require a judge to be brilliant but only competent and independent, in addition to being of proven integrity and probity.

The Supreme Court has an awesome power and duty: to strike down or uphold acts of the President or of Congress. This awesome power and constitutionally mandated duty is not only a daunting challenge, but also a terrifying task.

When either the President or Congress, or both jointly, have acted, the unelected members of the Supreme Court have to weigh most judiciously whether to annul the acts of the elected representatives of the people. For if the Supreme Court errs, the consequences could be tragic for the nation. It takes a lot of courage and independence to discharge such awesome power and duty responsibly and faithfully.

Gods of Padre Faura

The power to strike down or uphold acts of the President or Congress, known as the power of judicial review, was established more than two centuries ago by Chief Justice John Marshal in Marbury v. Madison. In a long line of landmark decisions, Marshall used judicial review to fashion a strong central government in America out of the various States that zealously safeguarded individual state rights. The power of judicial review brought the US Supreme Court under Marshal to its zenith in power and prestige.

However, the same power of review also brought the US Supreme Court to its lowest point under Marshall's successor, Chief Justice Roger Taney. Taney penned the infamous Dred Scott decision that declared Negroes inferior to whites, deserving of being slaves, and unqualified to become US citizens. Dred Scott ignited a political firestorm that led to the American Civil War resulting in the death of tens of thousands of Americans. The Taney Court fell into utter disrepute, ridiculed by the public and the press.

In the Philippines, the equivalent to a Dred Scott is the 1973 case of Javellana v. Executive Secretary which legitimized the 1973 Constitution that was purportedly ratified by citizens' assemblies, thus dooming the country to one-man rule.

I was a second year student at the U.P. College of Law when the Supreme Court handed down Javellana. In my eyes as a law student, the gods of Padre Faura, supposedly the last bulwark of democracy in our country, fell from their high pedestals the day they decided Javellana.

Bulwark of Democracy

Now, whenever a major constitutional issue comes up before the Court, I always ask myself and even some of my colleagues, could this be our Javellana or Dred Scott? Of the cases the author discusses in A Test of Courage, David v. Arroyo would be several steps short of a Javellana, but Lambino v. Comelec would be a Javellana or Dred Scott, had the Supreme Court decided differently.

David v. Arrroyo decided differently would have encouraged the Executive to flirt with authoritarianism, possibly leading to a Javellana in the future. Lambino v. Comelec decided differently would have instantly bitterly polarized the nation, and worse, most likely instituted a constitutional system that would perpetuate the rule of the incumbents.

Of the six cases discussed in the book, four were decided under the leadership of Chief Justice Panganiban. Reading through the discussions on these four cases is like reliving again the deliberations of the Court in these cases.

There were moments when the Court was happily unanimous even as the discussions became contentious over the wording of the decision. There were moments when the Court was almost evenly divided and the discussions became heated. There were moments when I was overjoyed because the Court remained the bulwark of democracy. There were moments when I was dejected because I feared the Court was about to commit judicial seppuku by enshrining its own Javellana or Dred Scott.

All throughout, Chief Justice Art Panganiban ably steered the discussions to the main points to be resolved. That the decisions of the Panganiban Court in these major constitutional cases received wide approval from the public and the legal community is a testament to the leadership of Chief Justice Panganiban.

The Panganiban Court passed the test of courage and independence in all these cases. The Panganiban Court succeeded in avoiding the pitfalls of a Javellana or Dred Scott although in Lambino v. Comelec, the 8-7 vote was, in the words of a Senator, "napaka nipis." Too slim yes, but that one vote margin was enough to save our democracy and prevent another dark period from descending on our country.

One Brave Soul

Indeed, in the Supreme Court, when the voting is close and the nation's destiny could take a sudden sharp turn depending on the outcome of the case, it takes only one brave and courageous soul to make the difference. And that is how important one vote is in the Court.

The aim of the author in writing A Test of Courage is to record "a momentous good that should make us truly proud as a people" lest it be quickly forgotten. Senator Jovito Salonga, the longtime mentor of Chief Justice Panganiban and the moving force behind this book, explains that this book will insure that our people "appreciate what the judiciary has done and is doing for this country."

This book will start to fill a critical gap in Philippine legal history. It is unique because this is the first time, as far as I know, that all the important decisions of the Court during the term of a Chief Justice have been examined with the aim of recording for posterity the courage and independence of the Justices who took part in those decisions.

Whenever a new Justice is appointed to the Supreme Court, I always gift the new Justice with either of two books: Bernard Schwartz's A History of the US Supreme Court, or Robert McCloskey's The American Supreme Court. My purpose is to explain, from a historical perspective, the pivotal role of the Supreme Court in nation building, and why that pivotal role is in fact shaped by the courage, independence and strength of character of the Justices who sit in the Court.

I cannot give a new Justice a similar history of the Philippine Supreme Court because none has been written. This book at least begins the process of looking at important decisions of the Philippine Supreme Court as tests of courage and independence of the men and women who sit in the Court.

Indeed, what this book truly achieves is not so much to remind the nation of the courageous acts of the Justices who constitute the last bulwark of our democracy, but to remind the Justices themselves that theirs is the sworn duty to remain independent if they are to serve as the nation's last bulwark of democracy.

These are excerpts from the author's speech delivered during the recent launch of "A Test of Courage," a book on the Panganiban Court.

1 comment:

  1. yeah i hope all judge can't be influence by money
    justice must prevail

    Anyway, just want to inform you that your link was included on my blog at worldwide link Love


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