Bending a branch of government

The impeachment case against the top magistrate of the Philippine Supreme Court could have been a healthy democratic exercise. Instead, the process has become a threat to judicial integrity, Kent Primor writes.

For several months now, the top magistrate of the Philippine Supreme Court, Chief Justice Maria Lourdes Sereno, has faced impeachment charges.

The case against Sereno could have been a healthy exercise for the Philippines’ democracy, demonstrating the ability for the Constitution to hold those in power to account. In reality, however, the process is unduly weighted against the Chief Justice, with serious consequences for the country’s governance and democratic political system.

Under a republican democracy, the three branches of government are supposed to be co-equal, independent, and autonomous. This triangular relationship is meant to ensure checks and balances so that no single entity has a monopoly of power.

As the doctrine of French philosopher Baron de Montesquieu reminds us, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.” The separation of powers is supposed to preserve and strengthen institutional integrity, not harm it.

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But what do we mean by the principle of institutional integrity? As legal scholars Chris Steytler and Iain Field explain, institutional integrity has two crucial elements: reputation and self-preservation. Reputation means public confidence in the independence and impartiality of the court, while self-preservation means the ability of the judiciary to shield itself from legislative and executive interference.

Notwithstanding the merits of the impeachment case against Sereno, a number of issues appear to be compromising the institutional integrity of the Supreme Court.

In October 2017, President Rodrigo Duterte challenged both Sereno and Philippines Ombudsman Conchita Morales to resign from their posts. Duterte’s administration echoed his remarks and explicitly called for Sereno’s resignation.

This is a classic case of executive overreach by putting immense pressure on the head of another co-equal branch. The president yields enormous political capital by operation of his office and by design of the country’s political system.

The executive branch has an array of tools at its disposal that shape public perception in its favour. People see, hear, and interact with the executive much more than they do with the judiciary which, by virtue of its functions, has very limited public engagement.

Duterte’s remarks challenge public confidence in the judiciary and its ability to resist executive intervention. Public perceptions are critical to the reputation of the judiciary as an independent and impartial institution.

Another issue compromising judicial integrity is the active participation of members of the Supreme Court in the highly politicised impeachment proceedings. Four justices (three current and one retired) along with other court officials appeared and testified before the House Committee on Justice.

The appearance alone of the revered justices in a congressional hearing creates a public perception that the judiciary has relegated some of its institutional powers and been subjected to legislative proceedings beyond what is allowed by Philippine law (for instance, budget hearings). It might not be the case, legally speaking, but we are talking here about public perception, which is fluid and can easily be shaped by political actors.

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It has to be emphasised that judicial integrity requires justices to observe the highest standards of conduct in both their official and personal capacities. Canon 3, section 2 of the Philippine Code of Judicial Conduct obliges judges to ensure their conduct, both in and out of court, maintains and enhances public confidence on their impartiality and that of the judiciary. Thus, it is crucial for justices to practice self-discipline and restraint, especially on matters within the political sphere, in order to preserve the Supreme Court’s institutional integrity.

A final issue undermining the integrity of the judiciary has been the conduct of the justices. Justices are supposed to shield their institution from reputational damage and attempt to resolve issues internally. They are not supposed to make their personal animosities public. And yet, this is exactly what happened when a majority of the Supreme Court justices forced its chief to take indefinite leave – despite the contention of legal scholars that impeachment is the only constitutional process to remove the Chief Justice.

The action of the justices is troubling for two reasons. First, it creates the undesirable perception that the institution responsible for defending the Constitution is contemplating extra-constitutional methods to remove the Chief Justice.

Second, and more importantly, damage to the legitimacy of the Supreme Court is a threat to the power balance between the three branches of government. Any attempt to shift the power balance undermines the Philippines’ system of checks and balances – one of the core pillars of its democracy.

The on-going impeachment proceedings will be a clear test for the Philippines. Regardless of the eventual outcome of the case against Chief Justice Sereno, public officials must rise above petty politics and find a way to restore the integrity of the judiciary – or risk the whole system toppling over.