Philippine Chief Justice Sereno’s undemocratic ouster

We Filipinos routinely call our country a republic and equate freedom with democracy. In fact, the very first principle our Constitution declares is that “The Philippines is a democratic and republican State.”

And yet our Supreme Court, in its recent decision and follow-up resolution ousting Chief Justice Maria Lourdes Sereno, did not feel the need to address the one question many democratic republics would have asked regarding the decision: should unelected judges second-guess the moral judgment of a previous, popularly elected president on a political issue?

The peculiar way Filipinos interpret political history may have much to do with this. Call it the Padrino Cycle. It is an interpretation which makes our democracy not only unrepublican in practice, but also dangerous to freedom.

The Padrino Cycle is the sense that nothing really changes in Philippine government except for the rotation of a handful of politically powerful families whose heads, i.e., padrinos, take turns either taking up residence at the Presidential Palace or falling from grace. The cycle continuously churns. Three examples: first, a revolution deposed the dictator Ferdinand Marcos in 1986, and yet thirty years later he was buried at the Libingan ng mga Bayani (Cemetery of Heroes) and his son almost won the elections for Vice-President; second, mass protests deposed President Joseph Estrada in 2001, and yet he almost won back the Presidency in 2010 and is now the mayor of the country’s capital; third, Benigno Aquino III won the Presidency in 2010 by a very wide margin, but is now facing multiple criminal charges while some of his top political allies are under severe assault.

A somewhat defensible premise of the Padrino Cycle is a presentist notion of democracy. That is, the will of The People today is reflected in the last elections. Or at least, electoral losers and the rest of the populace must submit to the will of the electorally victorious plurality in most if not all matters of public policy and legal enforcement. A more cynical (some would say realist) premise of the cycle is that government positions are mainly sources of patronage which may be captured. Who captures them—i.e., who gets to feed at the public trough—is the group who wins during the last election.

Padrino Cycles have in fact been the reality of local politics since the country’s first municipal elections in 1901. Across the archipelago, two rival groups in each municipality, city, or province have typically fielded candidates in winner-take-all local elections where the victorious get whatever they can get away with, and the losers get (at best) the strict enforcement of law.

Many Filipinos accept this practice, which political scientists call “discriminatory legalism”, because today’s losers could very well be tomorrow’s winners. Every group sooner or later gets its turn. As Philippine President Rodrigo Duterte remarked last year, “Weather-weather lang ang buhay.” This is a famous Filipino adage, which means that life’s ups and downs are seasonal. In politics, the Padrino Cycle eventually brings rainfall and sunshine to all competing electoral groups. One must simply take cover during typhoons.

Political discourse in the Philippines today, where everyone is branded as either a Dutertard (i.e., a Duterte supporter) or a Dilawan (i.e., not a Duterte supporter), reflects the logic of the Padrino Cycle. It is inherently unrepublican. Derived from the Latin res publica, which means “public thing” or “public affairs”, the term republic refers to polities which give all politically relevant groups a part in policymaking and governance—not on rotation, but all the time. The aim is to encourage all such groups to pursue the common good and respect each other’s rights, prerogatives, and privileges. The Dutertard vs. Dilawan frame undermines this aim by making politics a “partisan thing” or a matter of “partisan affairs” where some politically relevant groups are brusquely excluded from policymaking and governance.

The 1987 Constitution of the Republic of the Philippines features many classical institutions of republicanism: separation of powers, checks and balances, staggered elections and terms of office, a Bill of Rights, etc. These institutions are designed to channel political energies through democratic processes where the coöperation, compromise, and coalition-building needed to succeed would encourage citizens to champion collective norms, consider complementary interests, and pursue win-win solutions. Discriminatory legalism defeats this republican aim of political integration. Instead, it fosters partisanship and the dogged pursuit of the winning group’s good. Respect for the losing group’s rights, prerogatives, and privileges is deemed optional—i.e., a matter of delicadeza (prudent restraint).

Of course, legalism is supposed to be neither discriminatory nor a matter of delicadeza. Our Bill of Rights guarantees to every person the equal protection of the laws. And the Constitution purposefully strengthens judicial independence so that courts could remain impartial in interpreting laws despite whatever changes in the political climate.

The rule of law is thus a constraint on Padrino politics. The problem is that, for many Filipinos, Padrino politics is democracy. In this equation, the rule of law is considered an imposed constraint on democracy, rather than an integral part of it. In a country where the ballot is the most legitimate form of political conflict, such an understanding of law and democracy can make discriminatory legalism acceptable, if not seemingly natural. Under such an understanding, the ouster of Mrs. Sereno (who is not a Duterte supporter) could be regarded as simply a natural outcome of the turning of the political wheel. After all, wasn’t her predecessor in office, the late Renato Corona, also similarly removed when the Padrino Cycle last turned?

Mrs. Sereno’s Ouster

The 1987 Philippine Constitution adds moral qualifications to the usual formal ones for aspiring Supreme Court Justices. The formal qualifications may be readily factchecked: is the aspirant Justice a natural-born citizen? at least forty? has he or she been a practicing lawyer or sitting judge in the country for at least fifteen years? The moral qualifications, by contrast, require moral judgment: is the aspirant “of proven competence, integrity, probity, and independence”?

We must presume that Mr. Aquino would not have appointed Mrs. Sereno to the Supreme Court if he did not consider her of proven competence, integrity, probity, and independence. After all, he had sworn to “faithfully and conscientiously fulfill” his presidential duties and “preserve and defend” the Constitution. One of his duties as President was to appoint Supreme Court Justices from a list prepared by the Judicial and Bar Council (JBC) for every vacancy. This he did in favour of Mrs. Sereno not only once, but twice: first in August 2010 when he appointed her Associate Justice, and then in August 2012 when he appointed her Chief Justice. In so doing, he publicly made a moral judgment, as our democratically elected Philippine President, that Mrs. Sereno possessed the proven integrity which is required to become a member of the Supreme Court.

A few years ago, the Supreme Court explained that the moral qualification of integrity is “closely related to, or if not, approximately equated to an applicant’s good reputation for honesty, incorruptibility, irreproachable conduct, and fidelity to sound moral and ethical standards,” and thus refers to “the quality of person’s character.” Despite this value-laden definition, the Court, in its Sereno Ouster Resolution, ruled that the determination of a person’s integrity is “based on facts” and involves “no exercise of discretion.” Philippine Law, not least the Constitution, requires all public officers and employees to submit a declaration under oath of their assets, liabilities, and net worth upon assumption of office and then annually. A person of integrity would have dutifully submitted these statements, called Statements of Assets, Liabilities and Net Worth (SALNs), since (said the Court) integrity “at its minimum, entails compliance with the law.” The Resolution thus affirmed the Court’s earlier decision that Mrs. Sereno, when she applied to be a Justice, was not a person of integrity because she had repeatedly failed to file her SALNs dutifully. Since she was ineligible to be a justice, then her two nominations by the JBC were void. The implication is that Mr. Aquino could not have appointed her because she is deemed to not have been in the list in the first place. Even if she were, she was ineligible. The Court, therefore, ousted her from her seat at the head of its table.

The three dissents (of Justices Antonio Carpio, Marvic Leonen, and Alfredo Caguioa) emphasised judicial independence, separation of powers, and stability in various degrees. These values support the presentist, “rule of law as a constraint on democracy” view. What they did not say was that Mrs. Sereno’s ouster was an attack on democracy itself. On the contrary, Justice Leonen said that “Courts are the sanctuaries of rights, and not the preserve of political majorities. They are not representative organs.” Taking advantage of this frame, Justice Francis Jardeleza, who ruled with the majority, argued that Mrs. Sereno’s ouster actually promotes judicial independence because, as an earlier decision had said, “only a Judiciary with integrity can be a truly independent Judiciary.”

Mr. Aquino’s decision to appoint Mrs. Sereno was raised only in passing. Justice Leonen posited, without much argument, that the Court’s decision “undermines the President’s constitutional power of appointment.” Presumably he was implying that it undermined, not democracy, but separation of powers. Justice Caguioa, in his dissent, argued that the determination of a person’s integrity is a political question; it is, therefore, not for the Court to decide. He also agreed with Justices Carpio and Leonen that it is not for the Supreme Court to remove the Chief Justice from office because that is solely for the Senate, sitting as an Impeachment Court, to decide.

Breaking the Cycle

Mrs. Sereno became Chief Justice to replace Mr. Renato Corona, whom the Senate, sitting as an impeachment court, had removed because he had failed to include “substantial assets” from his SALNs. Mrs. Sereno, the Supreme Court found, had not only failed to include assets from her SALNs, but had failed to file them altogether. Mr. Aquino argues that his appointee’s ouster is different from Mr. Corona’s removal by impeachment during his presidency. He has an argument: impeachment is the Constitutionally detailed process for removing an incumbent Supreme Court Justice. Mrs. Sereno’s ouster by quo warranto was the first of its kind in the country. Before the decision, very few Filipinos, if any, would have thought it was proper for an unelected court to oust political appointees of an elected President. Even Justice Jardeleza admitted that, before he joined the majority decision, he, too, had thought it “self-evident” that “impeachment is the only mode of removing a sitting member of the Supreme Court.”

I agree with the dissenters. Impeachment was the only constitutional process for removing Mrs. Sereno. I agree, too, that her ouster undermines judicial independence, separation of powers, and stability.

My frustration is with their failure to connect these three concerns to the country’s main source of political legitimacy: democracy. This, I conjecture, is because their notion of democracy remains presentist.  This, even though revolutionary constitutions (like the Philippine charter) do not make much sense under such a notion. Revolutionary constitutions are, by their very nature, intergenerational projects: the founding generation enacts a charter, and subsequent ones conduct their politics under its rules, principles, and promises. The Constitution’s overwhelming legitimacy springs from its enactment by a broad coalition of unlikely allies which, at a historic constitutional moment, is confident enough of its supermajority support from the entire population to reliably claim to speak for We the People.

While the People can be said to have spoken through their ratification of the Constitution, the winners of the latest election can claim to represent only part of the population. This is why they obtain only part of the levers of government. The other levers remain in the hands of previous electoral winners and their appointees.  Unless one group can consistently win multiple elections, the Senate, constitutional commissions, courts, the Ombudsman, etc. would remain partly in the hands of other groups.

The separation of powers and the independence of the government’s different departments and instrumentalities make them interdependent. It is by requiring these different parts to work together that something like the will of the People could be said to be reliably represented in government policymaking and legal enforcement. Because it is only through this democratic process that the public will is represented, the winners of the latest election must respect it by working with those in government who represent previous winners and constituencies. If President Duterte seems like a dictator, it is precisely because, instead of working with these officials, he has been attacking them.

Padrino Cycles don’t make much sense under an intertemporal notion of democracy. Democracy literally means rule of the People as a whole; rule of only a part of the populace is undemocratic. Because the winners of the latest election do not represent the will of a homogenous People, other groups are well within their democratic rights and prerogatives to wield the offices they still control in the service of what they consider the will of their constituents. Otherwise, part of the population will be deprived of their rightful share in democratic government. This explains why removing the country’s highest government officials, including Justices, may be done only by impeachment. Congress is the most democratic branch of government. And the Senate as an Impeachment Court, at any one time, represents the winners of different elections across time.

Mrs. Sereno’s ouster by the Court, therefore, was not simply a case of discriminatory legalism or unconstrained democracy. It was not democratic at all.