Arroyo's approval ratings are the lowest of any Philippine president since People Power I; nearly 70% of Filipinos distrust her. To many Filipinos, she has become the antithesis of good government. In fact, Arroyo's opponents seem all to ready to ascribe the most sinister motives to her every move. Given this climate, it's not surprising many commentators wary of the prospect of another Supreme Court appointment.
However, even if Arroyo's intentions are so crass, her situation certainly isn't unique. Outgoing leaders very often appoint close allies to constitutional courts in order to protect their interests from the incoming administration. Tom Ginsburg, Professor of Law at the University of Chicago, has written an excellent book, Judicial Review in New Democracies, demonstrating how authoritarian elites are more likely to establish strong constitutional courts if they believe they will lose power under democratic elections. He even labels the strategy an elite insurance policy.
U.S. Supreme Court Chief Justice John Marshall (1801-35), now regarded as the grandfather of constitutional review, was appointed by President John Adams right before Thomas Jefferson entered office. While Adams was not accused of gross corruption or abuses of power, he did worry that Jefferson's Democratic-Republican Party would exact retribution. Indeed, the landmark case of Marbury v. Madison can be seen as a warning shot from the judiciary that it would defend Federalist interests.
Obviously, Arroyo is not John Adams. But the underlying dynamic of seeking to appoint loyal justices at the last minute as an insurance policy is not unique to Malacanang Palace. The more important question is how much the appointment even matters. Vitug cites Pakistan's Chief Justice Iftikhar Muhammad Chaudhry as a model for an aggressive court, but he's a unique case - his legitimacy rests upon his willingness to challenge political elites, and he was not appointed by President Zardari. That's not the case in the Philippines. The Philippine Supreme Court has frequently adopted progressive causes. Chief Justice Reynato Puno has taken the lead in criticizing human rights abuses and environmental degradation. He introduced several new writs to help plaintiffs, including the writs of amparo and habeas data.
Yet, despite vocal attacks on political opponents, the Philippine elite understands that it is too risky to actually hold government officials accountable for their misdeeds. They are reluctant to set a precedent that could turn on them. The Supreme Court notably has not convicted any senior officials for human rights abuses. In several key cases, including President Estrada's declaration of martial law in Manila, the court backed down. Of course, several years ago, Arroyo even pardoned Estrada after he had been convicted for corruption. The thought of a president going to jail apparently hit too close to home. Therefore, it is difficult to see the new administration prosecute, or the Supreme Court convict, Arroyo should the chance arise.
While we're on the Philippines, I have started writing a "Literature Review" of several papers by Prof. Neal Tate (who sadly passed away last year) about the Supreme Court during the Marcos era. Also, next week Marites Dañguilan Vitug's new book Shadow of Doubt: Probing the Supreme Court should arrive at bookstores. It is one of the few recent books dedicated to the politics of the Philippine Supreme Court, and I look forward to reading it (and of course writing a book review).
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