RECENT SUPREME COURT RULINGS REASSERT INDEPENDENCE

C O N F I D E N T I A L SECTION 01 OF 02 MANILA 002418 SIPDIS SIPDIS E.O. 12958: DECL: 06/09/2016 TAGS: PGOV PINS PHUM SOCI EAID RP SUBJECT: RECENT SUPREME COURT RULINGS REASSERT INDEPENDENCE REF: MANILA 1913 AND PREVIOUS Classified By: Pol/C Scott Bellard for reasons 1.4 (b) and (d). ¶1. (C) Summary: In recent decisions, the Philippine Supreme Court has showed a strong independent streak in the face of accusations that it had been too close to President Arroyo. The Court remains committed to its judicial reform program, to which the USG makes substantial contributions. These recent decisions have helped reverse an apparently growing public perception of partisan politics affecting Court rulings, which positively contributes to reinforcement of an independent rule of law system. End Summary. -------------- Surprise decisions -------------- ¶2. (SBU) In several recent decisions, the Supreme Court has taken positions at odds with Malacanang. As described in more detail in reftels, these cases include: -- On May 3, the Court -- while upholding the validity of President Arroyo's imposition of a State of National Emergency (Proclamation 1017) earlier this year -- ruled that the curbing of rallies and a police raid on a newspaper were illegal. On June 7, the Court turned down the GRP's motion for reconsideration; -- On April 25, the Court declared Malacanang's "Calibrated Preemptive Response" policy regarding rallies unconstitutional for violating a law that requires police to exercise "maximum tolerance" in dealing with protesters. The Court upheld an earlier law requiring permits for rallies, however, and required municipalities to designate "freedom parks." The GRP has submitted a motion for reconsideration; and, -- On April 20, the Court ruled that key sections of E.O. 464, which required Malacanang concurrence before Executive Branch officials could testify before Congress, were unconstitutional. The GRP has filed a motion for reconsideration. ¶3. (C) These decisions flew in the face of a perception that the Court was not really independent-minded. One factor buttressing this view was that President Arroyo had appointed 10 of the 15 justices, including the current Chief Justice, and, thus, allegedly "controlled" the majority of the Court's members. Additionally, Malacanang and pro-Administration representatives had played a key role in defeating an Opposition attempt to impeach then-Chief Justice Davide in October 2003; many questioned whether there had been judicial "payback" for this support. ¶4. (C) Many observers found a pro-Malacanang bias in several pivotal decisions in recent years as well. In April 2001, the Court ruled that President Arroyo's assumption of power in January 2001 was constitutional, citing the "constructive resignation" (a term not described in the 1987 Constitution) of President Estrada. In June 2004, the Court dismissed an Opposition petition to stop the formal review of voting in the May 2004 presidential election by Congress (Arroyo had won the earlier vote count). The Court in December 2004 reversed its own January 2004 decision and upheld the Mining Act of 1995, a decision that Malacanang had strongly backed. In March 2005, the Court dismissed the electoral protest on behalf of defeated presidential candidate Fernando Poe Jr., ruling that his wife, Susan Roces, could not substitute as a petitioner for her late husband. -------------- Making "a Statement" -------------- ¶5. (C) According to Supreme Court Deputy Administrator Ismael Khan, many members of the Court had begun to feel in recent months that they had to make "a statement" because "the public was beginning to doubt our independence." He commented that new Chief Justice Panganiban in particular believed that the public perception was that the Court was "too close" to Malacanang, and that the Court needed to underscore its role as an independent branch that would "fully uphold the Constitution." Khan claimed that Panganiban had successfully pressed other justices to join him and rule against Malacanang on key portions of the three recent major cases. Arthur Villaraza, the chief partner of the influential Villaraza and Angco law firm, separately commented that Chief Justice Panganiban was intent "on leaving a mark" during his single year tenure before facing MANILA 00002418 002 OF 002 mandatory retirement age this December. -------------- Next in line? -------------- ¶6. (C) Observers agree that the choice of the next Supreme Court Chief Justice will be key for the Court's future direction. Top candidates for the position will likely include the two senior associate justices on the Court, Reynato Puno and Leonardo Quisumbing, both of whom are perceived to be closer to former President Ramos (who appointed them) than to President Arroyo. (Quisumbing's wife is also head of the Commission on Human Rights, which has been publicly critical of the government about extrajudicial killings recently.) According to Jose Cadiz, the President of the Integrated Bar of the Philippines, speculation about what any justice might do was "an inexact science, to say the least," however. He noted that then-Chief Justice Davide, whom President Estrada had appointed, had taken decisions that made him fiercely disliked by the Estrada camp, a factor that sparked the attempt to impeach him. -------------- Need for reform -------------- ¶7. (SBU) The ongoing judicial reform program begun by Chief Justice Davide Jr. is likely to continue despite leadership changes. The USG provides significant support under USAID's "Rule of Law Effectiveness" (ROLE) Program, as well as through programs of the American Bar Association and The Asia Foundation. Other major donors to the Court's reform program include Japan, The World Bank, and the European Union. Key elements include: -- IT modernization: provision of computer systems to manage case flow better in the Sandiganbayan (Anti-Graft Court) and regular courts; -- Docket decongestion: working with the Philippine Judicial Academy, reference of a greater number of minor disputes to out-of-court mediation in order to clear dockets for more serious cases; -- Jail decongestion: release of prisoners awaiting trial who have already served more time than the possible maximum sentence for their crimes; -- Improving access to justice: training barangay (village) officials in dispute resolution, particularly in Mindanao in the southern Philippines; and, -- Ethics: cracking down on judicial officials involved in graft while mandating ethics training. -------------- Comment -------------- ¶8. (C) While recent polls show the Supreme Court to be one of the country's relatively more trusted institutions, complaints about inefficiency, congestion, and corruption remain widespread. Recent decisions should have helped already to reverse an apparently growing public perception of partisan politics affecting court rulings, which positively contributes to reinforcement of an independent rule of law system. Visit Embassy Manila's Classified SIPRNET website: http://www.state.sgov.gov/p/eap/manila/index. cfm You can also access this site through the State Department's Classified SIPRNET website: http://www.state.sgov.gov/ Kenney