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.

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Surprise decisions
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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.

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Making "a Statement"
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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.

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Next in line?
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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.

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Need for reform
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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.

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Comment
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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.

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