One of the grave dangers to genuine democratic reform in any country is judicial activism. When judges of high courts overstep their mandate to merely adjudicate matters of dispute regarding existing laws and instead decided to actively campaign to repeal legally enacted laws or enforcement mechanisms, then a court system is broken and instead of helping enforce the law, it becomes an anti-democratic law unto itself. Judicial activism is common across the world, though it is typically associated with developing countries with fractious democracies. In Pakistan, the Supreme Court has over a period of decades, been accused of judicial activism aimed at various political parties, factions and leaders. In the United States, recent attempts by political rivals of Donald Trump to use the courts in attempts to either weaken his power, shame him or remove him from office have demonstrated that the US, in spite of its wealth, is not immune from those seeking to turn courts from places of balance and fairness into places of activism and politicisation.
In 2012, the then Philippine President Noynoy Aquino led efforts to impeach Chief Justice Renato Corona, based on the fact that he was appointed within a window of two months before a new Presidential election (the 2010 Philippine Presidential election), at the tail end of Gloria Arroyo’s term. Philippine law prohibits the appointment of new judges within the period between the period beginning with a two month window prior to new elections and the end of the so-called “lame duck” period of an outgoing President’s term. Aquino’s efforts to remove Corona were successful and in May of 2012 he formally ended his two year period as Chief Justice in a move which some said was a politically motivated move against Corona which grossly embellished a little known legal technicality for ideological gain.
Corona’s replacement, the Aquino selected Maria Lourdes Sereno has been more controversial than the man she was appointed to replace. Sereno has been dogged by allegations of irregularities regarding tax and expenses information. Additionally, Sereno was found to have obtained her position unlawfully due to failing to comply with official requirements when she applied for her position in-line with rules from the Judicial and Bar Council (JBC). While the Philippine House of Representatives moved to formally impeach her, the Supreme Court itself made the first move and today ended Sereno’s tenure on the court, effective immediately.
While it is clear enough that Maria Lourdes Sereno is a highly corrupt individual whose lavish lifestyle raised questions about her financial ethics, the most worrisome element of Sereno’s judicial career was her penchant for intervening in the political affairs of the nation.
Sereno, from her position as Chief Justice frequently issued statements condemning President Rodrigo Duterte’s war on drugs. This represented a clear dereliction of duty and was a grave danger to the democratic health of the country. In a normal environment, judges of any high court must automatically recuse themselves from making controversial comments on political or policy matters while behind the judicial bench. To do otherwise, represents judges trying to use their influence and power to intimidate law enforcement into mutinying against the orders they are issued from policy markers and elected officials, including the President.
The result of this judicial activism if left unchecked is a situation of anarchy where the President is saying one thing and the chief justice saying another thing so as to undermine the President, ordinary law enforcement officers and the public. When this happens, nobody knows who is in charge of what and every faction can individually pick whichever leader whose laws they wish to obey. Such a situation is not conducive to public safety or economic growth.
Judges like Sereno are not supposed to be public figures who make or comment on policy outside of the court room. If this were the case, there would be no need to separate judicial power from executive and legislative power. Sereno violated the trust of the country as well as the letter of the very laws she was supposed to enforce by taking it upon herself to act as a rival of the democratically elected head of state and governmental executive.
The fact that she felt she could get away with it is a further sign that The Philippines is in need of drastic reform in terms of governance. While The Philippines considers switching from a corrupt and confrontational presidential system to a federal-parliamentary system (or some combination thereof), judicial reform should also be on the table.
What is even more hypocritical than Sereno herself is the broken political environment she came out of. While Liberal President Noynoy Aquino vocally led a charge to remove Sereno’s predecessor for having unlawfully obtained his office, today, the Liberal party is racing towards Sereno’s defence even though she has now been removed for many of the same reasons that her predecessor Renato Corona was removed for.
The sad reality is that behind the double-standards lies a Liberal establishment that is more concerned with obstruction, corruption, egotism and political conflict than with helping Predient Duterte to establish a clean government that cleans up the streets from the biggest threat to peace and freedom in The Philippines – the rampant use of, trafficking of and selling of dangerous drugs.
A federal parliamentary system would allow politics the Philippines to better reflect the incredibly high levels of popularity for Rodrigo Duterte and would end the culture of mischief and obstruction that is at this time, the only thing the Liberals and their allies stand for. This should be accompanied with judicial reform that allows no space for any judicial activism or lawlessness among egotistic judges like Sereno.