In this essay, I situate the recent move of the Philippine House of Representatives dominated by the allies of incumbent President Benigno “Noynoy” Aquino III to impeach Supreme Court Chief Justice Renato Corona within the context of the country’s democratic deepening. I ask, does the impeachment of the chief justice threaten democratic deepening by constraining the independent judgment of Supreme Court justices (i.e. intimidating potential dissenters in the country’s highest judicial body with executive-legislative priorities)? Or does it advance democratic reforms being pursued by the ruling party by paving the way for the possible removal (in case of Corona’s conviction by the Senate) of a perceived ally of the preceding president Gloria Macapagal Arroyo who now faces corruption and related charges in various judicial bodies and is presently under detention in an army medical facility?
The essay argues that Corona’s impeachment, while legal and patently an exercise of the democratic prerogative of the lower house does more harm than good to the task of democratic deepening. The essay assumes that at the core of Aquino’s intentions in impeaching Corona is to dismantle the captured institutions of the judiciary in order to deliver his campaign promise of holding Arroyo accountable – prevented as of the moment by Corona’s leadership. By claiming this, the essay does not so much Aquino’s goal, the essay also assumes, is to ensure his party’s (or administration’s) continued legitimacy and perceived effectivity in the eyes of its electoral constituency base by delivering on its main campaign promise. Part of the claim here is that the interests of political elites are largely shaped by the prospects of staying within the currents of political power and entrenching rule (Case 1994) and in the case of Aquino and his allies these prospects diminish if they are unable to deliver the definitive outcome of their campaign promise.
At first sight then, there seems nothing suspect with Aquino’s intentions. After all, legitimately elected governments must be allowed to pursue policy advocacies without undue interference from non-elected officials (Karl and Schmitter 1992). Concretely, if the core of Aquino’s political policy agenda is to hold the previous regime legally accountable for its perceived wrongdoings, then it must be allowed to do so and the impeachment process is one such proper mechanism to precisely advance this agenda.
In a democratic setting, however, political outcomes cannot and should not be governed by rules of certainty. In fact, the opposite is true of rule-bound democratic governments: a rule of “institutionalized uncertainty” (Przeworski 1991). Democratic decision making is a game of contingent results arising out of ex ante indeterminate circumstances (Laclau and Mouffe 1989). Aquino and his allies know this when they invoke the principle that their intention is merely to replace Corona (who has violated this uncertainty, by, according to the impeachment articles, voting in favor of Arroyo with utmost certitude in cases involving the former president, thus betraying the public’s trust for acting partially) with someone who would judge the cases without vested interests. On this regard, nothing appears to be problematic, yet.
The problem arises when one contextualizes this quest for “uncertainty” within the political dynamics of Philippine electoral democracy. Does the ruling coalition have enough institutionally generated incentives to ensure this “uncertainty” given historically entrenched patterns of political conduct in the Philippines? What, if anything, assures supporters of democratic deepening, that the project of impeaching and removing Corona will pave the way for putting an end to the practice of institutional capture as a strategy of generating stability and legitimacy of incumbent policy decisions?
Beyond the legality, constitutionality and even, morality of Corona’s impeachment lies the question of political institutional building in the context of democratic deepening. The question then is: what are the incentives in the political system, from where the well-meaning intentions of the Aquino government is embedded, that will inform Aquino’s government in establishing an insulated (which is not necessarily devoid of any political interests) Supreme Court and thus pave the way for democratic reforms? Within this context, the literature on executive-judiciary relations offer some key hypotheses: a. if political actors see themselves as needing an impartial Supreme Court in the pursuit of their careers and interests (i.e. when they are now, no longer in the majority power bloc) then they will prefer an insulated Supreme Court; and b. if political actors operate within the rules of a) presidentialized parties; and b) dominant party politics then they would prefer a Supreme Court that can be manipulated to serve ruling party interest.
According to the first hypothesis, political actors who belong to stable and consolidated political parties competing in a truly pluralistic political environment will want a Supreme Court that can guarantee their interests even when they are not in power. This means that, political actors in this kind of system have accepted the reality of true democracy: that of alternation in power and are willing to accept the role of being in the opposition – in the case they lose elections – of the incumbent government. The second hypothesis is grounded on conditions where political actors “coattail” the winning political party – the party of the President – in the hopes of accessing political funds. In this political system, the winning party systematically excludes the opposition from receiving the spoils of political power resources and thus functions as a dominant party system. Here, political actors have no incentives to build an insulated judiciary institutions – they would want one which would always side with and affirm the policy decisions and advocacies of the incumbent president.
In which of these key hypotheses in the literature of executive-judiciary relations can we locate the institutional dynamics of the Philippines? This is the question the essay seeks to address in the second part.
