Francis Bacon once said, “Some books are to be tasted, others to be swallowed, and some few to be chewed and digested.”  The book we are launching today certainly belongs to the third kind – the one to be chewed and digested.

Three reasons account for this. First, the book covers an entirely novel and complex subject, an unchartered area no writer has ever sailed, may be for fear of the men and women in black robes on Padre Faura.  Second, it concerns the official and personal conduct of those men and women so difficult to unveil.  And third, the author is a well known courageous journalist who has received national and global awards for her outstanding works in journalism.

Well, at no time has transparency become more imperative in the Supreme Court than it is now.  As the appointment of the new Chief Justice is the raging issue of the day, a call for transparency in the Court resonates from all sectors.

This must be so for the next Chief Justice plays a great role in steering the Court, the bedrock of democracy, in protecting the rights of the people and preserving its independence.

Let me call your attention to Section 7, Article II of the Constitution.  It provides inter alia that the right of the people to information on matters of public concern shall be recognized.  Access to official records and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizens.

Basically, the above provision mandates transparency in the Supreme Court.

Transparency is the responsibility of the Court to inform the public the whole truth about it and its work without betraying those aspects of the judicial process which require utmost confidentiality. Transparency serves to increase public knowledge about the judicial system, provides resources for redress when problems occur, and eliminates the opportunities for corrupt practices.

Likewise, transparency enables the public to challenge the Court’s decisions that are illegal, unreasonable, or improper.  Transparency also bolsters judicial independence.  A diligent magistrate, for example, can demonstrate that he or she is acting in accordance with the law through his or her ponencia or decision.  In addition, transparency enables the public to act as a check against arbitrary executive interference.

Mount Olympus

In his book entitled “Transparency,” Chief Justice Artemio V. Panganiban wrote: “Many, many years ago, the Supreme Court was a distant fortress, a mount Olympus where the gods cloistered themselves from the mundane concerns of the plains.  It relied on the theory that its decisions spoke for themselves and thus needed no further elaboration or defense.  It did not perceive the necessity to explain its little known process and internal proceedings.”

Chief Justice Panganiban continued, “we are in the age of electronic tools and ‘high tech’ methods of communications, in which a young population of inquisitive minds and ‘irrevent’ media reject anything they did not understand.  Within this context, the Supreme Court needs to communicate, to inform, and to be understood if it is to retain the esteem and support of the people.  And there is no better way for it to maintain our people’s respect than by transparency in its pronouncements and actions.”

But the Court can not open its door to public when it is engaged in deliberations on cases and the casting of votes, whether the justices sit en banc  or in division.  Only the four walls of the conference rooms are witnesses to such activity.  As a matter of fact, not even the clerk of Court is present.

There are valid reasons why every deliberation is behind closed door.  The Constitution requires that every decision must be in writing and must expressly clearly and distinctly the facts and the law on which it is based.

Imagine if the public is allowed to observe this procedure.  Every decision in effect will be known by the people prematurely even before it could be written by the ponente and promulgated.  Certainly, it will affect the independence of the Court.  Needless to state, the Justices should be left alone in their deliberations, free from public interference and undue influence.

Pursuant to the same constitutional provision, access to decisions and resolutions of the Court can be obtained by the litigants themselves or their lawyers or others.  In fact, they are published regularly through the print media, specifically the Official Gazette, the Supreme Court Reports Annotated (SCRA), and the website.  However, access to documents or information of ongoing proceedings is more restricted.  Only the litigants or their lawyers can do so, not the public, especially the media, to prevent undue disclosure of matters still under litigation or sub judice.

Indian experience

A few years back, the Court issued a Resolution ordering the non-disclosure to public the justices’ Statement of Assets and Liabilities.  The Court fears that disclosing the justices’ assets will expose them to, among others, revenge for adverse decisions or blackmail which will ultimately destroy their independence.

On this point, may I inform you of a similar issue in India.  On November 10, 2007, a private citizen, Subhash Chandra Agarwal, wrote the Central Public Information Officer of the Supreme Court asking whether the justices have declared their assets.  The officer declined to furnish such information to Agarwal. He then approached the Central Information Commission which ordered the Officer to comply with Agarwal’s request.  The Officer then elevated the Commission’s Order to the High Court of Delhi.  Eventually, the matter reached the Supreme Court which ordered the release of the justices’ assets in the website.   Its Judgment was warmly applauded.  The Supreme Court put it bluntly: “A dishonest judge not only dishonors himself and disgraces his office, but jeopardizes the integrity of the entire judicial system.”  But what impressed me is the sentence that appeared in the Epilogue of the Judgment of the High Court of Dlehi – “Sunlight is the best disinfectant.”  These five words sum up precisely why transparency is essential in the case of everyone that holds a public trust, like the justices of our Supreme Court.

I believe the disclosure of the justices’ finances is an effective means of discouraging corruption, conflict of interest, and misuse of public funds.  This way, the cloud of doubt lurking over the justices’ integrity will eventually vanished.  Indeed, public trust can be fully achieved and nurtured.

In the dark

Also, the selection of a candidate for appointment as a member of the bench is an obscure process.  While a candidate undergoes an interview in public, however the Judicial and Bar Council (JBC) conducts its deliberation and voting in secrecy.  The public is in quandary how the JBC comes out with a short list of nominees.  What criteria are relied upon by its members? Hence, when the President appoints a nominee, whose qualifications are deficient or whose reputation is questionable, the JBC gets the blame.

Similarly, the finances of the Court – its revenues and expenditures are not known to the public.  Had this matter been transparent, impeachment complaint should not have bee lodged against Chief Justice Hilario G. Davide, Jr.  Fortunately, the audit result shows that not a single centavo was ill spent by the Court.

Also in the dark is the performance evaluation of every justice.  Who is efficient or who is not has not been shown except perhaps to a few members of the legal community.

Basic is it that the conduct of every magistrate should be above reproach.  In this regard, Madam Vitug aptly says in her Epilogue, “It is not always from the justices’ masterful and high minded rhetoric, in page after page of decision, that we read them.  Rather, it is in the lives they lead, the actions they take.”

Lessons from the US

It may interest you to know that Justice Antonin Scalia and Justice Ruth Ginsburg of the US Supreme Court were also involved in situations which caused public perception that they acted with impropriety and partiality that can have a long-term negative effect on the Court.

The factual scenario shows that during his second term, President George Bush formed an Energy Task Force, headed by Vice President Dick Cheney, to develop an energy policy that deals, among others, with oil supplies and prices.  Later, Congress had the Energy Task Force investigated by the Government Accountability Office.  It asked Vice President Cheney to release the minutes of the meetings of the task force and the participants’ names, but he refused, citing executive privilege.

The case reached the Supreme Court.  During its pendency, Justice Scalia, a close friend of Vice President Cheney, flew to Louisiana with the Vice President on a government plane to engage in duck hunting.  Later, the Supreme Court issued a Resolution granting Vice President Cheney’s petition for certiorari.

On the part of Justice Ginsburg, it was reported that the National Organization for Women sponsored a series of lecture named “The Justice Ruth Ginsburg Distinguished Lecture Series.”  It was funded by the same organization which had a case in the Supreme Court involving the rights of children under medicaid programs.  The Supreme Court decided the case in favor of the organization with Justice Ginsburg’s support.

The Scalia and Ginsburg controversies resulted in a passionate public debate which involved legal scholars and ordinary American citizens and raised important questions of impartiality and propriety on the part of the two justices.

Justice Scalia’s response to the criticism was, “Its acceptable practice to socialize with executive branch officials when there are not personal claims against them.  That’s all I’m going to say for now.”

Justice Ginsburg merely explained that the lecture series of her namesake is not a money-making enterprise.  She thought and still thinks it’s a lovely thing.  She added that the lecture speaks for itself.

The U.S. media reported that in not addressing the specific conflict, the two justices weakened the judiciary through their inability to grapple with the public perception of their lack of impartiality and propriety and that they can never be the same again.

But what further intensified these controversies was the fact that there was no disclosure.  Justices Scalia and Ginsburg did not inhibit from the cases and maintained that the conflict is non-existent.  It was made known to the public only when the concerned groups and the media exposed it.

Here, in our own Supreme Court, the failings of the justices concerned were brought to light only by the author’s intense desire for an independent Supreme Court and justices possessed of unquestioned integrity, or in her words, “a return to the old-fashioned mantra of character and leadership.”    

At the end of the day, the public’s perception of the Court is important since its strength depends on trust.  That trust can only be realized if the Court communicates more effectively with the people through the media and modern technology.

Truly, the book is a formidable call to the magistrates and the sunlight that will disinfect the Supreme Court.

These are excerpts from the speech of retired Justice Angelina Sandoval-Gutierrez during the launch of Shadow of Doubt: Probing the Supreme Court on March 16.

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