In a democracy, votes like money can get things done. President Arroyo for example has successfully overcome several attempts to remove her from office by impeachment because the numerical superiority of House members loyal to her proved to be too overwhelming to allow the constitutional process go beyond preliminary stages. Of recent, Senator Manny Villar, the wealthiest among the presidential candidates, has caught up with the early prohibitive lead of survey frontrunner Noynoy Aquino owing, many believe, to the relentless saturation of political ads and gimmickry that he has set loose in the airwaves and other media. Now, on March 17, 2010, the Supreme Court in De Castro v. Judicial and Bar Council, by the vote of nine justices, unceremoniously reversed itself and turned on its head the clear intent of the framers of the Constitution in keeping the lid on the abuses of “midnight appointments.” That intent was to foreclose someone like Gloria Arroyo from perpetuating herself in power.
The new provision in the 1987 Constitution under consideration in De Castro reads as follows:
Article VII, Sec. 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall NOT make appointments, EXCEPT temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety (emphasis supplied).
When the above provision was proposed, the underlying intent of the framers was not unknown. In the exchanges during the deliberation, former chief justice Hilario Davide, then among the drafters of the Constitution, has memorialized it on the record of the 1986 Constitutional Commission in no uncertain terms:
The idea of the proposal is that about the end of the term of the President, he may prolong his rule indirectly by appointing people to these sensitive positions, like the commissions, the Ombudsman, the judiciary, so he could perpetuate himself in power even beyond his term of office; therefore foreclosing the right of his successor to make appointments to these positions. We should realize that the term of the President is six years and under what we had voted on, there is no reelection for him. Yet he can continue to rule the country through appointments made about the end of his term to these sensitive positions.
Both the letter and the spirit of the constitutional provision in question are therefore very clear. Members of the judiciary are not exempt from being excluded for appointment during the prohibited period the only exception provided being “temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”
The letter and intent of the afore-quoted Article VII, Sec. 15 is easily reconcilable with the other provision found in Article VIII, Sec. 4 (1) of the Constitution, which states:
Sec. 4 (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.
The apparent conflict is resolved if we read into the Article VIII , Sec.4 (1) by clear implication the prohibited period provided in Article VII, Sec.15 such that the last sentence in of Sec.4(1) would now read: “Any vacancy shall be filled within ninety days from the occurrence thereof subject to the provision of Article VII, Sec. 15.”
Such was in effect the ruling of the Court in In Re Valenzuela, among the rationales behind it being to prevent a “caretaker” government from using the appointing prerogative for partisan purposes, or referring anew to the fear expressed during deliberation of the Constitutional Commission, to abort any design by an outgoing president to “perpetuate himself in power even beyond his term of office” and “therefore foreclosing the right of his successor to make appointments to these positions.”
When Chief Justice Reynato S. Puno retires on May 17, 2010, the Arroyo government will have barely two months before it officially ends and should the automated voting succeed, the new president might have been known by then. In the concept of a caretaker government as suggested by the Court in Valenzuela, the outgoing administration during the transition period ought then to strive confining its functions, whenever practicable, to the rudimentary duties of the state including the maintenance of law and order and ensuring the government machinery functions for the day-to-day operations. Appointing a chief justice to the highest court of the land is certainly not one of these rudimentary matters.
Is it then legal and constitutional for nine members of the 15-member Court, sitting en banc, to have a reading of the constitutional provision in question different from what the same Court had 12 years ago upon the ground that its own ruling in Valenzuela “arbitrarily ignored the express intent” of the framers and was in fact based on “false premises,” and whereupon come up with a new ruling that is now deemed the law on the matter?
There is no question that our constitutional system allows the Supreme Court to look dumb and dense to the whole world if the required numbers are there. And nine members of the Court are enough votes for such compunctious self-flagellation.
But what is legal is not always legitimate. Being legitimate refers less to what is quantifiable as votes which may affirm the legality of the choice made than to our qualitative sense that the institutions within which we live are just and serve our best interest, and as regards to which we gladly and proudly reciprocate our support, respect and loyalty.
Had the Supreme Court only taken judicial notice of the various attempts to amend the Constitution all with a view to allowing President Arroyo extend her rule beyond what the present Constitution permits (and the fact that she has humiliated herself by aspiring for a subordinate office with the same design in mind), it would have arrived at a more just and reasonable conclusion that the decision it made is in fact a clear and present threat to our basic constitutional value that underlies the system. The value we hold dear is one which celebrates a government by limitations instead of absolutism which we last experienced during the Marcos dictatorship due, to a large extent, to judicial capitulation.
What happens when ordinary thinking Filipinos no longer see the Supreme Court as being committed to serving as the last line of defense of our fundamental democratic values? What’s in store again for our Republic when our institutional system is now perceived as having rendered nugatory those same values because of the incongruous behavior of the members of our highest court of justice? When these are actually taking place, would we still wonder if the Filipinos of various stripes and stations begin to lose faith irretrievably in what we continue to hold as our constitutional democracy?
Popularity: 1% [?]
Last time I look, it was the Supreme Court of the Philippines, now with the latest decision, it’s now the “Arroyo Court” sans its Chief Justice-in-waiting.
Money talks in the Philippines. They can make the impossible possible.
Ruling will allow Arroyo 2 more appointments to SC
The new ruling also hinted that a President could appoint a Chief Justice without a shortlist from the JBC:
“Objection, Your Honor. . . . I object to calling you ‘Your Honor’, as I don’t wish to misrepresent things”
Joe
Is Noyonoy stil sayin that he will nt recgoniz the
next supreme court justce apponted by GMA?
Yes. There is no retraction from Noynoy, his words still stand.
Ths is stil speculation ‘cuz it is only 38%-chance that Noyonoy become persident. But I hope I hope Nlynoy does notsay “I dn’t recgonize the supreme court justice” and then send in troops if the Spureme Court decides against Hacinda Luista? I hope the Pinas military disobeys an unlawful order.
19 March 2010
What the presidential candidates say
21 March 2010
Presidential tar pit (What the presidential candidates say in MLQ3′s latest article)
21 March 2010
Presidential tar pit
Then don’t vote for Noyx2… If he will dismantle the supreme court it is reminisce to the Martial Law days… Without the supreme court no one can opposed the extremism of the Executive Branch… I believe that each candidate must respect the decision of the Supreme Court since they are the highest interpreter of the law in the land… No matter how wrong it may appear 2 us it is and shall always be RIGHT.
Noynoy has not said that will dismnatle Pilipnas Supreme court. Just that as president he will disrgard, on cse-by-case basis, recent dcisions by Pilipinas SpremeCourt.
Is Noyonoy stil seying that he will nt recgoniz the
next spureme court justce apponted by GMA?
Dear Mike H.,
I do not know if the military can discern a lawful order from an unlawful one when the distinctions are in the statutes and beyond the words of the Constitution. While both should be consistent, few know both the Constitution and the laws written from it.
And just to set some records straight, in the calling out of the military in the last Hacienda Luisita controversy, the call was made by the Secretary of Labor. There was some controversy because the alter-egos of the president cannot do that. Only the president, acting as the Commander-in-Chief can call out the military.
The difference is blurred continuously by the conflict in Mindanao where the hostilities are being fought by both the police and the military. But when one reads the charters of each, the police are supposed to handle internal conflicts and the military, external threats.
Some consider a secession movement funded by overseas entities as an external threat. Banditry is not. Both are characteristics of the Mindanao conflict, hence the blurring of roles among the police and the military.
But that is not the case in Lusita, much less in the malls and supermarkets of Manila, where occassionally soldiers are seen in complete battle-gear, ready to expel external invaders.
Picketing farmers and field hands in Luisita, and even rebelious Abu Sayaf in Mindanao, including the Ampatuan private army, are internal conflicts that the military can only step into when Martial law is declared.
Regards,
Dean
the one worying me — a persidential cndidate has gone on record that he will not recgnize a supreme court justce.
Kagila-gilalas. Ano naman ang gagawin niya kapag ang dini-sisyon ng Pilipinas Supreme Court ay ayaw niya? Pag-isip-isipan lang.
kaya, mabuti wag ng mag appoint ng CJ si PGMA na unconstitutional naman, so there will be no more need for you to worry, mike h. right? right.
hindi pa ba naiintindihan ng pilipinas dahil ipinakita na ni marcos matagal na —- hindi ang mayor ng makati, hindi ang bishop ng jolo, hindi ang presidente ang nag-didisisyon kung ano ang constitutional o hindi.
ano ba naman ito?!!! talaga atang dapat ng baguhin ang 1987 constitution, si trillanes at iba pa, maraming ayaw sa mga nakasulat sa dokumentong iyon, heh heh heh.
noyonoy is the decider, heh heh heh. sigurado akong hindi sinasadya, pero hindi pa man, mukha atang lumalabas ng konting-konti lang naman iyong ‘what are we in power for nga naman’.
nanga-ngantiyaw lang, heh heh. Laban! Never again!
mike h,
pustahan tayo, pag upo ni Noynoy bilang presidente siguradong gagawin niya sinabi niya. ito, alam ni Noynoy ito, ang liwa-liwanag, sabi ni Abe ito:
“i.e., the Executive, the Legislative and the Judiciary, has full authority to interpret the Constitution all with the effect of finality.”
kaya, mike h, sabihin na ninyo kay PGMA, wag na niyang gayahin si Makoy, wag ng ipilit ang sarili niyang chief justice. Never again.
Mike H,
There’s actually a school of thought in Constitutional Law which holds the position that each of the three departments of the government, i.e., the Executive, the Legislative and the Judiciary, has full authority to interpret the Constitution all with the effect of finality. The same school also holds that, in practical terms, the authority of the SC is considered to be the most limited or the narrowest among the three because it is passive most of the time. The Court’s authority, it is so deemed, is activated only when an actual controversy is brought to it and the matter is ripe for decision and that when the SC actually interprets the Constitution to decide a case, the decision once final is supposed to bind only the actual parties in controversy.
In the De Castro case, the critical ruling in the decision is the one which directs the JBC to “submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May 17, 2010.”
What happens if the JBC chose to sit on this directive of the Court until the last day, then instead submitted a pleading to the Court to clarify certain issues in the decision and the Court took its usual time in resolving issues of similar import, that is, beyond June 30, 2010 when the incumbent president shall have lost her power of appointment altogether)?
bert: Si Abe mismo, hindi siya naniniwala na
the Executive, the Legislative and the Judiciary, has full authority to interpret the Constitution all with the effect of finality
using the contents of the 1987 Constitution.
Sinasabi ni Abe iyong “there is …school of thought” when it is to his convenience and he will disregard that school of thought … weather-weather lang.
All with the effect of finality…. heh heh heh ang tunog noong ingles, ano? Parang Trillanes. Kalaboso.
The full finality clause can still be challenged with the Supreme Court… Once the Supreme Court made a decision it is final and executory (ofkors after all legal means have been exhausted: reconsideration). The Executive can interpret the Constitution with finality in a sense that it can make executive orders. Congress can to with its power to amend the constitution. Bt 8 is only the Supreme Court which can bind both the executive and legislative to a decision submitted before its office.
bert : I donot think thatso soon aftr years of Marcs “demcracy”, that theye writers of the 1986/1987 Contitutin wil give the ExecutvDpartment …full authority to interpret the Constitution all with the effect of finality
Full-disclosure. I donot know any books or dcuments supporting my sntence abov about the writers of the Philippine 1987 Constittion, so Abe Margallo may be crrect aftr all.
mike h, Abe is very good. i’m sure he’s correct!
mike h, i’m sure he’s correct also about noynoy, inspite of merely using his gut, what more if he used his head, :). i’m not sure whether you’re correct about your gibo or your villar, gut or head.
Yeah, Villar’s not exactly a constitutionalist…
Great piece, Abe! :-)
O, ayan. iyong isa sa kasamahan ko, natanggal ko na from his pro-NoyNoy vote. I told hom what I wrote here — that Pilipinas can not afford a siga-siga president who believes he can disregard recent decisions of Pilipinas Supreme Court.
At sinabi ko din sa mga kasamahan ko, Noynoy eh talaga naman heneeds to disregard the formalties of Suprem Court decisionsand the rules at formalities of goverment.Eh kasi naman, hindi marunong gumalaw si Noynoy as teamplayr.Tingnan ninyo, NoyNoy hasnot pushed bills into laws. Sabi noong iba, tamad. Puwede din, Baka maski si Noynoy, he did not believe in the importance of his own bills kaya hindi niya pinursigi.Perokung ano pa man ang razon, hindi nagawa ni Noyoy to make his for orfive bills into laws. Ano ba naman iyon, eh ang kailangan lang naman niya, maki-pag pulitika sa kaniyang mga kapuwa kongresman at senador, hindi pa niya nagawa.
Er, Mike? Ever heard of a constitutional ban on midnight appointments? Diosdado Macapagal (GMA’s Dad) opposed them. The Quirino-Magsaysay transition experienced similar issues. Noynoy is hardly unique in this regard.
The law prohibits appointments by the President on the Philippines on the assumption that in an election year, these appointments may be made maliciously to pervert democracy or embarrass the constitutional succession from one administration to its duly-elected successor. Perhaps u should check the law before u make such statements.
And it is fairly obvious that many of Noynoy’s legislative initiatives have been blocked, which is no surprise, considering that he has opposed GMA for so many years. I suggest u take a look at his filing record.
to Abe and bert: Noynoy and GMA do differ in their view about Supreme Court vs Malacanang checks and balances. Case in point — obviously GMA does not believe that the Pilipinas President can disregard recent Supreme Court decisions. Just go back to 2005 when GMA’s administration/ the DAR revoked the Hacienda Luisita SDO deal, saying that the scheme did not result in the improvement in the lives of the 10,000 HL farmers and workers. Action to benefit farmers was ongoing, except then, the Supreme Court intervened. Pilipinas Supreme Court issued a temporary restraining order. GMA paid regard to the Supreme Court decision. Now the case is pending in the court.
Despite this Abe-idea of a school of thought that Malacanang can interpret constitution and constitutional powers unilaterally, I do not see Noy showing bravado with Hacienda Luisita and he will be do-like-GMA with the HL restraining order. In my opinion, Noynoy will wait for the final Supreme Court decision, then as a “regular” Pinoy he will look at familial interests, career/ political goals and “for the greater good”-issues when he decides.
On a policy-note : I still believe Presidents do not have the option to disregard the most recent Supreme Court decisions. My opinion is worth a lot less, though, than the military. Should a Pilipinas President make unilateral executive decisions that disregard recent decisions by the Pilipinas Supreme Court, there is the question —- will the Pilipinas military defend the Supreme Court or Malacanang?
UP n (and Sillimanian),
I’m not sure that Noynoy has made a threat to disregard a decision of the SC made pursuant to the Constitution. It appears that the warning issued by Noynoy was to the effect that in accordance with the law of the land obtaining when the warning was given, if elected president he would not recognize a CJ appointed by Arroyo if made contrary to “precedence.”
Now, the majority in De Castro has turned the obtaining precedent on its head which otherwise considers such an imminent act of Arroyo an election offense. Technically, any appointment made by Arroyo after the ban is in effect, that is, as of March 10, 2010, is an election offense the De Castro decision notwithstanding considering that, among other things, the decision is not yet final and executory. Already, the Court spokesperson is issuing clarifications because the Arroyo administration seems to have gone ballistic after the De Castro ruling with the effect of demoralizing the bureaucracy.
On the other hand, there are many instances where I believe a final decision of the SC may be disregarded by the President and the people, the final arbiter. One obvious example would be a decision interpreting the Constitution to ban women from being appointed as judges where the reason given is that the fact of being a woman is equivalent to lack of “independence,” one of the constitutional qualifications of a judge.
The doctrine of “coordinate construction” or “three-branch interpretation” is not new. Thomas Jefferson, Andrew Jackson and Abraham Lincoln or a significant number of Americans believe that the SC does not have a final word as the process of constitutional interpretation is not linear with SC having the ultimate say. It is believed that the process is rather circular that turns on itself until the people is satisfied the law is good.
as i said in the eo464 and pp1017 days (at pcij):
the supreme court, of course, is the last orbiter…
as in orbit: to run in circles around us!
Abe: Mukhang you are mixing things up ata.
Surely, Thomas Jefferson, Andrew Jackson and Abraham Lincoln were talking about United States of America Constitution, not Pilipinas 1987 Constitution, right?
It is lucky for Noynoy that he is a candidate for Pilipinas presidency and the voters are not too sensitive about presidential candidates who are poorly-grounded in constitutional checks and balances. May2010 voters would probably just say “..Noynoy does not really mean it, he just meant GMA-talsik-diyan!” should someone put a spotlight on noynoy willing to disregard a recent decision of Pilipinas Supreme Court.
“GMA lang ang pinupuntirya niya”, he will not think of disregarding Supreme Court decisions on land reform or highways contracts.