The Supreme Court is neither final nor infallible. This constitutional truism is somehow easily illustrated by the manner the legal precedents imposing a ban on “midnight appointments” have been unceremoniously undone by the now infamous De Castro decision.
On March 17, 2010, the all-Arroyo-appointed majority justices in De Castro have allowed a lame duck Gloria Macapagal-Arroyo to install a “midnight” chief justice, once her loyal presidential chief of staff, against the law and jurisprudence theretofore obtaining that frown upon the opprobrious practice.
But what is the rationale behind the proscription against midnight appointments? The Supreme Court in Aytona v. Castillo, decided under the 1935 Constitution, has provided us the following answer:
. . . nobody will assert that President Garcia ceased to be such earlier than at noon of December 30, 1961. But it is common sense to believe that after the proclamation of the election of President Macapagal, his was no more than a “care-taker” administration. He was duty bound to prepare for the orderly transfer of authority to the incoming President, and he should not do acts which he ought to know, would embarrass or obstruct the policies of his successor. The time for debate had passed; the electorate had spoken. It was not for him to use powers as incumbent President to continue the political warfare that had ended or to avail himself of presidential prerogatives to serve partisan purposes.
To reiterate, a decision even by our highest court of the land is never final and infallible. For example, if the Aytona decision were seen to be a bad law, it would have been addressed and rectified by the people through their delegates with a view to setting it aside in writing the 1973 Constitution. But it was not; on the contrary, the present Constitution essentially adopted the Aytona decision under Section 15, Article VII (Executive Department), which provides:
Section 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.
The explanation of the proponent of Section 15 (then Constitutional Commissioner and later Supreme Court Chief Justice Hilario Davide, Jr.) was not dissimilar from the Aytona rationale:
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.
Quoting a good part of the unanimous ruling of the Supreme Court in In re Valenzuela applying the foregoing provisions of the Constitution would be highly instructive. The Court in the 1998 decision said:
. . . it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations.
The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.:
SEC. 261. Prohibited Acts. – The following shall be guilty of an election offense:
(a) Vote buying and vote selling – (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination of choice of a candidate in a convention or similar selection process of a political party.
….
(g) Appointment of new employees, creation of new position, promotion, or giving salary increases. – During the period of forty five days before a regular election and thirty days before a special election, (1) any head, official or appointing officer of a government office, agency or instrumentality whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary, or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner thatmay influence the election (italicization and underscoring in the original decision not shown).The second type of appointments prohibited by Section 15, Article VII consists of the so-called “midnight” appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a “caretaker” administrator whose duty was to “prepare for the orderly transfer of authority to the incoming President.”
Very clearly, by the law of the land before the De Castro decision, the threatened appointment by President Arroyo of a chief justice during the election ban was both an “election offense” and for all intents and purposes despicably “midnight” in nature. This was the background when presidential candidate Noynoy Aquino issued a statement that he “will not recognize a chief justice appointed by the outgoing president, contrary to the constitutional ban on appointments during the wee hours of her presidency, and contrary to propriety, delicadeza and precedence.”
In effect allowing Arroyo a cover for what would have been an election offense, the Supreme Court in De Castro has decided to reverse (because it is NOT FINAL) its unanimous decision in Valenzuela after finding the latter decision to be based on “false premises” (and therefore it is FALLIBLE) basically on the basis of the following ratiocination:
Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona were made in haste and with irregularities, or made by an outgoing Chief Executive in the last days of his administration out of a desire to subvert the policies of the incoming President or for partisanship, the appointments to the Judiciary made after the establishment of the JBC would not be suffering from such defects because of the JBC’s prior processing of candidates (underscoring mine).
Now, let’s read again Section 15, Article VII of the Constitution:
Section 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.
Without being a lawyer or a constitutionalist for that matter, is there anything in the above-quoted provisions which tells us that the drafters exclusively confined the prohibition to appointments made in the Executive Department? If the exception therein pertains not only to “temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety” but also to “appointments in the Judiciary,” why did the Constitutional Commission not say so in Section 15?
So far we are seeing that the Supreme Court is not final and fallible because:
1) It can declare itself to be fallible and reverse its final ruling when a new faction in the Court unhappy with its own decision obtains the magic majority number;
2) The Constitution can be amended to set aside the Court’s bad decisions, no matter how the Court deems its decisions and itself to be final and infallible; and
3) The Executive is duty-bound to ignore the Court’s decision when it is patently unreasonable.
And don’t forget, People Power as in EDSA I can also vacate the entire Supreme Court or any of its decision repugnant to the people’s collective sense of justice as in the case of the Javellana decision that gave force and effect to the Marcos constitution.
In the end, it is the people and only the people, not the Supreme Court, that has the final say and is (legally) infallible.
Popularity: 2% [?]
Why is it so difficult for so many to comprehend that the nation is of and for the people, not the empowered who are granted the people’s TRUST? It is there in black and white in the Constitution. Why are agencies like Customs allowed to run amuck as taxing agencies that operate 180 degrees from the people’s needs. I notice that banks here also wear that crown of authoritarianism that went away in the US in the 1960′s. And some retail store workers have the same lack of comprehension as to who pays their salaries, as they give snarling, woeful, inefficient service.
The question is rhetorical, so no further thinking required.
Great article, I might add. I appreciate the legal perspective.
Joe
Joe, that is why we elected Noynoy so that we could partner with him to do something about all these. Let’s show him he is not alone.
Thanks.
and the genius did not know that the barangay captain in the the Local Government Code, the administration of oath is not among the powers and responsibilities of a barangay captain.
Is this correct?
Ninoy is a senator so he can administer the oath to himself if he wants.
….all this who ‘should’ administer the oath is cosmetic at mga ka-ek-ekan.
better the symbolism of the Barangay Captain at baket ba ayaw niyo sa choice niya? si GMA nga ginawang administrator yung manicurista niya.
Joe,
Having a gun or title empowers Filipinos. They also bring the same attitude to the US. Observe the behaviors of Filipinos working at US airports. They apply the ‘I’m the boss’ attitude only to Filipinos.
Wow, Supremo, you work in generalities, like me, so can be wrong for many. But what an eye-opening perspective . . .
Joe
Joe,
I have another ‘generality’. Try shopping with your wife but pretend that you don’t know her. I’m pretty sure you will be attended first by the Filipina sales ladies.
I don’t know which airports you fly from but Pinoys I’ve encountered in airports always point you to where the complimentary coffee and food is.
Baka naman mali ang greeting niyo. Dapat “Kumusta” at hindi “Hoy” or “Pssst”.
Supremo,
I got angry at the bank manager because they always gave me approval to withdraw in the branch below the P50,000 ATM-account requirement. (I feel insecure withdrawing large amounts at the ATM). But my wife needed to visit the teller to see if a wire had come in, and while there asked for a P25,000 withdrawal. They said no, and made her go out to the ATM. She had to wait in line twice.
I told the manager (a woman) she discriminated two ways, by gender and by race. There is no question Filipinos favor whities in most business circumstances, attention in the store, right of way on the road, etc.
Crazy.
Joe
ps,
I’m not saying to be a jerk to whities, but be courteous to Filipinos, too. The authoritarian mentality of anyone in any kind of power position is a little much . . .
What bank is this? Because in BPI, when there is a long queue at the ATM and the counters are relatively quiet, you can withdraw any amount.
And yeah, the ATM machine is just for ‘convenience’. One should be able to withdraw any amount from the teller. It is after all your money.
Nash,
BDO. That’s what I told the teller who summoned the guard to lead my wife from the branch, and presumably keep her hot-headed husband at bay. “It’s her money, not yours.”
It meant nothing to her or anyone else.
Oh, and my wife was eight months pregnant at the time, and the sun was beating down on the ATM machine making it unreadable, and the guard marched my wife to the front of the line, which obviously pissed off the people waiting in line under the hot sun for the ATM.
Authoritarianism over common sense, or compassion.
Know of it?
Joe
Joe,
I hope you followed up on your complaint and got a satisfactory answer.
We are one of the few countries in the world where bank tellers require a college degree. Go figure.
“De Castro Decision” is law until it is reversed.
It is petulance — making tampo — on Noynoy’s part to make the issue bigger than it is. Already, you see DingG, gabbyD and a few others on this blogsite expressing the belief that Noynoy has more important things to attend to. In the eyes of a few people, Noynoy acted weak and wimpy for him to have pleaded for GMA to make “pakikisama” and allow him to appoint the next Chief Justice.
There is no getting around an oathtaking by the new president elect.
Noynoy, sa aking kurokuro, should pick the Supreme Court associate judge (or court of appeals judge) that he woud have elevated to Chief Justice had he been given the chance, and have this judge preside.
Do the oathtaking inside Hacienda Luisita and do it “by invitation only” (meaning do not invite Enrile, Manny Villar, GMA, Imelda, Honasan, BongBong, Corona, Miriam Defensor and any others who displease him).
Lourdes, whoever advised Noynoy to take his oath before a barangay captain is a genius. Corona’s acceptance of GMA’s appointment is shameful to say the least. It besmirches not only his person but the judiciary he is now supposed to lead. Many well-meaning Filipinos will now look at his CJ title as something even inferior to that of a village chieftain’s.
whoever suggested to use the baranggay captain was a lousy tactician and opned up Noynoy-oath-taking to ridicule. Oath-taking before LGU-captain is null and void. It took over four days to discover that LGU captains do not have authority, that’s being sloppy!!!!
Now I worrry about the court cases that the Noyhnoy administration will file. “Marcos wealth” got him elected but I am not holding my breath when Noynoy delivers. The promise to get smugglers and tax-evaders jailed may have gotten him elected but I am, well, jaded. So Noynoy may threaten some names with arrestt, but I want jail time and money recovered. Being tried in the court of media press releases not good enough. My worry–it takes a lot more judicious research and fact-gathering before Noynoy can get a tax evader found gulty in court of law.
I hope I don’t hear the palusot —- “we have bigger fish to fry, maghintay pa muna kayo ng ilang pang buwan.”
Lourdes, there’s no question that a barangay captain is a person in authority and is authorized to administer oaths. But whether his authority is limited such that it may not include administering the oath of office of a president may be open to question. I think Noynoy’s lawyers are just being too cautious not to allow the possibility of a “hostile” tribunal settling the matter in the future.
But the various symbolisms of President Noynoy taking his oath of office before a punong barangay especially in the light of the controversy over the “midnight” appointment of Renato Corona as the new CJ are just awesome: break with elitist traditions, defiance of those “arrogant in power” (to borrow from Rene), people’s empowerment, bottom-up governance, inclusion, etc.
If I were to advise Noynoy, I will suggest to him to have a public oath-taking before a barangay captain with all the fanfare attendant to it but only AFTER a private oath-taking before Justice Carpio-Morales.
if Noy will take his to oath to any barangay “kapitan”…well he is the best! he come down and reach out…we hope that he reaches out furthermore…and take down GMA and all her cohorts in corruption…that makes our country had lived for nine years in vain!
As to the Supreme Court’s role as LEGITIMIZING AGENT, Fr. Bernas has this to say:
The martial law, Estrada’s constructive resignation, and now…
the “midnight” appointment SC exemption…the exemption only the present SC has written.
Is it also offensive to human rights and disruptive of constitutionalism?
Baycas, “offensive to human rights” is probably a stretch but De Castro is definitely “disruptive of constitutionalism.”
yep, i thought so too.
offensive to someone’s “appointive” rights maybe…
Mike H, I call it “political settlement” instead of “pakikisama.” What I have also written in the other thread is this:
“Very generally and briefly, my thoughts are: first, other dominant events and influences not being present, for Noynoy to do a political settlement within himself ala Al Gore, the statesman, to spare the Republic from being enmeshed in another difficult political crisis, and then work as hard as a carabao like Barack Obama using all the tools of democracy available to him (such as plain-vanilla persuasion to build a stronger coalition of supporters) to lay immediately the foundation for major political and societal reforms.”
“De Castro Decision” is law until it is reversed. – Mike H
It may be worth posting this comment of mine again: “. . . 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.”
Abe Margallo says this:
3) The Executive is duty-bound to ignore the Court’s decision when it is patently unreasonable.
but Abe Margallo will not say this:
President Gloria Macapagal Arroyo is duty-bound to ignore the Court’s decision when it is patently unreasonable.
nor this :
President Ferdinand Marcos is duty-bound to ignore the Court’s decision when it is patently unreasonable.
nor this:
President Manny Villar had he won is duty-bound to ignore the Court’s decision when it is patently unreasonable.
MikeH,
I do not know if you are an imbecile or just pretending to be one.
The operative word there is “duty-bound”. Some executives are faithful to their duties, some deliberately ignore it for personal exigencies.
My fearless forecast. Noynoy Aquino will NOT ignore decisions penned by CJ Corona. Noynoy Aquino will wilt when the Pilipinas Supreme Court makes decisions that go against Noynoy’s understanding of Executive Privilege or Noynoy-son-of-the-Queen privileges.
No different than when GMA stopped cold the MOA-AD when Pilipinas Supreme Court told her that she can’t proceed with what she had intended to pursue.
All this nonsense about NoyNoy duty-bound bravado-bravado duty-bound will fade when the rubber hits the road. Noynoy will wilt. Reason? The military will NOT back him up. The citizens of the Philippines will NOT back him up.
“No different than when GMA stopped cold the MOA-AD when Pilipinas Supreme Court told her that she can’t proceed with what she had intended to pursue.” – Mike H
It was an unpopular take on my part but in deference to what I believe is “the rule of law,” I have actually defended GMA’s presidential prerogative during the debate on the MoA-Ad case, thus:
__________
I have argued that it is “blatantly irregular for the judiciary (the supposedly apolitical, publicly unaccountable and the least informed of the three branches of the government) to step in at the crucial negotiation stage for the Mindanao peace settlement or, in the guise of judicial review, actively participate in such a decidedly political matter by constraining the President, temporarily or permanently”; moreover, I have advanced that “even the senate (the president’s treaty-making partner under the Constitution) cannot meddle with this (negotiation) aspect of treaty making or of forging executive agreement in the same way that the court cannot interfere with the decision of congress or the senate to introduce ultra constitutional resolution [e.g., Senator Pimentel’s proposal for federalism] it deems appropriate to institute structural or systemic change in governance.”
The basis of the presidential power to conclude peace (or to wage war) is her commander-in-chief powers under the Constitution which demand great deference from the courts. By precipitously issuing a TRO against the executive in the matter of negotiating to conclude the MoA-AD, the Supreme Court has acted out of bounds and trifled unconstitutionally with a prerogative that is exclusively presidential.
__________
Now MikeH you really are showing your imbecilic mind.
Why on earth are you bringing up the military in a discussion such as this?
What makes you so confident the military or the citizens will not support Noynoy?
‘Surge the gates’ na si Mike H.
GMA on MOA-Ad. GMA on the other side of the fence as Pinas Supreme Court.
Supreme Court prevailed. The military would not have backed her up. The citizens of the Philippines would NOT have backed her up.
Hey… tranquil… getting a headache already? Ur brains can’t keep up heh heh heh
MikeH,
You are comparing apples and kamote.
Pickles and strawberries . . .
Mike H, what I have already said is this: . . . “there are many instances where I believe a final decision of the SC may be disregarded by the President [any 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.”
We really must always ask ourselves:
Would this have happened in USA/Germany/Switzerland/Sweden/UK?
Or do we just like having low standards?
In the age of the internet, there is no excuse for not benchmarking our standards against the better democracies.
Nash, we are a maturing democracy. Remember Dred Scott and how America has painfully struggled to set it aright?
Or Rosa Parks . . .
We can always go straight to ‘best practices’ rather than have to go through the unnecessary growing pains.
Japan, after all, did not invent the television….and Korea did not invent the mobile phone.
#1
Is the “final” course the “end” of the course?
Consider another example: Because candidate elective officials are not deemed resigned therefore appointed officials are likewise not deemed resigned. But, truth is, candidate appointed officials are deemed resigned two months later when the SC reversed itself.
#2
And also the instance when sixteen (16) towns were converted to cities then to towns then back to cities (here and here) again. What a costly U-turn to a “final” decision!
#3
It’s no wonder Robert Jackson said,
The SC is FINAL as no higher court is above it and it is INFALLIBLE because no other court can correct its mistake…other than itself.
Of course, the “final” course (in Azcuna’s remark cited above) is not the “end” of the course for, as what has been presented, the final arbiter has the ability to change its mind.
This is in consonance with DJB’s position:
Well, as for me, the Supreme Court is “infallible” (always with the quotation marks; subject to my own interpretation) and the final “orbiter” as in orbit: to run in circles in my mind!
Which means, baycas, that the Supreme Court is infallible only because of its fickle mindedness.
bert,
i miss bencard, jcc, djb (in no particular order) and other lawyers and pseudo-lawyers here at fv.
—–
btw, this is alan paguia’s take on gloria’s appointment…
Mr. Justice Corona’s appointment as Chief Justice is, therefore, INVALID.
…the kind of logic that will also invalidate the december 2006 appointment of retired cj reynato puno.
baycas,
DJB has, unfortunately, retired from blogging.
I can only guess the reason why.
no one listened
he’s teaching daw.
Joe,
DJB is the most visible voice of neo-cons in the country, but with the fall from grace of neo-cons’ holy trinity (Cheney, Dubya, and Rumsfeld), he seemed lost and betrayed of conservatism’s core values..
He’s a sort of a Renaissance man though; idolizes Rizal and is into string theory so maybe he’s off to Switzerland to observe the particle smashing experiment.
He’ll be missed in the blogosphere. I hope he comes back as a converted soc-dem.:-)
tranquil,
Good minds are indeed worth reading and arguing with even if they tread that whacko conservative right line. It gets rather boring talking to likeminded minds.
Joe
I thought he just had arthritic digits and thus saving his fingers for something else other than the keyboard.
Digging earwax, what?
As Hilary Clinton told the White House staffers, during the begining of the term of her husband: “We have to put our own people.” We are starting a new administration. Then, we are bogged down with the Corona issue. I wonder, if this is a Diversionary Tactic of the incoming Aquino Regime. To make us look the other away from our true problems like: massive poverty, people living around the garbage dumps, chronic unemployment, rice/sugar imports, economic stagnation, and others. During the time of Josef Stalin in the former Soviet Union. Stalin blamed Lenin, for the economic woes. During the time of Nikita Kruschev. Primier Kruschev, blamed Stalin for the economic downturn. Mao Tse Tung of China blamed the Revisionists and Reactionaries. So, he launched the Cultural Revolution. Politicians have a way of distracting us. Will Noynoy Aquino blame Gloria Arroro, if he cannot deliver his promises? Or blame the Corona Appointment, for not being able to solve our problems? This remains to be seen. We wait and see!
Yehey, more excitement!
Loser Nograles wants to push the proclamation of winners up to noon of June 30! http://www.philstar.com/Article.aspx?articleId=577033&publicationSubCategoryId=63
This means, Noynoy can’t form a ‘transition’ team because without an early proclamation of the winner, he will be branded ‘presumptuous’ and ‘arrogant’. And Gloria cannot allocate resources for an orderly transition because that would also be unfair to the other candidates when no winner has been proclaimed.
It’s now turned into a comedy. Hilarious! Thank You Koala Bear!
thenashman,
Dude, I can’t figure it out what the meaning of these two words.
• COOPERATION, and
• COLLABORATION
But they do have the same distinct meanings.., “FAVORITISM”
akala ko tapos na ang circus….meron pa pala.
we should encourage nograles.
Abe,
Great reading, and informative. Now we must act. I think right about now, Philippines is creeping up ahead of Bangkok, Thailand.
Governments uproar and it’s protestor’s are in dual disagreements. One, just would not give up…[...]
I just hope this type event, does not come into play. We Filipinos need to support each other, or we are just another banana republic.
The Thailand situation is like the Philippines. The very rich, put people in power with the aid of the Media, and their money. Their fellow very rich, Former Primier Thaksin, who is now exiled in London, England. Wanted, to stay long in power. So, the Military had to remove him. I had just a good conversation, with a Thai friend. He was a former University Professor in Thailand. He wrote a book, about the political vicious cycle of Thailand. He enraged the very rich in his country; who holds power, pulling political strings. Now, he is also exiled in London, England.
He stated:
About, 5% of the very rich controls the wealth of Thailand. The rest are like us, living from hand to mouth. These Thais are now demonstrating for this political vicious cycle, to be broken. That place people in power, their families, their relatives, and anyone allied to them; in power. Thailand is a Parliamentary System. Yet, the situation is very much similar to the Philippines. Those in power are blaming, Former Primier Thaksin, for the trouble. However, he claims: Thaksin has nothing to do with it.
Will the Philippines slide to this kind of Political Stalemate? God forbid!
Prof. Abe,
Thank you for the citations of the relevant jurisprudence.
I need to canvass your view po.
How far do you think this controversy will go in as far as the threat of lawyers to seek Corona’s impeachment?
Ding and Mario,
In Yes, we can! and before the election, I have tried to outline the options available to Noynoy, to wit:
__________
. . . if Noynoy were to become president, and the Marcosian scheme to install a supposedly hostile chief justice materialized, what can we speculate are the choices available to him?
One possible choice is to hold accountable Justice Bersamin who penned the majority opinion in De Castro and the other justices who concurred with him for culpable (intentional) violation of the Constitution via the impeachment process. This is something easier said than done since even now Arroyo who is likely to win a congressional seat in a Pampanga district is consolidating her congressional loyalists for her to grab the speakership of the House, the agency constitutionally charged with “the exclusive power to initiate all cases of impeachment.”
Another is for Noynoy to make good his pre-De Castro threat to ignore an Arroyo-appointed chief justice and appoint his own. This is an equally difficult choice considering that the presidential power of appointment as regards the members of the Supreme Court and judges of the lower courts is now shared by the President with the Judicial and Bar Council from whose list of nominees the President shall make the appointment. The Council may decide not to prepare the list if it so deems no vacancy exits there being a current sitting chief justice appointed by Noynoy’s predecessor.
Next is for Noynoy to nail Arroyo and Justice Bersamin et al as conspirators with criminal prosecutions for election offenses related to the violation of the constitutional ban. This does not look to be a cakewalk either because pursuant to the Constitution, the prosecution of such offenses in now under the jurisdiction of the Commission on Election, an independent constitutional body (whose partiality, or at least of a division of it, for Arroyo is highly suspect).
It would seem that one of Noynoy’s best bets is to do a Cory, that is, fire the members of the Supreme Court, and start afresh too. But lo, to come to this, however, requires People Power, a phenomenon that as the Lady in Yellow herself has experienced is not easily summoned owing to the fact that the Great Beast [i.e., People Power] has an unpredictable mind of its own. Moreover, to be legitimate, People Power is resorted to always as a power of last resort.
__________
In view of the foregoing, I have urged that Noynoy in the exercise of statesmanship should look for a “political settlement” instead.
I agree with Abe’s analysis of the conundrum and Noynoy’s next action sequence. Be sure to add — instruct Inquirer-net, Manila Times and the blogging world to NOT use the word “capitulate”. And hold in reserve this item — to not invite Corona, GMA, also Bongbong and Imelda to any cotillon at Malacanang Palace.
But the best revenge is for Noynoy to get the respect of the people. this means that Noynoy should strive for additional brownie points from the citizenry and accolades from the business community and foreign press. How??? Noynoy — deliver on campaign promises — the anti-corruption message. The measurable timely event being five or six smugglers and tax evaders on his LIST — arrest and jail these dudes and duddettes by November 2010.
He does the five/six from the smugglers list… hacienda luisita sleeps an issue until the 2013 elections.
I like all your ideas Mike H except for the timing and numbers. He should at least get the BIR working on tax evaders/nonfilers etc. right away to get more revenue for the country. That should be hundreds right away. DTI to check up on no receipt transactions etc. How about OFWs? Are they all paying their taxes on time? In order to capture the smugglers, sting operations and surveillance etc has to be set up and lawsuits filed which will need time, resources and coordination with various government and law enforcement agencies. Also the punishment aspect should be also reviewed for deterrence.
baby steps, rosa. November2010 and jail for 5 or 6 tax evaders — baby steps for Noynoy to prove he is maaasahan and true to his word. If Noynoy slacks off on the Nov2010-promise, then what should people expect about the bigger promises he made of “Marcos Wealth”, “garcification-investigation and jail”, “No New Taxes”?
If Noynoy does the five/six from the smugglers list… then hacienda luisita sleeps as an issue until the 2013 elections.
The last option, People Power, could also be a fast-forward to constitutional tinkering.
Please remember the “voting separately or jointly disagreement?”
(This “non-ambiguity” is highlighted here and here.)
You offer four choices, four impossible choices. How helpful can you get? Then you end up with advising for “political settlement” hahaha which seems to mean “accept mo na lang si Corona, Noy!” But if President Noynoy wants to provoke a constitutional crisis, why not? go ahead, I’m holding my breath. Sige nga.
Because ricelander, as the always reliable Ding G has written, “A good commander (must know) how to pick his battles ” and, if I may add, control the pace of the tactical operations (being provoked into doing the provoking is to lose that control).
Also, think about it, the fight is not really about Noynoy but the country; to win it, I concur again with Ding’s counsel that Noynoy must expend his political capital and other resources prudently.
That means, ricelander, that Noynoy has to consolidate first all the political forces, have effective control over them, and with the people behind him, commence the “attack” right away, the sooner the better, for him to govern effectively with that kind of clean and honest governance he’d promised. An obstructionist, confrontational, and antagonistic Supreme Court can be dispense with easily without us, the people, fearing any looming constitutional crisis. With an honest, clean, and effective president trusted by the people, there is nothing to fear from a constitutional crisis. Let it come, sooner than later…the better for the country in the long run.
correction: “an obstructionist, confrontational, and antagonistic Supreme Court Chief Justice…”
People Power is a Myth. The EDSA was successful, because of the U.S. State Department support. Remember, the Former Secretary of State: George Schultz, visiting the Philippines, wearing the Cory Aquino doll, after the revolt.
The Pro-Democracy uprising at Tienamen Square, in China; was also a People’s Power. It was not successful. Becuase, China has Nuclear Weapons. The late Chairman Deng Ziao Peng, just let a Brigade of his loyal troops, massacre the Pro-Democracy rallyist. Other China Army units, did not challenge the Deng Ziao Peng Brigade. The U.S. cannot intervene. Because, the U.S. was afraid to be nuked by China. China has a long range Ballistic Missile with nuclear warhead. Capable of hitting any U.S. City.
Same situation as now. North Korea just torpedoed a South Korean warship. They cannot torpedo back any North Korean warship. North Korea has nuclear weapons. And, it warned everybody: they will not hesitate to use them.
So, to perpetuate the EDSA as apparently real people’s power, is just deluding the Filipinos.
Breaking: GMA7 is reporting that President Apparent Noynoy Aquino will take his oath before SC Associate Justice Conchita Carpio-Morales who’s the cousin of Justice Antonio Carpio
Yep, inasmuch as we succumb to the dictates of the “infallible” and final “orbiter” SCORP, we should just maintain this starter fight: “People’s President” vs. “gloria’s Crown” in order to preserve symbolically (and in practice, hopefully) Judicial Independence.
This independence will matter in the HL case. (I just don’t know if “gloria’s Crown” will still be handy for her when the time comes…)
Who bestows legitimacy?
I am now consolidating efforts of some in the private sector to backstop some individuals who are well placed to become rich during the Noynoy Presidency.
Some of them contributed to the campaign and are targeting certain key agencies and sectors.
Isnt booty capitalism wonderful..
Is Associate Justice Renato Corona’s appointment as Chief Justice valid or invalid? by Alan Paguia
Facts
1. On January 20, 2010, the Judicial and Bar Council (JBC) formally announced “the opening for application or recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO.”
2. Subsequently, on May 5, 2010, the JBC submitted a short list of four (4) nominees, namely Supreme Court Associate Justices Arturo Brion, Teresita Leonardo-de Castro, Renato Corona, and Sandiganbayan Acting Presiding Justice Edilberto Sandoval, to the Office of the President. Earlier, the JBC excluded two (2) other nominees – Senior Associate Justice Antonio Carpio and Associate Justice Conchita Carpio-Morales – who had maintained that Mrs. Arroyo is barred by the 1987 Constitution from appointing Chief Justice Puno’s successor, and that they would not accept such an appointment from her. SRG
3. On the morning of May 17, 2010, Mr. Justice Renato Corona took his oath as the 23rd Chief Justice of the Supreme Court before Mrs. Gloria Macapagal-Arroyo at the Malacañang Palace.
The Law
4. The 1987 Constitution materially provides that: “The Members of the Supreme Court… shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy…” (Sec. 9, Art. VIII).
5. Under the Constitution, the Supreme Court is composed of a Chief Justice and fourteen (14) Associate Justices. They are the fifteen (15) Members of the Court.
6. The “vacancy” cited by the law refers to the position of “Member” of the Court.
7. The law mandatorily requires “at least three nominees” for every such “vacancy”.
8. In other words, the JBC appears to have committed a misstep in its aforementioned announcement. Instead of referring to the position of “Member” of the Supreme Court, as expressly provided by law, it erroneously referred to the position of “CHIEF JUSTICE OF THE SUPREME COURT”.
9. The parties’ intention is clear. The JBC, Mrs. Arroyo, and Mr. Justice Corona all intended to follow the cited provision of the Constitution.
10. Did the JBC submit “at least three nominees” for the vacant position of “Member” of the Supreme Court?
11. The answer is NO. While it submitted the names of four nominees, only Justice Sandoval of the Sandiganbayan could be appointed to fill the vacancy. The other three are already Members of the High Court.
12. Under the Civil Code, acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity (Art. 5). In the JBC’s case, the exception does not apply. The law itself does not authorize the validity of the questioned nominations.
13. According to the Supreme Court, VOID means: “no legal existence” (Velasco v. Lopez, 1 Phil 720). Consequently, (a) the JBC’s void list of nominees, which was acted upon by Mrs. Arroyo and Mr. Justice Corona, also has “no legal existence”, and (b) Mrs. Arroyo and Mr. Justice Corona had acted without legal basis.
14. Dura lex sed lex. The law may be harsh to some, but that is the law.
15. Mr. Justice Corona’s appointment as Chief Justice is, therefore, INVALID.
Alan F. Paguia
Former Professor of Law
Ateneo Law School
University of Batangas
Pamantasan ng Lungsod ng Maynila
alanpaguia@yahoo.com
May 18, 2010
i dont understand this argument.
1) isnt a chief justice, a “member” by definition?
2) if he isnt a member, what is he? who determines who the CJ will be?
Alan Paguiuia should do something about his beliefe. If he believes that Corona’s on appointment is invalid the he should go to court and file a petition. Alan paguiia doesnt have an authorty to validate or invalidate Cornoas appointment. therfore what he says is just a a legal opinion until he gets validation form the court.
Alan Paguia is a Harry Roque-lite.
They both like press releases, Hairy Roque goes one step further and actually files a complaint, but due to shoddy work always loses by technicality.
—–
The Law as applied to recent CJ vacancy
a. 15 Members of the SC = 1 CJ + 14 AJ’s
b. JBC lists 4 nominees they preferred to fill 1 Member vacancy (specifically the Chief Justice) and submits to the President
c. The Member (specifically the Chief Justice) is appointed by the President
d. Valid or Valid?
INVALID!
…I don’t entirely subscribe to lawyer Alan’s viewpoint as I am one with the others who find Mr. Justice Corona’s CJ appointment as invalid insofar as it is violative of the election law and of the comprehensive ban on “midnight” appointment – practically Abe’s essay above.
—–
btw, here is the jbc list of nominees in 2006:
candidates were associate justices:
1. reynato s. puno
2. leonardo a. quisumbing
3. consuelo ynares-santiago
4. angelina sandoval-gutierrez
5. antonio t. carpio
and senator:
6. miriam defensor-santiago
reynato s. puno was appointed cj in december 2006.
Forget “discovery”, Paguia says.
Who needs facts when you already know the truth?
Corona, talsik diyan!
oops, lawphildotnet used the word “preferred” instead of the right word “prepared.”
—–
for the sake of Judicial Independence in the present SC vis-a-vis a presumptive Aquino administration, “gloria’s Crown” should stay.
Thank Abe for posting this.
But look in the ff:
———————————————————————
“But it is common sense to believe that after the proclamation of the election of President Macapagal, his was no more than a “care-taker” administration”
———————————————————————-
Noynoy is not yet proclaimed when Gloria appointed Corona. So I bleive this one doesn’t apply to the situation.
Then here:
——————————————————————–
“Section 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.”
——————————————————————-
But the nine justices excluding Corona have ruled that the SC is exempted from this ban. Gloria has nothing to do with the decision. She only followed the decision of these 9 justices
Rego,
The caretaker analogy apparently applies whether Noynoy is only a presumptive president or a duly proclaimed president-elect. The fact of the matter is that GMA had only 45 days left of her six-year term at the time of the retirement of CJ Puno. Note that a “caretaker government” is supposed to confine its functions to rudimentary matters such as the maintenance of law and order and ensuring the government machinery functions for the day-to-day operations. Certainly, appointing a chief justice to the highest court of the land is not one of such matters.
You say that GMA is just following the decision of the majority in De Castro. But that’s the whole point. The mandate of the Constitution is to fill the vacancy within 90 days from its occurrence. By the end of her term on June 30, 2010, GMA would have still 45 days remaining of the mandated 90 days. She doesn’t have therefore to follow the decision of the nine justices (if only to pave the way for smooth and orderly transfer of authority) by allowing the incoming president (after the people had spoken) to fill the vacancy during the next 45 days.
Thats the the problem. becuase you interpret that way I also have a different understanding of the links that you provided.
The thing is Abe, ebe=vrybody can have theire own interpretation but ist the supreme court whose interpreation that matters teh most because its the official interpretation.
Even Fr Bernas who doens;t agree with the Supreme Court decision is telling noynoy to accept the appointment of Corona. Becuas ehe know very welll that the supreme court is teh final arbiter regardles on wetherhe agree with it or not.
Rego,
If you are following closely my argument, what I’m saying is that even if the majority in De Castro are not dumb and dense and that their decision is correct, still GMA may not be said to have disobeyed the Constitution on the 90-day mandate had she not exercised her appointing prerogative. This is so because at the end of her term, or on June 30, 2010, there’s still 45 days remaining of the 90 days. Note that Art. VIII, Sec. 4 (1) says. “Any vacancy shall be filled within ninety days from the occurrence thereof (emphasis mine).
It would have been different if Puno’s mandatory retirement falls, say, on March 17, 2010 (instead of May 17, 2010) in which case the 90-day mandate expires on June 15, 2010. Then assuming that Art. VIII, Sec. 4(1) really applies to the case, GMA would have no choice (and therefore would not breach the norms of delicadeza, to make this comment relevant to this running thread), despite the caretaker nature of her government at such juncture, but to make the appointment before her term expires.
with this decision, the SC made an exception to the rule regarding the ban on ‘midnight appointments’…they ‘tweaked’ the law to accommodate certain interests…i’m just wondering what’s stopping them from making more exceptions to the rules in the future if we just accept these kinds of legal decisions for fear that taking steps against such actions would trigger a constitutional crisis?
As I said above when I cited lawyer Alan’s view, his conclusion is the kind of logic that will also invalidate the Dec 2006 appointment of the recently retired CJ Reynato Puno. Only candidate Miriam Defensor Santiago then was not a SC associate justice thereby not meeting the “at least 3 candidates” lawyer Alan is referring to. Please remember also that she was the only one who almost subjected herself to public interview as it was the “clamor of the day” back in 2006. The rest of the candidates were already SC associate justices and they deem it unnecessary for them to answer public “scrutiny.”
i dont get that logic either. why are those candidates ineligible?
why is “While it submitted the names of four nominees, only Justice Sandoval of the Sandiganbayan could be appointed to fill the vacancy. ” this true?
where does it say that that the nominee list is restricted in this way?
the provision says: “: “The Members of the Supreme Court… shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy…” (Sec. 9, Art. VIII).”
NOWHERE does it say that nominees cannot be associate justices.
Now we know which schools we should not go to. Or which schools we should avoid for our kids :-)
From Ramos vs. Court of Appeals, 108 SCRA 728 (1981):
Copy-pasted from Stuart Santiago’s blog without permission, here’s what Rene Saguisag has to say about that midnight appointment:
“I decided to resist Martial Law from Day One. Not many others did because the Good Filipinos, like the Good Germans, would salute anything calling itself as law printed at public expense. Today we again hear from Good Filipinos: follow whatever government says even if the Supreme Court (SC) rules that the Judicial and Bar Council (JBC) may be ignored altogether.
Chief Justice (CJ) Davide and CJ Puno were both told by GMA that she did not like the JBC lists and asked them to submit another. Neither remonstrated to protect the body’s independence. Pray tell, how could an economist and a general as Little Prez know better than the JBC whose members are all lawyers?
We hear today, be prudent, just continue multiplying like rabbits. This was probably what our leaders were telling our people in the face of Spanish, British, American, Japanese, and native oppressors. The poor protested in 2001. Rene Corona, as GMA adviser, reportedly called them “mga walang ngipin, walang salawal, atbp.” May they rely on him for justice in a society where the system reflects the biases of the ruling class? If he must stage a presscon, he should not do so in political combat but tell us what he intends to do, if he must speak at all other than in writing in an actual case. I was privileged to know his father, a very good man who lost his life the same my wife did, in a vehicular incident. I cannot believe his father would look down at the poor the way Rene reportedly did in 2001.
Today leaders in the community tell us to obey a CJ who even stages presscons, behaving like a taunting politician and doing what the unelected SC members do, issue circulars without any public hearings as is done by elected lawmakers. It used to be that law grew by precedents set in actual cases and we were told that future cases must be examined as to their facts because general propositions do not decide concrete cases. Now we drown in circulars such as one disrespecting an accused’s right not to speak by compelling him to appear in criminal pre-trials and stipulate.
Holmes said that even a dog would know the difference between being stumbled over and being kicked.We got kicked by the Spaniards, the British, Americans, and Japanese and when our own started to oppress us, we could not tell the difference anymore. Follow the rule of law, the natives were told, by the arrogant in power.”
All ye who are complacent and indifferent to the implications of that midnight appointment, please take note of the last paragraph by Rene Saguisag…and wince!
But thsts emo na naman. ayaw ni Bengino ng ganyan. Why dont we just go factual, objectiev and logical. Emo kasi is very sunjective.
rego,
Atty. Saguisag is factual, objective, and logical.
Which part of his sentences above do you not find factual, objective, and logical?
And btw rego, fyi, just hudapak gives a sh*t what your benigno says?!
That’s alright, rego, you have the right to say that.
Read again this passage by Atty. Rene Saguisag:
“We hear today, be prudent, just continue multiplying like rabbits. This was probably what our leaders were telling our people in the face of Spanish, British, American, Japanese, and native oppressors.”
And say, “I will!”.
tranquil: You may believe so, but I do not believe that GMA, Erap before her and Ramos before him, I do not believe that Cory had preached this:
I do not believe that Villar had said it; I do not believe that Judge Puno nor Judge Corona had preached that sentence; I do not believe that Miriam-Defensor nor Ponce Enrile had said it.
Saguisag gone emo…. I’m surprised that some folks do not catch the nonsense among his sentences.
MikeH,
I reckon your reading comprehension isn’t exactly on a grade 4 level, no?
rego and mike h, together now, “We will! We will! We will!”
tranquil: stay in school, listen to your teacher, do your homework,and you will eventually get there.
For the sake of Pilipinas because the kabataan is the future of the nation, stay in school.
MikeH,
But really now, are you sure your contextual reading comprehension is not somehow deficient?
You snipped a sentence quote from a paragraph, construed it separately, and failed to understand the whole context of that short article clip. Surely you can do better than that, no?
So what else is new with Mike H?
Nothing new. ‘Mike H’ has always been like that since 2006 (in his other online personas ‘UP n Student’ and ‘UP n Grad’.)
wala bang AdMU n Student or UST n Grad?
what does ‘UP n’ mean anyway?
Abe:
With due respect, you seem to be supporting and advocating disrespect to the highest court, or lawlessness, at worst. The Supreme Court is the only constitutional body mandated by the constitution (passed by the people) to be the final arbiter of legal disputes and which decisions form part of the law of the land. The SC is supreme and its decisions should be respected, even if one may find them flawed or erroneous. If their decision on the subject matter is already final, everyone should respect it, unless that ruling is later reconsidered or reversed by the SC itself.
I’d say that is true if the court demonstrates a disciplined adherence to the interpretation of law. But if it bows to political pressure, it deserves to be disrespected and if justice cannot be attained by the people, lawlessness is in order.
What about the 300,000 judicial cases backlogged in the courts now. Should the people sit back and “respect” that?
Joe
Hi, jerry redula,
Glad to see you around here. You mentioned something about ‘disrespect to the highest court,…”. Well, there should not be, but, you know, respect, like love, is earned. It should not be imposed, should it?
Can you imagine what will happen if all of Noynoy’s efforts to clean government be thwarted by a hostile Supreme Court Chief Justice who could be blindly loyal to his former boss? See the evidences: this present Supreme Court overturning their previous rulings in favor of a midnight appointment which legal and constitutional luminaries found the improprieties of that move, and the ethical questions attached to the acceptance by Chief Justice Corona’s of the appointment by his former boss. See?
This kind of blind legalism over common sense grounded in ethics is a big part of what ails our Institutions. There are limits to the Supreme Court’s legitimacy. If its behavior is considered unethical, then it eventually loses the mantle of respect. All you have left is the threat of disorder which is the trump card of whoever is in power.
wait a minute. lets ground this in real world examples.
we follow the SC until it becomes illegitimate. how do we know that? when it becomes unethical. how do we know that?
heheh, i thought this was settled already. Justice Corona accepting the appointment from his former boss when he could have declined it for reason of delicadeza is unethical, didn’t we know that? this is as real as the real world examples, :).
but bert, we are just substituting words.
its unethical coz its delicadza. you argue: its delicadeza, hence unethical.
a column on abs by Ex-Sec Briones defines delicadeza as “Delicadeza refers to behavior anchored on generally accepted moral standards.”
what is the moral standard that is being violated here. you HAVE to be clear, or else this discussion will go NOWHERE fast.
What’s the Deal with Delicadeza?
of course, for me, it would help a bit if we know what delicadeza is to understand better the meaning of the word ethical or unethical. but that’s just me.
Now, that’s baycas, the always reliable baycas, who can always enlighten during trying times. I hope that’s clear enough already to everybody, :).
this isnt settled.
let me quote the most important part of that link (ty baycas!)
clearly, we are talking about situtation 2. OK. WHO has the conflict of interest here? SC? Noynoy? or GMA? lets be totally transparent.
Actually, F. Landa Jocano is the authority. He wrote a book in 1997 entitled “Filipino Value System: A Cultural Definition.”
He defines delicadeza as:
gloria is perceived to champion her own interests only. The “famous” 9 associate justices, all gloria-appointees and perceived as non-independent when it comes to her benefit, are complicit with this goal. “gloria’s Crown,” having been very close to gloria, should have declined the appointment out of delicadeza.
“gloria’s Crown” should have continued with his inhibition from the start, together with Puno and Carpio during the De Castro deliberation, and both Carpio and Carpio-Morales during the nomination.
As to the caretaker gloria, propriety dictates what she shouldn’t have done.
@baycas
its still not clear. lets assume that its true that the CJ is beholden to GMA. when noynoy assigns the judge, by this logic, he/she will be beholden to him.
why is the latter OK, while the other is NOT?
because, GabbyD, Noynoy is not the former boss of the CJ he’s assigned.
If PGMA was your former boss and you fed your family with the largess you got from that position, then you have the obligation to be grateful, haven’t you?
I’m at the end of my wit, I hope that settled it na, :).
GabbyD,
To give you another concrete example, I believe (and this is my Firm view alone), President-apparent Noynoy out of delicadeza should not appoint Carpio. If perhaps Carpio will be appointed by President-apparent Noynoy, Carpio should decline the appointment out of delicadeza.
Bert,
If I remember right, you told me once to stay cool. I am returning the gesture. Thanks.
@baycas
now this is really confusing. sabi mo “President-apparent Noynoy out of delicadeza should not appoint Carpio.”
so we cant appoint anybody? but SOMEONE needs to get this job, and the president, whoever that president is, MUST APPOINT at some point…
so WHO has to do it? and why is ONE guy doing it, better than the next?
Delicadeza, as Jocano considers it, is about “behaving properly and in accordance with one’s own self-respect and standing in the community.” To possess such Filipino value is to have a sense of propriety.
But others would go beyond that and assign moral correctness into a suitable behavior at a given situation. Therefore, having delicadeza is a becoming trait of being a Filipino.
Casting the JBC, the “midnight” appointment ban, and the result of the May 10 election aside, let us consider the personalities (gloria, Noynoy, Corona, and Carpio) and reflect on their supposed behavior in relation to delicadeza:
gloria is close to her once-subordinate Corona. She should not appoint him. Corona should not accept the appointment.
Noynoy is close to The Firm’s Carpio. He should not appoint him. Carpio should not accept the appointment.
Delicadeza operates and perhaps every Filipino will be happy.
There is a latin maxim (or whatever) that says:
“Non omne quod licet honestum est.”
Not everything that is permitted is honest (or honorable, as some lawyers would translate it). An ordinary Filipino must possess a true value of becoming a Filipino (i.e., with delicadeza, among others). Hence, a Filipino held in high esteem, as being a leader, should set an example.
@baycas
so, the argument is: if ur “close” with the appointing person, u should not accept ; OR if ur “close” with the nominee, you shouldnt appoint.
1) define closeness. what is the tipping point level of closeness that makes this inapporpriate? why does closeness elicit such a feeling in people?
how close are corona and gma? how close are noynoy and the firm?
i feel that this “closeness” is code for what we really want to say. are we saying “influence”?
recall, too: one reason why corona is the guy is that the more senior justices decided NOT to be nominated, because they disagreed with the SC decision. (not coz they were close — my point is that they disagreed based on something else!)
was it wrong for them to do so? should they have opted to be open to be nominated?
further: corona’s name appears on the JBC list. are they complicit? did they put in corona’s name for NO OTHER reason, say, for his competency? are they in a conspiracy with GMA too?
ALL of these things MUST be true for your story to go through…
2) lets define closeness again. the current elena kagan is close to obama. should she recuse herself? should obama NOT have chosen her as nominee? doesnt her work stand on its own? does this closeness trump any other reason he might have?
3) let me grant your assumption: closeness is now banned. how do we select members of the SC? what is the minimum level of closeness possible?
MY POINT: lets be more transparent as to why we believe what we claim to believe. what is delicadeza IN THIS EXAMPLE? What are we really afraid of? closeness? working with others?
My theory: the fear of closeness is a theory of how people relate to each other. the implicit assumption is that people, when they are friends, frequently bend their reasoning to accommodate people who are close to them.
is this your theory? that people who are close automatically have their reason take a vacation, and do everything according to the dictates of this relationship?
is this how you feel? is this the moral principle involved here?
MY POINT #2: this isnt a simple thing, so we need to state our assumptions and theories of human behavior as transparently as possible.
GabbyD,
If someone close is undeniably capable, as Kagan is, you can appoint her. Obama expects no personal favors from her. If you pick someone BECAUSE they are close, regardless of their capability to perform in the job, and you partake in the trade of favors, that is a different story.
Closeness itself should not warrant penalty. Choosing an incompetent, or expecting or granting favors, warrants condemnation. Ms. Arroyo’s trust rating is so low, and pulling a last-minute stunt, one questions the legitimacy of her motives.
Trust is precious.
So many appear not to grasp that.
Joe
With your kind permission, if you may allow me to briefly describes the two mis-behaving characters. This would be “GEEKS” and “WONKS” they are precarious at time, but be very careful, they both can be such mischievous. At the same token. Beware…!
Politics is the ingress way into captivating political ideas seriously. If something that concerns you intensifies, you tend to go one of two ways: wonk or geek. Wikipedia gives definitions of both wonk and geek but the terms takes a whole new damn meaning in a political sense. One must think, are we in the same planet. WTF!
Political wonks are arouse, even fascinated by process. Wonks have the passion for the game. The wonks gets as much satisfaction from observing as changing. Wonks want to be players above all else. Ideals bore them. History is mere data. Intellectuals seem irrelevant. What matters to the wonk are the hard realities of the ongoing political struggle. Wonks defer to title and rank. Wonks thrive on administrative details, small victories, meetings, and gossip about these matters. Having the knowledge who is who and what is what is the very pith of life.
There are policy wonks, and political wonks. They appear to be running things, because their aim is to control the levers of power in just the right and strategic way, which means in a way that benefits the other wonks of their tribe(s). Wonks exist on all levels of society. Wonks prosper on keeping information private and cartelizing their class. Hell, for that matter, could be Manila Bulletin, Inquirer.Net, Wowowee…, and so on. These can be all part of the systems of political wonks, let us omit wowowee here. Highly irrelevant…!
The differences to this are the policy geeks. Geeks are no less attracted by detail but are drawn to ideals. To be an onlooker, bores them. They are deduce to the apparent probability of advancement change. They don’t want to be players as such; they question the very rules of the game and want to change them. They are much happier to make a significant change in the speculative environment, whether big or small.
Geeks tend to, and often works alone and totally disregard endogamous distinctions. Geeks are interested not in the surface area but what’s underneath. In software terms, geeks are constantly, forever looking forward to the next build. Geeks are risk takers, so they prefer to debug after the system is live. To put things back together again, as if they were defragmented by someone else. As for geeks, the meaning of destroy is, but to re-build structures…, what ever it may be.
Let’s look at it the political kind of sense, this means that the geeks are drawn to ideas, even radical and anarchist ideologues. Geeks can easily form a mental image of what doesn’t exist, which makes them audacious and entrepreneurs. And so geeks are drawn to cultivate the history and philosophy and economics. It does not matter if a lesson can be learned from the ancients or moderns; indeed, or digging up an old idea and bringing it back to life, as it has a distinct or particular kind of appeal.
Geek’s wallows in the mud, on making information highway public, on shattering old structures, breaking cartels, and busting monopolies of power. Geographically, geeks can live and work anywhere, and geeks have no attachment to any single information source. Just like that FV’ers guy you know of, who works 24/7 around the corner from your home, who erroneously pounding away on the keyboards, just to be notice.
Can the wonks and geek migrate together as a whole?, but it seems there will always be a natural tensions between the two. The geeks think that the wonks are part of the convoluted administration system and, consequently more than likely corrupted by it, growing by numbers, and increasingly so. On the other sides of the coin, the wonks think the geeks are powerless, hopeless, reckless outsiders whose heads are full of $h*tz, useless and fanciful fantasies…, Ouch!
Best out of two, who do you prefer to be…, Wonks or Geeks. Take your pick.
Jerry,
If judges behave responsibly so that when bound in actual controversy to interpret the law they only try to find and not make it, then rule of law can be approximated.
In a democracy, it is the people or their elected representatives that make the rules by which they are governed. It is fine according to Holmes (and I somehow agree with this great jurist) if judges make the law but only interstitially (between interstices) but not when they already make the laws wholesale just like the legislators (in Javellana , the SC did not just make a law, it allowed an entire constitution to take effect and Marcos to rule as a dictator as a result.) When that happens, judges (because they are either unprincipled or cowards or both) become a risk to our representative form of government.
Justices of the Philippine Supreme Court should worry about the awesome power they wield especially because of the Court’s so-called expanded certiorari jurisdiction they think the Court has. If they are not careful, they might one day find themselves arrogating unto themselves the role of Plato’s philosopher-kings and that would mean the twilight of our democracy (or, put antithetically, the dawn of the tyranny of the majority of 15).
Hmmm, This “Koala Bear” man could just make everything Preliminary-and-Doubtful. Only in the Philippines.
http://newsinfo.inquirer.net/breakingnews/nation/view/20100521-271287/Aquino-fears-protests-could-delay-proclamation
One would expect that as a technically proficient ‘hacker’ whose talent fee goes to the billions, koala bear could have at least gotten a better mask…and drew a more insightful ‘schematic diagram’ rendered in 3D rather than a hastily doodled one on coupon bond.
I know Cerge Remonde is dead (RIP), Lorelei Fajardo is retired, and Bunye is god knows where but this is hilarious! Kudos to the mastermind!
Actually this is of utmost concern, suppose they find evidence of fraud which is not Noynoy’s making but is favoring him, will they declare this a failed election? In this scenario and with no VP announced and being on a standoff, who will take charge? Can Arroyo stay in power if no senate president is chosen? Villar might have a strong chance to become a senate president which means all hope is not lost for him. Until he is proclaimed, we have to be vigilant.
The sooner the better for Phil.
the key phrase is “… does not materially affect the results of the elections”.
So Noynoy continuing on to be next Pilipinas president can be like in Iraq where the authenticated high-volume frand still “…does not materially affect the results of the elections”
And…. by sending Noynoy their congratulations, USA and other countries are already conditioning the Filipino citizens to accept Noynoy. [Binay, too????]
“already conditioning the Filipino citizens to accept Noynoy”
We already accept that he won. There is nothing to condition.
Ang kulang nalang yang si Mar Roxas na nakisali pa sa meeting eh hindi naman siya ang VP-elect.
Courts are not infallible. Remember the Jim Crow Laws in the American South? The Law discriminates against Blacks and other colored people. Yet, it was a U.S. law. Laws and decisions are made by men. Men can commit mistakes. However, to put a forefront of the issue of Supreme Court appointment. Is just nonesense. We have more issues, more pressing to be addressed to. Like the coming Flood Seasons. Will there be another Typhoon Ondoy? What are the Noynoy Aquino plans for contingencies regarding this? Nothing, except to put some Political Bufooneries. He will be at the helm. Yet, it looks he cannot even muster any leadership qualities from his thick brain.
Noynoy should appoint Miriam Santiago to the SC as counterweight to Corona. He would turn an oppositionist in the Senate into an ally in the SC.
Miriam Santiago is irate. She is foaming at the mouth. She’s homicidal. She’s suicidal. She’s humiliated, debased, degraded. And not only that, she feels like throwing up to be living my middle years in a country of this nature. She is nauseated. She spits in the face of Chief Justice and his cohorts in the Supreme Court.”
She needs a volcano named after her. She humiliates easily, methinks.
She’s a tortured genius….and like most humans, is pikon.
Abe,
I refer you to De Castro where it says…
(Italicization from original not shown. Emphasis mine.)
Am I right to note that AJ Bersamin again puts exemption, exception or qualification to a constitutional provision with plain meaning [i.e., “nominees” referring to anyone, member (incumbent or not) or non-member of the Court]?
Nowhere does it say that Members specifically Associate Justices are barred to become nominees for a specific Member position of Chief Justice.
Does he forget that a Chief Justice and fourteen Associate Justices compose “The Members of the Supreme Court” and that a Chief Justice (as a Member of the Court) vacancy may be filled from the ranks of Associate Justices as what tradition bears out?
Our chief justices since President Cory time came from within the Court (needless to say that Associate Justices were included in the “list of at least three nominees”).
Somehow AJ Bersamin thinks the same way as lawyer Paguia.
On the other hand, it is illogical to think that Members of the Court (i.e., Chief and Associate Justices) are still eligible to become Members of the Court (specifically Associate Justices). Unless, of course, they retire at an earlier age and the Judicial and Bar Council will again tap their services as to put their name in the short list of nominees. Certainly when this happens, an early-retired Member of the Court will be, to borrow AJ Bersamin’s words, “an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one.”
“The provision clearly refers to an appointee coming into the Supreme Court from the outside”
in what way is that clear? what in the provision makes it CLEAR?
I really didn’t get Paguia’s and Bersamin’s logic. Anyway, if “outsiders” as nominees are needed to become a Member of the Court the following is my illustration:
Let’s apply my explanation above to a vacancy for Associate Justice (This will happen in the near future for there is now a vacancy left by the recently elevated Associate Justice. Whether gloria will take of it or the incoming President, I don’t know.)
a. 15 Members of the SC = 1 Chief Justice + 14 Associate Justices
(Article VIII, Section 4, Paragraph 1, Sentence 1)
b. JBC prepares a list of at least 3 nominees to fill 1 Member vacancy (specifically the Associate Justice) and submits this list to the President. The list consists of nominees that are all “outsiders” because, even though it is not stipulated in the provision, it is absurd, ridiculous, silly, meaningless, incongruous or illogical to include in the list an incumbent Chief Justice and/or incumbent Associate Justice/s. Doing the illogical will not fulfill the requirement of filling the vacancy (self-explanatory).
(Article VIII, Section 9, Paragraph 1, Sentence 1)
c. The Member (specifically the Associate Justice) is appointed by the President
(Article VIII, Section 9, Paragraph 1, Sentence 1)
d. Is the presidential appointment Valid or Invalid?
It is VALID…insofar as the cited Constitutional provisions are concerned.
I only know as far back as 2006 when recently retired CJ Reynato Puno was appointed from this “list of at least 3 nominees” prepared by the JBC then…
Candidates were Associate Justices (all are incumbent in 2006):
1. Reynato S. Puno
2. Leonardo A. Quisumbing
3. Consuelo Ynares-Santiago
4. Angelina Sandoval-Gutierrez
5. Antonio T. Carpio
and Senator:
6. Miriam Defensor-Santiago
Applying lawyer Alan Paguia’s reasoning (which is quite similar to AJ Lucas Bersamin who penned the “famous” De Castro) will invalidate likewise Reynato Puno’s appointment on Immaculate Conception Day 2006.
Was Puno’s rise to the Chief Justice throne in 2006 an “immaculate conception?”
Since the role of JBC was started there were 7 Associate Justices who were elevated to Chief Justice position namely:
Cory
17. Pedro Yap (April 18 – July 1, 1988)
18. Marcelo Fernan (July 1, 1988 – Dec 6, 1991)
19. Andres Narvasa (Dec 8, 1991 – Nov 30, 1998)
Erap
20. Hilario Davide, Jr. (Nov 30, 1998 – Dec 20, 2005)
gloria
21. Artemio Panganiban (Dec 20, 2005 – Dec 7, 2006)
22. Reynato Puno (Dec 8, 2006 – May 17, 2010)
23. Renato Corona (May 17, 2010 – present)
It is needless to say that the preceding names were in the “short list” before their appointments.
Thus, an incumbent Member of the Court (an Associate Justice) can be appointed to be a Member of the Court (a Chief Justice).
However, an incumbent Member of the Court (a Chief Justice or an Associate Justice) cannot be appointed to be a Member of the Court (an Associate Justice).
Actually, upon the retirement of Chief Justice Puno on 17 May 2010, two related events transpired.
First, the office of the Chief Justice became vacant; and
Second, the composition of the Supreme Court was reduced from 15 to 14 members.
Thus, Arroyo’s appointment of Associate Justice Corona as Chief Justice earlier merely resolved the vacancy in the office of Chief Justice; and, until her term expires, she still possesses the power to appoint a NEW Associate Justice to fill the vacancy brought about by Associate Justice Corona’s assumption as Chief Justice.
This means that the JBC needs to submit to the President another list of nominees for Associate Justice.
yep, technically…
Please take note also that “gloria’s Crown” is ex officio chair of the JBC…until 2018!
Doming and Baycas,
Like Allan Paguia, Senator Enrile has also seen the distinction between filling a vacancy and appointing Corona as CJ.
Art. VIII, Sec.4 (1), on filling of vacancy in the SC, may not really be applicable to the case because so far, even at this time, no vacancy has been filled as yet (and therefore per the De Castro ruling, GMA is still in danger of disobeying the Constitution). Note that the composition of the Court numerically remains the same (14 members) even after the appointment of Corona as CJ. In a sense, Corona was simply “promoted” as CJ but there was actually no vacancy filled.
If the appointment of Corona was a promotion, then Enrile is right that there was no need for a JBC intervention. Unfortunately, the majority in De Castro decided to conveniently skirt this issue by claiming that the “question is not squarely before us.”
There is a better explanation why the majority reserved “a deeper analysis (of the question) if and when circumstances permit”: If JBC intervention is not necessary to promote Corona, then the very excuse given that the JBC intervention as “insulating process” removes “judiciary” appointments from the scope of “midnight” appointments collapses upon its own weight.
Abe, thanks a lot. What an “orbiter” of an SC we got.
You’re right about the JBC intervention.
Re: the appointment of AJ Corona to the CJ post and still leaving a vacancy in the SC:
The JBC, conscientious of the president’s obligation, should at once prepare its “short list” of nominees. gloria should make the appointment, as she doesn’t want to be remiss in her duty…
My fearless forecast… that CJ Corona will be Pinas Supreme Court CJ during the next 6 years, and a few more after that.
just to continue the post above, its not very clear at all who is wrong, or right based on some “moral” argument.
What IS clear, is that people DO NOT LIKE GMA. if she does something, especially now when her political opponents believe her term is over, that something WILL be criticized, even IF she is allowed to do it.
It seems to me: that is ALL there is to this SC drama thing. GMA’s opponents (of which there are many) want her to just stop working, and leave everything to the next admin.
if thats ALL there is, thats pretty sad. We can, should do better than that.
this has nothing to do with whether people like or do not like PGMA.
Court of Justice and judges in a democratic system of government, and especially the Supreme Court including the Chief Justice, is supposed to be blindfolded and blind, to be able to dispense with justice cleanly, fairly and equally to all citizens of the land without bias or favor. If any judge, or justice, or chief justice, cannot render a fair judgement due to personal bias, then that judge, or justice, or chief justice, do not have the moral high ground to accept the position for reason of delicadeza and ethical propriety.
In all undertakings including such as court decisions, human nature played a great part. And one of the great porperties encompassing the traits of human nature is its propensity to accept and bestow gratitude.
Chief Justice Renato Corona is not exempted from this. He has the obligation to be grateful to PGMA because he and his family were fed with the largesse he got from being PGMA’s Chief of Staff and other positions he got under PGMA. Therefore, it would be very hard for the Chief Justice to be “blindfolded and be blind”, therefore, if he has delicadeza and sense of propriety, he should have declined the midnight appointment offered to him.
i agree with what you said. but the system, that everyone followed, says that the SC-CJ vacancy ought to be filled.
the question is who fills it. this question has been answered. the sitting president can do it.
simple lang.
your issue is whether the sitting president OUGHT to do it.
thats a different issue. thats where “delicadeza” comes in. this “OUGHT” question is complex, and requires a moral argument. (see the thread with baycas).
oh, really? so it’s not about the midnight appointment?
the question is who fills it, you said. the question has been answered. the sitting president can do it, she did it already. that simple.
so then, what’s all the brouhaha all about?
Well, you read it wrong. It’s not about some moral argument. It is a legal argument. Whom wlll you believe, the interpreter or the writer of the constitution?
“Whom wlll you believe, the interpreter or the writer of the constitution?”
the writer of the constitution said that the SC is the interpreter of the constitution. there is no legal question. its legal precedent until the SC changes its mind.
we all have to accept this, so we can move on.
But if they are not interpreting it correctly, as the writers of the constitution pointed out, they are slowly undermining their credibility and very existence. Which is what they should have avoided.
Kung pinakinggan nila yung nagsulat at di sila nabuyo sa impluwensya or kakayahan nilang mag-interpret, wala sanang problema.
Some may accept it now, but it is one more fodder to the charges being labeled to most of the justices.
We cannot always move on and sweep the dirt under the rug. Sometimes, we have to do the RIGHT thing.
GabbyD,
Ms. Arroyo rests in the bed she made. See my prior comment about trust. It is my sense that many, many Filipinos do not have a grasp of the notion of being trustworthy. It takes discipline and hard work and a desire to walk the high road and comprehension that it only takes one untrustworthy act to destroy how one is perceived by others. I start any business deal or negotiation here not trusting who I am dealing with. Now THAT is what is sorry.
Joe
oh no doubt joe.
i’m not defending gma. people have a reason not to trust her.
i’m just trying to understand this issue. from the responses, its really about GMA. people dont like her/trust her.
A corollary is this. Should congress write a new that will ensure that this does not happen again? What should be the provisions of that law-that-does-not-exist-yet?
This is a non-trivial question, and the Cojuangcos know it. Soon enough, a president (Noynoy this time) will appoint Supreme Court justices. As bert expresses very clearly, Noynoy should have little say in the appointment of these future appointments to the Supreme Court because of delicadeza. Reason: Hacienda Luisita. Pilipinas Supreme Court sooner or later has to face up to Hacienda Luisita.
Maybe a solution is for a constitutionally-created separate body is to create a list of candidates, and the president can only select from the list.
“Maybe a solution is for a constitutionally-created separate body is to create a list of candidates, and the president can only select from the list.”
Isn’t that the JBC?
“We cannot always move on and sweep the dirt under the rug.”-Reuben
Oh, Reuben, the “Move On” crowd have actually done that those past years! And look at all those dirt accumulated under the rug.
“Sometimes, we have to do the RIGHT thing.”-Reuben
The “Surge-the-Gates” crowd tried! We failed. Oh, Reuben, not actually failed. The results of the elections tell us we aren’t actually failures.
there is a simple fix to this:
change the relevant law to say:
” no SC justice can resign 3 months before a change in the presidency”
simple lang.
o kaya, to truly limit the beholdenness of the justice:
fix term lengths for the justices, for as long as say, 10 years.
They can make the Supreme court Justice’s resignation-date part of the JBC selection process. The JBC should pick candidates with sufficient delicadeza that they understand to select their retirement or resignation date so that their departure from the Supreme court does not create a tug-of-war between an incoming and a departing president.
As cvj had said previously, Pilipinas should mature to where laws are not needed to encode delicadeza.