In Constitutional Law litigation, there’s such a thing as the dynamics of “political settlement.” This happens in most cases when any of the three branches of the government exercises what is called statesmanship, or at times, just simple pragmatism, to avert a constitutional crisis.
During the 2000 US presidential elections, it was however Al Gore, a presidential candidate, who emerged as the statesman. He won the popular vote but lost the electoral vote of Florida when the US Supreme Court blocked the Florida recount and with it the required number of “electors” he needed to clinch the presidency. But Gore ended the ensuing constitutional crisis when he conceded the election despite his public disagreement with the partisan decision of the Court in favor of George W. Bush. In the end, Bush had to wage two wars to legitimate his controversial ascension to the US presidency.
There is a looming constitutional crisis in the Philippines of similar consequence because of a threatened “midnight appointment” involving the Chief Justice of the highest court of the land. For President Arroyo, a corresponding degree of statesmanship would have required her to just be happy with her government serving as no more than a “caretaker” during the last 45 days of her presidency to allow for the smooth transfer of power. For the Philippine Supreme Court, there was an ample opportunity (in the controversial De Castro case promulgated last week regarding the appointment in the offing) to have opted for the pragmatic stand of not doing anything with the various petitions before it without violating any law or the Constitution until the incumbent president’s term expires, or better yet of simply dismissing the cases as suggested by the better opinion of Justice Nachura in the same case for “not (raising) an actual case or controversy ripe for judicial determination.”
Unfortunately, Arroyo seems to have taken an unconventional, nay, (theretofore) forbidden, route if not out of spite then because of self-protection; on the other hand, the all Arroyo-appointee majority in De Castro has chosen to be political and partisan by ignoring established precedents and the plain language of the Constitution as if ordinary mortals are too dumb to divine the legal gobbledygook it employed to skirt around the constitutional ban against the odious practice of midnight appointments.
Recall that when President Arroyo first made public her desire to choose a chief justice by way of midnight appointment, the judicial precedent as had been enunciated by the Supreme Court in the Aytona case considers such an appointment to be an abuse of the prerogatives of the President, the Constitution, adopting the Aytona decision, expressly bans the practice in unmistakable terms and the law of the land for twelve years as affirmed in the Court’s ruling in Valenzuela has been to the effect that the constitutional ban covers members of the judiciary and a violation thereof could be “considered an election offense.”
One is therefore hard put to find any cogently compelling reason for Arroyo to even conceive of defying the ban (and for the majority in De Castro to join the fray by unceremoniously allowing Arroyo the slack she needs) other than as Manolo Quezon colorfully puts it “to bring the candidates down to her level” (of illegitimacy) and force them “to walk a tightrope suspended over a tar pit” with the perceived sinister expectation that the new president would, at the very least, start off as a diminished chief executive.
Noynoy has apparently seen the early warning signs and although only a presidential candidate himself, he has exhibited a nuanced cageyness of a potential president which he directed to the incumbent president and indirectly to her appointees in the Supreme Court by telling both not to cross the political boundaries to protect the legitimacy of the office of the president, the fragile judicial system and the constitutional values we have tried to piece together since the Marcos years.
Months before the promulgation of the De Castro decision, Noynoy, as if acting to issue a threat of a presidential veto of a proposed law repugnant to the Constitution, had reportedly indicated that if elected president, 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.”
Regrettably, like the “Supreme Cowards,” the sticky tag the late Vice President Salvador Laurel had put on the high court in the infamous Javellana case that validated the Marcos dictatorship, the majority in De Castro has dared to put at stake its own legitimacy – well, arguably for the long term, before the “court of history.” Yet recall that, unluckily for the fawning Marcos-era justices, Cory Aquino did not wait for corrective measures to be carried out by the verdict of history alone. She had in fact an easier task turning forthwith the current tide of illegitimacy: she reconstituted the Marcos Court to start afresh.
Now, 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 has an unpredictable mind of its own. Moreover, to be legitimate, People Power is resorted to always as a power of last resort.
Where would these leave President Noynoy now?
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.
Yes, through patience and persistence the job can get done. Yes, we also can.
What are you thinking?
Popularity: 1% [?]
Noynoy has to win convincingly so as not to allow a PET (and we know whose pet they are) to be convened.
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Noynoy’s time to be a statesman (in relation to this blog post) will definitely come if he wins. However, it’s still in the future tense.
Let’s talk of the past…
CJ Puno could have resigned before the “midnight appointment ban.”
Now, the present…
gloria may elect to resign. With “unpredictable mind of its own,” she may do just that.
But, can she???
Prof. Abe
What do you think po of the scenario where Arroyo’s midnight CJ will himself be charged with violating the Constitution?
We really need not come to it if only the CJ to be appointed by GMA would turn down the appointment out of delicadeza. The next president would probably consider him or her as well deserving of the high position in such an event.
Abe: In my opinion, the scenario you draw with the delicadeza-delicadeza drama is far-fetched. My reasoning is simple — the list of nominees from the JBC to GMA should only be those lawyers who, when requested, will say “yes” to an appointment to the Supreme Court.
If one such nominee on the JBC list were to then say “no” to GMA, that person was playing games not worthy of being a supreme court justice. NoyNoy may like these petty games, the next president should not.
It will be an exercise in dictatorship if the next Pilipinas President were to send troops or the police to remove a GMA-appointed supreme court justice to put in his own choice.
Noynoy will have to live with the SC decision if it remains after all legal challenges have been defeated. Once elected president he will be duty-bound to enforce and uphold the rule of law. He does not have any other option
Hear, hear…
If Noynoy choose to live with the Supreme Court decision then that would be quite a hard pill to swallow since he would be reneging from his words. A president has to have credibility for that president to be able to govern effectively, and flipflopping is not the best way to have credibility. We need a strong president, a good, honest, and very strong president, to instill discipline in the implementation of good governance that the people deserves. Only that way will we have a chinaman’s chance of getting out of this rut we are in.
Magnanimity in victory is good, but the old system of wheeling ang dealing is a proven system that kept us in the rut all these times.
That is quite a predicament for Noynoy — “to flip flop or not to flip flop” reneging on his word.
The issue of “flip flop” could have been avoided if NoyNoy had a less radical view of Constitutional checks and balances. I suppose that Abe Margallo (maybe also MLQ3) would disagree, but for me, I sincerely believe that the writers of the 1987 Pilipinas Constitution do not want a Malacanang resident to be able to unilaterally decide on the contents and interpretation of Pilipinas Constitution. They would not want it for Marcos, no one would want it for GMA, I do not see why the country would want the next president to be able to unilaterally decide on Constitution interpretation or to disregard recent decisions of Pilipinas Supreme Court.
I hope there is another presidential debate. I hope that Noynoy also gets asked what are other instances where Noynoy believes a president can disregard decisions of Pilipinas Supreme court, like maybe the temporary restraining order the Supreme Court issued on June 14, 2006 preventing the Presidential Agrarian Reform Council (PARC) from distributing the 6,453-hectares Hacienda Luisita in Tarlac to farm workers.
Who knows, maybe a constitutional crisis might (emphasis on ‘might’) be a good alternative to the status quo that get us nowhere but down the drain. This might lead us to a cleansing process that will bring us the kind of government we are yearning to have that will get us out of this rut. Let the military choose whether to follow the popularly elected president, or follow a Supreme Court beholden to the wishes of an unpopular appointing powers(Hmmn, now I am hearing again the shaking of knees at the mention of an impending trouble, hehehe). The people will know what to do in times of crisis, the Filipino people always knows what to do. The Filipino nation can’t afford to wallow in the gutter forever because of bad governance. We will have to find our way to a good future for our country and for our people.
MB, Ding and Bert,
I have begun contemplating my position on this matter in my reply to UP n and Sillimanian in the other thread. You may check it out here.
Abe,
Thanks for asking for our thoughts. I believe the Judiciary is crucially important to the development of a sound and productive Philippines. It needs somehow to be restructured for independence, fairness and efficiency, and more generously budgeted. I think whoever the next president might be, recasting the Judiciary is perhaps the number one priority. It is not simply a matter of a politically bound supreme court.
Joe
Joe Am,
Great insight!
But I think I’ve talked about it too in a number of occasions such as in this post:
__________
Laws . . . are only as good as the men implementing or applying them. Chief Justice Roberto Concepcion for instance was quite certain that the Marcos dictatorship should have been short-lived had his brethren in the Supreme Court been unanimous against Marcos in the martial law and cognate cases the way the justices of the U.S. Supreme Court were unanimous against Nixon in the Watergate case.
One of the rationales of this truism could be found in Justice Holmes’ conception of the law. According to Holmes, law is a prediction of how a judge will behave in a case before him. The bad guy, Holmes believed, cares very little about the lofty principles of law or the “vaguer sanctions of conscience” but he does care about being made to account for his infractions. Thus, if the bad guy thinks he could get away with murder, he will proceed to commit it. To Holmes, a “man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.”
So, we wonder: Why is there a continuing corruption in high office? Why did officials charged with the administration of election laws try to manipulate the vote count in Mindanao in the last presidential election? Why was Commission on Election Chairman Benjamin Abalos in the middle of a grossly overpriced NBN-ZTE project, a transaction that had nothing to do with his official functions? Why did dynastic warlords commit gruesome crimes against innocent people in broad daylight? And what makes President Arroyo so audacious today to tread a Marcosian route to stretch her hold to power?
In the Philippines, the powerful, the wellborn, the privileged will continue to do what they do whether it is receiving or offering bribes, cheating in elections, committing heinous crimes, or circumventing constitutional requirements because of the wherewithal that they have to be self-assured in prophesying what the judge or arbiter will do in fact.
__________
I guess GMA has prophesied correctly what her appointed justices would do in fact in De Castro.
In the Philippines, the powerful, the wellborn, the privileged will continue to do what they do whether it is receiving or offering bribes, cheating in elections, committing heinous crimes, or circumventing constitutional requirements
Childrn born wellto-do in Pilipnas are the scourge of Pilipins. Especially children born well-to-do into poltcial famililies Pilipinas, they all eventually do damage to the country. Kris and Ballsy Aquino, the Ampatuan mayor now in jail, NoyNoy Aquino, Mikey Arroyo, Iren and BongBong Marcos, Manuel Roxas included. Yes? No? Not always? Some are “yes” and some are “no”, maybe?
As a general rule, there are exceptions to every generalization.
The only generalization rule I know of that has no known exception is this — all human beings that were born 130 years ago or earlier are dead.
Manong Abe,
Here is my take on this. Please allow me to express my attitude towards our Filipino people and, our ways to overcome our present conditions. In Philippines today, Pilipino entrepreneurs are deeply inhibited in their innovations by high taxes, regulations, and mandated benefits. This produces fewer attempts to improve our Nation than there would otherwise be. To the extreme, some markets are hobbled to the point of near inaction, such as the education market (this should be the most vibrant part of our culture, our educational systems) and, others are less vigorous than they would otherwise be.
The Philippines Judiciary Systems, needs to reenact such a law, to mandate a better ways to grow, as our Pilipino People need to grow. As a great Nation. We were following Japan, once before. What the Hell happened…[...]
So, who ever gets elected to the Malacanang seat, what He needs to do is not the overthrow of private property but more freedom for cultural entrepreneurship, and more individual initiative to do more than complain that the Philippines are not conforming to your own values. The next time a pilipino complains about what our market is doing to the culture, ask that pilipino what he or she has done to enter the market and make a difference. And ask what that pilipino has done to make Pilipinas a freer for those who seek and challenge themselves to make Pinas a more wonderful place to live in.
Thanks for allowing me to express my thoughts.
YES, GLORIA ARRYO CAN! NO, YOU CANNOT STOP HER!