Abandoning the spirit of its own existing jurisprudence, and voting 9-1-3, the Arroyo Court ruled yesterday that Pres. Arroyo could appoint the next Chief Justice, notwithstanding the two-month appointment ban imposed by Article VII of the 1987 Constitution.
The Court held that the appointment ban under Article VII of the Constitution that prevented the President or Acting President from making appointments “two months immediately before the next presidential elections” to avoid prejudicing public service and endangering public safety did not apply to the judiciary.
It added that the judiciary is covered under Article VIII, which does not mention any appointment ban, and which specifically under Section 9, gives the President “the authority to appoint, within 90 days, any member of the Judiciary based on the list which will be submitted by the Judicial and Bar Council.”
Please see my previous entry in this blog (“Midnight Appointments in the Judiciary”) as a backgrounder.
The fate of Philippine democracy hangs in the balance.
The last bulwark of the rule of law has been infected by the political influence of the power-conscious Palace, aggravated by the lack of wisdom of the Arroyo Court itself, thus, destroying whatever remaining semblance of independence that the judiciary now precariously enjoys.
I anticipate very vehement, strong, aggressive and angry reactions from all sectors of Philippine society starting this week and even until after the inauguration of the next Philippine president in June this year.
Whoever would be appointed by Pres. Arroyo during the appointment ban period (until May this year) would surely be exposed to impeachment proceedings before the next Congress which is expected to be controlled by the Opposition as a sign of protest of the Filipinos against the dreadful and corrupt 9-yeard Arroyo rule.
Read below a news item containing the crux of the press statement of the spokesman of the Court on the abovementioned issue.
I am so sorry for and downhearted by the present sins and shortsightedness of the Arroyo Court.
Pres. Arroyo has extended to her Court the destructive bacteria of illegitimacy that has tainted her own rule for the past nine years.
May God save the Philippines!
I will digest the Court’s decision on the matter as soon as it is publicly issued.
Arroyo can appoint next Chief Justice—SC
By Tetch Torres
First Posted 11:12:00 03/17/2010
MANILA, Philippines – (UPDATE 2) Voting 9-1-3, the Supreme Court ruled that President Gloria Macapagal-Arroyo could appoint the next Chief Justice, a spokesman for the high tribunal said Wednesday.
Lawyer Midas Marquez made the announcement in a press conference at past 11 a.m. at the Supreme Court division hearing room in Manila.
Quoting the decision penned by Associate Justice Lucas Bersamin, Marquez said vacancies in the Supreme Court – the 14 Associate Justices and the Chief Justice – were not covered by the
appointment ban under Section 15 Article VII of the 1987 Constitution.
He said that the high court asked the Judicial and Bar Council (JBC) to submit a shortlist of nominees to President Gloria Macapagal-Arroyo on or before Chief Justice Reynato Puno’s retirement on May 17.
Aside from Bersamin, the justices who voted for allowing Arroyo to name the next Chief were: Associate Justices Jose Perez, Martin Villarama, Roberto Abad, Arturo Brion, Diosdado Peralta, Mariano del Castillo, Teresita Leonardo de Castro, and Jose Mendoza.
But Brion, Peralta, Del Castillo, and Mendoza disagreed with Bersamin and the four others that the entire Judiciary was exempted from the appointment ban and clarified that only appointments to the Supreme Court were exempted.
Associate Justice Conchita Carpio-Morales was the lone dissenter.
Those who inhibited themselves from voting were Chief Justice Puno, and Associate Justices Renato Corona and Antonio Carpio.
Associate Justices Antonio Eduardo Nachura and Presbitero Velasco voted to dismiss all petitions filed for and against the appointment issue, citing that these are “premature.”
Marquez said the appointment ban under Article VII of the Constitution that prevented the President or Acting President from making appointments “two months immediately before the next presidential elections” to avoid prejudicing public service and endangering public safety did not apply to the judiciary.
The judiciary is covered under Article VIII, which does not mention any appointment ban, and which specifically under Section 9, gives the President “the authority to appoint, within 90 days, any member of the Judiciary based on the list which will be submitted by the Judicial and Bar Council,” said Marquez.
The JBC is in the process of screening the nominees for the Chief Justice post.
Marquez said the JBC has yet to determine if a public interview would be conducted and what to do with those who accepted the nomination with conditions.
Carpio and Morales said, in separate letters to the JBC that they would accept the nominations to the Chief Justice post only if the next president would make the appointment.
Other nominees are Associate Justices Corona, De Castro, and Brion; and Sandiganbayan Associate Justice Edilberto Sandoval.
With a report from Donna Pazzibugan, Inquirer
Court News Flash March 2010
SC: “Midnight Appointments” Ban
in the Constitution Does not Extend to Judiciary
March 17, 2010
Jay B. Rempillo
The Supreme Court today ruled that the prohibition under Article VII, Section 15 of the Constitution against presidential appointments immediately before the next presidential elections and up to the end of the term of the President does not apply to vacancies in the Supreme Court.
In a 56-page decision penned by Justice Lucas P. Bersamin, the Court thus directed the Judicial and Bar Council (JBC) to resume its proceedings for the nomination of candidates to fill the pending vacancy created by Chief Justice Reynato S. Puno’s compulsory retirement on May 17. The Court also directed the JBC to prepare the short list of nominees for the position of Chief Justice and submit the same to President Arroyo on or before May 17, 2010. Likewise, it directed the JBC to continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and submit to the President the short list of nominees corresponding thereto in accordance with its decision in the cases at bar.
Concurring with Justice Bersamin, who also opined that the exemption covers the entire Judiciary are Justices Teresita J. Leonardo-De Castro, Martin S. Villarama, Jr., and Jose Perez. Justice Roberto A. Abad wrote a separate concurring opinion.
Justice Arturo D. Brion also concurred in that “appointments to the Supreme Court are not subject to the election ban under Section 15, Article VII,” but wrote a separate opinion that he “disagrees with the conclusion that the incumbent President’s authority to appoint extends to the whole Judiciary.” He was joined by Justices Diosdado M. Peralta, Mariano C. Del Castillo, and Jose C. Mendoza.
Justice Conchita Carpio Morales dissented, while Justice Antonio Eduardo B. Nachura, who was joined in his separate opinion by Justice Presbitero J. Velasco, Jr., voted to dismiss all petitions for being premature. Justice Nachura did not any more discuss the issue on whether or not the incumbent President can appoint the successor of Chief Justice Puno.
Chief Justice Reynato S. Puno, Senior Justice Antonio T. Carpio, and Justice Renato C. Corona did not take part.
The Court said that had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of members of the Supreme Court, they could have explicitly done so.
Art. VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President, while the presidential power of appointment is dealt with in Sections 14, 15, and 16 of the Article, the Court noted. “In fact, in their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4(1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against midnight appointments under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to, because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the lower courts,” ruled the Court. With regard to the Chief Justice, the Court said the appointment as such is never in an acting capacity and that to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution.
“The lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President,” the Court ruled.
The Court said that “Although Valenzuela came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail.
“The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the President’s power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado,” the Court said.
The Court also held that having the new President, instead of the current incumbent President, cannot ensure judicial independence, because the appointee can also become behold to the appointing authority. “In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010,” it added.
The Court underscored that under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of the vacancy. The JBC, it added, has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment.
The Court also distinguished the duty of the JBC to submit a list of nominees before the start of the President’s mandatory 90-day period to appoint as ministerial, while its selection of the candidates whose names will be in the list to be submitted to the President as discretionary on the JBC’s part.
“Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ of mandamus against the JBC. The actions for that purpose are premature, because it is clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees to the President to fill the vacancy created by the compulsory retirement of Chief Justice Puno,” the Court said.
The Court also held that the petitioners have each demonstrated adequate interest in the outcome of the controversy as to vest them with the requisite locus standi, noting that the issues “are of transcendental importance to the people as a whole, and to the petitioners in particular.”
Likewise, the Court held that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of who of them will succeed Chief Justice Puno as the next Chief Justice.
“The ripeness of the controversy for judicial determination may not be doubted. The challenges to the authority of the JBC to open the process of nomination and to continue the process until the submission of the list of….we need not await the occurrence of the vacancy by May 17, 2010 in order to have the principal issue be ripe for judicial determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest but seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently adjudicate the issues,” said the Court.
Justice Abad dismissed as “myth” the proposition that a Chief Justice will always be beholden to the President who appoints him. He noted that former President Joseph Estrada appointed Chief Justice Hilario G. Davide, Jr., who had presided over Estrada’s impeachment and administered the oath to President Arroyo at the heels of EDSA II while President Estrada still sat in Malacañang. Chief Justices Puno and Artemio V. Panganiban voted against positions taken by the administration of President Arroyo who appointed them both to their position. “These Chief Justices like those before them were first choices of the JBC before they were those of the Presidents concerned,” he said.
Justice Morales, among others, held that “the establishment of the JBC is not sufficient to curtail the evils of midnight appointments in the Judiciary” and that “the 90-day period to fill a vacancy in the Supreme Court is suspended during the ban on midnight appointment.” She stressed that the Court can function effectively during the midnight appointments ban without an appointed Chief Justice. “To begin with, judicial power is vested in one Supreme Court and not in its individual members, much less in the Chief Justice alone. Notably, after Chief Justice Puno retires, the Court will have 14 members left, which is more than sufficient to constitute a quorum,” she said.
For his part, Nachura held that all petitions “utterly failed to present a justiciable controversy” since “several contingent event are still about to unfold.” He stressed that “The Court must not be unduly burdened with petitions raising abstract, hypothetical, or contingent questions.”
(GR No. 191002, De Castro v. JBC; GR No. 191032, Soriano v. JBC; GR No. 191057, PHILCONSA v. JBC; AM No. 10-2-5-SC, In Re Applicability of Sec. 15, Art. VII of the Constitution to Appointments to the Judiciary; GR No. 191149, Peralta v. JBC; GR No. 191342, Tolentino, Jr. v. JBC; GR No. 191420, Philippine Bar Association, Inc. v. JBC; March 17, 2010)
Protests vs SC mount
Protesters warned: Don’t cross the limits
By Dona Pazzibugan, Jeannette Andrade
Philippine Daily Inquirer
First Posted 01:36:00 03/20/2010
MANILA, Philippines—Two rotten eggs with the words, “SC no balls,” and the faces of nine justices going up in a bonfire.
This was the most extreme of the protests that rained on the Supreme Court on Friday as outraged militants, lawyers, professionals and politicians denounced a ruling that exempted the high court from a constitutional ban against midnight appointments by President Gloria Macapagal-Arroyo.
“I’m totally outraged. The Supreme Court is the bulwark of democracy,” said economics professor and Inquirer columnist Solita Monsod as she and Sen. Francis Pangilinan led less than a hundred protesters in a noontime rally outside the Supreme Court offices in Manila Friday.
Holding a bullhorn, Monsod said: “Supreme Court, can you listen to us? Defend the Constitution instead of interpreting it.”
She singled out for praise the only Supreme Court justice who dissented from the majority decision. “Mabuhay si Conchita Carpio-Morales,” Monsod said.
The Kabataan party-list group burned a tarpaulin with the images of the nine Supreme Court justices who interpreted the constitutional provision against midnight appointments to allow President Arroyo to appoint Chief Justice Reynato Puno’s successor six weeks before she steps down from office.
Midas Marquez, the Supreme Court spokesperson and court administrator, said the high court magistrates were used to such “pressures” but warned protesters against crossing the limits of their right to free speech and assembly.
“In big cases like this emotions run high but the Court has to decide with reason. We cannot be swayed by emotion. We have to be guided by the provisions of the Constitution. There will be those who will disagree but the Court is the ultimate interpreter of the Constitution,” Marquez said.
He noted that the rally was sparsely attended.
“It seems to me many of them are the same people who have given their views even before the petitions were filed. They stand firm on their views. I don’t blame them. That’s their right.
That’s a valid exercise of their constitutional right,” Marquez said.
“They can do that for as long as they want. I hope they don’t resort to violence,” he said.
He said the presidential candidates who said they were against the court decision will have to ultimately follow the high court’s final ruling.
Should the incoming president reject Ms Arroyo’s appointment of the next Chief Justice, Marquez said: “That’s their own look-out. I don’t know how that can happen especially if the appointment was done according to constitutional provisions.”
Presidential candidate Jamby Madrigal and senatorial candidates Riza Hontiveros-Baraquel and Adel Tamano, joined some 80 members of the Akbayan and the Transparency and Accountability Network (TAN) in a march to the Supreme Court from the corner of T. M. Kalaw and Taft Ave.
Akbayan said the Supreme Court decision had jeopardized democracy.
Democracy is endangered when checks and balances are not enforced and one individual is allowed “to abrogate unto himself the powers of government,” said lawyer Arlene Bag-ao.
“This is not only a very bad judicial decision but a very bad precedent. We cannot afford a Supreme Court which will act as the President’s rubber stamp,” she said.
To manifest their outrage, the militants burned photographs of Supreme Court justices Lucas Bersamin, Teresita de Castro, Arturo Brion, Diosdado Peralta, Mariano del Castillo, Roberto Abad, Martin Villarama Jr, Jose Perez, and Jose Mendoza, the nine who voted to allow the appointment, along with an effigy of Ms Arroyo.
They also lit black candles and incense, intended to drive away the “bad spirits” that they said had possessed the Supreme Court.
Other prominent personalities at the rally were Teresita Deles, a former presidential peace adviser to Ms Arroyo, Bayan Muna party-list Rep. Teodoro Casiño, Bayan secretary general Renato Reyes and Vince Lazatin of TAN.
Monsod’s husband Christian Monsod, a member of the Constitutional Commission that drafted the 1987 Constitution, said the Charter was clear that the prohibition against midnight appointments extends to appointments in both the executive and the judiciary.
Section 15, Article VII prohibits the President from making appointments two months before the May 10 elections and until the end of her term on June 30. Puno will retire on May 17, or a week after the elections.
Nine justices however said the provision applies only to appointments in the executive department. They cited another constitutional provision, Section 4 and 9 of Article VIII, that requires the President to fill up the vacancies in the judiciary within 90 days.
Of the nine justices who voted that Ms Arroyo can appoint the next Chief Justice, Bersamin, De Castro, Abad, Villarama and Perez also ruled that Ms Arroyo can appoint all vacancies in the judiciary until June 30; while Brion, Peralta, Del Castillo and Mendoza ruled to exempt only the Supreme Court from the midnight appointments ban.
Associate Justices Antonio Nachura and Presbitero Velasco Jr. said the case was not yet ripe for decision.
Three inhibited themselves—Puno and the two most senior justices and main contenders for the post, Antonio Carpio and Renato Corona.
The Supreme Court’s way of seeing
By Randy David
Philippine Daily Inquirer
First Posted 22:59:00 03/19/2010
THE Supreme Court has ruled that President Macapagal-Arroyo can exercise the power to appoint any member of the judiciary—if the occasion arises, even up to the very last day of her presidency. The constitutional ban on presidential midnight appointments does not apply to appointments to the judiciary.
I carefully read the majority opinion penned by Justice Lucas Bersamin and concurred in by eight other justices. I also read Justice Conchita Carpio-Morales’ cogent dissent. Finally, I revisited the two articles on the Executive and the Judiciary in the 1987 Constitution, and then went back to the Bersamin ponencia. The question at hand is straightforward: Can President Macapagal-Arroyo appoint the successor to Chief Justice Reynato Puno who retires on May 17, 2010, considering that this date already falls within the period covered by the constitutional ban on midnight appointments?
Sec. 15, Article VII (Executive Department) states: “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.” I thought the meaning of this provision was clear enough—the incumbent president’s power of appointment is terminated two months before the next presidential election. Only one type of appointment is permitted during the ban—temporary appointments to executive positions when continued vacancies in such positions will prejudice public service.
But that is not how the Supreme Court sees it. Approaching the issue from the outside as it were, the Court argues that the ban against presidential midnight appointments is not total. “Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so.” This way of arguing works both ways. We can use the same argument and tell the Court: Had the framers intended to exclude appointments to the Supreme Court from the scope of the ban, they could have explicitly done so in Sec. 15 itself. As it stands, this provision exempts only temporary appointments to executive positions. No mention of judicial appointments.
Note that Sec. 15 is part of a series of provisions that define and qualify the appointing power of the president. Sec. 13 prohibits the president from appointing her relatives to certain offices like the Constitutional Commissions, Office of the Ombudsman, etc. Sec. 14 states that appointments made by an acting president remain effective unless revoked by the elected president within ninety days after assuming or reassuming office. Sec. 16, on the other hand, states that some presidential appointments such as those for heads of departments and ambassadors are subject to confirmation by the Commission on Appointments. The Court casts a blind eye on these manifest limitations on the power to appoint. It notices instead that these sections refer only to appointments to executive positions.
The high court anchors the defense of its position on Sec. 4(1) of Article VIII (Judicial Department): “The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices…. Any vacancy shall be filled within ninety days from the occurrence thereof.”
I thought this provision was also sufficiently clear. The last sentence specifies the time frame (90 days) within which a vacancy must be filled. Who has the power and duty to fill the vacancy? Sec. 9 provides the answer: “The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.” Clearly, this is a shared power. The president cannot unilaterally issue appointments to the judiciary.
But, for the purposes of the discussion, what is perhaps more crucial is whether the president who intends to fill up the vacancy within 90 days still has the power to do so. Sec. 15 of Article VII precisely provides that a president who is approaching the end of her term loses the power to make appointments two months before the next presidential election. If the framers intended to exclude the appointment of judges and justices from this comprehensive ban, they could have explicitly stated the exception either in Article VII or Article VIII. There is no such exception in the 1987 Constitution.
It is not difficult to appreciate the rationale behind the ban on presidential appointments on the eve of the election of a new president. An outgoing president is expected to assume basically a caretaker role while preparing for a smooth handover of the government to her successor. This end-stage is no longer about taking something for oneself or one’s party; it is about keeping the ship of state steady as it awaits the arrival of the new captain.
But let us leave aside this controversial decision of the Supreme Court and imagine for a moment what the situation could be like come May 17. It is one week after the presidential election, and a new president (hopefully!) has been proclaimed. Ms Arroyo congratulates the incoming president and pledges a smooth transition. Then she turns around and pre-empts his presidency by appointing a new chief justice to take the place of Chief Justice Puno, who retires on that day. If a sense of shame will not prevent her from doing this, I am certain the wrath of the Filipino people will.
* * *
SC independence eroded by ruling
March 20, 2010 10:36:00
Cebu Daily News
Tacloban City — Former Senate President and Liberal Party senatorial candidate Franklin Drilon said the independence of the Supreme Court has been eroded by its decision to allow President Gloria Macapagal-Arroyo to name a new chief justice.
Drilon said that with practically all the sitting justices appointed by Arroyo there is now a "perception" that the high tribunal is at her "beck and call."
"The perception, not only among those in the legal community but even by the public, is that the Supreme Court is now totally beholden to the President," Drilon said in a press conference yesterday during his senatorial campaign sortie here.
"The independence of the Supreme Court has been undermined (by its own ruling). Its independence and confidence has been eroded," the former Justice secretary added.
He said the ruling would not only reverberate among those in the legal community but also among ordinary Filipino people in relation to the forthcoming May 10 election. "It's a constitutional issue with a political implication," Drilon said.
He explained that there should be no perception of partiality on the Supreme Court as it would play a pivotal rule once there would be a failure of elections as it would eventually decide whether the President could continue to rule beyond her constitutional term, which is to end on June 30.
Arroyo is seeking for a congressional seat in the second district of her native Pampanga, a first in the country's political history that an incumbent president is running for Congress.
Drilon maintained that the prohibition on appointments during the election period covers the appointment of a chief justice of the Supreme Court. He said the issue should be understood by the public considering its political implication. Drilon also urged the members of the Judicial and Bar Council not to submit any nomination to Arroyo so she has nobody to appoint. /INQUIRER
Intellectual dishonesty in high court?
March 19, 2010 23:04:00
Philippine Daily Inquirer
ALMOST 40 YEARS AGO IT WAS, I WAS APpalled, outraged, incredulous, despairing, forlorn, betrayed and, yes, deeply afraid, as I watched while our Supreme Court, “the last bulwark of democracy” gave its imprimatur first, to martial law, and then next, to a constitution ratified by some kind of viva voce vote at barangay or municipal halls. In short, the Supreme Court justices (not everyone—there were dissenters, like Justice Enrique Zaldivar) then sold themselves out, shifting their loyalties from the Constitution to the dictator, and prostituting their legal talent in order to provide a patina of constitutionality, if not respectability, to the Marcosian abuses. If memory serves, they were among the first to be tagged with the label “tuta.”
And now, the Supreme Court has done it again. It has placed people above principles, placed personal loyalty above loyalty to country and Constitution. And again, I feel appalled, outraged, etc., etc. As must millions of other people. If there was a Marcos Court (instead of a Concepcion Court or a Fernando Court, to name a couple of chief justices during the Marcos regime), we now indubitably have an Arroyo Court—depicting a Court led by the Chief Executive rather than an independent one. But while at least there was some excuse for the craven behavior of members of the Marcos Court—the fear factor was very strong, what with all those arrests and disappearances of people in both high and low places—the present Arroyo Court cannot even hide behind that excuse.
Also, at least the Marcos Supreme Court, when confronted with the fait accompli of martial law, were caught by surprise and had difficulty looking for precedents. The Arroyo Court, on the other hand, in order to arrive at its desired conclusion—that the President can make a midnight appointment—has ignored precedents, badmouthing them, as it were. This Court has found it not only fit to reverse a previous unanimous Supreme Court decision, but actually has the temerity and bad taste to say that such a decision (participated in by the likes of Hilario Davide Jr, Artemio Panganiban, Reynato Puno) “deserves to be quickly sent to the dustbin of the unworthy and forgettable”; it has put words in the Constitution’s mouth and the mouth of the 1986 Constitutional Commission proceedings, attributing to them intentions that are just not there; and it has done so with unnatural, if not unseemly speed.
Frankly, it smacks not only of mediocrity, but of intellectual dishonesty as well.
One example should suffice. The decision, penned by Justice Lucas Bersamin (of Radstock fame or notoriety—he insisted, in his dissenting opinion, that the Radstock compromise agreement, which would have stripped PNCC of all its assets and left the government holding a P36-billion bag of unpaid PNCC debt, was advantageous to the government and to PNCC), makes much of the opinion of former Justice Florenz Regalado, a member of the 1986 Constitutional Commission, who was quoted as saying that “on the basis of the Constitutional Commission’s records, the election ban had no application to the appointments to the Court of Appeals.” But Bersamin does not quote any of the records to support the assertion.
On the other hand, Justice Conchita Carpio Morales, in a dissent which makes mincemeat of the arguments of the majority decision, showing without mercy their weaknesses, quotes chapter and verse from the ConCom’s proceedings, particularly those pertaining to the deliberations on the president’s power to appoint. Apparently, it was Commissioner Hilario Davide (later to become chief justice) who was the author of Sec. 15 of Article VII of the Constitution, which is the ban on so-called “midnight appointments.” Specifically, the provision states: “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.”
As if that were not clear enough, Davide, during the ConCom proceedings, explained the concept behind that provision thus:
“MR. DAVIDE: 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.”
And yet, flying in the face of such an explicit reference to the judiciary being included in the scope of Sec. 15 of Article VII, the majority decision of the Supreme Court insists on the position that either the judiciary (five justices) or just the Supreme Court appointments (four justices) are not included in the ban. As mentioned above, Justice Morales tears their arguments apart.
As a legal luminary observes, “For over half a century now, the ban on midnight appointments has always been understood, interpreted and observed by the Government and the Filipino people as applicable to the judiciary.”
Until the Arroyo Court came along, that is. There are none so blind as those who refuse to see. Shame on them.
Email from Mark Fisher
date Mon, Mar 22, 2010 at 2:50 PM
subject Solon to start impeach-justices move
Solon to File Impeachment Case
By Gil C. Cabacungan Jr.
Philippine Daily Inquirer
First Posted 04:22:00 03/22/2010
MANILA, Philippines—Nueva Ecija Rep. Eduardo Nonato Joson said Sunday he would start a signature campaign in Congress to impeach the nine Supreme Court justices who voted to allow President Gloria Macapagal-Arroyo to name the next Chief Justice despite an election season ban on appointments.
“If by chance I will be able to gather 90 or more signatures, then the only problem is transmittal to the Senate for the impeachment trial,” Joson said in a text message.
Joson said the nine SC justices should be impeached for “culpable violations of the Constitution and gross ignorance of the law.”
A vote of one-third of the 268-member House of Representatives is required to send an impeachment complaint to the Senate, which will then convene a trial.
The nine SC justices who concurred in the controversial ruling were Lucas Bersamin, Jose Perez, Jose Mendoza, Teresita de Castro, Arturo Brion, Diosdado Peralta, Mariano del Castillo, Roberto Abad and Martin Villarama Jr.
They ruled that the prohibition on appointments starting two months before the election up to the end of the current president’s term on June 30 only applied to executive posts.
Joson, whose local party Bagong Lakas ng Nueva Ecija was reported recently to be “leaning toward Manny Villar” (the standard-bearer of the Nacionalista Party), said he decided to fast-track the process for filing an impeachment complaint because Congress was in recess until May 31.
The usual process is for a citizen to file an impeachment complaint and wait until the House committee on justice decides whether or not it is sufficient in substance and form to deliberate upon by the members in plenary.
Joson said he expected the impeachment petition to gather more steam if the nine SC justices refuse to reverse their decision, which he said had divided the nation and created more uncertainty in the coming elections.
Chief Justice Reynato Puno is retiring on May 17. Some groups urged the high court to leave the appointment of Puno’s successor to the next president.
Responding to such reactions to the high court’s ruling, Supreme Court Administrator and concurrent spokesperson Midas Marquez said the country would have a “bigger problem” if President Gloria Macapagal-Arroyo does not appoint a new chief justice before she steps down from office.
“It’s really very difficult for the Supreme Court to do its function without a chief justice, especially in critical moments like what we’re going to have,” he told reporters after a protest rally held outside the Supreme Court premises on Friday. With Dona Pazzibugan
‘Shadow of Doubt’
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 23:49:00 03/21/2010
NO, this is not about the controversial book “Shadow of Doubt” by Marites Vitug. It is about the Supreme Court’s decision upholding the power of President Gloria Macapagal-Arroyo to appoint the next chief justice.
I have always held that the Constitution means what the Supreme Court says it means—but only until the Supreme Court itself changes its mind. The mind of the Court, after all, is not cast in bronze. Sometimes it is cast in wax.
In 1998 the Supreme Court expressed its mind thus:
“The Court’s view is that during the period stated in Section 15, Article VII of the Constitution—“(t)wo months immediately before the next presidential elections and up to the end of his term”—the President is neither required to make appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Section 15 of Article VII. It is noteworthy that the prohibition on appointments comes into effect only once every six years.”
Last Wednesday, or two presidential terms and some strategic appointments later, the Supreme Court changed its mind and now says, 9-1-3, that it is perfectly all right for the President to make appointments to the judiciary during the period of the ban.
The strained ponencia of Justice Bersamin is a Sysiphus climb which, upon reaching the top, has been blown to smithereens by the dissent of Justice Conchita Carpio Morales.
Strangely, the ponencia’s argument is anchored not on the language of the Constitution but on the structural arrangement of the provisions. Thus, since the ban on making appointments is found in Article VII on the Executive Department, the ponencia concludes that it should apply only to the Executive Department—forgetting that the power to appoint given in Article VII covers positions in the judiciary.
The ponencia also ignores key principles of statutory construction. Ubi lex non distinguit nec nos distinguere debemus. (When the law does not distinguish, neither should we.) Inclusio unius est exclusio alterius. (The inclusion of one excludes others.) Casus omissus pro omisso habendus est. (A subject that has been omitted must be considered excluded.) In utter disregard of all these principles the ponencia would have us understand that, when the Constitution says “except temporary appointments to executive positions when continued vacancies therein would prejudice public service or endanger public safety,” we must in the same breath add “and positions in the judiciary.” This is unauthorized constitutional amendment.
The Supreme Court at any particular time is usually referred to by the name of the current Chief Justice. Ours now is more appropriately called the Arroyo Court. During the period when the controversy about the President’s appointing authority was being debated in media, the gut feel of many, myself included, was that the majority of the Arroyo Court would vote the way they did last Wednesday. Thus last Wednesday’s decision did not come as a surprise. “Shadow of Doubt,” catchy as it might be, does not express the full flavor of what is percolating in the hearts and minds of many.
In the course of the debate on the subject, much of the argument used was that the presence of a chief justice at all times is demanded by the Constitution and by public welfare. It was argued that the leadership of the chief justice was crucial all the time and no one of the associate justices could fill the gap. That this argument is not echoed in the ponencia is perhaps grudging recognition of the fact that the Constitution itself allows a “Chief-less” Supreme Court for 90 days in the belief that one of the associates can effectively substitute for him during a temporary absence.
Indeed, the leadership of the chief justice is important but not crucial. We have had many occasions when the Court was led by a temporary presiding officer but with no loss to the nation. In fact, the current chief justice is on a two-week leave and nobody is shouting “Help!”
Because I believe that the role of a chief justice is important, although not crucial, I would have wished that Chief Justice Reynato Puno had participated in the decision. Unfortunately the Chief Justice chose a stance comparable to that of Joshua Clottey. While reading the Court’s decision, I missed the Chief Justice’s vigorous Court presence.
I must say, however, that the constitutional provisions involved are actually not that mysterious. But the tug-of-war of the political process can inject between the lines of the Constitution undercurrents that can muddle the flow of arguments. Not the least of these undercurrents is the conflict of personalities and personal preferences that are further tarnishing the image of an already tarnished Court. The fact that both Justices Antonio Carpio and Renato Corona inhibited themselves is admission enough that they see the contest as between the two of them. Too bad, because, first, the contest is primarily about the law and not about them; and, second, I would have wanted to see their participation in the legal tussle.
It will not take much imagination to guess whom the President will not appoint. Conversely, it is easy to guess whom she will appoint. However, whoever that person might be is less significant than the impact of the processes that will have led to the appointment. What the fallout will be from all this remains to be seen. One thing is sure today: popular confidence in the integrity and independence of the Court has been severely sapped.
President can appoint chief justice without JBC list
Purple S. Romero, Newsbreak | 03/19/2010 10:50 PM
MANILA, Philippines--In its decision Wednesday allowing midnight appointments to the judiciary, the Supreme Court said that the President, "in an extreme case," can appoint a chief justice even in the absence of a shortlist from the Judicial and Bar Council (JBC).
"As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the President--any President--to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court," the SC said.
The SC did not elaborate on what constitutes an "extreme case," however.
This can dash the hopes of those opposed to President Arroyo appointing a new chief justice before she steps down. They are hoping that the JBC, the body which screens and vets aspirants to the judiciary for the Chief Executive, will delay submitting a shortlist of nominees until President Arroyo runs out of time.
The 1987 Constitution prohibits the President from making any appointments 2 months before the elections and until her term ends on June 30.
The SC recently reversed a decade-old decision, however, which states that the appointment ban covers the judiciary. It also ordered the JBC to send its nominees to the president on or before the retirement of Chief Justice Reynato Puno, who is due to hang his robe on May 17.
Only to outsiders
Under the Constitution, the President is mandated to pick her appointees from a shortlist prepared by the JBC. Article VIII, Section 9 states 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 any vacancy. Such appointments need no confirmation.”
But the SC explained that Article VIII, Section 9, applies only to outsiders, or those who are not sitting justices.
“The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC,” the Court said.
Since 1988, however, the Chief Executives have relied on the shortlist of the JBC for their appointees to the judiciary. If Arroyo would avail of this latest interpretation by the SC, she will be the first president to appoint a chief justice without a shortlist from the JBC.
JBC member Justice Regino Hermosisima also said in a 2006 speech that, "Only those nominated by the Council in a list to be officially transmitted to the President may be appointed by the latter as Justices or Judges or as Ombudsman or Deputy Ombudsman."
The SC also said that in the event that a constitutional convention (con-con) is formed, the delegates should consider proposing that the President can appoint a chief justice even without a shortlist from the JBC.
"It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile’s statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list," the SC said in the decision penned by Justice Lucas Bersamin.
The constitutional convention is one of the modes of amending or revising the charter. Delegates to the con-con are either elected or appointed by the President.
Several proposals for changing the 1987 Constitution through a con-con have emerged
from both houses in Congress. (Newsbreak)
Method To Madness
The naked court
By Patricia Evangelista
Philippine Daily Inquirer
First Posted 23:19:00 03/20/2010
MANILA, Philippines—I do not know if it is because I do not have a law degree, or if it is simply a question of age, experience and intellect, but I cannot understand how the Supreme Court can read the 1987 Constitution and say President Gloria Macapagal-Arroyo can appoint the next chief justice. “Two months immediately before the next presidential elections and up to the end of his term,” says Article 7, Sec. 15, “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 provision took force on March 10, almost two weeks ago. On March 17, the Supreme Court declared that the President is permitted to name a replacement for Chief Justice Reynato Puno, whose retirement falls on May 17, within the appointment ban.
The Court believes that the position of the chief justice is an exception. The decision, penned by Justice Lucas Bersamin, implies that the role is so important, the position so vital that whether or not Sec. 15 explicitly made an exception, the position by its nature is an exception. “The Chief Justice performs functions absolutely significant to the life of the nation.” It is so important that the Court cannot permit the traditional and constitutional appointment of the next associate justice as acting chief justice until an official and permanent appointment can take place.
I do not see how the sky will fall with a vacancy in the Court, but I also did not know this Court thought so little of itself that it cannot function without an official chief justice. The Constitution had more faith in the Supreme Court when it said that it would allow 90 days for a president to make an appointment. If the Supreme Court decided that the power to appoint belonged to the next administration, the new president would still have 45 days to make the appointment.
Sufficient time is needed for a president to make a decision, said the Bersamin decision when it justified Ms Arroyo’s power to appoint, and yet in the same breath enumerated how presidents have been capable of appointing chief justices within a day of the vacancy. When Chief Justice Narvasa retired, Justice Hilario Davide Jr. was sworn into office the following early morning. When Chief Justice Artemio Panganiban retired, Justice Reynato S. Puno took his oath as chief justice at midnight of the same day. Anarchy has not broken out yet, even with Senior Associate Justice Antonio Carpio now acting as chief justice, in place of Chief Justice Puno who is on sabbatical and wellness leave.
Court decisions are made by the majority, even the chief justice has only one vote. One less vote does not remove the minimum for a quorum, the gentlemen of the Supreme Court managed their majority in this decision even with three justices who refused to participate. In the dissenting opinion of Justice Conchita Carpio Morales, she argues that the Court’s decisions are not the decisions of one man. “As a member of the Court, I strongly take exception to the ponencia’s implication that the Court cannot function without a sitting Chief Justice.”
The fact that the Judicial and Bar Council is there, claims the Bersamin decision, “eliminates the danger that appointments to the judiciary can be made for the purpose … of satisfying partisan considerations.” And yet the same decision argues that there is no need for the JBC when the choices come from within the current Court, essentially saying Ms Arroyo can appoint any associate justice as she pleases.
The reason the Constitution bans midnight appointments is to protect the Court in spite of the people’s faith in that Court’s independence. The Supreme Court says the Constitution never explicitly banned the judiciary from midnight appointments. “Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so.”
The prohibition is explicit, “no appointments” to any position “except temporary appointments to executive positions.” As far as I understand English, this is explicit. What makes the Court so special—or so recalcitrant—that it demands a specific mention to believe it is on the same footing as the rest of the government? Besides, the framers themselves were explicit when they discussed the intent of the rule during the Constitutional Commission’s deliberations. Former Chief Justice Hilario Davide, then a constitutional commissioner, said the ban is there to prevent a president from continuing “to rule the country through appointments made about the end of his term” through the appointment of people in sensitive positions, “like the commissions, the Ombudsman, the judiciary.” This is especially ominous with Ms Arroyo, who may stand before that same chief justice she will so benevolently appoint. The public outcry is not because we have no faith in the Court, it is because we have no faith in Gloria Macapagal-Arroyo, and because the Constitution is clear in its demand.
And still the Court insists that the position of chief justice demands immediate appointment by a president—preferably Ms Arroyo. It claims that to allow the next president to appoint undermines the independence of the judiciary. “To have the new President instead of the current incumbent President appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority.”
This is the most frightening reasoning of all. This is a concession by the Court itself that a chief justice is dependent on the whims of an appointing power. Why allow any president to appoint at all? Why permit Puno to be chief justice, knowing that his stay would run the length of the President’s term? If the Supreme Court itself admits that a chief justice, or any justice at all, will be beholden to an appointing power, on any occasion, whether during elections or outside of it, it is a Court claiming it cannot be independent.
We are aware that the president appoints the chief justice. We are aware that the president appoints justices. We are aware that the next president may have a hold on its choice of chief justice. We are willing to accept all this because we have given our faith to the men and women in black robes, that they will not permit appointments and loyalties to intervene in their decisions, and on occasions that this is inevitable, to inhibit themselves. And yet this Court, one that claims its only intent is independence, has reversed decisions and ignored the Constitution. By stripping off its robes to show off its balls, the Court has announced it is incapable of independence.
It does not matter how much the Constitution imposes its checks and balances, or how often Marites Vitug writes books questioning the justices. The burden of proving the Court’s integrity does not rest on the public, it rests on the justices, who have now demonstrated how little they deserve the honor the black robes con
With Due Respect
To be a holdover president, Arroyo needs the US
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 23:17:00 03/20/2010
MANILA, Philippines—The National Democratic Institute (NDI), a US-based think-tank that works in 110 countries and is associated with US President Barack Obama’s Democratic Party, sent a five-person delegation to monitor and assess the preparations for our May 10 automated election.
Cautious initial report. After consulting 30 organizations in 27 meetings, the NDI team left our country with an 11-page, single-spaced “Statement,” dated March 13, 2010, summarizing that it “recognizes the enormity of the challenge facing the Philippines in organizing its first nationwide automated election…”
At the same time, however, it warned, “…suspicions and lack of trust among the political competitors and toward authorities, combined with insufficient inclusiveness and transparency, have inhibited public confidence in the elections and generated anxiety about the automated election system.” Then, it cautiously concluded, “…concerted efforts are required to increase transparency, build in needed safeguards, heighten security and develop public trust in the process.”
Clearly, the NDI used cadenced diplomatic language, lest it be accused of interfering in the internal affairs of a sovereign nation. But it is clear to me that the think-tank rated the election preparations as far from satisfactory as shown by its “recommendations,” among them:
Comelec should “undertake a major effort to bolster public confidence in the new AES system and the impartiality of its decisions.” Can Comelec still win public confidence, with election day less than two months away?
The Random Manual Audits (RMA) mandated by Republic Act 9369 should “be conducted prior to the proclamation of the results. Any other approach will undermine rather than bolster public confidence.” It thereby debunked Comelec’s decision to conduct the RMA after the proclamation of the winners.
NDI “viewed with concern” Comelec’s refusal to accredit Namfrel, which it praised as “the country’s most well-known domestic monitoring organization.”
Comelec should make public “a continuity plan in case of a system breakdown or any eventuality which shall result in the delay, obstruction, or non-performance of the electoral process.” Stripped of diplomatese, this means that Comelec should now bare its contingency plan—if any—to avoid a failure of election (no-el) that could lead to a failure of proclamation (no-proc) of the presidential winner and to a holdover for President Macapagal-Arroyo.
Underlying message. Beyond this formal statement is the underlying message that—like the earlier Republican administrations—the Obama team is closely watching the political events unfolding here. While the NDI claims to be “a nonprofit, nonpartisan organization working to support and strengthen democratic institutions worldwide,” it is known to be associated with the ruling US Democratic Party. It is chaired by no less than former US Secretary of State Madeleine K. Albright and led by a board of trustees and advisers composed of current and past US cabinet officials, senators and congressmen.
Remember that Ferdinand Marcos left the presidential palace during the Edsa I revolution only after he called up US Sen. Paul Laxalt, who advised him to “Cut and cut clean.” Remember too that the Americans provided Marcos with a helicopter to escape Malacañang for his eventual airlift to Hawaii via Clark Air Base. Yet, prior to that, on June 30, 1981, then US Vice President George Bush Sr. hailed him for his alleged “adherence to democratic principles.”
A member of the NDI delegation, Dr. Jamie F. Metzl, visited me at my home. Educated at Oxford and Harvard, he impressed me with his keen grasp of the vagaries of Philippine politics and current events.
We discussed my writings on the unnerving delays, logistical nightmares and technical lapses in the election preparations and how GMA could extend her stay as holdover president due to a failure to proclaim the new president.
In sum, I have no doubt that, as in the past, the United States will play a key role in our political directions. In previous columns, I wrote that to continue her reign, GMA needs (1) legitimacy via the Supreme Court, (2) power via the Armed Forces, and (3) the people’s trust, which she is courting via her barnstorms around the country. Now, I add a fourth essential reality: she needs US help to keep her afloat in a sea of political uncertainties.
* * *
Arroyo Court. Voting 9-3, the Supreme Court authorized President Macapagal-Arroyo to appoint the next chief justice after Reynato S. Puno retires on May 17. It reversed earlier jurisprudence (In Re: Valenzuela, Nov. 9, 1998) that junked midnight appointments in the judiciary. This earlier decision was written by former Chief Justice Andres R. Narvasa, concurred in by all the justices, three of whom eventually became chiefs, Hilario G. Davide Jr., Puno and yours truly.
The present Court also defied the no-midnight appointment stance of the leading presidential bets, a Senate resolution signed by 12 incumbent senators, the Philippine Bar Association, several chapters of the Integrated Bar of the Philippines, the Philippine Association of Law Deans, the Philippine Association of Law Students and the major media opinion makers.
As a former chief justice, I grieve at the majority’s decision. I wonder how the Supreme Court can survive the tsunami of protests inundating its independence, integrity and credibility. How can it peel off the nauseating, sticky label “Arroyo Court?” More on this later.
* * *
Comments are welcome at firstname.lastname@example.org
Philippine Daily Inquirer
First Posted 23:09:00 03/20/2010
MANILA, Philippines—Long has the administration relied on the instinctive obedience of the public to constituted authority, in particular on the residual mystique of the courts as impartial arbiters. We seriously doubt if this kind of obedience exists among the broader sectors of our society, convinced as these are that the law is a tool of the wealthy, but which is quite ingrained in the middle, professional and upper classes. But the law does not operate in a vacuum; and neither can our judicial institutions claim they are and should be untouched by such mundane things as public opinion or political events.
What is one justice—even if called the chief justice—in a collegial body? Defenders of President Gloria Macapagal-Arroyo use this argument to concede that even if she has established the characteristics of the high court well into the next administration, the addition of one more justice means nothing. But the concession disguises the difficulties an independent-minded chief justice can cause to a chief executive whose goal is to coopt or subvert the Supreme Court—or make it pliable. For the chief justice, as the first among equals, carries prestige which can help or hinder a chief executive’s ambitions.
Which is why the real question is: Why is the current Chief Executive insisting on appointing the next chief justice? A more dignified case can be made for the incumbent to help ensure a smooth transition to the next administration by refraining from appointing a new chief justice; the best test of the responsible use of power is sometimes not to use that power at all, particularly if it would dishonor an institution.
We need only refer to two instances in the past: When former Chief Justice Manuel Moran wanted to return to the Court but declined to do so on the basis of a midnight appointment by President Quirino (for which Moran was praised by the Supreme Court when it struck down President Garcia’s midnight appointments); and when Chief Justice Roberto Concepcion went into early retirement after the Court surrendered to Marcos’ threat to proclaim a revolutionary government and declare the Court vacant if it didn’t approve the 1973 Constitution. There is no point in holding on to an office even if arguably legally obtained, if the price is perpetual dishonor and public disrepute.
Not least because the law relies heavily on tradition. Precedents matter precisely because the law is not about justifying personal whims. Objections from lawyers and non-lawyers alike, even at the risk of defying the Supreme Court, rest precisely on the justices embarking on an innovation that defies past precedents considered, on the whole, healthy and logical interpretations of both the letter and spirit of our highest law, the Constitution.
To defy tradition is to invite defiance, for to ignore a legal consensus is tantamount to destabilization—the last thing anyone expects justices to engage in. There remains a slim window of opportunity for the justices and even the President to recover their reason, during the time the decision can be appealed. Should the justices and the President forge ahead, it would be tantamount to the justices themselves provoking a constitutional crisis.
The presidential candidates are now trapped in a situation where they know something is rotten but must weigh two problems equally: to step in and be litigants would mean estoppel down the line, if elected; to be too meek or too loud, on the other hand, might frighten voters and raise doubts about their leadership abilities. Yet the consensus among them should be reflected in a common stand that is respectful yet firm about the rule of law.
As it is, the legal community has braced itself to make its opinion heard, joined in by civic groups disturbed by the implications of the decision. Since the justices do not make rulings in a vacuum, they have to weigh the implications for the dignity and effectiveness of a Court that, quite legitimately, could be embroiled in an investigation into its decision, on the way to the only legal avenue the public has for the redress of grievances against justices—impeachment. There is a reason the highly political method of impeachment is provided for: No one is above the law—including members of the Supreme Court.