Corollary to my previous entry in this blog (“…Arroyo Infects the Court”), reproduced en toto below is the most recent editorial of the Philippine Daily Inquirer on the controversial (actually, wisdom-deficit and unenlightened) Supreme Court decision granting Pres. Gloria Arroyo the power to appoint the next Chief Justice during the two-month appointment-ban period defined in Art. VII of the 1987 Constitution.
The editorial reflects the prevailing general opinion of the Philippine mass media and the Filipino legal academicians.
The salient points thereof include the following, thus:
1. If citizens were dumb oxen, incapable of independent thought and free will, the Supreme Court would not only be powerless; it would be irrelevant. The Court and the rest of the judiciary form the weakest branch of government; for its decisions to be followed, the judiciary depends, on the action of law enforcement officials, yes, but also and even more crucially on the willing compliance of law-abiding citizens. In the end, the true power of any court decision lies in this appeal to reason and the citizen’s conscience.
2. In other words, if the Supreme Court were to find the other branches of government, or the constitutional commissions, or the armed services, unwilling to comply with its decisions, all is not lost: there is still the citizenry, who can bring pressure to bear on the recalcitrant.
3. If, on the other hand, the Supreme Court were to alienate the citizenry itself, then it puts itself completely at the mercy of other institutions of government. It cuts itself off from the very source of its authority. As we wrote yesterday: “The judiciary’s real authority lies in citizens who know the difference between right and wrong. That is the one source higher than the Supreme Court.”
Editorial
Higher than supreme (2)
Philippine Daily Inquirer
First Posted 21:09:00 03/25/2010
IF CITIZENS WERE DUMB OXEN, INCAPABLE OF independent thought and free will, the Supreme Court would not only be powerless; it would be irrelevant. The Court and the rest of the judiciary form the weakest branch of government; for its decisions to be followed, the judiciary depends, on the action of law enforcement officials, yes, but also and even more crucially on the willing compliance of law-abiding citizens. In the end, the true power of any court decision lies in this appeal to reason and the citizen’s conscience.
In other words, if the Supreme Court were to find the other branches of government, or the constitutional commissions, or the armed services, unwilling to comply with its decisions, all is not lost: there is still the citizenry, who can bring pressure to bear on the recalcitrant. (This, on a much smaller scale, is what is happening with the military’s foot-dragging in the “Morong 43” case pending before the Court of Appeals. There is a continuing, indeed increasingly urgent, need for the people to support the legal process, so that it can protect the 43 health workers who are being illegally detained.)
If, on the other hand, the Supreme Court were to alienate the citizenry itself, then it puts itself completely at the mercy of other institutions of government. It cuts itself off from the very source of its authority. As we wrote yesterday: “The judiciary’s real authority lies in citizens who know the difference between right and wrong. That is the one source higher than the Supreme Court.”
What the majority decision in the De Castro v JBC case does is mistake wrong for right, black for white. It tells the people, essentially, to forget all they’ve ever been told about checks and balances and the rule of law.
The decision, written by Justice Lucas Bersamin, relies on the weakest legal grounds possible to argue that President Macapagal-Arroyo, contrary to an express prohibition in the Constitution, can appoint the next chief justice even during the election period.
To cite only two of Bersamin’s “ratiocinations” (the term, a hair’s breadth away from “rationalization,” used by Justice Conchita Carpio Morales in her vigorous, must-read dissent):
The majority decision depends on a mode of legal construction that is the most speculative.
Bersamin argues that, because the provision that limits the president’s appointing power is found under the section dealing with the Executive, the prohibition applies only to executive, not judicial, appointments. Carpio Morales’ rebuttal is swift: “It is unfortunate that the ponencia chiefly relies on the trivialities of draftsmanship style in arriving at a constitutional construction.”
The majority decision also depends on a unique method of referencing the Constitutional Commission, by privileging the opinion of one member, the eminent Florenz Regalado. Carpio Morales’ rebuttal is stinging: “It accords high regard to the opinion expressed by Justice Regalado as a former ConCom Member, to the exception of the opinion of all others similarly situated . . . The line of reasoning is specious. If that is the case and for accuracy’s sake, we might as well reconvene all ConCom members and put the matter to a vote among them.”
In fact, the records of the ConCom are clear: the prohibition on appointments applies to the judiciary as well.
The result of all this is that the Supreme Court has pushed itself back in time: It is becoming the Marcos court all over again, still functioning, but with no legitimacy on political or human rights cases, its public image saved only by the dissents of courageous justices. (Ominously, in a Marcosian twist, the administration’s apologists in the media have already complained about “thugs” and “mobs” taking to the streets.)
Our question to the majority justices: Now that you have reached the pinnacle of the legal profession, do you merely wish to ground it down, under the weight of strained rationalizations, to the level of this presidency? There is something even higher than the Supreme Court to aspire to: history’s serene judgment.
See:
http://opinion.inquirer.net/inquireropinion/editorial/view/20100325-260781/Higher-than-supreme-2
Read also:
Editorial
Judicial suicide
Philippine Daily Inquirer
First Posted 00:45:00 03/18/2010
The Supreme Court, it is our sad duty to report, has lost its way. Its 9-3 decision allowing President Gloria Macapagal-Arroyo to name the next chief justice, despite the Constitution’s express ban on new appointments two months before a presidential election, is proof that the Arroyo-packed Court is wandering through unmapped, unsafe territory. The decision is an emergency flare fired into the air to mark its position. The momentary light will give comfort to the lost, but the darkness that follows will be forbidding.
In placing loyalty to the President, the appointing power, above fidelity to the Constitution, the source of that power, the justices in the majority (let us call them the Arroyo majority) undermined the Court’s moral standing. In rationalizing an interpretation of the Constitution that willfully and wildly negates both letter and spirit, the majority undermined its very relevance. The decision is this generation’s version of Executive Secretary vs Javellana, the shameful decision that confirmed the reality of martial rule.
It is simply not true, as Quezon City Rep. Matias Defensor claimed after the high court ruling was
announced Wednesday, that it was “a landmark decision that puts to rest the seemingly conflicting provisions of the Constitution.” In truth, the Supreme Court already issued a decision that put to rest the seemingly conflicting provisions—a dozen years ago, on Nov. 9, 1998.
In the case of Valenzuela and Vallarta, involving two judges appointed by President Fidel Ramos less than two months before his successor was elected, Chief Justice Andres Narvasa, writing for the majority, wrote: “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.”
Narvasa prefaced his ponencia with the hope that the resolution of the issue “will preclude a recurrence of any conflict in the matter of nominations and appointments to the Judiciary—as that here involved—between the Chief Executive, on the one hand, and on the other, the Supreme Court and the Judicial and Bar Council.”
The decision announced Wednesday killed that hope. Five justices rejected the Narvasa Court’s finding that the appointments ban applied to all branches of government. Justices Teresita Leonardo-De Castro, Roberto Abad, Martin Villarama Jr., Jose Perez and Lucas Bersamin, the ponente, held that the ban did not cover the judiciary at all. Four more justices—Arturo Brion, Diosdado Peralta, Mariano Del Castillo and Jose Mendoza—argued that the Supreme Court, but not the judiciary itself, was exempt from the ban.
We find these two positions baffling: They represent a head-in-the-sand interpretation of the prohibition as applying only or mainly to the Executive Branch, when in fact the prohibition allows only “temporary exceptions to executive positions,” under certain conditions.
Only three justices dissented: Conchita Carpio-Morales, Antonio Nachura and Presbitero Velasco Jr. (the latter two because they thought the issue was premature). It is a pity that Chief Justice Reynato Puno, who retires on May 17, and the two most senior justices, Antonio Carpio and Renato Corona, took no part. There was no compelling reason for them to inhibit.
The 1998 Narvasa decision bore the following warning: “prohibited appointments are long-lasting and permanent in their effects. They may ... in fact influence the results of elections and, for that reason, their making is considered an election offense.” The warning is prescient, because possible election offenses are precisely the reason for public skepticism about any belated appointment, especially to the post of chief justice, by President Arroyo.
It would be more true, then, to say the exact opposite of Defensor’s claim. Wednesday’s decision was not a landmark, but a massive crack, a gaping hole, in the legal landscape.
See:
http://opinion.inquirer.net/inquireropinion/editorial/view/20100318-259322/Judicial-suicide
