In relation to my previous entries in this blog on the controversial issue of “midnight appointments to the judiciary”, in his recent column, former Chief Justice Art Panganiban, made the following points:
1. “Solution to impasse. The majority’s decision is perceived by our enraged people as a craven effort to legitimize the wishes of the President, regardless of how the constitutional ban had been understood and obeyed during the last 50 years. It has definitely eroded the high moral ascendancy of the highest court of the land. It is bad enough that the tribunal is now freely labeled as the “Arroyo Court.” Worse, the appointee will be ingloriously branded the “midnight chief justice.”
2. “How can the Court shed these stinging labels and recover public trust? One way would be for it to reverse the decision on reconsideration. But given the lopsided 9-3 original vote, an about-face is unlikely. The easier way would be for the President to heed the advice of her presidential bet, Gibo Teodoro: refrain from naming a midnight chief justice. After all, the Court did not command her to appoint one; it merely directed the JBC to submit the list of nominees.”
3. “Indeed, should she announce her respect for the ban now, she would muffle public outcry against the Court and would give Teodoro much needed support to climb the poll surveys. In the end, it is really GMA’s call to save the Court and to boost her bet’s electoral chances.”
Further, in his recent column, former Associate Justice Isagani Cruz stressed the following:
1. “Let us not allow Ms Arroyo to inflict another imposition on the already defrauded people. We cannot stomach yet another subterfuge by the “once beloved of the nation,” who is not so any more, even if it is shrouded in the mantle of the Supreme Court. And so we consider the high court’s latest questionable decision. The coloration given by Malacañang, which nine of the higher justices willingly wear, is roundly rejected with more guts by another, while three of the higher justices choose not to speak on a subject “not worth talking about,” and another two justices say there is nothing to vote upon. That is how confused the Supreme Court seems to be.”
2. “The issue is not the pros and cons before the Supreme Court. The basic issue is Gloria Macapagal-Arroyo. You trust her or you do not. If you trust her despite her many failures to deserve your confidence in her, then by all means, vote for her. If not, then don’t vote for her at all. That’s democracy.”
I am reproducing below the two items en toto for legal research purposes the visitors of this blog.
With Due Respect
Midnight chief justice
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 22:31:00 03/27/2010
MANILA, Philippines—The Constitution provides that chief justices (in fact, all justices and judges) are to be appointed by the president from a list of candidates prepared by the Judicial and Bar Council (JBC). Thus, the JBC started two months ago the process of vetting candidates in anticipation of the retirement of Chief Justice Reynato S. Puno on May 17 this year.
Midnight ban. The Charter likewise provides that “two months before the next presidential election, 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.”
Voting 9-3, the Court—in De Castro vs JBC (March 17, 2010)—ruled that the constitutional ban on “midnight appointments” does not apply to the chief magistracy and directed the JBC “to submit to the incumbent President the short list of nominees for the position of Chief Justice on or before May 17, 2010” to enable GMA to appoint Puno’s successor.
The ban was enunciated some 50 years ago when Aytona vs Castillo (Jan. 19, 1962) voided several appointments (including one to the Supreme Court) made by then President Carlos P. Garcia one day before his term expired. Relying on plain common sense and old-fashioned delicadeza, the Court issued this ruling despite the absence of any prohibition in the then Constitution.
The ban was incorporated in the current Constitution upon the suggestion of then Commissioner Hilario G. Davide Jr. In sponsoring the measure in the Constitutional Commission, Davide expressly said that the judiciary was included in the ban to prevent a “President (from) prolong(ing) his rule indirectly by appointing people to these sensitive positions.”
Unanimous understanding. In Re Valenzuela (Nov. 9, 1998), the Court unanimously ruled that the ban applied to the judiciary, including the Supreme Court. It “instructed (the JBC) to defer all action… to fill up the lone vacancy in the Supreme Court or any other vacancy.” Significantly, the Valenzuela case was penned by then Chief Justice Andres R. Narvasa, concurred in by all the justices, including three who later became chiefs, Davide, Puno and me. To stress, Davide, who sponsored the midnight ban in the Constitutional Commission, concurred with the Narvasa decision.
Clearly, the prohibition encompasses appointments in the entire judiciary. This is how the ban was understood over the last five decades since it was judicially originated in Aytona vs Castillo; this is how the ban was understood by the commission that drafted the Constitution; this is how the ban was understood by our people when they ratified the present Constitution; this is how our Supreme Court plainly interpreted it in 1998 in Re Valenzuela.
And this is how all the past presidents of this country (including Ferdinand Marcos) understood and honored the ban: by not appointing any one to the judiciary during the prohibited period. Sadly, this 50-year clear understanding of the ban is now being twisted to accommodate the wish of GMA’s allies for her to name not just the 14 incumbent justices (which she has already done) but also the chief justice. Obviously, they want both an Arroyo Court and an Arroyo Chief Justice.
It is claimed that the ban does not apply to the Supreme Court because the Constitution also requires that “any vacancy (in the Court) shall be filled within 90 days from the occurrence thereof.” As held in the Valenzuela case, this 90-day limit for appointing justices is legally suspended during the ban and begins to run only after June 30. Even if it is not deemed suspended, the 90-day period ends on Aug. 15, thereby giving the new president 45 days to choose the new chief justice.
The Judiciary Act of 1948 wisely provided that “in case of a vacancy in the Office of the Chief Justice or of his inability to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence.” In like manner, now that Chief Justice Puno is on leave, the most senior justice has taken over as acting chief without any complaint from any of the other justices. Indeed, over the last 100 years, an acting CJ has always taken over whenever the CJ was on leave.
Solution to impasse. The majority’s decision is perceived by our enraged people as a craven effort to legitimize the wishes of the President, regardless of how the constitutional ban had been understood and obeyed during the last 50 years. It has definitely eroded the high moral ascendancy of the highest court of the land. It is bad enough that the tribunal is now freely labeled as the “Arroyo Court.” Worse, the appointee will be ingloriously branded the “midnight chief justice.”
How can the Court shed these stinging labels and recover public trust? One way would be for it to reverse the decision on reconsideration. But given the lopsided 9-3 original vote, an about-face is unlikely. The easier way would be for the President to heed the advice of her presidential bet, Gibo Teodoro: refrain from naming a midnight chief justice. After all, the Court did not command her to appoint one; it merely directed the JBC to submit the list of nominees.
Indeed, should she announce her respect for the ban now, she would muffle public outcry against the Court and would give Teodoro much needed support to climb the poll surveys. In the end, it is really GMA’s call to save the Court and to boost her bet’s electoral chances.
* * *
Comments are welcome at chiefjusticepanganiban@hotmail.com
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20100327-261177/Midnight-chief-justice
Separate Opinion
Goodbye forever
By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 22:36:00 03/27/2010
MANILA, Philippines—In June 2004, Gloria Macapagal-Arroyo, with the Bible in her hand, took her oath of office as President of the Philippines for a term of six years.
After a period of indecision, she neatly won easy acquittal from her cohorts in the House of Representatives that allowed her to serve her office for the term prescribed by the Constitution.
Now she faces a milder process for the end of her term as the highest officer in the land. She will do so without any disrespect for her name. This is despite her disregard for another provision of the Constitution, Art VII, Sec 15, otherwise known as the rule against “midnight appointments,” reading as follows:
Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.
At the beginning of her term, the provision was seen as a limitation on midnight appointments only in the executive departments, as everyone except Ms Arroyo believed. But she changed her mind some two weeks ago. Now she believes it does not apply to judicial offices, which is governed by the doctrine of separation of powers.
As she sees it, the provision on midnight appointees applies only to executive officers and does not cover judicial offices. Her clear indication is to the Chief Justice, who is retiring on May 17, 2010 and needs to be replaced immediately, before the end of her own term on June 30, 2010.
Normally, a retiring president of the Philippines would not think of appointing a chief justice who will be serving the bulk of his term under the new president; but not Ms Arroyo. She will remain President for the remaining period of her term and during such period, she will exercise all the powers and privileges of her office. This will include the power to appoint the successor to Chief Justice Reynato Puno.
What would this mean after she ceases to be President? Let us not forget that, even when this President ceases to be so, she hopes to be head of the government and legally immune from her past deficiencies. As prime minister or speaker, which she hopes to be, she would exert much pressure on the decisions of the present government.
In any case, the present attitude of Ms Arroyo excites much criticism from every Filipino citizen. How she rates with all of us is a judgment, not so much on her but on each of us holders of the gift of suffrage. We are enabled, as ordinary electors, to choose the men and women who can determine whether the future will be bright or bleak. That is how much the plume of suffrage can mean to every elector, who can unite with every other elector with similar hopes, to hew a better tomorrow for our country.
Ms Arroyo herself seems to be ashamed of her change of role from retired president to that of an aspirant to a new office. She has sought to justify her new role through supposed spokespersons, with or without authority, including one of her sons. She is ashamed of her new persona and would not agree to identify herself in person.
This reminds me of the other disguises she employed to prevent her real personality as culprit. I remember that she did not reply as the person responsible for the ZTE-NBN multimillion dollar scandal, the P728-million fraud on the farmers, and other monumental frauds on the people.
By allowing others to speak in her name, she is presenting them to assume responsibility for future risks she obviously wishes to evade. That is not the way of the true leader. The true leader speaks on his own and assumes responsibility for the risks he undertakes. He will not deny when things were not as he intended, that he never said this or that, or that he was misquoted—purposely or not—by his spokesman.
Let us not allow Ms Arroyo to inflict another imposition on the already defrauded people. We cannot stomach yet another subterfuge by the “once beloved of the nation,” who is not so any more, even if it is shrouded in the mantle of the Supreme Court. And so we consider the high court’s latest questionable decision. The coloration given by Malacañang, which nine of the higher justices willingly wear, is roundly rejected with more guts by another, while three of the higher justices choose not to speak on a subject “not worth talking about,” and another two justices say there is nothing to vote upon. That is how confused the Supreme Court seems to be.
The issue is not the pros and cons before the Supreme Court. The basic issue is Gloria Macapagal-Arroyo. You trust her or you do not. If you trust her despite her many failures to deserve your confidence in her, then by all means, vote for her. If not, then don’t vote for her at all. That’s democracy.
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20100327-261179/Goodbye-forever
