Appointment ban applies to lower courts.

The clarification made today by the Supreme Court spokesman to the effect that the 2-month appointment-ban during an election period continues to apply with respect to the appointment of new judges and justices below the Supreme Court level (sticking to the 1998 Villarta/Valenzuela doctrine) assuages the anger of the Filipino people created by the recent (much-maligned) decision of the Supreme Court in the case of De Castro, et. al. vs. JBC, et. al., with companion cases..

Read a related news item below.

To repeat: The high court’s decision only exempted the Supreme Court and not the entire judiciary from the constitutional provision that bars the President from making further appointments starting March 10 or two months from the May 10 elections (see Art VII, 1987 Constitution).



High court rebuffs Palace
SC ruling refers only to next Chief Justice
By Dona Pazzibugan
Philippine Daily Inquirer
First Posted 00:48:00 03/31/2010


MANILA, Philippines—Contrary to the Department of Justice’s interpretation, President Gloria Macapagal-Arroyo cannot appoint vacancies in the judiciary except those in the Supreme Court based on the tribunal’s controversial March 17 decision allowing Ms Arroyo’s “midnight appointment” of the next Chief Justice.

Court Administrator Midas Marquez said the high court’s decision only exempted the Supreme Court and not the entire judiciary from the constitutional provision that bars Ms Arroyo from making further appointments starting March 10 or two months from the May 10 elections.

“The decision of the court is very clear. It only pertains to appointments to the Supreme Court, not the entire judiciary,” Marquez, the concurrent Supreme Court spokesperson, told reporters Tuesday.

He said the March 17 decision covered only the position of the Chief Justice because that was the issue on hand. “The court didn’t make other pronouncements on other vacancies in the judiciary, whether the JBC (Judicial and Bar Council) should submit nominees for other posts,” he added.

Acting Justice Secretary Alberto Agra on Monday said Ms Arroyo could appoint other vacancies in the judiciary until her last day of office on June 30 using the Supreme Court ruling.

In that decision, nine of the justices voted to allow Ms Arroyo to appoint Chief Justice Reynato Puno’s successor when he retires on May 17, or a week after the elections.

One dissented, while two said the issue was still premature since the JBC has yet to submit a short list of nominees to Malacañang. Puno inhibited along with the two most senior justices vying for the post.

Agra, the concurrent solicitor general, justified Malacañang’s position that Ms Arroyo could continue to appoint other justices and judges, saying that five magistrates had given the opinion that the constitutional prohibition against midnight appointments did not apply to the entire judiciary.
“I don’t know the basis of that statement of (Justice) Secretary Agra,” Marquez said.

Not a majority decision

He noted that the tribunal’s ruling was not a majority opinion, since only 5 of the 12 justices who participated said the exemption covered the entire judiciary.

Four magistrates were content to exempt only the Supreme Court from the midnight appointments ban.

A majority decision, Marquez said, should be supported by at least 7 of the 12 participating justices. “There were 12 justices who voted in the March 17 ruling. The majority is seven. If you have five justices, that’s not the majority,” he said.

1998 doctrine

As far as midnight appointments in the lower courts are concerned, the Supreme Court’s 1998 doctrine in the case of Judges Mateo Valenzuela and Placido Vallarta still stands, he added.
In the case, the high court nullified then outgoing President Fidel Ramos’ appointment of the two regional trial court judges during the election ban.

It said the constitutional requirement under Section 9 Article VIII for the President to appoint vacancies in the judiciary within 90 days was subject to Section 15 Article VIII which prohibits an outgoing President from making appointments starting two months before the elections.
“There was no doctrine reached on that issue on appointments for lower courts, even the overturning of the Valenzuela case,” Marquez said.

The high court spokesperson added that “Vallarta as regards lower courts may still be considered a good case law.”

Challenge appointments

He admitted, however, that should Ms Arroyo go on making appointments in the judiciary despite the clarification, these may be questioned before the court.

“The appointments remain valid until they are nullified or revoked. If there will be no cases filed, they may stay valid,” Marquez said.

Among the appointments that the opposition considers violations of the ban were those of business tycoon Alfonso Yuchengco as ambassador to Germany, Libran Cabactulan as the country’s representative to the United Nations, Cynthia Carreon as head of the Tourism Promotions Board and Mark Lapid as chief operating officer of the Tourism Infrastructure and Enterprise Zone Authority (TIEZA).

Follow Diosdado’s example

Former President Joseph Estrada said Ms Ms Arroyo was not following the law. “Her father did much better,” he told reporters covering his presidential campaign.

Estrada was referring to President Disodado Macapagal’s decision in 1961 to nullify the more than 300 appointments that his predecessor, Carlos Garcia, had made just before his term ended.
Macapagal’s actions were challenged but were upheld by the Supreme Court.

“She should follow what her father had done. That was her father and still, she doesn’t follow his example,” Estrada said.

Liberal Party senatorial candidate Nereus Acosta said the midnight appointments clearly violated the Constitution.

Classmate

Acosta said the questionable nature of these appointments were further exacerbated by the appointees’ closeness to the President.

He said a leader who acted like she was above the law was the reason the country continued to be underdeveloped.

“It says a lot about the kind of leadership that we have, when appointments can be made even when there is a prohibition. Moreover, the new appointees seem to be well-acquainted with Ms. Arroyo,” he said in a statement.

Acosta noted that Carreon was Arroyo’s college classmate.

“The new chief operating officer of the Tourism Infrastructure and Enterprise Zone Authority is former Pampanga Gov. Mark Lapid. I assume this has something to do with Arroyo’s congressional bid,” Acosta said.

Check facts

In a statement, Lapid challenged those accusing him of getting a midnight appointment to “check their facts.”

He said he was appointed acting general manager of the Philippine Tourism Authority (PTA) in June 2008, an appointment that was later made permanent by Ms Arroyo.

When the Tourism Act of 2009 took effect, it reorganized the PTA and transformed it into the
TIEZA.

He said that despite the reorganization, the law still assured him of his position until 2014.
However, due to “delicadeza,” he said he opted to resign and reapply for the TIEZA COO position.

Lapid said the TIEZA board unanimously elected him COO on Feb. 22. With reports from Norman Bordadora, Philip C. Tubeza and Abigail L. Ho

See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100331-261717/High-court-rebuffs-Palace


Related News Report:



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)

See:

http://sc.judiciary.gov.ph/news/courtnews%20flash/2010/03/03171001.php

Las Pinas City Bar Assn; election 2010.

Notice of Election.

Per SMS today of Atty. Hilda Clave, president of the Las Pinas City Bar Association (LPBA), Inc., the election of the officers of the association for the 1-year term 2010 to 2011 and of 5 new directors (1/3 of the board) for the 3-year term 2010 to 2013 will be held on April 14, 2010, Wednesday, at 6:00 PM at the residence of former chairman Antonio Manzano at E. Pascual St. corner M. Yllana St., BF Resort Village, Las Piñas City.

For details, contact Atty. Clave (09189015234) or Atty. Manzano (09206033777).


– Atty. M. Laserna Jr.
Founder and Board Consultant.

Small claims courts now fully operational.

All 1,137 first-level courts nationwide, except Shari’a courts, are now hearing small claims cases thus widening the avenues of justice of our people. Previously, small claims were heard only by 44 designated-first level courts.

Effective last March 18, the 82 Metropolitan Trial Courts (MeTCs), 212 Municipal Trial Courts in Cities (MTCCs), 376 Municipal Trial Courts (MTCs), and 467 Municipal Circuit Trial Courts (MCTCs) have been authorized by the Supreme Court to hear small claims cases.

Under the High Court’s small claims project, ordinary Filipinos are empowered to litigate on their own money claims of PhP100,000 or less by providing them an inexpensive, informal, and simple procedure.

Dubbed as the “People’s Courts,” the procedure for small claims case relaxes or dispenses with ordinary rules of civil procedure and evidence such as strict pleading requirements and formal discovery measures. Disputes are resolved quickly and inexpensively particularly because lawyers are not allowed during hearings. Most of all, these courts are tasked to decide cases only at the first hearing.

The Supreme Court has been continuously training first-level courts judges and clerks of courts to familiarize them with the technicalities of the small claims procedure. Two Seminar-Workshops on the Amended Rule of Procedure for Small Claims Cases were held last week for the National Capital Judicial Region (NCJR).

Meanwhile, the Supreme Court Technical Working Group, composed of various SC officials, select justices, and a representative of the Integrated Bar of the Philippines, and the American Bar Association Rule of Law Initiative (ABA) has provided a handbook on the small claims process for small claims judges and clerks of court. The handbook provides in a straightforward manner the duties of the judge and clerk of court, as well as covers a range of topics such as determining the eligibility of a claim, docketing and raffling of a case, service of summons and notice of hearing, settlement of a case hearing proper, and promulgation of the decision, among others.

Clerks of court and branch clerks of court are tasked to explain the Rule on Small Claims to interested litigants, as well as occasionally help them out in filling up the Statement of Claim and Response Forms. Process servers and sheriffs may also provide information to the parties about the Rule when they serve summons and notice of hearing.

Through OCA Circular No. 35-2010, Court Administrator Jose Midas P. Marquez has already directed the raffling of the small claims filed in multiple sala court stations among its branches. The 44 pilot courts for small claims cases, however, shall not be included in the raffle until the small claims cases are equitably distributed to all courts.

Apart from lectures on the Amended Rule, small claims judges and clerks of court were also given skills training on mediation-conflict management. The seminar-workshops were a joint-initiative by the Supreme Court of the Philippines, the Philippine Judicial Academy (PHILJA) and the Office of the Court Administrator (OCA) in partnership with the United States Agency for International Development (USAID) and the American Bar Association Rule of Law Initiative (ABA).

The small claims courts resolve cases of the poor at the quickest time, cut their cost of litigation, and widen their access to the courts (SC En Banc Resolutions dated 27 October 2009 and 16 February 2010 in A.M. No. 08-8-7-SC).


See:
Widening the Avenues of Justice
1,137 Courts Now to Hear Small Claims Cases
March 30, 2010
By Jay B. Rempillo
At: http://sc.judiciary.gov.ph/news/courtnews%20flash/2010/03/03301001.php

The darkness of midnight

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

Independence and sanctity of the justice system; part 2.

For legal research purposes of the visitors of this blog, in the pending case of JAIME N. SORIANO VS. JUDICIAL AND BAR COUNCIL, G.R. No. 191032, with companion cases, where various motions for reconsiderations have been filed by concerned parties seeking the reversal of the controversial (and much-hated) decision of the Supreme Court allowing the President to appoint the next Chief Justice within the 2-month appointment-ban period, notwithstanding the express provisions of Art. VII of the 1987 Constitution to the contrary, one of the parties, Atty. J. N. Soriano, a law professor, has argued as follows in his motion for reconsideration, thus:

MOTION FOR RECONSIDERATION
AND A FULL COURT DELIBERATION
SANS RECLUSE

PETITIONER, also acting as counsel for himself, most respectfully moves for a
reconsideration of the 17 March 2010 Decision of this Honorable Court in the
above-captioned cases, a copy of which he received on 18 March 2010, and states:

Opening Statement

In resolving the constitutional issues in these consolidated cases involving the
designation of the next Chief Justice of the Philippines, the independence and
integrity of the judiciary as a separate branch of government is significantly at
stake.

It is axiomatic that the letter of the Constitution is what the Supreme Court says
it is. This most Honorable Court may set aside all the motions for reconsideration
filed and to be filed by the parties herein for sheer lack of merit and sustain with
finality the majority opinion penned by Mr. Justice Bersamin to the effect that the
incumbent President has the power the appoint the Chief Justice, within the two
month period following the 10 May 2010 elections, as an exception to Section 15,
Article VII of the Constitution. It may also reverse itself and decide to uphold
the constitutional prohibition consistent with the ruling in Valenzuela. Or it may
choose to adopt the submission of herein petitioner and hold that the contending
issues on the presidential prerogative are moot because the power to designate
the Chief Justice is lodged to the Supreme Court en banc, and not to the President,
following Section 5 (6), Article VIII of the Constitution. Whatever constitutional
route it takes, this Honorable Court would surely find legal bases to support its
final decision.

Given these three constitutional options, petitioner most humbly and
respectfully pleads before this Honorable Court to adopt a final opinion or
interpretation that would keep and advance the sanctity of its judicial
independence and integrity - for it is by these attributes that democracy lives and
remains vibrant, especially in times when the Executive and Legislative Branches
of government fail in the discharge of their constitutional mandate.

Perhaps, this Honorable Court may find some relevance in the disquisition of
former US Chief Justice John Marshall in the 1819 landmark case of McCulloch v.

Maryland1 when he wrote:
"We must never forget that it is a constitution we are expounding . . .
to endure for ages to come, and, consequently, to be adapted to the
various crises of human affairs . . . on which the welfare of a nation
essentially depends."

With all humility and in all modesty, the thesis that herein petitioner is
presenting before this Honorable Court is founded on a lofty constitutional
opportunity to assert the independence and integrity of the judiciary.
Petitioner concedes that his position appears to be a lonely constitutional
crusade. But he is not yielding. Never again should the Supreme Court be
referred as the Marcos Supreme Court or the Arroyo Supreme Court in the bar
of public opinion. Never again should the designation of the Chief Justice be
hounded by political consideration and brickbat. For sure, the framers of the
Constitution intended this Honorable Court to be just The Supreme Court of
the Filipino people.

This Honorable Court has the constitutional authority to designate its own Chief
Justice in accordance with the fundamental law. It may opt to simply brush it
aside or it may choose to re-define the course of judicial history by pursuing the
path of judicial independence consistent with the tenets of separation of powers.

Petitioner acknowledges that the bar of public opinion has no room, has no
weight, every time this Honorable Court renders a judgment, particularly on
constitutional issues of transcendental importance in the life of our nation.
The Legislature and the Executive Department may falter but there is the
mechanism of popular election that would hold them publicly accountable. But
when the Supreme Court, through the might of its pen, miscarries in the prying
eyes of public opinion, judicial independence and integrity suffer. Constitutional
democracy is then put at risk. In the performance of its constitutional duties, the
Supreme Court cannot shy away from the principle that sovereignty resides in
the people. Vox populi, vox Dei even if it is the Supreme Court that speaks.

Thomas Jefferson put it aptly when he said of the US Judiciary2:

“A judiciary independent of a king or executive alone is a good thing; but
independence of the will of the nation is a solecism, at least in a republican
government."

Petitioner dreams of a truly independent judiciary founded on its own judicial
integrity. This is the motivation of the petitioner when he initiated this suit and
this is also the context of this motion for reconsideration in G. R. No. 191032.

Grounds and Arguments in Support of this Relief for Reconsideration

1. The constitutional issue raised by herein petitioner, whether or not the power
to designate the Chief Justice belongs to the Supreme Court en banc under the
Constitution, was not squarely ruled upon or addressed by this Honorable
Court.

In his ponencia, Mr. Justice Bersamin put the issues to be resolved by this
Honorable Court in this wise:

“Accordingly, we reframe the issues as submitted by each petitioner in
the order of the chronological filing of their petitions.

x x x x x x

G. R. No. 191032

a. Is the power to appoint the Chief Justice vested in the Supreme
Court en banc?

x x x x x x3”

Except to say that “(A) review of Sections 4 (1) and 9 of Article VIII shows that
the Supreme Court is composed of a Chief Justice and 14 Associate Justices, who
all shall be appointed by the President4 from a list of at least three nominees
prepared by the JBC for every vacancy, which appointments require no
confirmation by the Commission on Appointments”, this Honorable Court, with
all due respect, did not belabor to elucidate why the sole issue raised in G. R. No.
191032 lacked merit.

Petitioner, again with all due respect, submits that the constitutional ground
raised originally in his petition and now reiterated in this motion for
reconsideration necessitates a categorical judicial determination in the light of the
Section 5 (6), Article VIII of the Constitution which says that the Supreme Court
shall have the power “(T)o appoint all officials x x x of the judiciary x x x”. As
a matter of judicial policy, “(N)o decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is
based”.

2. The position of Chief Justice falls within the ambit of the constitutional powers
of the Supreme Court under Section 5 (6), and not within the presidential
prerogative conferred in Section 9, both of Article VIII of the Constitution.
Even if the majority opinion did not actually provide an extensive explanation in
ruling against petitioner's submission, the separate concurring opinion of Mr.
Justice Brion could probably supply that inadequacy and what this Honorable
Court had in mind when it dealt with petitioner's submission. He wrote:

“The Soriano petition presents a very novel interpretation of Section 9,
Article VIII in its position that the authority to appoint the Chief

Justice is lodged in the Court, not the President.

The correctness of this reading of the law is contradicted by both
history and by the law itself.

History tells us that, without exception, the Chief Justice of the
Supreme Court has always been appointed by the head of the
Executive Department. Thus, Chief Justices Cayetano Arellano x x x
and all the Chief Justices after Philippine independence by the Chief
Executive. The only difference in their respective appointments is the
sovereignty under which they were appointed.

x x x x x x

The use of the generic term “Members of the Supreme Court” under
Section 9, Article VIII in delineating the appointing authority under
the 1987 Constitution, is not new. This was the term used in the
present line of Philippine Constitution, from 1935 to 1987, and the
inclusion of the Chief Justice with the general term “Member of the
Court” has never been in doubt. [citing Vargas vs. Rilloraza, 80 Phil.
297, 342 (1948)] In fact, Section 4 (1) of the present Constitution itself
confirms that the Chief Justice is a Member of the Court x x x.

Thus, both by law and history, the Chief Justice has always been a
Member of the Court – although as primus inter pares – appointed by
the President together with every other Associate Justice. For this
reason, we should dismiss the Soriano petition for lack of merit.”

This is almost the same constitutional reasoning that the Office of the Solicitor-
General took when it filed its Comment on 26 February 2010 and that of the
Women Trial Lawyers Organization of the Philippines (WTLOP) when it filed its
petition in intervention.

To put the thesis of petitioner in a proper legal setting, below are the pertinent
provisions of the Constitution relevant to this discussion.

SECTION 16, ARTICLE VII: “The President shall nominate and, with
the consent of the Commission on Appointments, appoint the heads of
the executive department, ambassadors, other public ministers and
consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in
him in this Constitution. He shall also appoint all other officers of the
Government whose appointment are not otherwise provided for by
law , and those whom he may be authorized by law to appoint. The
Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards. x x x” (underscoring
and emphasis supplied)

SECTION 4 (1), ARTICLE VIII: “The Supreme Court shall be
composed of a Chief Justice and fourteen Associate Justices. It may
sit en banc or, in its discretion, in divisions of three, five, or seven
Members. Any vacancy shall be filled within ninety days from the
occurrence thereof. (emphasis supplied)

SECTION 5 (6), ARTICLE VIII: “The Supreme Court shall have the
following powers:

x x x x x x

(6) Appoint all officials and employees of the judiciary in accordance
with the Civil Service Law.” (underscoring and emphasis supplied)

SECTION 9, ARTICLE VIII: “ 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.

For the lower courts, the President shall issue the appointments within
ninety days from the submission of the list.”

Given the reasoning of Mr. Justice Brion in his separate opinion, petitioner is of
the humble but strong view that the there is a constitutional clash between the
power of the Supreme Court to appoint ALL ITS OFFICIALS under Section 5
(6) and the presidential power to appoint the MEMBERS OF THE SUPREME
COURT under Section 9.

The present stand of this Honorable Court seems to surrender or yield its
express constitutional authority under Section 5 (6) in favor of the President on
the basis of constitutional history and long-years of perceived judicial
tradition.

With all due respect to Mr. Justice Brion, the Solicitor-General, as well as all the
constitutional experts and legal luminaries and scholars of this country, that the
contention of herein petitioner is contradicted by the fundamental law itself is
not absolutely true in the light of Section 5 (6) and the concomitant strict
interpretation of Section 9.

Petitioner would like to seek constitutional clarification whether the power of the
Supreme Court to appoint or designate ALL the OFFICIALS of the judiciary
excludes the Chief Justice. The use of the word “ALL” in Section 5 (6) does not
seem to suggest it. Expressium facit cessare tacitum.

Petitioner can concede that the phrase “MEMBERS OF THE SUPREME COURT”
in Section 9 includes the Chief Justice particularly if construed in the light of
Section 4 (1) on the composition of the Supreme Court. But only in the
constitutional sense that no Filipino can serve as Chief Justice unless he
qualifies first as a member of the Supreme Court.

In short and in the mind of the petitioner, the current constitutional debate on
the appointing power of the incumbent President during the prohibited period
should have been focused solely on whether or not she can appoint a member of
the Supreme Court who will replace Chief Justice Reynato S. Puno as a member of
this Court upon his retirement on 17 May 2010, and not on the designation of the
next Chief Justice, a power expressly reserved to the Supreme Court en banc by
the Constitution pursuant to Section 5 (6).

The provision of Section 4 (1) on the composition of the Supreme Court simply
denotes and stresses the idea that the Court is composed of fifteen (15) Members,
one of whom should serve as Chief Justice, the highest official of the judiciary.
With all due respect, there is a substantial distinction between the appointment
of the Chief Justice which should be done in accordance with Section 5 (6) and
the appointment of the Members of the Court in Section 9. The latter is
prerequisite to the former while the former is not subsumed in the latter, again
because of Section 5 (6).

It bears stressing here that the Chief Justice wears two hats – as head of the entire
judicial branch and as a Member of this Court exercising judicial power. The
former falls within the constitutional contemplation of Section 5 (6) while the
latter falls within the ambit of Section 9.

Needless to say, the standard and legally acceptable practice in any duly
constituted collegial body, whose members are primus inter pares, is always to
elect or select first the members thereof by the constituent body or authority, and
for the elected or selected members then to choose from among themselves who
will head the body. This is true of Board of Directors/Trustees of any juridical
entities. This is also true in the Senate and the House of Representatives. If the
intention is to depart from this practice, an express, and not an implied,
provision in the organic law or rule is usually provided. There is nothing in the
present Constitution that explicitly suggests a departure or deviation from this
generally accepted legal practice.

The language of Section 9 is clear, categorical and does not deserve an expanded
interpretation - “ The Members of the Supreme Court and judges of lower courts
shall be appointed by the President x x x.” It did not mention the Chief Justice.
In the same vein, Section 5 (6) is indubitable on the power of this Court to
appoint “all officials x x x of the judiciary”, which obviously includes the Chief
Justice. Casus omissus pro omisso habendus est. When the law omits something from
its enumeration, it should be held to have been omitted intentionally.

Following this logic and in a scenario where the Supreme Court invokes its
power under Section 5 (6) to designate as Chief Justice someone who is not yet a
member of the Court, Section 9 finds suitable application, not for the purpose of
directly appointing the Chief Justice but merely to qualify that person to be a
nominee and later to be a Member of the Supreme Court. Thereafter, such person
can be designated by the High Court en banc as its Chief Justice in accordance
with Section 5 (6).

There is no iota of doubt that the Chief Justice should be a Member of the
Supreme Court. The presidential appointment of the Chief Justice in Section 9, if
done from among the members of the Court (simply because Section 4 (1) states
that the Supreme Court is composed of the Chief Justice and 14 Associate
Justices) is untenable and contravenes Section 5 (6). This position even unduly
extends the presidential power of appointment under Section 16, Article VII of
the Constitution on the authority of the President to “appoint all other officers of
the Government whose appointment are not otherwise provided for by law,
xxx.” To be percipient about it, Section 5 (6) confers upon the Supreme Court en
banc the power to appoint the Chief Justice and therefore any appointment for
the said judicial position is excluded from the presidential prerogative.

But our constitutional history has shown that all the Chief Justices of the
Supreme Court from Cayetano Arellano to Reynato Puno was made by the
President of the Philippines. On this, petitioner would like to proffer to this
Honorable Court the following thought:

First: The appointments of former Presidents of Chief Justice Cayetano Arellano
all the way down to Chief Justice Roberto Concepcion were governed by the
1935 Constitution. And a cursory reading of the 1935 charter would show that
such prerogative is conferred on the President because of the old Section 10 (3),

Article VII that provides:

“The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, officers of the Army from the
rank of colonel, of the Navy and Air Forces from the rank of captain or
commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those
whom he may be authorized by law to appoint; but the Congress may
by law vest the appointment of inferior officers, in the President alone,
in the courts, or in the heads of departments.” (emphasis supplied)
The similar provision of the present Section 9 in the old Section 5, Article VIII -
that states: “The Members of the Supreme Court and all judges of inferior courts
shall be appointed by the President with the consent of the Commission on
Appointments” - will not produce any other interpretation than sustain the
presidential authority to appoint the Chief Justice under that Constitution
because the present provision of Section 5 (6), Article VIII of the 1987
Constitution did not exist in the 1935 Constitution, and hence, the default
appointment mechanism was the old Section 10 (3), Article VII of the 1935
Constitution, as earlier cited.

It was of no consequence even to interpret the former provision of Section 5,
Article VIII on whether or not all the Presidents who served under the 1935
Constitution can appoint the Chief Justice even if that Section 5 similarly used
the phrase “The Members of the Supreme Court”, as in the present Section 9,
since it would not escape the iron clad provisions of the old Section 10 (3), Article
VII; moreso, in the absence of the present Section 5 (6) in the 1935 charter. The
constitutional setting under the 1935 Constitution on the presidential
appointment of the Chief Justice is actually akin to that of the United States
Federal Constitution.

Thus, the so-called constitutional history on the appointment of the Chief Justices
by former Presidents at that time was well within the context of the 1935
Constitution.

Second: On the other hand, the appointments of former Chief Justices Querube
Makalintal up to Ramon Aquino were governed by the 1973 Constitution. This
Constitution vested upon the President (in Section 4, Article X) the power to
exclusively appoint the “Members of the Supreme Court”, almost similar to the
present Section 9 minus the system of nomination of the Judicial and Bar
Council. The 1973 Constitution was also the source of the present provision on
the power of the Supreme Court to appoint all its officials, with exactly identical
phraseology both under the 1973 and 1987 Constitutions.

With Section 5 (6) ingrained in the 1973 Constitution vis-a-vis the language of
Section 4, Article X, petitioner maintains that his constitutional issue in G. R. No.
191032 could have been raised in an appropriate legal setting and proceeding
obtaining at that time, which is every time a new Chief Justice is appointed
under the 1973 Constitution. However, petitioner cannot imagine the then
Marcos Supreme Court sustaining a view that would dilute the presidential
prerogatives of then President Ferdinand E. Marcos with his martial law regime.

In the mind of the petitioner, this is providential. It would have been more
difficult to reverse an established precedent even if such was rendered by a court
then perceived as beholden to the Marcos presidency than to raise this matter
now as a new thesis or submission in this petition.

Petitioner can only say that the power of the President to appoint the Chief
Justice during the martial law days of the 1973 Constitution is a mere product of
constitutional tolerance that formed part of constitutional history in the absence of
a constitutional challenge.

Third: Erstwhile Chief Justice Claudio Teehankee all the way to the present
Honorable Chief Justice Reynato Puno were all appointed by the President
under the 1987 Constitution following constitutional history and judicial
tradition. And this is in view also of the fact that the presidential prerogative to
appoint the Chief Justice has never been challenged until the filing of this
petition, despite the constitutional existence of Section 5 (6) and Section 9, which
is almost a reiteration of Section 5 (6) and Section 4, Article X of the 1973
Constitution.

Petitioner views all appointments made by the past and present Chief Executives
of the Chief Justice under the 1987 Constitution as a case of constitutional
oversight. As earlier stated, this most Honorable Court never had the
opportunity also in the past to rule upon this constitutional issue squarely in
the absence of a full-blown legal dispute. It is understandable. Every student of
law would know that judicial power (both in the context of the power of
adjudication and the power of judicial review) will not start to grind unless there
is an actual justiciable controversy.

Ergo, this constitutional challenge on the appointment of the Chief Justice by the
President in contravention with the clear and express letters of Section 5 (6) in
relation to Section 9, Article VIII of the 1987 Constitution now deserves full
consideration of this Honorable Court. In our system of government,
constitutional history, as well as judicial and political practices and tradition,
deserves respect but their preservation and observance in our nation's way of life
cannot breach the social contract between the State and the people expressed
under the 1987 Constitution.

For sure, when the people ratified the 1987 Constitution, they understood to
mean the presidential power to appoint under Section 9 as being limited plainly
to the “Members of the Supreme Court”, from whose membership the Chief
Justice could emerge. Also, when the people overwhelmingly voted “yes” on the
ratification of the 1987 charter, they understood the power of the Supreme Court
to appoint “all the officials x x x of the judiciary” to include the Chief Justice
without any qualification. Even the intent of the framers of the Constitution
cannot override what the people view as the literal and plain meaning of the
provisions of the sovereign contract that they entered into with the State. Maybe
it is for this reason that resort to legislative intent is taken by this Court only if
there is doubt or ambiguity in the language of a statute, as a cardinal rule in
statutory construction. This is also the essence of the parol evidence rule7 in written
contracts.

The separate ponencia of Mr. Justice Brion and the intervention of WTLOP argued
that the “inclusion of the Chief Justice with the general term 'Member of the
Court' has never been in doubt” citing the 1948 ruling of this Honorable Court in
Vargas vs. Rilloraza8. They said that when Section 9 referred to the “Members of
the Court” it should include the Chief Justice especially if read together with the
provision of the Constitution on the composition of the Supreme Court in Section
4 (1).

Yes, the ruling in the 1948 case of Vargas said that the Members of the Supreme
Court includes the Chief Justice but merely to emphasize the composition of the
Court. With all due respect, it had neither a legal bearing nor any constitutional
relevance in the resolution of the issue at hand, as raised by the petitioner in the
case at bar, for the following reasons:

(a) The said case assailed the constitutionality of Section 14 of the People's Court
Act (Commonwealth Act No. 682) because that law imposed additional
qualifications for membership in the Supreme Court, among others. That case is
not foursquare with the instant controversy because it did not involve an
interpretation of the “Members of the Supreme Court” falling within the
purview of the power of the President to appoint a Chief Justice under Section 5,
Article VIII of the 1935 Constitution.

(b) But even if it were the constitutional issue involved there was no need to
interpret the power of the President under the 1935 Constitution to appoint the
Chief Justice according to the provision of the then Section 5 (now Section 9)
because as earlier explained, that power was reserved by the 1935 Charter to the
President on the basis of the old Section 10 (3), Article VII. Moreover, the current
provision of Section 5 (6), Article VIII did not exist in the fundamental law at that
time.

(c) Finally, even assuming, without admitting, for the sake of argument that the
Vargas case may serve as a basis to interpret the phrase “Members of the
Supreme Court” in Section 9, it is also constitutionally permissible for this
Honorable Court to modify or even abandon that 1948 doctrine given the present
state, condition and circumstances of the Philippine Judiciary, and adopt a new
precedent that will serve as a milestone in the pursuit of judicial independence
and integrity.

This Honorable Court seemingly took the Herculean task of reversing the
precedent in Valenzuela9 on the limitation of the power of the President to
appoint the Chief Justice during prohibited period. But a modification, not even
a reversal, of the Vargas precedent in granting and siding with this motion for
reconsideration is actually less constitutionally burdensome. The only thing this
Honorable Court needs to do is to adopt a strict but literal and plain
interpretation of the wordings of Sections 5 (6) and 9, Article VIII of the
Constitution. Then, the constitutional determination whether or not the
President can appoint justices and judges consistent with earlier ruling in
Valenzuela can be confined to the issue of the next Member of this Honorable
Court who will succeed Mr. Justice Puno as a Member of the Supreme Court, but
not the Mr. Justice Puno as Chief Justice.

Herein petitioner assumes that given several constitutional options, this
Honorable Supreme Court would always rule in favor of judicial independence
and integrity not only in cases of doubt but more importantly when it is exposed
to the dangers and threats of political backlash. Preserving, defending and
maintaining the dignity of the Supreme Court as the most sacred of the
institution of the State is perhaps far more primordial, important and crucial
than the decision it renders, if only to ensure that constitutional democracy
works, and works well.

Again with all humility, petitioner reiterates that his thesis, if adopted by this
Honorable Court, is consistent with and would strengthen the principle of
separation of powers. Petitioner would like to see that day when the Supreme
Court en banc is also able to appoint the Presiding Justices of the Court of
Appeals, the Sandiganbayan and the Court of Tax Appeals in accordance with
Section 5 (6). Jockeying for these official positions in the judiciary in exchange for
political consideration would then be a thing of the past, for the heads of these
collegiate courts would only be beholden to the highest court of the land, and to
its members collectively, not individually.

3. The Mendoza petition captioned as an administrative matter should have
been dismissed because it only sought a declaratory judgment contrary to the
well-settled precepts involving justiciable controversies.

A cursory reading of the Decision of this Honorable Court in these consolidated
cases would show that it was anchored solely on the administrative case filed by
erudite lawyer Estelito Mendoza. The dismissal of the Mendoza petition,
together with all the other petitions in G. R. Nos. 191002, 191149 and 191057 for
being premature and G. R. Nos. 191032 and 191342 for lack of merit, could have
deferred, if not avoided, the reversal of the Valenzuela ruling until the President
actually exercise her supposed appointment authority of the Chief Justice
following the submission of the certified list of nominees by the Judicial and Bar
Council under Section 9.

Petitioner would like to state for the record that G. R. No. 191032 on which this
motion for reconsideration is based was not dismissed for prematurity but “for
lack of merit”, although, with all due respect, there appears to be a scant
discussion or elucidation in the ponencia of Mr. Justice Bersamin why, as earlier
argued. And this is precisely what this motion for reconsideration seeks – a
categorical judicial ruling approving or disapproving the power of the
President to appoint the Chief Justice from the point of view of the
Constitution.

Petitioner's original petition for prohibition is ripe for the exercise of the power
of judicial review because it presented a justiciable controversy that is ready for
judicial determination of this Honorable Court. And that is when the respondent
Judicial and Bar Council proceeded in its en banc meeting of 18 January 2010 and
“unanimously agreed to start the process of filling up the position of Chief
Justice x x x”10, thereby arrogating with grave abuse of discretion, amounting to
lack or excess of jurisdiction, the power expressly reserved to the Supreme Court
en banc by the Constitution under Section 5 (6).

Petitioner still pins his hope that this Honorable Court will finally rule squarely
on his petition via this motion for reconsideration because his thesis, from his
modest and humble view, is impressed with merit, and novel as it is.

But part of this motion for reconsideration is petitioner's submission that the
Mendoza petition should not have been given due course at all by this
Honorable Court.

Petitioner fully supports and agrees with the separate opinion of Mr. Justice
Nachura when he said:

“As to the petition filed by Estelito Mendoza, while it is captioned as
an administrative matter, the same is in the nature of a petition for
declaratory relief. Mendoza pleads that this Court interpret two
apparently conflicting provisions of the Constitution x x x. Petitioner
Mendoza specifically prays for such a ruling “for the guidance of the
[JBC],” a relief evidently in the nature of a declaratory judgment.
Settled is the rule that petitions for declaratory relief are outside the
jurisdiction of this Court. Moreover, this Court does not sit to
adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. While Mendoza and the other
petitioners espouse worthy causes, they have presented before this
Court isues which are still subject to unforseen possibilities. In other
words, the issues they raised are hypothetical and unripe for judicial
determination.”11 (underscoring supplied; citations omitted}

Again with all due respect, petitioner humbly takes the view that the Decision of
this Honorable Court promulgated on 17 March 2010 on the basis of the
Mendoza petition went against the well-entrenched doctrine on justiciable
controversies. Therefore, it warranted outright dismissal.

Argument in Support of the Motion
for a Full Court Deliberation Sans Recluse

Considering the vital significance of the constitutional issues raised in these
consolidated cases, affecting and involving as they do no less than the Office of
the Chief Justice and the independence and integrity of the Judiciary, the judicial
determination of the constitutional controversy by all the sitting and incumbent
justices of the Supreme Court is in order.

The mere fact that Chief Justice Reynato Puno sits as ex-officio head of the Judicial
and Bar Council should not prevail over the more compelling State interest for
him to participate as a Member of the Court in its deliberation involving no less
than the appointment of his successor upon his retirement on 17 May 2010. There
appears no conflict of interest to be served or violated if he acts as Chief Justice
and provide the leadership to this Honorable Court in its final discussions and
ruling on the consolidated cases, now on motion for reconsideration. The same
argument holds for Mr. Justices Carpio and Corona, notwithstanding the fact
that they have publicly declared their willingness to be Chief Justice, under this
political administration or the next. After all, the Supreme Court decides
collectively as an institution and all its sitting members are potential Chief Justice
of our Motherland.

The Supreme Court as final arbiter of every question arising from the
Constitution would certainly benefit from the expressions of individual wisdom
of the Justices, which would later translate or result in a collective erudition of
what the Constitution should be – this Honorable Court being the only
mouthpiece of our fundamental law.

Petitioner maintains that public interest would be better served if all the Justices
of the Supreme Court would participate in the next en banc deliberation of the
cases at bar. The sovereign which they serve is entitled to know how and where
they stand individually in this constitutional challenge affecting no less the
independence, dignity, and integrity of The Supreme Court.

Closing Statement

This Honorable Court is at the crossroad of judicial history. It may choose to
remain insensitive to public opinion or perception for as long as it renders a
judgment solidly and without any scintilla of doubt anchored on the
Constitution. But given constitutional options which are all constitutionally
tenable, perhaps and again with all due respect, it may be fitting to pursue the
loftier path of judicial independence. Either way, the dignity of this Honorable
Supreme Court remains intact for the Filipino people.

PRAYER

ACCORDINGLY, it is most respectfully prayed of this Honorable Court to grant
petitioner's motion for reconsideration and issue a Resolution ordering
respondent Judicial and Bar Council to desist and refrain from continuing with
its current proceedings to select the nominees to replace the judicial position to
be vacated by the Honorable Chief Justice Reynato S. Puno and thereupon to
render judgment declaring that the power or authority to appoint the Chief
Justice pertains exclusively to the Supreme Court under Section 5 (6), Article VIII
of the Constitution. Thereafter, it is also prayed of this Honorable Court to
immediately commence its own internal proceeding en banc to select the
replacement of the Honorable Chief Justice Reynato S. Puno upon his retirement
on 17 May 2010.

Petitioner further prays for such other remedies as may be deemed just and
equitable under the premises, including an oral argument on the constitutional
issues subject matter of the consolidated petitions at the discretion of this
Honorable Court.

Most respectfully submitted.

Quezon City, Metro Manila for the City of Manila: 30 March 2010

(sgd.)
ATTY. JAIME N. SORIANO, CPA, MNSA
Petitioner and Counsel for Himself
45A Visayas Avenue, Quezon City, 1100 Metro Manila
jimmy@soriano-ph.com; +639152036295
IBP No.: 810663; 8 January 2010; PPLM
PTR No.: 3226542B; 7 January 2010; Quezon City
Roll No.: 36996; page 400; book XV; 8 May 1991
MCLE Exemption No. II-001018, 21 March 2007

2009 Philippne bar exams

The list of successful 2009 Philippine bar examinees (and the Top Ten placers) will be released tonight by the Supreme Court.

The examinees and their families nervously await the list.

Once released, as usual, the list will hug the headlines of Philippine dailies, especially when examinees from very poor families make it to the Top Ten, an accomplishment that serves as an inspiring human interest story, considering the multitudes of mental, physical and financial sufferings that one undergoes to be a lawyer anywhere in the world.

The Court has meanwhile released the advanced information that a total of 1,451 out of 5,903 examinees from 108 law schools nationwide passed the 2009 bar examinations, according to Associate Justice Antonio Eduardo Nachura, chairman of the 2009 Bar examinations committee, who added that 24.58 percent of the total number passed the exam.

In the last decade, the highest passing rate was posted in 2001 at 32.89%, while the lowest was in 2002 at 19.68%. The highest passing percentage of all time was in 1954 at 75.17%, while the lowest was in 1999 with 16.59%.

(Note: When I placed 3rd in the 1984 bar exams, where I garnered 90.95%, the passing rate was only 22%, with UP College of Law failing to land in the Top Ten. It was the heyday of the Ateneo de Manila University, with 7 slots in the Top Ten. To this very day, I thank the late Hon. Neptali Gonzalez II, our law dean at my alma mater Far Eastern University at that time. He was a dedicated mentor and law scholar and philosopher who was seen by his students as their second father. I honor him in my prayers, meditation, law practice, and pro bono advocacy of law and justices issues. Upon retiring from the law academe, Dean Gonzalez he was elected as an Assemblyman, Congressman, and Senator. He later served as the president of the Philippine Senate).

This year’s examiners were lawyers Sixto S. Brillantes, Jr. and Jeremy I. Gatdula (Political and International Law); Court of Appeals (CA) Justice Vicente S.E. Veloso and lawyer Pablo R. Cruz (Labor and Social Legislation); Justice Alicia V. Sempio-Diy (retired) and Court Administrator Zenaida N. Elepaño (retired) (Civil Law); Court of Tax Appeals (CTA) Presiding Justice Ernesto D. Acosta and lawyer Edwin R. Abella (Taxation); CA Justice Ramon Paul L. Hernando and lawyer Hector Danny D. Uy (Mercantile Law); Sandiganbayan Justice Edilberto G. Sandoval and CA Justice Mario V. Lopez (Criminal Law); Sandiganbayan Justice Alexander G. Gesmundo and CA Justice Magdangal M. De Leon (Remedial Law); and Sandiganbayan Justice Samuel R. Martires and CA Justice Noel G. Tijam (Legal Ethics and Practical Exercises).


A few months ago, I recommended to the Judicial and Bar Council (JBC) and the Supreme Court Chief Justice the promotion of Court of Appeals Associate Justice Magdangal de Leon (examiner in Remedial Law) to the rank of Associate Justice of the Supreme Court, knowing his credentials, character, integrity and independence. Unfortunately, he did not make it to the appointments in the latter part of 2009. I am sure, though, that it is his karmic fate and destiny to serve in the Supreme Court. It is just a matter of time. Justice De Leon served as the chairman of the Las Pinas City Bar Association (LPBA), Inc. in the early part of this decade. I founded the bar association on March 21, 2001. I served it as its founding president and later as its chairman. It served as a model for the formation of the voluntary bar associations in other cities of southern Metro Manila.


1,451 out of 5,903 Bar examinees pass
By Tetch Torres
INQUIRER.net
First Posted 12:04:00 03/26/2010


MANILA, Philippines – (UPDATE) A total of 1,451 out of 5,903 examinees from 108 law schools nationwide passed the 2009 Bar examinations, Associate Justice Antonio Eduardo Nachura announced Friday.

Nachura, chairman of the 2009 Bar examinations committee, said this represented 24.58 percent of the total number.

The announcement came after the high court’s en banc session where Nachura presented the result.

Nachura said the passing rate was lowered from 75 percent to 71 percent while the disqualification grade in Taxation was lowered from 49 percent to 45 percent.

In the last decade, the highest passing rate was posted in 2001 at 32.89%, while the lowest was in 2002 at 19.68%. The highest passing percentage of all time was in 1954 at 75.17%, while the lowest was in 1999 with 16.59%.

The passing percentage for this year was higher compared to last year’s 20.58 percent or 1,310 out of 6,364.

The 2009 Bar exams was also the first time that two examiners were designated in each of the eight subjects. Thus, every Bar subject was divided into two parts.

The 2-examiner policy was adopted by the high court after the Committee on Legal Education and Bar Matters approved the proposal of lawyer Ma. Cristina B. Layusa, deputy clerk of Court and Bar Confidant, to designate two examiners per Bar subject, pursuant to Paragraph 4, Part B of Bar Matter No. 1161.

The Court conducts the Bar examinations pursuant to Article VIII, Sec. 5 of the Constitution which provides that it shall have the power to promulgate rules governing the admission to the practice of law.

The Rules of Court provide that “a candidate may be deemed to have passed his examination successfully if he has obtained a general average of 75% in all subjects without falling below 50% in any subject.”

In determining the average, subjects in the examinations are given the following relative weights: Political and International Law, 15%; Labor and Social Legislation, 10%; Civil Law, 15%; Taxation, 10%; Mercantile Law, 15%; Criminal Law, 10%; Remedial Law, 20%; and Legal Ethics and Practical Exercises, 5%, for a total of 100%.

This year’s examiners were lawyers Sixto S. Brillantes, Jr. and Jeremy I. Gatdula (Political and International Law); Court of Appeals (CA) Justice Vicente S.E. Veloso and lawyer Pablo R. Cruz (Labor and Social Legislation); Justice Alicia V. Sempio-Diy (retired) and Court Administrator Zenaida N. Elepaño (retired) (Civil Law); Court of Tax Appeals (CTA) Presiding Justice Ernesto D. Acosta and lawyer Edwin R. Abella (Taxation); CA Justice Ramon Paul L. Hernando and lawyer Hector Danny D. Uy (Mercantile Law); Sandiganbayan Justice Edilberto G. Sandoval and CA Justice Mario V. Lopez (Criminal Law); Sandiganbayan Justice Alexander G. Gesmundo and CA Justice Magdangal M. De Leon (Remedial Law); and Sandiganbayan Justice Samuel R. Martires and CA Justice Noel G. Tijam (Legal Ethics and Practical Exercises).

See:
http://newsinfo.inquirer.net/breakingnews/nation/view/20100326-260930/1451-out-of-5903-Bar-examinees-pass





Read also:


Passion For Reason
Bar exam reforms
By Raul Pangalangan
Philippine Daily Inquirer
First Posted 21:16:00 03/25/2010


THE RESULTS OF THE BAR EXAMINATIONS will be out Friday, the Supreme Court has announced. For those who make it, Friday night will feel like an early Christmas. For those who don’t, it will be an early Biyernes Santo. But for all of them, the entire bar review process and the painful waiting for the results would have been sheer Calvary, because the Philippine bar examinations are the most unpredictable and unscientific licensing examination I know.

And when I describe how unreliable it can be, do you know the typical Pinoy reaction? “Then the result must be God’s will!”

Oo nga naman. If you’re that lucky, it’s got to be destiny! That attitude, in fact, is one big hurdle for anyone trying to reform the antiquated bar exams. How does one tamper with what the heavens ordained?

For the most recent bar exam, the Supreme Court has taken one bold organizational reform. Now we have two bar examiners for each subject instead of just one. It was a laudable measure but one that unfortunately did not produce the desired result.

Laudable, because it confronted one undeniable fact: there are more and more bar candidates each year, hovering at around 6,000 takers for the past several years already (this, year, 5,903 to be exact). The system of the solitary bar examiner grading all the exam booklets was designed for an earlier time when there were much fewer takers. Splitting that task between two graders made eminent sense.

Unfortunate, because instead of getting the grades sooner by cutting the “checking time” by half, we are now back where we started: it has taken just as long to check the exam booklets. Why? Because the two bar examiners merely submitted two sets of questions, and the exam simply became almost twice as long.

The experiment would have worked had the exam kept to fewer questions. And may I add, the questions should be bundled together in, say, one factual problem with three sub-questions, for a total of 10 percentage points. That way, we strike a balance. Too few questions and the examinee runs the risk of being caught on the few points of law that he didn’t study. Too many, and the examinee runs out of time to answer them all. Worse, the weights assigned perforce are limited to 2 or 3 points for each question. A perfect answer gets a 3, but anything less than perfect gets a 2—technically a grade of 66 percent in an exam where the passing grade is 75 percent. It’s just impossible to grade such questions fairly.

I hope this gentle critique doesn’t deter further experimenting with bold reforms. There are basically two sets of proposed reforms. The first focuses on the substance of the exam, the nature of the questions asked (e.g., avoid rote memory, use problem-based questions using cases, avoid questions on esoteric points of law). The second set focuses on how the bar exam is administered (e.g., who makes the questions, how he or she grades the answers, or how the passing grade is fixed).

The first kind of reform is more difficult. UP law professor Florin Hilbay, ranked 1st in the 1999 bar examinations, Yale LL.M. and now vice chair of Bantay Katarungan, published an essay in the Integrated Bar of the Philippines Journal entitled “The Flunker: The Bar Exams & The Construction of the Filipino Lawyer.” He says that the bar exam “suffers from an identity crisis—it does not know what it’s really for.” It is a “licensure exam,” “a filtering mechanism that weeds out [the in]competent.” But it is also a measure of “some vague potential” for genius.

The bar exam cannot achieve one goal without sacrificing the other. A “pass/fail” grading system will serve the winnowing out function but not the mother-of-all-battles fetish. We test on too many bar subjects, instead of focusing on the main subjects that embody the core competencies needed by a young lawyer. Hilbay says that this “transforms intelligent young Filipinos into zombies walking along the corridors of law schools memorizing voluminous texts” and has reduced the bar exam into “nothing more than a national quiz bee on statutes and decided cases.”

The second kind of reform is actually what the recent change addresses, the sociology of who asks the questions and grades the answers. This is where the real uncertainty and arbitrariness comes in because each year, there are new bar examiners, who in turn are left unchecked if they ask idiosyncratic questions or apply unrealistic grading patterns. (There was a year when one examiner passed less than 1 percent in his subject, and another less than 7 percent!) That is why Justice Vicente Mendoza has proposed a standing committee of examiners and graders.

Finally, I implore all law deans to stop bar candidates from calling themselves “barristers.” When I go abroad and meet real barristers—especially the Queen’s Counsels—I shudder at the prospect that they will discover how benighted Filipinos have debased the term to mean mere aspirants for the lawyers’ guild.

The error is understandable. We have what they call a “unified bar” and make no distinction between solicitors and barristers. But it’s an error nonetheless.

* * *

See:
http://opinion.inquirer.net/inquireropinion/columns/view/20100325-260785/Bar-exam-reforms

The citizens as protectors of the judiciary

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