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The Supreme Court decision allowing President Gloria Macapagal Arroyo to appoint the new chief justice despite the constitutional prohibition on midnight appointments was met with opposition by civil society groups, politicians, militant organizations and every citizen who still dreams of restoring sanity in Philippine governance. The ponente, Justice Lucas Bersamin, banked his argument on a constitutional provision that mandates the President to appoint members of the judiciary within 90 days from the time of the vacancy.
Protesters point out another constitutional provision Bersamin seemed to have conveniently overlooked, the one that says that two months before the day of the election up to the end of the term of the incumbent president, the President is prohibited from making any appointment, except to executive positions when the continued vacancy will prejudice public service or endanger public safety. The ponente argued that the ban on midnight appointments was placed under the executive department and not under the judiciary.
I don?t know if the justices who voted ?yes? forgot a decision made by the Supreme Court in 1998 declaring the appointment of two judges by then outgoing president Fidel V. Ramos as null and void because it violated the constitutional provision on midnight appointments. The recent decision of the Supreme Court means that it has abandoned the Valenzuela and Vallarta doctrine, although the high court failed to resolve this specific issue for lack of a majority vote.
The court also gave more weight to the opinion of Constitutional Commission member Florenz Regalado against the opinion of another Constitutional Commission member Fr. Joaquin Bernas. SC spokesman Midas Marquez explained that it could be because Justice Regalado holds the record of getting the highest score in the history of the Philippine bar exams while Bernas only placed 5th or 6th in his bar. I don?t know if the argument is valid in deciding on a monumental issue that may seal the future of the republic. Does getting the highest score in the bar exam mean you?re always better than other lawyers?
Why didn?t the Supreme Court look into the proceedings of the Constitutional Commission to to determine the intention and meaning of the contested provision and decide wisely on the issue?
Winnie Collas-Monsod?s column in the Inquirer yesterday shared with us the views of the members of the Constitutional Commission during their deliberations on the issue of the midnight appointments, which, by the way, was authored by a Cebuano, former chief justice Hilario Davide Jr.
I think if only the members of the Supreme Court used their resourcefulness in reading the deliberations of the Con-Com, they would have been able to come up with a more learned decision.
I learned in law school the basic principle of statutory construction, which provides that if the law does not distinguish, then let us not distinguish. In this case, the provision on midnight appointments did not distinguish whether it covers only members of the executive department.
What is clear is that the provision stated it in general terms, thus it means that it covers all appointments. The conjecture that the ban on midnight appointments only applies to the executive branch of government is baseless. Bear in mind that the power to appoint members of the Supreme Court is a responsibility vested in the President. It is an executive power.
People are now asking whether Bersamin is correctly reading the argument he and other justices are using to justify their decision to allow Arroyo to appoint the new chief justice. If it is done within 90 days, does it not cover the new president because upon the assumption of power of the new president he still has about 40 days to go to make the appointment.
Con-Com member Christian Monsod was shocked by the Supreme Court decision. He called the present Supreme Court the ?Arroyo Court.? Many people share Monsod?s view and are just as shocked at the court?s mockery of the constitution. As a consuelo de bobo, Malacañang issued a statement that the President is not going to press the Judicial and Bar Council to submit the names of its nominees for chief justice.
Why did the Supreme Court decided the way it did? The way I look at it, it?s probably because the justices, except for outgoing chief justice Reynato Puno, are appointees of President Arroyo. Perhaps they thought that inasmuch as this would be the last official act of the President before she exits, then they must as well grant her wish to appoint the next chief justice, a payment of their debt of gratitude.
The court?s decision has compromised the independence of the highest court of the land.
It is dangerous to have the President appoint the next chief justice especially because she is running for Congress and there is a great possibility she would become the Speaker of the House, of her leading Charter change initiatives and becoming prime minister.
But I see the possibility of her not appointing the next chief justice, leaving us a small positive legacy where constitutional issues are concerned. I hope she still has a shred of delicadeza left in her for that.
