The darker side of midnight

The darker side of midnight
By Raul Pangalangan
Philippine Daily Inquirer

THE POLITICAL RESULT OF THE SUPREME Court decision is clear enough. It allows President Macapagal-Arroyo to extend her influence beyond her term and buy some form of insurance, however limited, against future prosecution for the depredation committed under her watch.

My concern right now, however, is mainly academic and legal. The ban on midnight appointments is categorical enough (see my column of Jan. 22, 2010), yet how did the Supreme Court find its way to say that President Arroyo can appoint the next chief justice? Chief Justice Reynato Puno will retire on May 17, while the appointments ban already came into effect on March 10 and will stand until noon of June 30 when Ms Arroyo’s term expires.

First, the Court had to dispense with threshold questions of jurisdiction: whether the petitioners were the proper parties to raise issues (the question of standing) and whether it was premature to raise the issues (the question of ripeness) before a live dispute had been triggered off by Puno’s actual retirement.

There were many petitioners: several lawyers, the Philippine Constitution Association, a chapter of the Integrated Bar of the Philippines, other lawyers’ groups, and persons identified with the party-list groups Bagong Alyansang Bayan and Akbayan. The Court held that they had “demonstrated [an] adequate interest in the outcome” and therefore had standing. It also said that there was a live dispute because the appointments process was already in full swing, because it begins with the proceedings by the Judicial and Bar Council.

Note that two justices, Eduardo Nachura and Arturo Brion, wrote separately to raise the question of ripeness and justiceability. Suffice it to say at this point that the trend in post-Edsa 1 SC decisions had been to unduly relax the traditional rules on standing and ripeness. Worse, each time the Court would dilute these doctrines in order to advance progressive causes, the gallery applauded. I have long been warning about the erosion of doctrine but the populist mood of the times lowers our guard “against the assaults of opportunism, the expediency of the passing hour … the derision of those who have no patience with general principles.”

On the merits, the Court held that the prohibition on midnight appointments by the President applied only to the Executive Branch and did not extend to judicial appointments. One, the Court reasoned on the basis of the structure and organization of the Constitution. It cited the positioning of the appointments ban, which is found in the article on the Executive Department, in contrast to the appointment of the CJ, which is found in the article on the Judicial Department. Two, the Court reversed an earlier ruling (the Valenzuela case), where it held the opposite view that the appointments ban applied to judicial appointments. The Court drew from the intent of the drafters on two points: The clause that any judicial “vacancy shall be filled within 90 days” is a command, and the appointments ban was never meant to cover judicial appointments. Indeed the Court relied on the opinion by retired Justice Florenz Regalado, one of the authors of the Constitution, who confirmed for the Court during the Valenzuela deliberations that the intent was to apply the appointments ban only to the Executive.

The dissenting opinion by Justice Conchita Carpio-Morales rejects the heuristic or interpretive value of the positioning and sequencing of constitutional clauses. The “trivialities of draftsmanship style” are “entitled to very little weight … the weight of helium.” She also cites the drafters’ debates to show the drafters were aware that the mischief caused by midnight appointments applied equally to judicial appointments. Although the JBC has been created as a check on presidential powers, it does not obviate the usefulness of the appointments ban.

The Court also rejected the practical argument that there is ample time left, after the appointments ban expires on June 30, for the new president to appoint, 45 days to be exact. The Court said prudently that it is laying down an interpretation not just for the Puno vacancy, but for future situations as well where it might be impossible for the president to appoint a new justice without violating either of the two rules. (Carpio-Morales offered a more simple formula: the running of the 90-day period to appoint is tolled by the appointments ban.)

I think the majority opinion was at its strongest legally where it was weakest historically. The old Valenzuela ruling “will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency …. [T]he wisdom of having the new President … appoint the next Chief Justice is itself suspect and cannot ensure judicial independence.” That is to say, if we are really serious about making sure that the Court is not beholden to the new president, then why wait for the new president to appoint him? Indeed.

But read on. “In contrast, the appointment by the incumbent President [read: Arroyo] does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010.”

Precisely the point. We shouldn’t be blind to history. Since her term ends by June 30, with more reason she would want to prolong her influence, if not her reign, especially given the illicit billions that have been purloined from the public coffers.

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Karen Ang

A plebeian who is trying to make small changes in this world.