Intellectual dishonesty in high court?

Intellectual dishonesty in high court?
By Solita Collas-Monsod
Philippine Daily Inquirer

ALMOST 40 YEARS AGO IT WAS, I WAS appalled, outraged, incredulous, despairing, forlorn, betrayed and, yes, deeply afraid, as I watched while our Supreme Court, “the last bulwark of democracy” gave its imprimatur first, to martial law, and then next, to a constitution ratified by some kind of viva voce vote at barangay or municipal halls. In short, the Supreme Court justices (not everyone—there were dissenters, like Justice Enrique Zaldivar) then sold themselves out, shifting their loyalties from the Constitution to the dictator, and prostituting their legal talent in order to provide a patina of constitutionality, if not respectability, to the Marcosian abuses. If memory serves, they were among the first to be tagged with the label “tuta.”

And now, the Supreme Court has done it again. It has placed people above principles, placed personal loyalty above loyalty to country and Constitution. And again, I feel appalled, outraged, etc., etc. As must millions of other people. If there was a Marcos Court (instead of a Concepcion Court or a Fernando Court, to name a couple of chief justices during the Marcos regime), we now indubitably have an Arroyo Court—depicting a Court led by the Chief Executive rather than an independent one. But while at least there was some excuse for the craven behavior of members of the Marcos Court—the fear factor was very strong, what with all those arrests and disappearances of people in both high and low places—the present Arroyo Court cannot even hide behind that excuse.

Also, at least the Marcos Supreme Court, when confronted with the fait accompli of martial law, were caught by surprise and had difficulty looking for precedents. The Arroyo Court, on the other hand, in order to arrive at its desired conclusion—that the President can make a midnight appointment—has ignored precedents, badmouthing them, as it were. This Court has found it not only fit to reverse a previous unanimous Supreme Court decision, but actually has the temerity and bad taste to say that such a decision (participated in by the likes of Hilario Davide Jr, Artemio Panganiban, Reynato Puno) “deserves to be quickly sent to the dustbin of the unworthy and forgettable”; it has put words in the Constitution’s mouth and the mouth of the 1986 Constitutional Commission proceedings, attributing to them intentions that are just not there; and it has done so with unnatural, if not unseemly speed.

Frankly, it smacks not only of mediocrity, but of intellectual dishonesty as well.

One example should suffice. The decision, penned by Justice Lucas Bersamin (of Radstock fame or notoriety—he insisted, in his dissenting opinion, that the Radstock compromise agreement, which would have stripped PNCC of all its assets and left the government holding a P36-billion bag of unpaid PNCC debt, was advantageous to the government and to PNCC), makes much of the opinion of former Justice Florenz Regalado, a member of the 1986 Constitutional Commission, who was quoted as saying that “on the basis of the Constitutional Commission’s records, the election ban had no application to the appointments to the Court of Appeals.” But Bersamin does not quote any of the records to support the assertion.

On the other hand, Justice Conchita Carpio Morales, in a dissent which makes mincemeat of the arguments of the majority decision, showing without mercy their weaknesses, quotes chapter and verse from the ConCom’s proceedings, particularly those pertaining to the deliberations on the president’s power to appoint. Apparently, it was Commissioner Hilario Davide (later to become chief justice) who was the author of Sec. 15 of Article VII of the Constitution, which is the ban on so-called “midnight appointments.” Specifically, the provision states: “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.”

As if that were not clear enough, Davide, during the ConCom proceedings, explained the concept behind that provision thus:

“MR. DAVIDE: The idea of the proposal is that about the end of the term of the President, he may prolong his rule indirectly by appointing people to these sensitive positions, like the commissions, the Ombudsman, the judiciary, so he could perpetuate himself in power even beyond his term of office; therefore foreclosing the right of his successor to make appointments to these positions. We should realize that the term of the President is six years and under what we had voted on, there is no reelection for him. Yet he can continue to rule the country through appointments made about the end of his term to these sensitive positions.”

And yet, flying in the face of such an explicit reference to the judiciary being included in the scope of Sec. 15 of Article VII, the majority decision of the Supreme Court insists on the position that either the judiciary (five justices) or just the Supreme Court appointments (four justices) are not included in the ban. As mentioned above, Justice Morales tears their arguments apart.

As a legal luminary observes, “For over half a century now, the ban on midnight appointments has always been understood, interpreted and observed by the Government and the Filipino people as applicable to the judiciary.”

Until the Arroyo Court came along, that is. There are none so blind as those who refuse to see. Shame on them.

Karen Ang

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