Impeaching the ‘midnight chief justice’

PERRYSCOPE
Perry Diaz

There was a time when the Supreme Court of the Philippines was treated like a “sacred cow,” all its decisions accepted as the gospel of righteousness and beyond reproach.

As the final arbiter of all constitutional issues and legal disputes, the Supreme Court was held in high esteem as the justices had demonstrated integrity, credibility, judicial independence, and superior quality of reasoning. With 15 justices debating the cases brought before them, it can be surmised that the collective opinion of a majority -- eight or more justices -- represents a sound, fair, and judicious resolution of the cases; thus, their rulings are deemed infallible.

The process by which all the justices participate in an iterative, interactive, and deliberative discussion ensures that their rulings would be consistent with the meaning as well as the spirit of the constitution.
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The Supreme Court is divided into three divisions with five members each chaired by a senior justice. The chief justice chairs the First Division; the most senior associate justice chairs the Second Division; and the second most senior chairs the Third Division. A case may be heard by a division or, for major cases, en banc (the entire body).

When a petition is brought before the Supreme Court, it is raffled off to one of the justices using a bingo flask and the justice who is assigned the case is called ponente (Spanish for proponent of a motion). The ponente is responsible for studying and researching the case and writing the draft decision or ponencia.

After gathering all the facts and looking into the judicial merits of the case, the ponente presents all these before his or her peers and leads the discussion on the case. The other justices would then conduct their own research and draft their own arguments for or against the ponente’s ponencia.

However, there were times when the justices would just let the ponente do all the work, which is dangerous because the ponente may not have done his or her “homework” diligently and judiciously as in the case of a ponencia written by Justice Mariano del Castillo, which turned out to have been plagiarized in some parts.

There are other cases where the decisions of the Supreme Court were viewed with suspicion albeit accepted only because of the mindset that the Supreme Court is “supreme” and the final arbiter regardless of whether it was right or wrong.
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In the past decade, there were three rulings that diminished the people’s trust and respect for the Supreme Court.

The first was the proclamation of then vice president Gloria Macapagal Arroyo as president on January 20, 2001 by then Supreme Court chief justice Hilario Davide Jr. It was the understanding of the justices that Arroyo would be sworn in as “acting president” only since Joseph Estrada was still the president at that time.

As agreed, Davide was supposed to swear in Arroyo as “acting president” while Estrada was to take a leave of absence due to “health problems.” However, when Davide was administering Arroyo’s oath of office, he dropped the word “acting,” thus installing her as “president.”

Consequently, to cover the illegal act, the Supreme Court made a ruling that the proclamation of Arroyo was valid under the doctrine of “constructive resignation.” However, statutorily, this “doctrine” does not exist in Philippine law. In all reality, it was a judicial coup d’état backed by the military’s top brass who abandoned Estrada at the eleventh hour and switched their support to Arroyo. With that, the takeover of Arroyo wasfait accompli. That was the first trampling of the 1987 constitution.
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The second trampling of the 1987 constitution was when the Supreme Court ruled that the President (i.e., Arroyo) could appoint the chief justice during the constitutional ban on “midnight appointments,” which was clearly and unequivocally stated in Section 15 Article VII of the constitution, to wit: “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.” When the petitioners submitted a motion for reconsideration, the Supreme Court upheld its original ruling; thus, making it legal, final, and executory, which in effect arbitrarily amended the Philippine constitution.
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The third trampling of the constitution was the Supreme Court’s recent decision declaring Aquino’s Executive Order No 1 -- which created the Truth Commission -- unconstitutional. By a 10-5 vote, the high court said, “The violation of the equal protection clause was the common ground in the opinions of the majority.” But what is strange – and seemingly anomalous — is that the Supreme Court, through its spokesperson Gleo Guerra, announced that the high court had voted to nullify Executive Order No. 1 before the ponente, Justice Jose Mendoza, wrote his ponencia.

So, where is the iterative, interactive, deliberative “process” required in crafting a majority decision that could withstand the scrutiny of the country’s legal minds? How can the justices intelligently arrive at a majority decision when all the prerequisite work of the ponente was not yet completed?
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As soon as the controversial ruling came out, talks of impeachment against Corona started to circulate in Congress and in the Internet. Many congressmen allied with Aquino were infuriated by the Supreme Court’s issuance of a “status quo ante order” on the House of Representatives’ impeachment proceedings against Ombudsman Merceditas Gutierrez. Gutierrez was allegedly protecting Mike and Gloria Arroyo from prosecution on a multitude of corruption and bribery cases. Many believe that as long as Gutierrez – whose term ends on December 1, 2012 – remains as Ombudsman, she’s not going to prosecute the Arroyos.
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The Aquino administration is expected to file a motion for reconsideration on the junking of Executive Order No. 1. However, as in the past, the “Arroyo Court” would most likely dismiss that motion.

In an act of defiance, the Supreme Court spokesperson Guerra said, “An impeachment complaint is a ‘nuclear option’ and should not be taken lightly.” She added, “The Court has clearly pointed out that it supports the campaign of the Aquino administration in the fight against graft and corruption, which should be done through legal means.” Huh? What could be more legal than a commission that seeks the truth?

Given the threat of a “nuclear option” against Corona, a constitutional crisis looms. For now, there is a standoff with Aquino advising his allies in Congress to stand down. But like they say, “Somebody’s gotta give” or all hell is going to break loose! (PerryDiaz@gmail.com)