noynoy vs. the supremes

CONSTITUTIONALIST Joaquin Bernas on Wednesday urged president-apparent Benigno Aquino III to set aside his opposition to the appointment of Chief Justice Renato Corona as a way of avoiding a constitutional crisis.

but a constitutional crisis is already upon us, thanks to the supreme court decision exempting the judiciary from the ban on midnight appointments by outgoing prez gma.   in effect the supremes practically, unilaterally, amended the consitution to accommodate the padrina to whom they owe their appointments.   associate justice conchita carpio morales stands tall as the lone supreme dissenter, mabuhay siya!   excerpts from her dissenting opinion, including transcripts of concom deliberations, via elmot @ pinoysoundingboard.com:

The clear intent of the framers is …  for the ban on midnight appointments to apply to the judiciary.

Taking into account how the framers painstakingly rummaged through various sections of the Constitution and came up with only one exception with the need to specify the executive department, it insults the collective intelligence and diligence of the ConCom to postulate that it intended to exclude the judiciary but missed out on that one.

To hold that the ban on midnight appointments applies only to executive positions, and not to vacancies in the judiciary and independent constitutional bodies, is to make the prohibition practically useless. It bears noting that Section 15, Article VII of the Constitution already allows the President, by way of exception, to make temporary appointments in the Executive Department during the prohibited period. Under this view, there is virtually no restriction on the President’s power of appointment during the prohibited period.

The general rule is clear since the prohibition applies to ALL kinds of midnight appointments. The Constitution made no distinction. Ubi lex non distinguit nec nos distinguere debemos.

What complicates the ponencia is its great preoccupation with Section 15 of Article VII, particularly its fixation with sentences or phrases that are neither written nor referred to therein. Verba legis non est recedendum, index animi sermo est. There should be no departure from the words of the statute, for speech is the index of intention.

It is ironic for the ponencia to state on the one hand that the President would be deprived of ample time to reflect on the qualifications of the nominees, and to show on the other hand that the President has, in recent history, filled the vacancy in the position of Chief Justice in one or two days.

It is ironic for the ponencia to recognize that the President may need as much as 90 days of reflection in appointing a member of the Court, and yet abhor the idea of an acting Chief Justice in the interregnum as provided for by law,[21][21] confirmed by tradition,[22][22] and settled by jurisprudence[23][23] to be an internal matter.

The express allowance of a 90-day period of vacancy rebuts any policy argument on the necessity to avoid a vacuum of even a single day in the position of an appointed Chief Justice.

As a member of the Court, I strongly take exception to the ponencia’s implication that the Court cannot function without a sitting Chief Justice.

To begin with, judicial power is vested in one Supreme Court[24][24] 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.

The fundamental principle in the system of laws recognizes that there is only one Supreme Court from whose decisions all other courts are required to take their bearings. While most of the Court’s work is performed by its three divisions, the Court remains one court — single, unitary, complete and supreme. Flowing from this is the fact that, while individual justices may dissent or only partially concur, when the Court states what the law is, it speaks with only one voice.[25][25]

The Court, as a collegial body, operates on a “one member, one vote” basis, whether it sits en banc or in divisions. The competence, probity and independence of the Court en banc, or those of the Court’s Division to which the Chief Justice belongs, have never depended on whether the member voting as Chief Justice is merely an acting Chief Justice or a duly appointed one.

IN LIGHT OF THE FOREGOING, I vote to hold, for the guidance of the Judicial and Bar Coucil, that the incumbent President is constitutionally proscribed from appointing the successor of Chief Justice Reynato S. Puno upon his retirement on May 17, 2010 until the ban ends at 12:00 noon of June 30, 2010.

CONCHITA CARPIO MORALES
Associate Justice

read too legal maverick alan paguia‘s take on the corona appointment (INVALID) and abe n. margallo‘s take on the supremes (FALLIBLE).

and here’s rene saguisag, who never fails to enlighten:

I decided to resist Martial Law from Day One. Not many others did because the Good Filipinos, like the Good Germans, would salute anything calling itself as law printed at public expense. Today we again hear from Good Filipinos: follow whatever government says even if the Supreme Court (SC) rules that the Judicial and Bar Council (JBC) may be ignored altogether.

Chief Justice (CJ) Davide and CJ Puno were both told by GMA that she did not like the JBC lists and asked them to submit another. Neither remonstrated to protect the body’s independence. Pray tell, how could an economist and a general as Little Prez know better than the JBC whose members are all lawyers?

We hear today, be prudent, just continue multiplying like rabbits. This was probably what our leaders were telling our people in the face of Spanish, British, American, Japanese, and native oppressors. The poor protested in 2001. Rene Corona, as GMA adviser, reportedly called them “mga walang ngipin, walang salawal, atbp.” May they rely on him for justice in a society where the system reflects the biases of the ruling class? If he must stage a presscon, he should not do so in political combat but tell us what he intends to do, if he must speak at all other than in writing in an actual case. I was privileged to know his father, a very good man who lost his life the same my wife did, in a vehicular incident. I cannot believe his father would look down at the poor the way Rene reportedly did in 2001.

Today leaders in the community tell us to obey a CJ who even stages presscons, behaving like a taunting politician and doing what the unelected SC members do, issue circulars without any public hearings as is done by elected lawmakers. It used to be that law grew by precedents set in actual cases and we were told that future cases must be examined as to their facts because general propositions do not decide concrete cases. Now we drown in circulars such as one disrespecting an accused’s right not to speak by compelling him to appear in criminal pre-trials and stipulate.

Holmes said that even a dog would know the difference between being stumbled over and being kicked.We got kicked by the Spaniards, the British, Americans, and Japanese and when our own started to oppress us, we could not tell the difference anymore. Follow the rule of law, the natives were told, by the arrogant in power.

Seniority was one reason I said no to a signed SC appointment in 1986. I was 47 and so many qualified career people in their 50’s and 60’s were ahead in line, which did not stop modern and forward-looking lawyers Rene and Tony Carpio from bypassing so many others. They should have been taught by Ma’m Baby and Fr. BB of an earlier time to stand in line. We are watching whether Rene knows his right foot from his left given his very sad start in 2001. And Tony does not stage presscons to insult a political foe of GMA. At 62, Rene remains immature, from where I sit.
opinion@manilatimes.net

and so i agree with manolo quezon:

In the end what every administration has the right to expect, is to set the tone for its turn at the helm. This is why there have been so many innovations and departures from tradition in inaugurations. Thus putting in place a chief justice who soiled his own robes not only justifies, but almost makes mandatory, some sort of deviation from tradition. Whether a barangay captain or associate justice administers the presidential oath matters less than the next president’s right to demonstrate that ethics will be part of his core approach to the responsibilities of his office.

nothing wrong with breaking from tradition when tradition only serves to validate the illegal.   if i were the president-elect, i would ask associate justice conchita carpio-morales to swear me in.   she deserves the honor and place in history.