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.

ang pikon, talo

an expat who might have voted for gibo if he were home for the elections, but kept track through twitter, reacts to the losing camp’s dismay:

Such disappointment and disenchantment among the Pinoy Twitterati post election: lack of transparency, a better way to do this, an uninformed masa, a broken democracy, yadda yadda. To be fair, they all seem to be trying their best not to be too overtly bitter. But to anyone who can read between the lines, these guys are kinda embarrassing themselves. Mostly because they wouldn’t be whistling this tune if their candidate had won, now would they? No, they’d be proud Pinoys, ready to stand tall behind our flag, to shout from their twitter stream that Pinoys rule and our democracy rocks!

Here’s the sad part, guys, you were right the first time. There was a distressing lack of transparency. The political system is so broken and fixing it would lead to a better way of doing this. The masses still think it’s a popularity contest (Good God, Erap?! Again?!).  None of that equals a working democracy.

But in your frustration and disappointment you’re forgetting that this is so goddamned much better than what we had in the 60’s and 70’s with Marcos. So much safer and productive than what we have even now in Maguindanao — where resistance, where providing a choice, where even thinkingof exercising a right to choose equals a shallow anonymous grave. You’re  failing to appreciate that with martial law just a few short decades ago, and the Ampatuan massacre only half a year ago, the recent relatively uneventful elections (absolutely boring, actually) *is* something to flood your social networks about.

So get your heads out of your asses and accept defeat with the same grace and composure that most of your candidates did. We’re nowhere near the Hollywood/West Wing ending a Gibo win would have us celebrate, but this has got to be considered progress pa rin.

oo nga naman.   and enough with threats of migrating, which is so self-centered.   raising your hopes so high, in the first place, was rather naive and unrealistic.

sa kabilang banda, there’s kris aquino who’s also pikon, kahit panalo, over the facebook page kris aquino’s despedida party (18k members and counting).   of course no one expects her to leave, not just yet anyway.   if anything, people expected her to do a miriam and say “i lied”, sabay halakhak.   but really, it’s a warning that she’ll be under close watch.   she would be wise to stay out of politics (though i’m not sure how if she is to continue helping out president noynoy) cos people will pounce pounce pounce every time she says the politically incorrect thing (as in, foot in her mouth stuff a la “katas ng hacienda luisita”) and so, yeah, a despedida may not be so farfetched, whether noynoy gets it or not.

noynoy’s sisters 4 binay???

totoo kaya itong inside story ni emil jurado, kolumnista ng manilastandardtoday?

Admittedly, the biggest surprise in the election is Makati Mayor Jojo Binay, who is almost sure of becoming the next vice president. Binay is likely to beat Liberal Party vice presidential bet Senator Mar Roxas.

While poll surveys had shown the surge of Binay overtaking Mar Roxas during the last two weeks of the campaign, nobody, including myself, expected Binay to lead the actual vice presidential race.

So why Binay? I was told that during the last stretch of the campaign, the “three Stygian sisters,” (like those in the movie “Clash of the Titans”) told Noynoy supporters to campaign hard for Binay instead of Mar.

The “Stygian sisters” were not comfortable with Mar being a vice president. They knew deep in their hearts that Noynoy would be overshadowed by Mar. Roxas has all the credentials and qualifications we can hope for. He has achieved many things. You cannot say this about Noynoy.

Aside from this, I was told by LP insiders that the “Stygians sisters” were also uncomfortable with the Aranetas and their money. The Aranetas later stopped the funding, which led to a confrontation between the Noynoy and Mar strategists. The confrontation was so intense that party insiders feared a breakup between Noynoy and Mar.

Recall that Noynoy went to the extent of saying that he would share up to 80 percent of his powers with Mar if they are both elected. That statement was taken by many as reckless and irresponsible, made only to please Mar and his followers. The bottom line is that the presidency has the sole responsibility and accountability in his administration. The buck stops at the desk of the president.

In any case, when Senator Chiz Escudero announced his “Noy-Bi” preference, the “Stygian sisters” and Noynoy strategists went all-out for Binay, junking Mar Roxas. The result is now what we see in the election results with Binay ahead of Mar in the latest count.

so i googled “kris for binay?” and got this instead:

“I only have good feelings for Mayor Binay – but my  vote is for MAR,” nakasaad sa Twitter ni Kris.

hmm.   baka naman she meant jejoMAR!!!   LOL

2010 Elections: Waiting for a happy ending

Tonyo Cruz

We Filipinos love happy endings and we’d like to see one at the end of 2010 election season.

But, so far, many appear not to be in a celebratory mood even after the Commission on Elections started announcing official results at the national level. Noynoy Aquino appears set to be the next president, capturing 40 percent of tallied votes, but he and his fans have not been triumphant in their statements.

Aquino’s foes led by Manny Villar (my candidate) have graciously accepted defeat and promptly congratulated him. Richard Gordon said Aquino scored a “spectacular victory”. Only Joseph Estrada is left fighting, so to speak, but no one cares.

Still, no party to celebrate the Aquino victory. Why?

There are many things to be happy about: The quick tallying of votes by the Comelec, the quick proclamation of winners in some local posts, the quick and gracious concession speeches made by Aquino’s foes.

These however don’t appear to be enough to make us happy.

We may not be happy may be because it was all too quick and we don’t know what exactly happened.

All throughout the day, there were PCOS machines malfunctioning, wrong ballots, dead persons on the voters list but living ones cannot be found, the inexplicable long lines, and the like. In some areas, the Comelec proposed that a failure of elections be declared. The small problems became so big that the Comelec had to extend voting until 7:00 pm.

Meanwhile, the operational and functinong PCOS machines apparently did their job, which is most probably the reason why theComelec has been able to quickly release official tallies.

Perhaps we are just cautious. The Aquino camp still awaits the results in the vice presidential race where rival Jejomar Binay is leadingperennial survey winner Mar Roxas. The senatorial race is still not over because the last two or three of the 12 winning candidates may still change. Media meawhile has been a bit remiss in reporting on the bulk of local races.

Or perhaps we are skeptical of the credibility of the results tallied by the Comelec? Maybe we still don’t want to celebrate because the Comelec (and Smartmatic-TIM) has long denied us adequate information and access on the automated election system (AES) from Day One so we would know for sure that each vote was properly counted so the results would be credible. Besides, the Comelec itself was/is not the paragon of credibility, with or without the AES.

It appears to me that the Comelec is trying but not succeeding in hypnotizing us into just accepting the super-fast release of tallies without giving us explanations on how it arrived at those figures, where the votes came from, etc. Precisely the same questions many have raised as the Comelec imposed this AES on us.

If we are to believe what has been happening since Comelec started to release results, we just had the “cleanest” and “most honest” elections. No news on how the Comelec addressed all the precinct-level problems #juanvote and mainstream media reported throughout the day. No news on private armies (i.e. Ampatuan) that were supposedly disbanded to unleash voters who are routinely harassed into voting for warlords. In the partylist race, which the Comelec bungled by accrediting and keeping the administration-instigated groups and personalities, we hear no meaningful or profoundly news. No news either on how and how soon the Election Day glitches were addressed, or how many were disenfranchised.

Maybe, that’s it: Filipinos wanted not just quick elections: We wanted quick and credible elections. And the Comelec has only been able to give us a quickie.

Definitely, that’s not a happy ending.