“Those who cannot remember the past are condemned to repeat it.” — George Santayana
CHICAGO (JGLi) – The midnight appointments and that of the Chief Justice of the Philippine Supreme Court being contemplated by outgoing President Gloria Macapagal Arroyo (GMA) must surely be causing her father, President Diosdado Macapagal, to turn over his grave.
Under the Philippine Constitution, the President is barred from making appointments two months before the election. But the majority members of the 14-member Philippine Supreme Court, in their effort to pay back their gratitude to GMA for appointing them, accommodated her (pinagbigyan). The Supreme Court gave her an exception to appoint the next Chief Justice, which will be left vacant on May 17, seven days after the election, a blatant violation of the Constitution.
If Mrs. Arroyo were a condemned person, the Supreme Court gave her her last wish (huling kahilingan). Garapalan talaga. (The justices have become shameless and thick-skinned and insensitive to criticisms.)
But if Mrs. Arroyo still has a tiny shred of delicadeza (propriety), she should not exercise her option to appoint Puno’s replacement. She should leave it to the next president of the Philippines to make such decision.
After all, the Constitution allows the Chief Justice to be replaced within 90 days from the vacancy, which covers the new president, who will be sworn into office on June 30, 44 calendar days after Chief Justice Reynato Puno’s retirement.
Aside from Puno’s replacement, Mrs. Arroyo also announced numerous appointments inside the 60-day banned period. But Mrs. Arroyo antedated the appointments so she could circumvent the law.
Instead of following on the footsteps of her father, Mrs. Arroyo made a clean break from the decision of her father, who opposed the midnight appointments of his predecessor, President Carlos P. Garcia.
If Mrs. Arroyo appoints Puno’s replacement, she will not only be violating the Constitution but also the Fourth Commandment – “Honor thy father and thy mother.”
Perhaps, Mrs. Arroyo could feign innocence of the political upheaval brought about by her father because she was still a teenager (15 years old) at the time. But she has a battery of legal advisers old enough to remember that in his first official acts as incoming president, Diosdado Macapagal revoked the appointments of 350 friends and followers of outgoing President Garcia, including the appointment of Garcia’s Finance Minister Dominador Aytona as governor of the Central Bank of the Philippines.
IRREGULAR, IMMORAL AND UNJUST
The elder Macapagal’s order was later upheld in the celebrated case of Castillo v. Aytona by the Supreme Court, which ruled that:
(1) the outgoing President should have refrained from filling vacancies to give the new President opportunity to consider names in the light of his new policies, which were approved by the electorate in the last elections;
(2) these scandalously hurried appointments en masse do not fall within the intent and spirit of the constitutional provision authorizing the issuance of ad interim appointments;
(3) the appointments were irregular, immoral and unjust, because they were issued only upon the condition that the appointee would immediately qualify obviously to prevent a recall or revocation by the incoming President, with the result that those deserving of promotion or appointment who preferred to be named by the new President declined and were by-passed; and
(4) the abnormal conditions surrounding the appointment and qualifications evinced a desire on the part of the outgoing President merely subvert the policies of the incoming administration.
I agree that making midnight appointment is a destabilizing move. It is not employed for a smooth transition either. It is like Mrs. Arroyo, retreating from a battlefield and leaving mines and booby traps so her enemies can no longer catch up with her.
The staff of outgoing President Clinton were kinder and naughtier: they removed the letter “W’s” from the keyboards of the computers in the White House to the surprise of the incoming George W. Bush Administration.
GMA DOES NOT NEED A CHIEF JUSTICE
With the military commanders and the 14 justices in her pocket, Mrs. Arroyo is never satisfied. She is a perfectionist – she wants everything, including the Chief Justice in her very big pocket. That is, even if she does not need the Chief Justice to get a majority ruling she envisions in the future.
Mrs. Arroyo should listen to the near universal criticisms against her appointing a Chief Justice. Among the reasons advanced by overseas Filipinos led by Atty. Loida Nicolas Lewis, who are urging the Supreme Court to reverse the March 17 ruling, authorizing Mrs. Arroyo to appoint the new chief justice, is that there is no urgency in appointing a new Chief Justice. Without a Chief Justice, the Supreme Court can continue “to function.”
They added, “the vacancy sometimes takes as long as 60 days and yet, with an acting chief justice (held by a senior associate justice), the system did not go out of control.
“There have been instances … in the Philippines and in the United States when they have been without a permanent chief justice…Why the hurry?” Lewis asked.
“The Chief Justice vote is just one of the 15 justices and a quorum requires eight justices. Problems that may arise on the May 10, 2010 election do not necessarily need the immediate attention of the Supreme Court,” they added.
The incoming president will still have sufficient time to appoint the Chief Justice within the Constitutional 90-day requirement following Puno’s retirement. The new president takes over 44 days after Puno’s retirement.
“MIDNIGHT JUDGES”
Interestingly, it was also a case of midnight appointments in the United States that settled the issue that when Acts of Congress conflict with the Constitution, the “Acts of Congress are not law and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review.”
In deciding whether William Marbury had a remedy, Chief Justice John Marshall stated in the landmark Marbury v. Madison: “The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.”
On March 3, 1801, just before his term was to end, Federalist President John Adams, in an attempt to stymie the incoming Democratic-Republican Congress administration, appointed 16 Federalist circuit judges and 42 Federalist justices of the peace to offices created by the Judiciary Act of 1801. These appointees, the infamous “Midnight Judges,” were all located in the Washington and Alexandria area. One of them was Marbury, a native of Maryland and a prosperous financier.
His commission was not subsequently delivered. Marbury petitioned the Supreme Court to force Secretary of State James Madison to deliver the documents. But the court, with Marshall as Chief Justice, denied Marbury’s petition, holding that the part of the statute upon which he based his claim, the Judiciary Act of 1789, was unconstitutional.
It was the first time the Supreme Court declared something “unconstitutional.” Marbury did not get his appointment. (lariosa_jos@sbcglobal.net)