If you’re an artist, imagination is a premium asset. If you’re a lawyer, the ability to imagine helps to think out of the box and that can lead to theories and arguments never before heard of nor used that can be helpful not only to a client but to jurisprudence as well. But when you are the Supreme Court, the individual justices and the collective whole alike, you can’t imagine meanings in the law that simply aren’t there. That sums up how I feel about the decision of the Supreme Court allowing President Gloria Arroyo to circumvent a Constitutional prohibition against making appointments during the two months prior to a presidential election.
Most people, those in media included, and even including lawyers that have been interviewed about this issue, talk and write about the prohibition under Section 15 of Article VII, 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.”
Few mention paragraph (1) of Section 4 of Article VIII which states that any vacancy in the Supreme Court “shall be filled within ninety days from the occurrence thereof.”
In short, while Article VII prohibits, Article VIII allows. A case of an imperfect Constitution. To make matters worse, the situation is further complicated by the fact that in case of vagueness or inconsistency in the law, it is the Supreme Court that is the final arbiter.
The Supreme Court had at least three options in dealing with the issue. First, invoke the commonly accepted principle in statutory construction that the law that prohibits takes precedence over the law that allows, and declare that no midnight appointments can be legal if made within two months prior to a presidential election.
The second is to invoke another rule in statutory construction that when two provisions of the law are in conflict with one another, the interpretation that will be given precedence is the one that harmonizes them. In a column published two months ago (“An end to ‘midnight’ appointments” in the Philippine Daily Inquirer), Constitutionalist Fr. Joaquin Bernas uses the term “reconciliation.” He wrote:
“The prohibition against appointment starts March 10 and lasts only until June 30; the period for filling a vacancy (90 days) lasts until Aug. 17. The new President will therefore still have about 45 days after June 30 to make the appointment. Both Article VII and Article VIII can have effect.”
I respectfully disagree with Fr. Bernas but I will deal with the specifics later.
The third option for the Supreme Court was to do nothing. Since the President has not made any appointment, then, there was no justiciable controversy. To decide on the issue would be premature.
But the Supreme Court did not do any of those three. Instead, it read into the Constitution meanings that simply aren’t there. A case, if you will, of pure imagination. In its decision, it says:
“Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President’s or Acting President’s term does not refer to the Members of the Supreme Court.”
To support its conclusion, the Court referred to transcripts of the 1986 Constitutional Commission.
The thing is, transcripts of the Constitutional Commission (or any Constitutional Convention for that matter) are not referred to unless the law is vague. But the vagueness in this case is only apparent but not real.
The fact that Article VII did not exclude Supreme Court appointments means that they were never meant to be excluded. It is totally irrelevant what the framers of the Constitution could or could not have done. That is supposition (I said supposition, not suppository) and there is no need for supposition when the meaning is plain. And here is where I disagree with Fr. Bernas.
Taken side by side, the clear meaning of the two seemingly conflicting provisions of the Constitution is that vacancies in the Supreme Court must be filled within 90 days, as stated in Article VIII, except if one occurs within two months before a presidential election, in which case, the applicable provision is Article VII which is a limitation on the appointing powers of the President. In short, not only do Articles VII and VII cover two distinct branches of government, as pointed out by the Supreme Court in its decision – Section 15 of Article VII and and Paragraph (1) of Section 4 of Article VII cover two different scenarios and time frames.
Writing about all this now might seem moot and academic considering that the Supreme Court has handed down its decision. But I don’t think the issue really ends there. Without meaning to sound like a naysayer, we might be looking at a Constitutional crisis.
Exactly what Justice Conchita Carpio-Morales has said in her dissent, the President’s power to appoint is suspended during the two months preceding a Presidential election.
You liken the majority decision to a product of pure imagination, I like to call it a product of “legal alchemy”. A taste of what to expect from an ‘Arroyo Court.’
Haha I didn’t read the dissenting opinions.
Haha, I believe by this time you have read it. There’s only one!
Nope. I stand by my dissent hehehe
I actually agree with you and the framers of the Constitution(who are still alive and were aghast with an unfortunate constructive interpretation by the Arroyo appointed justices).
With due respect to the justices, I have seen this all the times like in contract language. Even a comma can change a meaning. But an article 8 (Judiciary) can be taken as an equal or superior to article 7 (Executive) provision especially when the justices derives their power from the same article 8.
The SC decision is a message to the framers that you cannot just leave something so important for someone else to interpret in the latter’s favor.
The constitutional crisis will happen if Arroyo appointed a new chief justice and the new president will not recognize the appointed chief.
And this is where self-interest as a group comes in. The judiciary takes a higher a ground and priority for itself in the recent SC decision to fill up its vacancy under its own charter of article 8. Never mind the prohibition of article 7 on executive appointment. It is another way of the justices being supreme.
I’m not savvy on the legalese. But, Connie, you explained this issue so clearly even I can recognize the self-serving motivations. I do think however that the suppository is needed – by the commoner. Bohica!
d0d0ng, it’s not the popular view but there really is a serious need to overhaul the Constitution. When it was framed, everyone was so gung-ho to make it so radically different from Marcos’ Constitution that they missed out on lot of things.
Jeng, I couldn’t resist the reference hehehe
“Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so….”
In short, it’s a manual override. This ain’t a suppository but a jagged pill being shoved to the rear.
The Supreme Court seems to have forgotten that “specifics” are not dealt with in the Constitution but in implementing laws. Otherwise, the Constitution would consist of a thousand volumes.
“When it was framed, everyone was so gung-ho to make it so radically different from Marcos’ Constitution that they missed out on lot of things.”
I agree with this Ms. Connie. Given the circumstances then people were pumped with the revolution, a new government with no solid laws to implement so the framers dare i say, haphazardly made one. i know that the phrases ‘open to interpretation’ or ‘let the courts decide’ have been used a thousand times but in this situation where the interpreter of the law becomes the object of the controversy, who checks on them?
hay, its one of those head-scratching laws again.
Hi Miss Connie. The SC has made its ruling, what happens next? I mean, a lot of people disagree with their decision, but can anything be done to change it? Can the SC change its mind? Thank you!
I hear that some parties are planning to file a motion for reconsideration. I doubt the SC will change its ruling now.
BUT. Many years from now, a Supreme Court with new justices might overturn the current decision.
For sure, if the the chief justice will be appointed, he will not be indebted to whoever will be the next president of the country unless if it’s Arroyo again. This is if I go with the logic that some perpetuates that once you’re appointed by somebody, you have already some favors to reciprocate. Well, if that is so, let’s remove this right to appoint from the president. Let’s have an election for the position of chief justice. Right now, the president is mandated by the constitution to appoint the next chief justice.
Kapag sinabi mong Arroyo appointed chief justice or all those she appointed in the supreme court may also sound as if those on supreme court members that she has appointed have replaced those she unceremoniously kicked-out because they fail the loyalty test. As if her duty to appoint is not mandated in the constitution.
Noynoy will not recognize the chief justice that will be appointed by present administration if he’s elected president. Syempre, gusto nya yung lapdog nya. That is the constitutional crisis that I’m seeing. Parang ang lalabas ay ang mga supreme court justices ay magiging co-terminus with the president.
This is the only constitutional crisis I’m seeing because Noynoy has made that declaration. Other than that, those constitutional crises that others are talking about are all products of doomsaying.
“Noynoy will not recognize the chief justice that will be appointed by present administration if he’s elected president.”
No, no, no. The security of tenure of the SC justices is fixed by the Constitution. A seat in the SC is not like a Cabinet appointment which is at the President’s leisure.