Look Further Than Who Administers Your Oath of Office: A Second Set of Unsolicited Advice for Noynoy

by: Prof Marvic Leonin, UP LAW

Not everything that needs to be changed can be changed immediately. Sometimes, in our impatient effort to do so, we end up destroying a lot more than rebuilding. This is especially so when you act as the President of a Republic where many of its institutions need to be reformed because of the workings of an outgoing administration. Those who toiled during martial law to bring about substantial justice borrowed a saying: “one step back, two step backwards.” This should be applicable to candidate Noynoy Aquino as he makes the transition to President Noynoy Aquino.

I understand that the current administration may have wanted another associate justice as the Chief Justice. Because, if this administration would have appointed Justice Corona anyway, all these anguish about who will administer the oath would not have made political sense. Some of us would have agreed that perhaps it would have been Justice Antonio Carpio or even Justice Conchita Carpio Morales or even Justice Nachura who would have carried a lot more of the platforms for change that we expect from the Judiciary. The three of them did the right thing. Justices Carpio and Carpio Morales took their names out of the list out of principle. Justice Nachura argued in his dissent that the issue was not justiciable.

But, when we start to accept the principle of the rule of law, there always is the possibility that the institutions (and its incumbents) created by the legal system can produce a situation that is not to your liking. In this case, you have a majority decision (nine out of fifteen) declaring that the Judicial and Bar Council can transmit a list to the President; and the President goes on to appoint a Chief Justice.

Compliance with the rule of law sometimes means acceding to a situation that you do not want--at first. Then you have to work in order to convince the system of the rationality of your position. This may not take the form of a third motion for reconsideration. It may mean reforming the institutions that made the situation possible.

I read the constitution differently. I am convinced that the current Supreme Court breached a lot of legal conventions in order to bring about a result: that GMA could appoint the next Chief Justice. Many of us join Justice Carpio Morales; and had we had the privilege of being a member of the Supreme Court would have wrote as vociferously and forcefully as she did. The question presented to the Supreme Court in de Castro v JBC et al was not as difficult as it seems. Even law students would have had an easy read of the provision given our jurisprudential history. In many cases politically difficult cases do sometimes result in bad interpretations.

But here is the catch: if all of us were privileged to sit in the Supreme Court. But the majority in the court was of a different mind and succumbed to a different type of pressure. And its the latter rather than the reasoned ordinary mortals that decided with finality.

The Judicial and Bar Council is also a constitutional organ. In various fora I have insisted that they too can make their own reading of the constitution. I was extremely disappointed when they transmitted the list of nominees to the incumbent President. I thought that there would be nothing wrong, constitutionally, if they exercised their mandated power to say that their role is to make sure that all the best candidates for the position of the Chief Justice is in the list. The JBC is sort of a search committee. It should only stop when they are certain that they have the best three mortals who can serve as chief justice before it transmits. Nothing in the the case of De Castro v JBC et al, compelled them mandatorily to submit a list that they were not satisfied with. It would have been a glorious moment for the JBC had it stood its ground.

But the JBC, another constitutional organ, did transmit that list sans the other candidates who would have been perfect as Chief Justices. And, like many other institutions, it was packed with GMA appointees.

Then there is the other constitutional organ, the Presidency. I did not expect much from the incumbent. To me it was a foregone conclusion that she would appoint. I was surprised though that she did before there was even a vacancy in the office. It was as if she did not want the public to see the overwhelming support of the incoming President before she did this final important appointment. It was as if she wanted to save herself the embarrassment of doing more than the “caretaker” government mandated of her by established jurisprudence and courtesy.

I thought that this would have suggested four important reforms. (1) Change the President (done), (2) make sure that that majority of the Supreme Court and the lower courts that send up issues to it are composed of competent and enlightened men and women, (3) be serious about the composition of the Judicial and Bar Council and (4) choose a Solicitor General that can craft government’s position better, with more competence and principle even if the President did not want what she will be hearing.

Of course, if I were impatient, then I would issue an administrative order nullifying the appointment of Justice Corona stating that I knew better how to read the constitution. This issue would find itself in a case that will of course go to the Supreme Court. There you would have to convince nine who took all the criticisms coming from the legal profession and the legal academia but kept to their result. My hope would be that some of them would have to do exactly the opposite of what they did months ago. My hope would be that they weaken their credibility further by flip flopping as they already did in some recent cases.

When the Supreme Court, in this scenario, simply affirms its earlier rulings, the decision can become almost canonical by repetition. Then of course, since I would increase my impatience further, I would file an impeachment charge in the House of Representatives. To be fair, because the other members of the Supreme Court really breached the constitution as you interpret it, you should also file against the nine members of the Court who continuously voted for the majority in De Castro v JBC. With your political majority, you may succeed in having impeachment cases pending for at least three years in the Senate against ten of the sitting members of the Supreme Court.

You can proceed with this scenario. At some point, a case will be filed with the Supreme Court to enjoin this prosecution of its members. Also at that point, you would have succeeded in bringing the three constitutional departments into a constitutional crises.

Also, you would remember that because you are supposed to be a reform President; many of your actions will end up in the Supreme Court. You would then hope that the members of the Supreme Court are more forgiving than you as President.

Then, what about ordinary mortals like us? Will you be able to have enough political capital left to restructure the economy? Will the internationally community have confidence on our government to be able to implement the rule of law, wipe out corruption and the many other difficult things promised by the President-elect? How many will go hungry because of the seeming inability of the incoming administration to see beyond the current incumbent Chief Justice.

The situation that led to the reshaping of the words of the Constitution in order that GMA can appoint a Chief Justice is bad. One’s reaction to this can make matters infinitely worse.

But, there is an alternative. One that is more level headed and looks at longer lasting reforms.

So, here is my second set of unsolicited advice to the incoming President:

First recompose the Judicial and Bar Council.

The Judicial and Bar Council creates the short list for every appointment to the judiciary and to the Offices of the Ombudsman. It is presided by the Chief Justice. Among its members are the Secretary of the Department of Justice and the Chairs of the Senate and the House of Representatives’ Committees on Justice. The other regular members are representatives of the academe, retired justices, legal profession and the private sector. All of them are appointed by the President and go through the confirmation process at the Commission on Appointments.

Clearly, any hint of vindictiveness with the Senate or the House of Representatives will have consequences for appointments to any level of the court and the Ombudsperson.

Second, make sure that the next five (5) appointees you have for the Supreme Court are respected legal luminaries that will be able to hold their own against those appointed by the GMA administration. Many of us have names that will bring more luster to the Supreme Court and would increase the depth and level of debate in that body. But a lot of us declined to submit some names because we believed that the incumbent President appointed not simply on the basis of competence. President Noynoy should clarify his criteria for the judiciary and must be seen to appoint others who may not be members of the Liberal Party.

Third, keep the Department of Justice active while the ombudsperson does not do its job.

This brings me to my original suggestion. The Secretary of the Department of Justice must be aggressive and dynamic. S/he must be respected by the legal profession and by the courts. While the Ombudsperson of GMA tarries in her duties; the Secretary of the Department of Justice must actively investigate and file complaints. S/he must be capable of showing that it is possible to find the evidence, identify the perpetrators of every act of corruption in government--including both the Arroyo and the Noynoy Aquino administrations. S/he should be able to do what the Committee on the Eradication of Corruption does in Indonesia. There should be no special ad hoc committees for this: an entire department must do justice.

Finally, a competent and principled Solicitor General. The Solicitor General is the Republic’s counsel. S/he must be able to tell the President that what he plans to do cannot be justified by the Constitution. S/he must be respected and persuasive on the Supreme Court. S/he must be able to clarify the implications of the legal issues that will be decided by a court whose majority may not be friendly to the incoming administration. In other words, the Solicitor General must not be another version of the Presidential Legal Counsel. S/he must be able to provide truly independent but respectable advise.

These things can be done within the first month of office.

That’s why I have said that this issue as to whether the President should take his oath before the Chief Justice is, in perspective, too small for an incoming President. Take your oath before the Chief Justice, this is not the fight you want at the beginning of your term. Make your displeasure of de Castro v JBC be known in some other way. Put it in your speech. Talk about the rule of law.

Then take the high road to painstaking reform. Let these reforms be the discourse that the public engages in and before your term will be through, you might already have started to put in place a legal system that is capable of overturning the precedents which works against the Filipino people.

We voted for you to do the right thing as a leader and as a President. Do not fail us by starting to destroy institutions with your very first act as President.


Post a Comment

Please drop me a line: