(above) December 30, 1961: in their last few minutes as incumbent President and outgoing Vice-President, respectively, Carlos P. Garcia and Diosdado Macapagal put on an appearance of bonhomie as they prepare to depart for the Quirino Grandstand for Macapagal’s inaugural; within 24 hours Macapagal had voided Garcia’s 350 midnight appointments.
Benigno Aquino III has thrown down the gauntlet in light of the President’s toying with appointing the next Chief Justice when the current Chief Justice retires on May 17 (ideally, by that time, the public would already know who the next President is, and the date falls about a month and a half before the official term of the incumbent expires, when there is a blanket prohibition on appointments from the time the last two months of a president’s term starts). The Palace is suitably miffed.
The Palace insists the President shouldn’t leave the position of Chief Justice vacant (the Chief Justice himself prefers his successor be named sooner rather than later, but not for reasons complimentary to the President: there is the chance the election might end up a shambles and the Supreme Court will have to weigh in), and, in the face of the Judicial and Bar Council’s refusing to convene to draw up a shortlist, the Senate President and the Speaker of the House have both put forward the theory (shared by PhilConsa) that the President needn’t wait for a JBC shortlist. A compromise has been proposed: an Acting or Interim Chief Justice.
The Palace tried arguing that allowing a vacancy in the position of Chief Justice would be unprecedented (in an emergency situation, not so: after Jose Abad Santos, Chief Justice and Acting President in the unoccupied areas, was executed by the Japanese, no successor was named until three years later by his government and some time passed before the Japanese authorities appointed a new Chief Justice); under ordinary circumstances a recent Inquirer editorial points out the falseness of the Palace claims and outlines the legal parameters that govern executive appointments during an election period besides. John Nery rebuts the Palace, too, as follows:
The Court has never had an acting chief justice? Look up Claudio Teehankee, the great dissenter who first served, for almost a month, as acting chief before being named the first chief justice after Edsa.
The office of chief justice has never been vacant? The very first succession, when Victorino Mapa replaced Arellano in April 1920, was marked by a vacancy that lasted a couple of weeks. Postwar, there were more such vacancies. Cesar Bengzon did not succeed Ricardo Paras until more than two months had passed, and almost five months passed before Makalintal formally replaced Concepcion.
To be sure, the transitions after Edsa have been seamless, with the successor taking office either on the same day or the day after the chief justice’s retirement. There is, however, one exception: A couple of days passed before Andres Narvasa succeeded Marcelo Fernan, who had resigned to run for vice president. (Unfortunately, the statesman from Cebu was running against Joseph Estrada.)
Still, lawyers and the public are dividing on the question of whether the President is entitled to name the next Chief Justice. Besides being an interesting legal question, it’s one fraught with the past efforts of presidents to saddle their successors with appointments made at the last minute.
By all accounts the transition from Presidents Osmena to Roxas was smooth; but the one from Presidents Quirino to Magsaysay wasn’t so smooth.
In his last days as President, Elpidio Quirino granted presidential pardons to friends and allies, an act of political patronage condemned by his successor, President Ramon Magsaysay.
On December 29-30, 1961, President Carlos P. Garcia gave his successor a headache when he made 350 appointments in his last hours as President. These so-called “midnight appointments” were revoked by his successor, Diosdado Macapagal, by means of his Administrative Order No. 2 (December 31, 1961), voiding the midnight appointments of Garcia. President Macapagal was upheld by the Supreme Court in the famous Castillo v. Aytona case (January 19, 1962). In New Man in the Palace, Time Magazine gives contemporary color to a by-now dusty legal case:
Apart from draining the household funds, Defeated Candidate Garcia had spent his final hours in office giving spiteful “midnight appointments” to some 350 friends and followers whom he made ambassadors, administrators, judges. Most embarrassing to Garcia’s successor was his appointment of Finance Minister Dominador Aytona to the governorship of the Central Bank of the Philippines. On the first day of the new administration, Macapagal’s own appointee, Andres Castillo, arrived at the bank with an armored car and a force of constabulary rangers to oust Aytona. Ex-President Garcia shouted, “Police state,” and his Nacionalista politicos denounced Macapagal as a “power-mad and power-hungry dictator.”
While the issue was carried to the Philippines’ Supreme Court, the bank remained without a governor, and its monetary board was unable to make decisions. Exporters, anticipating the devaluation of the peso from the official rate of two to the dollar to a more realistic four to the dollar, halted shipments abroad, and kept their dollars in the U.S. until they could bring them home more profitably. The resulting trade deficit has been devastating, and foreign exchange reserves dropped to an alltime low of $100 million.
The court quarrel over the bank governorship gave Macapagal time to huddle with his advisers. Using an exhaustive World Bank report and other studies, they mapped out a five-year economic program to decontrol the country’s long-stifled economy. First step: to decontrol the peso itself. Recognizing that he could not risk freeing the peso without enough dollars in hand to meet any run on the banks, Macapagal last month sent a six-man mission under Finance Minister Fernando Sison to the U.S.
Last week the Philippine Supreme Court ruled 9 to 1 that Macapagal could oust Garcia’s man from the bank governorship and install his own. Simultaneously, members of Sison’s mission returned to Manila with good news: in their search for U.S. dollars they had not met a single refusal. In hand: $166 million in private bank loans; $121 million from the International Monetary Fund and various U.S. agencies. In all, Macapagal can begin his reform administration with a sizable backlog of about $400 million. He plans to ease import-export controls, continue some tariffs in a way that will encourage agriculture, discourage luxury imports.
At the time, President Macapagal, as quoted by the Supreme Court, gave four reasons for voiding appointments made by his predecessor from December 13-30, 1961:
(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 in mass 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.
The use of the appointing and other powers by an incumbent, either for partisan electioneering purposes, or to tie the hands of the expected successor, is something our Constitution and laws have tried to curtail, with the Quirino and Garcia precedents in mind.
Even in 1962, with the controversial Garcia appointments in mind, the Supreme Court “found it logical” that past precedent had presidents submitting ad interim appointments only when Congress’ Commission on Appointments was in session. Our present Constitution and the various laws governing the administration of the bureaucracy strictly forbids the President of the Philippines from making appointments once the Election Period begins.
When a nation embarks on electing its leadership, our Constitution, laws, judicial and historical precedents all emphasize that incumbents must be barred from abusing their powers to give themselves or their partisans undue advantage, thwart the public will, or harass and harm a successor’s administration by tying its hands by means of maliciously-motivated appointments.
This was pointed out by the Supreme Court in 1962 with reference to Garcia’s actions:
It is common sense to believe that after the proclamation of the election of President Macapagal, his was no more than ‘care-taker’ administration. He was duty bound to prepare for the orderly transfer of authority the incoming President, and he should not do acts which he ought to know, would embarrass or obstruct the policies of his successor.
This brings us to Atty. Manuel Laserna Jr. (see his Midnight appointments to the judiciary) who has called attention to the Supreme Court’s decision, A.M. No. 98-5-01-SC November 9, 1998, pointing to another aspect of the dangers of midnight appointments made during the transition from one administration to another: judicial midnight appointments. These were already mentioned in 1962 in Castillo v. Aytona as follows.
Former Chief Justice Manuel Moran, who’d left the high court to serve as Ambassador to Spain, was reappointed to the high court in a midnight appointment by President Quirino. The Supreme Court in 1962 paid tribute to the delicadeza of Moran as follows:
Being ambassador in Spain and desiring to return to this Court even as associate justice, Moran was tendered an ad interim appointment thereto by President Quirino, after the latter had lost the election to President Magsaysay, and before leaving the Presidency. Said Ambassador declined to qualify being of the opinion that the matter should be left to the incoming newly-elected President.
In his online commentary published January 11, 2010, Atty. Laserna discusses the implications of which is important because it acts as a bridge between the 1962 case decided under a previous constitution, and the 1998 case which was decided under the present Constitution, showing continuity of broad constitutional themes.
Specifically, the 1998 decision includes the following doctrinal points, per his commentary:
12. To be sure, instances may be conceived of the imperative need for an appointment, during the period of the ban, not only in the executive but also in the Supreme Court. This may be the case should the membership of the court be so reduced that it will have no quorum or should the voting on a particularly important question requiring expeditious resolution be evenly divided. Such a case, however, is covered by neither Section 15 of Article VII nor Section 4 (1) and 9 of Article VIII.
With reference to the above, point 14 in the same decision includes the following:
14. While the filling of vacancies in the judiciary is undoubtedly in the public interest, there is no showing in this case of any compelling reason to justify the making of the appointments during the period of the ban. On the other hand, as already discussed, there is a strong public policy for the prohibition against appointments made within the period of the ban.
The issues then are joined as follows. The law prohibits appointments by the President on the Philippines on the assumption that in an election year, these appointments may be made maliciously to pervert democracy or embarrass the constitutional succession from one administration to its duly-elected successor. On the other hand, there are Constitutionally-mandated requirements for the President to make appointments to the Supreme Court within a specific period. Which should prevail?
The administration argues immediately filling a vacancy in the Supreme Court, specifically that of the Chief Justice when a Chief Justice retires, transcends the legal prohibitions on presidential appointments within a fixed period from the end of the President’s term and during the Election Period. The Supreme Court itself has said that possibly compelling reasons to flout the ban if they exist, are rare and raise the bar of executive justification very high.
Atty. Marlon Manuel in a recent commentary (see On the Appointment of the next CJ) addresses these same issues, with the 1998 case in mind, in the case of the Palace proposal to appoint a Chief Justice before the current president ends her term:
In the 1998 case, the JBC had the excuse of not having any clear interpretation of the Constitutional provisions on the period for filling up vacancies in the judiciary, and on the ban against appointments related to the Presidential election. As narrated by the 1998 Resolution, then Senior Associate Justice Florenz D. Regalado, Consultant of the JBC, who had been a member of the Committee of the Executive Department and of the Committee on the Judicial Department of the 1986 Constitutional Commission, expressed the view that the election ban had no application to appointments to the Court of Appeals. Regalado’s opinion was accepted by the members of the JBC (with the exception of then Chief Justice Andres Narvasa) “without any extended discussion or any prior research and study”.
Such excuse is no longer available for the JBC now. The November 9, 1998 En Banc Resolution of the Supreme Court should be the governing interpretation of the Constitutional provisions involved. Interestingly, two members of the current JBC had been part of the discussions of the 1998 case -Chief Justice Puno, who was then an Associate Justice of the Supreme Court, and retired Justice Regino Hermosisima, who was already a member of the JBC.
In Defensor’s letter to the JBC, the relevant provisions of the Constitution (Section 4 of Article VIII, and Section 15 of Article VII) were conspicuously omitted. Thus, the proposition to avoid a vacancy of even a single day was made without any consideration of the ninety day period given by the Constitution for the appointment, and the ban imposed by the Constitution against making such appointment on May 17, 2010 or on any date within the period of the ban.
Can the JBC pretend to be grappling for an interpretation of the Constitutional provisions? Such pretension cannot be justified. For one, as pointed out earlier, there is no conflict between the provisions on the ban and on the period for the appointment. There is no controversy, no issue that will prompt the JBC to make its own interpretation. The JBC’s role is to follow the Constitution. Follow the ban imposed by Section 15 of Article VII, and follow the ninety day period for the appointment, as prescribed by Section 4(1) of Article VIII. More importantly, with the 1998 Resolution, any issue as to the interpretation of the applicable Constitutional provisions should be deemed settled. The JBC is bound to follow such ruling. While a Supreme Court ruling is good until a reversal by a more recent ruling – and there have been a number of cases where the Court had reversed its earlier decision, with some reversals being done in the same case, and a few notable examples of complete turnarounds upon a second Motion for Reconsideration – the JBC cannot go against a standing interpretation by the Court.
Atty. Manuel adds that the circumstances surrounding the executive action that led to the 1998 case and current administration proposals are similar, but also inform the present proposal with a greater public danger:
The comparison of the two presidents points to one clear conclusion. If the ban under Section 15, Article VII was deemed applicable to Ramos’ appointment of two trial court judges, it should apply with greater force to Arroyo’s appointment of the next Chief Justice. The evil sought to be avoided by the ban is manifested in a more dangerous form in the present case.
What is clear then is that since the Quirino adminstration, most notably the Garcia case opposed administratively and in the courts by Macapagal, and in the case of Ramos, outgoing incumbents have tried to hamper their successors or exercise their powers even when improperly theirs to exercise during a transition period, by means of midnight appointments. Jurisprudence and our political experience and our present Constitution have put our institutions firmly in opposition to this executive temptation.
The question is whether a President who contravenes the spirit and letter of our laws and tries to relive the bad practices of her predecessor can make a Supreme Court appointment that has any legal validity.
The example of former Chief Justice Manuel Moran is the most instructive. Even if attempted, and even if beneficial to an appointee to the Supreme Court, delicadeza requires the appointee to decline the appointment. Old-fashioned notions of self-control and informal limits to official conduct are generally meaningless today, but might still mean something in the most tradition-minded of our three branches of government, the judiciary.
Carlos P. Garcia
Fidel V. Ramos
rule of law