The Long View
Scorched earth to the bitter end
By Manuel L. Quezon III
Philippine Daily Inquirer
First Posted 23:09:00 01/17/2010
BY all accounts, former Chief Justice Enrique Fernando was a nice and decent man, but an entire generation mocked him mercilessly after he gallantly held an umbrella to shield Mrs. Marcos from the sun. The conjugal dictatorship had emasculated all our institutions and Justice Fernando came to personify the neutering of law and justice – and those who, out of a misplaced notion of style trumping substance, came to symbolize how even decent people can foster wrongdoing.
Dictators know that even if they can rig the court of law in their favor, they also have to cultivate the impression they can win in the court of public opinion. What is legal, as the saying goes, isn’t necessarily what’s right. Governments of whatever kind normally try to demonstrate that their decisions are both legal and right. The present dispensation, deprived of ever being able to convince the people it is right, has chosen to hammer away on what Marcos himself (and he knew a thing or two about the law) contemptuously called “technical legalism,” on the assumption that its brinkmanship and scorched-earth policy would lead to its critics and opponents faltering in seriously calling the President’s bluff.
Benigno Aquino III has been called irresponsible – and worse, as exhibiting arrogance – for issuing a warning concerning the consequences of the President appointing a new chief justice when the current chief, Reynato Puno, retires on May 17. These charges are to be expected coming from the President’s allies, but more puzzling coming from otherwise independent-minded people who don’t dispute the President is wrong in wanting to appoint the next chief justice but who are uncomfortable with Aquino throwing down the gauntlet.
In this light, throwing down the gauntlet is wrong only if you value form over substance. At the heart of the condemnation of Aquino’s blunt statement of the probable outcome of a dubious appointment is the belief that it is more important to preserve a veneer of tidiness and normality than to challenge a proposal without legal merit and which aims to revive bad habits of previous presidents.
Consider the consequences of meekly submitting to the Palace proposition that the President should do as she pleases, and that it’s better for our institutions to meekly submit to her whims, and sort it out politely later on.
If the President were to appoint the next chief justice, under a cloud of doubt due to the dubious legality of the appointment, she would immediately saddle her successor, if he has any spine, with a dilemma. Should he allow his oath of office to be administered by an official the president-elect knows may be removed from office? Should he risk having the administration of that oath viewed with dubious legality not only by himself, but the public?
Arguing, as the Palace currently loves to argue every time it does something dubious, that until proven otherwise all its acts enjoy the presumption of regularity, will be cold comfort for the president-elect and a public that wants to get on with rebuilding the country after the current gang’s term is up.
For the president-elect would have tacitly hobbled the case against a bogus chief justice by allowing him to administer the oath and extending to him all the official courtesies of the office.
And should a candidate collaborate with the current administration by allowing it to do what it wants, on the excuse that things can be sorted out later? Consider the signal this would extend to the current composition of the Supreme Court, which surely doesn’t want to be saddled with what would be the earliest tangible sign of the shambles in which our institutions have been reduced by the current dispensation. The Supreme Court would have to wrestle with the question of the legality of the man designated its chief, quite possibly one of their own. This is a dilemma no one would want visited on the institution to which they belong and yet it can only be a non-member who can raise the troubling nature of the looming dilemma the justices face.
Only a mentality that puts appearances ahead of substance would confuse pointing out the lunacy of the President’s scheme with an assault on the integrity and independence of the Supreme Court. The court’s own decisions (Castillo v. Aytona, Jan. 19, 1962, concerning midnight appointments within the executive department, and A.M. No. 98-5-01-SC, Nov. 9, 1998 regarding midnight appointments to the judiciary) are clear and unambiguous, while proponents of the President’s scheme inhabit the alternative universe in which schemes like a Senate-less Cha-Cha were hatched and worse, taken seriously. They have mastered creating artificial debates on questions long settled and for which a broad consensus already exists.
The example of former Chief Justice Manuel Moran was cited by his successors in the Supreme Court because a president’s pet schemes ultimately depend for success or failure on people willing to be an accomplice. Moran believed it improper to accept a midnight appointment, and gained the eternal gratitude of his fellow jurists for proving himself a man of principle.
Justice Concepcion, who concurred and dissented in part with the majority decision in Castillo v. Aytona, pointed out that “[m]ost, if not all appointments made by the President have two aspects, namely, the legal and the political.” The case, he believed, was primarily a political one best left to the Commission on Appointments. Yet as chief justice, in the face of Marcos’ moves to railroad approval of a new Constitution, a broken-hearted Concepcion went into early retirement rather than continue to preside over a discredited court. Anyone considering accepting an Arroyo appointment as chief justice has to wrestle with the political question of whether his robes could ever cover up the disreputable circumstances of his appointment.