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Jan 23

The dynamics of succession

Yesterday I attended a forum on the President’s plan to appoint the next Chief Justice. The legal issues have been reported in ABS-CBNNews.com, the Manila Bulletin, Businessworld, Inquirer.net, etc. In the forum it became clear that there’s a consensus on two points:

1. Both by tradition and law, the President shouldn’t appoint the next Chief Justice, much as her boosters insist to the contrary.

2. There is no reason to think there is a pressing need, from the perspective of the operations and functions of the Supreme Court, for a Chief Justice to be appointed in the twilight months of the present dispensation, despite the opinion of the current Chief Justice to the contrary.

My colleague John Nery in The iconoclastic Gloria A., puts the President’s latest scheme this way:

The true legacy of the Arroyo years may lie in the fabricated uncertainties that litter the road to Malacanang.

The entire debate over the appointment of the next chief justice, for instance, is only the latest manufactured crisis: What will happen to the Supreme Court if Puno’s successor is not immediately named? As the Court’s own history proves, the real answer is clear: nothing that can rise to the level of a crisis.

All this brings us back to Rawls, who wrote: “We start from the conviction that a constitutional democratic regime is reasonably just and workable, and worth defending. But given the fact of reasonable pluralism, we try to design our defense of it so as to gain the allegiance of reasonable people and to win wide support.”

President Arroyo’s machinations to ensure her political survival have had the effect, and perhaps were so designed, to create political or even constitutional uncertainty where there was none. This conduct is the exact opposite of Rawls’ ideal, “to gain the allegiance of reasonable people and to win wide support.”

Quite recently, a close adviser to the President described her as having turned “iconoclastic.” This initially puzzled me, but now I think I am beginning to understand. She has turned to breaking idols, to attacking cherished beliefs – including those that make democracy possible in the first place.

Now what piqued my curiosity was the seeming confluence of interests in a chief executive on one hand, ignoring past precedents to assert the prerogative to appoint the next Chief Justice, and the incumbent Chief Justice weighing in on this proposal from a different but politically-congruent perspective.

The answer, to my mind, doesn’t lie in anything legal but in something political. Take a look at this chart, which was provided by Atty. Marlon Manuel:

IMG_0554

(You can see a larger version here) It shows the period in office of the current justices of the Supreme Court, from the time of their appointment to their expected date of retirement. The last of the justices appointed by the President’s predecessors, the present Chief Justice, retires at the tail end of the President’s term. The President has appointed the rest of the high court, and five of her appointments, will retire within the term of the President’s immediate sucessor (making for possibly four to six judicial appointments to the high court by the Preident’s successor, since Brion and Perez might fall within the prohibited period for midnight appointments for that President). Seven more will retire during the term of that successor’s successor.

Anyway what’s relevant here are the two Justices affected either way, by the President’s intention to appoint the next Chief Justice. The overarching practice is to limit consideration of who will become Chief Justice, to the most senior Justices in the Court (although theoretically the President is free to appoint any lawyer who qualifies to the vacancy, whether currently in the high court or not). The last two Chief Justices were appointed on this basis, and what happened suggests a possible ongoing dilemma.

President Arroyo broke with precedent in bypassing Justice Reynato Puno in order to make Justice Artemio Panganiban the next Chief Justice, even though at the time, Puno was No. 1 in terms of seniority and Panganiban No. 2. But if Puno had been made Chief Justice immediately, Panganiban would never have had a chance to be Chief Justice. There was speculation that the Catholic Church lobbied for the faithful Panganiban and opposed Puno, who besides being a Protestant was, more significantly, a Mason. Also, Panganiban was instrumental in then Chief Justice Hilario Davide Jr.‘s decision to provide the legal basis for then Vice-President Arroyo’s assumption of power during Edsa Dos.

The President appointed Panganiban who got to be Chief Justice, then followed the seniority standard again when he retired, so that Puno also got to serve as Chief Justice.

Today, No. 1 and No. 2 in terms of seniority are Justices Antonio Carpio (appointed October 26, 2001 and who will serve until 2019) and Renato Corona (appointed April 2, 2002 and who will serve until 2018), respectively. If the President does not appoint the next Chief Justice when Puno retires on May 17, 2010, then Justice Carpio will automatically serve as Acting Chief Justice until the next President appoints the new Chief Justice by the Constitutionally-imposed deadline on August 17, 2010. Following the seniority rule, Carpio would be first in line to be appointed Chief Justice.

On the other hand, if the President appoints the next Chief Justice, she can invoke her own past precedent in bypassing the No. 1 in the seniority list, to select the No. 2, allowing No. 2 to serve as Chief Justice while keeping No. 1 still top of the list in terms of seniority, allowing him to eventually serve as Chief Justice, too.

What the incumbent President and Chief Justice have in common is that Justice Carpio has been a thorn in both their sides. Carpio has voted fairly consistently against the President’s arguments in high-profile cases and also taken a position usually at odds with the Chief Justice’s opinions. Corona, on the other hand, has been in harmony with the President’s legal positions and the opinions of the Chief Justice.

19 comments

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  1. nick

    “What will happen to the Supreme Court if Puno’s successor is not immediately named? As the Court’s own history proves, the real answer is clear: nothing that can rise to the level of a crisis.”-John Nery

    Well, if the President thinks that Noynoy will win the election, what better way to create a crisis, a constitutional crisis at that, than appointing a new chief justice knowing Noynoy will not recognize him.

  2. SoP

    Or Noynoy, or whoever the next president is, can just recognize Arroyo’s appointment and get on with other important things in this republic. You know, like creating jobs, fixing the infrastructure, reducing the deficit.

  3. nick

    SoP, Noynoy is bound by his words, I think he’s not the kind of guy who will do a GMA, saying something then change his mind after becoming president, you know, something about not running for president then run. But I’m often wrong.

  4. Dr. José Rizal II

    As much as I don’t like SoP and I really think he’s got a personality problem (in other words, he’s on the assholic side), I have to say he’s speaking some sense here.

    Noynoy’s fixation on GMA’s judicial appointments is not very likely to have any real bearing on his performance, so if and when he wins, what he should actually focus on are – indeed – the following:

    1. Creating jobs (massively, and I mean millions upon millions of jobs!)

    2. fixing the infrastructure (new roads, bridges, new airports for areas that will receive investments)

    3. reducing the deficit

    and…

    4. improving the educational system, focusing on improving math and science ability and emphasizing English ability so that poor kids get the same opportunities that rich kids who speak good English always get.

    5. population control for the poor (let the rich multiply as much as they want, but let the poor control themselves) so that they are able to focus their minimal resources on developing the few children they have instead of dissipating their resources on a multitude of largely “unwanted children” whom they end up forcing on the streets to beg or steal.

  5. thecusponline

    I fully agree with the assessment of GMA’s manufacturing crises. The tragic thing about it is that these crises were avoidable. In the 2004 elections for example, she didn’t need to cheat. Experts such as former Comelec Chair Christian Monsod have attested to that.

    Perhaps it was her diminutive stature that lent itself to illusions of grandeur. Or maybe it was out of a burning desire to repeat her father’s failed reelection bid, or the desire to prove her legitimacy after EDSA3. The irony is that in seeking to prove such legitimacy, she eventually perpetuated her illegitimacy.

    After the VAT law reversed the fiscal crisis, the country for the first time began to witness a virtuous cycle of reform leading to confidence leading to greater space for social and physical infrastructure. Unfortunately, due to her hubris in 2004, things began to unravel.

    The cohesion within the reform camp broke up. Spending that could have benefited the poor got diverted to serve political ends. Greater repression and a reliance on the use of force by the state against its citizens led to abuses, including the massacre of Maguindanao. This is the great tragedy of the Arroyo imbroglio.

  6. thecusponline

    I meant to say, “a burning desire NOT to repeat her father’s failed election bid…”

  7. SoP

    ” thecusponline on Sun, 24th Jan 2010 7:14 am
    I fully agree with the assessment of GMA’s manufacturing crises. The tragic thing about it is that these crises were avoidable. In the 2004 elections for example, she didn’t need to cheat.”

    Really cusp? You think the 3.5% difference between GMA’s 40% votes and FPJ’s 36.5% was possible without vote rigging?

  8. SoP

    “After the VAT law reversed the fiscal crisis, the country for the first time began to witness a virtuous cycle of reform leading to confidence leading to greater space for social and physical infrastructure. Unfortunately, due to her hubris in 2004, things began to unravel.”

    The big assumption in your statement is that she signed VAT law to get Philippines’ finances into shape and pave the way for greater reforms. I think your giving GMA too much credit; she doesn’t think that big and her view is not that long term.

    She signed the bill so she can get more IMF tranches released which she can use to plug the big budget deficit holes caused by dispensing bribes I mean pork to her congressmen. It helps that she can set aside some money for her and family (which also unraveled when it was revealed she had the highest net worth increase of all presidents and when Mikey Arroyo’s infamous net worth debacle also unraveled).

  9. thecusponline

    SoP, the margin would have been much smaller, but as Christian and Winnie Monsod estimate, sufficient to keep her in Malacanang. As for her motives for signing the VAT law, I make no such assumptions as you suggest. I was simply judging a tree by its fruit, and remember the VAT expansion was a product of her partnership with JDV in the house and some pro-reform senators like Recto, so it was a collective decision as much driven by internal needs as externally imposed ones.

    The appreciation of the peso and the resulting decline in national debt it created, the credit rating upgrades, benign inflation, these were all the result of the VAT law. Now it didn’t come without costs, especially political costs. So it meant that safety net and infrastructure spending was to follow. Joey Salceda her economic advisor had programmed this even prior to the VAT law as a necessity given the upcoming congressional elections. But at least for once, there was the space to promote a pro-development agenda instead of fighting fiscal fires one after the other. We had reached as Felipe Medalla had said a sustainable budget equilibrium where our GDP growth would help bridge the deficit.

    Whatever motives she had (to use the extra funds for) are beside the point, but it would not have been possible without VAT, nor would the alleged need to “cash up” in anticipation of the litigations after office be as necessary without the bargain she struck with Comelec officials and Maguindanaoan patriarchs to create the illusion of a wider mandate.

  10. SoP

    A few percentage points wouldn’t fly for a micro-manager like GMA. I believe what she did was pretty low-risk. What did her in was being caught on tape.

  11. SoP

    She didn’t micro-micro-micro-super-micor manage her communication with Garci. She should have just used pigeons to relay her message.

    If she hadn’t been caught, history would have been very different for her. Oh well.

  12. SoP

    Also, I don’t believe things were looking rosy for GMA or the Philippine economy after 2004. Inflation certainly was not benign in the noughties. It was especially unbearable during GMAs 2nd term. I don’t know if the VAT caused or exacerbated it, but I just disagree with your assessment that VAT was some kind of a good starting point for our economy since it was passed. If anything, it was a plug to a big hole.

    It didn’t help that GMAs political crisis exacerbated the economic crisis. But to say that GMAs political crisis put a stop to a potential good run in the economy is bullshit in my opinion. There never was a good run.

  13. SoP

    tl;dr, Garci or no Garci, the Philippine economy was gonna tank.

  14. thecusponline

    I agree with you, SoP, that for GMA it wasn’t enough just to win, and that her folly was in thinking she wouldn’t get caught. That’s why I called it a tragedy, based on “hubris”.

    We can agree to disagree with respect to the VAT as a good or bad starting point. At least you are arguing on the merits without resorting to ad hominem attacks.

    On your last point about the economy tanking: the Philippines along with China, India and Indonesia were the only countries in this part of the world that didn’t go into a technical recession after the GFC. It is the one area where we can say GMA gets good marks, and incidentally, this also proves that corruption and growth are not exclusive to each other.

    Getting back to the main point, the country could have done so much better without these manufactured crises which were not unavoidable. Had she kept to the straight and narrow, she might have stepped down with her place in posterity intact and her agenda to ammend the constitution might have gained some traction. Unfortunately this was not meant to be. Perhaps it will serve as a lesson for all who follow not to tempt the winds of fate.

  15. jhayrocas

    Crafty and shrewed as she has always been. GMA will appoint the next Chief Justice on political reasons, most especially in harmony to her plans in amending the Constitution after the 2010 elections.

  16. ramrod

    Noynoy’s fixation on GMA’s judicial appointments is not very likely to have any real bearing on his performance, so if and when he wins, what he should actually focus on are – indeed – the following:

    1. Creating jobs (massively, and I mean millions upon millions of jobs!)

    2. fixing the infrastructure (new roads, bridges, new airports for areas that will receive investments)

    3. reducing the deficit

    and…

    4. improving the educational system, focusing on improving math and science ability and emphasizing English ability so that poor kids get the same opportunities that rich kids who speak good English always get.

    5. population control for the poor (let the rich multiply as much as they want, but let the poor control themselves) so that they are able to focus their minimal resources on developing the few children they have instead of dissipating their resources on a multitude of largely “unwanted children” whom they end up forcing on the streets to beg or steal.

    – Dr JRII
    ————————————————–

    Spot on!!! This is brilliance indeed, simple, precise, concise, and direct to the point!!!

    If Noynoy can preside over a government that will allow businesses to flourish without undue intervention (meaning government officials milking these businesses) but limit itself to proper regulation, he’s on the right track and so are we…

    And yes, I also believe that he’s not recognizing an appointee of GMA will have no bearing, by all means, he must not allow this person to linger longer than necessary (out in day 1).

    No rosy scenario comes to mind even with Noynoy at the helm, but at least, there is some hope for some normalcy (the same cannot be said if any of the other wannabes win)…

    …then again, Noynoy must not use HOPE as the focal point of his platform, because it tends to lead to disappointment later on, focusing on the abovementioned and the detailed plan of implementation while working within the bounds of the constitution will have to be the order of the day…

    Of course, a new president is not superman, or God-turned-into-man and came down to earth to magically solve our problems, we all have to pitch in…

    ——————————————-

  17. nick

    “And yes, I also believe that he’s not recognizing an appointee of GMA will have no bearing,…”

    This is unbelievable! A constitutional crisis happening if GMA appoints an illigitimate chief justice which Noynoy vowed not to recognize when he sits as president and brilliant people calling such an event “no bearing”? No bearing? Amazing!

  18. SoP

    “thecusponline on Sun, 24th Jan 2010 12:01 pm
    the Philippines along with China, India and Indonesia were the only countries in this part of the world that didn’t go into a technical recession after the GFC.”

    Same thing happened during the Asian Financial Crisis. The Philippines is one of two or three countries to avoid dollar runs in the short term but suffered dollar liquidity problems in the long term. Long term, we’re gonna suffer with stagnation after this GFC blows over while other countries post quarter after quarter growth.

    The Philippines is like the kid in the playground who doesn’t catch a cold during flu season while every other kid wheezes, sneezes and coughs. Unbeknownst, the Philippine kid is suffering from asymptomatic tuberculosis.

    My point being our economic setup enables us to weather these little storms while our house is creaking from deep structural faults that are plugged by short term measure like VAT and OFW dollars. We may look good in the short term, but our house is broken and would take a lot to fix than just by patch-up measures like VAT.

  19. SoP

    Edit for more dramatic effect: Our house may look better than the neighbors’, whose roofs and fences are blown away by the storm, but their foundations are dug deep into the soil while ours are pretty much termite ravaged. Our roofs and fences may be built of expensive materials, but when the big storm hits, our house will be flattened to the ground and will require expensive, if not irreparable, rebuilding, while the houses that are other Asian countries will just need small but cheap, though embarrasingly-visible-to-the-whole-neighborhood patch jobs.

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