The Long View
Presidential tar pit
By Manuel L. Quezon III
Philippine Daily Inquirer
First Posted 23:53:00 03/21/2010
YOU have to wonder why President Gloria Macapagal-Arroyo has to provoke the legal community – and the public, too – by insisting on appointing the next chief justice. To be sure, part of it is due to her relishing the powers and prerogatives of her office up to 11:59:59 a.m. June 30, 2010. Another is that she is never content with a partial victory if a total one can be achieved, particularly if it allows her to spite her many critics. A third would be that she also enjoys proving her writ extends beyond the limits of her office. And the fourth, which I’d like to focus on, is that she hopes to diminish all her potential successors even as they’re campaigning to obtain a popular mandate in May.
We haven’t yet reached the point of no return: the Supreme Court has reversed past precedents and ignored the consensus in the legal community on the issue; it has also been dismissive of public opinion. That old maxim “when the guns speak, the law falls silent” is not just a warning but a threat: if the ultimate interpreters of what the law says – that is, the Supreme Court – is to be defied, it can only imperil the stability of society itself, substituting a flawed legal system with the law of the jungle.
For this reason, every attempt to challenge the Supreme Court has collapsed with the justices’ willingness to call the bluff of every other institution as well as to ignore the court of public opinion. After Edsa II, the legitimacy of the new administration was resolved in the Supreme Court. When the unwillingess of the Supreme Court to subject its finances to public scrutiny was challenged in Congress, the impeachment effort marshaled by Gilbert Teodoro Jr. collapsed in the face of the Court’s own challenge to the House of Representatives: obey us and stop this, or we will have to authorize the chief executive to enforce the law – an ultimate nightmare scenario for lawmakers; for when the guns speak, the legislature falls silent, too.
When the Iron Curtain fell, and partial credit was given to Pope John Paul II for communism’s fall, pundits regularly re-quoted Stalin’s dismissive comment “How many divisions has the pope?” as proof of the blindness of dictators to the power of organized religion. In a similar manner, the judiciary has no army, but it is armed with the public’s instinctive – however grudging – obedience to the law, because it fears a radical outcome.
At the heart of the President’s zest for creating divisions by means of artificial crises – she could very well have respected tradition, exercised self-control and preferred stability to strife by simply letting the appointment be handled by her successor – is her recognition of the public’s fear of things getting out of hand, trumping decency and justice. At the heart of the high court’s majority decision is a similar zest to wield power and subdue opposition, calculating on the public’s aversion to inaugurating the next administration with a constitutional crisis.
In response, the presidential candidates have, remarkably enough, achieved a consensus but disagree on how, specifically, to manifest their commonly held objection to the President appointing the next chief justice.
Noynoy Aquino had previously stated he was opposed to the appointment and would refuse to recognize a chief justice appointed by the incumbent in the waning months of her term. He also said that if a case were to be made that the Supreme Court had decided on anything other than sound legal principles, the justices involved might be opening themselves up to an impeachment case in the next Congress. Nick Perlas has taken a similar stand: he will not recognize a chief justice appointed by the President and will support a petition for review of the decision before the high court. Manny Villar was very terse, saying he was saddened by the decision but otherwise remaining silent. Dick Gordon also said he was saddened by the ruling, but whoever is appointed would have to stay rather than provoke a constitutional crisis.
Gibo Teodoro earlier described the issue as divisive: carefully phrasing his objection to the President’s intent by saying if there’s no vacancy, there should be no appointment, because that appointment would always have a cloud of doubt hanging over the new chief justice. More recently he said even if she can make an appointment, the President should refrain from doing so anyway. Joseph Estrada took a similar approach, saying it’s a question of delicadeza, and JC de los Reyes said the next president should make the appointment. Jamby Madrigal is more uncompromising, insisting that the appointment should be revoked.
So far, none of the candidates have tied their hands by saying they intend to personally sign any motion for reconsideration filed before the Supreme Court. For those inclined not to recognize an Arroyo-appointed chief justice, there seems to be a practical legal reason for this. Were a candidate, subsequently elected president, to appeal to the Court, the lawyers could say that by participating, personally, in the process, he had been estopped, or barred, from further questioning the legality of the appointment, should the court uphold its ruling.
What the President wants is to bring the candidates down to her level by provoking them into acting in a manner that might suit an activist but is contrary to public expectation of the measured, firm, deliberative but temperate – or at least, not reckless – behavior that should characterize a president. Every candidate then has to walk a tightrope suspended over a tar pit, sticky and bubbling, created by the President herself. The candidate who loses his balance will fall into the pit, and the President doesn’t lack for people who will hoot and jeer at whoever ends up looking more like a fanatic than a chief executive.