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March 22, 2010

Last Wednesday, or two presidential terms and some strategic appointments later, the Supreme Court changed its mind and now says, 9-1-3, that it is perfectly all right for the President to make appointments to the judiciary during the period of the ban.

The strained ponencia of Justice Bersamin is a Sysiphus climb which, upon reaching the top, has been blown to smithereens by the dissent of Justice Conchita Carpio Morales.

Strangely, the ponencia’s argument is anchored not on the language of the Constitution but on the structural arrangement of the provisions. Thus, since the ban on making appointments is found in Article VII on the Executive Department, the ponencia concludes that it should apply only to the Executive Department—forgetting that the power to appoint given in Article VII covers positions in the judiciary.

The ponencia also ignores key principles of statutory construction. Ubi lex non distinguit nec nos distinguere debemus. (When the law does not distinguish, neither should we.) Inclusio unius est exclusio alterius. (The inclusion of one excludes others.) Casus omissus pro omisso habendus est. (A subject that has been omitted must be considered excluded.) In utter disregard of all these principles the ponencia would have us understand that, when the Constitution says “except temporary appointments to executive positions when continued vacancies therein would prejudice public service or endanger public safety,” we must in the same breath add “and positions in the judiciary.” This is unauthorized constitutional amendment.

The Supreme Court at any particular time is usually referred to by the name of the current Chief Justice. Ours now is more appropriately called the Arroyo Court. During the period when the controversy about the President’s appointing authority was being debated in media, the gut feel of many, myself included, was that the majority of the Arroyo Court would vote the way they did last Wednesday. Thus last Wednesday’s decision did not come as a surprise. “Shadow of Doubt,” catchy as it might be, does not express the full flavor of what is percolating in the hearts and minds of many.

In the course of the debate on the subject, much of the argument used was that the presence of a chief justice at all times is demanded by the Constitution and by public welfare. It was argued that the leadership of the chief justice was crucial all the time and no one of the associate justices could fill the gap. That this argument is not echoed in the ponencia is perhaps grudging recognition of the fact that the Constitution itself allows a “Chief-less” Supreme Court for 90 days in the belief that one of the associates can effectively substitute for him during a temporary absence.

Indeed, the leadership of the chief justice is important but not crucial. We have had many occasions when the Court was led by a temporary presiding officer but with no loss to the nation. In fact, the current chief justice is on a two-week leave and nobody is shouting “Help!”

Because I believe that the role of a chief justice is important, although not crucial, I would have wished that Chief Justice Reynato Puno had participated in the decision. Unfortunately the Chief Justice chose a stance comparable to that of Joshua Clottey. While reading the Court’s decision, I missed the Chief Justice’s vigorous Court presence.

I must say, however, that the constitutional provisions involved are actually not that mysterious. But the tug-of-war of the political process can inject between the lines of the Constitution undercurrents that can muddle the flow of arguments. Not the least of these undercurrents is the conflict of personalities and personal preferences that are further tarnishing the image of an already tarnished Court. The fact that both Justices Antonio Carpio and Renato Corona inhibited themselves is admission enough that they see the contest as between the two of them. Too bad, because, first, the contest is primarily about the law and not about them; and, second, I would have wanted to see their participation in the legal tussle.

It will not take much imagination to guess whom the President will not appoint.

— Joaquin Bernas SJ, Shadow of Doubt, March 22, 2010

9:16pm | URL: http://tmblr.co/Z42vXyRm8Uj

(Notes: 12)