Saturday, March 27, 2010

What Happens Next?

My Lolo Tomas used to say that the most difficult persons to rouse out of bed are those who are already awake. He was the best proof of that, and my Lola Rosario often had to deal with that problem. Even on his birthday, when Lola Rosario wanted to drag him to morning Mass in the days when there were no evening Masses yet, Lolo Tomas would groan that he was born in the late afternoon.

When some people asked me what I think of the possibility of reversal of the Court’s decision on President Arroyo’s power to appoint the next Chief Justice, I was severely tempted to answer with the wisdom of Lolo Tomas. But I should not and did not. Each person sees the world through his or her own optic and decides what best to do.

In the academic world there is also such a thing as a passing mark ex aliunde, that is, not on the basis of exam grades but on some other basis. It is also possible for a justice to find various possibilities and choose what he or she sees as best for the moment. In politics this sometimes works as the “Caiphas principle” when you sacrifice someone in order to save or favor others.

Like it or not, nine justices see the meaning of the Constitution as allowing President Arroyo to appoint the next Chief Justice. The odds are prohibitive against reversal of a 9 to 1 decision; but I am hoping against hope that reversal will come. I always like to appeal to what Hilaire Belloc said about hope being a virtue when the situation is hopeless.

If my hope is crushed, I will just have to join Gibo Teodoro in his desire that President Arroyo, in presidential magnanimity and to honor her late father who denounced “midnight appointments,” will not bequeath to the nation a Chief Justice with doubtful legitimacy. As former Justice Mendoza correctly says about the decision of the Court, it is not a command requiring her to appoint the next Chief Justice. Should she decide not to appoint, the nation will heave a deep sigh of relief even if we have to fight about who the next President should appoint – as I am sure we will. It will probably take some time before the Court can become depoliticized again.

The Supreme Court has also thrown the ball to the JBC court. By command of the Constitution the next President must be chosen from among a list prepared by the Judicial and Bar Council. The Court has ordered the JBC to submit a list on or before May 17.

Clearly the Judicial and Bar Council has the duty to submit a list. But does the constitutional duty to submit a list mean a duty to submit a list on or before May 17 or on a date at the JBC’s discretion? If we go by the dictum that the Constitution means what the Supreme Court says it means, the JBC must submit a list on or before May 17. But is not the duty of the JBC to submit a list within the 90 day period following the occurrence of the vacancy -- which means any time before August 17? Can the Court impose on the JBC the manner of exercising its discretion? Is not the power of the Court over the JBC merely one of “supervision” and not of “control”? These questions were not discussed by the Court in its decision. These will probably come up up in a motion for reconsideration.

A Military Junta?

So much for now about the search for an embraceable Chief Justice. Let us talk about a Palace spokesperson’s threat to sic a military junta on the nation. I can almost imagine Spokesperson Planas as a stern school mistress waving a rod and saying to students, “Behave, or the Armed Forces will get you!”

Talk about a military junta is connected with speculation about a failed automated election resulting in failure to elect a President or Vice President or a delay in proclaiming them.

It is not as if we did not have a formula for dealing we such a possibility. We do. There is a rule on presidential succession in the Constitution. The order of succession starts with the Vice-President, is followed by the President of the Senate, and finally the Speaker of the House. Today, however, we have a situation where the term of all three of them will end with the term of the President at noon next June 30, but Congress has not done anything to provide for such situation.

This situation need not be alarming if the Senate President were one of those whose term will not end on June 30. There are twelve of them, i.e., the twelve who were elected three years ago and whose term will end only in 2013, and President Enrile is not one of them. To save the nation from Spokeperson Planas’ threat of a military junta, the easy solution is for the Senate to elect a new Senate President whose authority as Senate President will continue beyond June 30. Will the Senate do this? Senate President Enrile says there is plenty of time for that. We ask the Senate to allay the people’s fear of a military junta by electing a new Senate President who can act as President until a President or Vice-President is known.

A Back Door Entry to Congress

I agree with those who say that the party-list system is getting to be a back door entry point into the House of Representatives for those who do not qualify or deserve to be there. The party-list law says that a party-list nominee must be a member of the party to be represented. This should mean that the nominee’s heart and mind must belong to the party. This, however, is an internal quality that is not easily measurable or even determinable. This is where the hole in the wall is.

I recall that the party-list system was envisioned as an experiment. I believe that it is now time to evaluate the experiment.

29 March 2010

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