Catanduanes Forum

H. Harry L. Roque Jr.
Philippine Daily Inquirer

PRESUMPTIVE President-elect Noynoy Aquino has been emphatic: He will not recognize an Arroyo-appointed chief justice. Arroyo supporters have made this a casus belli against him.

Can the presumptive Chief Executive ignore an issue that has been ruled upon by the highest court of the land? His critics say this would be an impeachable offense for culpable violation of the Constitution. Why? Under our scheme of government, the judiciary is a co-equal branch of government and ignoring an Arroyo-appointed chief justice would be equivalent to an infringement of judicial power.

I submit, however, that the real issue is what happens when the ultimate defender of the Constitution is itself in breach of its own mandate. Under this circumstance, should it be allowed a monopoly in upholding constitutional supremacy?

The Supreme Court set aside the principle of stare decisis when it overturned Valenzuela, an earlier decision that ruled that the midnight ban on appointments covers the judiciary, without changed circumstances. It did this purportedly on the basis of constitutional construction. The language, however, of Section 15, Article 7 of the Constitution is so clear that it precludes the need for construction: “Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”

The Constitution is written for the benefit of ordinary persons and not just magistrates. Where the fundamental law provides for a prohibition with specified exceptions, all other appointments are equally, fundamentally, prohibited. This includes appointments to the judiciary. The Court’s decision in De Castro versus Judicial Bar Council invokes alleged intent, as mentioned by then-Commissioner Florenz Regalado during the proceedings of the Constitutional Commission. He however did not indicate where he derived this alleged intent aside from personal recollection. In contrast, the lone dissenting opinion of Justice Conchita Carpio-Morales specifically quoted then-Commissioner Hilario Davide from the proceedings of the Constitutional Commission: Section 15 of Article VII covers appointments to the judiciary.

If what the majority of the justices did was the correct way of proving intent, I shudder to think what will happen to jurisprudence when the drafters of the Constitution are no longer around. That may mean, following the technique of the majority, an eventual impossibility to prove constitutional intent in the future.

The issue is not the jurisprudence but the breach of the mandate. The fact that the Court is referred to as “Supreme” is not a guarantee that it is infallible and will never abdicate its constitutional mandate. This happened in our recent history on two occasions: in Javellana when the Marcos Supreme Court sought refuge in the political question doctrine and abdicated its all-important tasks as guardian of constitutional supremacy, and in Aquino, which eventually inspired People Power 1.

The presumptive president-elect must keep his promise not to recognize the legitimacy of an Arroyo-appointed chief justice for two reasons. First, he must honor the mandate of the sovereign people when they ratified the 1987 Constitution. Second, this has become a political issue already decided by the people when they gave the presumptive president-elect an overwhelming mandate.

Does the majority of the members of the high court believe that their rulings can be etched in stone without any political context? I submit that the Court’s role is to uphold the supremacy of the Constitution so that despots may be prevented from rewriting or interpreting the fundamental law to suit their personal and selfish interests. It should, however, not be exercised to thwart the true intent of the people who gave their mandate to the Constitution. And certainly, judicial power cannot and should not be used to thwart the popular will of the sovereign who only now chose Noynoy Aquino as their true leader based on a promise not to recognize the legitimacy of an Arroyo midnight appointee.

Prof. H. Harry L. Roque Jr. will soon go on indefinite leave from teaching Constitutional Law and Public International Law at the UP College of Law and will also resign as professor from the Philippine Judicial Academy in protest over De Castro vs JBC. He is exhorting other law professors to do the same.

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