Harry Roque’s Blog

Of the 250 reported midnight appointees of President Gloria Macapagal Arroyo, a particular appointment of a jurist stands out: that of retired Supreme Court Justice Minita Chico-Nazario as chair of the Philippine National Oil Company -Exploration Corporation (PNOC-EC).

The first obvious question is: why appoint a retired Justice of the highest court to a post which from the very sound of it, requires technical qualifications in the field of natural resource exploitation? A second question, is what is the political consideration for the appointment of Justice Nazario to a post that is seen as the plumiest of all plum posts?

It is true that while the position of chair of the PNOC-EC is amongst the most coveted, it has previously been given to others who like Nazario, also do not possess any technical expertise. What is apparent from the recent occupants of the position, including former prosecutor and Representative Sergio Apostol, is that the post, because of its perks, is given as political pay back to a loyal ally.

In the case of Apostol, the payback is for the fact that he was instrumental in the rise of Mrs. Arroyo to the presidency. Apostol was designated as a member of the House of Representatives Panel of Prosecutors in the aborted Estrada impeachment trial. From then, Apostol proved himself to be a leading and loyal ally of the Arroyos. In fact, he served in the administration in various capacities, including his most recent before his appointment to the PNOC-EC, as Presidential Legal Counsel. When Apostol was the premier counsel to the President, he provided animated defense of many of the President’s wayward acts, including the transfer in the middle of the night of accused rapist Daniel Smith from the Makati City jail to the premises of the US Embassy without a court order.

The question remains: why was Chico-Nazario appointed chair of the PNOC-EC? Is it political pay back?

Nazario is without a doubt an Arroyo loyalist and for good reasons. She was appointed by Arroyo thrice: as Associate Justice of the Sandiganbayan, as Presiding Justice of the same Court, and as Associate Justice of the Supreme Court.

Its not just these appointments that indebted her to Arroyo. It’s the fact that these appointments were made despite lackadaisical performance as a jurist. Her stint as a judge of the lower court was uncontroversial, but neither was it remembered for being distinguished. She had neither Judicial Excellence award nor earth-shaking decisions that were upheld by the Supreme Court to remember her by. And yet despite these, she was catapulted into higher judicial posts. In both the Sandiganbayan and the Supreme Court, she was consistent in that her stint may at best be described as uncontroversial.

Justice Nazario proved to be loyal to her appointing authority in the Supreme Court. An ABS-CBN/Newsbreak investigative report indicated she “ literally voted in favor of the Arroyo administration” in all contentious cases save for three cases. This record includes voting in favor of Charter change in Lambino versus COMELEC, in favor of executive privilege in Neri versus Senate Blue Ribbon Committee, in favor of the MOA-AD, the Visiting Forces Agreement, the notorious NBN-ZTE deal and Poll Automation.

But is a solid voting record in favor of the administration sufficient justification for the perks of a chair of the PNOC-EC?

While rewarding a very loyal ally is clearly indeed a consideration for Nazario’s appointment, this is the more benign reason for her appointment. Behind the appointment is a more sinister motivation that is so typical of Mrs. Arroyo.

The country has barely recovered from Arroyo’s midnight appointment of a Chief Justice. Despite very clear language of the Constitution that such an appointment is prohibited, Arroyo succeeded only because the Supreme Court itself, as the final interpreter of the Constitution, gave its judicial imprimatur to the appointment.

It was in this case of De Castro versus JBC where both Arroyo and the Court gave no value whatsoever to public opinion that was overwhelmingly against the appointment. It was also here that the solid legal reasoning of the lone dissenting Justice was ignored in favor of the weakest technique of constitutional construction. Both the appointment and its imprimatur were issued despite express pronouncement from Arroyo’s successor, P Noy, that he would not recognize such an appointment. Against all odds, Arroyo went ahead with the appointment with a sense of impunity. She had, after all, the solid backing of a loyal court.

Here lies the greater sinister side of the Nazario appointment. Arroyo was not satisfied with one controversial midnight appointment. She went ahead and made 249 other prohibited midnight appointments. She did this with impunity knowing that a loyal judiciary would again sustain her. This was precisely why Chico-Nazario was appointed to the most coveted post of chair of the PNOC-EC.

Chances are, together with her midnight appointment to the PAGCOR and other lucrative posts, the issue of Nazario’s appointment would again be submitted for judicial review to the Supreme Court. Arroyo very clearly knew this and hence, the choice for a retired Justice of the same Supreme Court for the plumb post.

Human nature being what it is, it would otherwise be difficult for a court already loyal to Arroyo to rule against a colleague who retired from it only last December 9, 2009. Come to think of it, Nazario’s appointment also violated the spirit of the constitutional prohibition on magistrates from appearing before any court within a year from their retirement. There may not be a literal violation since Nazario is unlikely to argue her own case before the Court. There nonetheless is still a violation of the intent and purpose behind this prohibition because inevitably, the appearance of a recently retired magistrate as a party to a case will unduly influence the court in the same way that the appearance of a recently retired colleague would.

Simply put, it would be extremely difficult now for P Noy to convince the Highest Court to void Nazario’s appointment who until very recently was one of them. When this occurs, the court would then, by operation of stare decisis, legitimize the 249 other illegal appointments.

With this kind of deviousness wrecked on the nation by Arroyo -even as she is on her way out- may God have mercy on P Noy and on this poor country!