Harry Roque’s Blog

It’s difficult to take a stand in the on-going spat between P -Noy and the Supreme Court. To begin with, the problem would not have occurred if only P-Noy was true to his word when he was campaigning for the presidency that he would never recognize an unconstitutional Chief Justice. P-Noy, while a non-lawyer, certainly received good advice when told that Renato Corona’s appointment was unconstitutional since it was made when there was an election related appointments ban. The language of the Constitution was certainly clear: “two months prior to the next presidential elections,  x x x the president shall not make any appointments x x x”.

Writing more than a year ago, I was emphatic that P-Noy, as the then presumptive president, should be true to his word: “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.”

But P-Noy reneged on his word. While he refused to take his oath before the person whom he described as an “unconstitutional Chief Justice”, he  nevertheless still invited Corona to his own inauguration. Moreover,  in his words and deeds, he would recognize him as Chief Justice all these time that he has been president.

P-Noy’s failure was fatal to his own cause not just because it sanctioned a violation of the Constitution, but also because in recognizing Corona as de jure Chief Justice, it was P-Noy himself that emboldened Corona and the Arroyo Court to fulfill their mandate to their appointing power: Gloria Macapagal-Arroyo. It seems to me thus that P-Noy has lost his right to complain about the so-called partisan decisions of Corona and the Arroyo Court. This was what the Constitution sought precisely to prevent when it provided for the appointments ban preceding an election: loyalty to the appointing power rather than to the nation.

It does not help any that P-Noy has complained about decisions which favor  Mrs. Macapagal-Arroyo, but do not appear to be patently wrong. Take for instance the constitutionality of the ill-fated Truth Commission.  One does not have to be a rabid pro-Arroyo supporter to know that the president cannot, through an executive order, create an agency with powers that only Congress may vest. Other legal fiascos fall also under this category: the prohibition on revoking appointments prior to the expiration of their fixed terms, and the recent temporary restraining order on the Department of Justice’s power to issue Watch Order Lists -which no less than the Justice Secretary herself has admitted to the Supreme Court,  is without legislative basis.

To make matters worse, P-Noy, even after he has recognized Corona, still had a constitutional tool to rein in the court back into the fold of the rule of law. This is the process of impeachment. He could have used it not just once, but at least twice. The first could have been used against Corona himself for agreeing to an unconstitutional appointment. Had impeachment been used against him then, it would have avoided a constitutional crisis:  the President would recognize Corona only as a de facto Chief Justice and leave its legality to be decided by the representatives of the people sitting as an impeachment court. In such an impeachment proceeding, what would have been resolved are (1) the legality of the appointment and (2) whether the acceptance of such would amount to a betrayal of public trust.

The second opportunity was the impeachment complaint lodged against Mariano Del Castillo for a plagiarized and twisted decision involving the denial of a legal remedy to those who were raped by the Japanese during World War II. While plagiarism and the twisting may not be as despicable as bribery and graft, still, as the saying goes, plagiarism is theft nonetheless. What would have been achieved through impeaching Del Castillo would be a message that the President is serious in the discharge of its role as chief executor of the laws of the land -even as against a Justice of the Court.

Perhaps, what could have further emboldened Corona and given him the idea that he already has the upper hand in his battle with the Executive is that  during a recent foreign visit,  P-Noy  even confidently stated that his tussle with the High Court is over.

So while we completely sympathize with P-Noy in his current confrontation with the Court, the reality is that he himself invited into his house the Devil that now haunts him. What is regrettable now is that having failed at first instance to do what is right, he is now destroying the very institution that that is indispensable in achieving public order in society. With his repeated attacks against the Court, he has achieved much in destroying the people’s faith in the Court as an institution. If he thinks he is doing the country a service by doing this, he better think again. For when people lose faith in the courts, they will have no further recourse but to take the law into their own hands.

But all is not lost. Justices Corona and Del Castillo are both guilty of betrayal of public trust. The constitutional remedy is to remove them through the constitutional process of impeachment. P-Noy does not only command the loyalty of both Houses of Congress. He also has the overwhelming support of the people. He can certainly cause the successful impeachment of these Justices. Meanwhile, let’s spare the institution. You do not rebuild an already damaged institution by laying bombs at its foundations.