Revisiting Midnight Appointment Cases

When the Supreme Court, under a new leadership, resumed session last Tuesday, it was confronted once again with the nagging issue on the power of the outgoing president to appoint retired Chief Justice Reynato S. Puno's replacement, with the filing by the Philippine Bar Association of a second motion for reconsideration of the decision in De Castro v. JBC. I can only surmise the uncomfortable situation Chief Justice Renato Corona must have found himself in when he presided over the Court to tackle the question on the legitimacy of his appointment.

The widely criticized De Castro was of course the March 17 decision that paved the way for CJ Corona's appointment by lameduck President Gloria Macapagal-Arroyo (GMA). The case involves the applicability of the constitutional ban on the appointing power of an outgoing president, particularly with respect to vacancies in the judiciary, two months prior to and until the end of her term. This is known as the ban on midnight appointments.

Penned by my former law professor, now Justice Lucas Bersamin, the De Castro ruling held that the ban does not apply to appointments in the judiciary because of a specific command in the Constitution for the president to fill any vacancy in the Supreme Court within 90 days from its occurence. The decision goes on to say that failure of the president to make such appointment would amount to a disobedience of the Constitution. Justice Bersamin raciocinated that had the framers of the Constitution intended to make the ban applicable to the judiciary, they could have expressly stated so under the article dealing with the judiciary; that by appearing on the article dealing with the presidency, the ban applies only to the executive department.

But Justice Conchita Carpio-Morales was unimpressed by the majority's ruling and filed a strong dissent by characterizing Justice Bersamin's reasoning as specious, weak and without legal mooring. She attacked Justice Bersamin's reliance on the structural arrangement of the Constitution in justifying the decision and for failure of the decision to resort to basic rules on the interpretation of the Constitution. For example, the lady justice pointed out that it is basic in constitutional interpretation that where there is no ambiguity the Constitution should be interpreted according to its plain meaning. According to her the prohibition on the president to make any appointment within the prohibited period, except when public service would be prejudiced, is a plain and simple blanket prohibition. She also cited the rule that when the law does not distinguish no distinction should be made, and true enough the ban on midnight appointment does not distinguish as to what branch of government it applies.

The dissent also takes exception to the observation that the failure to fill a vacancy in the Supreme Court within the 90-day period amounts to dereliction of duty by the president. It argues that legal impossibility exempts non-compliance with this requirement and the two-month ban precisely excuses such non-compliance and suspends the running of the 90-day period until the ban ends.

Finally, Justice Carpio-Morales laments Justice Bersamin's failure to cite any particular deliberation of the drafters of the Constitution in claiming that the intent of the framers support the conclusion reached by the majority.

De Vera is in sharp contrast with the much earlier decision in Aytona v. Castillo, wherein the Supreme Court ruled that after a newly-elected president has been proclaimed, the incumbent and outgoing president is nothing more than a caretaker whose duty is to see to the smooth transition of power from the old to the new president. Interestingly, Aytona involves the withdrawal by then President Disodado Macapagal, GMA's father, of the 350 midnight appointments made by his predecessor President Carlos P. Garcia in 1961. A day before Macapagal's assumption to office, Garcia issued appointments to both executive and judicial positions.

The Supreme Court upheld the validity of President Macapagal's order canceling or recalling the appointments made by President Garcia without distinguishing between the types of positions involved. Of course, Aytona was decided under the 1935 Constitution which allows reelection of the president.

A much later case, In Re Valenzuela (promulgated in 1998), decided under the present Constitution, likewise did not distinguish between executive and judicial positions when it comes to the application of the ban on midnight appointments. This case involves the appointment of judges. Having fallen within the two-month ban, and there being no justification for the urgency of the appointments, the Supreme Court struck down the appointments as invalid.

Clearly then De Castro departed from the Aytona and Valenzuela decisions. It is worth noting that the Supreme Court, as the final authority to declare what the law is, can reverse itself and even overturn long established principles of law laid down in a particular case. De Castro is definitely such an instance. It is highly unlikely, however, that the Supreme Court will reconsider De Castro, given the fact that CJ Corona has already assumed office. I don't think the Supreme Court is about to strip one of its members of his just conferred primus inter pares status.

LONG LIVE PHILIPPINE INDEPENDENCE!

Corona's Appointment Ties Noynoy's Hands

In clear disregard of the incoming president's prerogative to appoint the next chief justice, outgoing president and incoming congresswoman Gloria Macapagal-Arroyo (GMA) displayed once again her stubbornness by appointing her former chief of staff and spokesperson, now Supreme Court Justice Renato Corona as the next chief justice.

While De Castro v. Judicial and Bar Council has cleared the way for GMA in appointing the next chief justice, courtesy and prudence dictate that she should have let the incoming president have the privilege of appointing the replacement of Chief Justice Reynato Puno, who is set to retire on Monday. The absence of a chief justice will in on way hamper the operation of the high court, it being a collegial body where each member equally exercises judicial functions in collaboration with the others. Besides, an acting chief justice can always be designated in the interim as has happened in the past where the most senior member of the court assumes the role pending the appointment of a chief justice.

GMA's haste in appointing the new chief justice, with only less than two months before her term expires, is once again lending credence to apprehensions of another sinister plot in the making. Just like the no-el scenarios - born out of Malacañang's questionable conduct and pronouncements - this appointment will once more stir our imaginations and make us conclude that GMA is making the final touches to her carapace that will protect her against future prosecutions, especially so that the presidential front-runner Noynoy Aquino has promised to launch an investigation into the allegations of wrongdoing during her administration. And who better to protect her than an old associate like Renato Corona, who has closely worked with her even while she was still a vice president.

But GMA does not only appear to serve her interest in this appointment. She has also put the heir-apparent to the presidency on the spot. Knowing that Aquino has publicly announced before that he will not recognize a GMA-appointed chief justice, the appointment appears to be pitting Noynoy against the Supreme Court (which is packed with GMA appointees) early on in his presidency.

After all is said and done, however, the appointment of Renato Corona has effectively tied the hands of Noynoy. The Supreme Court itself has already spoken that GMA can make the appointment. For Noynoy to disregard such appointment once he assumes power would not only be a legal dent on his young administration, but also antagonize the Supreme Court whose members will not take kindly the embarrassment that will befall one of their own.

If GMA has not seen fit to exercise courtesy and prudence, that's no reason for Noynoy to do the same. Nothing will be gained except to nurse a bruised ego by not recognizing the appointment, however distasteful the manner it has been made. Six years is a long time to be waging losing battles in the Supreme Court.

(Photo Courtesy of www.caloocancity.gov.ph)

Legal and Political Ramifications of Postponing the Elections

The glitches on the voting machines' memory cards found during Monday's mock polls have generated calls for either postponement of the May 10 elections or reverting it to manual voting. Monday's exercise has further heightened the public's fear of a rigged or failed elections, and the Comelec-Smartmatic assurance has not helped in assuaging this fear.

As of this writing, Smartmatic (the company awarded with automating the May 10 polls) is rushing the reconfiguration of the 76,340 defective compact flash (CF) cards - which contain the program for the voting machines to work - in time for the final testing on May 7. There is, however, a well-founded fear that this might not be done, or even if done, the result might still be suspect, considering that it took Smartmatic more or less two months to initially reconfigure these CF cards for the May 10 polls compared to the two or three days Smartmatic will do the second reconfiguring to correct the errors.

No less than the president's top election lawyer, Romulo Macalintal, has called for postponing the elections and even went as far as withdrawing as the president's counsel if only to stress his seriousness. He argues that the Omnibus Election Code (OEC) empowers the Comelec to postpone the election if for some reason it becomes impossible to hold, and proposes that a 15-day postponement would be reasonable to give Comelec more time to prepare.

Constitutional Commissioner Fr. Joaquin Bernas, however, doubts the legality of Comelec's power to postpone under the OEC. He believes the OEC merely empowers the Comelec to postpone in local, but not in national election.

Although the Constitution sets the national election on the second Monday of May, it allows its postponement when a law to this effect is passed by Congress. Given, however, the lack of time to convene Congress, not to mention the preoccupation of many of its members on the campaign trail and the improbability of mustering enough favorable votes, it seems almost impossible now that such a law can still be passed.

On the other hand, the Concerned Citizens Movement, which sought to stop the automated election but failed to do so in Roque v. Comelec, has filed a petition anew with the Supreme Court to hold the election under the manual system for fear of a failed election under the automated system. It is unlikely, however, that the Supreme Court will give the petition due course. For one, the case or controversy requirement that will move the high court to entertain the petition is missing. While the automated election system (AES) has experienced glitches during its testing, this alone does not meet the requirement of an actual case or controversy where conflicting legal rights susceptible of judicial resolution are present. Besides, the question on the legality of the automation law has already been passed upon by the court in Roque v. Comelec.

Other sectors, uncluding some presidential candidates, remain firm in their position that the May 10 elections should push through as scheduled. They voice fear that the postponement of the elections will only serve the president's plan of overstaying in power. Malacañang, of course, is wise to distance itself from postponing the elections and the president's prompt acceptance of Macalintal's withdrawal seems to reinforce the administration's lack of interest in delaying the elections. And the Comelec is certainly unwilling to receive the ire of those against a No-el scenario by steadfastly claiming that the elections will push through and can fix the AES hiccups before Monday. After all, if the AES fails the fault cannot be solely attributed to it as it is merely implementing a law passed by Congress.

Postponement of not, the country may be getting itself into a catch-22 situation. If the elections proceed as scheduled, the probability of failure is not at all unlikely since no one knows what other glitchy creatures will emerge from the murky waters of an untested AES come Monday. To be sure, no one (whether Comelec, Smartmatic or even IT practitioners) has foreseen that the CF cards of the voting machines will fail to read and accurately count votes for other positions, despite Smartmatic's experiences in implementing an AES in other countries, such as in Curacao and Venezuela. And it is without a doubt that there will be areas where the voting machines will fail to transmit results electronically. In a country like ours where the IT infrastructure is not developed in several areas this is a given. In other words manual voting in lieu of automated voting will certainly take place. It's just a question of how much will be the extent of it.

If it comes to the point that manual voting becomes widespread, it is highly probable that the results will not be known after the term of the president and her constitutional successors ends. Consider this: the 80,000 clustered precincts around the whole country under the AES have resulted in about 600 to even 1,000 voters per precinct, compared to the about 200 voters per precinct in the past. If manual voting is resorted to in the event of computer problems, one could only imagine how long will the voting take place. Long after the legally mandated closing of voting has passed more voters would still be unable to vote, resulting in their disenfranchisement. To avoid this, declaration of failure of elections is the only viable option and in the meantime the clock is ticking, and power vacuum beckons.

It is not yet late for our leaders - administration and opposition alike - to come together and sit down for a contingency measure in the event of failure of election. They should as soon as possible provide for a transition government, a caretaker if you will, that will see the country through this first nationally-automated electoral exercise. President Macapagal-Arroyo should initiate this move to cast any doubt on her motives. Who knows, this might just be the legacy - a postitive one, that is - that she will leave when she steps down from office on June 30th. Until now, however, the president has yet to make any pronouncement on the eventuality of a failed election and the public is being kept in the dark as to what contingency measures she has.

Agra's Disregard of Evidentiary Standards

DOJ Secretary Alberto Agra has found himself in the middle of a storm for dismissing the murder charges against two Ampatuan clan members in connection with the gruesome massacre of Mangudadatu supporters and journalists in Maguindanao. The besieged justice secretary reversed the preliminary investigation findings of his prosecutors, claiming there is not enough credible evidence to warrant the filing of murder charges against the two Ampatuans.

The prosecutors, however, who recommended the filing of the murder charges based their conclusion on the testimony of an unbiased eyewitness, as against the alibi foisted by the Ampatuans. Historically considered as a weak defense, the Ampatuans' alibi should have been left for consideration during the trial proper and not during the preliminary investigation, especially that there is an eyewitness to support the filing of charges.

It bears noting that during the preliminary investigation stage, what the investigating prosecutor needs to determine only is whether or not a crime has been committed, and if so whether or not the person being investigated is probably guilty thereof. "Probable cause" is the key phrase. As the name implies, the probability of guilt only is what needs to be determined, and not the certainty of guilt - a standard applied during the trial proper only.

There is no doubt that the massacre did occur. There is also evidence that the Ampatuans may have been involved, as testified to by the eyewitness who claims he knew first-hand of the Ampatuans' participation in the planning of the massacre. These are facts and circumstances which would engender a well-founded belief that a crime has been committed and that the Ampatuans are probably guilty of the crime charged. Under our rules of criminal procedure, this is sufficient for the prosecutor to indict the Ampatuans. Take note, the purpose of the investigation is not to find guilt but a cause for filing the charges. Accusation is not synonymous with guilt. The Ampatuans will still get their day in court to refute these charges, and that will be the time for them to scrutinize the truthfulness of the eyewitness testimony, question his motive, test the veracity of this statements or refute them with contradictory evidence, such as alibi.

It is therefore no wonder that even Agra's chief state prosecutor went public against his decision to drop the charges against the two Ampatuans. He clearly disregard the evidentiary requirement in preliminary investigation, by wrongly applying the much higher standard of proof beyond reasonable doubt that should only be made during the trial proper.

Dimensions of a Failed Election and What GMA Needs to Do

As the May 10 elections near the failure of elections anxiety grows even stronger. This fear acquires special significance because for the first time in Philippine history the elections will be automated - at least on a nationwide basis, since we already had a taste of computerized polls during the ARMM elections. In this coming elections, however, the stakes are high as all positions, from president down to the councilor of the smallest municipality, will be voted for.

Failure of elections is not something new in our electoral lexicon. Losing candidates have at various times in the past utilized this as a legal tool to annul the proclamation of their rivals. More often than not, however, this legal argument has been met with disapprobation from the Supreme Court. The High Court has sustained this claim only in the clearest cases of electoral frauds.

Section 6 of the Omnibus Election Code identifies the instances under which the Commission on Elections (Comelec) can declare a failure of elections, which the Supreme Court in Soliva v. Comelec, G.R. No. 141723 (April 20, 2001) has enumerated in the following manner:

Section 6 of the Omnibus Election Code contemplates three instances when the COMELEC may declare a failure of election and call for the holding of a special election. First, when the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous cases. Second, when the election in any polling place had been suspended before the hour fixed by law for the closing of the voting. And third, after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect.

In the context of automated polls, many fear failure of elections with computers breaking down or not transmitting election results. The glitches experienced in the recent absentee voting in Hong Kong have only served to heighten this fear. In Roque v. Comelec, however, the Supreme Court dismissed this fear in denying the petition to declare the automation illegal. The Supreme Court said the automation law provides manual voting as a contingency measure in the event computers break down. The problem with this, however, is that if manual voting is resorted to in case of computer glitches, elections in affected precincts may take unusually longer and pass the closing of voting, especially so that precincts are now clustered with registered voters numbering as many as 1,000 in a precinct. Many voters will end up not being able to cast their votes.

Another scenario is the ever-looming threat of electoral fraud. Opponents of automation claim the resurgence of Garci-type cheating, wherein Comelec insiders will rig the PCOS machines by configuring them to make the favored candidates win. Inquirer columnist Amando Doronilla, however, refuses to accept this possibility in his February 16 article Who Will be the Evil Genius? According to him, there is none among the current presidential candidates (except perhaps Gilbert Teodoro via Pres. Gloria Macapagal-Arroyo) who is in a position of authority to direct the manipulation by Comelec. Teodoro and Comelec chair Jose Melo, he says, would not do it. Doronilla argues that President Macapagal-Arroyo has clearly no need for this to further her congressional bid, considering her almost guaranteed victory among her town mates.

If elections fail - because of massive cheating or breakdown of voting machines or both - and the problem is not resolved before the term of office of the president and her constitutional successors ends on June 30, there would clearly be no one legally authorized to lead the country after this date. Since GMA would be the last person to hold the reins of power before the crisis begins, I would suppose she would stay at the helm in the mentime. Now, whether or not she will do so for good remains to be seen.

Although most GMA critics would conclude that she will take this opportunity to remain in power for good, I humbly believe otherwise. If GMA were to perpetuate herself in power she would certainly meet stiff opposition both domestically and internationally, not least of which is the US. With all the military exercises the US has been conducting in the Philippines and the millions of dollars it pours into them, the Philippines is still much within the radar of US global interests. With all its worries on terrorism, the need to check an ever expanding China, and an adventurous North Korea, the last thing the US needs is a failed or weakened Philippine state.

On the local front, a permanent GMA tenancy in Malacañang would elicit thunderous protests from the opposition and civil society groups. Coups are not farfetched. In short what will happen will be nothing short of a civil unrest; even worse, an uprising that could throw the whole country into a bloody revolution. This very gruesome scenario is something that will make Washington even more vigilant in preventing a Marcosian reprise by GMA. With all her faults, I don't think GMA is ready to take this dangerous path.

GMA can, however, do one last thing that will mark her legacy. She could remain in power - a sort of hold-over president - in the event of a failed election. But in doing so, she must assure the public that it will only be temporary until the elections are re-held and completed. By law, the Comelec is mandated to re-hold elections in the event of failure at the first instance. This would entail huge expense and effort, but this is the only way that chaos can be averted.

The alternative of her not staying and vacating office when no successor has been proclaimed and sworn would be more dangerous. Power grabbers from all stripes will try to outdo each other to succeed in power. There can be no illusion that this will happen peacefully. To be sure it will be a violent race to the top. On the other hand, if GMA were to hold-over, it will simply be a case of status quo. What will save the day is the assurance that she will give to the public that she will only be doing so to pave the way for a smooth transition of power.