Category Archives: Arroyo

Yet more appointments

Yet more new judicial appointments, from PhilStar:

As debates rage over Mrs. Arroyo’s recent appointments, two professors of the Angeles UniversityFoundation School of Law have been named new justices of the Court of Appeals.

University officials bared the new appointments last Friday but did not say when Mrs. Arroyo signed them.

Named new CA justices were Eduardo Peralta Jr. and Ramon Hernando.

“Prior to their appointments, Justice Peralta was executive judge at the Manila Regional Trial Court Branch 18 while Justice Hernando was presiding judge at the Quezon City Regional Trial Court Branch 93,” the university said in a statement.

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Mayhem in Manila

A few days ago, I mentioned President Arroyo’s plans to take out a “judicial insurance policy” by appointing a new Chief Justice in the twilight of her term of office. The Philippine Supreme Court has ruled that Arroyo can make the appointment after Chief Justice Reynato S. Puno retires on May 17 (just a week after the presidential elections), despite what seems like a fairly straightforward ban on midnight appointments under the 1987 Constitution (art. VII, § 15). There’s been a firestorm in the Philippines, with wild allegations from both sides. I’ve pulled out some of the highlights from various news articles, from pro-Arroyo to anti-Arroyo to the downright bizarre.

Ricardo Saludo, Secretary and Presidential Spokesman: 

We do have these elections and, therefore, in the event that the Supreme Court shall have to act as a Presidential Electoral Tribunal, it would be best for a sitting, confirmed, you know, actual, full-fledged Chief Justice to be in charge.

Gary Olivar, Deputy Presidential Spokesman :

It should be an eye-opener for us to see how the opposition, ranging from President Erap’s (Estrada’s) party to the Makati Business Club, has come together not only to denounce the SC ruling as unconstitutional – as if they are the better judge of the issue – but also to scare our people with fantastical talk about presidential holdover, election failure, and even, of all things, martial law.

Estelito Mendoza, a former Solicitor General:

We should no longer look at who appointed the current justices. President Arroyo has been the appointing authority for the past nine years. And we already saw how the Court in many times have ruled on cases unfavorable to the Palace.

Ralph Recto, former Chief Economist for President Arroyo:

The President is in the legacy mode. Simply bequeathing onto her successor the right to name the head of a co-equal branch is one classy act of saying goodbye.

Christian Monsod, former Commission on Elections Chairman, member of the 1986 Constitutional Commission that drafted the 1987 Constitution:

It’s amusing because the Supreme Court added an exemption when there is none. There was no ambiguity in the Constitution, the ambiguity is in the mind of the justices.

Simeon Marcelo, former Ombudsman:

It [the Supreme Court ruling] is shocking to the legal community because the wording of the Constitution here is very clear. There should be no appointments to the judiciary two months before the elections.

Delos Reyes, Ang Kapatiran Party candidate, member of Sagip Korte Suprema (Save the Supreme Court) Movement, a coalition formed in reaction to the decision:

Since there might be a midnight appointment, then there would be a ‘midnight justice’ of a seemingly midnight Supreme Court. Violating the Constitution, statutes, jurisprudence even basic delicadeza has become the standard. We need to reformat this government as viruses of padrino politics have shattered the nation’s central processing unit.

And finally, Delos Reyes again:

A miracle will happen, I just don’t know how and when but I foresee the Lord coming to our rescue.

Yes, it appears things have gotten that bad!

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Arroyo takes out a Judicial Insurance policy

Philippine President Gloria Macapagal Arroyo is once again causing trouble. This time, critics accuse her of attempting to appoint a new Supreme Court Chief Justice before her term in office ends on June 30. According to Asia Sentinel, hey fear that this move could tilt the court in her favor and forestall any attempts at prosecuting her for corruption or human rights abuses. Marites Dañguilan Vitug, a journalist who covers the court, calls Arroyo’s move a “favor to herself.”

Arroyo’s approval ratings are the lowest of any Philippine president since People Power I; nearly 70% of Filipinos distrust her. To many Filipinos, she has become the antithesis of good government. In fact, Arroyo’s opponents seem all to ready to ascribe the most sinister motives to her every move. Given this climate, it’s not surprising many commentators wary of the prospect of another Supreme Court appointment.
However, even if Arroyo’s intentions are so crass, her situation certainly isn’t unique. Outgoing leaders very often appoint close allies to constitutional courts in order to protect their interests from the incoming administration. Tom Ginsburg, Professor of Law at the University of Chicago, has written an excellent book, Judicial Review in New Democracies, demonstrating how authoritarian elites are more likely to establish strong constitutional courts if they believe they will lose power under democratic elections. He even labels the strategy an elite insurance policy.
U.S. Supreme Court Chief Justice John Marshall (1801-35), now regarded as the grandfather of constitutional review, was appointed by President John Adams right before Thomas Jefferson entered office. While Adams was not accused of gross corruption or abuses of power, he did worry that Jefferson’s Democratic-Republican Party would exact retribution. Indeed, the landmark case of Marbury v. Madison can be seen as a warning shot from the judiciary that it would defend Federalist interests.
Obviously, Arroyo is not John Adams. But the underlying dynamic of seeking to appoint loyal justices at the last minute as an insurance policy is not unique to Malacanang Palace. The more important question is how much the appointment even matters. Vitug cites Pakistan’s Chief Justice Iftikhar Muhammad Chaudhry as a model for an aggressive court, but he’s a unique case – his legitimacy rests upon his willingness to challenge political elites, and he was not appointed by President Zardari. That’s not the case in the Philippines. The Philippine Supreme Court has frequently adopted progressive causes. Chief Justice Reynato Puno has taken the lead in criticizing human rights abuses and environmental degradation. He introduced several new writs to help plaintiffs, including the writs of amparo and habeas data
Yet,  despite vocal attacks on political opponents, the Philippine elite understands that it is too risky to actually hold government officials accountable for their misdeeds. They are reluctant to set a precedent that could turn on them. The Supreme Court notably has not convicted any senior officials for human rights abuses. In several key cases, including President Estrada’s declaration of martial law in Manila, the court backed down. Of course, several years ago, Arroyo even pardoned Estrada after he had been convicted for corruption. The thought of a president going to jail apparently hit too close to home. Therefore, it is difficult to see the new administration prosecute, or the Supreme Court convict, Arroyo should the chance arise.
While we’re on the Philippines, I have started writing a “Literature Review” of several papers by Prof. Neal Tate (who sadly passed away last year) about the Supreme Court during the Marcos era. Also, next week Marites Dañguilan Vitug’s new book Shadow of Doubt: Probing the Supreme Court should arrive at bookstores. It is one of the few recent books dedicated to the politics of the Philippine Supreme Court, and I look forward to reading it (and of course writing a book review).

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