Ex-Ombudsman Marcelo cites dangers in SC decision

ABS-CBN News reporter RG Cruz interviewed former Ombudsman Simeon Marcelo on Wednesday (March 10, 2010) regarding the Supreme Court ruling. Excerpts of the interview:

It’s a shocking decision. A lawyer worth his salt knows, when reading the provision of the Constitution, will readily say it is clear that the prohibition [on midnight appointments] is absolute. If you look at the history of the Villarta and Valenzuela cases, it was a ruling made to set a precedent to cover this kind of situation. In fact, what triggered the Villarta and Valenzuela ruling is the request from President Ramos then for a shortlist from the Judicial and Bar Council (JBC) to fill up the vacancy left by the retirement of Justice Francisco who retired 1 month before ban, unlike here when retirement occurs during the ban.

I think this will have negative impact on the credibility of the Supreme Court. People are hoping that they will be very independent, but unfortunately -- to my mind, and this is my personal observation -- it didn’t happen. It was, as I’ve said, Father [Joaquin] Bernas himself, who was a member of the Constitutional Commission who drafted the 1987 Constitution, who said that really, the prohibition [on midnight appointments] is absolute.
 
There are also 2 things that seem very awkward, that trouble me. One is: why did they not call for oral arguments? Because in big cases, they always call for oral arguments. Here, the Supreme Court appeared too eager to resolve it. Secondly, in very big cases, specially involving Constitutional issues, they invite prominent constitutionalists, like retired justices and professors on constitutional law, to become amicus curiae or Friends of the Court to give the big picture, to make sure there are no blind spots. In this case, the Supreme Court failed to do this.

What is your analysis of the voting patterns of the justices?

I think they’re (associate justices Antonio Carpio, Renato Corona) correct in inhibiting. But in the case of Chief Justice Puno, I’m very, very disappointed with his inhibition because this is totally different from what Chief Justice (CJ) Andres Narvasa did in 1998. Chief Justice Narvasa took the bull by its horns and made sure that the Supreme Court will make a ruling on precisely the same issue.

All of these could have been prevented if Chief Justice Puno just followed the precedent set by CJ Narvasa, which is to decline the request of President Ramos for the JBC to submit the list of nominees. Remember, in 1998, President Ramos requested the JBC to submit a list of nominees for vacancy due to the retirement of Justice Francisco and then-Chief Justice Narvasa categorically declined to submit list and said they will submit the list to the new president. Remember, in that case, it’s even easier, because the vacancy occurred one month before the ban. Here the vacancy is within the ban.

How important is the position of Chief Justice during an election period?

It's very important especially since a lot of people, including me, perceive the failure of the Comelec to do what is needed to prepare. Most circumstances now point to the inability of the Comelec to hold the election on May 10. Remember that just for the first 600 PCOS [Precinct Count Optical Scan] machines that were delivered, only 20% worked. Just imagine: how can now they be sure, given the shortness of time prior to May 10 (that the machines will work)? How can they test all these PCOS machines that were just delivered by Smartmatic?

What role will the Chief Justice play if there is a failure?

The problem there is that he (CJ) will be the one to lead the court in deciding who will be the acting president, and if there’s a failure of election, there’s no rule governing it right now because nobody will be proclaimed. Under the Constitution, if there’s a failure of elections, if there’s no Vice President, it should be the Senate President, or, in his absence, the Speaker of the House. If there’s a failure of elections, one issue that will crop up is whether President GMA can continue to hold power in a holdover capacity.

Next issue is: what if there’s only failure of election and the partial failure of elections will affect only the national candidates--that means the president, vice-president, and senators. What if the Comelec will proclaim the winners in the Congressional races? There’s a possibility that she can be the Speaker of the House. She can become acting president. The danger there is in that provision of the Constitution, I think there is no specified period of time within which to call for a (special) election.

It’s different from the provision in the Constitution where the President resigns, dies, or for (any) other reason, there’s a 60-day period na partial failure election on the national level, but there’s no period of time specified in the Constitution when the acting president exercises the powers of the president. The consequences are very, very far reaching.

Well, I’m hoping and praying that the Judicial and Bar Council will be more independent than the Supreme Court.  Remember, under the Constitution, the President has 90 days within which to appoint a Chief Justice. That 90 days will start only from the retirement of Chief Justice Puno on May 17. So, theoretically, after June 30, when the term of the President ends, if I remember it correctly, there’s still 44 days remaining. So there’s ample time for the president  - a new president - to consider a list of nominees submitted to him, because the JBC will have the discretion to submit the list because there’s still enough time. There’s still 44 days. They can even submit it one week before the end of the 90 days, and the President will have the time to go through the list and determine which nominee will he appoint or she will appoint as Chief Justice.

So the appointment of the new Chief Justice is an important part of the supposed plot to extend Arroyo's term?

Well, that’s always a possibility, especially since General Bangit and the new head of the Army, General Mapagu, have bypassed more senior generals in the Armed Forces like General Ferrer. There are still members of [PMA] Class '76 and '77 who are more senior than them. Of course, it’s the prerogative of the President, but seniority is a highly valued factor in the appointment of the Chief of Staff and the service commanders [of the AFP].

On filing an impeachment complaint against the next Chief Justice

Yes, that’s...well, of course, that’s in a worst-case scenario because this is a blatant violation of the Constitution. And the PBA [Philippine Bar Association] was precisely organized to defend the rule of law. Here, if the Supreme Court errs, it can only be corrected through a political process, which is an impeachment proceeding.

The ban on promotion of military officers should also be included?

We're studying it, whether it is covered by the [appointment] ban. If it’s covered by the ban, I intend to file with the board of the Philippine Bar Association that we file a petition also. Maybe a quo warranto provision, we’ll still study it. If it’s covered by the ban, surely we will question it before the Supreme Court.