IMPERFECT RULE OF LAW:
TYRANNY OF THE MAJORITY
AND LAST REFUGE OF GRAFTERS
RULE OF LAW
IS NOTHING BUT TYRANNY OF THE MAJORITY
AND LAST REFUGE OF GRAFTERS IN IMPROPER
SUPREME COURT DECISIONS USED TO CONCEAL
CORRUPTION---AND THEREBY PROTECTED GRAFTERS---
IN THE PAST UNLAMENTED ARROYO ADMINISTRATION
* * *
PROLOGUE
ON THE RAGING ISSUE
OF PNoy VS. CJ CORONA :
IS CHIEF JUSTICE (CJ) RENATO CORONA ’S
MIDNIGHT APPOINTMENT INVALID AND MERE
PRODUCT OF FLAWED SUPREME COURT DECISION---
SUSTAINED SO FAR UNDER THE IMPERFECT
RULE OF LAW THAT GOVERNS THE LEGAL PROFESSION?
The Misleading Expression of Support
To CJ Corona, as Well as the Outcry Against
What is Deceptively Portrayed as Unprovoked
Attack Against Him and the Supreme Court
Itself, Should Not Go Unchallenged
“Several prominent legal groups, judges and court employees’ associations have expressed support for Chief Justice Renato Corona, while they condemned the railroading of the impeachment complaint against him. Separate statements were issued by the Integrated Bar of the Philippines (IBP), the Philippine Constitution Association (PHILCONSA), the Supreme Court Assembly of Lawyers-Employees, Inc. (SCALE), the Philippine Association of Court Employees (PACE), the Judiciary Employees Association (JUDEA), and the Las Piñas City Judges Association (LPCJA).” (Sandy Araneta and Aurea Celica, “Legal groups, judges, employees back Corona , hit impeach rap,” The Philippine Star, December 25, 2011)
Note: The complete news report can be “googled” using either one of the following search terms:
Legal groups, judges, employees back Corona , hit impeach rap,
Did the Critics Come from Planet Mars,
Hence Ignorant of the Grave Provocation that Prompted
the Present Punitive Action Against CGMA and CJ Corona?
It is as though the critics of CJ Corona’s impeachment came from planet Mars and are ignorant of past events in the Philippines . They talk as if totally clueless of the need for punitive action against former President—now Congresswoman—Gloria Macapagal-Arroyo (hereafter usually referred to as PGMA or CGMA) and CJ Renato Corona. They evaded showing the total picture—the basis of meaningful evaluation and conclusion—through keeping quiet on the injustice under the manipulated and vitiated RULE OF LAW—a case of TYRANNY OF THE MAJORITY—under improper Supreme Court decisions that served not the ends of justice but the protection of the graft-ridden Arroyo administration.
The Other Side of the TRUTH—
CJ Corona’s Midnight Appointment Appears
Invalid Indeed Under Flawed Supreme Court Decision—
Rammed Down the Throats of Dissenting Justices
Without Superior Arguments on Crucial Issues
Here then is the other side of the TRUTH—the extreme provocation to the present punitive action against CJ Corona, brought upon him by himself and other PGMA appointees in the Supreme Court.
PART I
IMPERFECT RULE OF LAW
SUSTAINS CJ CORONA ’S
INVALID APPOINTMENT?
MANIPULATED RULE OF LAW
CAN SUSTAIN IMPROPER SUPREME COURT
DECISIONS—SUCH AS CJ CORONA ’S EXEMPTION FROM
CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS—
AND CONSEQUENTLY RESULT IN RULE OF INJUSTICE
The RULE of LAW as RULE of JUSTICE is premised on members of the bench endowed with wisdom and probity—as well as on up-to-date and just laws—otherwise rule of law may transform into rule of injustice.
Thus, while everybody has to abide by the RULE of LAW, Filipinos have to realize that it can be manipulated by people of power and influence, as betrayed by clearly improper Supreme Court decisions that serve not the nation’s interests but the vested interests of the ruling class. Therefore, the people have to be vigilant, guard against improper Supreme Court decisions, and find ways of seeking redress for their grievances within the ambit of the same RULE of LAW, which they have to protect and preserve, otherwise the alternative is worse: anarchy.
What Supreme Court
Apologists Do Not Tell the People:
How the Supreme Court Can Subtly Protect
Even a Graft-Ridden Administration
Under the Mockery of the Rule of Law
Through Tyranny of the Oppressive Majority
To guard against manipulated rule of law, the people have to know how it is done under the very same rule of law.
If we find a lawyer saying yes, we can always find another lawyer saying no. The reason is obvious: opposing plaintiff and defendant in court litigation are both entitled to legal services—and a lawyer has to oblige and aid whoever of the two conflicting parties seeks his services. Thus, lawyers are trained to defend either side of any debatable issue. In which case, Supreme Court justices may make wittingly or unwittingly wrong decisions and get away with it, because even wrong decisions can be made to appear justifiable under the manipulated imperfect rule of law.
Mechanics of
Manipulated Rule of Law
For instance, even if majority of Supreme Court justices would decide cases based on their own hidden biases and loyalties—such as what clearly happened during martial law, and it seems even during the past Arroyo administration—they can easily justify their intentionally WRONG decision and make it stick through the following unwritten mechanics of manipulated RULE of LAW:
(1) Citing the laws, evidences, and grounds in favor of their majority decision no matter how fallacious or convoluted their logic is.
(2) Keeping quiet about the contrary provisions of law, evidences, and grounds in favor of contrary decision no matter how sound and valid these are.
(3) Letting the WRONG votes of majority concurring justices prevail over the CORRECT votes of minority dissenting justices.
(4) Ignoring the minority dissenting opinion no matter how clearly valid and correct it is.
NOTE: While the DISSENTING opinion can validly attack the majority decision if the latter is WRONG, obviously the MAJORITY opinion cannot validly assail the dissenting opinion if the latter is RIGHT—hence the Justices who issued the wrong majority decision have to simply brush aside or ignore the correct dissenting opinionbecause, under the monumental flaw of the IMPERFECT RULE OF LAW, they are not under the obligation to do the impossible: validly—repeat, validly--REFUTE before the people the CORRECT dissenting opinion (where the dissenting opinion is CORRECT, how can it be validly refuted?)—precisely the reason why they can get away with their clearly wrong majority decision.
(5) Call the whole sham process the venerable RULE OF LAW— probably the reason why it is NOT called RULE OF JUSTICE to begin with.
(6) If attacked for the improper majority decision, evade answering criticisms no matter how valid these are; conveniently seek refuge under the subterfuge RULE of LAW—by invoking the need to maintain under it the respectability and independence of the Supreme Court.
WHY CJ CORONA ’S MIDNIGHT
APPOINTMENT IS UNCONSTITUTIONAL
AND SUSTAINED MERELY BY FALLACIOUS
SUPREME COURT DECISION UNDER
THE IMPERFECT RULE OF LAW
A. ON THEORETICAL ERROR
IN VIOLATION OF CONSTITUTION
The Supreme Court Upheld PGMA’s
Midnight Appointment of CJ Renato Corona
as Exemption from Constitutional Ban on
Midnight Appointments on Fallacious Grounds
The bases for the Supreme Court majority decision exempting Supreme Court justices from the constitutional ban on midnight appointments are summarized and shown in the websitemaintained and updated by the Supreme Court Public Information Office. The summary is attached as ANNEX A.
The major grounds for exemption cited by the Supreme Court are presented hereunder together with my contrary comments designed to refute the improper Court decision.
1. According to the Supreme Court, the INTENT of the framers of the Constitution is to exclude the Judicial Department from the ban on midnight appointments.
Quotes from the Supreme Court decision that authorized GMA to go against the Constitutional ban vs. midnight appointments:
In its March 17 decision, the Court said that “Although Valenzuela (earlier Supreme Court precedent-setting decision—M. L. Tecson) came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail.
“The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the President’s power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado, the Court held.
“Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC(Judicial and Bar Council) and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary.”
My Contrary Comments
To begin with, Section 15, Article VII of the Constitution provides as follows:
“Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.”
a. The President’s Appointing Power
The above Section 15 of Article VII of the Constitution speaks of the appointing power of the President. In the absence of specific delineation that limits its coverage, it encompasses all the President’s appointing power, including but not limited to those for Judicial Department, Constitutional Commissions, and Office of the Ombudsman.
b. Limitation to the President’s Appointing Power—
Prohibition or Ban on Midnight Appointments
The same Section 15 also provides the limitation to the President’s appointing power—it cannot make midnight appointments. There is no indication that the Judicial Branch is exempted from the limitation or ban on midnight appointments, therefore, it should be deemed included in the ban.
c. Exception to the Limitation to the President’s Appointing
Power—Allowable Midnight Appointments
The limitation to the President’s appointing power has anexception—meaning, the limitation shall not apply and midnight appointments are allowable—and this refers more to Executive Branch officials in charge of public service and public safety, work on which cannot be postponed and has to be attended to on an uninterrupted basis. There is NO indication that the Judicial Branch isincluded in the exception to the ban, hence it should be deemed included in the ban.
At any rate, no matter how the above Section 15 is read, onecannot find in it any provision that the Judicial Department is exempted from the ban against midnight appointments, thus it should be deemed included in the ban.
d. INTENT of the PEOPLE vs. Intent of Framers
of the Constitution
The foregoing Supreme Court contention—that the intent of the Constitutional Commission (as shown in the minutes of its deliberation) should prevail over the interpretation of the wording of the Constitution is simply not right if the wording of the Constitution is clear enough—and, as just seen, it is clear enough. All concerned have to stick to the wording of the Constitution because, when the people voted in the plebiscite, they ratified the Constitution as worded—not the intent of its framers—as can be deduced from the common-sense fact that more than majority of the voters have not even heard of, let alone read, the framers’ intent.
Sovereignty resides in the people, therefore, the INTENT of the PEOPLE—as clearly expressed in the WORDING of the CONSTITUTIONthat they ratified in a plebiscite, should prevail over the hidden INTENT of the FRAMERS of the Constitution.
e. Effect of Creation of Judicial and Bar Council
The Supreme Court’s speculation that the Judicial and Bar Council would do away with midnight appointments has been contradicted by the very case of CJ Renato Corona—who is what else if not a forbidden midnight appointee had not the Supreme Court unwarrantedly clothed him with exemption from the constitutional ban—through invoking what is not in the Constitution.
* * *
In sum, any protestations or legal gobbledygook by the Supreme Court against its inclusion in the ban cannot prevail over the people’s clear desire or intent to include it in the ban, as unequivocally expressed in the very explicit wording of the Constitution on ban coverage. Please note that the Constitution does not have any existing provision that explicitly exempts the Supreme Court from the ban. If so, as lawyers say, what is not excluded is deemed included.
2. According to the Supreme Court, had the framers of the Constitution intended the INCLUSION of Supreme Court justices in the BAN on midnight appointments, they could have explicitly provided for such inclusion in the Constitution.
Here is the other ground for the Supreme Court’s decisionexempting Supreme Court justices from the constitutional ban on midnight appointments, as quoted from the pertinent Supreme Court decision (ANNEX A):
"The Court said that had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of members of the Supreme Court, they could have explicitly done so.
"Art. VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President, while the presidential power of appointment is dealt with in Sections 14, 15, and 16 of the Article, the Court noted."
My Contrary Comments
Following are the facts of the case:
a. The respective Articles of the Constitution for the Judicial Department (Article VIII); Constitutional Commissions consisting of the Civil Service Commission, Comelec, and Commission on Audit (Article IX); and Office of the Ombudsman (Article XI) provide the appointing power for their respective highest officials—the President as head of the Executive Department (Article VII).
b. Section 15 of Article VII on the Executive Department provides the limitation on the President’s appointing power with respect tomidnight appointments. This Section does not provide exemptionfrom this limitation on the President’s appointing power for the Judicial Department, Constitutional Commissions, and Office of the Ombudsman.
c. All the other Articles of the Constitution do not provide exemption from the limitation on the President’s appointing power on midnight appointments to any one of the Judicial Department, Constitutional Commissions, and Office of the Ombudsman.
From the foregoing facts, the following conclusions can be drawn:
a. Section 15 of Article VII provides a blanket limitation on the appointing power of the President with respect to midnight appointments in all positions where the President’s appointing power applies—and this includes those for the highest officials in the Judicial Department, Constitutional Commissions, and Office of the Ombudsman.
b. In the absence of any provision on exemption to the limitation on the President’s appointing power for midnight appointments in the Judicial Department, etc. they are covered by the general rule or blanket limitation on the President’s appointing power. To repeat,what is not excluded is deemed included.
c. The Supreme Court’s assertion that “had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of members of the Supreme Court, they could have explicitly done so” is untenable. Otherwise, if the Supreme Court were right, in the similar absence of such explicitinclusion-in-ban provision for other offices like Constitutional Commissions and Office of the Ombudsman, their highest officials would be similarly excluded from the ban just like those in the Judicial Department—thereby resulting in the ridiculous situation where no positions are covered by the ban on midnight appointments under the present Constitution. And just what happened to the ban under Section 15, Article VII, what is it there for?
B. ON PROCEDURAL ERROR
IN VIOLATION OF LAW
The Supreme Court Simply Ignored
the Propounded Procedural Error
Committed by the Judicial and Bar Council
On May 18, 2010, law professor Atty. Alan Paguia came out with an opinion that CJ Renato Corona’s appointment as Chief Justice isinvalid owing to a procedural error committed by the Judicial and Bar Council. If he has not changed his opinion, then he is expected to agree to CJ Corona’s removal from his post through impeachment.
However, media reported that together with Atty. Homobono Adaza, he filed a petition before the Supreme Court to stop the Senate impeachment trial, among other things, on the technicality that the impeachment complaint was not properly verified by the complainants, as admitted by some of them.
As a lawyer through and through, it appears Atty. Paguia is a stickler for adherence to the rule of law, even if, this time, it is more a matter of form than substance, because to begin with he believes that CJ Corona’s appointment as CJ is invalid owing to procedural error.
Atty. Paguia’s opinion, surfed from the Internet, is reproduced hereunder as it is a form of reaction to his own petition before the Supreme Court to stop the Senate impeachment trial. It is also another example of a contrary opinion simply brushed aside in the Supreme Court decision that improperly upheld CJ Corona’s appointment as Chief Justice. It supports a valid cause—the case for CJ Corona’s impeachment in the Senate—never mind that Atty. Paguia is now against that cause.
From the Blog: Philippine Commentary V3.0
Owned and operated by DEAN GEORGE BOCOBO
Alan Paguia on the
Appointment of Renato Corona
“Chief Justice”?
Alan F. Paguia
Former Professor of Law
Ateneo Law School
University of Batangas
Pamantasan ng Lungsod ng Maynila
May 18, 2010
Is Associate Justice Renato Corona’s appointment as Chief Justice valid or invalid?
Facts
1. On January 20, 2010, the Judicial and Bar Council (JBC) formally announced “the opening for application or recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT, which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief Justice, HON. REYNATO S. PUNO.”
2. Subsequently, on May 5, 2010, the JBC submitted a short list of four (4) nominees, namely Supreme Court Associate Justices Arturo Brion, Teresita Leonardo-de Castro, Renato Corona, and Sandiganbayan Acting Presiding Justice Edilberto Sandoval, to the Office of the President. Earlier, the JBC excluded two (2) other nominees – Senior Associate Justice Antonio Carpio and Associate Justice Conchita Carpio-Morales – who had maintained that Mrs. Arroyo is barred by the 1987 Constitution from appointing Chief Justice Puno’s successor, and that they would not accept such an appointment from her. SRG
3. On the morning of May 17, 2010, Mr. Justice Renato Corona took his oath as the 23rd Chief Justice of the Supreme Court before Mrs. Gloria Macapagal-Arroyo at the Malacañang Palace .
The Law
4. The 1987 Constitution materially provides that: “The Members of the Supreme Court… shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy…” (Sec. 9, Art. VIII).
5. Under the Constitution, the Supreme Court is composed of a Chief Justice and fourteen (14) Associate Justices. They are the fifteen (15) Members of the Court.
6. The “vacancy” cited by the law refers to the position of “Member” of the Court.
7. The law mandatorily requires “at least three nominees” for every such “vacancy”.
8. In other words, the JBC appears to have committed amisstep in its aforementioned announcement. Instead of referring to the position of “Member” of the Supreme Court, as expressly provided by law, it erroneously referred to the position of “CHIEF JUSTICE OF THE SUPREME COURT”.
9. The parties’ intention is clear. The JBC, Mrs. Arroyo, and Mr. Justice Corona all intended to follow the cited provision of the Constitution.
10. Did the JBC submit “at least three nominees” for the vacant position of “Member”of the Supreme Court?11. The answer is NO. While it submitted the names of four nominees, only Justice Sandoval of the Sandiganbayan could be appointed to fill the vacancy. The other three are already Members of the High Court.12. Under the Civil Code, acts executed against the provisions of mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity (Art. 5). In the JBC’s case, the exception does not apply. The law itself does not authorize the validity of the questioned nominations.13. According to the Supreme Court, VOID means: “no legal existence” (Velasco v. Lopez, 1 Phil 720). Consequently, (a) the JBC’s void list of nominees, which was acted upon by Mrs. Arroyo and Mr. Justice Corona, also has “no legal existence”, and (b) Mrs. Arroyo and Mr. Justice Corona had acted without legal basis.14. Dura lex sed lex. The law may be harsh to some, but that is the law.15. Mr. Justice Corona’s appointment as Chief Justice is, therefore, INVALID.“THE FATE OF THE PEOPLE IS DECIDEDBY THE WILL OF THEIR LEADERS.”May the officers and members of the Senate impeachment court have the wisdom and the patriotism to come up with just and proper decision on CJ Renato Corona’s impeachment, so that the nation can move on and face the daunting challenges confronting it today.MARCELO L. TECSONA Concerned CitizenSan Miguel, BulacanJanuary 5, 2012NOTE: This email is the first part of a comprehensive paper that treats of manipulated rule of law as tyranny of the majority and last refuge of grafters, and how key government offices outside the Executive Branch appeared to have protected the graft-ridden Arroyo administration during its time.===========================ANNEX ABenchmark Online April 2010:ELECTION BAN ON APPOINTMENTSDOES NOT EXTEND TO THE SUPREME COURTBy Jay B. RempilloIt’s final. President Gloria Macapagal Arroyo can appoint the successor of Chief Justice Reynato S. Puno who will be mandatorily retiring on May 17.This as the Supreme Court upheld its March 17, 2010 decision ruling that the prohibition under Article VII, Section 15 of the Constitution against presidential appointments immediately before the next presidential elections and up to the end of the term of the outgoing President does not apply to vacancies in the High Tribunal.
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