by Sonny Coloma
from Business World

http://www.bworldonline.com/main/content.php?id=7971

 The numbers in the Supreme Court’s decision favoring President Arroyo’s power to appoint a new chief justice: 9-1-2-3. Nine voted in favor, one dissented, two ruled it is premature, and three inhibited themselves. The number that stands out is the one dissenting vote, and Justice Conchita Carpio-Morales cast this vote. Her courageous stand reminded me of the solitary dissent put up by the first and only woman justice in the Supreme Court during the Marcos dictatorship: Justice Cecilia Muñoz Palma.

“The only justice with balls” was how observers depicted Justice Palma in those days when then Supreme Court Justice Enrique Fernando struck a memorable pose holding up an umbrella for then First Lady Imelda Marcos.

In our season of discontent, as we witness the transition from a decadent regime to a new one that will usher in new hope for the transformation of our blighted land, we find solace that there is one justice who is willing to be the proverbial voice in the wilderness. She can take comfort in the fact that there are thousands, maybe millions, who stand behind her.

When I was a student during the First Quarter Storm era, I remember progressive students of the UP college of law raise the battle cry, vox populi est suprema lex (the voice of the people is the supreme law) whenever the Marcos regime applied the law harshly against those opposing its oppressive measures.

In the early sixties, the Supreme Court decision struck down the “midnight appointment” by outgoing President Carlos Garcia of Dominador Aytona as Central Bank governor. This was probably a key factor in shaping the pertinent provisions of the 1987 Constitution that, unfortunately, were interpreted by the Arroyo majority in a way that will extend the incumbent president’s influence behind the expiry of her term on June 30.

(The 1987 Constitution was crafted by a constitutional commission formed by President Corazon Aquino and its president was retired Justice Muñoz Palma.)

In 1998, the Supreme Court under the leadership of Chief Justice Andres Narvasa struck down the appointment by President Fidel Ramos of two judges under the provisions of the 1987 Constitution pertaining to so-called midnight appointments.

Retired Supreme Court Justice Vicente Mendoza expressed the view, when asked by ANC News anchor Ricky Carandang the other night, that Chief Justice Puno could have exercised his leadership on this issue, in the same way that CJ Narvasa did in 1998. But CJ Puno opted not to do so, citing the fact that he is the chairman of the Judicial and Bar Council that will now be asked to submit its recommendations to President Arroyo.

Harvard Professor Joseph Badaracco, Jr. calls this situation, a “defining moment,” as it involves a choice between right and right. Many years from now, when historians look back at this juncture of Philippine history, what will stand out is the dissent of Justice Morales, not the inhibition by CJ Puno.

Lost in the acrimonious debate is a more basic concern: the credibility of the Supreme Court as a major institution of democracy.

The Supreme Court lost its credibility during the Marcos regime not just because its members were perceived to be more loyal to the person that appointed them than to the Constitution and the laws of the land that they were duty-bound to uphold.

I am neither a lawyer nor a legal expert and I am not disputing the legal basis underpinning the majority opinion. What I know is that checks and balances are needed to prevent abuse in the exercise of presidential power. It is not difficult to understand the wisdom behind the intended restraints on the issuance of midnight appointments.

An outgoing president will be serving out the last two months of a fixed single six-year term. This period is better spent preparing for an orderly transition of power to the new president, rather than in sparking acrimony and disunity by making a controversial midnight appointment.

The context within which this is happening is one in which there is a clear pattern: President Arroyo wants to extend her influence way beyond June 30, 2010. She is seeking a congressional seat and aspiring to be House speaker. In a doomsday scenario where there will be a failure of elections, it is possible that there will be a vacuum of leadership upon the expiry of the terms of the current president, vice president, and Senate president (Senator Enrile’s current term also ends on June 30, 2010). The House speaker is next in line, hence fueling speculations that this may just be part of an Arroyo game plan.

What is the level of credibility of the Supreme Court on account of this latest decision? Are the honorable justices able to convince the citizenry that their decision — which overturned established jurisprudence — reflects fidelity to the Constitution rather than loyalty to the person who appointed them?

In the meantime, all Filipinos of goodwill take their hats off to Madam Justice Morales. In a unique defining moment, she cast her lot with the Filipino people’s best long-term interests.

I am reminded of a poster that hung in my office many years ago: “One person with principle is more important than forty-nine who only have interests.”

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