The final test of statesmanship

Truth to tell, many lawyers, law deans, and even non-lawyers, have been dismayed by the Supreme Court's latest ruling. One commented in jest that if the magistrates were taking the Bar exams, they flunked in Political law, particularly on the Constitution. What if Statutory Construction were a Bar subject?

Seriously now… The SC decision for the President to appoint the Chief Justice to replace CJ Reynato Puno who retires on May 17, 2010 yet, despite the ban in Section 15, Article VII of the Constitution, has spawned legal conflict, like disturbing a hornet's nest.

Section 15 provides: "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".

On a 9-1 vote - three justices inhibited themselves and two others voted for dismissal on prematurity - the Court with Associate Justice Lucas Bersamin as ponente, ruled that the "midnight" appointment ban does not cover the position of Chief Justice, thus: "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 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."

Further, the decision ratiocinates: "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".

Section 15, supra, is couched in clear, precise, and simple language, without any ambiguity or vagueness. It is basic in statutory construction that when the law being interpreted is without any ambiguity, the Court reads or interprets it intrinsically, without construing it. Hence, Section 15 needs no extraneous construction, say, applying extrinsic aids, seeking the framers' intent, parsing or word analysis, etc. to resolve its constitutionality.

Surprisingly, the SC errs in assuming the intent of the framers - which is not supported by their records - of the Constitution, that is, "confined the prohibition… to the Executive Department", despite the clarity and conciseness of Section 15. In fact, it says that the framers "did not need to extend the prohibition" to the Judiciary, but by what legal basis?. Granting arguendo that the Court needed to construe Section 15, what alleged "background and rationale" supports the conclusion that the appointment ban therein proscribed does not apply to the Judiciary?

Comelec chairman Christian Monsod, and a member of the Constitutional Commission, has denied that the framers of the Constitution had ever deliberated on Section 15 ban to cover only the executive department, and exempted the judiciary. Stressing that the prohibition is all-embracing and without ambiguity, Monsod said: "I think the ambiguity is in the minds of those justices".

Note the convoluted inference of the SC that had it been intended to include the Judiciary in the appointment ban, the framers "could have explicitly done so". The correct logic should be: If the framers intended the Judiciary as excluded from the ban, they would have included or added the Judiciary in the exemption clause.

Section 15 being clear and definite and, the SC thereby had no basis to rely on the framers' alleged intention which is false, what legal leg is there for the SC to authorize GMA to appoint the Chief Justice for a vacancy after May 17, 2010 yet?

It's thus a final test to the statesmanship of GMA, whether she succumbs to the perception that the SC ruling would boost her future political stock, or she lets her successor do the honors instead, and thus, save herself from dishonor.

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