Walking dead

Lazarus was first. From literature, Dracula. Michael Jackson had his Thriller. I don’t know if it was the blood moon but, if the Palace is serious, we are about to be hit by the next wave of zombies. Picture this: a hundred unconstitutional statutes rising up from their graves.

This is the implication of the boast that the Administration has the numbers to reverse Gonzales v. Office of the President. This was the Court decision way back 2014 that found unconstitutional Sec. 8(2) of R.A. 6770, the law that placed the Deputy Ombudsmen under the disciplinary authority of the President.

Yes, Virginia, its the very same provision Malacanang would resurrect to justify its order of suspension vs. Overall Deputy Ombudsman (ODO) Melchor Carandang. The Supreme Court ruled it unconstitutional in Gonzales because it would violate the independence of the Office of the Ombudsman.  The question is: does a revisit today of that decision result in the sudden revival of Sec. 8(2)?

Zombie apocalypse. Actually, the picture of zombie statutes afoot is not as absurd as imagined. In the United States, there is no federal case law to guide us. Their State courts, however, have routinely ruled that statutes that violate their State constitutions are revived when the court subsequently reverses its decision, however long the intervening period. They aren’t even called voided statutes. They are merely unenforceable statutes which can be enforceable again, if ever. The premise is that courts have no power to declare an action of a co-equal branch of government void.

Our Supreme Court, through its Spokesman, the self effacing and ever sophisticated Atty. Theodore Te, has clarified that the decision in Gonzales has long become final and executory. In Philippine terms, this has a different meaning: it means there is nothing left to revive.

Secretaries and Legal Luminaries Joe Calida and Harry Roque, however, still insist that they can get that unconstitutionality overturned. No doubt, this confidence is fueled by the fact that Gonzales was a close decision (9-6 vote). But, even with its precarious support, Gonzales remains the law of the land until overturned. And for as long as Congress does not pass a new Sec. 8(2), there is no basis to support the disciplining of the ODO by anyone other than the Ombudsman herself.

Should dissents be outlawed? There is the school of thought that courts ought to speak with one voice only once a bench comes to a decision. The minority that lost should keep their peace and express full support for the prevailing view. The internal fissure, it is argued, weakens the decision’s force and affects the Court’s position in the eyes of society.

Certainty of the law is one of the hallmarks of a working judicial system. When dissents show that even the wisest men differ on their understanding of the law, this tends to diminish the respect due to the law and the courts. Do we even wonder why some people become comfortable ignoring both?

The counterpoint is articulated by Justice William O. Douglas: “certainty and unanimity in the law are possible only under a fascist or communist system, where, indeed, they are indispensable.” Democracy works precisely because of that dissent. Today’s minority can be tomorrows majority should the people, and not some nebulous authoritarian power, decree it.

Better call Sal. So if 8(2) is still dead and buried, from where does the President source this power to suspend ODO Carandang? With Ombudsman Conchita Carpio Morales announcing that her office will not implement the suspension, there is even a threat of ODO Carandang being bodily removed from his office.

Comes now Presidential Legal Counsel Salvador Panelo with his usual bag of interesting arguments to explain Presidential action. This time, his answer is the presumption of regularity. 

Sec. Panelo is calling on the Ombudsman to respect the Presidential suspension order on the strength of this evidentiary presumption of regularity. The challenge here is conferring this regularity mantle on an action so egregiously wrong. How do you presume as regular something that is patently irregular? We are reminded of then Justice Secretary Leila de Lima defying the Supreme Court TRO and, on her own authority, preventing former President Gloria Macapagal Arroyo from leaving the country. Not even the presumption of regularity would have justified this unjustifiable temerity.

The presumption of regularity principle has its own limitations. This is the same principle that EJK police suspects routinely invoke. As if we can suspend disbelief and pretend, in EJK cases, that when a policeman shoots a victim in cold blood, it was part of his official duty. The presumption simply cannot be upheld if facts will show the irregularity of the action it seeks to protect. Plus, it’s a rule of evidence and not a source of power.

Bar exam. Two core constitutional principles clashed before the bar in that fateful Gonzales decision: the Ombudsman’s accountability vs. the Ombudsman’s independence. The ponencia in Gonzales provides one of many explanations why the Court sided with independence: “the drafters repeatedly and painstakingly drafted the constitutional provisions on the independent constitutional bodies to separate them from executive control. Even after the other delegates made it clear that the easier path would be to place these bodies under the control of the President, the majority nevertheless voted against these moves and emphatically expressed its refusal to have these offices be made in any way under the disciplinary authority of the Executive.”

In the meantime, the Supreme Court decision must be respected. That’s why critics see the Executive’s insistence to disregard it as an affront to the Supreme Court. If they want to revisit that decision and confirm their interpretation, they should really just certify a bill to Congress. Once Sec. 8(2) is re-enacted, then they can suspend.