Arroyo Court

Below is the recent column of Fr. J. Bernas on the track record of the Arroyo Court which the Filipino people will always scrutinize with all the strickness of a doubting mother superior, knowing its political color and patrons.

Sounding Board
The SC in the public eye
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 06:28:00 11/01/2010

THE SUPREME Court we now have is still referred to as the Arroyo Court for the simple reason that almost all its members are appointees of former President Gloria Macapagal-Arroyo. It has been that way for the past couple of years and the public has watched how the Court handled cases involving Gloria Macapagal-Arroyo. The principal cases of interest were the executive privilege cases, the redistricting cases and the midnight appointment cases principally regarding the appointment of a Chief Justice.

The public is still watching the unfinished midnight appointment cases. Meanwhile we are also awaiting how the Court will answer the challenge of the UP faculty and perhaps later Arroyo’s refusal to testify before the Sandiganbayan.

Executive privilege cases. Let us review key decisions that happened in the recent past. Still fresh in the public memory is the ZTE scandal. A key figure in the Court proceeding was Socio-Economic Planning Secretary Romulo Neri. Neri was seen as a person who could testify about the involvement of Arroyo in the ZTE deal. When summoned to answer questions that could lead to involving President Arroyo in the deal, Neri was given executive authority to claim privilege.

The Court said that presidential communications to close-in advisers were presumed to be covered by executive privilege. Hence the Supreme Court honored the claim of privilege and upheld Neri’s refusal to answer three specific questions.

The answer to the barred questions could have revealed criminal activity. Criminal activity cannot be covered by executive privilege. Moreover, criminal activity can be ferreted out from witnesses claiming privilege through a closed-door hearing that does not risk exposing what is truly privileged. No such hearing transpired. The net effect was that the President was practically given free rein to decide what was privileged or not.

The Dato Arroyo case. This case received practically no publicity. It involved the creation of a new representative district to accommodate Dato Arroyo. The Court reasoned that only cities need a population of 250,000 to become a representative district and that therefore other districts could be as small in population as a law might decide. Totally forgotten was the cardinal democratic rule of proportionality or one-man-one-vote.

Midnight appointments. Another occasion worth watching was the Court’s interpretation of what has become popularly known as “midnight appointments.” The business of appointing a Chief Justice during the prohibited period was one of them and this is already a closed matter. But there are still unfinished “midnight issues.” How will the Court interpret the meaning of “appointment”?

In other words, does “appointment” consist of two steps, namely “nomination” (which the appointing authority alone can perform) and “acceptance” (which the nominee alone can do), or does it consist merely of “nomination”?

President Arroyo announced appointments prior to the prohibited period. It would seem that some of those nominated made their acceptance before the prohibited period but others made it during the prohibited period. This, I believe, is the object of President Aquino’s Executive Order No. 2 and this it seems is what made Aquino go ballistic in response to the Court’s status quo order.

My own view is that a nomination prior to acceptance is not yet an appointment but merely an offer. I take the constitutional prohibition to mean that offer and acceptance of a nomination must be made before the prohibited period. We await the Court’s verdict.

* * *

The UP Challenge. Thirty-seven members of the UP Law Faculty have been ordered to show cause why they should not be held in contempt for their strong criticism of the Court’s decision on the plagiarism case involving Justice Mariano del Castillo. For me this is a very unfortunate Court order. The Court has been struggling to rebuild its tarnished image before the legal world and now it comes out with a blow against freedom of expression.

Dissenting justices freely and strongly and even scathingly criticize majority opinions. This feature of our judicial system—the fact that it allows dissent—is a source of strength of the system. It can draw even more strength from disagreement, even vigorous disagreement, from outside, especially when it comes from respected jurists. In my view it will serve the Court well if it should withdraw the show cause order against the UP faculty.

* * *

Arroyo before the Sandiganbayan. Gloria Macapagal-Arroyo has sought to be excused from appearing before the Sandiganbayan in the criminal case against Secretary Neri. Yes, Neri of ZTE. What can one say about this?

Let me say, first of all, that the rule is that an accused may refuse to take the witness stand but that a witness who is not an accused may not refuse. Such witness who is not an accused can refuse to answer only when asked an incriminating question. On the basis of what exemption is Ms Arroyo refusing to testify? Executive immunity? This, I suppose, will eventually have to be sorted out by the Arroyo Court.
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