Questionable rulings

The Supreme Court’s (SC) final ruling that appointments of SC Justices particularly the SC Chief Justice (CJ) are not covered by the Constitutional ban on midnight appointments is expected. But somehow the feeling of disappointment is still there. One way or another people held on to a thin thread of hope that the nine SC Justices would be guided by the spirit rather than by the hazy letters of the law as they reconsider their initial decision on the matter.

Many Constitutional experts also entertained a flickering expectation that the nine SC Justices would review more intensely the deliberations of the framers of the Constitution itself on this particular provision. For if they did, they will readily see that the framers intended the ban to cover all appointments except “temporary appointments in executive positions when continued vacancies therein will prejudice public service or endanger public safety”; that the reason behind the ban is really to ensure that two months immediately before the next presidential election and up to the end of his term, the outgoing president should concentrate more on the smooth transition of power than on making appointments with far reaching effects especially to such vital positions as the Chief Justice or Justices of the SC.

Unfortunately that hope was inexorably shattered by Honorable SC Justices Lucas Bersamin, Arturo Brion, Roberto Abad, Mariano del Castillo, Teresita Leonardo-De Castro, Jose Mendoza, Jose Perez, Diosdado Peralta, and Martin Villarama. They decided to stick to their original pronouncement that “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 process of the JBC ensured that there would no longer be midnight appointments to the judiciary”.

Interestingly, these justices say that “appointments in the judiciary” are not covered by the prohibition, yet in the same breath they ruled that only appointments of the SC Justices including the CJ are allowed. Four of them still believe that appointments to judicial positions below the SC cannot be made because they are covered by the ban. This lack of consistency between their premise and their conclusion somehow taints their ruling with instability and weakness. It shows that their minds are not firmly made up thereby creating the impression that they do not speak with authority. A doctrinal ruling that the exemption to the ban on midnight appointments applies to the entire judiciary would have been more forceful, authoritative and consistent. It would have expressly overturned the 1998 SC decision voiding the appointments of RTC Judges Valenzuela and Vallarta for violating the constitutional ban on appointments two months before the next presidential election.

Another sore point sticking out in the decision is about the main reason behind the ban on midnight appointments. The nine Justices believe that the ban ensures “unhurried and deliberate” appointments to the judiciary. Obviously they overlooked the more important and overriding reason, which is, to shield the judicial appointments from politics; to prevent judicial appointments from being tainted with any political color. Hence the period of the ban is two months immediately before the next presidential election and up to the end of the term of the outgoing president. Ensuring unhurried and deliberate appointment in the judiciary is the reason behind the creation of the JBC, not the reason behind the ban on midnight appointments.

Of course, the stance of the nine Justices is easily understandable. It is innate in every man not to readily admit mistakes. More so in this case where the Justices got a lot of flak and received so many brickbats and unfavorable comments for their original decision. Under these adverse circumstances, the natural reaction is really to dig in, defend their position and assert their authority by re-affirming that decision. Maybe under a different less hostile atmosphere, the Justices could have re-assessed their position with colder neutrality.

But everything is too late now. The SC has spoken, more specifically the nine Justices who constitute a majority. As I said before, they may not speak with authority because many do not believe or cannot accept as correct their pronouncement on this issue. But since they have the authority to speak with finality as members of the court of last resort, what they say must prevail and must be followed over and above any other opinions on the matter. This is how our democracy under the rule of law works. We may not agree with them because their decision appears to be really wrong but we cannot defy their ruling.

However, the same cannot be said of the recent ruling of Acting Justice Secretary Alberto Agra ordering his prosecutors to drop the charges against ARMM Governor Zaldy Ampatuan and his cousin Mamasapano Mayor Akmad Ampatuan for multiple murders in the Maguindanao massacre. His decision has been questioned and defied by his prosecutors who conducted the preliminary investigation, because it is plainly wrong. 

Basic is the rule that in a preliminary investigation the prosecutors merely determine the existence of probable cause. As implied by the words themselves “probable cause” is concerned with “probability, not absolute or moral certainty”. The prosecutors only find out whether there are sufficient grounds to engender a well founded belief that a crime has been committed and that the persons charged should be held for trial. It does not call for the application of the rules and standards of proof required for a judgment of conviction after trial; it does not require full and exhaustive investigation of the parties’ evidence. Precisely there is a trial for that purpose (Metropolitan Bank vs. Raul Gonzales GR 180165, April 7, 2009). The presence or absence of elements of the crime is a matter of defense that may be passed upon after a full blown trial on the merits (Lee vs. KBC Bank Inc. GR 164673 January 15, 2010).

Agra disregarded these basic rules and evaluated the evidence of the parties as to the existence of conspiracy. He ruled that based on the records the two Ampatuans are not part of the conspiracy. This is the function of the trial court. Thus if the prosecutors will nevertheless be forced to file a motion dropping the two Ampatuans despite their disagreement with Agra on this issue, Judge Jocelyn Solis-Reyes who is trying the case should deny it outright and proceed with the trial of all the accused including the two Ampatuans.

We are indeed passing through a dark period in the field of law and jurisprudence. Laws and rules are stretched and twisted through questionable rulings to accommodate those in power, their political and business allies, friends and relatives. These are the times to be more vigilant.

(Note: The 50th Anniversary Celebration of RCQC is April 24, 2010, not April 28, 2010 as stated in my column yesterday.)

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