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December 10, 2010
The Supreme Court’s 10-5 decision that ruled the Truth Commission unconstitutional did not come as a surprise. It was expected. Indeed the seeds were sowed during the last few years of former President Gloria Macapagal Arroyo when she appointed nine Supreme Court justices who were perceived to have been appointed based on their loyalty to Arroyo more than their judicial credentials. By the time she stepped down from the presidency, fourteen of the justices – the 15th seat was vacant — were all her appointees including Chief Justice Renato Corona whose controversial “midnight appointment” stained the high court’s integrity.
But what is strange – and seemingly anomalous — is that the Supreme Court, through its spokesperson Gleo Guerra, announced that the high court had voted to nullify President Benigno Aquino III’s Executive Order No. 1 – which created the Truth Commission — even before the ponencia was written by the ponente, Justice Jose Mendoza. “The majority, among others, held that EO 1 violates the equal protection clause of the Constitution in as much as it singles out for investigation the reports of graft and corruption in the previous administration,” Guerra said. Guerra also said that Chief Justice Corona gave her a “quick briefing” on the outcome of the vote and the main points of the decision indicating that “violation of the equal protection clause was the common ground in the opinions of the majority.” So far, no dissenting opinions have yet been written; however, it is expected that there would be.
Arroyo bloc
The 10 justices who voted with the majority decision were Chief Justice Renato Corona, Teresita Leonardo-de Castro, Arturo Brion, Presbiterio Velasco, Diosdado Peralta, Lucas Bersamin, Mariano del Castillo, Martin Villarama, Jose Perez, and Jose Mendoza (ponente). The five who dissented were Antonio Nachura, Antonio Carpio, Conchita Carpio-Morales, Maria Lourdes Sereno, and Robert Abad.
Of those who voted with the majority in 10-5 ruling against the Truth Commission, eight of them also voted on the March 17, 2010 ruling allowing Arroyo to appoint the Chief Justice in spite of the constitutional ban on “midnight appointments.” They were Leonardo-de Castro, Brion, Peralta, Bersamin (ponente), Del Castillo, Villarama, Perez, and Mendoza. Corona abstained and Velasco voted to dismiss the petition. Interestingly, Abad who voted for the appointment of a midnight chief justice this time voted with the dissenting minority bloc on the Truth Commission ponencia.
It is interesting to note that the eight justices who voted for appointing a “midnight chief justice” and declaring the Truth Commission unconstitutional were all appointed by Arroyo between December 2007 (Leonardo-de Castro) and January 2010 (Mendoza). They comprise the core of the “Arroyo bloc” led by Chief Justice Corona. Velasco (2006) and Abad (2009) are leaning to the “Arroyo bloc” but would occasionally vote with the minority bloc consisting of Carpio, Carpio-Morales, Nachura, and Sereno (the only Aquino appointee on the high court).
Setbacks for Aquino
In addition to nullifying the Truth Commission, the Supreme Court on an 8-3 decision issued a “status quo ante order” last September stopping the House of Representatives from proceeding with the impeachment petition against Ombudsman Merceditas Gutierrez. Those who voted with the majority were Chief Justice Corona and Associate Justices Velasco, Peralta, Bersamin, Del Castillo, Abad, Villarama, and Perez. They are noticeably members of the “Arroyo bloc.” Associate Justices Carpio, Carpio-Morales, and Sereno dissented while Associate Justices Nachura, Leonardo-de Castro, Brion, and Mendoza were on official business.
The following month, October 2010, Aquino suffered another setback. The Supreme Court issued a “status quo ante order” in the termination of National Commission on Muslim Filipinos (NCMF) commissioner and secretary Bai Omera Dianalan-Lucman. Dianalan-Lucman was one of more than 900 midnight appointments made by Arroyo. Aquino removed all of them by issuing Executive Order No. 2.
The question is: Will the Supreme Court eventually nullify Executive Order No. 2 reinstating all of the terminated midnight appointees? Jubilant over the “test case” on Dianalan-Lucman, the Arroyo camp urged other “midnight appointees” to petition the Supreme Court to revoke Executive Order No. 2. In reaction, Aquino said, “The potential result of this will be chaos and paralysis in the Executive Branch of government, as the legitimacy of officials appointed to replace those already removed will be cast in doubt.” Indeed.
With the Truth Commission nullified and the impeachment of Gutierrez in jeopardy, Aquino’s campaign promise to investigate all the allegations of corruption during the Arroyo regime seems like its going down the drain. If Congress fails to impeach Gutierrez, it will be hard for Aquino to investigate and prosecute Arroyo while Gutierrez remains as Ombudsman, whose term will run through December 1, 2012.
Last line of defense
But even if the Ombudsman were compelled to prosecute Arroyo, the final arbiter would be the Supreme Court. In other words, if Arroyo were convicted of any criminal act by the lower and appellate courts, the Supreme Court would be Arroyo’s last line of defense.
With only three justices – Carpio-Morales, Nachura, and Abad — retiring before the ban on “midnight appointments” in 2016 elections, the “Arroyo bloc” would still maintain a solid majority of nine votes. It would only be after Aquino’s successor took over in 2016 that three more members of the “Arroyo bloc” would retire; thus, losing their control of the high court.
Indeed, with the Ombudsman as her line of “first defense” and the Supreme Court her line of “last defense,” Arroyo stands on a solid footing safe from prosecution. She could be “untouchable.”
However, if Aquino were to exert his political influence and consolidate his forces in the House of Representatives to take a bolder approach in impeaching Gutierrez, they might find a way to proceed with the impeachment proceeding and break the impregnability of Arroyo’s Court of “Last Defense.”
Now is the time for Aquino to come down from his ivory tower and take the lead in bringing the corrupt to justice.