Speak with authority or authority to speak

So another 1,451 law graduates are now “Attorneys” after hurdling the Bar Exams. Of course they are most welcome to our ranks, but I am not sure if this is good or bad for our country because I have heard several times before that we already have an over-supply of lawyers and that this glut is precisely the cause of division and unending controversies in our society which is a great hindrance to progress. This should be foremost in the minds of the new lawyers as they embark on their careers.

Indeed ours is one of the most litigious societies in the world. And this is obviously because lawyers have different points of view about a particular case due to their diverse interpretations of the law involved even if said law is already quite clear and needs no interpretation anymore. Hence cases are filed in court at a faster pace than they are resolved with finality thereby clogging the court dockets even more with no immediate solution in sight.

The most recent and very classic example here is the constitutional prohibition on midnight appointments particularly the appointment of the next Chief Justice (CJ) of the Supreme Court (SC) upon the retirement of the incumbent CJ on May 17, 2010. The wordings of the constitutional provision on this subject is already clear enough and do not require an interpretation anymore. Yet some lawyers still tried to interpret them with a new twist just to accommodate the desire of the outgoing President to make such questionable appointment and thus stir another controversy that has to be, as it was recently resolved by the SC.

Actually, an overwhelming majority of lawyers, experts in constitutional law including the framers and authors of the provision itself and even non-lawyers are of the opinion that the outgoing president cannot appoint the next CJ anymore because the constitution itself in Article VII Section 15 unmistakably and plainly says that “Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make any appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public interest or endanger public safety”. In fact, I have written several articles on this issue expressing the same view.

But nine out of the twelve SC magistrates who are also all lawyers and who participated in resolving the case, chose to side with the opinion of the few lawyers who have a contrary view. They are only nine out of the thousands of other lawyers in this country but their opinion on this issue has to prevail and must be followed even if it apparently disregards basic rules on statutory construction and does not conform to the opinion of an overwhelming majority of lawyers and the public in general. They may not speak with authority (obviously because many do not believe them) but they have the authority to speak because they constitute a majority of the SC which has the final say regarding any constitutional issue. This is how our democracy under the rule of law works.

This case is indeed one of the few cases where the SC or majority of its magistrates may have committed a blatant mistake. But this is not enough reason to roil the clear and calm waters of our democratic institution like the SC by going to the streets and staging mass actions that may lead to unrest. While these protest actions are legitimate exercises of the freedom of speech, they are not the proper and effective means to correct the mistake committed by the SC. On the contrary, they may even force the SC Justices to close ranks, take a hard line stance and shut the door to any change or reconsideration of its decision.

It is more in accord with the rule of law if the due process is observed in the correction of the error committed by the magistrates. Even if it looks quite unlikely that the nine SC Justices will still change their minds, the better recourse is to go back to them and seek a reconsideration of their decision. Legal battles are fought and won in the courtroom where strong reasoning and convincing arguments are the best weapons ensuring victory. Going to the streets and rabble rousing only indicate weakness of the grounds and reasons of their legal positions.

To be sure, there are really enough bases for branding the present SC as the “Arroyo Court” especially in view of the recent ruling in the appointment of the next CJ. However, there are also some grounds to believe that the SC is still manned by reasonable men and women who render judgments according to their best lights except that human as they are, they may also err in some instances. Hence in the controversy surrounding the outgoing president’s power to appoint the next CJ despite the constitutional ban, the better and more proper attitude for us is to still maintain our trust and confidence in the SC; to continue believing that they still have the capability to realize their mistakes and the humility to correct them.

On the other hand, it is also hoped that in their deliberations on the pending motion for reconsideration of their decision on this issue, our SC Justices will keep their minds open and will be guided and enlightened in their decision by resolving the issue to suit the intent and spirit of the law rather than to suit the purposes of the outgoing president to whom they owe their appointments.