POSTSCRIPT / November 16, 2006 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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SC ruling on Initiative was unanimous, not 8-7!

NO TIE-BREAKER: I probably made a mistake in an earlier Postscript when I said that Chief Justice Artemio V. Panganiban cast the vote to break a 7-7 tie in the high court decision throwing out a proposed People’s Initiative to revise the Constitution.

Calling the attempted People’s Initiative a grand deception and an affront to the Constitution, the tribunal denied the petition to review and reverse (certiorari) the adverse ruling on it of the Commission on Elections and to order (mandamus) the poll body to set the plebiscite.

It just appeared that the Chief Justice broke the tie, because as chief he signed last the decision being routed to the 15 justices. By the time he signed the decision, it happened that the vote looked like a 7-7 deadlock.

But whatever was the score at that time, he had already made a decision and, in fact, had written his opinion days earlier. The Chief Justice does not vote only to break a tie; he always votes.

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UNANIMOUS RULING: Another important point is that the decision of the Supreme Court denying the two prayers of the People’s Initiative petitioners was unanimous, not 8-7 as we in media reported.

On the first plea to review and reverse the Comelec decision spurning the proponents of People’s Initiative, none of the 15 justices voted to reverse the poll body’s decision. On that score, the SC decision was unanimous.

On the second plea for mandamus or for the court to order the setting of the plebiscite, none of the 15 justice voted to grant such a plea. Some of those who wrote “dissenting” opinions merely wanted the case remanded to the Comelec.

But none of them, even among those who wrote “dissenting” opinions, voted to grant the plea for a mandamus. On that score, the court was again unanimous in rejecting the plea for the SC to order a plebiscite.

On both the certiorari and a mandamus, which were the two main prayers of the petitioners, I see all the 15 justices rendering a unanimous decision that set back the reckless campaign for charter change via a People’s Initiative.

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WEEP NOT: But Malacanang and its workers in the field — especially the Sigaw ng Bayan and the local executives who filed the petition — need not weep over the debacle.

Neither should Malacanang feel bad over other setbacks, including the refusal of Arroyo appointees in the high court to be blinded by the light being emitted by Speaker Jose de Venecia, the TRO (temporary restraining order) issued by the Court of Appeals on the suspension of Makati Mayor Jejomar Binay, and more high-profile cases on constitutional issues lost by the Palace.

Let us hope that the series of Palace defeats does not convince the Search Committee for judicial appointments to place greater weight on loyalty and reliability on the understood assurance that once appointed they would look upon their patrons with eternal gratitude.

Let us hope that integrity, competence, probity and independence — which are the qualifications prescribed by the Supreme Court for members of the judiciary — will not cease to carry more weight in the evaluation of nominees.

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BAD-MOUTHING: Malacanang should take a more mature attitude toward Arroyo appointees in the high court casting negative votes. Bad-mouthing them is counter-productive.

In the last six years of his rule, President Ferdinand Marcos did not utter a bad word against the members of the Supreme Court who penned decisions against his decrees and actions. Neither did he criticize the tribunal’s adverse rulings.

In the United States, members of the Supreme Court appointed by presidents who were their friends had penned decisions against them. Among them are Chief Justices who wrote landmark decisions that the presidents who had appointed them did not like.

Though the decisions riled the presidents, their friendship endured.

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MILLS SEIZURE: The Steel Seizure case of 1952 decided by the Supreme Court against President Harry Truman infuriated him. He called it a “crazy” decision that tied up the country.

In April 1952, the steel industry unions announced a strike in the midst of the Korean War. President Truman issued Executive Order No. 10340 seizing the steel mills and asked Congress for authority to operate them. Congress refused and the case reached the Supreme Court.

The court ruled in a 6-3 decision penned by Justice Hugo Black, a close friend of Truman, that the President exceeded his powers in seizing the mills.

It was a controversial decision with each of the six majority justices writing separate opinions because they could not agree on the fundamental reason for the seizure of the steel mills.

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‘DAMN FOOL’: One of the six justices who voted against Truman was Tom Clark, a close friend that he had appointed to the court. Truman was livid, calling Clark “that damn fool from Texas,” saying he was “about the dumbest man I think I ever ran across.”

Truman described Clark as “my biggest mistake,” adding there was “no question about it, he hasn’t made one right decision I can think of.”

Yet the deep friendship between the two men continued, their closeness apparently unaffected, suggesting that the condemnation was more the result of a sudden outburst than a deep conviction.

Yet by his decisions, Clark’s 18 years in the high court cast him into the role of a determined, if cautious, craftsman of the law who frequently became a swing man between the liberal and the conservative blocs in the tribunal.

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DESEGREGATION: Chief Justice Earl Warren was the governor of California when he was appointed by President Dwight Eisenhower to succeed Chief Justice Fred Vinson who succumbed to a heart attack.

He was a certified Republican who ran as Vice President in 1948 on the Republican ticket.

After he penned the unanimous Brown vs. Board of Education landmark decision desegregating public schools, the cordial relationship between him and Eisenhower ended. Eisenhower was just completely opposed to desegration and Warren knew that.

Eisenhower reportedly attempted to influence Warren to reject desegregation. He invited Warren and John W. Davis, the distinguished counsel from the Southern States opposing desegregation, to a White House stag dinner.

During the dinner, Eisenhower went to considerable lengths to tell Warren what a great man Davis was. Davis, who probably had argued more cases than any lawyer (140 in all) before the Supreme Court was once US Solicitor General, ambassador to the Court of Saint James and Democratic presidential candidate in 1924.

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LOFTY, LONELY PERCH: As they left the dining room, Eisenhower took Warren’s arm and said: “These are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown bucks.”

From that moment on, the relationship between Eisenhower and Warren became very cool. The two men would maintain their formal relationship required of their office, but they were personally estranged.

It was not what Eisenhower said, but it must have been the fact that he did say something meant to influence Warren that really upset the Chief Justice.

The resulting gap between the President and the Chief Justice only confirmed Warren’s feeling that the Court was a lofty but lonely place. Warren wanted no one to think he was partial to the government when federal cases came before his Court.

Normally gregarious, he felt obliged to isolate himself to avoid possible influence from personal contacts.

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NIXON REBUFFED: Another Chief Justice who penned a landmark decision against the president who had appointed him was Warren Burger.

A judge of the US Court of Appeals for the District of Columbia before his appointment by President Nixon, Burger had impeccable Republican credentials.

He was the prototype of the kind of individual that Nixon as a presidential candidate promised he would name as Chief Justice on his election. When Burger was confirmed by the Senate Judiciary Committee, Nixon was jubilant.

Several years after his appointment, Chief Justice Warren Burger penned the unanimous decision that led to Nixon’s resignation.

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SMOKING GUN: Nixon was ordered by Federal Judge John Sirica to produce the taped conversation that might contain evidence of crime. The President said No and appealed the ruling to the Supreme Court.

In the unanimous 9-0 ruling against him penned by Burger, the court ruled that the generalized assertion of privilege must yield to the demonstrated specific need for evidence in a pending criminal case.

Nixon had reason to be worried about the Supreme Court ruling. Transcripts of the tapes provided the smoking gun proof that the President had violated his oath of office and had blocked investigations of the Watergate burglary.

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(First published in the Philippine STAR of November 16, 2006)

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