The Philippine Supreme Court and the Approaches of Judicial Interpretation: A Matter of Judicial Discretion

Excerpts quoted from the recent Supreme Court ruling on the appointment of the Chief Justice during the election period.


Facial Contextualism (Contextualist)

(1) Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.[84] It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof.

Criticism: Presumptions. Intent of the framers. Interpret "as it is." Context. The structuralist flow of reasoning here seems inconsistent with the provision in the constitution where Congress is mandated to gather and deliberate the constitutionality of a marshal law proclamation and the SC to rule, by motion of any Filipino citizen, the factual sufficiency of the marshal law proclamation. If the Supremes are going to argue that marshal law proclamation is within the competency of the President (hence, it is structurally sound), then I would say, in a strictly structuralist sense that, the power of reviewing Marshal law by Congress should have been mentioned in the Legislative Department article and the factual suffiency review of the SC is in the Judiciary Department article of the constitution.

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Textualist / Strict Constructionist

(2) However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy.

Criticism: If the constitutional mandate was directed at the President, then why is the JBC directed to submit a list of nominees then? If I apply the textualist argument, then I could safely state "the JBC was not mandated by the constitution; the president is; ergo, the JBC does not need to do anything."

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The costitution made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President’s or Acting President’s term does not refer to the Members of the Supreme Court.

Criticism: This is, by far, the most diverse argument the SC has ever made regarding SC nominees. The first sentence sought the "intent" of the framers as the foundation of their rationale; hence, an originalist point of view. Second, the structuralist argument that due to the location of specific provision in the constitution, "we thus interpret so." The third is the textualist argument of "if it is not mentioned, then it is irrelevant." The Supremes seem to have resorted to all available justification, instead of presenting a coherent line of reasoning: a market full of wares called approaches to judicial interpretation, where the supreme consumer seems to use his full discretion.

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Structuralist

(4) As such, the JBC, the nature of whose principal function is executive, is not vested with the power to resolve who has the authority to appoint the next Chief Justice and, therefore, has no discretion to withhold the list from the President; [29] and (e) a writ of mandamus cannot issue to compel the JBC to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include in or exclude from the list particular individuals, but, on the contrary, the JBC’s determination of who it nominates to the President is an exercise of a discretionary duty.[30]

Criticism: Granted that the JBS's function is executive. If that is the case, how can the Supremes claim that there is separation of powers between the presidency and the JBC if (1) the function of JBC is executive, that is, it is obligated to follow an order to submit a list of nominees from chief executive, (2) its constitutional mandate to screen nominees is ministerial, having no discretion to refuse and counter a supposed constitutional requirement of submitting to the president the list of CJ candidates, and (3) the JBC was mentioned in the supreme law of the land for the specific purpose of giving the council full autonomy required to perform its function without interference from any goverment branch. The constitution is clear in the sense that all SCCJ nominees are to be screened by the JBC.

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Originalist

(5) In this connection, PHILCONSA’s urging of a revisit and a review of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional Commission to have Section 4 (1), Article VIII stand independently of any other provision, least of all one found in Article VII. It further ignored that the two provisions had no irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As judges, we are not to unduly interpret, and should not accept an interpretation that defeats the intent of the framers.

Criticism:

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Textualist

(6) A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is composed of a Chief Justice and 14 Associate Justices, who all shall be appointed by the President from a list of at least three nominees prepared by the JBC for every vacancy, which appointments require no confirmation by the Commission on Appointments. With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the membership of the Supreme Court. Otherwise, they would have simply written so in the Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution.

Criticism: The Supreme Court has become repetitive of its reasoning ("express reference" requirement), to the point it has become redundant. On the other hand, the "express reference" line of reasoning is a testament to the dominant influence of the codified laws we inherited from Spain (who in turn inherited codific tendencies from the Romans) as opposed to the English common law tradition. The Supremes seem unable to differentiate between the "intent of the Constitution" and the "intent of the framers of the Constitution." As it is, the Supreme Court has made the framers the Constitution itself. Such fallacy, indeed, accept the infallibility of the intent of the framers as always applicable to all circumstances and (whose all-knowing deliberations) covers all exigencies.

BS.
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