Fear factor in appointment of new Chief Justice

SENATOR Miriam Defensor-Santiago’s inclusion in the Judicial and Bar Council’s list of Chief Justice hopefuls has raised fears that Malacañang will railroad her appointment to help its Charter change cause after the Supreme Court voted to junk the Palace-backed “people’s initiative.”

Malacañang was quick to dismiss the speculations, with the chorus of assurances coming from Solicitor General Eduardo Nachura and Justice Secretary Raul Gonzalez who said political considerations had nothing to do with Santiago being considered for the SC post. The feisty senator, they argued, is “learned in law, has stature, experience and qualifications,” notwithstanding the fact that she is an “outsider.”

Executive Secretary Eduardo Ermita also said that Santiago, while a staunch ally of the Arroyo administration, will not be accorded any special treatment, and even reminded the public that his boss, Gloria Macapagal-Arroyo, as the appointing authority, always follows the procedures.

Ermita’s pronouncements, however, are not at all reassuring. Rather than assuaging such fears, his remarks only serve to justify the apprehensions, going by the way Arroyo has actually wielded the appointing powers of the President.

One only has to look at Arroyo’s recent appointments to ascertain if indeed she is a stickler to the rules the way Ermita tries to portray her.

Take the case of former Chief Justice Hilario Davide Jr. whom Arroyo nominated as Philippine Permanent Representative to the United Nations in New York to replace Lauro Baja.

Under the Foreign Service Act, or Republic Act 7157, the appointment of non-career individuals aged 70 years old and above to a foreign service post after 1992 is prohibited. The Act specifically states that career officials and employees of the Department of Foreign Affairs (DFA) are to be retired once they reach the age of 65. (see PCIJ story)

Despite this law, non-career people who are past the allowed age like the 71-year-old Davide are still being nominated to foreign posts. Baja himself is 69 years old, though he is a retired career foreign-service officer unlike Davide.

Davide’s nomination to the U.N. post is seen as nothing less than a reward, after his decision to administer the presidential oath of office to then Vice President Arroyo on January 20, 2001 paved the way for her controversial assumption as President.

Last May, Arroyo also figured in the controversial selection of Antonio Kalaw as president of the Development Academy of the Philippines (DAP). Kalaw, the DAP senior vice president and corporate secretary at the time, was Arroyo’s personal choice, which she expressed in a desire letter conveyed to the DAP board while a search process was being conducted with no less than Kalaw as overseer. (see PCIJ story)

Kalaw was not even the most qualified candidate for the position, landing seventh among the eight contenders in a ranking made by the DAP search committee. Compared to the rest, he has no postgraduate degree and publications to his name.

Academy insiders say that Arroyo’s interest in the DAP presidency could have been tied to her desire to get a “friendly” president who will vote to oust Civil Service Commission chief Karina David from the chairmanship of the Career Executive Service Board (CESB), which rebuked Malacañang for ignoring civil-service rules, particularly in the case of former education undersecretary Juan Miguel Luz, and in effect politicizing the bureaucracy.

Arroyo’s revolving-door policy with respect to other appointments, particularly in the military vis-a-vis the choice of the armed forces’ chief of staff, has also been criticized for its perceived political motivations. The current chief, Gen. Hermogenes Esperon, for instance, was among the four generals mentioned in the “Hello, Garci” tapes that suggest possible involvement in the alleged manipulation of election results in 2004 that favored Arroyo. Esperon and other top-ranking officials of the Armed Forces of the Philippines were eventually absolved by a military fact-finding report of any complicity in the alleged poll fraud.

Her appointments of officials at the Commission on Elections are equally controversial. Naming Benjamin Abalos Jr. as Comelec chair in 2002 was unprecedented in the poll body’s history not only for the fact that he is a politician but because he is a known stalwart of the administration party, Lakas.

Of course, Arroyo’s other contentious Comelec appointees were Virgilio Garcillano and Manuel Barcelona Jr. A Marcos-era election official, Garcillano has been accused of masterminding dagdag-bawas (vote shaving and padding) operations in Mindanao. In the “Hello, Garci” recordings, Garcillano’s phone conversations with Arroyo depict post-election results manipulation that he apparently orchestrated, at least for Mindanao.

In all this, the Arroyo administration has defended the appointments as a prerogative of the Office of the President.

To be sure, so much discretion is given to the President to appoint members of the government bureaucracy, and even to create new positions as he or she deems fit. This has only encouraged the large-scale use of bureaucratic appointments for patronage or as rewards to family, loyal followers and generous contributors. Expanded by Marcos during martial law, such tremendous power has not been much diminished since then.

This is also not to say that previous presidents did not misuse this presidential power. As Sheila Coronel wrote in 1998 in The Pare Principle, Joseph Estrada was the first to bring this power to absurd heights.

Corazon Aquino used it to appoint relatives and friends, including her dentist and her dermatologist who were named to the U.P. Board of Regents. Aquino also got carried away with the appointments, sometimes naming as many as seven undersecretaries for one department that Congress eventually passed a law limiting the number of usecs and asecs to only three each per department.

Ramos was not more circumspect, appointing so many former military officers to crucial posts that he was criticized for militarizing the bureaucracy. He was also not above creating positions for favored friends, among them Justiniano “Bobby” Montano IV, for whom the post of deputy manager for special projects of the Public Estates Authority (PEA) was especially created. Montano would later play a prominent role in the Amari scandal, which involved billions of pesos in payoffs to various officials in connection with the sale of PEA property to a Thai real estate tycoon.

Estrada has essentially followed the same path, although this early, he has exceeded his predecessors in terms of the fancifulness of some of his appointments. He also has by far the widest range of presidential advisers and consultants, spanning every imaginable concern (a presidential consultant on fire protection, for example, and another one on APEC matters). Presidential aides say that sometimes Estrada just signs appointment papers thrust before him without much consideration of what they mean.

But Arroyo has since eclipsed Erap in the apparent capriciousness with which this presidential power has been exercised — a manner that has led to the bloating of the bureaucracy despite claims that the fat in the government service has been trimmed. A PCIJ report by Yvonne Chua in May this year pointed out that the Arroyo administration has at least 22 more undersecretaries and eight more assistant secretaries than the previous government.

In 2005, Arroyo had 85 undersecretaries and 72 assistant secretaries 19 departments. In 2000, the Estrada government only had 63 undersecretaries and 64 assistant secretaries in the same agencies.

The Arroyo government also had 1,150,681 permanent positions in national government agencies, which is 47,555 more than what Estrada had in 2000.

From the way Arroyo has been using her appointing powers, the fear therefore of a Miriam Defensor-Santiago appointment as the next Chief Justice, though now being downplayed by Malacañang and the senator herself, is not an idle one.