Midnight Appointments: A Conspiracy Theory

Lawyers should be surprised that Supreme Court spokesperson Midas Marquez recently issued a statement regarding President Gloria Macapagal-Arroyo's slew of executive appointments. Marquez stated that Mrs. Arroyo cannot use the Supreme Court's decision in De Castro v. Judicial and Bar Council to justify her midnight appointments. He explained that De Castro only recognized the President's power to fill an impending vacancy in the Supreme Court, but that there is still a constitutional ban against appointments to the executive branch. This is unusual because Marquez's statements appears to be an interpretation of the Constitution, not by the Supreme Court, but by himself. This is not the function of a spokesperson.

I doubt very much that Marquez would have made the statement without the consent of the Supreme Court. Spokespersons clear their statements with their superiors; especially on controversial matters. So why did Marquez issue the statement? I think that this statement is meant to provoke law suits to challenge Arroyo’s appointments. Evidently, the Supreme Court wants to rule on the issue of whether these recent appointments are valid because it needs an opportunity to show the public that it still is an independent institution and not under the control of the President. I surmise that Marquez has the Court's blessings because it would be embarrassing to Marquez and the Supreme Court itself if the Court would later sanction the appointments.

Arroyo for her part seems bent on provoking suits. She made not one, but many appointments in apparent defiance of the constitutional ban, even in cases where there were no vacancies. Even she knows that she cannot win this battle. When President Arroyo is serious about circumventing the Constitution, she asks her lieutenants to float the idea in the press the way she did with the issue regarding the Chief Justice's appointment. She generates sufficient debate before she presses the issue. These new appointments only seem reckless because they are not meant to survive judicial scrutiny but to stave off criticisms of executive dominance.

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