Monday, January 11, 2010

Midnight appointments to the judiciary

In the 1998 en banc decision of the Philippine Supreme Court, docketed as “In Re Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively”, En Banc, A.M. No. 98-01-SC, November 9, 19989, penned by former Chief Justice Andres Narvasa, the question presented to the Court for resolution was “whether, during the period of the ban on appointments imposed by Section 15, Article VII of the Constitution, the President was nonetheless required to fill vacancies in the judiciary, in view of Sections 4(1) and 9 of Article VIII”. A corollary question was “whether the president could make appointments to the judiciary during the period of the ban in the interest of public service.”

Attention was drawn to Section 15, Article VII of the Constitution reading as follows:

"SEC 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety."

On the other hand, appointments to fill vacancies in the Supreme court during the period mentioned in the provision just quoted could seemingly be justified by another provision of the same Constitution. Section 4(1) of Article VIII which states:

"SEC 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. ***. Any vacancy shall be filled within ninety days from the occurrence thereof."

Also pertinent although not specifically discussed was Section 9 of the same Article VIII which provides that for the lower courts, the President shall issue the appointments - from a list of at least three nominees prepared by the Council for every vacancy - within ninety days from the submission of the list.

It will be noted that on May 7, 1998, the Chief Justice received a letter from the President in reply to his letter of May 6, 1998. The President expressed the view that "the election-ban provision (Article VII, Sec. 15) *** applies only to executive appointments or appointments in the executive branch of government," the whole article being "entitled 'EXECUTIVE DEPARTMENT.'" He also observed that further proof of his theory "is the fact that appointments to the judiciary have special, specific provisions applicable to them" (citing Article VIII, Sec. 4 [1] and Article VIII, Section 9. In view thereof, he "firmly and respectfully reiterate(d) *** (his) request for the Judicial and Bar Council to transmit *** the final list of nominees for the lone Supreme Court vacancy."

The Chief Justice replied to the letter the following day, May 8, 1998, stating, thus:

1. Xxx, Be this as it may, the Court feels that there is a serious question concerning the matter in light of the seemingly inconsistent provisions of the Constitution. The first of these is Section 15, Article VII, which reads:
'SEC. 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.'
The second is Section 4(1) of Article VIII which states:

'SEC 4(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. ***. Any vacancy shall be filled within ninety days from the occurrence thereof.'

2. Xxx. Section 15 of Article VII imposes a direct prohibition on the President: he "shall not make appointments" within the period mentioned, and since there is no specification of which appointments are proscribed, the same may be considered as applying to all appointments of any kind and nature. This is the general rule then, the only exception being only as regards "executive positions" as to which "temporary appointments" may be made within the interdicted period "when continued vacancies therein will prejudice public service or endanger public safety." As the exception makes reference only to "executive" positions, it would seem that "judicial" positions are covered by the general rule.

3. On the other hand, Section 4 (1) of Article VIII, requires that any vacancy in the Supreme Court "shall be filled within ninety days from the occurrence thereof." Unlike Section 15, Article VII, the duty of filling the vacancy is not specifically imposed on the President; hence, it may be inferred that it is a duty shared by the Judicial and Bar council and the President.

4. Now, in view of the general prohibition in the first-quoted provision, how is the requirement of filling vacancies in the Court within ninety days to be construed? One interpretation that immediately suggests itself is that Section 4(1), Article VIII is a general provision while Section 15, Article VII is a particular one; that is to say, normally, when there are no presidential elections - which after all occur only every six years - Section 4(1), Article VIII shall apply: vacancies in the Supreme Court shall be filled within 90 days; but when (as now) there are presidential elections, the prohibition in Section 15, Article VII comes into play: the President shall not make any appointments. The reason for said prohibition, according to Fr. J. Bernas, S.J., an authority on Constitutional Law and himself a member of the Constitutional Commission, is "(I)n order not to tie the hands of the incoming President through midnight appointments." Another interpretation is that put forth in the Minutes of the JBC Meeting of March 9, 1998.

5. Since the question has actually come up, and its importance cannot be gainsaid, and it is the Court that is empowered under the Constitution to make an authoritative interpretation of its (provisions) or of those of any other law. I believe that the Court may now perhaps consider the issue ripe for determination and come to grips with it, to avoid any possible polemics concerning the matter. However the Court resolves the issue, no serious prejudice will be done. Should the Court rule that the President is indeed prohibited to make appointments in a presidential election year, then any appointment attempted within the proscribed period would be void anyway. If the Court should adjudge that the ban has no application to appointments to the Supreme Court, the JBC may submit nominations and the President may make the appointment forthwith upon such adjudgment.

6. The matter is a delicate one, quite obviously, and must thus be dealt with with utmost circumspection, to avoid any question regarding the validity of an appointment to the Court at this time, or any accusation of "midnight" appointments or rash, hasty action on the part of the JBC or the President.
On May 8, 1998, thje KBC met and resolved that "the constitutional provisions *** (in question) be referred to the Supreme Court En Banc for appropriate action, together with the request that the Supreme Court consider that the ninety-day period stated in Section 4 (1), Article VIII be suspended or interrupted in view of the peculiar circumstances ***."

On May 12, 1998, the Chief Justice received from Malacañang the appointments of two (2) Judges of the Regional Trial Court mentioned above. This placed on the Chief Justice the obligation of acting thereon; i.e., transmitting the appointments to the appointees so that they might take their oaths and assume their duties of their office. The trouble was that in doing so, the Chief Justice ran the risk of acting in a manner inconsistent with the Constitution, for these appointments appear prima facie, at least, to be expressly prohibited by Section 15, Article VII of the charter. This circumstance, and the referral of the constitutional question to the Court in virtue of the Resolution of May 8, 1998, supra, operated to raise a justiciable issue before the Court, an issue of sufficient importance to warrant consideration and adjudication on the merits.

In fine, the Court made the following doctrinal pronouncements, thus:

1. The provision of the Constitution material to the inquiry at bar read as follows:

Section 15, Article VII:

"Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to execute positions when continued vacancies therein will prejudice public service or endanger public safety."

Section 4 (1), Article VIII:

"The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof."

Section 9, Article VIII:

"The Members of the Supreme Court and judges in lower courts shall be appointed by the President from the list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days from the submission of the list."

2. The Court's view is that during the period stated in Section 15, Article VII of the Constitution - "(t)wo months immediately before the next presidential elections and up to the end of his term" - the President is neither required to make appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Section 15 of Article VII. It is noteworthy that the prohibition on appointments comes into effect only once every six years.

3. The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy "must be filled within two months from the date that the vacancy occurs." His proposal to have a 15-member Court was not initially adopted. Persisting however in his desire to make certain that the size of the Court would not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent the Court's membership) of the same mandate that "IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF." He later agreed to suggestions to make the period three, instead of two, months. As thus amended, the proposal was approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court. Thus it was that the section fixing the composition of the Supreme Court came to include a command to fill up any vacancy therein within 90 days from its occurrence.

4. In this connection, it may be pointed out that that instruction that any "vacancy shall be filled within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language - that "a President or Acting President shall not make appointments…"

5. The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: "WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a "uniform rule" for lower courts. According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one.

6. On the other hand, Section 15, Article VII - which in effect deprives the President of his appointing power "two months immediately before the next presidential elections up to the end of his term" - was approved without discussion.

7. Now, it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.:
SEC. 261. Prohibited Acts. - The following shall be guilty of an election offense:
(a) Vote buying and vote selling - (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination of choice of a candidate in a convention or similar selection process of a political party.
(g) Appointment of new employees, creation of new position, promotion, or giving salary increases. - During the period of forty five days before a regular election and thirty days before a special election, (1) any head, official or appointing officer of a government office, agency or instrumentality whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary, or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.

8. The second type of appointments prohibited by Section 15, Article VII consists of the so-called "midnight" appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no more than a "caretaker" administrator whose duty was to "prepare for the orderly transfer of authority to the incoming President." Said the Court:
"The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments."

As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President. Such appointments, so long as they are "few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications," can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld.

9. Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to contemplate not only "midnight" appointments - those made obviously for partisan reasons as shown by their number and the time of their making - but also appointments presumed made for the purpose of influencing the outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of Article VII - allowing appointments to be made during the period of the ban therein provided - is much narrower than that recognized in Aytona. The exception allows only the making of temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban.

10. Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment, it is this Court's view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.

11. To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article VIII should prevail over Section 15 of Article VII, because they may be considered later expressions of the people when they adopted the Constitution, it suffices to point out that the Constitution must be construed in its entirety as one, single, instrument.

12. To be sure, instances may be conceived of the imperative need for an appointment, during the period of the ban, not only in the executive but also in the Supreme Court. This may be the case should the membership of the court be so reduced that it will have no quorum or should the voting on a particularly important question requiring expeditious resolution be evenly divided. Such a case, however, is covered by neither Section 15 of Article VII nor Section 4 (1) and 9 of Article VIII.

13. A final word, concerning Valenzuela's oath-taking and "reporting for duty" as Presiding Judge of RTC Branch 62, Bago City, on May 14, 1998. Standing practice is for the originals of all appointments to the Judiciary - from the highest to the lowest courts - to be sent by the Office of the President to the Office of the Chief Justice, the appointments being addressed to the appointees "Thru: the Chief Justice, Supreme Court, Manila." It is a Clerk of Court of the Supreme Court, in the Chief Justice's behalf, who thereafter advises the individual appointees of their appointments and also of the date of commencement of the pre-requisite orientation seminar, to be conducted by the Philippine Judicial Academy for new Judges. The rationale of this procedure is salutary and readily perceived. The procedure ensures the authenticity of the appointments, enables the Court, particularly of the Office of the Court Administrator, to enter in the appropriate records all appointments to the Judiciary as well as other relevant data such as the dates of qualification, the completion by the appointees of their pre-requisite orientation seminars, their assumption of duty, etc.
The procedure also precludes the possibility, however remote, of Judges acting on spurious or otherwise defective appointments. It is obviously not advisable, to say the least, for a Judge to take his oath of office and enter upon the performance of his duties on the basis alone of a document purporting to be a copy of his appointment coming from Malacañang, the authenticity of which has not been verified from the latter of the Office of the Court Administrator; or otherwise to begin performing his duties as Judge without the Court Administrator knowing of that fact. The undesirability of such a situation is illustrated by the case of Judge Valenzuela who acted, with no little impatience or rashness, on a mere copy of his supposed appointment, without having received any formal notice from this Court, and without verifying the authenticity of the appointment or the propriety of taking oath on the basis thereof. Had he bothered to inquire about his appointment from the Court Administrator's Office, he would have been informed of the question concerning it and the Court's injunction.

14. The appointments of Messrs. Valenzuela and Vallarta on March 30, 1998 (transmitted to the Office of the Chief Justice on May 14, 1998) were unquestionably made during the period of the ban. Consequently, they come within the operation of the first prohibition relating to appointments which are considered to be for the purpose of buying votes or influencing the election. While the filling of vacancies in the judiciary is undoubtedly in the public interest, there is no showing in this case of any compelling reason to justify the making of the appointments during the period of the ban. On the other hand, as already discussed, there is a strong public policy for the prohibition against appointments made within the period of the ban.

In view of the foregoing considerations, the Court resolved to DECLARE VOID the appointments signed by His Excellency the President under date of March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively, and to order them, forthwith on being served with notice of this decision, to forthwith CEASE AND DESIST from discharging the office of Judge of the Courts to which they were respectively appointed on March 30, 1998. This, without prejudice to their being considered anew by the Judicial and Bar Council for re-nomination to the same positions.


Section 8, Article VIII, Constitution.

RECORD OF THE CONSTITUTIONAL COMMISSION (hereafter cited as RECORD) pp. 479-482 (Session of July 14, 1986). RECORD, pp. 632-634 (Session of Oct. 8, 1986). 1 RECORD, pp. 489-490 (Session of July 14, 1986). Id. at p. 445.

114 Phil. vii (1962).

See Merrera v. Liwag, 18 Phil. 1038 (1963); Jorge v. Mayor, 119 Phil. 595 (1964); Quimsing v. Tajanglangit, 119 Phil. 729 (1964).

Sec. 9, second paragraph, of R.A. No. 296 (The Judiciary Act of 1948), in relation to Sec. 47 of B.P. No. 129 (The Judiciary Reorganization Act of 1980): cf: Rilloraza v. Vargas 80 Phil. 297 (1948).

See also:

Let next president select the next chief justice
Philippine Daily Inquirer
First Posted 22:49:00 01/20/2010

THIS is in connection with the burning issue of appointing Chief Justice Reynato Puno’s successor when he retires on May 17 this year.

Allies of Gloria Macapagal-Arroyo are hell-bent on seeing to it that the position of chief justice be filled as soon as Puno retires—to prevent what they call a vacancy. Leading the flock parroting this line is this deputy presidential spokesman Gary Olivar who said that his boss woman’s filling the vacancy would serve the “national interest.”

Rep. Matias Defensor Jr., another Arroyo ally and a member of the Judicial and Bar Council, (JBC) which is tasked with screening candidates for the judiciary, urges his fellow JBC members to come up with a list of candidates to replace Puno.

Since when has this woman, whose administration has sunk (and is more likely to sink deeper) to the lowest levels in popularity ratings, been working for the national interest? Since Day 1 of her presidency, she has been busy cementing, at all costs and by all means, her hold on power. We have seen how she thwarted all efforts to remove her from the presidency, which most of us believe she did not honestly win. We now see how she wants to remain in power (to protect herself from prosecution for massive corruption); or to stay in a position of influence, or to head this government in whatever way. She is now running for a “lowly” congressional seat in her home province in the hope of staying in power for as long as she wants.

All the people I talked to during my month-long Philippine holiday described her obsession and lust for power in the most unprintable words I have ever heard said of a politician. The words were aimed at her because she has degraded the Office of the President by running for a position much lower than the one she currently occupies.

And now she and her sycophants want that she appoints Chief Justice Reynato Puno’s successor to complete her perceived control of the highest court of the land.

By the time Arroyo (hopefully) leaves office on June 30, 2010 all members of the Supreme Court are her appointees.

Retired associate justices, constitutionalist Vicente Mendoza and Commission on Elections chairman Jose Melo believe that Ms Arroyo should not appoint Puno’s successor.

While we do not want to imply that any, some, most or all the present Supreme Court justices would subserviently hold an umbrella for GMA and act as she bids them, we strongly believe that the appointment of the next chief justice should be left to whoever succeeds as president on July 1, 2010.



Bernas: Arroyo appointment may destroy SC credibility
By Norman Bordadora
Philippine Daily Inquirer
First Posted 01:06:00 01/23/2010

CONSTITUTIONALIST FR. Joaquin Bernas on Friday warned of an undermined Supreme Court should its justices be made to decide on the contentious issues regarding the appointment of the next Chief Justice.

At a forum to discuss the question of whether President Macapagal-Arroyo, whose term ends in June, can appoint the successor of Chief Justice Reynato Puno, Bernas said it would be risky for the magistrates to deliberate on the matter.

“The very dangerous thing here is to let the Supreme Court ... justices fight over this among themselves,” Bernas said.

“This would really destroy the credibility of the Supreme Court,” he said.

The high court is expected to serve as the final arbiter on whether Ms Arroyo will make a valid appointment if she chooses the next Chief Justice when Puno retires on May 17.

The Constitution bans appointments by a President two months before a presidential election and until the presidential term expires on June 30.

Ms Arroyo’s allies say she is authorized to name the next Chief Justice. They maintain that the constitutional prohibition on midnight appointments only covers executive positions.

Her critics argue that she is intent on naming Puno’s replacement to ensure that the Supreme Court is composed entirely of her appointees.

Can appoint without BC list

Bernas is of the opinion that the next President after the May elections should be the one to appoint the next chief justice.

He said that even with the constitutional requirement that a President has to appoint a new Chief Justice within 90 days after the vacancy, the next President still has 45 days to make the appointment when he or she assumes office on June 30.

“The Supreme Court can enjoin the [Judicial and Bar Council] from submitting the list [to Ms Arroyo],” Bernas said when asked what options were available to prevent the incumbent President from appointing the next Chief Justice.

But he noted that Executive Secretary Eduardo Ermita and Senate President Juan Ponce Enrile had both expressed the opinion that Ms Arroyo could appoint the next Chief Justice even without a list of nominees from the JBC.

In his column in the Inquirer on Jan. 17, Bernas, one of the framers of the 1987 Constitution, said the President could choose a Supreme Court justice only from JBC nominees.

“Cory Aquino made appointments without a JBC list, as Senate President Enrile correctly recalls, but only when there was as yet no JBC,” Bernas said.

SC can stop JBC

Under the Constitution, the JBC is mandated to screen nominees and applicants to the Supreme Court.

It follows a process that includes submitting a short list of at least three names from which the President chooses an appointee to the tribunal.

The President has 90 days from the start of the vacancy to appoint a replacement magistrate.
At the same forum organized by the Supreme Court Appointments Watch consortium, former Senate President Franklin Drilon said that on its own, the high court could stop the JBC from submitting the shortlist.

Drilon said the high court had supervision over the JBC and in 1998 ordered it not to draw up a list of nominees for the replacement of then Associate Justice Ricardo Francisco until the end of then President Fidel Ramos’ term.

“There was no petitioner in that case. The Supreme Court took it upon itself,” Drilon said.

Not fatal

Bernas said the absence of a Chief Justice would not be fatal to a democracy.
“If you think [the justices] can’t handle it, you are insulting [them],” he said, indicating that an acting Chief Justice would be sufficient to guide the tribunal even through the expected political issues in an election year.

“In my mind, the justices of the Supreme Court should nominate among themselves the acting Chief Justice,” he added.

Bernas said he could not understand what Puno meant when he was quoted in the news as saying that a new Chief Justice should be appointed in an election year.
In the event of an election protest involving the presidency and the vice presidency, Bernas said the high court would become the presidential electoral tribunal, but “he [the Chief Justice] is only one vote.”

He said any person who accepted the post of Chief Justice from Ms Arroyo would open himself or herself to impeachment by the next Congress.

“If the President wants to get rid of a justice, she can appoint him and hope that he accepts the appointment,” Bernas added.

The most senior justice in the Supreme Court is Senior Associate Justice Antonio Carpio, a former presidential legal counsel and ally of Ms Arroyo’s.

Carpio has since decided some cases against the administration’s interests.


With Due Respect
Stop demonizing the Supreme Court
By Artemio V. Panganiban
Philippine Daily Inquirer
First Posted 22:33:00 01/16/2010

Stop demonizing the SC. The proposal urging President Gloria Macapagal-Arroyo to appoint the chief justice now but effective after the present chief retires on May 17 is politicizing the Supreme Court and eroding its credibility as the bastion of blindfolded justice and the last bulwark of democracy.
I appeal to Chief Justice R
eynato S. Puno to use his persuasive powers, as head of the Supreme Court and the Judicial and Bar Council, to stop this erosion of trust in the Court. He is equipped with enough powers and moral ascendancy to help abate this divisive political wrangling. (The uninitiated may see my December 23 column for the CJ’s functions.)

I appeal to the President to stop this circumvention of the noble intent of the Constitution to prevent “midnight appointments.” The Supreme Court is effective only as long as it is perceived to be independent. A tainted Court cannot effectively shield her from political slings and criminal prosecutions once she steps out of power.

Pervez Musharraf was dethroned as president of Pakistan because he brazenly violated the independence of the Supreme Court and used legal hocus-pocus to oust its chief justice, forcing the Pakistani bar to flood the streets with protests. I think the Filipino lawyers are no less militant.

Ferdinand Marcos lined up several justices on the seniority ladder so they could in time become chiefs. But the Edsa revolution intervened. And outsiders like Pedro L. Yap, Marcelo B. Fernan and Andres R. Narvasa unexpectedly rose to the top.
The chief justiceship, like the presidency, is a precious gift from God. Let destiny award it without the interference of bedeviling politics and nasty intrigues.


All bases covered
Philippine Daily Inquirer
First Posted 00:36:00 01/19/2010

In the run-up to the national elections in May, many people cannot shake off the fear that there may be a failure of elections. A survey released by the Social Weather Stations last week said that about half of the people believe that if the elections fail for any reason, such as malfunctioning counting machines, people power would probably happen.

The fear of failure of elections is connected to another fear—that President Gloria Macapagal-Arroyo would try to retain power by any means, including causing a failure of elections. At the very least, it is commonly believed, she will try her best to protect herself after stepping down from the presidency on June 30.

Ms Arroyo has long been preparing for the day when she is mandated to give up the powers of the presidency. She has ensured the continued support of the majority of congressmen and local government officials by giving them perks and privileges and money in the form of big pork barrel and internal revenue allocations as well as cash in brown bags. She has spent hundreds of millions of pesos in taxpayers’ money to bring along her favored congressmen in her junkets abroad.

She is running for representative in the second district of her home province of Pampanga, and because of the powers, funds and other resources at her command, she is expected to win by a landslide. She has ensured her victory by visiting the district 50 times and allocating almost half a billion pesos for various projects in that small area.

Apparently her short-term plan is to win the speakership with the support of the congressmen whose loyalty she has been cultivating, assuming, of course, that the majority of them would win reelection. The longer-term plan apparently is to have a constituent assembly packed with pro-Arroyo congressmen amend the Constitution to convert Congress into a unicameral parliament of which she would be elected prime minister.

Just in case the speakership or prime minister plan cannot be realized, Ms Arroyo still hopes to be protected from suits to be filed after she has stepped down from the presidency. There is the loyal Ombudsman Merceditas Gutierrez, whose term lasts until December 2012, to make sure that all anti-Arroyo suits are thrown out of court. There is even speculation that Gutierrez would be reassigned to another post so that Ms Arroyo could appoint a new ombudsman whose term would last until 2017.
Ms Arroyo does not expect any problem with the Supreme Court, all of whose members, except for Chief Justice Reynato Puno, she appointed. Should she have a major case before the Supreme Court, she could always call in the markers from a majority of the justices. Now she would even like to ensure greater influence over the Supreme Court by appointing the new chief justice during the prohibited period of 60 days before the election.

Apparently she has all bases covered. Many political observers believe that her ultimate plan, in case the other options do not work, would be to bring about a failure of elections. Then it is highly probable, as the Social Weather Stations survey showed, that another people power would happen. But then she expects the Armed Forces of the Philippines and the Philippine National Police, the loyalty of whose top brass she also cultivated, to side with her in any show of force.

But Ms Arroyo may be expecting too much. She should remember what Santayana said: “Those who cannot remember the past are condemned to repeat it.” Apparently she closely studied the example of the dictator Ferdinand E. Marcos and hopes, like him, to remain in power for a long time. But she may have forgotten that there is such a thing as People Power which, in 1986, toppled the Marcos dictatorship and forced him to flee into exile in Hawaii. Should she try to force herself upon a nation that is fed up with her, that distrusts her and that considers her the most corrupt president the country has ever had, she may be in for the biggest surprise of her life. She may be forgetting the lessons of Edsa I and Edsa II. Filipinos are a patient people, but there will always be a limit to their patience and forbearance. Their ultimate weapon against a person who would like to remain in power for life is People Power.


Poisoned chalice
Philippine Daily Inquirer
First Posted 22:29:00 01/16/2010

MANILA, Philippines—The best defense is a good offense, which is why the administration drumbeating has been so loud and persistent regarding the patently flawed scheme of the President to appoint the next chief justice of the Supreme Court. Ample precedent exists to show that the President’s desire to appoint the next Chief Justice is contrary to law.

Therefore it must be asked why the President and her drum-beaters are displaying the kind of single-minded obstinacy characteristic of the imbecile Austrian Emperor Ferdinand, whose only coherent statement was the petulant “I am the Emperor and I want dumplings!” It cannot be a point of principle, because the principle governing the position she holds is that as her term runs out, her power to appoint is, for the sake of public service, severely curtailed. The only reason, then, has to be political—and self-serving.

In her last State of the Nation Address the President defied democratic convention by insisting she would wield all her prerogatives until the very last second of her time in office; by doing so she refused her duty to implement a smooth transition of power to whoever ends up her successor. It should come as no surprise, then, that she would risk a constitutional crisis by insisting on appointing the next chief justice even in the face of a wide consensus within the legal community that she is barred from doing so.

What matters to her is that she can leave office gloating that she has appointed every member of the Supreme Court and, by so doing, made its actions far more predictable, itself an insolent attitude toward the high court and its functions. She seems disturbed by the possibility that her successor might try to appoint a chief justice who takes a dim view of her policies, many of which are sure to face questions and judicial review in coming years. By insisting on flouting established principles governing the last few months of an incumbent’s term, she is engaging in more of the same brinkmanship in the hope that what served her well politically in the past can somehow continue to serve her well as she tries to avoid being a lame duck and figures out how to keep herself politically and legally relevant and secure after she leaves office. The Constitution, principle and the separation of powers be damned.

The blunt reality ought to be that no lawyer worth his or her salt would even contemplate accepting the poisoned chalice of a bogus chief magistracy from the President. The Supreme Court is one of the few remaining institutions where past legal and historical precedent, that is, the laws and tradition, weigh heavily as they should, and all justices need only refer to the example of former Chief Justice Manuel Moran to know what is the correct thing to do if proffered an appointment to the Court during a constitutionally imposed ban on presidential appointments.

From May 2, 1942 when Jose Abad Santos was executed by the Japanese, to July 8, 1945, when Manuel Moran was appointed, the country had no chief justice (under the Japanese, Jose Yulo served as chief justice in a government neither the people nor our laws ever recognized as legitimate; Yulo himself refrained from establishing any precedents, viewing his position as a caretaker one). In 1950, Chief Justice Moran left the Supreme Court to serve as the country’s first ambassador to Spain and the Holy See. Afterwards, he very much wanted to return to the Supreme Court. After being defeated in the November 1953 elections, President Elpidio Quirino in his last days in office signed a midnight appointment making Moran an associate justice. But Moran declined to accept the appointment, saying the matter should be left to the incoming newly elected president; he never got to return to the Court. But in 1962, in deciding Aytona v. Castillo, his successors paid tribute to his integrity.

The President has relied on her critics meekly settling to try to fix the damage she causes. When anyone balks, her administration piously invokes the principle of the presumption of regularity. The solution, however, lies in lawyers insisting they will decline any offered appointment, as illegal and improper.


JBC to accept nominations for CJ but may not give list to Arroyo
January 19, 2010 04:35:00
Norman Bordadora
Philippine Daily Inquirer

MANILA, Philippines—The Judicial and Bar council (JBC) yesterday decided to begin accepting nominations for the successor to Chief Justice Reynato Puno, who is retiring on May 17.

Amid much controversy, however, the JBC decided to defer its decision on whether or not to submit the list of at least three names to President Gloria Macapagal-Arroyo or to the next
Chief Executive, who will be elected on May 10.

A debate has raged on whether Ms Arroyo can legally appoint Puno’s successor considering that there is a ban on presidential appointments two months before a presidential election,
until June 30 when the presidential term expires.

There have been calls for the JBC to forego the nomination process until the new administration is sworn into office.

“There are many views and opinions already coming out… the JBC decided it was more prudent to consider all these views,” said Deputy Court Administrator Jose Midas Marquez, the Supreme Court spokesperson.

First time vacancy

“(It’s) the first time under the 1987 Constitution that we have a vacancy for Chief Justice during an election period,” he said.

The JBC is constitutionally mandated to come up with the nominees for Chief Justice.

Some of Ms Arroyo’s allies have called on the JBC to come up with the short list of nominees arguing that the appointment of a Chief Justice isn’t covered by the constitutional ban on “midnight appointments.”

There are legal experts, including retired justices of the Supreme Court, who say that Ms Arroyo can appoint Puno’s successor even without a short list from the JBC.

Administration presidential candidate Gilbert Teodoro voiced his own opinion yesterday, saying it would be better for President Arroyo to avoid controversy in the selection of a new Chief Justice by allowing an acting Chief Justice to assume the post after Puno retires.

Speaking to reporters on the sidelines of a forum on the University of the Philippines in the Visayas (UPV) campus in Iloilo City, Teodoro said that since the position of chief justice was a “very sensitive position,” the appointment should be “as uncontroversial as possible.”

“The retirement of (Puno) is in May and that is within the (appointment) prohibitive period so let’s respect that,” Teodoro said.

Noynoy adamant

Opposition candidate Sen. Benigno “Noynoy” Aquino III said he would not recognize a Chief Justice appointed by Ms Arroyo, stressing that the choice should be left to the president-elect.

At any rate, starting this week, the JBC will publish the opening of the position for recommendations; deliberate on the list of candidates; publish the names of candidates; accept comments on or opposition to the applications; conduct public interviews of candidates; and prepare the short list of candidates,” said Marquez in a news conference.
“As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter,” Marquez added.

Invite legal expert

Lawyer J. Conrado Castro, representative of the Integrated Bar of Philippines in the JBC, told reporters the JBC might invite at least one legal expert to guide the council on the matter of when to submit the short list.

Asked whether it was possible that the JBC would not submit the short list to Ms Arroyo, Castro replied: “For that matter, everything is possible.”

Council members

The JBC is made up of Puno, who is ex-oficio chair; ex-oficio members Justice Secretary Agnes Devanadera, Senate committee on justice chair Sen. Francis Escudero, and House committee on justice chair Rep. Matias V. Defensor Jr.

The other members of the JBC are retired Justice Regino C. Hermosisima Jr. representing the judiciary, Dean Amado L. Dimayuga, representing the academe; Justice Aurora Santiago Lagman, representing the private sector, and Castro representing the IBP.


Separate Opinion
Choosing the next chief justice
By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 22:37:00 01/23/2010

MANILA, Philippines—There would be no problem if upon reaching retirement age on May 17, 2010, Chief Justice Reynato S. Puno should, characteristically, quietly pack up and leave, letting the new chief justice, who has been chosen under the traditional rule of selecting the No. 2 justice as the next in rank to take over for promotion as head of the Philippine judiciary. The new chief justice could then immediately assume the powers and duties of his office, with full attention to the mandate of the Constitution as his constant command.

The traditional rule for the replacement of justices and judges was first not observed in 1920 when Chief Justice Cayetano Arellano retired and was replaced by Justice Victorino Mapa from the Cabinet in lieu of Justice Florentino Torres, who immediately resigned. He was supposedly not chosen because of his age, although Mapa died earlier than he. On a subsequent occasion, Justice Claudio Teehankee, the senior associate justice then, was pre-empted by Justice Felix Makasiar and later by Justice Ramon Aquino, who were both closer to Marcos. Three years ago, Artemio Panganiban was only second in rank but was appointed to replace Chief Justice Hilario Davide ahead of Senior Associate Justice Puno then.

President Gloria Macapagal-Arroyo seems to be more partial to the several exceptions noted in the second paragraph than to the observance of the next in rank rule, beginning with Chief Justice Ramon Avanceña, followed in due time by Jose Yulo, Jose Abad Santos, Manuel Moran, Ricardo Paras, Cesar Bengzon, Roberto Concepcion, Querube Makalintal, Fred Ruiz Castro, Enrique Fernando, Felix Makasiar, Ramon Aquino, Claudio Teehankee, Pedro Yap, Marcelo Fernan, Andres Narvasa, Hilario Davide, Artemio Panganiban and Reynato Puno.

I don’t know if it’s true, and Gloria’s cohorts are already defending it, but it seems that she’s dreaming up this new theory of Constitutional Law to justify her program of government. She is claiming that anything she could do is valid and binding as long as it is constitutionally permitted, never mind its propriety.

The power of appointment is supposed to be exercised by the president of the Philippines when it is needed to fill a vacancy. In fact, the Constitution requires the chief justice to be appointed within 90 days from the time the recommendations from the Judicial and Bar Council are received by the president. These specific rules are included in the fundamental law to emphasize the need for the power of appointment to fill an existing vacancy.

Now the present Chief Justice is scheduled to reach retirement age on May 17, 2010. On the other hand, President Arroyo will cease to be President of the Philippines six years after she assumed office as such by virtue of her election in 2004. She will be replaced by the new president who will assume office at noon of June 30, 2010 and serve for six years.

Given these circumstances, who will assume the appointing power over the new chief justice, whose office will become vacant on May 17, 2010? GMA is president until June 30, 2010 and so can claim the power to appoint the new chief justice prematurely.

Such appointment will not only be untimely but must be based on the recommendation of the Judicial and Bar Council. Such recommendation is part of the appointment process for justices and judges. Any person appointed by the president of the Philippines to a judicial position, including that of chief justice, must prove the validity of his title with a presidential appointment based on a recommendation from the Judicial and Bar Council.

Where will GMA find the person who will patiently wait for the present Chief Justice to patiently prepare his memoirs? Self-respect is negotiable during these nervous times, and it won’t be difficult to find this virtue even among the highest officials in the land.

But the concurrence to such humility will still be needed for his appointment. This must come from the Judicial and Bar Council whose “recommendation” is actually and legally a mandatory requirement. If the JBC believes, as many common-sense people do, can its members refuse to nominate any person as chief justice at this time, on the ground that there is no vacancy to fill?

Can discretion be challenged and questioned? Can discretion be compelled? And by a retiring president?

President Arroyo could justify her acts as legally vested in her by the Constitution, and would be valid if, regardless of its impropriety, it is sanctioned by the Judicial and Bar Council.

The President’s premature appointment is aimed at another purpose. It is intended to prevent the replacement of Chief Justice Reynato S. Puno by another critic of Malacañang in the person of Justice Antonio Carpio. Justice Carpio is known as a fearless critic of President Arroyo as distinguished from the “yes” men—and women—of the Arroyo Court.

Let us follow the usual constitutional procedure in renewing public confidence in the Supreme Court under our new president!


Carpio seeks SC job but ...
Most senior SC justice won’t take it from Arroyo
By Norman Bordadora
Philippine Daily Inquirer
First Posted 00:43:00 01/28/2010

MANILA, Philippines—He is interested in being Chief Justice all right, but will consent to be appointed only by the country’s next President and not by President Gloria Macapagal-Arroyo.

In a Jan. 26 letter to the Judicial and Bar Council (JBC), Associate Justice Antonio Carpio said he was interested in being considered for nomination as Chief Justice, but “on the understanding” that the JBC submits his nomination only to the next President.

Carpio’s opinion that the next Chief Justice should be appointed by Ms Arroyo’s successor adds to the many issues being debated on the appointment of Chief Justice Reynato Puno’s successor.

Carpio cited as his reason the constitutional ban against the President making appointments from March 11, 2010 until June 30, 2010, when Ms Arroyo’s term expires.
If seniority were the only consideration, Carpio, the most senior Supreme Court justice, would be in line to succeed Puno when the latter retires on May 17.

Though not automatic, the most senior justice is traditionally appointed Chief Justice.

Latest battleground

Carpio is the second justice to manifest his interest in the post, but making the condition that the JBC submit its list of at least three nominees only to Ms Arroyo’s successor.

The first was Associate Justice Conchita Carpio-Morales, the third most senior justice in the high tribunal.

Puno’s impending retirement has become the latest battleground between anti-Arroyo and pro-Arroyo forces as Malacañang has given every sign it intends to fill up the vacancy when Puno makes his exit.

The President’s allies in the JBC—Justice Secretary Agnes Devanadera and Quezon City Rep. Matias Defensor, among them—believe that the constitutional prohibition on midnight appointments does not cover appointments to the post of Chief Justice.

Defensor, the chair of the House committee on justice, is the chamber’s representative to the JBC, the constitutional body that screens and nominates appointees to the Supreme Court and other judicial tribunals.

There have been calls for the JBC to withhold its shortlist of nominees from which the President may choose Puno’s successor to prevent Ms Arroyo from making the appointment.

But several legal experts believe that Ms Arroyo has the authority to appoint the next Chief Justice even without the JBC list, especially if the next top magistrate were to come from the ranks of the incumbent justices that have already gone through the JBC process when they were first appointed to the tribunal.

All-Arroyo court

Puno’s retirement in May will leave the Supreme Court entirely made up of Ms Arroyo’s appointees.

The five most senior justices now are: Carpio, who was appointed by Ms Arroyo on Oct. 22, 2001; Associate Justice Renato Corona, April 9, 2002; Morales, Aug. 26, 2002; Associate Justice Presbitero Velasco, March 31, 2006; and Associate Justice Antonio Eduardo Nachura, Feb. 7, 2007.

Velasco and Nachura have both declined to be considered for nomination. It is not known if Corona has written the JBC of his intentions.

Carpio was Ms Arroyo’s first appointee to the Supreme Court after she came to power in January 2001.

The Firm

He is one of the founders of the Carpio Villaraza Cruz and Angangco law firm, now going by the name of Villaraza Cruz Marcelo & Angangco but otherwise known as “The Firm,” because of its perceived closeness to the Arroyo administration and before that to the administration of President Fidel Ramos.

The firm’s members, however, are believed to have had a falling-out with Ms Arroyo in recent years.

Two of its members—former Defense Secretary Avelino Cruz and former Ombudsman Simeon Marcelo—resigned from the Arroyo administration.

Conflicting provisions

Two retired Supreme Court justices—Josue Bellosillo and Consuelo Ynares-Santiago—have both said that Ms Arroyo can appoint Puno’s successor notwithstanding the constitutional prohibition.

According to Bellosillo, the Constitution mandates the President to appoint a new Chief Justice within 90 days after a vacancy occurs.

Santiago said the constitutional ban does not apply to appointments involving chief justices.

One of the framers of the 1987 Constitution, Ateneo law school dean emeritus Fr. Joaquin Bernas, on the other hand, said the next President should be the one to appoint Puno’s successor.

The conflicting constitutional provisions—the ban on “midnight appointments” and the command to fill a Chief Justice vacancy within 90 days—may be reconciled by having the next President appoint Puno’s replacement, according to Bernas.

He noted that the new President would have all of 45 days to make the appointment after he takes office on June 30, well within the 90-day window.


On the spot
Philippine Daily Inquirer
First Posted 01:01:00 01/30/2010

THE DECLARATION MADE BY JUSTICE ANTONIO Carpio that he welcomed being considered by the Judicial and Bar Council for nomination as next chief justice of the Supreme Court but would only accept an appointment made by President Macapagal-Arroyo’s successor has put Justice Renato Corona on the spot. If Corona follows Carpio’s example, he can put an end to the raging debate concerning the power of the incumbent President to make the appointment and thus help preserve the credibility of the Court. If he doesn’t and he secures the appointment, he risks possible rejection by his colleagues, public ridicule as the President’s puppet, and even impeachment by the next Congress.

In a letter to the JBC, dated Jan. 26, 2010, Carpio, the most senior justice, expressed interest in being considered for the position to be vacated by Chief Justice Reynato Puno on May 17. But he said this “on the understanding” that the list of nominees would be submitted only to the next president.

This condition was the same as the one laid down earlier by Justice Conchita Carpio Morales, who is third among the justices in terms of seniority. To explain why she was making that condition, Morales cited Article 7, Sec. 15 of the Constitution which says: “Two months immediately before the next presidential election and up to the end of his or her term, a President or Acting President shall not make appointments, except temporary appointments to executive positions ...”

Malacañang and some legal experts have said the prohibition against “midnight appointments” does not cover the position of chief justice. On the contrary, they say, the President is duty-bound to make the appointment since another constitutional provision requires her to appoint a chief justice within 90 days after the position becomes vacant. But administration critics and other legal experts say the prohibition covers all positions, except for those spelled out in the Constitution, and the next president who will be elected on May 10 will have 45 days to make the appointment.

The JBC has said that by “policy and practice” it limits the candidates for nomination to the five most senior justices. The fourth and fifth senior justices are Presbitero Velasco Jr. and Eduardo Nachura, respectively. Both have requested that their names be stricken off the list of possible nominees, with Nachura saying he was doing so in deference to his more senior colleagues. Thus, if it were to follow its own selection policy, the JBC would be left with two nominees who will not accept an appointment made by President Arroyo (Carpio and Morales) and one who may or may not accept it (Corona).

Corona, who is widely believed to be the President’s preference, now has the choice of seizing a singular opportunity to realize every lawyer’s grand ambition or joining Carpio and Morales and thus checkmating the President. If he sets the condition that the next president should make the appointment, the JBC will have no list of nominees to submit to the President. Of course, there’s the view that she could appoint just about any lawyer as chief justice, but would she dare go that far?
With his rivals taking themselves out of the contest, the way has been paved for Corona to rise to the top. It is an opportunity that would be difficult to resist.

Carpio is 60 and Corona is 61. If Corona lets this chance go by, he could be kissing his dream of becoming chief justice goodbye.

But Carpio doesn’t have a lock on the position. Nobody even knows who will be the next president and whom he will favor. Corona should just take his chances with the next administration and rely on his record to win him the new president’s nod.

To force the issue could be disastrous for the Court and for him. To the public, it would not be a Corona Court but an Arroyo Court, led by a loyalist and packed with loyalists. And his tenure could be rudely cut short. The same legal experts who say the President has no power to appoint the next chief justice also warn that her appointee would be equally guilty of violating the Constitution and so he could be impeached. That would be an inglorious ending to a bastard appointment.


Sounding Board
Spotlight on the JBC
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 00:38:00 02/01/2010

LAST week, as I was on my way to dinner at the Power Plant Mall, someone approached me to ask, “Do you really want to make Tony Carpio chief justice?” The following day a friend asked me, “What do you have against Rene Corona?”

Hitherto I have tried to resist the idea that what has been driving those who claim that President Macapagal-Arroyo has the power to appoint the next chief justice is not so much legal reason but political preference. Perhaps I should not try to resist that idea any more.

As for my legal preference, however, I must say that in my present state of soul my preference for chief justice is anyone who is appointed by the person who has authority to make the appointment. Two weeks ago I had a full article on this.

That encounter which I had with two inquisitors was followed by a front-page statement from a high-ranking official of the Palace that the power to determine whether the President may appoint a chief justice belongs to the Judicial and Bar Council. It made banner headline in the Manila Bulletin. I would have wished that the Palace official had supported his statement with legal reasons, because he is a former student of mine; but, alas, he forgot to.

But the pronouncement deserves analysis if only for the reason that it came from the Palace and should perhaps be seen as the official line of the Palace.

Let us look at what the JBC is supposed to be as envisioned by its architects. The principal author of the Judicial and Bar Council was former Chief Justice Roberto Concepcion.

Under the 1935 Constitution, appointments to the judiciary had to go through the Commission on Appointments. Concepcion thought that the CA process was too politically tainted. He wanted a depoliticized process, a consummation also devoutly wished by many members of the Constitutional Commission. Hence Concepcion proposed a Judicial and Bar Council which, in its final form, would consist of the chief justice as ex-officio chairman, the minister of justice and a representative of Congress as ex-officio members, and as regular members a representative of the Integrated Bar, a professor of law, a retired member of the Supreme Court, and a representative of the private sector. The regular members would be appointed by the President, with the consent of the Commission on Appointments, and the representative of Congress would be chosen by Congress.

Whether or not the JBC has indeed protected the appointment process from the vagaries of politics is again being tested even as it prepares to make a list of persons who can fill the vacancy to be created by the retirement of Chief Justice Puno.

But what is the JBC’s role? Section 8 says: “The Council shall have the principal
function of recommending appointees to the Judiciary. It may exercise such other functions and duties as the Supreme Court may assign to it.”

The next question that must be asked is: What is the nature of such function? Is it legislative, executive or judicial?

Clearly its function is not legislative. The Constitution has not conferred lawmaking power on it. Neither is its function judicial. The Constitution has vested judicial power solely in the Supreme Court and in such lower courts as may be created by law. By a process of elimination, therefore, we come to the conclusion that the JBC’s power is only executive.

Indeed it is executive because it is a participation in the appointing power which is clearly executive in much the same way that the function of the Commission on Appointments, although performed by legislators, is also executive. Nor has the Constitution given the JBC any power to resolve issues such as has been given to the Comelec.

Among the three departments of government, which one has the power to determine, whenever there is controversy, the legal allocation of powers among the various offices and agencies of the government? It is no other than the Supreme Court.
In the light of this, how can we justify the claim that it is the Judicial and Bar Council, an executive agency, that holds the power to determine who has the authority to appoint the next chief justice? The role of the JBC is much humbler.

The JBC is already in the process of preparing a list? There is nothing to prevent the JBC from doing that. But the crucial question is, after having prepared a list, must or may the JBC submit the list it has prepared to the incumbent President even in the face of the constitutional prohibition found in Section 15 of Article VII?

The question places the JBC in a difficult position. If it submits a list to President Arroyo, it will be seen as authorizing the President to make the appointment. If on the other hand the JBC refuses to submit a list, it will be seen as saying that President Arroyo does not have the authority. Being purely executive, the JBC has no authority to make either judgment.

Caught between these two horns, what may the JBC do? I suggest that the JBC submit a list “To Whom It May Concern.” Of course, it would be no surprise should the Palace decide that it is she “to whom it may concern.” But that would not be the JBC’s problem. And should the President make the appointment, it can create a justiciable controversy over which the justices can fight among themselves. And guess who will win?

Incidentally, contrary to a Philippine Star report on a recent forum, I never said that the President could appoint an acting chief justice; in fact I said the exact opposite, by analogy with the Court-repudiated appointment of an acting Comelec chairman.


Separate Opinion
The position next in line
By Isagani A. Cruz
Philippine Daily Inquirer
First Posted 22:32:00 01/30/2010

MANILA, Philippines — You would be interested to know that, as President Gloria Macapagal-Arroyo’s first appointee to the Supreme Court, her former lawyer, Antonio T. Carpio, was hailed as a top-billed counsel of the administration. Now, however, because of his many dissents against Ms Arroyo, least of all as logical successor to Reynato S. Puno as the outgoing chief justice, all gracious talk about the hopeful justice has stopped among her loyal cohorts.

This must be because of the plan of Ms Arroyo to choose the next chief justice before her term ends at noon of June 30, 2010. She claims that as President she can do anything legal and permitted by the Constitution except the provision against midnight appointments. What she is doing is simply welcoming as President of the Philippines the official who will replace the outgoing chief justice. This will happen when Chief Justice Puno will end his term on May 17, 2010; and this will happen before the end of her own term at noon on the 30th day of June of the same year.

Until that last date happens, she is entitled to all the respect the Constitution accords her. And let us not forget the likelihood of her becoming the prime minister of the new government if the current Constitution is revised.

Under the Administrative Code, vacancies in certain cases are filled by the person called by the law or next in line, subject to specified cases. In the judiciary, the rule on succession by seniority is observed, as where a presiding justice of the Court of Appeals immediately resigned when a junior member of the court was preferred by the appointing power.

There are at least three cases in the Supreme Court where the senior associate justice was deferred, to wit: (1) when Senior Associate Justice Florentino Torres resigned for not being called to replace Chief Justice Cayetano Arellano in 1920; (2) when Justice Felix Makasiar and later Justice Ramon Aquino were named chief justice over senior Justice Claudio Teehankee in 1986; and (3) when Justice Artemio Panganiban was appointed chief justice ahead of Senior Associate Justice Reynato S. Puno in 2007.

Right now, there is no likelihood that the senior associate justice, who is Justice Carpio, is going to be the next chief justice if the appointing power is still lodged in President Arroyo. She has much of her remaining power to appoint the next chief justice. But people are praying she will not do so and leave the power to the incoming president.

There are two steps involved in the appointment of judges and justices by the president of the Philippines. The first is the nomination of the Judicial and Bar Council and the second is the appointment made by the president. Can one exist without the second?

There is no doubt there are two separate acts from two different constitutional bodies that are supposed to complement each other; and the second body is supposed as well to check the first. The JBC was created in addition to the Commission on Appointments. Its function was to remove from the latter office its special function of checking the aptitudes and responsibilities of men and women whose life, liberty and property would be the special subject of their task.

There is talk against Malacañang that the Judicial and Bar Council may refuse to submit to the President its recommendations for the next chief justice on the ground that its appointment at this time is not necessary. The presidential appointment based on the JBC recommendations is necessary. May a petition to compel their submission be filed? May the presidential appointment of the next chief justice without the JBC recommendation be excused?

To remove its scrutiny over the merits of judges and justices would loosen our vigilance over the judicial department. The overall effect would be the complete control of the president of Philippines over the members of the judiciary.


Sounding Board
What constitutional crisis?
By Fr. Joaquin G. Bernas, S.J.
Philippine Daily Inquirer
First Posted 02:01:00 02/08/2010

EVERY indication coming from the Palace is that, come hell or high water, President Gloria Macapagal-Arroyo will reject the 1962 lesson given by the late President Diosdado Macapagal and will appoint the next chief justice once Chief Justice Reynato Puno retires come May 17.

But then we really are not so sure that she will. At least, I am not so sure. Did not a life changing experience happen to Paul of Tarsus on the road to Damascus, when he heard a voice saying, “Paul, Paul, why are you persecuting me?” That road to Damascus is still open. And the voice might once again be heard.

We have not heard from her personally. We have only been treated to the wisdom of Palace spokespersons. Who knows, but it could be that the Palace oracle has simply been commissioned to float trial balloons to see what the reaction of the public might be.

But there are those who are instigating the fear that should she fail to appoint a chief justice and leave the Office of Chief Justice vacant until a new president is sworn in, a constitutional crisis will arise. Frankly, I am not sure they themselves believe what they are mouthing.

What constitutional crisis? Let us calmly look at that.

What normally happens is, whenever a chief justice is absent, or there is as yet no chief justice, the most senior among the associate justices acts as the chief. In the history of our country, nothing unusual happened any time there was an acting chief. The Supreme Court continued to function normally. After all, associate justices are men and women of tested mettle.

As a matter of fact that is the procedure prescribed by the Judiciary Act. I myself have doubts about the constitutionality of that procedure because the presence of the statutory prescription amounts to a designation of a temporary chief justice by Congress, which is a no-no under separation of powers. However, the procedure, which antedates the present Constitution, has not been proscribed by the Constitution, and the Court itself has accepted it as a wise procedure. It will remain that way until the Court itself changes it, and there never will be a time when no one will be around to perform the functions of a chief justice.

But then it is said that the times are unusual. It is election time when a new automated system of elections will be used, which might lead to a presidential election contest. Who will preside should the Presidential Electoral Tribunal (PET) be called to adjudicate?

In the first place the Constitution does not speak of a PET. The Constitution simply says that in such a situation, the Supreme Court itself will adjudicate. And who will preside? Who else but the designated chief from among the fourteen Indians. It would be an insult to the associate justices if one were to say that none of them could, or they collectively could not, handle the job.

It is also said that, without a chief justice, there will be no one to certify that the correct procedure has been followed in deciding cases. They must be kidding. There will be the acting chief. As a matter of fact, even the chief justice, in decisions promulgated by divisions, simply awaits the attestation of the chairman of the division. I have never heard of a chairman’s attestation being rejected by the chief justice.

One may also ask, who would preside should the president be tried on impeachment? The Constitution says that the chief justice should preside. And you can be sure that if there should ever be an impeachment trial of a president after the current presidential term, there will already be a regular chief justice.

What all these come down to is that there never will be a time when no one will be there to perform the duties of a chief justice. So where can the constitutional crisis come from?

First, it definitely is being propagated by the fertile imagination of some.
Second, it can come from what might happen in the Judicial and Bar Council process. What do I mean? In choosing the persons to be nominated to the Supreme Court, the Judicial and Bar Council normally awaits a non-binding recommendation of the Court.

The Court, therefore, would be expected to deliberate on whom to recommend to the JBC. Can you imagine what the spectacle will be like when the justices deliberate as to who they would be willing to recommend as chief justice?

It is by now obvious that the justices are divided on the issue of whether or not President Arroyo may appoint a chief justice. Two have already indicated that they will not accept an appointment from Ms Arroyo, while two others are willing to be nominated and be submitted to Ms Arroyo without condition, even if they have not said that they will accept. I doubt that the rest of the justices have a unanimous view.

Third, the crisis can more likely come about if the President, not having been graced with a salutary Pauline Damascus experience, should decide to appoint a chief justice. It will be no surprise if the President should appoint one of the current associate justices. What a spectacle it will be when the justices are asked to decide whether the appointment of one of them as their chief is valid. The deliberation of the Court on the subject will be one for the books, and whoever succeeds in getting the inside story will have a best seller.

Of course, as I indicated in an earlier column, the incumbent Chief Justice might be tempted to retire more than two months before the election and make things easy for an embattled President. If that happens, why he chose to cap his legal career with a political gamble will be the talk in bars and coffee shops for some time.

Finally, let us just hope that what happened in Pakistan, when its president toyed with the Supreme Court, will not happen here. Or, perhaps, it will be salutary if it happened here!