One of the constitutional issues predicted by Filipino lawyers to be the most controversial before Pres. Gloria Arroyo ends her term on June 30 this year is whether or not she is allowed by the 1987 Philippine Constitution to appoint the next Chief Justice upon the retirement of incumbent Chief Justice Reynato Puno in May this year, in the light of the letter and spirit of the relevant provisions of the Constitution against politically-motivated midnight appointments.
I subscribe to the legal position taken by the editors of the Philippine Daily Inquirer and by former Senate Pres. Franklin Drilon on the matter, which I am reproducing hereinbelow, for your reference, thus:
Editorial
Appointing the Chief
Philippine Daily Inquirer
First Posted 23:22:00 01/10/2010
THE black letter of the fundamental law is clear. Article VII, Section 15 of the Constitution specifically forbids an outgoing president from making what have come to be called “midnight appointments.” The section, in its entirety, reads: “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.”
Thus, by express provision of the Constitution, President Macapagal-Arroyo can no longer name appointees, except temporary postings in the Executive branch, beginning March 9 and until her successor takes his oath on June 30 this year.
Chief Justice Reynato Puno retires on May 17; his 70th birthday falls right in the middle of the period of prohibition. Any other person with a healthy respect for the rule of law and the processes of democracy, not to mention a strong sense of delicadeza, would understand the national interest in a straightforward way: Puno’s successor should be named by the next President of the Philippines.
President Arroyo’s allies in the administration coalition, however, have found a rationalization for her to violate the Constitution. Rep. Matias Defensor, the representative of the House in the Judicial and Bar Council, has proposed that the JBC, which has the constitutional duty to nominate candidates for the Supreme Court, recommend a short list of replacements for Puno even before he retires—in order, Defensor said, to avoid leaving the position “vacant even for a day.”
In a letter to his fellow JBC members, Defensor emphasized the importance of the chief justiceship: its occupant is not only the fifth in the line of presidential succession, but also the head of both the JBC and of the Presidential Electoral Tribunal. The eight-person JBC will meet today to discuss Defensor’s proposal.
Politics, we think, is behind this unusual request to fast-track the appointment of the next Chief Justice. Ms Arroyo’s allies want her to circumvent the restriction on appointments by allowing her to name the next Chief Justice before March 9. But both law and history are against Defensor’s indefensible suggestion.
Compared to the congressman’s frantic proposal, the Constitution is a monument of massive calm. The pertinent provision, from Article VIII, Section 4 (1), states that “Any vacancy [in the Supreme Court] shall be filled within ninety days from the occurrence thereof.” In other words, the government has until mid-August to name Puno’s replacement.
At a time of rising political passions, with national attention increasingly focused on the presidential elections, the wisdom of the Constitution’s 90-day deadline appears even more prescient. Precisely because of the importance of the position, there is no excuse to rush the nomination.
The settled law on midnight appointments, under the 1987 Constitution, is anchored on the exact same provision that pertains to the JBC’s power to nominate a Supreme Court justice. The first paragraph of Article
VIII, Section 9 reads: “The Members of the Supreme Court and judges of the lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.” The defining case of Valenzuela and Vallarta rejected the midnight appointments of two “judges of the lower courts.” Its scope, thus, must also cover “Members of the Supreme Court.”
Not least, the history of the Court itself belies Defensor’s contention that the office of Chief Justice had never been vacant, not even for a day.
But the greater rule at stake concerns the proper role of an outgoing president. Both law and history are clear: That role is properly of a caretaker, a custodian who ensures that the transition of power, the defining characteristic of a republican democracy, takes place as scheduled. Defensor’s proposal tells us what President Arroyo’s last State of the Nation Address confirmed: this President continues to struggle against the responsibilities of transition, and is loathe to let power go.
See:
http://opinion.inquirer.net/inquireropinion/editorial/view/20100110-246631/Appointing-the-Chief
COMMENTARY
Arroyo exits June, Puno retires May, raise vital legal questions
By Franklin M. Drilon
Philippine Daily Inquirer
First Posted 00:13:00 01/10/2010
Filed Under: Elections, Politics
(Editor’s Note: The author has logged 32 years in the public service as Senate president, justice secretary, labor secretary and executive secretary. He was a bar topnotcher and a staunch advocate of reforms in the judiciary. He is the national chair of the Liberal Party and its leading senatorial candidate in the May elections.)
THE PARAMOUNT QUESTION is: Under the 1987 Constitution, can an outgoing President Arroyo still appoint the successor to Chief Justice Puno?
The forthcoming retirement of Chief Justice Reynato Puno and President Macapagal-Arroyo’s impending exit from power present an interesting legal question that will have an impact not only on our Supreme Court but on our country’s future as well.
The two events will also provide the answers to persistent questions on whether the Arroyo administration will leave behind a Supreme Court that continues to enjoy a perception of judicial independence.
Chief Justice Puno retires in four months—on May 17, after the country shall have elected a new leader, and 45 days before the constitutionally mandated transfer of presidential power from Ms Arroyo to her successor on June 30 transpires.
In a letter dated Dec. 22, 2009, Rep. Matias Defensor, a member of the Judicial and Bar Council, urged his colleagues in the JBC to nominate the successor of Puno even before he retires on May 17.
Precedent case
Article VIII, Section 4(1) of the Constitution provides that any vacancy in the Supreme Court shall be filled within 90 days of the occurrence.
On the other hand, Article VII, Section 15 of the Constitution provides that after two months immediately before the next presidential election and up to the end of his/her term, a President or acting President shall not make appointments except temporary appointments to executive positions when continued vacancies will
prejudice or endanger public safety.
A precedent case in this situation is the 1998 Supreme Court case “In Re Appointments of Valenzuela and Vallarta,” where the tribunal was confronted with the question of whether, during the period when appointments are banned, the President is required to appoint a Regional Trial Court judge in view of Article VIII, Section 9, which mandates that the President shall issue the appointments within 90 days from the submission of the list by the JBC.
In that case, the Supreme Court ruled that during the period of the ban under Section 15, Article VII, or the prohibition against so-called midnight appointments, the President cannot make such appointments.
The high court said the President was neither required to make appointments to the courts nor allowed to do so during the last 90 days of his/her term.
The Supreme Court noted that the exception in Article VII, Section 15—allowing appointments to be made during the period of the ban therein provided—was much narrower than that recognized in the 1962 case of Aytona vs Castillo.
In this case, the high court struck down as illegal the midnight appointments by then outgoing President Carlos Garcia, who issued 350 appointments in one day in December 1961 and set the induction of the new officers a few hours before the
inauguration of his successor, President Diosdado Macapagal.
The tribunal ruled that the outgoing President was no more than a caretaker administrator whose duty was to prepare for the orderly transfer of authority to the incoming President.
In the Aytona vs Castillo case, the high court took the view that the restriction on the President’s appointing power prevailed over the time frame for filling vacancies in the judiciary as the prevention of vote buying and similar evils outweighed the need for avoiding delays in filling up court vacancies or the disposition of some cases.
In the light of all these, a major role will be played by the JBC in the selection of the next Chief Justice. In fact, more questions are raised as far as the JBC is concerned on this matter.
To convene or not
Will the JBC convene before Puno retires in order to deliberate on and submit to Ms Arroyo the list of nominees to succeed Puno, as suggested by Ms Arroyo’s ally, Representative Defensor?
If the JBC, which is chaired by Puno himself, refuses to convene, can the majority of the Supreme Court compel it to do so?
It is essential to note that the JBC was created as a limitation on the President’s authority to appoint members of the judiciary and to minimize, if not totally shield, judicial appointments from political pressure.
Of late, however, media observers have noted that Ms Arroyo’s three most recent appointments to the Supreme Court have been noncontroversial.
But questions are still being raised on the independence of the judiciary because of the dominance of Ms Arroyo’s appointees in the Supreme Court.
With the appointment of Justice Jose Mendoza, the latest appointee, Ms Arroyo has named all but one of the high court’s 15 magistrates. Puno, the lone holdout, was named to the high court in 1993 by President Fidel Ramos but it was Ms Arroyo who made him chief justice.
We live in an imperfect world and we reckon that judicial decision-making operates in a complex arena in which law and precedent are inevitably intermixed with personality, prejudice and politics.
But the government cannot uphold the rule of law and institute good governance without an independent judicial system, free from external influence. That is why we have textual safeguards to minimize, if not prevent, incursions into the process of judicial decision-making.
Hence, under our Constitution, the President can only appoint from a list of nominees prepared by the JBC. Members of the judiciary are given security of tenure. Congress is banned from passing a law that reorganizes the judiciary and the judiciary enjoys fiscal autonomy.
Given these safeguards, can we say that we have a truly independent and effective justice system? Can we truly say that the toxic political environment we see today has not invaded our justice system?
Remove politicos from JBC
We support efforts to make the JBC process more transparent and effective in the performance of its mandated constitutional duty. However, there are certain institutional constraints that must be addressed.
The membership of the JBC must be revisited. For one, we must remove the justice secretary and the two Congress representatives from its roster to insulate the nominating process from political influence.
Moreover, the regular members of the JBC should not be eligible for any reappointment.
A JBC, independent of the Supreme Court is a concept worth considering, we believe.
Under the institutional concept of judicial independence, the insulation of the courts from external influence is the central element of a judiciary in a society that upholds the rule of law.
The importance of the judiciary as an institution of democracy should never be compromised. And as guardians of the system of justice and advocates for the rule of law, the people must ensure that the allegiance of our judiciary is only to the law.
The people’s faith in our democracy depends on a judicial system that is free to dispense justice without fear or favor.
see:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100110-246467/Arroyo-exits-June-Puno-retires-May-raise-vital-legal-questions
Read also:
As I See It
Can Arroyo appoint a new CJ this early?
By Neal Cruz
Philippine Daily Inquirer
First Posted 23:23:00 01/10/2010
THE talk of the town now is who would be appointed as the next Chief Justice of the Supreme Court. CJ Reynato Puno won’t retire until May 17, but already there is jockeying for his position. The tradition is to appoint the most senior associate justice, in the present case Justice Antonio Carpio, but indications are that President Gloria Macapagal-Arroyo wants to appoint her own favorite before she steps down as President—for obvious reasons. With the deluge of court suits expected to be filed against her when she is no longer President and no longer immune from suit, GMA wants not only a sympathetic tribunal but a friendly Chief Justice.
Before she steps down this June, GMA will have appointed all the 15 members of the SC except CJ Puno who was appointed to the tribunal by President Fidel Ramos (but appointed Chief Justice by GMA). And Puno it was who was the ponente of that controversial SC decision declaring that President Joseph Estrada had “resigned” although there is no letter of resignation in existence anywhere. That was a new legal principle, “constructive resignation,” invented to legitimize the takeover of then-Vice President Gloria Arroyo. In it, the tribunal assumed that President Estrada had resigned although he had not.
GMA wants to appoint the next CJ before she steps down. Former Senate President Franklin Drilon had a learned discussion on this in yesterday’s Inquirer, parts of which I will liberally repeat here for those who missed it.
“Under the 1987 Constitution, can an outgoing President Arroyo still appoint the successor of Chief Justice Puno?” Drilon asked in his article. The subject became important when Rep. Matias Defensor, a member of the Judicial and Bar Council that, under the Charter, must nominate the successor to Puno, asked his colleagues in the JBC to nominate the successor to Puno even before he retires. Puno will retire four months from now, about 45 days before the constitutionally mandated transfer of presidential power from GMA to her successor on June 30, 2010. At that time, does GMA still have the authority to appoint a new CJ?
Drilon wrote: “Article VIII, Section 4(1) of the Constitution provides that any vacancy in the Supreme Court shall be filled within ninety days from the occurrence thereof.”
“On the other hand, Article VII, section 15 of the same Constitution provides that after two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make any appointments except temporary appointments to executive positions when continued vacancies will prejudice or endanger public safety.”
There is a precedent in this case. In 1998, the Supreme Court was confronted with a similar case titled “In Re Appointments of Valenzuela and Vallarta.” The question that faced the SC was that during the period when appointments are banned, is the President required to appoint a Regional Trial Court judge in view of Article VIII, Section 9 which mandates that the President shall issue the appointments within 90 days from the submission of the list by the JBC?
The SC ruled in that case that during the period of the ban, or the prohibition against midnight appointments, the President cannot make such appointments. “The President was neither required to make such appointments to the courts, nor allowed to do so during the last 90 days of the President’s term,” the SC said.
“The court noted that the exception in Article VII, Section 15—allowing appointments to be made during the period of the ban therein provided—was much narrower than that recognized in the 1962 case of Aytona vs. Castillo,” Drilon wrote.
“In that case, the Supreme Court struck down as illegal the so-called midnight appointments by then outgoing President Carlos P. Garcia, who issued 350 appointments in one day in December 1961 and set the induction of the new officers a few hours before the inauguration of his successor, President Diosdado Macapagal.
“The Supreme Court ruled that the outgoing President is no more than a caretaker administrator whose duty was to prepare for the orderly transfer of authority to the incoming President.
“In the Aytona vs. Castillo case, the SC took the view that the restriction on the President’s appointing power prevailed over the time frame for filling vacancies in the judiciary as the prevention of vote-buying and similar evils outweigh the need of avoiding delays in filling up court vacancies or the disposition of some cases.”
Under the present Charter, the President is required to appoint SC justices from a list submitted by the JBC. Congressman Defensor has urged JBC members to submit a list of nominees for CJ long before the retirement of Puno. If the JBC, which is chaired by Puno himself, refuses to convene, can the majority of the justices compel it to do so?
“The JBC was created as a limitation on the President’s authority to appoint members of the judiciary and minimize, if not totally shield, judicial appointments from political pressure,” Drilon notes.
“We live in an imperfect world and we reckon that judicial decision-making operates in a complex arena in which law and precedent are inevitably intermixed with personality, prejudice and politics,” Drilon adds.
“But government cannot uphold the rule of law and institute good governance without an independent judicial system free from external influence,” he continues. “That is why we have textual safeguards to minimize, if not prevent, incursions into the process of judicial decision-making.
“Given these safeguards, can we say that we have a truly independent and effective justice system? Can we truly say that the toxic political environment we see today has not invaded our justice system?”
See:
http://opinion.inquirer.net/inquireropinion/columns/view/20100110-246632/Can-Arroyo-appoint-a-new-CJ-this-early
EDITORIAL - Strengthening the judicial system
(The Philippine Star)
Updated January 11, 2010 12:00 AM
Last year the Judicial and Bar Council asserted its independence from the executive branch by refusing to submit a new list of nominees to President Arroyo for two vacancies in the Supreme Court. Though Malacañang insisted that it was a presidential prerogative, President Arroyo bowed to the JBC and made her choices from the original list.
Today the JBC, with a slightly different membership, is in the spotlight again over a proposal to nominate candidates for chief justice and allow the President to pick an SC chief-in-waiting before the current chief, Reynato Puno, reaches the mandatory retirement age on May 17, over a week after the general elections. Proponents said the move would avoid the creation of a vacancy in the highest post in the judiciary during the period when a president is barred from making any permanent appointments.
Critics of the unprecedented proposal cite provisions in the Constitution that bar a president from making such an appointment. The critics, who said President Arroyo wanted to promote her former chief of staff, Renato Corona, to chief justice, said she should leave the choice to the next president, who will be known by the time Puno retires.
Malacañang insisted yesterday that the President could appoint a chief justice-in-waiting. Others, meanwhile, said the issue was a gray area that the Supreme Court itself would have to resolve, adding that in the meantime, SC justices could start deliberating on who could serve as acting chief justice in case no replacement for Puno could be immediately installed after his retirement.
Regardless of how this issue is resolved, the overriding concern should be the strengthening of the judicial system. Over the years, the Supreme Court has generally fulfilled its function as the nation’s court of last resort, delineating the limits of executive and legislative powers, and reprimanding the executive even in cases that Malacañang regarded as moot and academic.
A strong and independent Supreme Court provides a system of checks and balances to executive power, especially when Congress hesitates or fails to carry out its oversight functions. A strong and independent Supreme Court offers the brightest hope for a society where the rule of law prevails. The way the latest controversy is resolved should promote that objective.
See:
http://www.philstar.com/Article.aspx?articleId=539801&publicationSubCategoryId=64
No JBC decision on Arroyo pick of new chief justice
By Lira Dalangin-Fernandez
INQUIRER.net
First Posted 16:53:00 01/11/2010
MANILA, Philippines—The Judicial and Bar Council (JBC) on Monday failed to come up on Monday with a decision whether on President Gloria Macapagal-Arroyo can still appoint a new Supreme Court Chief Justice during the last three months of her term.
Emerging from a meeting of the council, JBC members Senator Francis Escudero and Quezon City Representative Matias Defensor said they deferred discussion on the matter as some members asked for more time to study his proposal before they can come up with a resolution.
But Defensor said that “more or less, the body will submit a list of names to President Arroyo” to allow her to decide on the Chief Justice Reynato Puno’s replacement when he hangs his robe on May 17.
“We all agreed that it’s the present JBC that must make a recommendation to the incumbent President,” Defensor said in a phone interview.
The body met to discuss the congressman’s letter urging his colleagues in the JBC to “commence the procedure in nominating the applicants and immediately submit to the president the list of at least three nominees for the position of chief justice.”
The JBC is composed of eight members from the academe, private sector, retired members of the judiciary, legislative, and executive departments. The chief justice chairs the JBC.
It is tasked with submitting a list of nominees from which the president chooses to fill up a vacant position in the Supreme Court.
Escudero said the JBC’s decision on the proposal “should have nothing to do with President Arroyo or any other political consideration.”
“My decision will be based on what is constitutional, legal, and fair. I would like to believe that the other members of the JBC would also decide along these lines,” the senator said in a separate statement.
Defensor reiterated the need for the President to appoint Puno’s replacement, saying there should not be a vacuum in the highest post in the judiciary.
He said the country could not wait for the next president to appoint the new chief justice because it would probably take up to September before the new president can make the appointment.
Reports quoting Defensor’s letter further said that “to avoid a vacancy of even a single day in the position, it is imperative that we give the President ample time before May 17, 2010, to scrutinize and critically consider our three nominees for this highest of judicial positions.”
Section VIII, Article 4(1) of the 1987 Constitution states that “any vacancy (in the SC) shall be filled within ninety days from the occurrence thereof.”
However, Article VII Sec. 15 of the Constitution also bars the President from making appointments two months before the next presidential elections and up to the end of his or her term.
This means that beginning March 10 until her term expires, Arroyo is constitutionally prohibited from making appointments.
Puno’s retirement on May 17 fall well within the period of the ban, thus, Arroyo can no longer appoint his replacement.
See:
http://newsinfo.inquirer.net/breakingnews/nation/view/20100111-246742/No-JBC-decision-on-Arroyo-pick-of-new-chief-justice
Arroyo can appoint Puno replacement, say allies
By Christian V. Esguerra, Gil C. Cabacungan Jr., Philip Tubeza
Philippine Daily Inquirer
First Posted 00:58:00 01/11/2010
MANILA, Philippines – President Gloria Macapagal-Arroyo can appoint the replacement for outgoing Chief Justice Reynato Puno during the final weeks of her nine-year administration, Malacañang allies said Sunday.
Their position runs counter to the stand taken by former Senate President Franklin Drilon, who raised legal questions about Ms Arroyo naming a successor to Puno.
Puno will retire on May 17, after the country shall have elected a new president and 45 days before the constitutionally mandated transfer of power from Ms Arroyo to her successor on June 30.
“The President is allowed to appoint the Chief Justice of the Supreme Court upon the occurrence of the vacancy,” said Cabinet Secretary Silvestre Bello III, himself a former justice secretary like Drilon.
But Bello, who is also running for senator, acknowledged as a “gray area” the constitutional provision preventing the President from making appointments during the last three months of her term.
“The provision of the Constitution is clear about the appointment of members of the judiciary within the prohibitive period—which is 60 days before the election—but we cannot afford a hiatus,” he said.
Neither required nor allowed
Bello said the provision must be reconciled with the desire in the framework in the Constitution to prevent an interruption.
In a commentary published by the Inquirer on Sunday, Drilon cited a Supreme Court ruling saying that the President “was neither required to make appointments to the courts nor allowed to do so during the last 90 days of his/her term.”
Drilon, the national chair of the Liberal Party and one of its senatorial candidates in the May 10 elections, noted two seemingly conflicting provisions.
“Article VIII, Section 4(1) of the Constitution provides that any vacancy in the Supreme Court shall be filled within 90 days of the occurrence,” he said.
“On the other hand, Article VII, Section 15 of the Constitution provides that two months immediately before the next presidential election and up to the end of his/her term, a President or acting President shall not make appointments except temporary appointments to executive positions when continued vacancies will prejudice or endanger public safety,” he added.
Drilon said questions about the tribunal’s independence had cropped up because practically all members of the Supreme Court are Ms Arroyo’s appointees.
Save for Puno, Ms Arroyo has named all of the high court’s 15 magistrates. Puno was named to the tribunal in 1993 by President Fidel V. Ramos, but it was Ms Arroyo who named him Chief Justice.
Drilon also called for the removal from the Judicial and Bar Council (JBC) of the justice secretary and two representatives from Congress to insulate the nominating process from political influence.
The JBC is tasked with submitting a list of nominees from which the President chooses to fill up a vacant position in the Supreme Court.
Romulo Macalintal, Ms Arroyo’s election lawyer, said Article VII, Section 15 of the Constitution applied only to appointments in the “executive department.”
“If you will go to the provision in the judicial department in our Constitution, that provision is not included,” he said.
Macalintal cautioned against appointing an acting Chief Justice, saying such an appointee would later end up “beholden” to the next President. “There will be too much politics there,” he said.
He said a conflict of interest could arise if an acting Chief Justice were named and the proclaimed winner of the May presidential election were involved in a case pending in the Presidential Electoral Tribunal headed by Supreme Court justices.
“We cannot afford to have a vacuum in our Supreme Court. It will be no different from having no President, Speaker or Senate President … We can’t afford not to have a Chief Justice from May 17 to June 30,” Macalintal said.
Only the President has the power to appoint a Chief Justice and she should do it even during the prohibitive period, according to Speaker Prospero Nograles.
Petty concerns
Cavite Rep. Elpidio Barzaga said concerns that the President would violate the Constitution by appointing a new chief justice during the prohibitive period were “petty” compared with the risks that the country would face without someone at the helm of the high court.
“It’s too dangerous not to have a top man at the Supreme Court because the high court will be the one to provide stability during the transition when the leaders of the two other branches of government are being replaced,” Barzaga said.
Quezon City Rep. Matias Defensor Jr., chair of the House justice committee, said that without a Chief Justice, “who would sign [the tribunal’s] en banc decision and who would be the next in line to succeed the President after the Vice President, Senate President and House Speaker are out of power?”
Defensor is a member of the JBC, which he urged to come up with a list of candidates to replace Puno a week after the elections.
“Whether or not the Supreme Court would allow the President to make an appointment during the prohibitive period is for the high court to decide. What is important is the JBC has played its role of coming with a list of candidates from which the President could choose,” Defensor said.
But Bayan Muna Rep. Satur Ocampo said Ms Arroyo’s “midnight appointment” of a Chief Justice could have similarly damaging results on the integrity of the Supreme Court.
“If Gloria Macapagal-Arroyo appoints a new Chief Justice before she bows out, she would leave behind a Supreme Court fully appointed by her which may suffer the stigma of being a ‘GMA Supreme Court,’” Ocampo said.
Sen. Francis “Kiko” Pangilinan urged the JBC to defer submitting a list of possible replacements for Puno so that Malacañang would not be able to make a “midnight appointment” to the judiciary’s top post.
Pangilinan, a member of the Liberal Party like Drilon, said the JBC should insist on its independence after a JBC member, Defensor, urged his colleagues to nominate a successor to Puno even before he retires.
“In order to prevent Malacañang from making a midnight appointment for the post of chief justice of the Supreme Court, all the JBC has to do is refuse to submit a short list to Malacañang,” Pangilinan said.
“By doing this, Malacañang will have no basis to issue an appointment as a short list prepared by the JBC is a constitutional requirement for a valid appointment to the Supreme Court,” Pangilinan added.
See:
http://newsinfo.inquirer.net/inquirerheadlines/nation/view/20100111-246656/Arroyo-can-appoint-Puno-replacement-say-allies
