The debate rages

The debate over the legality of the appointment by President Arroyo of the next Chief Justice of the Supreme Court continues. 

Those opposing the appointment by the President have their basis in Sec. 15, Article 7 of the 1987 Constitution which imposes a ban on midnight appointments two months before the next presidential elections until the end of the term of the President, except temporary appointments to executive positions when continued vacancies will prejudice public service or endanger public safety. 

Thus, the ban on midnight appointments will start on March 10 and end June 30, 2010. 

They are also basing their opposition on Section 261 (g) (2) of the Omnibus Election Code, which provides that it is an election offense punishable by imprisonment of not less than one year but not more than six years, without the benefit of probation, including the penalty of disqualification to hold public office and deprivation of the right of suffrage, for any government official who promotes, or gives any increase of salary or remuneration or privilege to any government official or employee, including those in government owned and controlled corporations” during the period of 45 days before a regular election. The period covered by this election ban begins on March 27, 2010. 

SC Chief Justice Reynato Puno will retire on May 17, 2010 upon reaching the age of 70. 

Thus, they say that Puno’s retirement will fall either within the constitutional ban on midnight appointments or the election ban. 

Section 4 (1), Article VIII of the Constitution provides that any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof. The 90th day from the occurrence of the vacancy falls on Aug. 15, 2010. Thus, the newly elected President still has 45 days from July 1 until Aug.15, 2010 to appoint the new Chief Justice of the Supreme Court. 

Anticipating said vacancy, Rep. Matias Defensor, Jr., a member of the Judicial and Bar Council (JBC) representing the House of Representatives moved last Dec. 22 moved for the Judicial and Bar Council to commence the procedure in nominating applicants [for the position of Chief Justice] and to immediately submit forthwith to the President the list of at least three nominees” for the position. 

Defensor points out that the move avoids a vacancy of even a single day in the position and gives the President ample time before May 17, 2010 to scrutinize and critically consider the three nominees for this highest of judicial positions.

He adds that there is but a single Chief Justice, without whom the Supreme Court cannot exist.

The proposal however has met stiff opposition from a number of groups, including the Alternative Law Groups, Libertal, and Transparency and Accountability Network which say that the proponents of an early appointment of the next Chief Justice seek to mislead the people by painting a grim scenario of a constitutional crisis if the position is left vacant even for a day. 

The three groups emphasize that as an institution, the SC has survived periods without a Chief Justice and that to advance the search and allow the present administration to appoint the next Chief Justice is to circumvent the constitutional prohibition. 

Members of the UP College of Law faculty have also joined the opposition. In a manifesto, they pointed out that the only positions to which the President can make midnight appointments are temporary appointments and only for executive positions. They stressed that the position of Chief Justice is not an executive position nor is it a temporary one. 

Meanwhile, the 19th House of Delegates of the Integrated Bar of the Philippines resolved at its annual convention that President Arroyo has no authority to appoint the replacement of Chief Justice Puno and that any appointment to be made by here is unconstitutional. The motion was made by Governor Inting of Eastern Visayas, joined by the delegates of Southern Luzon, Bicol, Eastern and Western Visayas, Central Luzon, and Northern Luzon. There were no objections, they say. 

The list of oppositors keeps growing.

Allow me to stress at this point that this is not about the qualifications of those being nominated by the JBC. They are all very competent to be the next Chief Justice.

Let’s just hope that however this debate ends, the Supreme Court will be better off as an institution. 

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