MANILA, Philippines - The Supreme Court (SC) yesterday allowed President Arroyo to choose the next chief justice amid the legal issues raised against appointments during the election period.
A majority of nine of the 15 justices said there is nothing under the law that prohibits Mrs. Arroyo from appointing the next chief magistrate upon the retirement of Chief Justice Reynato Puno on May 17.
In a landmark decision penned by Associate Justice Lucas Bersamin, the SC said the ban on midnight appointments does not cover the judiciary.
The ruling qualified a Supreme Court decision in 1998 that nullified the appointments of two judges in the regional trial courts during the election period.
In yesterday’s ruling, the SC did not clarify if Mrs. Arroyo can also appoint justices of the Court of Appeals and judges of the lower courts despite the ban on midnight appointments under Article VII Section 15 of the 1987 Constitution.
The Philippine Bar Association (PBA) and the Integrated Bar of the Philippines (IBP) are set to appeal the ruling.
“Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the executive department,” the SC said.
In the 55-page ruling, the SC explained the intention of the framers of the Constitution was to limit the powers of the President to make appointments in the executive branch.
“The framers did not need to extend the prohibition to appointments in the judiciary, because their establishment of the JBC… had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of members of the Supreme Court they could have explicitly done so,” the SC said.
The SC allowed the petitions of Philippine Constitution Association (Philconsa) and lawyers Estelito Mendoza and Arturo de Castro, taking on their argument that the 1987 Constitution clearly spells out the President, in the last few months of her term of office, is not allowed to make an appointment in the executive branch.
The argument was challenged by the PBA, IBP, National Union of People’s Lawyers (NUPL) and militant party-list groups Bayan and Akbayan, separately filing their petitions maintaining the constitutional ban on midnight appointments.
The SC also upheld the argument of the government, through the Office of the Solicitor General, pointing out the appointment ban, which lasts from 109 to 115 days during the election period, is longer than the 90-day period within which a Supreme Court justice must be appointed under Article VII Section 4 of the Constitution.
Applying this provision under the appointment ban to the judiciary would result in at least 19 instances when the President would not be able to fill vacancies in the SC.
The SC also dismissed the argument that the judiciary can still have an acting chief justice during the vacancy and allow the next president to make the appointment.
The SC said there is no provision in the Constitution providing for designation of a temporary chief justice during the vacancy because the post is crucial during election period since the high court acts as the final arbiter under the Presidential Electoral Tribunal (PET).
The eight other magistrates who concurred with the ruling were Justices Jose Perez, Roberto Abad, Martin Villarama, Teresa Leonardo-de Castro, Arturo Brion, Diosdado Peralta, Jose Mendoza, and Mariano del Castillo – all appointees of Mrs. Arroyo.
The SC directed the JBC to proceed with its selection of nominees and submit the shortlist to the President on or before the date of retirement of Puno on May 17.
Dissenting
The SC, however, did not rule as to whether the exemption on the ban on midnight appointments covers the entire judiciary because the justices are divided over the issue.
There was no majority vote in the 1998 decision where the SC nullified the appointments of Judges Mateo Valenzuela and Placido Vallarta to the regional trial courts for violating the constitutional ban on midnight appointments.
Bersamin believes the exemption applies to the entire judiciary. He is joined by Perez, Abad, Villarama and De Castro.
Brion, on the other hand, submitted a separate opinion saying only positions in the SC – and not those in appellate and lower courts -- are covered by the exemption on the midnight appointments ban. He is joined by Justices Mendoza, Del Castillo and Peralta.
“It means that the Court is silent on this issue. There is no doctrine on this yet because five justices believe that the entire judiciary is not covered by the ban while four others say only the SC is exempted,” SC spokesman Midas Marquez explained in a press conference.
Former Ombudsman Simeon Marcelo said the issues were already settled in the Valenzuela-Vallarta case.
“If you can remember, it was President (Fidel) Ramos who sought that opinion from the Court in connection to the vacancy in the retirement of Justice Ricardo Francisco. So that ruling was meant to set guidelines even in positions in the Supreme Court,” Marcelo said.
“The Constitution is clear, that the prohibition is general,” he added.
Marcelo, head of the Philippine Bar Association that joined the opposing petitions, said they would file a motion for reconsideration on the SC ruling.
“This is really shocking – especially to the legal profession. It was a surprise why the SC issues the ruling this early and without holding an oral argument,” Marcelo said.
Marcelo said they would insist the judiciary is covered by the ban on midnight appointments under the Constitution.
The Davao del Sur chapter of the IBP, led by its immediate past president Israelito Torreon, also prepared to file a motion for reconsideration of the ruling.
The IBP chapter said the “blanket prohibition” on midnight appointments in the Constitution “is very clear, that it does not even require any interpretation but application.”
“The rule of law must prevail and not the dictates or whims of a fading but infamous regime,” the IBP chapter said in a statement.
Three SC magistrates also had their respective dissenting opinions.
Justice Conchita Carpio-Morales voted outright against the President making the appointment saying it was unconstitutional, while Justices Antonio Eduardo Nachura and Presbitero Velasco Jr. said the issue has yet to be resolved.
Chief Justice Puno and the two frontrunners for the position – Senior Justices Renato Corona and Antonio Carpio – did not take part in the voting.
Marquez told a news conference that Puno inhibited from the case because in effect, he stands as respondent for being the JBC chairman.
Corona and Carpio, on the other hand, opted not to join the voting “because it will have effects on them,” Marquez said.
Corona and Carpio earlier said they would accept the nomination for the post but on condition that the next president should make the appointment.
But the SC did not rule on the issue raised in the petitions of whether the JBC should exclude Corona and Carpio for their qualified acceptance.
The SC, however, gave weight to the argument of the Solicitor General stressing the importance of the chief justice post saying historical events dictated the post should be vacant no more than a day.
When Chief Justice Claudio Teehankee retired on April 18, 1988, Associate Justice Pedro Yap was appointed on the same day. When Yap retired on July 1, 1988, then Associate Justice Marcelo Fernan was appointed the same day.
When Fernan effectively resigned on Dec. 7, 1991, Senior Justice Andres Narvasa was appointed the following day. When Narvasa retired on Nov. 29, 1998, Senior Justice Hilario Davide Jr. was sworn into office the following morning.
When Davide retired on Dec. 19, 2005, Senior Justice Artemio Panganiban was appointed to succeed the following day.
Lastly, when Panganiban retired on Dec. 6, 2006, incumbent Chief Justice Reynato Puno took his oath on midnight of Dec. 7, 2006.
While the SC failed to settle the issue on midnight appointments in the judiciary, Marquez stressed the point of controversy is the position of chief justice.
Marquez said the issue of whether the exemption covers the entire judiciary could be raised later through another petition if the President proceeds to appoint members of the CA and the lower courts.