Who will appoint the next CJ? (Part 2)

In last week’s column, I pointed out that with the impending retirement of Chief Justice Puno on May 17, 2010, there is a legal question on whether President Arroyo can appoint his replacement before her term ends on June 30, 2010.

On the one hand, there is Article VII, Section 15, which prohibits a President from making any appointments “two months immediately before the next Presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.” On the other hand, Article VIII, Section 4(1) mandates that …. “Any vacancy (i.e., in the Supreme Court) shall be filled within ninety days from the occurrence thereof.”

The main argument against President Arroyo appointing the next CJ is the prohibition against the so-called “midnight” appointments. The Constitution frowns upon the latter for a variety of reasons: 1) they may be used for partisan considerations- as a reward for past favors and/or to protect against future prosecutions; 2) they are usually done in a hurried and haphazard manner; and 3) they do not bestow the due courtesy to the incoming administration to make the corresponding appointments.

Together with the Constitutional directive to fill up a vacancy in the Supreme Court within 90 days, the main argument that President Arroyo can use to justify an immediate appointment is that a vacancy in the office of the Chief Justice, particularly during the transition period, would be prejudicial to the public interest.

Aside from the issue of whether the President can appoint the Chief Justice, there are important corollary issues that need to be tackled as well. 

Under Article VIII, Section 9, the Judicial and Bar Council (“ JBC”) must first submit a list of at least 3 nominees to the President before the latter can make an appointment. I understand that it has been the practice of the JBC since the time of Chief Justice Andres Narvasa to submit a short list even before the CJ’s retirement. Usually, the list contains the names of three to five senior justices which in this instance would be Justices Antonio Carpio, Renato Corona, Presbitero Velasco, Conchita Carpio-Morales and Antonio Nachura. Note that in the Supreme Court, seniority is determined by the date of appointment (i.e., length of service in the Court) not the age of the justice. 

Among the justices vying for the position, Justice Carpio is the most senior in length of service but the youngest in age and if he serves his full term, will retire on October 26, 2019. Justice Corona is the second most senior in length of service and next youngest in age and should retire on October 15, 2018.

Post 1946, the rule of seniority in appointing the next Chief Justice has been traditionally upheld save in three instances: when President Ferdinand Marcos bypassed Justice Claudio Teehankee twice — first in favor of Justice Felix Makasiar and later, Justice Ramon Aquino. Of course, Teehankee became chief after President Cory Aquino assumed power in 1986. An argument has been made that Justice Ameurfina Melencio-Herrera was also bypassed when Teehankee was replaced by Justice Pedro Yap since she was originally appointed to the Court by President Marcos in 1979. However President Aquino reckoned seniority from the reorganization of the Court after the 1986 February revolution. Upon the retirement of Chief Justice Hilario Davide in December 2005, then Senior Justice Puno was bypassed in favor of Justice Artemio Panganiban. But President Arroyo eventually appointed Puno chief when Panganiban retired 11 months later.

However there is no legal impediment to other persons being nominated or appointed. Any natural born citizen who is at least 40 and has been, for 15 years or more, a judge or engaged in the practice of law would be qualified to sit in the Court. In fact, in the United States, the tradition is not to appoint on the basis of seniority. The current Chief Justice, John Roberts, was appointed straight from the Federal Appeals Court at the age of 54. Chief Justice Earl Warren, who penned the landmark case of Miranda v. Arizona, was the governor of California before being elevated to the judiciary’s highest post. These examples should give dark horse candidates such as Speaker Prospero Nograles and Senator Miriam Defensor-Santiago a glimmer of hope.

Legal questions that arise include: 1) Given the legal cloud on the ability of President Arroyo to appoint during the transition period, will the JBC under the leadership of Chief Justice Puno submit the list before he retires?; 2) If Chief Justice Puno does not convene the JBC, can a majority of its members do so? 3) If the JBC refuses to convene, can the Supreme Court En Banc compel it to convene and to submit a list since the JBC is under its supervision?

Of course, this issue will become moot and academic if the grandchildren of Chief Justice Puno are able to convince him to step down earlier.

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This week’s four centavos go to the Parish Pastoral Council for Responsible Voting (PPCRV) and National Movement for Free Elections (NAMFREL) which are both led by Ambassador Tita De Villa for sponsoring the Talakayan sa Plaza Miranda last July 16. Notwithstanding the pouring rain, six presidentiables showed up — former President Joseph Estrada, Senators Francis Escudero, Richard Gordon, Loren Legarda, Mar Roxas and Governor Ed Panlilio — to sell their vision of leadership to a multisectoral group composed of, among others, farmers, fisher folk, informal settlers and the differently abled. What made the forum different was the venue. It was held in the mother of all Philippine public forums — Plaza Miranda — the melting pot of the country where politicians are traditionally made to account for their actions. These activities need to be replicated if we wish to increase the ‘informed” votes in the country and consequently, strengthen our democratic institutions.

Speaking of Ambassador De Villa, she was tasked by the Papal Nuncio to deliver Pope Benedict’s message to President Cory. At a Mass held at her bedside last Wednesday, De Villa observed: “It was such a privilege sharing the Eucharist in her presence. Even in her sick bed looking so incredibly weak, she exuded an aura of a peaceful yet powerful presence — the presence of the simplicity of absolute goodness.”

De Villa continued: “It is a singular grace from God that at one beautiful shining moment He gave us a leader who saw the truth, spoke the truth and lived the truth… all because He gave her the unshakable faith that if God is with us who can be against us?” AMEN!

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