Can GMA appoint a Chief Justice-in-waiting?

Quezon City Rep. Matias Defensor who sits in the Judicial and Bar Council representing the House of Representatives as ex-officio member stirred a hornet’s nest when he asked the Council “to commence the procedure in nominating the applicants and immediately submit to the President the list of at least three (3) nominees for the position of Chief Justice” which Chief Justice Reynato S. Puno will vacate on May 17, 2010 upon reaching the retirement age of seventy.

Defensor justifies his move with the following reasons: 1) a vacancy of even a single day in the position of Chief Justice should be avoided because there never was a vacuum, not for a day in the position of Chief Justice; 2) when the terms of office of the incumbent officials expire on June 30 this year, their replacements should have already been chosen and their offices shall not be left vacant even for a minute; 3) at all times there should be a functioning Supreme Court composed of a Chief Justice and fourteen Associate Justices; 4) since there is but a single Chief Justice without whom the Supreme Court as contemplated by the Constitution cannot exist, the filling of the position is paramount; and 5) the filling up of the vacancy in said office either by substitution or by temporary appointment is not sanctioned by the Constitution.

The Philippine Bar Association headed by former Ombudsman Simeon V. Marcelo has rebutted Defensor’s reasons for urging the nomination by the JBC and the appointment by the President of a successor to Chief Justice Puno even before his term ends on May 17 – four months from now.

In his letter dated January 11, 2010 to the JBC, PBA president Marcelo opposed the Defensor move for the following reasons: 1) an appointment to a position which is not vacant is unconstitutional; 2) the “Election Ban Rule” under the Constitution prohibits the President from making an appointment, two months before the next presidential elections and until the end of her term, except temporary appointments to executive positions; 3) there is a Supreme Court precedent against the Defensor move consisting of a 1998 decision voiding two RTC appointments extended during the election ban of President Fidel V. Ramos; 4) it is not true that the position of Chief Justice was never vacant because several Chief Justices like Cesar Bengzon, Querube Macalintal and Enrique Fernando served as acting Chief Justices prior to their appointment by Presidents Carlos Garcia and Ferdinand Marcos as Chief Justice; and 5) there is a law providing that in case of vacancy in the office of Chief Justice the powers and duties of his office shall devolve upon the senior associate justice.

Even to non-lawyers like me, the Marcelo opposition to the Defensor move appears more well-grounded and compelling than the reasons invoked by the Quezon City solon.

Over the past few days, comments and opinions have been aired over the controversy. Senate President Juan Ponce Enrile said GMA can bypass the JBC in appointing a Chief Justice to succeed Puno. Cabinet Secretary Silvestre Bello, a former JBC ex-officio member when he was DOJ Secretary disagrees with Enrile’s opinion. Bello said all judicial appointments made by the President must be drawn from the JBC list transmitted to Malacañang. Bench and Bar sources say Bello is right.

The controversy has already spilled into the political arena. Leading LP presidential candidate Noynoy Aquino has issued a strong statement that if elected president, he will not recognize a new Chief Justice appointed by GMA, even warning any SC member who accepts such an appointment that said associate justice will endanger his position in the court. Malacañang wants Aquino to apologize to the Supreme Court for his statement. Whether or not the Aquino statement is intemperate and disrespectful to the court is beside the point. At least, he has made a stand on this controversy.

In fact, Aquino’s statement may have placed his rivals, especially Manny Villar, Number One Bar topnotcher and Harvard graduate Gilberto Teodoro and lawyer Richard Gordon on the spot. Former DENR Secretary Fulgencio Factoran said: “I think it behooves the other candidates for president to weigh in on this issue, so that the people will realize who are willing to play possum in this deadly game of political gotcha.” I think commenting respectfully on a vital constitutional issue (which is not sub-judice) is a civic duty.

Three retired Supreme Court justices – Chief Justice Artemio V. Panganiban, Justice Vicente V. Mendoza, an eminent constitutional law professor, and Justice Jose Melo, now Comelec Chairman whose office will oversee the enforcement of the “Election Ban Rule”, have all expressed their stand against the appointment of Chief Justice Puno’s successor by President GMA.

There are 46,000 lawyers, about 2,000 members of the judiciary, law professors and retired magistrates in our country. These men of law belong to several associations or groups like the Integrated Bar of the Philippines, Association of Law Schools, Philippine Judges Association, Philippine Trial Lawyer Association, and other clubs. Whatever is their stand on this controversy, they should speak out publicly.

I am not prepared to accept that Pakistani lawyers who stood up for the Rule of Law when their president ousted their Chief Justice — know more law and are more courageous than our lawyers. The famous Italian philosopher Dante Alighieri said in his masterpiece “The Divine Comedy: “The hottest places in hell are reserved for those who, in a time of great moral crisis, maintain their neutrality.”

But over and above everything, I shudder to contemplate over the terrible cost to the Supreme Court and the country if this menacing controversy is not judiciously resolved. The May 10 polls, over whose supervision by the Comelec many are cynical, may bring about serious problems that our Supreme Court would have to credibly decide. If the High Court’s already impaired credibility is further eroded, any decision related to the elections or on an issue pertaining to presidential succession it will render, may not be respected and accepted by a majority of the people. When civil unrest grips the country, it is the Supreme Court that, by its credibility, will hold the country together – not the military by force of arms.