Haste makes waste, not wisdom

Section 15, Article VII of the 1987 Constitution isn’t vague that breeds varying interpretations: “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” (italics supplied).

And yet, among the legal circle, including various IBP chapters, few Supreme Court retirees, the courts, media opinion makers, and ordinary citizens are in the thick of this and that of the issue.

Advocates that Pres. Gloria Arroyo can fill up the vacancy upon retirement of Chief Justice Reynato Puno on May 17, 2010 argue, inter alia: 1) that the ban doesn’t bar GMA to avoid prejudice to the workings of government, implying that Section 15 is directory; 2) that the ban isn’t violated if GMA appoints the prospective CJ before the 2-month period prior to the May 10 elections; 3) that the law abhors any “hiatus” in public service, if the CJ position is vacant, thereby leaving the SC “headless”; 4) that if GMA does not appoint any incoming CJ, the President-elect can not qualify for office if he takes his oath not before the CJ.

The opposition counters: 1) that the ban is a command for negative obedience – enjoining an act from taking place – and mandatory per statutory construction; 2) that any untimely appointment of a CJ is proscribed, as there is no vacancy as yet; 3) that whether the Supreme Court sits en banc, or divisions of 3, or 5, or 7, it decides cases and legal issues as a collegial body; thus, the CJ vacancy is not a “hiatus”, or the Court “headless”, and, the SC members may choose inter alios the interim OIC, for administrative functions, or any other non-judicial issues not delegated to its Court Administrator; 4) that there is no legal fiat that the President-elect takes his oath before the CJ; such traditional formality is a ceremonial protocol which may take place before any other officer to administer oath; or if there be that fiat, the President-elect may take his oath before the SC en banc.

Let it be stressed that as of now, in the absence of any legal precedent, none of the conflicting schools of thought can assert to be legally or absolutely right, and the other as wrong.

Rep. Matias Defensor of the Judicial and Bar Council, had first brought up the issue of skirting Section 15, but has now relented by urging the JBC to start the process of nomination … The normal policy of the JBC is to declare first any judicial vacancy as open for nomination. Isn’t this nomination process to move even if there is no vacancy yet of the CJ position a case of the cart before the horse? Take note of the necessity of actual vacancy, as cited in Section 4(1), Art. VII, supra: “Any vacancy shall be filled within 90 days from the occurrence thereof”.

Meantime, a presidential bet played safe in saying that he prefers what is best for the people. Frankly, a terse “No comment” would have been a wiser escape, instead of a reaction neither here nor there. Another bet said that a precipitate naming of the CJ with no vacancy, violates the ban and he would not recognize him. He was pilloried as “ignorant” for opining that the President-elect has to appoint the new CJ within 90 days after Puno’s retirement.

What substantive harm is there to defer the filling up by the President-elect? When GMA’s term ends at noon June 30, ipso facto the President-elect starts therefrom. Note that May 17, 2010 occurs after the May 10, 2010 election when GMA’s successor shall have already been elected. While to the victor belongs the spoils as enunciated by the Jacksonian principle, isn’t it anomalous if GMA as theoretically a “lameduck” president now, would still exercise “midnight” appointing power in expressed violation of the Constitution, instead of the victorious President-elect doing the honors?

On the remote exigencies of failure to elect a President and a Vice-President, and either or both the Senate President and the Speaker could not qualify, that’s another matter for discussion inre the Escudero bill.