A brouhaha was raised by Congressman Mathias Defensor’s proposal as the representative of the House of Representatives in the Judicial Bar Council (JBC). He proposed that the JBC make an advanced nomination for the position of the Chief Justice of the Supreme Court, before it is vacated by a retiring Chief Justice Reynato Puno on May 17, 2010.
This is supposed to pave the way for President Gloria Macapagal-Arroyo to immediately appoint CJ Puno’s successor in order to avoid creating a vacuum in the Supreme Court going into the transition to the next President.
Of course, it ran straight into a maelstrom of constitutional, legal and political flak–not the least because of the proximity of the May 2010 elections and the assumption into office of a new president on June 30, 2010.
The most obvious constitutional obstacle is Article VII, Section 15: “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.“
The other relevant provisions are the following:
Article VIII, Section 9. “The Members of the Supreme Court and judges of the lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.“
Article VIII, Section 4 (1).” The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.”
Taken in context, Congressman Defensor’s proposal is a politically-laden proposal and basically undercuts the new president’s prerogative to appoint the next SC chief justice. It tries to go around the blunt constitutional ban on midnight presidential appointments. In effect, it forms part and parcel of the GMA plan for post-term political survival.
It is no wonder that presidential candidates took a dim view of the proposal, particularly the frontrunner, Sen. Noynoy Aquino, who posited the strongest stand against it.
The constitution disallows the current president from making the appointment but allows the new president to appoint based on the recommendation of the JBC. The 90-day period for a presidential appointment of the chief justice covers the period up to August 15, 2010.
It is also to be noted that the Supreme Court is a collegial body and usually it appoints an acting chief justice if there is none. It is business as usual in the Supreme Court, with or without the Chief Justice.
It means there is no crisis scenario when Chief Justice Puno retires on May 17, 2010. The crisis is in Congressman Defensor’s imagination–and the real crisis is the current president’s own trek to the political shadows. Midnight–to the good congressman–comes at twilight.