12 senators, ex-justices say no to Arroyo naming CJ

February 3, 2010

Michael Lim Ubac and Philip Tubeza
Philippine Daily Inquirer
February 3, 2010

MANILA, Philippines—Jumping the gun on President Gloria Macapagal-Arroyo, 12 senators led by principal author Francis Pangilinan Tuesday filed a resolution expressing the sense of the Senate that Malacañang should not make midnight appointments in the judiciary as mandated by the Constitution.

Senate Resolution No. 1550 states that Ms Arroyo is not authorized to name the new Chief Justice from March 20 until she steps down on June 30.

Two retired Supreme Court justices took the same position.

In a statement, titled “Defending the Last Bastion of Democracy,” Angelina Sandoval Gutierrez and Ma. Alicia Austria-Martinez urged Ms Arroyo to respect the Constitution and leave it to the next President to appoint Chief Justice Reynato Puno’s replacement.

Gutierrez and Austria-Martinez said that should the Judicial and Bar Council (JBC) submit a short list of nominees, it would constitute “direct complicity in the desecration of the fundamental law.”

“We cannot simply sit idly and witness an obvious illegal attempt to appoint a new Chief Justice during the constitutional ban on appointments under Section 15, Article VII of the Constitution,” they said in the statement that was distributed Tuesday by organizers of a forum of the Integrated Bar of the Philippines (IBP).

“Both the letter and spirit of this provision are clear and unambiguous. This constitutional prohibition does not need any interpretation. And any interpretation that seeks to emasculate the ban should be forthwith resisted as it would allow the outgoing President to perpetuate herself in power,” the two retired Supreme Court justices added.

Malacañang claims that Ms Arroyo can appoint the successor to Puno, who will retire on May 17.

Legal experts divided

Under the Constitution, the period for filling a vacancy in the Supreme Court lasts until Aug. 17.

The senators filed the resolution as legal experts were divided over whether Ms Arroyo can appoint Puno’s successor during an election period.

The resolution recognizes that the new President—who will take his oath on June 30—still has 45 days to make the appointment, in effect, contradicting Malacañang’s position that such power and prerogative still belongs to the outgoing President.

The resolution was signed by Senators Pangilinan, Edgardo Angara, Benigno “Noynoy” Aquino III, Rodolfo Biazon, Alan Peter Cayetano, Pia Cayetano, Jinggoy Estrada, Gregorio Honasan, Jamby Madrigal, Aquilino Pimentel Jr., Manuel “Mar” Roxas II, and Antonio Trillanes IV.

The vacancy has yet to occur after the May 10 elections, according to the resolution. Puno is set to retire on May 17.

The resolution said the ban on midnight appointments during the election period was “absolute, except temporary executive appointments when public service calls for it.”

“The President is prohibited to appoint an official to any post within 60 days before Election Day, except temporary appointments in the executive branch. Any midnight appointment made by the incumbent President of the Philippines is prohibited, starting from March 20, 2010, to June 30, 2010,” the resolution said.

Next President

The resolution said the power to appoint the new Chief Justice of the Supreme Court should be left to the next President.

Pangilinan, a former member of the JBC, said that under Section 15, Article 7 of the Constitution, the President was neither required to make appointments to the courts, nor allowed to do so.

“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,” says the section.

Contrary view

But Justice Secretary Agnes Devanadera and Quezon City Rep. Matias Defensor, allies of Ms Arroyo who sit on the JBC, believe that the constitutional prohibition on midnight appointments does not cover appointments to the post of the Chief Justice.

Pangilinan also quoted Sections 4 (1) and 9 of Article 8 of the Constitution which, he said, simply meant that the President was required to fill vacancies within time frames provided therein unless prohibited by Section 15, Article 7. “These prohibitions come into effect only once every six years,” he said.

Section 4 (1) says that “The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices … Any vacancy shall be filled within ninety days from the occurrence thereof.”

Section 9 gives the JBC the power to screen and recommend nominees for vacancies in the judiciary.

Submit list

Besides Devanadera and Defensor, others who sit on the JBC are Puno as chair, Sen. Francis Escudero as ex officio member, Regino Hermosisima Jr. as retired Supreme Court justice representative, Dean Amado Dimayuga as representative of the academe and Conrado Castro as representative of the IBP.

On Sunday, Malacañang said the JBC should submit to Ms Arroyo the list of nominees for the next Chief Justice.

Gary Olivar, deputy presidential spokesperson, earlier said that Ms Arroyo would eventually have to decide on the matter based on “national interest.”

Asia Pacific Bar Association

Puno has referred to the JBC for appropriate action a letter from the Asia Pacific Bar Association headed by Rafael Lucila calling on the council to initiate the constitutional process of “filling in the vacancy in the position of the Chief Justice.”

“Should it [JBC] entertain any doubt on its competence to do so, it should at least raise the issue before the Supreme Court pursuant to Section 8(5), Article 8 of the Constitution and given that the recommendations of the Supreme Court must be given due weight and regard under its own Rules (Rule 8, Section 1),” Puno wrote in his endorsement.

Appeal to Corona

To avert a brewing constitutional crisis, Associate Justice Renato Corona was urged Tuesday to “exercise judicial statesmanship” and decline any appointment by Ms Arroyo to the post of Chief Justice.

Former Senate President Franklin Drilon Tuesday said at a forum that Corona, who is believed to be Ms Arroyo’s favorite to replace Puno, should refuse any such appointment because it would violate the constitutional ban on midnight appointments.

Drilon asked Corona to exercise judicial statesmanship by taking the position that Justice Antonio Carpio and Justice Conchita Carpio Morales had taken.

“And that is they are accepting the nomination only if the list is submitted to the next President,” he said at an IBP forum at the Marriot Hotel.

Most senior


Carpio is the most senior among the associate justices in the high court and would be in line to succeed Puno when the latter retires if seniority were the only consideration. The most senior justice is traditionally appointed Chief Justice.

Drilon also urged members of the JBC to “exercise judicial restraint” and not succumb to the “orchestrated pressure tactics” allegedly exerted by Malacañang for it to submit a list of names of Puno’s possible successor.

He said a “bastard appointment” by Ms Arroyo would “spell disaster for the Supreme Court and the entire judiciary.”

“With a single act of selflessness, Justice Renato Corona can put an end to this dangerous and inglorious hullabaloo facing the Supreme Court today,” Drilon added.

Marvic Leonen, dean of the University of the Philippines College of Law, pointed out that the Supreme Court had clearly ruled in 1998 that an outgoing President could not make appointments to the judiciary once the constitutional ban on midnight appointments takes effect two months before the elections.



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