‘Don’t appoint next S.C. chief’

January 12, 2010

J. San Juan, S. Fabuan, B. Fernandez and M. Gonzalez
Business Mirror
January 11, 2010


COMMISSION on Elections (Comelec) Chairman Jose Melo on Monday joined increasing calls for President Arroyo to simply allow her successor to name the next chief justice. On the same day, separate but similar calls were sounded by Sens. Miriam Santiago, Francis Escudero and Francis Pangilinan.

In an interview, the poll chief said the incoming president should just be the one to appoint the replacement of outgoing Supreme Court (SC) Chief Justice Reynato Puno, citing both logical and legal reasons.

Meanwhile, the Judicial and Bar Council (JBC) has taken cognizance of the proposal of Quezon City Rep. Matias Defensor for it to start the screening and selection process for the replacement of Chief Justice Puno who is set to retire from the Judiciary on May 17.

At a press conference, SC spokesman Jose Midas Marquez said the eight-man JBC council has started the discussions on Defensor’s proposal for the JBC to allow President Arroyo to appoint a Chief Justice in-waiting before the two-month constitutional ban on appointments under Article VII Section 15 takes effect.

Article VII Section 15 of the Constitution states that “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 wherein vacancies affect public service or endanger public safety.”

Defensor noted that from the time of retirement of Chief Justice Claudio Teehankee, the first Chief Justice under the 1987 Constitution, to the appointment of Puno, the post of Chief Justice has never been vacant, not even for a day.

The solon added that the Chief Justice post should not be left vacant since he also heads the Presidential Electoral Tribunal, chairs the JBC, and is the fifth in order of succession.

Midas, however, said the JBC deferred to make any definite response to Defensor’s proposal until it gathers all the necessary records pertaining to appointments of previous chief justices.

“They started the discussions already and the decision is to defer discussion because they wanted to find out the details on the previous appointments…I’m sure aside from the dates that they want, they would also review jurisprudence,” Marquez said.

“Let’s wait for the JBC, let’s not preempt the JBC,” he added.

Marquez also dismissed concerns that the issue of whether the President can still appoint a new chief justice before she steps down from office would result in a constitutional crisis.

“I don’t think so, I don’t want to speculate it’s too early, let the process proceed,” he said.

Marquez added that the JBC would also determine whether Article VII Section 15 covers appointments to executive posts only and not to the judiciary.

The JBC is a constitutionally created body which receives and screens nominations for all judicial posts, as well as nominations for Ombudsman and Deputy Ombudsman.

Puno is the ex-officio chairman, while ex-officio JBC members are Acting Department of Justice (DOJ) Secretary Agnes VST Devanadera, Senator Francis Joseph G. Escudero, and Rep. Matias V. Defensor  Jr., while the regular JBC members are retired SC Justice Regino C. Hermosisima, Dean Amado L. Dimayuga Jr., Atty. J Conrado P. Castro, and retired CA Justice Aurora S. Lagman.

SC Appointments Watch

The Supreme Court Appointments Watch contradicted Defensor’s position, saying that there have been numerous instance in the SC’s history when it has been without a Chief Justice.

SCAW said when Chief Justice Marcelo Fernan resigned to run for President, then Associate Justice Andres Narvasa became the acting Chief Justice, until the JBC sent its list to President Estrada who then appointed the latter as Chief Justice.

“We strongly urge the Judicial and Bar Council once again to exercise its independence and resist efforts to allow President Arroyo to violate the presidential appointment ban,” the SCAW said.

In adding his voice to those cautioning the Palace against appointing Puno’s successor, Comelec chief Melo told reporters, “In my own view, it should be the next president [who will name the next SC chief]… it would look like a midnight appointment if it’s not the next president who will appoint.”

Asked whether the law still allows President Arroyo to appoint Puno’s successor within the election period, he replied negatively.“I doubt that because we have a prohibition,” he said, apparently referring to Section 261 of the Omnibus Election Code.

On Monday, reports came out that moves are already under way for Arroyo to name a successor to Puno despite a constitutional prohibition on appointments from two months before the elections until June 30.

In a letter dated December 22, JBC member Rep. Matias Defensor asked the council to meet and immediately come up with the names of at least three nominees to Puno’s post.

Puno will not reach the mandatory retirement age of 70 until May 17, or one week after the national elections.

The law states that the JBC is the only one who can make the recommendations for the post to the President, who in turn has 90 days to fill the vacancy.

Sen. Miriam Santiago insists there is “no urgency” in naming a replacement for Chief Justice Reynato Puno, whose term expires May 17.

Santiago suggested the JBC simply need not issue a list of nominees for the next SC chief, and that will end the controversy sparked by a controversial proposal made by President Arroyo’s allies for her to decide Puno’s replacement this early.

“There is no urgency that involves [national security] because CJ Puno goes out on May 17,” she said, adding that President Arroyo, who is empowered to name the next Chief Justice, will step down on June 30, which means there is enough time to address the issue.

Sen. Francis “Kiko” Pangilinan urged Malacañang on Monday to spare the Judiciary from scandals as “an appointment of doubtful legality will harm the image and reputation of the Supreme Court.”

“We call on the Arroyo administration to shield the Supreme Court from scandal and controversy by not appointing the next Chief of Justice. It will be a black eye for the Supreme Court if the appointment of the next Chief Justice is shrouded with questions of legality and constitutionality. A questionable appointment of no less than the Chief Justice will adversely affect the image and reputation of the court and harm its credibility. We urge PGMA to steer clear of this controversial path by allowing the next President to appoint a new CJ when CJ Puno retires in May.”

‘Don’t submit shortlist’

Pangilinan also urged the JBC not to submit a shortlist to Malacañang.

“In order to prevent Malacanang from making a midnight appointment for the post, all the JBC has to do is refuse to submit a shortlist. By doing this, Malacañang has no basis to issue an appointment, as a shortlist prepared by the JBC is a constitutional requirement for a valid appointment to the Judiciary. The JBC should refuse to be made a tool for the violation of the constitutional ban on midnight appointments spelled out in Section 15, Article 7 of the Constitution.”

At the same time, opposition Sen. Francis Escudero cautioned that “political considerations” should not be taken into account by the JBC in deciding the issue.

“Our decision should have nothing to do with President Arroyo or any other political consideration,” said Escudero, a JBC member. “My decision will be based on what is constitutional, legal and fair. I would like to believe that the other members of the JBC would also decide along these lines.”

Escudero recalled the JBC had earlier decided to defer discussions on whether Mrs. Arroyo can still appoint the new Chief Justice during the last three months of her term.

He noted that while the Constitution bars the President from making any appointments 60 days before a presidential election, it also provides that any vacancy in the Supreme Court “should be filled within 90 days of the occurrence.”

Only non-GMA appointee

Puno was appointed to the High Court by President Fidel Ramos in 1993; he retires 45 days before Mrs. Arroyo steps down from the presidency. He is the only member of the 15-member Supreme Court who is not an appointee of President Arroyo.

In a separate statement, former Sen. Frank Drilon chided Mrs. Arroyo’s allies for “deliberately misinterpreting the Constitution” in insisting the President can appoint a new Chief Justice even before Puno retires.

“They will be violating the Constitution and the laws,” said Drilon, disputing claims by Cabinet Secretary Silvestre Bello and Quezon City Rep. Matias Defensor, a member of the JBC, that the president can appoint a “chief justice-in-waiting.”

Drilon insisted that Mrs. Arroyo can no longer appoint a new Chief Justice to replace Puno, whose retirement date falls within the election period when midnight appointments, both in the executive department and the Judiciary, are prohibited.

Palace awaits JBC recommendation

Malacañang, meanwhile, said it will await the JBC recommendation on the appointment of Puno’s successor.

Deputy Presidential Spokesperson Gary Olivar said in a news briefing that President Arroyo will be guided by the national interest in addressing the issue.

“What is incumbent upon us is to wait for the JBC OK to take the action that it deems appropriate to take with respect to this particular issue given the issues that has been raised about the conflict in timing, prohibitions. So we’re waiting for JBC to send over its recommendations,” Olivar said.

He said Malacañang is appealing to the JBC to “keep the discussion confined to the legalities and the public policy issues at stake and refrain from getting dragged into the usual, you know, political agenda.”

When asked, Olivar said that fears that Mrs. Arroyo would appoint a Chief Justice to protect herself once she faces various charges when she steps down on June 30 “also reflects on the Supreme Court.”

“What do these kind of statements say about…the way the Supreme Court has been doing its job the last several years?” he said.

Olivar also stressed that “the President will do what is required of her not only by law but by the overriding national interest.”

Right now, he added, “it’s clear that it is in the national interest not to have such an important position vacated for such a long period of time. . . .That’s almost two months. It seems to me that acting in the national interest would require that she make the proper action as far as recommending the next Chief Justice,” he said.


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