Sen. Francis Escudero, the Senate representative to the JBC, said the body should set aside politics in its deliberation on the issue.

“Our decision should have nothing to do with President Arroyo or any other political consideration,” Escudero said after attending a meeting of the JBC.

“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,” he said.

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

Puno, who was appointed by President Fidel Ramos in 1993 to the High Tribunal, retires on May 17 or 45 days before Mrs. Arroyo steps down from the presidency. He is the only member of the 15-member SC who is not an appointee of Mrs. Arroyo.

Sen. Francis Pangilinan, for his part, urged Malacañang to spare the judiciary from scandals, saying “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 justice,” he said.

“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,” Pangilinan said.

“We urge President Arroyo to steer clear of this controversial path by allowing the next president to appoint a new chief justice when Chief Justice Puno retires in May,” he added.

Pangilinan also called on the JBC not to submit a shortlist to Malacañang before the end of Mrs. Arroyo’s term.

“In order to prevent Malacañang from making a midnight appointment for the post, all the JBC has to do is refuse to submit a shortlist,” he pointed out.

“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,” Pangilinan said.

“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,” he stressed.

Members of the JBC met yesterday to tackle the proposal of one of them, Quezon City Rep. Matias Defensor, to expedite the nomination process for Puno’s successor.

SC spokesman Jose Midas Marquez said JBC members failed to resolve the issue due to uncertainties over similar cases in the past.

“They wanted to find out the arrangements and processes in previous appointments of chief justices: when the position was opened, when the shortlist was submitted, and when the chief justices were appointed,” he told reporters at a press conference.

He said the JBC opted to first “go by what is provided by the law and also review history,” admitting that many members of the council were not familiar with relevant dates in the appointments of previous chief justices.

Marquez said that when the proposal of Defensor was raised in the JBC meeting, no one immediately came forward to oppose it.

“The position of the chief justice is very important. The chief justice is chief executive of the judiciary, which plays important roles during elections,” he said.

Marquez said the JBC has proven its independence in the selection of justices to the SC and it should be given the chance to settle the latest issue on its own.

He also stressed that the early retirement of Puno is not an option.

“There is no reason for him (Puno) to do that,” he explained.

The JBC is composed of the Chief Justice as ex-oficio chairman, with Justice Secretary Agnes Devanadera, Escudero, and Defensor as ex-oficio members. Its four regular members are retired SC justice Regino Hermosisima Jr., Dean Amado Dimayuga, Justice Aurora Santiago Lagman, and J. Conrado Castro.

Meanwhile, Defensor claimed that he and other JBC members have agreed to submit to Mrs. Arroyo a list of possible replacements of Puno.

“More or less, the body will submit a list of names to President Arroyo. We all agreed that it’s the present JBC that must make a recommendation to the incumbent President,” Defensor told reporters.

The Quezon City congressman chairs the justice committee of the House of Representatives, which threw out impeachment complaints against Mrs. Arroyo.

“The issue is really debatable. Ultimately, this is a matter of interpretation. Since the question, can the president appoint a Chief Justice? My answer is yes. She can appoint among those remaining justices despite the prohibition,” Enrile told The STAR.

“The appointing power has to exercise her power to protect national interest. If the framers did not dwell (on this), I am sure they intended, they presumed, that we would have a well-constructed and functioning government… not (one in) disarray,” Enrile said.

Enrile argued that Article VII Section 15 of the Constitution referred only to executive posts, not the position of chief justice.

The Senate president was referring to the provision that provides that two months immediately before the next presidential elections and up to the end of his or her term, a president or acting president shall not make any appointments to executive positions except temporary ones when continued vacancies could prejudice or endanger public safety.

“It was pertaining to the executive department, not the judiciary,” Enrile said.

“If there is vacancy, even in the period of prohibition, the president can appoint on that day,” the Senate president said, adding that Mrs. Arroyo can make an appointment even without any recommendation from the JBC.

After Puno’s retirement, he said Mrs. Arroyo may choose from the remaining 14 sitting justices because they have passed the scrutiny of the JBC.

“Under Article 8, members of SC and judges of lower court shall be appointed by the president from a list of three names submitted by the JBC. But this deals not with the chief justice,” Enrile added.

“The president can appoint from 14 (associate justices),” he said.

“The Constitution is silent on who can appoint a Chief Justice. The Supreme Court cannot, the Congress cannot appoint,” he said.

“They cannot appoint a person as an acting chief justice because only the appointing power has the power to appoint a chief justice,” he said in reply to suggestions by some legal experts that SC justices appoint a chief justice.

Last Sunday, Sen. Miriam Defensor-Santiago saw a gray area in the law on the power of the president to appoint a chief justice.

“That’s a gray area on the law. On the one hand, the proponents point out there should be no period that post of Chief Justice is vacant and the other says it is contrary to the Constitution and the Supreme Court decision itself,” Santiago said.