By MARY ANN ‘MANJA’ BAYANG
www.nordis.net

Constitutional prohibition and existing jurisprudence
Article VII, Executive Department
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 coming presidential elections shall be held on May 10, 2010. The start of the two-month period immediately before said elections is on March 11, 2010. Thus, the period on prohibition of appointments starts on March 11, 2010 until June 30, 2010, the date the term of the President shall end.

Article VIII, Judicial Department
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.

Chief Justice Reynato S. Puno shall retire on May 17, 2010. The ninety (90) days period shall start on May 18, 2010 and the last day is on August 15, 2010.
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. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

The Court’s View
The Court’s view is that during the period stated in Section 15. Article VII of the Constitution “(t)wo months immediatey before the next presidential elections and up to the end his term” the President is neither required to make appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Section 15 of Article VII. It is not noteworthy that the prohibition on appointments comes into effect only once every six years.

That instruction that any “vacany shall be filled within ninety days” contrasts with the prohibition Section 15, Article VII, in stronger negative language that “a President or Acting President shall not make appointments. . .”
The Commission later approved a proposal of Commissioner Hilario G. Davide, Jr.. His purpose was to provide a “uniform rule” for lower courts. The 90-day period should be counted from submission of the list of nominees to the President. Should the President reject the list submitted, the JBC would need time to submit a new one.

Analysis of Provisions
It appears that Section 15, Article VI is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared elections offenses in the Omnibus Election Code. Sec. 261. Prohibited Acts. election offense: Vote-buying and vote-selling.
The second type of appointments prohibited by Section 15, Article VII consist of the so-called “midnight” appointments.

Instances may be conceived of the imperative need for an appointment, during the period of the ban, not only in the executive but also in the Supreme Court. This may be the case should the membership of the Court be so reduced that it will have no quorum, or should the voting on a particularly important question requiring expeditious resolution be evenly divided. Such a case, however, is covered by neither Section 15 of Article VII nor Sections 4 (1) and 9 of Article VIII.

SC internal rules
There have been several instances in the past where, the Chief Justice post is vacated, the most senior Associate Justice acts as the Chief Justice until a new Chief Justice has been validly appointed. It is submitted that the most senior Associated Justice be appointed as the acting Chief Justice by the members of the Court.

Thus, as long as a quorum exists whenever the Court en banc meets, the absence of a new Chief Justice does not really affect the performance of its constitutional duty. At present, the fifteen (15) seats in the Court are occupied, and only a seat shall be vacated on May 17, 2010 – the Chief Justice post. Thus, fourteen (14) Associate Justices shall still remain, and they can perform their duty without any problem in any way.

Political
The real issue is not about the vacancy in the Chief Justice post, by the retirement of Chief Justice Puno, because it poses no problem in the Court’s performance of its constitutional duty.

The real issue is the rush of JBC members – DOJ Secretary Agnes Devanadera and Rep. Matias Defensor – for the JBC to immediately convene and deliberate on the list of nominees for the Chief Justice post in order for President Gloria Macapagal-Arroyo to make the appointment before her term of office ends.
Corollary to this is the apparent acquiescence of Malacañang to this move by said two JBC members. Malacañang has never repudiated such move to date nor issued any statement that the President won’t appoint the next Chief Justice.

All these things are clearly suspect and full of political underpinnings. Why does President Arroyo appear to be determined to appoint the next Chief Justice? Who will benefit from such appointment?

If President Arroyo would be the one to appoint the next Chief Justice, the credibility of the appointed Chief Justice may be put at a great risk since it is certain that plunder and human rights abuses charges will be filed against President Arroyo after her term has already ended. And if said cases will be elevated to the Court, the credibility of the appointed Chief Justice will be questioned. And the country could not afford such a situation in the prosecution of President Arroyo. The Court, especially the Chief Justice, must not be tainted with any suspicion of partiality or bias. And it would be unfair for the Chief Justice appointed to be placed in such a situation.

It is very clear that the apparent move for the JBC to immediately select the nominees from whom President Arroyo shall choose the next Chief Justice is for her to have a leverage and a bargaining power in the Court after her terms ends. If she makes the appointment of the next Chief Justice, all members of the Court will have been her appointees. And that is a huge leverage and bargaining power for political maneuvers and power play, a reality that history does not deny. # nordis.net