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How Supreme Is The Court?

March 17, 2010

This is how things stood before today’s Supreme Court ruling that outgoing President Arroyo can appoint a Chief Justice- In- Waiting:

1. 15 Article VII of the 1987 Constitution still prohibits the incumbent president from making appointments two months before an election and until his or term expires.
2. this year, the election ban started on March 10 and will last until the end of President Arroyo’s term on June 30.
3. Put in simpler words, Under the 1987 Constitution, an outgoing president is barred from making appointments two months before an election and until the end of his or her term.
4. In the case of Mrs. Arroyo, she cannot issue midnight appointments from March 10 to June 30.

Ponder, too, these antecedents:

During the time of Prresident Fidel V. Ramos the justices disallowed FVR from making appointments during an election period.

Former Constitutional Commission member and Ateneo de Manila Law Scool dean emeritus Father Joaquin Bernas had said that even without a formal petition filed before it, the Supreme Court (SC) on its own could put an end to the raging controversy surrounding President Gloria Macapagal Arroyo’s possible naming of a chief justice during the period covered by the election appointment ban.

Bernas told a forum organized by the watchdog group Supreme Court     Appointments Watch (SCAW) that the SC, motu propio or on its own accord, could rule on the constitutionality of Arroyo’s selection of a replacement for Chief Justice (CJ) Reynato Puno.

CJ, the only remaining non-Arroyo appointee in the Court, prudently chose not to participste in the deliberations today as he is also chair of the Judicial and Bar Council.

If Arroyo forces the issue and appoints the next chief justice, he said the SC could strike it down without waiting for a party to lodge a petition.

Father Bernas cited the case involving the disputed appointments of judges Mateo Valenzuela and Placido Vallarta to the Regional Trial Court (RTC) in May 1998.

He stressed how the SC en banc went ahead on its own and invalidated the judges’ appointments since these were well within the period covered by the election appointment ban.

In the event the JBC does not submit a list and President Arroyo appoints a chief justice during the period of the appointment ban, Bernas said  this would trigger a constitutional crisis as this would be a blatant violation of the Constitution.

The High Court said:

The appointment of the next Chief Justice by the incumbent President is preferable to having the Associate Justice who is first in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are popularly elected, and whoever are elected and proclaimed at once become the leaders of their respective Departments. However, the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President.

Here’s what several key senators are saying:

Senator Aquilino Pimentel Jr.:

It’s a big blow s rule of law. The decision is another blight in the armor of the SC [Supreme Court] as an institution.

Senator Mar Roxas:

It scares many of our people that even on a very crucial issue of constitutionality and decency in government, the Justices of our Supreme Court would bow to the mighty powers of this President, who has bent the rules and even our Constitution to suit her whims. It sends a chill into our people’s hearts that a scenario of a failure of election could really happen, especially now with automation of the elections under question by many sectors and experts.

We must rely on our faith in the principles and processes that give democracy its lifeblood. We shall appeal this decision. We shall fight, within the bounds of decency — bounds that the current administration seems to care little for — so the people’s will prevails.

The prohibition imposed on an outgoing president to name the head of constitutional bodies, especially a body as sensitive as the Supreme Court was also put in place to guard against the kind of abuse being exhibited now.

Sen. Francis Escudero:

I will block any effort to compel the JBC to submit to the President a shortlist of candidates to the top SC post without a final ruling from the high tribunal. As a lawyer, I have my own interpretation of the law, but this decision is really a big disappointment because the law clearly states that the incumbent cannot appoint anyone within the period of the constitutional ban. However, this is not that first time that I have been disappointed by the decision of the court.
With this development, Justices Renato Corona and Conchita Carpio-Morales (who have stated that they would not accept the position if the appointment will be made by President Arroyo) might have to clarify their statements and inform the JBC if they still would want their names to be included in the list of nominees. The ball is in their Court. We have to find out from them, are they still applying for the decision of Chief Justice or not? If the two decide to withdraw their names from the list, the next issue would be whether or not there would be enough nominees for the post – a minimum of three for the JBC to choose from and submit to the

Sen. Benigno Aquino III:

The ruling effectively reversed a 1998 SC decision prohibiting an outgoing president from appointing members of the judiciary two months before the end of his or her term. Is this because the SC is now packed with Arroyo appointees?
The Court, then led by Chief Justice Andres Narvasa, ruled that an outgoing president “is neither required to make appointments to the courts nor allowed to do so. The Narvasa decision states that Article VIII Sections 4(1) of the Constitution “simply means the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited.

Sen. Richard Gordon:

With the SC ruling, the constitutional highway ahead of us will all be defined by a Gloria court.

Anticipating the decision, Father Joaquin Bernas opined that  the worst-case scenario is widespread protest in response to Arroyo’s midnight appointment. He even hinted that he himself would join the protest.

The constitutionalist went on to warn that a justice who accepts an appointment under these circumstances would be an “accessory to the crime” since the appointment would constitute a “culpable violation of the Constitution,” and this means the new chief justice may be impeached.

But Bernas said it is possible to implement the two contradictory provisions in the Constitution on the election appointment ban and the need to fill the vacancy in the Supreme Court within 90 days from time CJ Puno retires on May 17.

The solution is to prevent President Arroyo from naming the next chief justice and to just let the next president make the appointment.

He noted that the next chief executive would still have 45 days left or until August 15 to choose the next chief justice from the time he or she assumes office on June 30, 2010.

Seems quite reasonable and easy to do, right?

But not if you consider how the emerging mindset of Arroyo is, as mirrored from her lapdogs:

1. She will do what is expedient.

2. Gloria Macapagal Arroyo will name a CJ In Waiting even though the results of the elections are expected a couple of days after May 10, 3. She will ignore that fact that the Philippines would already have a President-elect!!!

The ignoble premise ?

That she cannot ‘neglect’ her sworn duty not to leave a vacancy in the Supreme Court unfilled.

Hogwash many would say.

But for someone facing the likelihood of criminal charges after June 30,

GMA will play her trump card and make sure that the highest court of the land is populated by her appointees.

So there.


Minutes ago former ConCom member and former COMELEC Chair ChristianMonsod told DZMM radio:

I never imagined I would witness this in my lifetime – the repeat of what happened during the Marcos years – a Supreme Court consisting of appointees of a sitting President. This is no longer the Supreme Court envisioned by the Constitution. What we have now is an Arroyo Court.

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