Judicial council ‘must submit list of nominees’

STATE lawyers have asked the Supreme Court (SC) to compel the Judicial and Bar Council (JBC) to submit to President Gloria Macapagal-Arroyo a shortlist of nominees for chief justice post.

In a 41-page comment filed over the weekend, Acting Solicitor General Alberto Agra asked the High Court to dismiss the petition for prohibition filed by lawyer Jaime Soriano and to give due course to the petitions filed by the Philippine Constitution Association and lawyers Arturo De Castro and Estelito Mendoza.

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Agra likewise asked the SC to declare that President Arroyo has the absolute power to appoint the next chief justice upon the retirement of Chief Justice Reynato Puno on May 17, despite the election ban on appointments.

The issue on the appointment of Puno’s successor has triggered legal and political debate as it is the first time under the 1987 Constitution when the retirement of the chief justice falls on a period covered by election ban on appointments.

Agra said the JBC, a constitutional body tasked to screen and nominate applicants to vacant judicial posts, acted within its jurisdiction when it set in motion the process of selecting nominees to be submitted to the President for the position of chief justice upon Puno’s retirement.

The JBC does not have the power to defer submission of its shortlist to the President, he said, adding that the eight-man council is merely performing its principal function as mandated by the Constitution.

“The nature of respondent JBC’s function is executive. The present Constitution has not conferred legislative or judicial powers on it. Accordingly, it is not vested with power to resolve issues. It has no discretion to withhold the list from the President. Nor does it have jurisdiction to determine whether the incumbent President can appoint the next Chief Justice in light of the peculiar circumstances of this case. Such jurisdiction lies in this Honorable Court,” Agra said.

It is also on this premise that the JBC cannot be compelled by the SC to exclude the names of nominees who accepted nominations on certain conditions, the OSG said.

The OSG further argued that the election ban on midnight appointments under Section 15, Article VII of the Constitution does not cover the chief justice post based on “mathematics” and “deliberation of framers of the Charter.”

The appointment ban, which lasts from 109 to 115 days in regular elections, is longer than the 90-day period within which an SC justice must be appointed under Section 4, Article VII.

“If the midnight appointments ban were to be applied to appointments in the Supreme Court, at least 19 occasions may be conceived where the President will never be able to comply with her constitutional duty of filling up a vacancy in the Supreme Court. Surely, the framers of the 1987 Constitution, in deciding these dates and periods, could not have meant or intended to allow such an absurd situation to happen,” he said.

Agra pointed out that the framers of the Charter could have expressly stated that the ban covers appointment in the judiciary, especially since they had included restrictions or limitations on the President’s power to appoint members of the SC to ensure independence from political vicissitudes.

Assuming that the judiciary is covered by the appointment ban during polls, the OSG argued that there are compelling reasons to exempt the chief justice post from the ban.

The OSG noted the expected deluge of cases involving sensitive political issues that may be raised before the SC. He added that the Court acts as the Presidential Electoral Tribunal (PET), which is “sole judge of all contests relating to the election, returns, and qualifications of the President and Vice-President.”

Among those whose nominations have been accepted by the JBC were of Senior Associate Justice Antonio Carpio, Associate Justices Renato Corona, Conchita Carpio-Morales, Arturo Brion, Teresita Leonardo-de Castro and Sandiganbayan Presiding Justice Edilberto Sandoval.

Meanwhile, lawyer Fernando Campos has submitted another letter to the JBC, seeking a formal investigation relative to his complaint for impropriety against Justice Corona.

Campos is a losing litigant who accused Corona of undue haste in dismissing his petition allegedly in exchange for accepting bribe from the other party. The bribe allegedly came in the form of free airline tickets to Las Vegas, allowing Corona to watch on May 3, 2009 the Manny Pacquiao-Ricky Hatton fight.

Corona penned the decision in the case filed by Campos, chairman of the Inter-Petal Recreational Corp., a company whose clientele includes cockfighting aficionados abroad, against the Securities and Exchange Commission, Pagcor and Philweb Corp. in connection with the operation of an online cockfight betting.

In his recent letter to the JBC, Campos said the dismissal of his petition even without the respective comments of respondents SEC, Pagcor and Philweb will show that there is conspiracy to prevent the SC to resolve the issue.

“The above discussions are reasons enough for the Honorable JBC to conduct an investigation which will unearth the true reasons why (the case) was dismissed ‘with undue haste,’” he said.

Campos told the JBC that he is willing and ready to appear at any formal investigation it may conduct relative to his request.

Estrada advises not to appoint CJ

Arroyo also took note of the call of former President Joseph Estrada for her to forego the appointment of the next chief of justice and simply leave it to the next president to decide who would be next head of the SC.

Deputy Presidential Spokesman Gary Olivar said the opinion of Estrada along with other people, regardless if they are allies or administration critics, are being considered by the President.

"The advice of anyone, whoever (it is), it doesn't matter from whom the advice came from, as long as the intentions are good and the advice itself on its face can be of help sa kanyang decision-making especially that president Erap is a former president whose opinions should be considered," he said.

Olivar, however, stressed the appointment of the next chief justice is the sole prerogative of President Arroyo, who would decide at the right time on what to do with the public's interest in mind.

He said that aside from those who want her to defer the appointment to the next president, there are sectors reminding her that she has the prerogative to make an appointment and the responsibility to fill up one of the highest position in the country.

Arroyo on Cabinet officials' resignation

As this developed, President Arroyo has yet to name the possible replacements of Cabinet officials who are expected to step down before the local campaign period starts on March 26.

Olivar said several names are being floated on who would replace who but no formal announcements have been made yet.

He said among those rumored are Transportation and Communication Secretary Leandro Mendoza who is reportedly being groomed as Executive Secretary, and former justice undersecretary Manuel Teehankee, who is reportedly being eyed as Secretary of Justice.

Among those expected to step down soon are Executive Secretary Eduardo Ermita, who will run for congressman of Batangas; Justice sScretary Agnes Devanadera, who is running for congresswoman fo Quezon; Agriculture Secretary Arthur Yap, who is running for congressman of Bohol; Budget secretary Rolando Andaya Jr., who is running for congressman of Camarines Sur; Presidential Management Staff Director General Hermogenes Esperon Jr., who is running for congressman of Pangasinan; Technical Education and Skills Development Authority head Augusto Syjuco, who is running for congressman of Iloilo; and Chief Presidential Legal Counsel Raul Gonzalez, who is running for mayor of Iloilo.

Olivar said Agriculture undersecretary Bernie Fondevilla was recently named acting Agriculture secretary. It is not certain though if he would continue to be the agency’s secretary once Yap steps down.

Fondevilla temporarily headed the agriculture department while Yap was still abroad.

He said the Cabinet officials concerned could not simply step down without the President's appointment of their replacements.

He said they want to ensure that there would be a smooth turnover of function and operation, and continuity of operations.

Olivar cited as example the concerns over the continuity of high profile cases that are handled by the DOJ under Devanadera, particularly the Maguindanao massacre and Legacy Group cases.

"Cabinet members cannot resign effectively until their replacements have been named," Olivar said adding that replacements could be named within the week. (JMR/ECV/Sunnex)