THE poll body said President Gloria Macapagal-Arroyo cannot appoint a new chief justice of the Supreme Court (SC) because the retirement date of Reynato Puno falls within the election period.
Commission on Elections (Comelec) legal department head Ferdinand Rafanan said Monday that the Philippine Constitution states that a president may not make any appointment within 60 days before Election Day.
Arroyo's appointing powers may only be exercised until March 9.
“The President cannot appoint anyone within 60 days before election day except temporary appointment in the executive branch," clarified Rafanan.
Article VII Section 15 states: “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.”
According to Rafanan, it would also be premature if Arroyo makes the appointment ahead of the retirement of Puno.
Puno is set to retire on May 17 as he reaches the age of 70.
Arroyo's election lawyer Romulo Macalintal hit the critics of the President, saying they are already offering their personal comments to the wrong issue.
“What needs to be resolved first is whether the judicial bar and council (JBC) should convene or not because the President cannot make a move without the judicial and bar council acting on this,” said Macalintal.
Macalintal further said that Arroyo could appoint a new SC official when the JBC has already recommended names because the provision in the constitution only applies to the executive department.
“There will be a bigger problem if a chief justice will not be appointed from May 17 to June 30 because we cannot have an acting chief justice. It is much difficult if the chief justice is appointed in an acting capacity,” he added.
JBC member and Bantay Korte Suprema convener Senator Francis Pangilinan earlier said that Malacañang seems to be hurrying the appointment of a new chief justice.
“This is another way to keep the influence of President Arroyo to institutions particularly the Supreme Court,” Pangilinan said in a television interview.
He urged Arroyo to let the next president be the one to make the appointment.
Quezon City Representative Matias Defensor, who is a member of the JBC, also commented on the issue. He said: “Let it not be said that the position was left vacant because the JBC did not recommend.”
Earlier, a Catholic prelate said the Arroyo government should give the new president a chance to name the new SC chief justice.
“As a matter of courtesy, sana tingnan nila kung pwedeng they give the chance to the incoming president especially since after elections pa naman yung retirement ng person concerned,” said Bishop Deogracias Iñiguez, chairman of the Catholic Bishops Conference of the Philippines (CBCP) Public Affairs Committee.
The Caloocan prelate recommended that the replacement of outgoing chief justice should be left to the decision of whoever will win the presidential elections.
There were reports that President Gloria Macapagal-Arroyo is looking to name Puno’s successor, despite the prohibition on appointments as the election period started last January 10.
Representative Defensor, in a letter dated December 22, asked the council to meet and immediately come up with the names of at least three nominees to replace Puno.
The chief justice 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 that can make the recommendations for the post to the president, who in turn has 90 days to fill the vacancy.
Defensor said that since the top position in the High Court is sensitive, the naming of the new chief justice should not be abrupt.
But Iniguez admitted that naming of Puno’s replacement is a legal one that should be answered by experts.
On Monday, the Judicial and Bar Council deferred action on the proposal of Defensor.
Defensor, a known ally of President Arroyo, has asked the JBC to meet and immediately start the process of nomination of possible successors “to avoid a vacancy of even a single day in that position.”
Puno will likely leave vacant the top judicial post until June 30 because the President has been precluded by the Constitution from making appointments 60 days the May 10, 2010 elections, until she steps down from Malacanang.
Following the regular meeting of the JBC Monday, SC spokesman Jose Midas Marquez said the decision to defer discussion on Defensor’s proposal was to enable the JBC Secretariat to review its jurisprudence and to find out if there were any precedent case in appointing a justice during election period.
“The JBC members are looking for precedent cases. We go by what is provided in the law and review history because many JBC members may not be familiar with the dates, so they have requested the JBC Secretariat to furnish them details,” he said.
The Secretariat is expected to submit its report to the JBC in its next meeting next Monday.
Marquez, however, was evasive when asked whether there is indeed a looming constitutional crisis if Puno’s successor is not named.
“I don’t think so, (but) I don’t want to speculate. It’s too early, let the process proceed. You have to realize that the screening process is not just a one-day JBC session,” he said.
Under JBC rules, the President has 90 days to appoint a replacement from the time the vacancy was created, out of the shortlist to be provided by the eight-man council.
To advance the nomination would enable the President to select a successor to Puno before the appointment ban, thus depriving her successor to choose the next chief justice.
But the Supreme Court Appointments Watch (SCAW), a private watchdog that monitors appointments to the tribunal, expressed concern over Defensor’s proposal to advance the screening of nomination of applicants for the chief justice post, or spell the collapse of the judiciary without a chief justice for 44 days.
In a letter submitted to the JBC Monday, SCAW assailed Defensor’s argument that never in the history of the high court has a day passed without the presence of the chief justice, when in fact, the Constitution gives the President 90 days within which to fill the vacancies.
“We view this as a naked attempt to allow the appointing power to circumvent the presidential appointment ban, which begins on March 11, 2010, 60 days before elections, and continues until the end of her term,” said Vincent Lazatin, executive director of Transparency and Accountability Network, one of the affiliate groups under SCAW.
There is also no truth to Defensor’s claim that only a permanent chief justice can certify decisions of the SC, Lazatin said.
He pointed out that when the late Chief Justice Marcelo Fernan resigned to run for President, Justice Andres Narvasa became acting Chief Justice until the JBC sent its shortlist to President Estrada, who eventually appointed Narvasa to the post.
“We strongly urge the JBC once again to exercise its independence and resist efforts to allow President Arroyo to violate presidential appointments ban,” said the group.
Among the top contenders for the CJ posts are senior Associate Justices Antonio Carpio, Renato Corona, Conchita Carpio-Morales, Presbiterio Velasco Jr. and Antonio Eduardo Nachura. (Kathrina Alvarez/FP/JCV/Sunnex)