THE Judicial and Bar Council (JBC) unanimously voted Monday to open the nomination for the still-to-be vacated position of Chief Justice, but decided to defer the submission of a shortlist of nominees to President Gloria Macapagal-Arroyo.

Court spokesman Jose Midas Marquez said the eight-man council, during its en banc meeting, decided to start the process of filling up the position to be vacated by Chief Justice Reynato Puno, who is set to retire on May 17, 2010.

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Puno’s date of retirement is well within the election period that prohibits the President from making appointments.

“There is urgency to come up with a shortlist but there is no urgency to submit it (to the President),” Marquez told reporters in a press briefing.

The JBC is a constitutional body mandated to screen and recommend nominees to vacant judicial posts.

Puno is an ex-officio member of the JBC, while other members are Justice Secretary Agnes Devanadera, Senator Chiz Escudero, Representative Matias Defensor, retired SC justice Regino Hermosisima, Dean Amado Dimayuga Jr., lawyer J. Conrado Castro, and retired Court of Appeals (CA) justice Aurora Santiago-Lagman.

Marquez said the JBC will publish the opening of the position for applications or recommendations so that the members could soon deliberate on the list of candidates and publish the names of candidate.

“As to the time to submit this shortlist to the proper appointing authority, in the light of the Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all views on the matter,” he said.

This includes enlisting the help of legal experts who will determine the legal implications – if there’s any – of submitting a shortlist before March 10, the start of the election ban on appointments.

Normally, three or five of the most senior magistrates in the SC are automatically included by the JBC in its shortlist, except if they begged off from joining the race for the position.

In the running for the position of chief justice, according to seniority, are: Associate Justices Antonio Carpio, Renato Corona, Conchita Carpio-Morales, Presbitero Velasco Jr., and Antonio Eduardo Nachura.

The decision of the JBC to open the nomination for the next SC vacancy may be considered a victory for Representative Defensor, who had proposed the early nomination for the position even before there is actual vacancy.

But members of the faculty of the University of the Philippines (UP) College of Law urged the JBC not to transmit the names of the nominees for the position until after a new President shall have assumed office on June 30, 2010.

In a statement, the law school faculty also called on President Arroyo to exercise restraint in appointing the next chief justice for the sake of judicial independence and respect for the Rule of Law.

“The position of Chief Justice is not an executive position. The appointment of a Chief Justice is not a temporary appointment. Whoever is appointed sits until her/his retirement at the age of 70 years old or sooner upon her/his resignation. The retirement of Chief Justice Puno, on the eve of May 17, 2010, is well within the period of the constitutional ban on appointment. The clearest textual reading of the Constitution is that the incumbent President cannot appoint the next chief justice,” the group said.

Retired Associate Justice Josue Bellosillo, a JBC consultant for 12 years, also submitted a letter to the JBC pointing out that vacancies in the judiciary, particularly in the lower courts, “exist one, two, three or more years before they were filled up.”

Bellosillo said the President is mandated under the Constitution to appoint the Chief Justice within 90 days from the occurrence of the vacancy.

“The provision does not mention of any exception, as when the JBC fails to submit the list of its nominees within the prescribed period; if the JBC does not submit its list of nominees within the prescribed period provided for the president to appoint, then the president cannot comply with her constitutional mandate to appoint the next chief justice,” he explained.

He said the general rule requiring the President to appoint only from the list submitted by the JBC cannot and should not stop the President from complying with her constitutional mandate, if the JBC does not submit its list on time.

Unlike in the appointments to the lower courts where the 90-day period to appoint is based from the submission of the list of its nominees by JBC, the 90-day period to appoint in the Supreme Court is based from the occurrence of the vacancy, added Bellosillo.

“The position of the chief justice is very important and critical more so during election period, and the absence of a lawfully appointed chief justice can affect the credibility, stability, and authority of the SC,” he said.

Another former magistrate, Associate Justice Consuelo Ynares-Santiago, pointed out that “the recent statement of presidential candidate Noynoy Aquino warning members of the Supreme Court that he will not recognize any of them who would accept an appointment as chief justice from the outgoing president should not worry the justices of the Supreme Court.”

“It should not be considered as a threat. To my mind, it is a simple off-the-cuff remark which nonetheless reveals the lack of knowledge of the young presidential candidate on the basics of constitutional law and the appointment processes in the Supreme Court,” Santiago said. (JCV/Sunnex)