THE current speculation about whether President Gloria Macapagal-Arroyo wants to appoint the next Chief Justice of the Supreme Court or not is easy to answer. We don’t even have to argue on legal or constitutional grounds. Yes, she does. Yes, she intends to.
If Madame Arroyo had no plans of depriving the next President of the privilege of appointing the Chief Justice; if she never entertained the thought of doing so, she would have said so the moment the idea of her making a midnight appointment was first floated by Congressman Matias Defensor. That would have been the most appropriate reaction from her.
Lawyers and jurists can argue to death the issue of which is more delicate – that Mrs. Arroyo cannot make an unconstitutional “midnight appointment”; or that she must appoint a Chief Justice to avoid a vacancy in the position during an election year which could supposedly trigger a “constitutional crisis”. Each side can trot out enough legal arguments to support their stand and inevitably make the ordinary citizen confused. But the plain truth is that delicadeza dictates that Madame GMA come out and settle the issue by announcing that she will not deprive the next President of that honor and privilege. Unfortunately, she did not; and till now she has not.
Constitutionally, while the prerogative of appointing justices to the Supreme Court lies with the President of the Republic, once the appointment is made the appointee becomes part of an institution which is fully independent from and is a co-equal of the President. In theory, therefore, it does not matter if all of the members of the Supreme Court, even the Chief Justice, are appointees of Madame Arroyo. They become her equals after they take their oath of office, and she cannot just command them to decide cases as it suits her.
History has proven that this “separation of powers” and the equality of positions between the President and the justices of the High Court really works. Several times during her term of office the Supreme Court junked policies and decisions issued by Mrs. Arroyo. She may not have agreed with many of them, but she had no choice but to respect their collegial decisions. Certainly, the Supreme Court is not a puppet of the President, and even if she decides to appoint the next Chief Justice she has no assurance that his Court will always decide in her favour.
In the end, it’s simply just “delicadeza” and according respect to whoever sits as President after May 2010. Even if both he and President GMA are legally allowed to appoint the next Chief Executive, delicadeza dictates that Mrs. Arroyo, who is on her way out, honors her successor by giving to him the privilege of making the appointment. That’s what an honourable man (or woman) would do. And there, actually, lies our problem. Is there still honor left?