IT WAS with indignation that I heard from last Monday’s evening news that the Judicial and Bar Council (JBC) that afternoon had decided to start the process of selecting the at least three nominees who, under Section 8(5) of Article VIII of the Constitution, will be recommended to the President (whoever he or she might be) as replacement of Chief Justice Reynato Puno. Chief Justice Puno will turn 70 and is thus expected to retire on 17 May 2010.
Though the JBC opted to defer decision on whether to submit to the President its short list of three, the decision nevertheless advances the situation to the brink of what is certainly going to be a most divisive legacy of Gloria Macapagal-Arroyo.
After the JBC completes its list and the list is made public, there is plausible ground to argue that submission is mere formality and that Gloria Macapagal Arroyo was then “duty bound” to do her thing.
The ultimate issue of whether Gloria Macapagal-Arroyo could appoint a replacement to Chief Justice Puno is a contentious one and will be the subject of a forum this Friday organized by the Supreme Court Appointments Watch (SCAW) from 8:30 am to 1:00 pm at the Traders Hotel Manila.
Not being one of the big wigs expected to shed light on the matter, I would like nevertheless to dare state hereunder my views to the four winds, unconcerned with whether or not I will be heard by anybody, and if heard, listened to.
Section 15 of Article VII of the Constitution to me is clear: “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.”
The “President” is, for our present purposes no other than Gloria Macapagal-Arroyo, irrespective of the belief of some that she is not a legitimate one, thinking as they do that she, through some “Hello Garci” maneuver, in fact stole the presidency from Fernando Poe, Jr. The phrase “Acting President”, I maintain, refers to nobody, despite the assertions of others that her husband, Jose Miguel Arroyo, sometimes acts like one.
Hence, President Gloria Macapagal-Arroyo, starting 11 March 2010 up to 30 June 2010 cannot make any appointment other than a temporary one to an executive position when its continued vacancy will prejudice public service or endanger public safety.
Nobody in his right mind asserts that the position of Chief Justice is an “executive position” even if we remember not too long ago photos of a chief justice, like unto a loving slave to his queen, holding an umbrella over a First Lady to shield her from the harsh heat of the sun, though unable to protect her from heat of critics of her demeanor.
Furthermore, I am unconvinced by those who maintain that the last sentence of Section 4(1) of Article VIII, which says that “any vacancy (in the Supreme Court) shall be filled within ninety days from the occurrence thereof” is an authorization to Gloria Macapagal-Arroyo to appoint a replacement right after May 17. They who hold that view invoke as legal footing the word “shall” which they claim indicates an order which Gloria Macapagal Arroyo must comply with as soon as she could.
But what the adherents of such a view conveniently forget is that the text itself negates the idea of immediate compliance with the phrase “within ninety days.” Clearly then, assuming a obligation to appoint, there is a period granted within which to do so. And even freshmen law students will tell you that when a period is granted within which to perform an obligation, performance need not be done until the last day.
So, which is the better course of action? To appoint on the first day of the 90-day period or on the 90th day? A review of the records of the discussion on the floor of the Constitutional Commission of 1986 is revealing. It was Commissioner Lerum who was very concerned in avoiding a Supreme Court that could not function because of reduced membership. Thus, he proposed a two month period. The idea of a period was accepted, but the duration was increased to three months. And the idea behind the three months was to give more time for deliberation by the appointing authority.
This in my view is clear indication of Constitutional preference for filling up the vacancy closer to the last day than the first day since an appointment to the vacancy is certain to have far reaching, if not irreversible, consequences. Hence, the more time given and spent on deliberation, the better.
But really, with due respects, it is not crucial for the country to have a Chief Justice. We can afford not to have a sitting Chief Justice for some time. Most of his functions in his absence may be performed without harm to the dispensation of justice nor to the rendition of public service by those called upon by law to step up to the task in his absence. In fact, the Judiciary Act, as pointed out by many legal luminaries, names the person who automatically becomes acting chief justice.
And besides, we can even argue that do not need to have any Supreme Court all the time. The country has served not have a Supreme Court for a few days or so. Not too long ago, in the wake of what we now recall as the bar scandal involving the scion of one of the then sitting justices of the Supreme Court, the entire court was for about five days vacant. Two were abroad. Those who were in the country all resigned. And it took several days before the President was able to make appointments reconstituting the court.
There is no rush to appoint Chief Justice Puno’s successor, contrary to what Gloria Macapagal-Arroyo’s defensor would have us believe. Unless, of course, she is so nervous that when eventually all the cases that are sure to be brought against her after her tenure ends reach the Supreme Court, the conscience of her own appointees would be swayed by one angry man.
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