BY WILLIAM B. DEPASUPIL Reporter
A protestor screams his protest at the decision of the supreme court on wednesday to allow the appointment of the next Chief Justice by President Gloria Macapagal Arroyo.
THE Supreme Court, by a vote of 9-1, on Wednesday ruled that President Gloria Arroyo can appoint the successor to Chief Justice Reynato Puno, who is retiring on May 17 when he reaches the mandatory retirement age of 65.
President Arroyo’s lawyer, Romulo Macalintal, said that it is now everybody’s duty to abide by the High Court’s ruling and to respect it.
The High Court en banc, in the ruling written by Associate Justice Lucas Bersamin, also ordered the Judicial and Bar Council (JBC), as provided for under the Constitution, to submit its shortlist of nominees for the position of chief justice to the Office of the President on or before May 17.
The eight-man JBC is a constitutionally created body that receives and screens nominations for all judicial posts, as well as nominations for Ombudsman and Deputy Ombudsman. Its principal function is to recommend appointees to the judiciary.
Under the Constitution, the JBC should submit at least three nominees for a vacant position and the President has 90 days from the date of retirement or the occurrence of vacancy to fill up the position.
The High Court spokesman and concurrent court administrator, lawyer Jose Midas Marquez, said that the ruling stated that appointments to the judiciary are not covered by the election ban under Section 15, Article VII of the 1987 Constitution.
This provision of the Constitution bars the President from making appointments two months immediately preceding the May 10 elections and until her term expires on June 30, except on temporary appointments to the executive department.
Marquez explained that since judiciary appointments are not covered by the election ban on appointments, Article VIII, Section 9, of the Constitution should apply.
This provision states that “members of the Supreme Court and judges of the lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.”
It further states that for the lower courts, the President shall issue the appointments within 90 days from the submission of the list.
In its decision, the High Court explained that a review of Sections 4(1) and 9, of Article VIII of the Constitution shows that the High Court is composed of a chief justice and 14 associate justices, who shall all be appointed by the President from a list of at least three nominees prepared by the JBC for every vacancy.
“With reference to the chief justice, he or she is appointed by the President as chief justice, and the appointment is never in an acting capacity. The express reference to a chief justice abhors the idea that the framers contemplated an acting chief justice to head the memberships of the Supreme Court.
Otherwise, they would have simply written so in the Constitution,” the decision said.
“Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next chief justice soonest is to defy the plain intent of the Constitution,” it added.
Section 12 of the Judiciary Act of 1948 states: “In case of a vacancy in the office of chief justice of the Supreme Court or of his inability to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence, until such disability is removed, or another chief justice is appointed and duly qualified. This provision shall apply to every associate justice who succeeds to the office of [the] chief justice.”
Appointment immediate
Also High Court pointed out that historically, under the 1987 Constitution, there has been no wide gap between the retirement and the designation of an incumbent chief justice, on one hand, and the appointment to and assumption of office of his successor, on the other.
It cited the appointment of Chief Justice Claudio Teehankee who retired on April 18, 1988 and was succeeded by Chief Justice Pedro Yap on the same day. When Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day.
The same thing also happened when Fernan resigned on December 7, 1991: Chief Justice Andres Narvasa was appointed the following day. When Narvasa retired on November 29, 1998, Chief Justice Hilario Davide Jr. was sworn into office in the early morning of November 30, 1998. When Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005. And when Panganiban retired on December 6, 2006, Puno took his oath as chief justice at midnight of December 6, 2006.
The High Court also pointed out that under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the High Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of the vacancy.
“The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment,” it said.
Besides Bersamin, the others who concurred with the decision were Associate Justices Arturo Brion, Teresita Leonardo de Castro, Diosdado Peralta, Mariano de Castillo, Martin Villarama Jr., Roberto Abad, Jose Perez and Jose Mendoza.
Associate Justice Conchita Carpio Morales, the third most senior justice and one of those considered as possible successor to Puno, was the lone dissenter.
Associate Justices Antonio Eduardo Nachura and Presbitero Velasco Jr., the fourth and fifth most senior justices, did not vote on the issue.
Nachura and Velasco instead moved for the dismissal of the petitions, both in favor and against, saying that they were “premature” as there was no “actual case of controversy” to warrant the judicial determination of the High Court.
Puno and Associate Justices Antonio Carpio and Renato Corona inhibited from the deliberations and did not participate in the voting.
Puno presided the en banc session but inhibited himself from the voting, being the ex-officio chairman of the JBC.
Carpio and Corona are the two most senior justices and are nominees for chief justice.
Carpio was appointed on Wednesday as acting chief justice for the next two weeks while Puno is on leave.
Puno said also on Wednesday that he is going on a wellness and sabbatical leave to recharge himself for the tough task ahead before he officially retires on May 17.
With reports from Jomar Canlas, Angelo S. Samonte, Cris G. Odronia, Bernice Camille V. Bauzon and Francis Earl A. Cueto
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