At about this time last year, there were talks of a plot to impeach Chief Justice Renato Puno over the non-promulgation of a supposed en banc decision of the high court dated July 15, 2008 upholding the disqualification of Rep. Jocelyn Limkaichong (First District, Negros Oriental) allegedly because she was not a Filipino citizen. One of the litigants, Louis Biraogo, got hold of the draft of now retired Associate Justice Ruben Reyes’ ponencia and accused Puno, in a news conference, of refusing to sign and promulgate the decision.
Although Reyes himself said the chief justice could not be impeached on the mere basis of the deferment of the release of his draft decision on the case against Limkaichong, the allies of Gloria Macapagal Arroyo in the House of Representatives were all set to make a mountain out of a molehill, and were preparing to take a chance at impeaching Puno by using their numerical superiority in the chamber.
Fortunately, the plan fizzled out obviously because Arroyo’s allies realized in time that they had no legal grounds to stand on.
Now, Puno is again at the center of Arroyo’s apparent desire to gain complete hold of the Supreme Court as part of an increasingly obvious plan to remain in power beyond 2010. Puno, who has shown his independence as leader of the judicial branch, is the only one among the 15 justices of the Supreme Court who was not appointed by Arroyo.
The controversy was sparked by a letter of Rep. Matias Defensor, who has apparently inherited the role of his son Mike as Arroyo’s top hack, to his fellow members of the Judicial and Bar Council urging them to submit a short list of replacements for Puno even before his retirement on May 17 so that Arroyo can choose the successor to the Chief Justice and avoid leaving the position vacant “even for a day.”
Defensor, who represents the House in the constitutional body, reminded his fellow JBC members of the importance of the position: its occupant is the fifth in line of presidential succession, and heads both the JBC and the Presidential Electoral Tribunal, which decides on any controversy arising out of the presidential contest.
Defensor need not remind us of the importance of the position, especially with the existence of a real fear of a failure of elections, the numerous electoral protests and disputes that are expected to arise from the elections, the continuing attempts by Arroyo and her allies to amend the Constitution, and the possibility of a declaration of martial law or a state of emergency in the event of election-related violence. All the issues arising from these events would eventually lead to the doorsteps of the Supreme Court, and as its head, the Chief Justice would play a very crucial role in steering the court to making decisions that could greatly impact the course the country would tread in the coming years.
Defensor made the suggestion to allow Arroyo to make the appointment without violating a constitutional provision on “midnight appointments,” which the outgoing president is forbidden from making under Article VII, Section 15 of the Constitution.
The section reads: “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.”
It is very clear, by express provision of the Constitution, that Arroyo can no longer name appointees, except temporary postings in the Executive branch, beginning March 9 and until her successor takes his oath on June 30 this year. Puno retires on his 70th birthday on May 17, after a new president has been elected and 43 days before the constitutionally mandated transfer of power from Arroyo to the new president..
Several constitutional experts, including Sen. Miriam Defensor Santiago and former Sen. Franklin Drilon warned Arroyo not to make the premature appointment and the JBC not to submit a shortlist, and to allow the incoming President to make the apppintment.
“President Arroyo should inhibit herself from making the appointment,” she said. “Assuming for the sake of argument that she does have the power, she should not even exercise it because it will (cast) doubts in the minds of the ordinary Filipino voter that the President is over-extending herself.”
She offered that the best solution would be to leave the Supreme Court alone, to decide among themselves who will be acting Chief Justice. The senator also called on the Judicial Bar Council (JBC) not to be a party to what she said appeared to be “a conspiracy to control the position of Chief Justice.”
Drilon, on the other hand, cited a Supreme Court ruling saying that the President “was neither required to make appointments to the courts nor allowed to do so during the last 90 days of his/her term.”
But Malacanang allies were quick to rebut Santiago and Drilon.
Cabinet Secretary Silvestre Bello III insisted that the President is allowed to appoint the Chief Justice of the Supreme Court upon the occurrence of the vacancy, claiming that “we cannot afford a hiatus” and yet acknowledged that there is a “gray area” because of the constitutional provision on “midnight appointments.”
Romulo Macalintal, Arroyo’s election lawyer, said Article VII, Section 15 of the Constitution applied only to appointments in the “executive department.” “If you will go to the provision in the judicial department in our Constitution, that provision is not included,” he said.
This is the same argument offered by other Arroyo allies, including some in the media, but I can’t understand why there should be any doubt about the provision of the Constitution, which clearly states that Arroyo can no longer name appointees, except temporary postings in the Executive branch, beginning March 9 and until her successor takes his oath on June 30 this year. The position of Chief Justice is neither a temporary posting nor does it belong to the Executive Branch, and the appointment of such is well within the constitutional prohibition.
This is the second time in six months that Malacanang has tried to influence the Judicial and Bar Council, an independent body created by the Constitution. In July, Arroyo, through Executive Secretary Eduardo Ermita, returned a list of six nominees to the JBC with a request that the list be expanded so Arroyo would have more candidates to choose from. “Considering the importance and far-reaching consequences of the appointments to the two positions, the President cannot be too careful about the selection and appointment of the Associate Justices of the Supreme Court,” Ermita said in a letter to Puno, the ex-officio head of the council, on July 24.
Arroyo wanted to appoint two justices outside of the short list of six nominees submitted by the Council. At that time, Arroyo had already violated a constitutional provision that mandated her to name a replacement within 90 days from the time of vacancy because she dilly-dallied for more than 90 days because she was obviously not certain of the loyalty of the nominees. But the JBC stood its ground, and Arroyo eventually picked from its shortlist. We do expect the JBC to again make a firm stand on the issue of replacing Puno.
Amid lingering suspicions that Arroyo is hell bent on remaining in power beyond her constitutionally mandated term, the constitutional prohibition becomes even more critical. The move of Arroyo’s allies to allow the outgoing president to appoint the new chief justice despite its being contrary to the Constitution bolsters such suspicion and aggravates the people’s fear that Arroyo would do anything to cling on to power. Such suspicion and fear do not bode well for a smooth transition that is necessary to put the country back on track.
If Arroyo is sincere in saying that she would step down on June 30, 2010 and that there would be a smooth transfer of power, she and her allies should stop their latest ploy to subvert the law. Her administration has subverted the law or tried to circumvent the law many times during her nine-year term, it seems that breaking another constitutional provision does not matter to them anymore.
If she has any delicadeza left, Arroyo should let go and leave the matter of appointing a replacement for Puno to the incoming president, if ever there would be one. After all, that person would come from her appointees in the all-Arroyo Supreme Court anyway.