"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."
-Article VII, Section 15
1987 Constitution of the Philippines
"The 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. Such appointments need no confirmation."
- Article VIII, Section 9
1987 Constitution of the Philippines
"Any vacancy shall be filled within ninety days from the occurrence thereof."
Article VIII, Section 4 (1)
1987 Constitution of the Philippines
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The vacancy in the post of Chief Justice during an election period and during the transition to a new President is a cause for concern. In a country of "50,000 heat-seeking lawyers," in the phrase favored by the late Max Soliven, it is also a rich source of advertising revenue for the media. The print media, especially, have been blessed by the advertisements of several special-interest lawyers' groups expressing their views in open letters to public officials, which are not published for free.
The Economizer feel a great sadness at havng missed reading the article by Fr. Bernas on the subject, which appears to decide the matter once and for all. Settling for the second-best, let us allow Senator Franklin Drilon to speak his mind, as he has, in The Economizer's mind, the clearest non-legalese thought on the subject.
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From The Philippine Star, January 15, 2010
"Former Senate president Franklin Drilon rejected yesterday the proposal of Senate President Juan Ponce Enrile that President Arroyo pick the next chief justice from among the 14 associate justices of the Supreme Court as a violation of the Constitution.
"In a text message to The STAR, Drilon said the Constitution provides that the SC is comprised of a chief justice and 14 associate justices.
" 'Thus the members of the SC are one chief justice and 14 associate justices,' he said.
"Drilon said the Constitution states that SC members shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council.
'Clearly, the appointment of a chief justice requires the recommendation of the nominees by the JBC,' he said.
"Drilon told The STAR in San Fernando City, La Union Mrs. Arroyo does not have to make a 'midnight appointment' for the replacement of Chief Justice Reynato Puno because there is a process of succession in case of vacancy in office of the chief justice.
" 'Under Section 12 of the Judiciary Act, in case of vacancy in the office of the chief justice, the most senior associate justice will act as chief justice,' he said.
" 'There is absolutely no basis for the fear that (Malacañang) is trying to raise in public that it is dangerous in case there is vacancy in the office of the chief justice.'
"Drilon said that the law of succession, where the most senior associate justice will assume as chief justice, was applied in 1992 when Chief Justice Marcelo Fernan resigned to run for vice president.
" 'When Fernan resigned as chief justice to run as vice president, immediately thereafter, the most senior associate justice Andres Narvasa became acting (chief justice),' he said.
" 'It took a few weeks before he (Narvasa) became a regular chief justice.'
"Drilon said the Constitution bans Mrs. Arroyo from appointing a chief justice two months before her term ends on June 30.
" 'She cannot appoint starting May 1, 2010 and she cannot appoint after May 17, when Puno retires, because that is prohibited under the Constitution and she cannot also ignore or bypass the JBC,' he said."
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The Economizer feel a great sadness at havng missed reading the article by Fr. Bernas on the subject, which appears to decide the matter once and for all. Settling for the second-best, let us allow Senator Franklin Drilon to speak his mind, as he has, in The Economizer's mind, the clearest non-legalese thought on the subject.
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From The Philippine Star, January 15, 2010
http://www.philstar.com/Article.aspx?articleId=540903
"Former Senate president Franklin Drilon rejected yesterday the proposal of Senate President Juan Ponce Enrile that President Arroyo pick the next chief justice from among the 14 associate justices of the Supreme Court as a violation of the Constitution.
"In a text message to The STAR, Drilon said the Constitution provides that the SC is comprised of a chief justice and 14 associate justices.
" 'Thus the members of the SC are one chief justice and 14 associate justices,' he said.
"Drilon said the Constitution states that SC members shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council.
'Clearly, the appointment of a chief justice requires the recommendation of the nominees by the JBC,' he said.
"Drilon told The STAR in San Fernando City, La Union Mrs. Arroyo does not have to make a 'midnight appointment' for the replacement of Chief Justice Reynato Puno because there is a process of succession in case of vacancy in office of the chief justice.
" 'Under Section 12 of the Judiciary Act, in case of vacancy in the office of the chief justice, the most senior associate justice will act as chief justice,' he said.
" 'There is absolutely no basis for the fear that (Malacañang) is trying to raise in public that it is dangerous in case there is vacancy in the office of the chief justice.'
"Drilon said that the law of succession, where the most senior associate justice will assume as chief justice, was applied in 1992 when Chief Justice Marcelo Fernan resigned to run for vice president.
" 'When Fernan resigned as chief justice to run as vice president, immediately thereafter, the most senior associate justice Andres Narvasa became acting (chief justice),' he said.
" 'It took a few weeks before he (Narvasa) became a regular chief justice.'
"Drilon said the Constitution bans Mrs. Arroyo from appointing a chief justice two months before her term ends on June 30.
" 'She cannot appoint starting May 1, 2010 and she cannot appoint after May 17, when Puno retires, because that is prohibited under the Constitution and she cannot also ignore or bypass the JBC,' he said."
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In summary, the issue boils down to two points. First, the Constitution will be followed whether people like it or not, and the JBC must make the nominations. As the Constitutional provisions above state, the President may not make appointments, not just executive appointments, during the prescribed period. These include Members of the Supreme Court, which include the Chief Justice. Second, there is a law of succession to be followed, and the law is clear: it is the most senior Associate Justice that will succeed the Chief Justice. Thus we are agreed: no Presidential appointments from March until June, including that for the post of Chief Justice.
Does this make for a lame-duck Presidency? Yes. That is why, in the same Philippine Star article, the late Press Secretary Cerge Remonde explains what the fuss is all about:
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"Remonde said allegations that Mrs. Arroyo intends to name a new chief justice to prolong her stay in power were malicious and far-fetched.
" 'The President does not want to prolong her stay in power beyond what is prescribed by law and that is too much,” he said.
" 'The President just wanted to assert her right and her responsibility under the law in maintaining the stand of appointing the chief justice of the SC the moment the vacancy occurs.”
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This, then, is the real issue. This is why we hear about this very boring topic in the news. Critics are foaming at the mouth saying that Malacanang is afraid of the next Chief Justice being appointed by a hostile President, while Malacanang denies the allegation. This is all: never mind the Constitutional provisions, which are unequivocal -- what matters is that President Arroyo cease becoming President as soon as possible. This is the view that fills the airwaves as talking heads "debate" the issue to death.
But this President is not known to surrender any of her prerogatives under the law. Let the critics fulminate, but the President will be President until the end of her term. The President just wants to assert her right[s] -- and woe to him who tries to stop her.
Such as . . . a certain president-in-waiting. Let Noynoy Aquino speak:
“If (Mrs. Arroyo) insists on violating the Constitution, it is important for us who are aspiring to lead the country under a new administration to let the public and (Mrs. Arroyo) know where our sentiments lie on such a critical question, if only to force (Mrs. Arroyo) to be faithful to our fundamental law.”
Translation: I, who will be the next President, will not accept your choice of Chief Justice, and by saying so, I am trying to force you to hand me your appointive powers already today.
Here, Senator Aquino is being arrogant, but at least he is basing his position on a Supreme Court precedent, Aytona vs. Castillo (1963). In that case the Supreme Court noted that making midnight appointments serves to frustrate the policy direction of the next administration and therefore must be prohibited. In response, The Economizer quotes Fr. Ranhilio Callangan Aquino (priests, it seems, are trying their best to comment on politics, while politicians are doing their damndest to comment on morals, especially on the renewable marriage contract -- but that is for another article).
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While it makes sense to defer the appointment of policy-implementers until the policy-maker himself assumes office, that the workings of an independent branch of government are impaired because the appointment of a Chief Justice must await the commencement of the term of a new President is a proposition that does not commend itself to reasonable support and juridical acceptance.
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Meaning, that the policies of a new President have little to do with an independent judiciary. Either the judiciary is independent and the President cannot interfere with its decisions despite his or her appointments, or it is not independent and is subject to Presidential influence. It cannot be both.
Is Senator Aquino afraid that his policies will be thwarted by an Arroyo-appointed Chief Justice, even if he is just one Justice out of 15? The question there is, What policies?
Does this make for a lame-duck Presidency? Yes. That is why, in the same Philippine Star article, the late Press Secretary Cerge Remonde explains what the fuss is all about:
**********
"Remonde said allegations that Mrs. Arroyo intends to name a new chief justice to prolong her stay in power were malicious and far-fetched.
" 'The President does not want to prolong her stay in power beyond what is prescribed by law and that is too much,” he said.
" 'The President just wanted to assert her right and her responsibility under the law in maintaining the stand of appointing the chief justice of the SC the moment the vacancy occurs.”
**********
This, then, is the real issue. This is why we hear about this very boring topic in the news. Critics are foaming at the mouth saying that Malacanang is afraid of the next Chief Justice being appointed by a hostile President, while Malacanang denies the allegation. This is all: never mind the Constitutional provisions, which are unequivocal -- what matters is that President Arroyo cease becoming President as soon as possible. This is the view that fills the airwaves as talking heads "debate" the issue to death.
But this President is not known to surrender any of her prerogatives under the law. Let the critics fulminate, but the President will be President until the end of her term. The President just wants to assert her right[s] -- and woe to him who tries to stop her.
Such as . . . a certain president-in-waiting. Let Noynoy Aquino speak:
“If (Mrs. Arroyo) insists on violating the Constitution, it is important for us who are aspiring to lead the country under a new administration to let the public and (Mrs. Arroyo) know where our sentiments lie on such a critical question, if only to force (Mrs. Arroyo) to be faithful to our fundamental law.”
Translation: I, who will be the next President, will not accept your choice of Chief Justice, and by saying so, I am trying to force you to hand me your appointive powers already today.
Here, Senator Aquino is being arrogant, but at least he is basing his position on a Supreme Court precedent, Aytona vs. Castillo (1963). In that case the Supreme Court noted that making midnight appointments serves to frustrate the policy direction of the next administration and therefore must be prohibited. In response, The Economizer quotes Fr. Ranhilio Callangan Aquino (priests, it seems, are trying their best to comment on politics, while politicians are doing their damndest to comment on morals, especially on the renewable marriage contract -- but that is for another article).
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From Manila Standard Today
http://www.manilastandardtoday.com/insideOpinion.htm?f=2010/january/12/ranhilioaquino.isx&d=2010/january/12
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Meaning, that the policies of a new President have little to do with an independent judiciary. Either the judiciary is independent and the President cannot interfere with its decisions despite his or her appointments, or it is not independent and is subject to Presidential influence. It cannot be both.
Is Senator Aquino afraid that his policies will be thwarted by an Arroyo-appointed Chief Justice, even if he is just one Justice out of 15? The question there is, What policies?
In the past, recruiting decisions have been made through a series of relatively short interviews.
ReplyDeleteNowadays, there are executive appointments where everything is decided collectively.