I disagree with the position taken by Senate President Juan Ponce Enrile that President Arroyo can bypass the Judicial and Bar Council (JBC) in appointing the successor of outgoing Chief Justice Reynato Puno.
The legal position taken Enrile, which appears to have been adopted by Malacanang, on the appointment of a Chief Justice without a JBC nomination, is a clear violation of the Constitution.
Article VIII, Section 4 (1) of the 1987 Constitution provides that the Supreme Court is composed of a Chief Justice and 14 associate justices. Thus, the members of the High Court are one Chief justice and 14 associate justices and that clearly indicates that the position of Chief Justice is a separate position in the judiciary.
On the powers of the president to appoint members of the judiciary, Article VIII, Section 9 of the Constitution clearly states that the members of the SC (defined as one Chief Justice and the 14 Associate Justices) shall be appointed by the President from a list of at least three nominees prepared by the JBC for every vacancy.
The provisions of the Constitution are very clear that the appointment of the CJ requires the recommendation by the JBC.
On Wednesday Executive Secretary Eduardo Ermita said Malacanang was inclined to favor the legal interpretation of Enrile that President Arroyo did not have to wait for the nominations of the JBC in appointing a replacement for Puno who will retire on May 17.
Enrile said the President can just pick from the SC associate justices since they already have been vetted by the JBC. He noted that Mrs. Arroyo could appoint a new chief justice after Puno’s retirement without the JBC nomination if the appointee comes from among the 14 other justices in the Supreme Court. He also said the nomination was necessary only if the appointee shall come from outside the Supreme Court, adding that the ban on the President making appointments exists only during the period 60 days before the elections.
Earlier, I had criticized Malacanang for maliciously raising unfounded fears of a possible vacuum in the leadership of the Supreme Court when Puno retires. Existing laws provide for a smooth succession to the post.
Contrary to the claim of Quezon City Rep. Matias Defensor Jr. and Cabinet Secretary Silvestre Bello, Puno’s retirement on May 17, 2010 will not create a vacancy in the position of the SC Chief Justice because the Judiciary Act (Republic Act 296, as amended) provides for a process of succession in the event of a vacancy.
Section 12 of the Judiciary Act which states: “In case of a vacancy in the office of the 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.”
In that provision, the “associate justice who is first in precedence” refers to the most senior associate justice who shall succeed as acting chief justice “in case of a vacancy in the office of the Chief Justice.
President Arroyo cannot appoint a new Supreme Court chief justice to replace Puno as his retirement date falls within the election period when midnight appointments, both in the executive department and the judiciary, are prohibited.
The President’s allies were “again giving her wrong legal advice and was setting her up for another act that would clearly violate the 1987 Constitution.”
Puno will retire on May 17, after the country shall have elected a new president and 45 days before the constitutionally mandated transfer of power from President Arroyo to her successor on June 30.
Submit Comment
Follow us on: