The Long (and Contentious) Wait for the Next Chief Justice

History, indeed, repeats itself. But sometimes, the repetition is a very crude imitation of the
original event.

The move by Quezon City Representative and Judicial and Bar Council (JBC) member
Matias Defensor to speed up the nominations process for the position of Chief Justice, which
will be vacant on May 17, 2010, brings us back to the November 9, 1998 Supreme Court En
Banc Resolution in A.M. No. 98-5-01-SC. In the said Resolution, the Court categorically
declared that the President is neither required to make appointments to the courts nor allowed
to do so in the two-month period prior to the next presidential elections and up to the end of
his/her term, as prescribed by the Constitution’s Section 15 of Article VII. The Supreme
Court ruled that the provisions of the Constitution setting the period for the appointment of
members of the Supreme Court and justices/judges of lower courts (Sections 4[1] and 9 of
Article VIII, respectively) simply mean that the President is required to fill vacancies in the
courts within the time frames provided in the Constitution unless prohibited by Section 15 of
Article VII.

It is important to point out the major distinctions between the issues covered by the
November 9, 1998 Resolution, and the current controversy related to the Defensor
proposition.

First, the current issue involves the appointment of the Chief Justice. The November 9, 1998
Resolution covered the appointment of two Regional Trial Court judges – Mateo A.
Valenzuela and Placido B. Vallarta. (While the Resolution mentioned the appointments to
eight [8] positions in the Court of Appeals, and the vacancy created by the retirement of
Supreme Court Associate Justice Ricardo J. Francisco, the controversy was about the
appointment of the two judges, which were made on March 30, 1998, during the period of
the ban. The appointments to the vacant positions in the Court of Appeals were dated March
11, 1998, before the commencement of the prohibition. As regards the Associate Justice
position that was vacated by Justice Francisco, the Court, in a Resolution dated May 18,
1998, instructed the JBC and its members to defer all action on the matter of nominations to
fill up the lone vacancy in the Supreme Court.)

Second, the current controversy involves a vacancy that will happen within the period of the
ban. In the controversy that was resolved by the November 9, 1998 Resolution, the
vacancies occurred before the commencement of the ban. In fact, Judge Valenzuela’s
nomination was made through the letter of the JBC dated March 3, 1998, while Judge
Vallarta’s nomination was contained in the JBC letter dated February 24, 1998. Both letters
were received, however, on March 20, 1998 at Malacañang.

Third, in the 1998 case, the JBC did not have any precedent to guide it, and hence, it took the
position, allegedly guided by the opinion of Constitutional Commission member Florenz
Regalado, that Section 15, Article VII of the Constitution had no application to JBC-
recommended appointments. On the other hand, the current JBC should be guided and
bound by the 1998 En Banc Resolution.
Fourth, in 1998, the President who was involved in the case (Fidel V. Ramos) was not
seeking a reelection. Now, the President, Gloria Macapagal-Arroyo, seeks reelection, not to
the same position, but to the position of district representative to the House of
Representatives. Furthermore, she faces a pending petition for disqualification.

The implications of these distinctions are material to the resolution of the present
controversy.

Judge and Chief Justice

The Constitution provides two different periods for filling up vacancies in the judiciary, one
for the Supreme Court and another for other positions in the judiciary. For the Supreme
Court, Section 4 (1), Article VIII provides that any vacancy shall be filled within ninety days
from the occurrence thereof. As regards positions in lower courts, Section 9, Article VIII
provides that the President shall issue the appointments within ninety days from the
submission of the list of nominees. Thus, there are two different reckoning points for the
period given to the President to fill up the vacancy.

In the 1998 case, the period for filling up the vacancies in the Regional Trial Courts for
which Judges Valenzuela and Vallarta were nominated started on March 20, 1998, when
their nominations were received by Malacañang. Hence, the entire ninety day period to fill
up the vacancy fell within the period of the ban against appointments, which was from March
12 until June 30, 1998.

In the present controversy, the period for filling up the vacancy that will be created by the
retirement of Chief Justice Reynato Puno will start on May 17, 2010. Thus, only a portion
of the ninety day period for the appointment of his successor will fall within the period of the
ban on appointments. Specifically, by June 30, 2010, less than half of the ninety day period
given by the Constitution for the appointment of the next Chief Justice would have lapsed.

How relevant are these distinctions? In the 1998 Resolution, the Court decided that in case
of conflict between the Constitutional provisions on the time frames for filling vacancies in
the courts and the restriction on the President's power of appointment, the latter shall prevail.
In the case of the appointment for the next Chief Justice, there is no such conflict. The two
Constitutional provisions can be complied with. Both can be given effect. Even with the
ban against appointments, there will still be ample time for the appointment of the Chief
Justice within the prescribed ninety day period.

What about the contention of Representative Defensor that a vacancy of even a single day in
the position of Chief Justice should be avoided? Suffice it to state that such desired policy,
no matter how well-intentioned it may be, has no basis in the Constitution. Had the framers
of the Constitution wanted to have a special rule for the appointment of the Chief Justice, that
rule should have been spelled out in the Constitution. As it is, however, the Constitution
gives the President ninety (90) days to appoint all members of the Supreme Court, including
the Chief Justice. Defensor’s contention that the Supreme Court cannot exist without a
Chief Justice is an absurd argument and an insult to the collegiate Court. Defensor’s worry

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about the required certification of Court decisions by the Chief Justice should be pacified by
the records of the Supreme Court, which would show that, in the past, Associate Justices had
been designated Acting Chief Justice, and had certified decisions in such acting capacity.
Even assuming, for the sake of argument, that it would be wise to have a successor appointed
on the day of the retirement of an incumbent Chief Justice, such formula cannot be followed
if doing so would violate the clear prohibition against appointments in Section 15, Article
VII.
Vacancy before and during the ban

Related to the difference between the 1998 case and the current controversy as regards the
position in question is the difference as to the time of occurrence of the vacancy. In the
1998 case, the vacancies involved occurred before the start of the ban. Had the JBC letters
nominating the two judges been received by the Office of the President early enough, they
could have been appointed prior to the start of the ban against appointments. Unlike the
1998 case, however, the coming vacancy in the position of Chief Justice will occur within the
period of the prohibition against appointments. Will this situation allow the designation of a
Chief Justice in-waiting prior to the start of the ban? Can the President advance the
appointment to avoid the ban (or ante-date such appointment, as was done with the eight
appointees to the Court of Appeals in the 1998 case)? For both questions, the answer should
be in the negative. The President cannot make an appointment prior to the occurrence of the
vacancy. In this case, the ban will start more than two months prior to the occurrence of the
vacancy. As the Constitution provides, the vacancy shall be filled up within ninety days
from the occurrence of the vacancy, i.e., not before its occurrence. Hence, even if the JBC
submits the list of nominees for Chief Justice to Malacañang before the start of the ban, it
will not change the situation. Simply put, the appointment cannot be made ahead of the
vacancy.
Absence and existence of decision

In the 1998 case, the JBC had the excuse of not having any clear interpretation of the
Constitutional provisions on the period for filling up vacancies in the judiciary, and on
the ban against appointments related to the Presidential election. As narrated by the
1998 Resolution, then Senior Associate Justice Florenz D. Regalado, Consultant of the
JBC, who had been a member of the Committee of the Executive Department and of the
Committee on the Judicial Department of the 1986 Constitutional Commission,
expressed the view that the election ban had no application to appointments to the Court
of Appeals. Regalado’s opinion was accepted by the members of the JBC (with the
exception of then Chief Justice Andres Narvasa) “(w)ithout any extended discussion or
any prior research and study”.

Such excuse is no longer available for the JBC now. The November 9, 1998 En Banc
Resolution of the Supreme Court should be the governing interpretation of the
Constitutional provisions involved. Interestingly, two members of the current JBC had
been part of the discussions of the 1998 case – Chief Justice Puno, who was then an
Associate Justice of the Supreme Court, and retired Justice Regino Hermosisima, who
was already a member of the JBC.

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In Defensor’s letter to the JBC, the relevant provisions of the Constitution (Section 4[1] of
Article VIII, and Section 15 of Article VII) were conspicuously omitted. Thus, the
proposition to avoid a vacancy of even a single day was made without any consideration of
the ninety day period given by the Constitution for the appointment, and the ban imposed by
the Constitution against making such appointment on May 17, 2010 or on any date within the
period of the ban.

Can the JBC pretend to be grappling for an interpretation of the Constitutional provisions?
Such pretension cannot be justified. For one, as pointed out earlier, there is no conflict
between the provisions on the ban and on the period for the appointment. There is no
controversy, no issue that will prompt the JBC to make its own interpretation. The JBC’s
role is to follow the Constitution. Follow the ban imposed by Section 15 of Article VII, and
follow the ninety day period for the appointment, as prescribed by Section 4(1) of Article
VIII. More importantly, with the 1998 Resolution, any issue as to the interpretation of the
applicable Constitutional provisions should be deemed settled. The JBC is bound to follow
such ruling. While a Supreme Court ruling is good until a reversal by a more recent ruling –
and there have been a number of cases where the Court had reversed its earlier decision, with
some reversals being done in the same case, and a few notable examples of complete
turnarounds upon a second Motion for Reconsideration – the JBC cannot go against a
standing interpretation by the Court.
Ramos and Arroyo

Gloria Macapagal Arroyo’s present status as a candidate for the coming elections adds a
striking twist to the controversy. President Ramos’ attempt to make the appointment of the
two judges was not compounded by this context.

In the 1998 Resolution, the Supreme Court explained the reason behind the prohibition in
Section 15, Article VII against appointments by an outgoing President. The Court stated
that the prohibition is directed against two types of appointments: (1) those made for buying
votes and (2) those made for partisan considerations. The prohibition, according to the
Court, contemplates not only "midnight" appointments - those made obviously for partisan
reasons as shown by their number and the time of their making - but also those appointments
that are presumed to have been made for the purpose of influencing the outcome of the
elections.

Between the actions of the two presidents, Arroyo’s action with respect to the appointment is
more suspect. This is not only because she is a candidate, but also because her qualification
to run for office has been questioned and this issue will be decided soon by the Commission
on Elections (COMELEC), and, in all probability, will be elevated to the Supreme Court for
final resolution. (Of course, there are allegations that she wants to have allies in the
Supreme Court in preparation for the numerous cases that are expected to be filed against her
after the end of her term.) Between Ramos and Arroyo, the latter has the greater propensity
to influence the outcome of the elections, because she is personally involved in the coming
elections as a candidate. And since the vacancy involved in the current dispute is no less
than the position of Chief Justice, the degree of potential influence by the appointing

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authority is greater, if contrasted with the influence that can be wielded through the
appointment of Regional Trial Court judges.

The comparison of the two presidents points to one clear conclusion. If the ban under
Section 15, Article VII was deemed applicable to Ramos’ appointment of two trial court
judges, it should apply with greater force to Arroyo’s appointment of the next Chief Justice.
The evil sought to be avoided by the ban is manifested in a more dangerous form in the
present case.
Doomsday scenario

The proponents of an early appointment of the next Chief Justice paint a grim scenario of a
constitutional crisis if the position is left vacant for the election period. They deliberately
overlook the collegiate nature of the Supreme Court. As an institution, the Supreme Court
should be able to survive a short period without a Chief Justice. As it has resolved other
complicated issues in the past, it certainly has the capacity to resolve the issue of acting as a
collegial body without an appointed Chief Justice.

Under the Constitution, it is the Court, sitting en banc, and not the Chief Justice alone, which
shall be the sole judge of all contests relating to the election, returns, and qualifications of the
President or Vice-President. Certainly, the Court can convene en banc and decide cases
even in the absence of the Chief Justice. The concerns that the Supreme Court cannot act on
disputes related to the May elections without a Chief Justice are therefore unfounded.

Even in the extreme situation when no President and Vice-President shall have been elected
and ready to assume their position by June 30, 2010, the Chief Justice would not
automatically assume the Presidency. Under Section 7 of Article VII of the Constitution, the
Senate President, and in case of his/her inability, the Speaker of the House of Representatives
shall act as President until a President or a Vice-President shall have been chosen. In case of
the inability of the Senate President or the Speaker to act as President, the burden to provide
for the manner of selecting the person who will act as President has been given by the
Constitution to the Congress, not to the Supreme Court, and certainly, not to the Chief
Justice. There is nothing in the Constitution that suggests that the Chief Justice will take
over as acting President.

So, why the rush? If Arroyo is prohibited from appointing the next Chief Justice, should the
JBC hastily commence the nominations process and immediately submit the list of nominees
to Arroyo before May 17, 2010, as proposed by Defensor? While there is no prohibition
against the JBC’s commencement of the nominations process, the submission of the list of
nominees to the incumbent President, with full knowledge that she is covered by the
prohibition as earlier ruled by the Supreme Court, is unwarranted. The JBC, led by the
incumbent Chief Justice should refuse to give the incumbent President the opportunity to
make an appointment that is in violation of the Constitutional ban. Since all indications point
to Arroyo’s desire to appoint the next Chief Justice, the JBC will be going against its own
sacred Constitutional mandate if it gives Arroyo the opportunity to violate the Constitution.
As stated in the 1998 Resolution, quoting the letter of then Chief Justice Narvasa to President
Ramos, the duty of filling the vacancy in the judiciary under Section 4 (1) of Article VIII is

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not specifically imposed on the President. The duty is shared by the JBC and the President.
Conversely, the culpability for a Constitutionally-infirm appointment will be shared by the
JBC and the President.
JBC and SC on trial

Once again, the independence and integrity not only of the Judicial and Bar Council but of its
individual members as well will be put to test. Defensor has made known his position and
with that, has officially started the controversy that some sectors had earlier predicted. It is
up to the other members of the JBC to decide on what action the body will take. As the
country approaches a critical crossroads, the JBC’s action will be of great consequence and
will take a central place in the nation’s history.

In addition to the JBC, the Supreme Court itself will also be at the core of the present
controversy and at the forefront of its resolution. Regardless of whether the issue will ripen
into a case that the Court will eventually decide, and whether the country will have a new
Chief Justice appointed during the election period, the actions of the Supreme Court, and,
similar to the JBC, of its individual members and officers, will be a reflection of the Court’s
integrity and independence. With two of its members as the most eligible candidates for the
Chief Justice position, the Supreme Court will be acting on a very sensitive issue. It has to
decide an issue that goes into the very credibility of the Supreme Court and the judiciary as
the last bulwarks of our democracy.

Lastly, as regards the officials of the Executive and the Legislative branches who suddenly
appear to be staunch defenders of the Supreme Court and its importance in our system of
government, they should be asked to explain why they have given the judiciary less than one
percent (1%) of the national budget.

Atty. MARLON J. MANUEL

Coordinator, Alternative Law Groups (ALG)
Co-Convener, Supreme Court Appointments Watch (SCAW)