The Judicial and Bar Council (JBC), the body that vets nominees to the judiciary and the Ombudsman, is facing a constitutional issue after one of its members pushed for an earlier-than-usual process of nominating the next Chief Justice.

Chief Justice Reynato Puno is hanging the robe on May 17—or after the presidential elections—and his retirement is well within the election ban on appointments.

In a letter dated December 22, Quezon City Rep. Matias Defensor urged his fellow members of the JBC to “commence the procedure in nominating the applicants and immediately submit to the President the list of at least 3 nominees for the position of Chief Justice.”

Sources in the legal community believe that the move is meant to circumvent the constitutional ban on midnight appointments by an outgoing President. “It could be a way to skirt the ban on appointments and allow President Arroyo to appoint her preferred Chief Justice,” one court watcher observed.

Senator Francis Pangilanan, a former JBC member, was more direct in a statement issued Friday. Citing his own sources in the judiciary, he said Malacañang wants to appoint a new Chief Justice before her terms ends on June 30. He called on the JBC to “resist any effort by Malacañang to fast track the nomination process.”

Defensor’s proposal will be discussed by the JBC on Monday.

Can’t be left vacant
In a phone interview, Defensor said he proposed the move “to avoid the possibility of vacancy in the Chief Justice post for 43 days.”

“The Chief Justice post is very important—he heads the Presidential Electoral Tribunal, chairs the JBC, and [is] 5th in [the order of] succession. You cannot leave it vacant even for a day,” Defensor said.

In his letter, Defensor stressed that the position of the Chief Justice “is the most important appointment vested by the Constitution to the President.”

Without mentioning the appointment ban, Defensor argued that “to avoid a vacancy of even a single day in the position, it is imperative that we give the President ample time before May 17, 2010, to scrutinize and critically consider our 3 nominees for this highest of judicial positions.”

Article VII Sec. 15 of the Constitution bars the President from making appointments 2 months before the next presidential elections and up to the end of his or her term.

This means that beginning March 10 until her term expires, President Arroyo is constitutionally prohibited from making appointments.

Since Puno retires on May 17, or well within the period of the ban, President Arroyo can no longer appoint his replacement. The next President will have the privilege of appointing Puno’s successor.

‘No such thing as acting CJ’
In his letter, Defensor argued that, traditionally, from the time of retirement of Chief Justice Claudio Teehankee—the first Chief Justice under the 1987 Constitution—to the appointment of Puno, the Chief Justice post has never been vacant, not even for a day.

Citing the enormous responsibility vested in the Chief Justice, Defensor said the “prompt filling up of the position is paramount.”

He added: “The filling up of the vacancy in said office either by substitution or by temporary appointment is not sanctioned by the Constitution.”

Defensor, in the interview, said the existing members of the Tribunal could not select among themselves an acting Chief Justice during the interim period that the next President has yet to make the new appointment. “There is no such thing as acting Chief Justice.”

He said it is the JBC’s responsibility to come up with the list and for President Arroyo whether to make the appointment.

The JBC, abs-cbnnews.com/Newsbreak learned, will discuss Defensor’s letter on Monday. Some of the JBC members received copies of his letter only this week.

The JBC is composed of 8 members from the academe, private sector, retired members of the judiciary, legislative, and executive departments. The Chief Justice chairs the JBC.

Corona vs Carpio
Reports that the President wants to appoint a new Chief Justice before her term ends have been circulating since 2008. Puno has given assurances that he will finish his term of office.

Critics say that the President wants to appoint a Chief Justice who would remain her ally after she steps down. It is an open secret in the legal community that she favors Justice Renato Corona, the third most senior in the SC, after Puno and Justice Antonio Carpio.

Historically, the 3 most senior justices get the 3 slots in the shortlist for Chief Justice. Nomination to the post by the JBC is only a formality and interviews are no longer conducted.

Corona’s succession as Chief Justice is also tickling the imagination of other justices.

In last Monday’s flag ceremony at the SC, a junior justice told SC employees that he was with the next Chief Justice in a trip abroad. The justice was referring to Corona.

Among Ms. Arroyo’s appointees, Corona has proven himself to be her loyal ally, voting almost always in favor of government. On the other hand, Carpio, who was Arroyo’s first appointee to the SC, has displayed independence from the Palace. Carpio has consistently been voting against Malacañang’s interests.

Court observers say that given the chance, Arroyo would bypass Carpio, who is the most senior, in favor of Corona.

SC rebuffs Ramos
If at all, Malacanang’s attempt to appoint a loyal ally in the SC faces challenge from jurisprudence.

In 1998, during the last months of the Ramos presidency, he attempted to get around the ban on appointments during election period.

Ramos had wanted the JBC to nominate a preferred candidate before he stepped down, and coursed through his plan through a member of the JBC.

Then Chief Justice Andres Narvasa saw through the plot and rallied the SC justices behind him to thwart President Ramos’s plan.

The Court stopped Ramos, couching its rebuff in a decision.

In that ruling, the Court was emphatic that Sec. 15, Article VII of the Constitution is clear that “ the President is neither required to make appointments to the courts nor allowed to do so.” (abs-cbnnews.com/Newsbreak)