MANILA, Philippines - Will a proposal allowing President Gloria Macapagal Arroyo to appoint the next chief justice before she steps down in 2010 unveil a united Judicial and Bar Council for the third time around, or will it highlight streaks of loyalty to Malacañang?
 
This question hangs in the air as the JBC, the body which vets nominees for the judiciary to the President, is expected to vote Monday on the proposal of Congressman Matias Defensor to expedite the JBC's nomination of the replacement of Chief Justice Reynato Puno who is retiring on May 17.
 
Having the JBC submit its nominees early could give President Arroyo enough time to appoint the next chief justice before an appointment ban goes into effect.
 
The President is barred by the Constitution to make any appointments 2 months before the next presidential elections and until her term ends. Consequently, it is the next president already who should appoint Puno’s replacement.
 
Furthermore, court observers have warned that allowing Arroyo to pick the next chief justice raises the red flag on the independence of the Supreme Court as she has already appointed 14 out of its 15 sitting magistrates.   
 
This is the third time that the independence of the JBC is being tested. In 2009, Abs-cbnnews.com/Newsbreak reported that Executive Secretary Eduardo Ermita returned the JBC shortlist for the posts vacated by Justices Alicia Austria Martinez and Dante Tinga, and asked for additional nominees.

The JBC, in a unanimous vote, rejected Ermita’s request and stuck to their original nomination.
 
The JBC also stood by its decision to drop Justice Secretary Agnes Devanadera from the list of possible SC nominees despite initially flip-flopping on the implementation of its rule to disqualify contenders who have pending cases. Devanadera is known to have close ties to Arroyo.

JBC member and opposition Sen. Francis ‘Chiz’ Escudero told Abs-cbnnews.com/Newsbreak that he will object to Defensor's proposal. On the other hand, Devanadera, who became a JBC member after she was appointed justice chief last year, said she could not decide on the issue yet as she is not aware of Defensor’s move.  “I have no opinion,” she said in a phone interview.
 
Second time for Puno, Hermosisima
 
Worth noting are the positions to be taken by Puno and Justice Regino Hermosisima, the JBC executive director, on the matter.

In 1998, the two encountered the same dilemma when then President Fidel Ramos appointed Judges Mateo Valenzuela and Placido Vallarta to the Regional Trial Court Bago City and Cabanatuan City in March, two months before the presidential elections.
 
President Ramos also pressed the JBC in a letter dated May 4, 1998 to submit their nominations to the post vacated by SC Justice Ricardo Francisco, in observance of the Constitutional requirement that appointments to the judiciary must be made within 90 days upon the occurrence of the vacancy.  
 
But Chief Justice Andres Narvasa, who then headed the JBC, wrote him that the Council would only convene after the elections, as the Constitution prohibits the President from making appointments 2 months before the elections.
 
Unbeknownst to Narvasa, however, the JBC’s regular members, who then include Hermosisima, had already met with Justice Secretary Silvestre Bello and came up with a resolution asking the chief justice to convene the body on May 7 and decide on its shortlist, as the Council runs the risk of being accused of being "remiss in its duties."
 
The JBC said that if Narvasa does not convene the body, it will proceed in holding a meeting. “Should the Chief Justice be not disposed to call for the meeting aforesaid, the undersigned members constituting the majority will be constrained to convene the Council for the purpose of complying with its Constitutional mandate,” the JBC members said in the resolution.
 
Narvasa then convened the body, which eventually relented to allow him to answer Ramos’s plea. The SC later decided, with a 13-0 vote, that Article VII, Sec.15 clearly prohibits the President from making any appointments 2 months before the elections and voided the appointments of Valenzuela and Vallarta. Puno concurred with the majority.
 
No basis
 
Meanwhile, a look back at previous vacancies would challenge Defensor’s argument that the position of chief justice could not be left vacant "even for a day" as the Constitution mandates that the SC should be composed of 14 associate justices and one chief justice at all times.
 
UP College of Law dean Marvic Leonen said the Court could continue carrying out its functions, including deciding cases, even if there are only 13 magistrates. He pointed this out in light of the assertion of SC watchdog Bantay Korte Suprema that since Arroyo has rejected the original list submitted by the JBC for the vacancies created by the retirement of Tinga and Austria Martinez, she has in fact waived her right to make the appointments.
 
Hence, the replacements of Tinga and Austria Martinez could then be already appointed by the next president.   
 
Second, when then Chief Justice Marcelo Fernan resigned to run for the vice-presidency in 1992, the JBC did not immediately send its nominations, and Narvasa served then as acting chief justice.