As JBC defers proposal to appoint Puno replacement

MANILA, Philippines - President Arroyo cannot appoint in advance a replacement for Chief Justice (CJ) Reynato Puno simply because the position is not yet vacant, an authority on constitutional law said.

This developed as the Judicial and Bar Council (JBC), whose ex-officio chair is Puno, deferred action Monday on the proposal of Quezon City Rep. Matias Defensor for the body to start the nomination process for Puno’s replacement.

The JBC is the body that vets nominees to the judiciary and the Ombudsman.

Former Supreme Court Justice Vicente Mendoza told abs-cbnnews.com/Newsbreak said that even if the JBC comes up with its shortlist, the President is barred from appointing someone from the list since the chief justice’s post is still occupied.

Puno retires on May 17, which is well within the constitutional ban on midnight appointments.

The Constitution bars the President from making appointments two months before the presidential elections. The prohibition lasts until her terms ends on June 30.

Nomination part of appointment process

Mendoza said that if the JBC starts with the nomination, the procedure is still questionable “since the nomination is part of the appointment process.”

Defensor triggered the debate on whether the President could appoint a chief justice-in-waiting after urging the body to begin the nomination process for the judiciary’s top post. He formally wrote the JBC to seriously consider the matter.

Defensor is the House of Representatives’ ex-officio member to the JBC.

Although he did not mention the ban on appointments during elections, Defensor referred to it by raising the possibility of a Supreme Court without a Chief Justice when Puno retires.

He argued that the chief justice post should not be left vacant “even for a day.”

Ban on appointments absolute

Mendoza said the ban on presidential appointments during the elections as stated in the Constitution “is absolute, except when the exigency of public service calls for it.

“For instance, if there is a need to appoint a new chief of staff in the Armed Forces, the President may be exempted from the ban,” Mendoza said.

But in the case of the Supreme Court, such exigency does not exist, Mendoza said.

Besides, the position can still be filled by an acting chief justice, “who is automatically the most senior of the justices,”  until such time that the next chief justice is appointed.

After Puno, the most senior justices by order of appointment are Justices Antonio Carpio, Renato Corona and Conchita Carpio-Morales.

Corona is Malacañang's bet?

Court observers, however, say Malacañang’s bet is Corona following a perceived falling out between Arroyo and Carpio.

Carpio has been voting against Malacañang’s interests while Corona has been an ardent Palace supporter.

Critics have speculated that President Arroyo wants to appoint a friendly chief justice to protect her interests once she is out of power.

Mendoza cited the Brillantes versus Yorac case decided in 1996, where the SC allowed the Commission on Elections to appoint its own temporary poll chair following a vacancy and pending the appointment of a new Comelec chair.

In that particular case, the Court ruled that the acting chair “cannot be designated (by anyone) except by the Comelec.”

The acting chief justice will stay in his post until the next President appoints the new chief justice.

Mendoza said proprietary also demands that the JBC refrains from submitting a list to Malacañang “which could tie the hands of the next President.”

Malacañang’s allies have argued that it is within the President ‘s powers to appoint Puno’s successor this early, saying that the prohibition only applies to executive posts.

In a phone interview, Defensor said politics was out of the question when he aired his proposal for the appointment of a Chief Justice-in-waiting. “It is the JBC's duty to recommend nominees to the SC,” he stressed.

JBC's initial deliberations

Meanwhile, sources privy to Monday’s initial deliberation by the JBC on the Defensor proposal revealed those who are supportive of appointing a Chief Justice-in-waiting, (Read also: Chief justice-in-waiting proposal tests JBC independence)

JBC executive director former Justice Regino Hermosisima Jr. told his JBC colleagues that he agrees with Defensor’s proposal.

On the other hand, Justice Secretary Agnes Devanadera said there is no ban on the part of the President to appoint.

Other members of the JBC are Dean Amado Dimayuga, lawyer J Castro, former Court of Appeals justice Aurora Lagman, and Senator Francis Escudero.

One of the sources said Puno’s position “cannot be discerned,” although he mentioned that “whichever the JBC goes (on the Defensor proposal), the issue will reach the SC.”