MANILA, Philippines - Liberal Party (LP) standard-bearer Senator Benigno “Noynoy” Aquino III astounded the political and legal community when he threatened on Thursday that—if elected president—he will not recognize a new chief justice appointed by President Arroyo.

He also warned associate justices of the Supreme Court that they would be risking their tenure if they recognize a midnight appointment. (Read: Noynoy won't recognize GMA's replacement for CJ Puno)

Lawyers—critics, allies, and observers—reached by abs-cbnNEWS.com/Newsbreak had mixed reactions to the presidential survey frontrunner's strong statement. Some initially suggested that Aquino may have been misquoted. 

Some cautioned Aquino saying he made a “dangerous” move against a co-equal branch of government. Others supported the call, but not the attitude, while others said it’s a necessary warning.

Call to other candidates

Former Environment Secretary Fulgencio Factoran and Bayan Muna party-list Rep. Neri Colmenares—who want to uphold the constitutional ban on midnight appointments—called on other presidential candidates to make the same stand.
 
“I think it behooves the other candidates for President to weigh in on this issue, so that the people will realize who are willing to play possum in this deadly game of political gotcha,” Factoran said.

Colmenares made the call particularly to administration candidate Gilbert Teodoro, who is also a lawyer.

“This is a challenge to Gilbert Teodoro. He should speak out and defend the Constitution. If he doesn’t, it means his loyalty to President Arroyo is greater than his loyalty to the Constitution,” Colmenares said.
 
Dangerous?

Judicial and Bar Council (JBC) member Quezon City Rep. Matias Defensor initially could not believe Aquino had made such a threat. The JBC vets the nominees for the justices of the Supreme Court and the Ombudsman.

“It’s dangerous. It’s a threat and a slap to the Supreme Court as an institution. Amazing. Unbelievable,” Defensor told abs-cbnNEWS.com/Newsbreak.

Defensor thought Aquino must have been misquoted.

“The entire country can be in disarray. Only the Supreme Court should decide on this. Noynoy must have been misquoted. The statement is irresponsible,” he said in his first text message.

Administration ally House Speaker Prospero Nograles said that even if Aquino becomes President, it is not within his power to decide the controversy.

“That’s a dangerous statement. The final legal arbiter in any legal conflict or issue is still the Supreme Court itself. The chief executive only implements. This will cause chaos when the chief executive refuses to recognize a co-equal body,” Nograles said.

Constitutional crisis?

Lawyer Carlos Medina of the election watchdog Legal Network for Truthful Elections (Lente) said Aquino’s threat may cause a “constitutional crisis.”

“Unless nullified by the SC, the appointment will stand. Non-recognition will cause a constitutional crisis,” Medina said.

Defensor caused the controversy when he wrote the JBC in December 2009, reminding it to initiate the process of nominating the successor of Chief Justice Reynato Puno, who will retire on May 17, a week after election day. 

Puno’s retirement is within the constitutional ban on midnight appointments. But Defensor argued that the Supreme Court cannot have a “non-existent Chief Justice” in a period so crucial as presidential elections.

Acting chief justice will do

Critics of Defensor’s move argued that the associate justices can name an acting chief justice, as they have done in the past.

But Defensor said the acting chief justice may not get everybody’s respect. He said it is even more crucial because of fears that the 2010 elections may fail.

The JBC is yet to take up Defensor’s letter, but his proposal has been the talk of the legal and political community.

In defense of Aquino, LP spokesperson Quezon Rep. Lorenzo Tañada III said there was nothing irresponsible in the statement. 

“He was just stating the fact that the Constitution should be followed  and there should be no midnight appointments. The appointment of a Chief Justice-in-waiting is a midnight appointment since Chief Justice Puno has not yet retired from the SC,” Tañada said.

“Senator Noy[noy] recognizes that the SC has its processes once a chief justice retires. Senator Noy respects these processes and this should be followed,” Tañada added.

Disrespectful?

Nacionalista Party (NP) senatorial candidate Adel Tamano supported Aquino’s call that President Arroyo should not make the appointment. But he did not agree with Aquino’s “disrespectful” attitude towards the Supreme Court.

“As a lawyer and constitutional law professor, I must caution LP standard-bearer Senator Noynoy Aquino that his statement yesterday … is both dangerous and shows a lack of understanding of constitutional processes,” Tamano said.

Tamano agrees with Nograles that the judiciary has the final say on the issue. He also scoffed at Aquino’s threat to remove associate justices who will recognize a chief justice that President Arroyo will appoint.

“A sitting SC justice may only be removed by impeachment, which is a legislative process, and not by executive action. As a lawyer, I am alarmed by Senator Noynoy’s attitude toward the judiciary, which is a co-equal body with the executive branch,” Tamano added.

Colmenares, a lawyer, was also uncomfortable with Aquino’s threat against the Supreme Court even as he supports his call for President Arroyo not to make the appointment. (Bayan Muna is a member of the leftist Makabayan group, which supports the presidential bid of Senator Manuel Villar.)

“There is no constitutional mechanism to 'derecognize' a chief justice. The best thing to do is to do battle against attempts to appoint the new CJ now as it violates the constitution,” Colmenares said.
 
Necessary?

Aside from LP supporters, Aquino found an ally in former University of the Philippine College of Law Dean Pacifico Agabin.

He told abs-cbnNEWS.com/Newsbreak that he supports Aquino’s statement. “I agree. There’s an existing provision which allows SC members to choose an Acting Chief,” he said.

Factoran, who supports Aquino’s presidential bid, said the strong statement was necessary.

“I think Noynoy is correct in 'warning' those who are willing to be part of this ploy that they can not do this with impunity. There will be a price to pay for this novel and strange interpretation of the law,” Factoran said.

“Should the SC 'partner' of Gloria be a willing partner in this endeavor, he will be doing that after being warned in advance, so that he could no longer complain that the issue is being politicized at that time. The issue is politicized now,” Factoran added.

Factoran said Aquino is only giving voice to legal experts who feel “very uncomfortable” about the interpretations of the law by President Arroyo’s allies just to allow her to make the appointment.

Another lawyer intimately familiar with the SC, but who refused to be named, said there’s “no other way to shock and awe” the associate justices.