MANILA, Philippines - Even without a formal petition filed before it, the Supreme Court (SC) on its own could put an end to the raging controversy surrounding President Gloria Macapagal Arroyo’s possible naming of a chief justice during the period covered by the election appointment ban, according to constitutionalist Fr. Joaquin Bernas.

In a forum organized by the watchdog group Supreme Court Appointments Watch (SCAW), Bernas, dean emeritus of the Ateneo de Manila Law School, said the SC, motu propio or on its own accord, could rule on the constitutionality of Arroyo’s selection of a replacement for Chief Justice (CJ) Reynato Puno.

If Arroyo forces the issue and appoints the next chief justice, he said the SC could strike it down without waiting for a party to lodge a petition. 

Puno will retire on May 17, and Mrs. Arroyo would then have 44 days left in office.

Under the 1987 Constitution, an outgoing president is barred from making appointments two months before an election and until the end of his or her term. In the case of Mrs. Arroyo, she cannot issue midnight appointments from March 10 to June 30.

Precedent cases

Citing the case involving the disputed appointments of judges Mateo Valenzuela and Placido Vallarta to the Regional Trial Court (RTC) in May 1998, Bernas stressed that the SC en banc went ahead on its own and invalidated the judges’ appointments since these were well within the period covered by the election appointment ban.

Sen. Franklin Drilon, a former Judicial and Bar Council (JBC) member, said that in this particular case, no other party was involved, and the SC treated it as an administrative matter right after then Chief Justice Andres Narvasa received the letters from Malacañang appointing Valenzuela and Vallarta to the RTC.

However, Drilon said he doubts the current SC would, on its own initiative, take this step. He noted that 14 out of the 15 sitting justices were appointed to the High Court by Mrs. Arroyo.

Puno was appointed to the bench by former President Fidel Ramos, but he was named Chief Justice by President Arroyo in December 2006.

Surprised with Puno's stand

Puno’s stand on the matter would have been instructive on how SC will handle the issue, but Bernas admitted he "cannot understand" why the chief justice made a recent statement supporting the argument that the chief justice post should not be left vacant during the election period. 

Puno said having a chief justice is crucial once election cases start to roll in. The chief justice chairs the Presidential Electoral Tribunal, which resolves disputes involving the presidential race.

JBC member Rep. Matias Defensor, a known Arroyo ally, gave the same reason when he proposed that the JBC hold an early nomination for Puno’s replacement. He did not attend the forum although he confirmed that he would.

Bernas shook his head at this opinion, noting that an acting chief justice could head the Presidential Electoral Tribunal. “All I can say is I cannot understand why Puno is saying that,” he said.

Constitutional crisis feared

In the event the JBC does not submit a list and President Arroyo appoints a chief justice during the period of the appointment ban, Bernas said this would trigger a constitutional crisis as this would be a blatant violation of the Constitution.

He said the worst-case scenario is widespread protest in response to Arroyo's midnight appointment. Asked if he would join the protest, Bernas said: "Why not?"

Drilon said the Integrated Bar of the Philippines (IBP), which comprises all those who passed the bar, should lead the protest.

IBP chief of staff and general counsel Rodolfo Urbiztondo said the IBP does not have an official stand yet on the issue. 

'Accessory to the crime'

Bernas said that a justice who accepts an appointment under these circumstances would be an "accessory to the crime" since the appointment would constitute a "culpable violation of the Constitution," and this means the new chief justice may be impeached.

Drilon urged the JBC not to submit a list of nominees during the period of the election appointment ban since Mrs. Arroyo will surely take advantage of it and appoint a new chief justice.

In case this happens, Drilon said he will seek an injunction from the Supreme Court. He supported Bernas' view that the SC, motu propio or on its own, may stop the JBC from submitting its list of nominees to the president.

Possible compromise

Bernas said it is possible to implement the two contradictory provisions in the Constitution on the election appointment ban and the need to fill the vacancy in the Supreme Court within 90 days from time Puno retires on May 17.

The solution, Bernas said, is to prevent President Arroyo from naming the next chief justice and to just let the next president make the appointment. He noted that the next chief executive would still have 45 days left or until August 15 to choose the next chief justice from the time he or she assumes office on June 30, 2010.

This way, Bernas said the two provisions in the Constitution would be followed.

Bernas and Drilon said no less than the credibility of the Supreme Court is at stake, especially if the next president does not recognize Arroyo's appointment of the new chief justice.

Stop the JBC

Meanwhile, amid a heated debate over the issue, the JBC last Wednesday opened the application for the next chief justice with more than 100 days to go before Puno leaves the top post in the judiciary.

SCAW executive director Vincent Lazatin decried that this move is highly "abnormal" since the JBC usually starts accepting applications 40 days before a vacancy is created.

Bernas said, however, that opening the selection process does not violate the Constitution.

The legal problem only arises when the JBC transmits its shortlist to the Office of the President. Bernas noted that Arroyo would still have ample time to appoint the Chief Justice if the list is submitted right after Puno's retirement.

But Bernas said the JBC may be prevented from submitting its list if the SC issues a temporary restraining order. -- with a report from Maricar Bautista, ABS-CBN News