MANILA, Philippines - Two former justices have warned that the decision of Malacañang to name the next Chief Justice would severely undermine the independence and integrity of the judiciary.

Retired Justices Angelina Gutierrez and Alicia Austria-Martinez also called on Chief Justice Reynato Puno Jr. to exercise leadership in defending the Supreme Court from maneuvers to weaken the institution.

In a statement entitled “Defending the Last Bastion of Democracy,” Gutierrez and Martinez said the ban on midnight appointments for an outgoing President is absolute, and any attempt to appoint a new Chief Justice during the prohibition would be “illegal.”

The two former justices said Sec. 15, Article VII of the Constitution, which contains the provision against midnight appointments, “are clear and unambiguous” and “does not need any interpretation.”

Under the provision, a President cannot make any appointments two months prior to the next presidential elections and up to the end of his or her term.

Gutierrez was an appointee of President Estrada while Martinez was an appointee of Arroyo.

A third retired justice who was also an Arroyo appointee, Romeo Callejo, has also signified his intention to join Gutierrez and Martinez in their public statement.

A hornet's nest

The move by the Judicial and Bar Council (JBC) to prepare the shortlist for the Chief Justice post has stirred a hornet’s nest, with critics interpreting it as Malacañang’s move to protect Arroyo from charges to be filed against her once she steps down from office.

Vacancies in the judiciary and the Ombudsman are filled up based on the shortlist vetted by the JBC and submitted to the President. In the past, it has been the practice of the JBC to submit a list to Malacañang before the vacancy is created. Even if a list is already with Malacañang, the President makes the appointment only after the vacancy is created.

But in the case of Puno's retirement, President Arroyo's allies, including those in the JBC, want the body to submit its shortlist as soon as possible so that  Arroyo can name his replacement.

Puno is retiring on May 17, which is well within the period of the election ban on midnight appointments. It has been argued that the President cannot make an appointment until there is a vacancy.

The move to start the nomination process for a new Chief Justice was triggered by JBC member and Quezon City Rep. Matias Defensor, an ally of the President.

The two former lady justices said relaxing the interpretation of the ban on appointments would allow “an outgoing President to perpetuate her power beyond her term.”

Acting Chief Justice will do

They said the Supreme Court, as an institution, can very well manage itself even without a regular Chief Justice for a number of days.

“The temporary vacancy in the office of the Chief Justice is an ordinary occurrence that the SC has faced many times,” they said.

They said that in cases where there have been no appointments, the most senior justice assumes the role until the regular appointment is made.

“This system has long survived. It may not, however, survive when a Chief Justice is appointed in culpable violation of the Constitution and the transgression of the people’s trust,” they said.

The retired magistrates asked Arroyo “to respect the Constitution, exercise prudence and restraint and leave the appointment of the new Chief Justice to the next President.”

They also asked the JBC to guard its constitutional independence from Malacañang.

12 senators sign resolution on CJ

Meanwhile, 12 senators have signed a proposed resolution expressing the Senate’s objection to Malacañang's move to appoint a new Chief Justice.

Senate Resolution 1550 states that the President is prohibited to appoint from March 10, 2010 until June 30, 2010. The period for filling a vacancy in the Supreme Court lasts until August 17, 2010. Thus, the new President still has 45 days to make the appointment.

Resolution 1550 was signed by Senators Francis Pangilinan, Edgardo Angara, Benigno Aquino, Rodolfo Biazon, Alan Cayetano, Pia Cayetano, Jinggoy Estrada, Gregorio Honasan, Jamby Madrigal, Aquilino Pimentel, Mar Roxas, and Antonio Trillanes.