MANILA, Philippines - Malacañang has asked the Supreme Court (SC) to compel the Judicial and Bar Council (JBC) to submit to President Arroyo its shortlist of nominees for the top post in the high Court which will be vacated by Chief Justice Reynato Puno on May 17 upon reaching the mandatory retirement age of 70.

A 34-page comment was filed by Solicitor General Alberto Agra which backed the petitions earlier filed by lawyers Arturo De Castro and Estelito Mendoza as well as the Philippine Constitution Association (Philconsa). The petitions sought the high Court’s resolution of the issue of whether or not the JBC should submit its shortlist of nominees to President Arroyo for the Chief Justice post.

“The nature of respondent JBC’s function is executive. The present Constitution has not conferred legislative nor judicial powers on it. Accordingly, it is not vested with power to resolve issues. It has no discretion to withhold the list from the President. Nor does it have jurisdiction to determine whether the incumbent President can appoint the next Chief Justice in light of the peculiar circumstances of this case. Such jurisdiction lies in this Honorable Court,” Agra said.

The OSG said that the Court can issue a writ of mandamus to compel the 8-man JBC to perform its duty to submit its list of nominees to Mrs. Arroyo.

The OSG maintained that the position of Chief Justice is the most important appointment vested by the Constitution to the President. It said a prolonged vacancy particularly during a critical period such as an election period should be avoided.

“It is quite expected that there will be a deluge of cases involving sensitive political issues before this Honorable Court. National interest compels the President to make such appointment for it is particularly during this crucial period when national leaders are seeking fresh mandates from the people that the Supreme Court, more than at any other time, represents stability. Hence, a full court is ideal to ensure not only due deliberation on and careful consideration of issues but also expeditious disposition of cases,” it explained.

The OSG, in its comment tot the SC, added that the submission of the shortlist is necessary to give the President ample time to scrutinize the nominees.

Agra also argued that the election ban on midnight appointments under Section 15, Article VII of the Constitution does not cover the chief justice post based on the deliberations of the framers of the 1987 Constitution.

The comment prepared by the OSG noted that if the Chief Justice post will not be filled out during the time of Mrs. Arroyo, a violation of Section 4, Article VII of the Constitution would occur. The section requires a 90-day period within which an SC justice must be appointed.

Agra explained that the appointment ban lasts from 109 to 115 days in regular elections.

“No justiciable controversy”

Maenwhile, lawyer Alfonso Tan and the Integrated Bar of the Philippines (IBP) – Davao del Sur chapter sought to intervene in the issue pending before the SC.

Tan said that it is his duty as a lawyer to intervene and be heard on the issue as it involved the provisions of the Constitution he swore to uphold.

In his motion-intervention, Tan questioned the legal standing of De Castro to file a petition in his capacity as a citizen and taxpayer seeking to compel the JBC to submit its shortlist of nominees to Mrs. Arroyo for the appointment of a Chief Justice.

“In fact, petitioner is not even an applicant or a nominee for the position of Chief Justice. Hence, he does not possess a personal, direct and substantial interest in the case such that he will be required, nor is he is in danger of suffering an injury from the act of the respondent JBC in not submitting a list of nominees to respondent President Gloria Macapagal-Arroyo for the position of Chief Justice,” Tan said.

Tan insisted that there is no justiciable controversy that would allow the high Court to take cognizance of the petition since the JBC has yet to complete its selection process.

“Clearly, there is, as yet, no clash of legal rights or opposing legal claims. Petitioner has not even shown that respondent JBC has already completed its selection process for inclusion in the list of nominees to be given to respondent President Arroyo. Thusly, petitioner is merely presenting a hypothetical scenario before the Honorable Court. This, however, is clearly not sufficient for the Honorable Court to exercise its power of judicial review,” Tan added.

The IBP-Davao del Sur chapter agreed with Tan that de Castro’s petition was filed prematurely.

The IBP chapter, through its former president Israelito Torreon, said that the election ban on appointments under Section 15, Article VII of the Constitution is also applicable to the judiciary.

It cited the case of Mateo Valenzuela and Placido Villarta whose appointments as judges of the RTC of Brach 62, Bago City and Branch 24, Cabanatuan City, respectively, by then President Ramos was barred owing to the election ban on appointments.

“The President cannot appoint a Chief Justice when Puno retires on May 17 because she is constitutionally banned from doing so by virtue of Section 15, Article VII of the Constitution…,” the IBP chapter’s motion added.