MANILA, Philippines—The constitutional ban on midnight appointments has been in effect since last week, March 10. But the Supreme Court may just allow President Arroyo an exception and let her appoint the successor of Chief Justice Reynato Puno when he retires on May 17.

A favorable ruling might be a self-inflicted wound, with the Court undermining its own independence.

The Supreme Court is expected to deliberate on the case in its en banc meeting today (March 16).

How the Supreme Court will decide on this issue—the last important case for President Arroyo while she’s in power—will show just how far her appointees will kowtow to her.

The case also puts the SC justices in a peculiar situation because their decision would ultimately spell the fate of their colleagues. Five of the 15 sitting SC justices—Justices Arturo Brion, Antonio Carpio, Conchita Carpio-Morales, Renato Corona and Teresita de Castro—are vying for the position . But Carpio and Carpio-Morales have said that they will only accept a nomination if the appointment will be made by the next President.

The issue began in December, when administration ally Quezon City Rep. Matias Defensor—raising concerns on the dangers of a vacuum in the Supreme Court—wrote the Judicial and Bar Council to allow President Arroyo to make an early appointment. The proposal was immediately followed by mixed views from legal and political communities. Petitions have since been filed with the Supreme Court.

Despite long and heated debates in the academe and the media, the Supreme Court Chief Justice has not taken a position. Puno refused to join the debates and instead inhibited himself from the case on the ground that he is the chairman f the JBC, a respondent in the petitions lodged before the Court.

(See related story: Why Corona, Carpio should not become CJ, according to critics)

In 1998, when the Court faced a similar situation, then Chief Justice Andres Narvasa stood his ground and wrote President Ramos that the ban applies to the judiciary and not just to the executive department. Eventually, the Court, in a unanimous decision, upheld the constitutional ban on midnight appointments in the judiciary.

Will the High Court affirm this decision? Or will the court reverse this unanimous ruling?

Interested parties

The petitions to allow and to not allow President Arroyo to make the appointment were led by hotshot lawyer Estelito Mendoza and the Integrated Bar of the Philippines, respectively.

In a petition before the Supreme Court, the Eastern Visayas and Southern Luzon chapters of the Integrated Bar of the Philippines cited a 1998 Supreme Court ruling. Puno, who was then a new member of the Court, concurred in this decision.

In the case In Re:Villarta and Valenzuela, the Court voted 13-0 to uphold Article 7, Sec.15 of the 1987 Constitution, which states that the President is prohibited from making any appointments two months before the elections and until her term ends on June 30. The decision is categorical in saying that the ban covers the members of the judiciary.

On the other hand, Mendoza is joined in his petition by Philippine Constitutional Association (Philconsa) legal counsels Arturo de Castro and Jaime Soriano.

Various parties have filed petitions for intervention, but they have not been recognized. The pleadings on the case were limited to the petitioners and the JBC.

“If it's noted, no action is taken,’ said lawyer Neri Colmenares of the Bayan Muna party-list group.

The supporters and critics of Defensor’s proposal are not exactly disinterested parties.

Philconsa head lawyer Manuel Lazaro later nominated Justice Edilberto Sandoval to become the next chief justice. On the other hand, retired judge Hector Corpus, a subordinate in Lazaro’s law firm—M.M. Lazaro and Associates law firm—nominated Corona.

Another group that that opposed moves to allow President Arroyo to appoint the next chief justice is the Philippine Bar Association. One of the group’s advisers is President Arroyo’s former legal counsel, Avelino Cruz, who co-founded a law firm with now Associate Justice Antonio Carpio.

Oral arguments

The case was earlier raffled to Associate Justice Lucas Bersamin, who is known as an ally of the President. What is not clear is whether or not the Court will decide to hold oral arguments to allow public involvement in the contentious case. So far, indications are the Court seems to be fast-tracking the case. No oral arguments have been scheduled and we gathered that Chief Justice Puno gave quick deadlines to file dissenting opinions.

(Puno starts his two-week wellness leave March 17, leaving the Court to the hands of the next most senior member Antonio Carpio.)

The SC has held oral arguments on significant cases – in changing the charter through people’s initiative, (Lambino, et al. v. Comelec) in corruption in big-ticket government contracts (PIATCO case), the constitutionality of the poll automations, and also of the Memorandum of Agreement on Ancestral Domain, which was to be executed between the government and the Moro Islamic Liberation Front.

Lawyers who are against President Arroyo’s appointment of the next chief justice are split on the wisdom of holding oral arguments.

Those in favor of oral arguments insist that allowing petitioners to argue their case before the justices could spell the difference.

Colmenares, who is also a member of the National Union of People’s Lawyers, wants the SC to hold oral arguments. He said this is to make sure that decision-making is not reduced to “internal agreements” among the magistrates.

Colmenares said his colleague at the Bayan Muna party list group, now senatorial candidate Satur Ocampo, is preparing a motion to call on the SC to hold oral arguments.

“The SC should hold oral arguments to ensure that an active exchange takes place between the justices and the public, instead of just among themselves,” Colmenares told Newsbreak.

Lawyer Marlon Manuel of the Alternative Lawyers’ Group has the same position. “It is an important case. There should be oral arguments,” he said.

But Nationalista Party legal counsel and senatorial candidate Adel Tamano is not in favor of holding oral arguments. He said oral arguments would only “justify the issue [of midnight appointments].”

“If we hold oral arguments…it will give the impression that there is legal basis, it will just muddle the issue [of midnight appointments],” he told Newsbreak. (Newsbreak)