MANILA, Philippines—-The Supreme Court ruling Wednesday allowing President Arroyo to appoint the next chief justice within the election appointment ban will effectively give the Chief Executive 2 more opportunities to name favored magistrates.

If she appoints a new chief justice before she steps down on June 30, she can also logically appoint another justice to fill the vacancy left by the one promoted to chief justice.

“By logical reasoning, she would not be barred to appoint the 15th member [of the court],” said Theodore Te, a faculty member of the University of the Philippines College of Law.

Chief Justice Reynato Puno, the only SC justice not appointed by Arroyo, is retiring on May 17, which is within election period when the President is banned from making appointments.

This has prompted Quezon City Rep. Matias Defensor, a member of the Judicial and Bar Council (JBC) and an Arroyo ally, to ask the council to submit to the President a list of possible successors of Puno.

He said there’s the danger that if the election fails and all elective officials end their terms by mid-day on June 30, there won’t be a chief justice to preside either to resolve whatever issues will arise. The JBC brought the issue to the Supreme Court.

The SC, in a vote of  9-1, departed from its 1998 decision on the case Re: Villarta and Valenzuela, where it ruled that the president cannot name members of the judiciary within the period covered by the ban, which starts 2 months before the elections and extends up until June 30. (The ban officially started on March 10.)

Next president deprived

Former Justice Secretary Franklin Drilon said in a statement: “While I do not agree with the SC decision, I will respect it, even as it lifts the ban against midnight appointments established by the High Court itself in the case of Aytona v. Castillo in 1963 to uphold the decision of then President Diosdado Macapagal setting aside the midnight appointments made by his predecessor President Carlos Garcia.”

However, even if President Arroyo appoints only a new chief justice and not anymore the new magistrate who will fill Seat No. 15, she will have the reins of the highest court.

Four of the contenders for the post of chief justice each have at least 6 years before their mandatory retirement age of 70. This means the next president will finish his term in 2016 without getting the chance to appoint his own chief justice.

The most that the next president will be able to do is appoint 3 junior members of the tribunal, but starting only in 2011. He can make a fourth appointment to fill the vacancy left by the new chief justice named by Arroyo—that is, if President Arroyo doesn’t immediately fill that seat also during the election ban.

The 2 frontrunners for chief justice—Justices Renato Corona and Antonio Carpio—will serve until 2018 and 2019, respectively. Justice Arturo Brion will retire in 2016; Justice Teresita Leonardo de Castro, in 2018.

Appointing 1 of them will already deprive the new president the chance to name a chief justice.

Only 3 jurists will leave the high court during the term of Arroyo’s successor—Justices Conchita Carpio-Morales and Justice Antonio Nachura will retire in 2011; Justice Roberto Abad, in 2014.

Bayan Muna Rep. Teddy Casiño, who is planning to appeal the Supreme Court decision said, “This now institutionalizes midnight appointments in the judiciary and gives outgoing presidents a means to pack the courts with their lackeys in order to be protected from conviction when they lose their immunity.”

SC not covered

Justice Lucas Bersamin penned the SC’s decision promulgated Tuesday. Justices Jose Perez, Roberto Abad, Martin Villarama, Arturo Brion, Teresita Leonardo de Castro, Mariano del Castillo, and Diosdado Peralta concurred, while Justice Conchita Carpio-morales dissented.

According to SC spokesman Midas Marquez, Justice Bersamin and 4 others in the majority said that the appointment ban only covers the executive branch, not the judiciary.

The other 4 who concurred with the decision said that the ban extends only to the lower courts.

Meanwhile, Justices Eduardo Nachura and Presbitero Velasco said that the case was premature.

The frontrunners to the post, Justices Antonio Carpio and Renato Corona, also did not participate in the case.

Chief Justice Puno inhibited from the case because he chairs the JBC, the body that vets nominees for the judiciary for the appointing authority, the President. The JBC is the respondent in the petitions lodged before the Court.

Puno’s decision to inhibit was the complete opposite of what Chief Justice Andres Narvasa did in 1998, when the SC was first confronted with this issue. Narvasa blocked the appointment by then President Fidel Ramos in the absence of an SC decision and later convened the Court.  

JBC's call

Former special prosecutor Dennis Villa-Ignacio told Newsbreak that the next battleground will be the JBC.

The JBC runs the risk of being held in contempt of court if it does not submit its shortlist. SC’s Marquez said the JBC has been given until May 17 to submit the list.

But Drilon pointed out, “While the Supreme Court ruling said the President can appoint the next Chief Justice, it did not say she should.”

The President has 90 days to appoint a new chief justice from the time of the occurrence of the vacancy. If the council sends its nominees only after June 30, the new president still has 44 days to pick the new chief justice from the list.

Two of the JBC members may not be able to vote on the nomination, however.

Lawyer Nestor Leynes III has filed a motion for inhibition against JBC member Justice Regino Hermosisima because he has yet to be confirmed by the Commission on Appointments.

The new justice secretary, Alberto Agra, also sits in the JBC on ad interim basis.

Rallies or appeal?

Totsie Cadiz, executive director of the lawyers’ group Libertas, said that the SC decision may just trigger waves of protest because the case has become already "political."

"By this point, the case has transcended legalities. This becomes a political issue. The opposition should be raised to a political level already, not within the legal framework," he told Newsbreak.

Former Ombudsman Simeon Marcelo said that public opinion may just spell the difference. "The SC, JBC are also composed of people. They also listen to public opinion." 

Protests have already been conducted prior to the SC decision.

At around 1 am of March 10, the UP Law Student Government lit candles in front of Malcom Hall to denounce the naming of Puno’s replacement within the election ban.

On March 8, the Eastern Visayas and Southern Luzon chapters of the IBP held a solidarity march to oppose Arroyo’s naming of the next chief justice.

The legal option left is to file a motion for reconsideration. Marcelo cited the case on the constitutionality of the cityhood of 16 municipalities, where the Court entertained a motion for reconsideration thrice.

But Cadiz said this could be a futile exercise. He said that given the current composition of the high court, where 14 out of 15 justices have been appointed by Arroyo, the SC will not likely change its mind this time around.

The decision favored 3 petitioners—former Solicitor General Estelito Mendoza, lawyer Arturo de Castro (father of Assistant Justice Secretary Jose Arturo de Castro), and the Philippine Constitutional Association. They asked the SC to compel the JBC to submit its shortlist to Arroyo so that she can pick the new chief justice.

Lawyer Jaime Soriano, the Eastern Visayas and Southern Luzon chapters of the IBP, and the Philippine Bar Association argued otherwise. (Newsbreak)