9 justices say ban on midnight appointments doesn't cover judiciary

MANILA, Philippines (4th UPDATE) - The Supreme Court on Wednesday ruled that President Gloria Macapagal Arroyo can appoint the replacement for retiring Chief Justice Reynato Puno despite a 60-day constitutional ban on midnight appointments before presidential elections.

Nine justices voted in favor of allowing Arroyo to appoint the next Chief Justice: Lucas Bersamin, Jose Perez, Roberto Abad, Martin Villarama, Teresita de Castro, Arturo Brion, Jose Mendoza, Mariano del Castillo and Diosdado Peralta.

Only one SC magistrate, Conchita Carpio-Morales, gave a vote of dissent.

Two SC justices, Antonio Eduardo Nachura and Presbitero Velasco Jr., said the case was premature while 3 other magistrates, Antonio Carpio, Renato Corona and Chief Justice Reynato Puno, took no part in the vote.

A radio dzMM report said that SC magistrates ruled that President Arroyo can appoint any replacement for vacant positions in the judiciary until her term ends in June 30. The decision came after an hour of closed-door deliberations by the Court en banc.

The magistrates also ordered the Judicial Bar and Council (JBC) to submit to President Arroyo its shortlist of possible nominees for chief justice. Puno, the incumbent Chief Justice, is retiring on May 17.

The high court earlier asked the JBC to comment on several petitions questioning the President's plan to appoint the next chief justice, but the JBC deferred the matter to the SC.

Arroyo's critics have insisted she cannot name Puno's replacement because of the constitutional ban on presidential appointments 2 months before the elections and until the end of the president's term.

Except for Puno, all SC justices are Arroyo appointees.

No ban on judiciary appointments

SC spokesman Midas Marquez said that the 9 justices who voted in favor of Mrs. Arroyo's right and duty to appoint the next Chief Justice were almost unanimous in opinion that the judiciary is not covered by Article 7, Section 15 of the 1987 Constitution, which solely covers the executive branch of the government.

The provision says: "Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety."

Marquez said that according to the 9 justices, the President has the duty to fill up vacancies in the judiciary as orderd by Article 8, Section 4, which says: "The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof."

He said the only difference in the opinions of the 9 justices pertains to appointments to the lower courts.

He said that based on the main decision of Justice Bersamin and supported by 4 other justices, "the appointments of the judiciary is not covered by the election ban, mainly because the election ban only covers appointments to the executive department."

Bersamin's group said the SC should overturn an earlier decision that disallows the president from making appointments to the lower court, which is being cited by several groups as one of the reasons why Arroyo should not appoint the next chief justice.

Marquez said Justice Brion and 3 other justices believe that the election ban on midnight appointments does not cover the judiciary, but they believe that an incumbent President should be banned from making appointments to the lower courts during the prohibited period.

SC decision praised, reviled

Acting Justice Secretary Alberto Agra, meanwhile, praised the Supreme Court for siding with the position of the Office of the Solicitor General that Mrs. Arroyo can appoint the next chief justice.

"We are appreciative of the positions taken by the Supreme Court affirming the authority of the sittting president to appoint the next chief justice upon its vacancy on May 17," he said in an ANC interview.

He added: "Under our rules, the aggrieved parties can still file respective motions for reconsideration. In the event that such motions are filed, the SC will also resolve the same in the soonest possible time."

For his part, Bayan Muna Rep. Teodoro Casiño said their group would definitely appeal the SC's latest decision. He said the ruling sets a bad precedent "to future situations that may arise."

"We will be studying the decision and especially looking at the dissenting opinions and probably come up [with a plan], if there is a need for legal action," Casiño said in a separate ANC interview.

He said Bayan Muna and other groups were expecting the SC to uphold an earlier decision, where justices disallowed former President Fidel Ramos, from making appointments during an election period.

"Although it is true that she (President Arroyo) has 90 days to appoint the next chief justice, this can be passed on to the next chief executive. The SC should have stuck to its original ruling in the Ramos case," he insisted.

Agra said the SC decision now allows the JBC to continue its screening process of possible nominees for chief justice. He said the JBC, of which he is a de facto member, is now conducting background checks on all the nominees.

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. Of the 5, Carpio and Carpio-Morales have said that they will only accept a nomination if the appointment will be made by the next President.

Agra said that with the SC decision, the JBC will ask the 2 justices "if the same condition still applies now and conduct the necessary interviews if that is the decision of the JBC."

New chief justice faces impeachment

On Tuesday, retired Ombudsman Simeon Marcelo said various anti-corruption groups will file an impeachment case at the House of Representatives of the 15th Congress against the new chief justice to be appointed by President Arroyo.

Marcelo and Vince Lazatin, convenor of the Transparency and Accountability Network and SC Watch, voiced fears that the appointment of the new chief justice is part of a scheme to extend President Arroyo's hold on power.

Critics cited several scenarios:

• in the case of failure of elections, President Arroyo could ask the Supreme Court to make her caretaker president until a winner is proclaimed

• President Arroyo could also be elected Speaker of the House in a special session after she is elected congresswoman of Pampanga's 2nd District

• President Arroyo could declare martial law in the event that there is massive chaos and unrest.

Critics have said the appointment of the next chief justice is crucial for Arroyo because of the expected number of cases to be filed against her when she steps down.

They added that the appointment of Gen. Delfin Bangit as the new Armed Forces chief of staff is supposed to ensure that the military stays behind Arroyo in a failure of elections scenario.

Earlier reports said Malacañang is favoring Corona  to become the next chief justice. Corona's voting record shows he consistently favored the Arroyo administration in politically-significant cases. With reports from ANC; RG Cruz, ABS-CBN News; and Nelson Lubao, radio dzMM