MANILA, Philippines--In its decision Wednesday allowing midnight appointments to the judiciary, the Supreme Court said that the President, "in an extreme case," can appoint a chief justice even in the absence of a shortlist from the Judicial and Bar Council (JBC).

"As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the President--any President--to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court," the SC said.

The SC did not elaborate on what constitutes an "extreme case," however.

This can dash the hopes of those opposed to President Arroyo appointing a new chief justice before she steps down. They are hoping that the JBC, the body which screens and vets aspirants to the judiciary for the Chief Executive, will delay submitting a shortlist of nominees until President Arroyo runs out of time.

The 1987 Constitution prohibits the President from making any appointments 2 months before the elections and until her term ends on June 30.

The SC recently reversed a decade-old decision, however, which states that the appointment ban covers the judiciary. It also ordered the JBC to send its nominees to the president on or before the retirement of Chief Justice Reynato Puno, who is due to hang his robe on May 17.

Only to outsiders
Under the Constitution, the President is mandated to pick her appointees from a shortlist prepared by the JBC. Article VIII, Section 9 states that, “The Members of the Supreme Court...shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation.”

But the SC explained that Article VIII, Section 9, applies only to outsiders, or those who are not sitting justices.

“The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC,” the Court said.

Since 1988, however, the Chief Executives have relied on the shortlist of the JBC for their appointees to the judiciary. If Arroyo would avail of this latest interpretation by the SC, she will be the first president to appoint a chief justice without a shortlist from the JBC.

JBC member Justice Regino Hermosisima also said in a 2006 speech that, "Only those nominated by the Council in a list to be officially transmitted to the President may be appointed by the latter as Justices or Judges or as Ombudsman or Deputy Ombudsman."

Through Con-con?
The SC also said that in the event that a constitutional convention (con-con) is formed, the delegates should consider proposing that the President can appoint a chief justice even without a shortlist from the JBC.

"It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile’s statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list," the SC said in the decision penned by Justice Lucas Bersamin.

The constitutional convention is one of the modes of amending or revising the charter. Delegates to the con-con are either elected or appointed by the President.

Several proposals for changing the 1987 Constitution through a con-con have emerged from both houses in Congress. (Newsbreak)