The forthcoming retirement of Chief Justice Reynato Puno and President Arroyo’s impending exit from power presents an interesting legal question that will have an impact not only on our Supreme Court, but on our country’s future as well.

It will also provide the answers to persistent questions whether the Arroyo administration will leave behind a Supreme Court that will continue to enjoy a perception of judicial independence.

Chief Justice Puno retires in four months, on May 17, 2010, after the country had elected a new President, and 45 days before the constitutionally-mandated transfer of presidential power from President Arroyo to her successor on June 30, 2010 had transpired.

In a letter dated December 22, 2009, Rep. Matias Defensor, a member of the Judicial and Bar Council, urged his colleagues in the JBC to nominate the successor of the Chief Justice even before he retires on May 17, 2010.

The paramount question is: Under the 1987 Constitution, can an outgoing President Arroyo still appoint the successor of Chief Justice Puno?

Article VIII, Section 4(1) of the Constitution provides that any vacancy in the Supreme Court shall be filled within ninety days from the occurrence thereof.

On the other hand, Article VII, Section 15 of the same Constitution provides that after 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 or endanger public safety.

A precedent case in this situation would be the 1998 Supreme Court case entitled In Re Appointments of Valenzuela and Vallarta, wherein the high tribunal was confronted with the question of whether, during the period when appointments are banned, the President was required to appoint a Regional Trial Court judge in view of Article VIII, Section 9, which mandates that the President shall issue the appointments within 90 days from the submission of the list by the Judicial and Bar Council (JBC).

In that case, the Supreme Court ruled that during the period of the ban under Section 15, Article VII, or the prohibition against midnight appointments, the President cannot make such appointments. The Court said that the President was neither required to make appointments to the courts, nor allowed to do so during the last 90 days of the President’s term.

The court noted that the exception in Article VII, Section 15 -- allowing appointments to be made during the period of the ban therein provided -- was much narrower than that recognized in the 1962 case of Aytona vs Castillo.

In this case, the Supreme Court struck down as illegal the so-called midnight appointments by then outgoing President Carlos Garcia, who issued 350 appointments in one day in December 1961 and set the induction of the new officers a few hours before the inauguration of his successor, President Diosdado Macapagal.

The Supreme Court ruled that the outgoing President is no more than a caretaker administrator whose duty was to prepare for the orderly transfer of authority to the incoming President.

In the Aytona versus Castillo case, the SC took the view that the restriction on the President’s appointing power prevailed over the time frame for filling vacancies in the judiciary as the prevention of vote buying and similar evils outweighs the need for avoiding delays in filling up court vacancies or the disposition of some cases.

In the light of all these, a major role will be played by the JBC in the selection of the next Supreme Court chief. In fact, more questions are raised as far as the JBC is concerned on this matter.

Will the JBC convene before Chief Justice Puno retires in order to deliberate and submit to President Arroyo the list of nominees to succeed Puno, as suggested by President Arroyo’s ally, Rep. Matias Defensor? If the JBC, which is chaired by the Chief Justice himself, refuses to convene, can the majority of the Supreme Court compel it to do so?

It is essential to note that the JBC was created as a limitation on the President’s authority to appoint members of the judiciary and to minimize, if not totally shield, judicial appointments from political pressure.

Of late, however, media observers have noted that President Arroyo’s three most recent appointments to the Supreme Court have been non-controversial.

But questions are still being raised on the independence of the judiciary because of the dominance of the President Arroyo’s appointees in the Supreme Court.

With the appointment of Justice Jose Mendoza, the latest SC appointee, President Arroyo has named all but one of the court’s 15 magistrates. Puno, the lone holdout, was named to the high court in 1993 by President Ramos but it was President Arroyo who made him chief justice.

We live in an imperfect world and we reckon that judicial decision-making operates in a complex arena in which law and precedent are inevitably intermixed with personality, prejudice and politics.

But government cannot uphold the rule of law and institute good governance without an independent judicial system, free from external influence. That is why we have textual safeguards to minimize, if not prevent, incursions into the process of judicial decision-making.

Hence, under our Constitution, the President can only appoint from a list of nominees prepared by the JBC. Members of the judiciary are given security of tenure. Congress is banned from passing a law that reorganizes the judiciary and the judiciary enjoys fiscal autonomy.

Given these safeguards, can we say that we have a truly independent and effective justice system? Can we truly say that the toxic political environment we see today has not invaded our justice system?

We support efforts to make the JBC process more transparent and effective in the performance of its mandated constitutional duty. However, there are certain institutional constraints that must be addressed.

The membership of the JBC must be revisited. For one, we must remove the Justice Secretary and the two Congress representatives from its roster to insulate the nominating process from political influence. Moreover, the regular members of the JBC should not be eligible to any reappointment. A JBC, independent of the Supreme Court, is a concept worth considering, we believe.

Under the institutional concept of judicial independence, the insulation of the courts from external influence is the central element of a judiciary in a society that upholds the rule of law.

The importance of the judiciary as an institution of democracy should never be compromised. As guardians of the system of justice and advocates for the rule of law, the people must ensure that the allegiance of our judiciary is only to the law.

The people’s faith in our democracy depends on a judicial system that is free to dispense justice without fear or favor.

The writer, Frank Drilon, served as Senate President, Justice Secretary, Labor Secretary and Executive Secretary, spanning 32 years in public service. He was a bar top notcher and a staunch advocate of reforms in the judiciary. He is the national chairman of the Liberal Party (LP) and its leading senatorial candidate in the May elections.