Let the Next President Appoint the Next Chief Justice

(This is a statement issued by the members of the Faculty of the College of Law, University of the Philippines. Reproduced from the UP Law website. What do you think? Your comments below.)

Maintain Fealty to the Rule of Law: Let the Next President Appoint the Next Chief Justice

Statement of Members of the Faculty, UP College of Law

January 18, 2010

Essential to the existence of a democratic republic is its fealty to the Rule of Law. Any attempt to circumvent clear constitutional text must be justified on grounds of absolute necessity. The need to fill in a lacuna in constitutional text through interpretation must be made on the basis of real needs and not imagined scenarios.

We, the members of the UP College of Law Faculty, are of the firm conviction that the incumbent President cannot appoint the next Chief Justice when the present Chief Justice Reynato Puno retires on May 17, 2010. We do not see any reason why the constitutional provision for the President not to issue any “midnight appointment” in the twilight of her term should not be followed.

The President’s appointing power is limited by an express provision in article VII, section 15 of the Constitution, to wit:

Sec. 15. 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.

This provision proscribes any “midnight” appointment made by the incumbent President of the Republic starting from March 10, 2010 to June 30, 2010. This prohibition was conceived to prevent the scandalous actuations of two past administrations whose acts had to be rectified by Supreme Court decisions.

The only exception is to make “temporary appointments” and only for “executive positions”. Even this exception is qualified by the phrase “when continued vacancies…will prejudice public service or endanger public safety.”

The position of Chief Justice is not an executive position. The appointment of a Chief Justice is not a temporary appointment. Whoever is appointed sits until her/his retirement at the age of 70 years old or sooner upon her/his resignation. The retirement of Chief Justice Puno, on the eve of May 17, 2010, is well within the period of the constitutional ban on appointment. The clearest textual reading of the Constitution is that the incumbent President cannot appoint the next chief justice.

It has been suggested that the absence of a Chief Justice might trigger a constitutional crises because it is the Chief Justice that presides over the Presidential Electoral Tribunal and that s/he presides over the entire Supreme Court.

This argument is pure speculation in the light of settled practice that an Acting Chief Justice may be chosen from among the incumbent justices of the Supreme Court. The Supreme Court also does not cease to function simply because it has less than fifteen justices.

The appointment of a permanent Chief Justice by the incumbent President causes more concern. She has appointed all 14 of the other justices of the Supreme Court. If the sitting Chief Justice will also be her appointee, the maintenance of the independence of the judiciary may be seriously jeopardized.

It is also argued that the Constitution requires that any vacancy in the Supreme Court must be filled within a period of ninety days. This is not clear from the second paragraph of section 9, article VIII of the Constitution. Even assuming but without conceding this to be true, the next President will have until August 15, 2010 or a month and a half to select the next associate justice. A month and a half is also sufficient time to reflect on who can be chosen as the next Chief Justice. All presidential candidates must by now be considering their own choices of who might become Chief Justice. The Chief Justice is traditionally chosen from among the most senior justices of the Supreme Court.

We therefore find no overriding, logical and imminent reason that would require that the plain meaning of the Constitution as ratified by our people be violated. There are more serious repercussions to the rule of law and the independence of the judiciary if the Judicial and Bar Council transmits a list of nominees for the Chief Justice and if the incumbent President actually makes an appointment. It is this threatened unconstitutional act that will cause a true constitutional crisis.

Thus we, members of the faculty of the UP College of Law,

  1. Urge the Judicial and Bar Council not to transmit the names of the nominees for the position of Chief Justice until after a new President shall have assumed office on June 30, 2010;
  2. call on the incumbent President to exercise restraint for the sake of judicial independence and respect for the Rule of Law and therefore refrain from appointing the next Chief Justice; and
  3. call on our colleagues in various law faculties, law students and our alumni to make their voices be heard on this very important issue.

6 comments

  1. just a clarificatory question (since I didnt take Consti 1 last sem due to some problems), is it mandatory that a SC Chief Justice should resign on his 70th birthday? In the case of CJ Puno, his 70th birthday is on May 17, 2010, which will also be the date that he will retire. Is this just a coincidence or is it mandatory?

  2. Submitted, it would be great so that the other power would not have to influence this branch of government.

    but still, this would never be because i know that you guys would be the first one to oppose Constitutional Amendments through what ever name it may be constituted.

    Its a nice idea, but the probability for it to happen would never be because what you dream that would happen is very much unconstitutional.

    I love the thought, really i do. but its just not possible if you guys would always lead in the fight against constitutional change or amendments.

  3. The issue is not that so big. He does not need to resign on his birthday but he may have to extend it until his the proper appointing authority may choose a successor. if you may recall your political law, it is provided that a government official of employee may not be allowed to leave his position not until a replacement is available to exercise his functions? Ever heard or read of that? Justice Puno need not resign, he will just have to extend it. This wont violate the constitution because under administrative law, such extension is allowed so as to prevent a vaccum in the government.

    no need for a midnight appointment. CJ Puno will just have to extend. case solved

  4. I believe a constitutional prohibition must prevail over a constitutional command. The next president should appoint the next CJ.

    But let me pose this very hypothetical question. What if majority or all of the justices of the SC are due to retire during the prohibition period? Do we have to wait for the next president to appoint their replacements?

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