An End to "Midnight " Appointments

I had originally planned to continue my dialogue with CHED on the issue of collegiality, but the issue of who should appoint the next Chief Justice has grown more sexy. Collegiality can wait.

Since, however, there are so many issues involved regarding the appointment of a Chief Justice after CJ Puno retires on May 17, I shall write in telegraphic style.

-- It is important to remember that the prohibition against appointments two months before a presidential election until the end of the incumbent’s term was inspired by the reprobation by the Supreme Court of President Garcia’s scandalous “midnight appointments” before President Diosdado Macapagal assumed office.

-- But the prohibition against midnight appointments in Article VII is general, whereas the command in Article VIII to fill the vacancy in 90 days is special to the Supreme Court. An accepted principle is that a special law creates exception to a general law.

-- But again Article VII is in negative language, whereas Article VIII is positive. Another accepted principle is that negative language carries stronger weight in law than positive.

-- However, when laws are apparently in conflict, jurisprudence also says that efforts should be made to give effect to both when possible. Is reconciliation possible?

-- Yes, it is possible. The prohibition against appointment starts March 10 and lasts only until June 30; the period for filling a vacancy (90 days) lasts until August 17. The new President will therefore still have about 45 days after June 30 to make the appointment. Both Article VII and Article VIII can have effect.

-- The original period proposed for filling vacancy in the Supreme Court was 60 days; it was extended to 90 days without debate. [See Constitutional Commission deliberations.] Thus even the Constitution believes that the vacancy can wait 90 days. There is no rush to amend the Constitution now.

-- Moreover, according to the Aytona case (1962) and the Valenzuela case (1998), when the president-elect is known, the authority of the incumbent is only to ensure an orderly transfer of power. Call it an argument from morality or delicadeza. Under the automated elections, we should know who the next President will by May 17 or soon after.

-- The power to appoint is activated only when a vacancy occurs. Vacancy will occur only on May 17. But by then President Arroyo will only have power to make temporary appointments in the executive department. (Speaker Nograles’ contrary view is a premature attempt to amend the Constitution.)

-- Appointment is a two-way street: it involves offer and acceptance. A justice who accepts a prohibited appointment is complicit in the violation of the prohibition and opens himself or herself to impeachment for culpable violation of the Constitution.

-- Appointment to fill an anticipated vacancy is valid only if the person making the appointment still has the power when the vacancy occurs.

-- The President can appoint only from a list given by the JBC. Cory Aquino made appointments without a JBC list, as Senate President Enrile correctly recalls, but only when there was as yet no JBC.

-- The JBC is duty bound to submit a list, but only when there is a vacancy, not necessarily sooner.

-- However, the JBC has no authority to decide whether Arroyo can appoint or not. The JBC can only prepare a list for whoever has authority to appoint. The JBC is not the Supreme Court.

-- In substantive issues, the Chief Justice has only one vote out of fifteen. In administrative matters, the CJ’s absence can be handled, and has always been handled, internally by the other justices of the Supreme Court through a designated temporary presiding officer. To say that the fourteen remaining justices will not be able to temporarily run the Supreme Court properly without a Chief Justice is to insult all of them, one of whom will almost certainly be the next Chief Justice.

-- Problems that can arise during the coming elections do not necessarily need a Chief Justice. (1) Administrative matters go to the Comelec first. (2) Contests in local elections go to local courts first or to the Commission on Elections. (3) Contests in congressional elections go to the Senate or House Electoral Tribunals where a Chief Justice does not participate. (4) Presidential election contests go to the Supreme Court; but the Chief Justice is not the Supreme Court. At most his is only one vote out of fifteen. (5) The same can be said about appeals to the SC of election cases. The quorum of the Court en banc is only eight, not fifteen.

-- The only instance I can think of where the presence of the Chief Justice might be indispensable is when the President is on trial on impeachment. But I cannot see that coming any time soon.

-- What is dangerous for the nation is not the temporary absence of a Chief Justice but the possible conversion of the Supreme Court into a play-thing of political powers. The Supreme Court itself should resist this. The Supreme Court boat is already listing weighted as it is by, among others, threatening endless reconsideration of decisions.

-- My suspicion arising from all of this is that the rush to appoint a Chief Justice before the swearing in of a new President is being orchestrated, out of unfounded fears or unstated political reasons, by forces in and around the Palace.

-- A final word. Those who want President Arroyo to appoint the next Chief Justice might attempt to persuade CJ Puno to retire much earlier than two months before the elections. That would not be a solomonic solution but an unwelcome political solution. I doubt that CJ Puno would want to leave that as his legacy after a distinguished career in law.

18 January 2010