Every indication coming from the Palace is that, come hell or high water, President Gloria Macapagal Arroyo will reject the 1992 lesson given by the late President Diosdado Macapagal and will appoint the next Chief Justice once Chief Justice Puno retires next May 17.
But then we really are not so sure that she will. At least, I am not so sure. Did not a life changing experience happen to Paul of Tarsus on the road to Damascus when he heard a voice saying, “Paul, Paul, why are you persecuting me?” That road to Damascus is still open. And the voice might once again be heard.
We have not heard from her personally. We have only been treated to the wisdom of Palace spokespersons. Who knows, but it could be that the Palace oracle has simply been commissioned to float trial balloons to see what the reaction of the public might be.
But there are those who are instigating the fear that, should she fail to appoint a Chief Justice and allow the office of Chief Justice to be vacant until a new President is sworn in, a constitutional crisis will arise. Frankly, I am not sure they themselves believe what they are mouthing.
What constitutional crisis? Let us calmly look at that.
What normally happens is that, whenever a chief Justice is absent or there is as yet no Chief Justice, the most senior among the Associate Justices acts as the Chief. In the history of our country nothing unusual has happened any time that there is an Acting Chief. The Court continues to function normally. After all, the associate justices are men and women of tested mettle.
As a matter of fact that is the procedure prescribed by the Judiciary Act. I myself have doubts about the constitutionality of that procedure because the presence of the statutory prescription amounts to a designation of a temporary Chief Justice by Congress, which is a no-no under separation of powers. However, the procedure, which antedates the present Constitution, has not been proscribed by the Constitution and the Court itself has accepted it as wise procedure. It will remain that way until the Court itself changes it and there never will be a time when no one will be around to perform the functions of a Chief.
But then it is said that the times are unusual. It is election time when a new automated system of election will be used which might lead to a presidential election contest. Who will preside should the Presidential Electoral Tribunal be called to adjudicate?
In the first place the Constitution does not speak of a Presidential Electoral Tribunal. The Constitution simply says that in such a situation the Supreme Court itself will adjudicate. And who will preside? Who else but the designated Chief from among the fourteen Indians. It would be an insult to the associate justices if one were to say that none of them could, or they collectively could not, handle the job.
It is also said that, without a Chief Justice, there will be no one to certify that the correct procedure has been followed in deciding cases. They must be kidding. There will be the acting Chief. As a matter of fact, even the Chief Justice, in decisions promulgated by divisions, simply awaits the attestation of the Chairman of the division. I have never heard of a Chairman’s attestation being rejected by the Chief Justice.
One may also ask who would preside should the President be tried on impeachment. The Constitution says that the Chief Justice should preside. And you can be sure that if there should ever be an impeachment trial of a President after the current presidential term there will already be a regular Chief Justice.
What all these come down to is that there never will be a time when no one will be there to perform the duties of a Chief Justice. So where can the constitutional crisis come from?
First, it definitely is being propagated by the fertile imagination of some.
Second, it can come from what might happen in the Judicial and Bar Council process. What do I mean? In choosing the persons to be nominated to the Supreme Court the Judicial Bar Council normally awaits a non-binding recommendation of the Court. The Court, therefore, would be expected to deliberate about who to recommend to the JBC. Can you imagine what the spectacle will be like when the justices deliberate as to who they would be willing to recommended as Chief Justice?
It is by now obvious that the justices are divided on the issue of whether President Arroyo may appoint a Chief Justice. Two have already indicated that they will not accept an appointment from Arroyo while two others are willing to be nominated and be submitted to Arroyo without condition, even if they have not said that theyw ill accept. I doubt that the rest of the justices have a unanimous view.
Third, the crisis can more likely come about if the President, not having been graced with a salutary Pauline Damascus experience, should decide to appoint a Chief Justice. It will be no surprise if the President should appoint one of the current associate justices. What a spectacle it will be when the justices are asked to decide whether the appointment of one of them as their Chief is valid. The deliberation of the Court on the subject will be one for the books and whoever succeeds in getting the inside story will have a best seller.
Of course, as I indicated in an earlier column, the CJ might be tempted to retire more than two months before the election and make things easy for an embattled President. If that happens, why he chose to cap his legal career with a political gamble will be the talk in bars and coffee shops for some time.
Finally, let us just hope that what happened in Pakistan when President Mubarak toyed with the Supreme Court will not happen here. Or perhaps it will be salutary if it happened here!
8 February 2010