January 22, 2010
Forum Debates Appointment of Next Chief
The Supreme Court watches over the integrity of the institutional
arrangements that allow society to function: the rule of law, democracy
and the market economy. As the final arbiter, its legitimacy and
integrity is vital to a democratic society. Thus the current dispute
over whether the president can appointment a new chief justice despite
the constitutional ban on midnight appointments is a serious matter.
To help the public understand the implications, the National Institute
for Policy Studies (NIPS) held a forum on 22 January 2010 in Pasay
City. In collaboration with the Friedrich Naumann Foundation for
, Transparency and
and the Philippine
Association of Law Schools
, NIPS raised the question: “can
the president circumvent the ban on appointments?”
Joaquin Bernas, S.J., a member of the 1986 Constitutional Commission,
opened the discussion by exploring the constitutional issues.
Chief Justice Reynato Puno reaches mandatory retirement on May
17. On the one hand, the constitution bans midnight appointments
hence, the president cannot make any appointments after March
10. The only exception is for temporary appointments
to the executive department
in cases where this
is absolutely necessary. Judicial appointments made by President
Ramos in 1998 during the proscribed period had subsequently been
However, the constitution also states that a new chief justice
has to be appointed within 90 days. Since the
new president will only be inaugurated on June 30, there seems
to be some contradiction. Fr. Bernas, S.J., explained that when
two provisions seem at variance with each other, the
first thing to do is to look for ways to make them both
work. That is feasible in this case. After inauguration,
the new president would still have 45 days to
appoint a new chief justice. This seems sufficient given that
the Judicial and Bar Council
(JBC) can vet potential candidates now and
prepare a list.
The next crucial question then is: “does the court need a
chief justice right away after Justice Puno retires?” It is
possible that the court might have to resolve tricky issues regarding
the election results. However, both Fr. Bernas, S.J. and former
Senator Franklin Drilon opined that that was not a serious problem.
The Supreme Court has a regular procedure
the next most senior justice as acting chief justice
There are only few instances where the law mentions the chief justice
at all. There seems to be no reason why an acting chief justice
cannot perform those roles. In fact when it comes to administering
the oath of office of the new president, this could legally be done
by any notary public. Unfortunately, this is where the legal dispute
is concentrated. Malacañang believes there should be a proper,
not just acting, chief justice, and Chief Justice Puno seems to
agree with this position.
Another issue that the forum tacked was whether the president can
appoint a chief justice if the JBC refuses to submit a nomination.
Here the opinion was unanimous: the constitution states clearly
that the JBC has a role in the appointment. The
president cannot act without it. If she did, it would damage
the standing of the court.
The Forum was well attended and extensively covered by the media.
It undoubtedly contributed to the debate on the institutional
framework and the rule of law of the country.
Click here to listen
to Fr. Bernas, S.J.'s complete talk.