Can President Arroyo appoint the next Chief Justice?
This controversy was actually the "drunken" discussion of a fraternity hang-out mid last year when one freshman brod asked my position on the possibility of a No-El, or a no election scenario come 2010. Being the most senior that time, I answered that there can be no No-El since the 1987 Constitution still stands and there are a dozen opponents if ever such scenario happen. But, as I told them back then, the more serious question would be the possibility of having no Chief Justice come May 2010. As I told them, this could be the discussion in the legal and political community next year.
Fast forward to present, true enough, lo and behold, my prediction came true. With the current hype, I feel it is my social responsibility to educate the people regarding this.
The reply to the question is NO!
The 1987 Constitution provides in Article VII, Section 15 that
The said provision clearly provides a ban on any appointments extended by the President to fill up any vacant offices. This election ban was an out spurt of the decision of the Supreme Court in the case of Aytona v. Castillo, G.R. No. L-19313, January 19, 1962, which laid the doctrine of caretaker government. The Supreme Court, through Chief Justice Bengzon, revoked the midnight or last minute appointments by President Carlos Garcia and said that:
Hence, it is quite clear that appointments cannot be made by the outgoing President, not only because of a clear constitutional provision, but also because of the doctrine laid down by a landmark case.
However, proponents of an early appointment found a correlative provision on judicial appointments in Article VIII, Section 4 (1) which states that:
The proponents would have been given an ample legal bullet had there not been a precedent on 1998. The then Narvasa Court, through the case of In Re: Valenzuela and Vallarta A.M. No. 98-5-01-SC, November 9, 1998, voided the appointments of two Regional Trial Court judges when President Fidel Ramos did so during the election ban. Chief Justice Narvasa said:
Hence, after clear and concise words from the Constitution and the Supreme Court, the answer is simply, GMA cannot appoint the next CJ!
This controversy was actually the "drunken" discussion of a fraternity hang-out mid last year when one freshman brod asked my position on the possibility of a No-El, or a no election scenario come 2010. Being the most senior that time, I answered that there can be no No-El since the 1987 Constitution still stands and there are a dozen opponents if ever such scenario happen. But, as I told them back then, the more serious question would be the possibility of having no Chief Justice come May 2010. As I told them, this could be the discussion in the legal and political community next year.
Fast forward to present, true enough, lo and behold, my prediction came true. With the current hype, I feel it is my social responsibility to educate the people regarding this.
The reply to the question is NO!
The 1987 Constitution provides in Article VII, Section 15 that
"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." (Emphasis supplied).
The said provision clearly provides a ban on any appointments extended by the President to fill up any vacant offices. This election ban was an out spurt of the decision of the Supreme Court in the case of Aytona v. Castillo, G.R. No. L-19313, January 19, 1962, which laid the doctrine of caretaker government. The Supreme Court, through Chief Justice Bengzon, revoked the midnight or last minute appointments by President Carlos Garcia and said that:
" x x x it is common sense to believe that after the proclamation of the election of President Macapagal, his was no more than a "care-taker" administration. He was duty bound to prepare for the orderly transfer of authority the incoming President, and he should not do acts which he ought to know, would embarrass or obstruct the policies of his successor. x x x The filling up vacancies in important positions, if few, and so spaced to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and planned induction of almost all of them a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby deprive the new administration of an opportunity to make the corresponding appointments" (Emphasis supplied).
Hence, it is quite clear that appointments cannot be made by the outgoing President, not only because of a clear constitutional provision, but also because of the doctrine laid down by a landmark case.
However, proponents of an early appointment found a correlative provision on judicial appointments in Article VIII, Section 4 (1) which states that:
"The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof" (Emphasis supplied).
The proponents would have been given an ample legal bullet had there not been a precedent on 1998. The then Narvasa Court, through the case of In Re: Valenzuela and Vallarta A.M. No. 98-5-01-SC, November 9, 1998, voided the appointments of two Regional Trial Court judges when President Fidel Ramos did so during the election ban. Chief Justice Narvasa said:
"The Court's view is that during the period stated in Section 15. Article VII of the Constitution — "(t)wo months immediatey before the next presidential elections and up to the end his term" — the President is neither required to make appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Section 15 of Article VII. It is not noteworthy that the prohibition on appointments comes into effect only once every six years" (Emphasis supplied).
Hence, after clear and concise words from the Constitution and the Supreme Court, the answer is simply, GMA cannot appoint the next CJ!
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