Can outgoing Pres. Gloria Macapagal-Arroyo make a midnight appointment? According to the controversial landmark
decision of the Supreme Court, the President, who only has few days in power, is allowed to violate the Constitution only with respect to judicial appointments, particularly the appointment of the next Chief Justice. It’s as if the high court, in its March 17, 2010 decision, told Mrs. Arroyo: Go ahead, you can violate the Charter.
The framers of the New Charter made it very clear and unambiguous that midnight appointments are strongly prohibited. Midnight appointment, which is explicitly prohibited by the New Charter, is a term that refers to last-minute appointment by the President.
Not only did the high court of the land give President Arroyo and her successors the authority to violate the Constitution, it also allowed the executive branch to fill all vacancies in the judiciary during the ban period, or “two months immediately before the next presidential elections and up to the end of his term.”
In the landmark case entitled De Castro vs. Judicial Bar Council, nine out of 15 justices voted to authorize the outgoing President to appoint the successfor of Justice Reynato Puno, who’s due to retire on May 17, seven days after the national elections. The nine justices argued that Section 15 Article VII of the 1987 Constitution that bans midnight appointment does not apply to the Supreme Court.
Section 15 Article VII states:
“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.”
With this, the Supreme Court ordered the Judicial and Bar Council to furnish the short list of nominees for the highest post in the judiciary to Malacañang “on or before May 17.” But it did not state whether the President could appoint Puno’s successor before the vacancy takes place.
Five of the nine justices construed the Constitution as exempting the entire judiciary from the prohibition and four made a special case to exempt the high court. These five justices were Associate Justices Lucas Bersamin (who wrote the decision), Teresita Leonardo-de Castro, Roberto Abad, Martin Villarama Jr. and Jose Perez. Those who separately concurred but said the lower courts remained subject to the ban were Associate Justices Arturo Brion (who wrote a separate opinion), Diosdado Peralta, Mariano del Castillo and Jose Mendoza.
Only one justice sought to maintain the Constitutional ban against midnight appointments- Associate Justice Conchita Carpio-Morales, who argued that the New Charter provides for checks and balances against the President’s appointing power and the establishment of the JBC “is not sufficient to curtail the evils of midnight appointments in the judiciary.”
Justice Lucas Bersamin, who penned the decision, argued that “the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary.”
Bersamin wrote: “The appointment of the next Chief Justice by the incumbent President is preferable to having the Associate Justice who is first in precedence take over. Under the Constitution, the heads of the Legislative and Executive Departments are popularly elected, and whoever are elected and proclaimed at once become the leaders of their respective Departments. However, the lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President.”
The ponente also said that historically, “there has been no wide gap between the retirement and the resignation of an incumbent Chief Justice.” Bersamin thus offers the chronology of judicial succession as follows:
- When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice Pedro Yap was appointed on the same day;
- When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan was appointed on the same day;
- When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres Narvasa was appointed the following day, December 8, 1991;
- When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario Davide, Jr. was sworn into office the following early morning of November 30, 1998;
- When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio Panganiban was appointed the next day, December 20, 2005; and
- When Chief Justice Panganiban retired on December 6, 2006, Chief Justice Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006.
Justice Carpio-Morales opened her dissenting opinion with the following quotation by Associate Justice Renato C. Corona:
“Although the Chief Justice is primus inter pares, he cannot legally decide a case on his own because of the Court’s nature as a collegial body. Neither can the Chief Justice, by himself, overturn the decision of the Court, whether of a division or the en banc.”
The Latin maxim Primus Inter pares (first among equals) indicates “that a person is the most senior of a group of people sharing the same rank or office.” The office of this phrase is to describe the status, condition or role of the prime minister in most parliamentary nations, the high-ranking prelate in several religious orders, and the chief justice in many supreme courts around the world.
Justice Carpio criticized Justice Bersamin’s ponencia that chiefly relies “on the trivialities of draftsmanship style in arriving at a constitutional construction.” She argued that the President has the unequivocal power to make judicial appointments, but such power is counterbalanced “by the election ban due to the need to insulate the judiciary from the political climate of presidential elections.” “To abandon this interplay of checks and balances on the mere inference that the establishment of the JBC could de-politicize the process of judicial appointments lacks constitutional mooring,” Carpio’s dissenting opinion read.
Justice Carpio also made the following statement, which sums up her dissent: “As a member of the Court, I strongly take exception to the ponencia’s implication that the Court cannot function without a sitting Chief Justice.” (Emphasis not mine)
Carpio’s dissenting opinion read:
To begin with, judicial power is vested in one Supreme Court and not in its individual members, much less in the Chief Justice alone. Notably, after Chief Justice Puno retires, the Court will have 14 members left, which is more than sufficient to constitute a quorum.
The fundamental principle in the system of laws recognizes that there is only one Supreme Court from whose decisions all other courts are required to take their bearings. While most of the Court’s work is performed by its three divisions, the Court remains one court — single, unitary, complete and supreme. Flowing from this is the fact that, while individual justices may dissent or only partially concur, when the Court states what the law is, it speaks with only one voice.
The Court, as a collegial body, operates on a “one member, one vote” basis, whether it sits en banc or in divisions. The competence, probity and independence of the Court en banc, or those of the Court’s Division to which the Chief Justice belongs, have never depended on whether the member voting as Chief Justice is merely an acting Chief Justice or a duly appointed one.
On the other hand, Christian Monsod, one of 50 framers who drafted the 1987 Charter, said the Constitutional Commission had enunciated a clear policy against presidential appointments 60 days before an election and until the end the president’s term.
“Where’s the ambiguity in Article 7 Section 15 on the limitations of the presidential appointing power? Where’s the ambiguity?” Monsod, former Commission on Elections chairman, said.
“I think the ambiguity is in the minds of those justices,” Monsod told radio dzMM, explaining that the 1987 Charter has a clear policy banning midnight appointments.
Members of the UP College of Law faculty released a statement entitled “Maintain Fealty to the Rule of Law: Let the Next President Appoint the Next Chief Justice.”
The January 18, 2010 statement read in part:
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.
Is this controversial decision a judicial message that the Supreme Court is above the law?