POSTSCRIPT / February 11, 2010 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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GMA may name SC chief -- plus one more?

FEEDBACK: Comes now reader Emmanuel Lj. Mapili saying that President Arroyo can appoint not only the successor of Chief Justice Reynato Puno when he retires on May 17 but also a new SC justice to complete the tribunal’s membership of 15 justices.

Mapili is acting chief, Canvass Board Service of the House of Representatives Electoral Tribunal, and co-author of Omnibus Election Code [2007] (with retired SC Justice Josue Bellosillo and SC Administrator Jose Midas Marquez.)

Printed below is his opinion as emailed to Postscript:

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NOT ONE, BUT TWO: A subtitle, a chapter, an article or a section heading can help in the construction of statutes. It is a proper aid where an ambiguity exists. Titles given to sections of an act are often resorted to for determining the scope of the provisions. This is because such section titles are parts of the statute itself. (50 Am. Jur., p. 306).

Article VII (Executive Department), Section 15, of the Constitution — which provides that after two months immediately before the next presidential elections and until 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 or endanger public safety (so-called presidential appointments-ban period) — applies only to appointments in the Executive branch, the whole article being titled “Executive Department.”

Judicial appointments, particularly in the Supreme Court, have special, specific provisions under Article VIII (Judicial Department), i.e., Section 4 (1) which provides that any vacancy in the Supreme Court shall be filled within 90 days from the occurrence thereof.

In the case of Aytona v. Castillo (114 Phil. vii or 4 SCRA 1 [1962]), which became the basis of Section 15, Article VII, the Supreme Court nullified 350 midnight appointments made by then outgoing President Carlos Garcia on the eve of the expiration of his term and the transition to then incoming President Diosdado Macapagal. However, in that case the Supreme Court said:

“The filling up of vacancies in important positions, if few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee’s qualifications, may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new president may, with some reason, be regarded by the latter as an abuse of presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments.”

At that time, there was no Judicial and Bar Council. The President generally selected nominees to the judiciary from a list of candidates prepared under the supervision of the Secretary of Justice. The list included, among others, those proposed by leaders of the political party of the President or by those who possess a strong influence over the President. All appointments to the bench, then, were made by the President, subject to confirmation by theCommission on Appointments.

Now, unlike executive appointments, only those nominated by the JBC on a list officially transmitted to the President may be appointed by the latter as justices or judges or as Ombudsman or Deputy Ombudsman. The JBC was created as a limitation on the President’s authority to appoint members of the judiciary and to minimize, if not totally shield, judicial appointments from political pressure. Thus, the process eliminates politics from the appointment of judges, which Section 15, Article VII, seeks to avoid.

In 1998 during the appointments-ban period, President Fidel V. Ramos also wanted to fill a vacancy in the Supreme Court (Justice Ricardo Francisco retired on Feb. 13, 1998) and invoked the same reason. Nevertheless, the Supreme Court, in In Re: Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta (298 SCRA 408 [1998]), rebuffed his plan to put in a new SC justice when it annulled his appointments of two judges during the appointments-ban period. In that case, however, it is noteworthy that the SC said:

“To be sure, instances may be conceived of the imperative need for an appointment, during the period of the ban, not only in the Executive but also in the Supreme Court. This may be the case should the membership of the court be so reduced that it will have no quorum or should the voting on a particularly important question requiring expeditious resolution be evenly divided.”

Nonetheless, In Re: Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta should not apply to judicial appointments, because in the Supreme Court “any vacancy shall be filled within 90 days from the occurrence thereof” (Section 4[1], Article VIII), while “for the lower courts, the President shall issue the appointments within 90 days from the submission of the list” (Section 9, Article VIII).

Despite what the Constitution says about midnight appointments and what the Supreme Court had ruled in Aytona v. Castillo and In Re: Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta, it is my strong opinion that PGMA can still appoint not only the next Chief Justice, but also another SC justice, if there is compelling reason to justify making the appointments during the period of the ban.

When Chief Justice Puno retires on May 17, 2010, the SC will have 14 associate justices remaining, and with that even number, the voting on a particularly important question requiring expeditious resolution may be evenly divided. The number of SC justices is very important and critical (more so during election period), and the even division of the SC can diminish or affect its credibility, stability, and authority. Therefore, this can be a “compelling reason” to justify the appointment of the next Chief Justice during the period of the ban.

Moreover, if PGMA appoints an insider as the next Chief Justice, the number of SC justices will still be 14. Hence, there is again “compelling reason” to fill the vacant position of SC justice.

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(First published in the Philippine STAR of February 11, 2010)

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