POSTSCRIPT / January 19, 2010 / Tuesday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Political tug-of-war over Puno’s successor

MOVE EARLY: May the Judicial and Bar Council, whose members are appointees of the President, in effect nullify the appointing power of the same President by refusing to nominate candidates for the impending vacancy in the position of Chief Justice of the Supreme Court?

The exit of Chief Justice Reynato Puno on May 17 upon reaching the retirement age of 70 is in the calendar. Fully aware of this fact, cannot the JBC act with dispatch in starting this early the process of filling the vacancy?

The JBC should not invite a situation where for about six weeks after May 17 (until June 30) the country will have no Chief Justice until a new President takes over and appoints a replacement.

The JBC is not prohibited, by law or tradition, from moving early in anticipation of a potentially problematic situation. If the council wants, it can submit this early its nominees for Puno’s replacement.

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WHY HURRY?: On the other hand, why the hurry? Cannot the Supreme Court, still robust with 14 associate justices at work, function without Puno?

How many times had the Chief Justice been away, on leave or whatever, without crippling the tribunal or jeopardizing the justice system?

Puno himself has assured the nation that the temporary absence of a Chief Justice would not trigger a crisis. The judiciary, we understand from him, has the system, the personnel and the dedication to function even without a regular chief for a few days.

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INDUCED BLINDNESS: There is actually no legal or administrative problem having the JBC move early to start the nomination and appointment process.

The only obvious problem is that the usual sectors who always see nothing right with whatever President Arroyo does would not want her to appoint the next Chief Justice. The reason is that they do not trust her and her appointee, whoever he/she will be.

Their objection stems mainly from their loathing for her. Is there a cure for hatred and induced blindness?

Alas, even the appointment of SC magistrates has been politicized.

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SMALL WINDOW: The tricky question arises from a confluence of constitutional provisions. Section 4 (1), Article VIII, requires that any vacancy in the Supreme Court be filled by the President within 90 days of its occurrence.

That appointment window is open for 90 days after May 17. That covers the last 44 days of President Arroyo, who steps down on June 30, and the first 46 days of the term of the incoming president.

Under Article VII, Section 15, however, the President is barred from making any appointment to the judiciary from two months immediately before the next presidential elections (May 10) until the end of her term (June 30).

The same small 90-day window is thus closed.

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CJ-IN-WAITING: Cannot President Arroyo, with the JBC cooperating in good faith, advance the appointment of Puno’s successor?

That is exactly what Malacanang is saying she intends to do, in effect creating a Chief Justice-in-waiting. If there is no such creature, President Arroyo may just create one.

But then, one is wont to ask: Why should she force it? Why the unusual interest in making sure the next Chief Justice is her appointee? Why not leave that chore to the next president?

The answer to that question will answer many other related questions. Only Gloria Macapagal Arroyo knows the answer.

But everything considered, my view is that there is no harm in the JBC’s submitting early nominations for a Chief Justice to take over seamlessly when Puno retires on May 17.

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CJ NOT NEEDED?: Somebody asked how the president-elect can take his oath if there is no Chief Justice by the time he is proclaimed winner, hopefully before June 30.

I have not found any requirement in the Constitution that the incoming president must take his oath before the Chief Justice. It looks like mere tradition.

Section 5 of Article VII simply says that “Before they enter on the execution of their office, the President, the Vice President, or the Acting President shall take the following oath or affirmation….” Nowhere does it say they should do it before the Chief Justice.

It is interesting that Section 4 says that the six-year term of the President “shall begin at noon on the 30th day of June next following the day of the election….”

Some lawyers interpret this to mean that the duly proclaimed winner automatically starts being president at noon of June 30 by operation of the Constitution itself.

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IVLER CAUGHT: I understand, but still deplore, the comment of some readers that Jason Ivler, the American wanted for allegedly killing an official’s son in a road-rage shooting, should have been gunned down outright when he shot it out with arresting policemen yesterday.

Ivler, 28, also wanted for an earlier killing, was critically wounded. Two police agents were wounded when he fought back in his parents’ house in the suburbs. At press time, he was reportedly undergoing surgery.

Ivler is accused of fatally shooting the son of a Malacanang official at the height of an argument over a traffic incident last Nov. 18. He was also being hunted in connection with a 2004 car crash that killed a senior official in the Office of the President.

As his mother, Marlene Aguilar, told the police earlier he had fled to Hawaii, she is now held on a complaint for obstruction of justice.

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(First published in the Philippine STAR of January 19, 2010)

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