The Supreme Court’s way of seeing

The Supreme Court has ruled that President Macapagal-Arroyo can exercise the power to appoint any member of the judiciary – if the occasion arises, even up to the very last day of her presidency. The constitutional ban on presidential midnight appointments does not apply to appointments to the judiciary.

I carefully read the majority opinion penned by Justice Lucas

Bersamin and concurred in by eight other justices.  I also read Justice Conchita Carpio-Morales’s cogent dissent.  Finally, I revisited the two articles on the Executive and the Judiciary in the 1987 Constitution, and then went back to the Bersamin ponencia.  The question at hand is straightforward: Can President Arroyo appoint the successor to Chief Justice Reynato Puno who retires on May 17, 2010, considering that this date already falls within the period covered by the constitutional ban on midnight appointments?

Section 15, Article VII (Executive Department) 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.”  I thought the meaning of this provision was clear enough – the incumbent president’s power of appointment is terminated two months before the next presidential election.  Only one type of appointment is permitted during the ban – temporary appointments to executive positions when continued vacancies in such positions will prejudice public service.

But that is not how the Supreme Court sees it.  Approaching the issue from the outside as it were, the Court argues that the ban against presidential midnight appointments is not total. “Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so.”  This way of arguing works both ways.  We can use the same argument and tell the Court: Had the framers intended to exclude appointments to the Supreme Court from the scope of the ban, they could have explicitly done so in Section 15 itself.  As it stands, this provision exempts only temporary appointments to executive positions.  No mention of judicial appointments.

Note that Section 15 is part of a series of provisions that define and qualify the appointing power of the president.  Section 13 prohibits the president from appointing her relatives to certain offices like the Constitutional Commissions, Office of the Ombudsman, etc.  Section 14 states that appointments made by an Acting President remain effective unless revoked by the elected President within ninety days after assuming or reassuming office.  Section 16, on the other hand, states that some presidential appointments such as those for heads of departments and ambassadors are subject to confirmation by the Commission on Appointments.   The Court casts a blind eye on these manifest limitations on the power to appoint.  It notices instead that these sections refer only to appointments to executive positions.

The high court anchors the defense of its position on Section 4(1) of Article VIII (Judicial Department): “The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices…. Any vacancy shall be filled within ninety days from the occurrence thereof.”

I thought this provision was also sufficiently clear.  The last sentence specifies the time frame (90 says) within which a vacancy must be filled.  Who has the power and duty to fill the vacancy?  Section 9 provides the answer:  “The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy.  Such appointments need no confirmation.” Clearly, this is a shared power.  The President cannot unilaterally issue appointments to the judiciary.

But, for the purposes of the discussion, what is perhaps more crucial is whether the President who intends to fill up the vacancy within 90 days still has the power to do so.  Section 15 of Article 7 precisely provides that a president who is approaching the end of her term loses the power to make appointments two months before the next presidential election.   If the framers intended to exclude the appointment of judges and justices from this comprehensive ban, they could have explicitly stated the exception either in Article 7 or Article 8.  There is no such exception in the 1987 Constitution.

It is not difficult to appreciate the rationale behind the ban on presidential appointments on the eve of the election of a new president.  An outgoing president is expected to assume basically a caretaker role while preparing for a smooth handover of the government to her successor.  This end-stage is no longer about taking something for oneself or one’s party; it is about keeping the ship of state steady as it awaits the arrival of the new captain.

But, let us leave aside this controversial decision of the Supreme Court and imagine for a moment what the situation could be like come May 17.  It is one week after the presidential election, and a new president (hopefully!) has been proclaimed.  Ms Arroyo congratulates the incoming president and pledges a smooth transition.  Then she turns around and pre-empts his presidency by appointing a new Chief Justice to take the place of Chief Justice Puno, who retires on that day.  If a sense of shame will not prevent her from doing this, I am certain the wrath of the Filipino people will.