Lone dissenter stands firm on constitutional prohibition

MANILA, Philippines - When justices of the Supreme Court (SC) voted yesterday to allow President Arroyo to appoint the next chief justice, one magistrate stood her ground and defended the minority position by her lonesome.

Associate Justice Conchita Carpio-Morales cast the lone dissenting vote against the nine justices who ruled that Mrs. Arroyo is allowed by law to name the successor of Chief Justice Reynato Puno who retires on May 17.

Although they did not vote on the main issue, two other magistrates voted for the

dismissal of the consolidated petitions of Philippine Constitution Association (Philconsa) and lawyers Estelito Mendoza and Arturo de Castro on technical grounds.

In their separate opinions, Justices Antonio Eduardo Nachura and Presbitero Velasco Jr. both believe that the case is premature, saying “there is no justiciable issue yet since President Arroyo has not appointed the next chief justice so there is no violation committed so far.”

“The consolidated petitions do not present a justiciable controversy because of the absence of clashing legal rights. The JBC has merely started the selection process by accepting applications and nominations for the position of Chief Justice. This is only the initial stage of the procedure for appointment of a Chief Justice.”

“By the JBC’s own admission, it has yet to undertake the public interview of the applicants, prepare the shortlist, and decide whether it needs to interview constitutional experts,” Nachura explained.

In her dissenting opinion, Justice Morales said Mrs. Arroyo cannot appoint the next chief justice because she is prohibited by the ban on midnight appointments under Article VII Section 15 of the Constitution.

This provision in the Charter states 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.”

The magistrate contested the majority argument that the intent of framers of the Constitution to exempt the chief justice post from the appointment ban during election is obvious.

“That the power of judicial appointment was lodged in the President is a recognized measure of limitation on the power of the judiciary, which measure, however, 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,” she said.

Contrary to the opinion of her colleagues, Morales believes the establishment of the JBC is not sufficient to curtail the evils of midnight appointments in the judiciary and that the 90-day period to fill a vacancy in the SC is suspended during the ban on midnight appointments.

Lastly, she maintained her stand that the high court can function effectively during the midnight appointments ban even without an appointed chief justice.

Morales is one of the six contenders for the chief justice post. As one of the five most senior justices, she gets automatic nomination.

She had earlier manifested with the JBC, which vets candidates to judicial posts, her interest in the chief justice post but on condition that the appointment would be made by the next president.

SC ruling premature

Meanwhile, Commission on Elections (Comelec) Chairman Jose Melo said the ruling of the SC on the next chief justice might be premature.

In an interview, Melo said he agreed with SC Associate Justices Presbitero Velasco Jr. and Eduardo Nachura that it is not yet time to decide if the president could name the successor of Puno.

Melo, former SC associate justice, said the high tribunal should have “waited before an appointment was made” before reacting.

The SC has ruled that the President could appoint Puno’s successor, as it was not covered by the election ban. – Edu Punay, Sheila Crisostomo