Midnight Appointments

The petitioners who went to the SC contend that the ban on midnight appointments contained in Article VII Section 15 of the Constitution applies only to appointments in the executive department since this Article itself is entitled “Executive Department”. On the other hand, they claim that pursuant to Article VIII Section 4(1) in conjunction with Section 9 under the over-all title of “Judicial Department”, any vacancy in the Supreme Court shall be filled by the President within 90 days from the occurrence thereof from a list of nominees submitted by the JBC. So they are in effect asking the SC to confirm Arroyo’s power to appoint the next CJ when the vacancy occurs on May 17, 2010 despite the ban on midnight appointments then already in force. Coincidentally they are also praying the SC to declare that the JBC has no power to rule on this issue by withholding submission of the shortlist of nominees to Arroyo.

One of the primary rules in statutory construction is that in case of conflict between two provisions like Article VII Section 15 and Article VIII Section 4(1) in conjunction with Section 9 in the current controversy, they should be reconciled in such a way as to give effect to both. Using that rule here therefore, the only way to give effect to both is to consider Article VIII Section 4(1) and 9 requiring the President to fill up the vacancy in the Judiciary as applicable only during the period when the ban on midnight appointments under Article VII Section 15 is not yet in force. Any other interpretation negates this rule on statutory construction.

Indeed the stand taken by the petitioners who brought this matter before the SC is heavily anchored on the letter than the spirit of the law. The clear intent and spirit of the law prohibiting the President to make appointments two months immediately before the next presidential elections and up to the end of her term, is to prevent the use of this power for patronage politics and as a means to protect and promote selfish interest. Giving the outgoing president the power to appoint especially the CJ of the SC is clearly contrary to this spirit and intent. Not only that, it also undermines the independence of the Judiciary and thus detrimental to our justice system and to democracy itself.

The petitioners’ stand may have some merits on the purely legal point of view. Nevertheless this purely legal point of view should not be the only consideration that should guide the president in deciding whether or not to appoint the next CJ. Her appointment of the next CJ will always be controversial and questionable in view of the ban on midnight appointments. In fact the overwhelming sentiment of the larger sector of our society not only in the legal profession but in the business and academic circles is for her not to make such move. Hence she should consider not only the legality but also the propriety and necessity of making such appointment.

It is not proper precisely because of the controversy surrounding such action. At this time when the independence of the judiciary especially the SC is already placed in doubt because almost all the Justices are her appointees, the independence of the CJ whom she will appoint will always be suspect. Indeed people are already tagging said CJ whom she may appoint as a “bastard CJ”. Her appointee may in fact hesitate to accept such appointment and be called a “bastard CJ”.

It is not necessary because there is no urgency in filling up the vacancy. There are so many occasions in the past when the CJ position of the SC became vacant and was not immediately filled up, yet the SC continued to function properly and smoothly. Indeed a law is already in place requiring the most senior Associate Justice to act as CJ until the appointment of the permanent CJ. If Arroyo leaves the appointment to the incoming president, the latter still has 45 days to pick the next CJ. This is enough time.

President Arroyo is reportedly concerned about the legacies that her administration will leave behind. She should leave to her successor the choice of the next CJ as one of her legacies. This is indeed a great act of statesmanship on her part.