SC: “Midnight Appointments” Ban in the Constitution Does not Extend to Judiciary

The Supreme Court today ruled that the prohibition under Article VII, Section 15 of the Constitution against presidential appointments immediately before the next presidential elections and up to the end of the term of the President does not apply to vacancies in the Supreme Court.

In a 56-page decision penned by Justice Lucas P. Bersamin, the Court thus directed the Judicial and Bar Council (JBC) to resume its proceedings for the nomination of candidates to fill the pending vacancy created by Chief Justice Reynato S. Puno’s compulsory retirement on May 17. The Court also directed the JBC to prepare the short list of nominees for the position of Chief Justice and submit the same to President Arroyo on or before May 17, 2010. Likewise, it directed the JBC to continue its proceedings for the nomination of candidates to fill other vacancies in the Judiciary and submit to the President the short list of nominees corresponding thereto in accordance with its decision in the cases at bar.

Concurring with Justice Bersamin, who also opined that the exemption covers the entire Judiciary are Justices Teresita J. Leonardo-De Castro, Martin S. Villarama, Jr., and Jose Perez. Justice Roberto A. Abad wrote a separate concurring opinion.

Justice Arturo D. Brion also concurred in that “appointments to the Supreme Court are not subject to the election ban under Section 15, Article VII,” but wrote a separate opinion that he “disagrees with the conclusion that the incumbent President’s authority to appoint extends to the whole Judiciary.” He was joined by Justices Diosdado M. Peralta, Mariano C. Del Castillo, and Jose C. Mendoza.

Justice Conchita Carpio Morales dissented, while Justice Antonio Eduardo B. Nachura, who was joined in his separate opinion by Justice Presbitero J. Velasco, Jr., voted to dismiss all petitions for being premature. Justice Nachura did not any more discuss the issue on whether or not the incumbent President can appoint the successor of Chief Justice Puno.

Chief Justice Reynato S. Puno, Senior Justice Antonio T. Carpio, and Justice Renato C. Corona did not take part.

The Court said that 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.

Art. VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President, while the presidential power of appointment is dealt with in Sections 14, 15, and 16 of the Article, the Court noted. “In fact, in their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4(1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against midnight appointments under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to, because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the lower courts,” ruled the Court. With regard to the Chief Justice, the Court said the appointment as such is never in an acting capacity and that to rely on Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain intent of the Constitution.

“The lack of any appointed occupant of the office of Chief Justice harms the independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary. The Chief Justice performs functions absolutely significant to the life of the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief Justice, aside from its being mandatory for the incumbent President to make within the 90-day period from May 17, 2010, there is no justification to insist that the successor of Chief Justice Puno be appointed by the next President,” the Court ruled.

The Court said that “Although Valenzuela came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail.

“The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the President’s power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado,” the Court said.

The Court also held that having the new President, instead of the current incumbent President, cannot ensure judicial independence, because the appointee can also become behold to the appointing authority. “In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010,” it added.

The Court underscored that under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of the vacancy. The JBC, it added, has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment.

The Court also distinguished the duty of the JBC to submit a list of nominees before the start of the President’s mandatory 90-day period to appoint as ministerial, while its selection of the candidates whose names will be in the list to be submitted to the President as discretionary on the JBC’s part. “Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to issue a writ of mandamus against the JBC. The actions for that purpose are premature, because it is clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list of nominees to the President to fill the vacancy created by the compulsory retirement of Chief Justice Puno,” the Court said.

The Court also held that the petitioners have each demonstrated adequate interest in the outcome of the controversy as to vest them with the requisite locus standi, noting that the issues “are of transcendental importance to the people as a whole, and to the petitioners in particular.”

Likewise, the Court held that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of who of them will succeed Chief Justice Puno as the next Chief Justice.

“The ripeness of the controversy for judicial determination may not be doubted. The challenges to the authority of the JBC to open the process of nomination and to continue the process until the submission of the list of….we need not await the occurrence of the vacancy by May 17, 2010 in order to have the principal issue be ripe for judicial determination by the Court. It is enough that one alleges conduct arguably affected with a constitutional interest but seemingly proscribed by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a constitutional interest is sufficient to afford a basis for bringing a challenge, provided the Court has sufficient facts before it to enable it to intelligently adjudicate the issues,” said the Court.

Justice Abad dismissed as “myth” the proposition that a Chief Justice will always be beholden to the President who appoints him. He noted that former President Joseph Estrada appointed Chief Justice Hilario G. Davide, Jr., who had presided over Estrada’s impeachment and administered the oath to President Arroyo at the heels of EDSA II while President Estrada still sat in Malacañang. Chief Justices Puno and Artemio V. Panganiban voted against positions taken by the administration of President Arroyo who appointed them both to their position. “These Chief Justices like those before them were first choices of the JBC before they were those of the Presidents concerned,” he said.

Justice Morales, among others, held that “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 Supreme Court is suspended during the ban on midnight appointment.” She stressed that the Court can function effectively during the midnight appointments ban without an appointed Chief Justice. “To begin with, judicial power is vested in one Supreme Court and not in its individual members, much less in the Chief Justice alone. Notably, after Chief Justice Puno retires, the Court will have 14 members left, which is more than sufficient to constitute a quorum,” she said.

For his part, Nachura held that all petitions “utterly failed to present a justiciable controversy” since “several contingent event are still about to unfold.” He stressed that “The Court must not be unduly burdened with petitions raising abstract, hypothetical, or contingent questions.”

(GR No. 191002, De Castro v. JBC; GR No. 191032, Soriano v. JBC; GR No. 191057, PHILCONSA v. JBC; AM No. 10-2-5-SC, In Re Applicability of Sec. 15, Art. VII of the Constitution to Appointments to the Judiciary; GR No. 191149, Peralta v. JBC; GR No. 191342, Tolentino, Jr. v. JBC; GR No. 191420,  Philippine Bar Association, Inc. v. JBC; March 17, 2010)

About Erineus

Born on December 28, 1965, Surallah, South Cotabato, Southern Mindanao, Philippines.
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1 Response to SC: “Midnight Appointments” Ban in the Constitution Does not Extend to Judiciary

  1. elijin says:

    Sir is there a true phohibitoin…and a appointment prohibitoin.and what are thoes appointments that is prohibited….for an acting president…….

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