(STAR) By Edu Punay - The government has asked the Supreme Court (SC) to compel the Judicial and Bar Council (JBC) to submit to President Arroyo its shortlist for the next chief justice and allow her to appoint the successor of Reynato Puno who retires on May 17.

The Office of Solicitor General (OSG) has supported consolidated petitions of the Philippine Constitution Association (Philconsa) and lawyers Arturo de Castro and Estelito Mendoza that sought answers to the issue of whether or not Mrs. Arroyo can appoint the next SC chief.

In its comment filed on Friday afternoon via mail, the OSG said the President is allowed by the Constitution to appoint the successor of Puno and that the JBC does not have the power to defer the submission of its shortlist to the President.

On the first issue, Solicitor General Alberto Agra argued that the election ban on midnight appointments under Article VII, Section 15 of the Constitution does not cover the chief justice post based on “mathematics” and “deliberation of framers of the Charter.”

Agra explained that the appointment ban, which lasts from 109 to 115 days in regular elections, is longer than the 90-day period within which an SC justice must be appointed under Article VII, Section 4.

“If the midnight appointments ban were to be applied to appointments in the Supreme Court, at least 19 occasions may be conceived where the President will never be able to comply with her constitutional duty of filling a vacancy in the Supreme Court. Surely, the framers of the 1987 Constitution, in deciding these dates and periods, could not have meant or intended to allow such an absurd situation to happen,” he said.

Agra added that framers of the Charter “made no mention or reference to the midnight appointments ban or its effects on such period (for appointment of SC justices), and vice-versa.”

He said they had even extended the mandatory period of appointments from 60 to 90 days - “oblivious to the midnight appointments ban or period covered by it.”

The OSG said the framers of the Charter could have expressly stated that the ban covers appointment in the judiciary - especially since they had included restrictions or limitations on the President’s power to appoint members of the SC to ensure independence from political vicissitudes.

Assuming that the judiciary is covered by the appointment ban during polls, the OSG argued that there are compelling reasons to exempt the chief justice post from the ban.

“It is quite expected that there will be a deluge of cases involving sensitive political issues before this Honorable Court. National interest compels the President to make such appointment for it is particularly during this crucial period when national leaders are seeking fresh mandates from the people that the Supreme Court, more than at any other time, represents stability. Hence, a full court is ideal to ensure not only due deliberation on and careful consideration of issues but also expeditious disposition of cases,” it explained.

It added that the SC acts as the Presidential Electoral Tribunal (PET), which is “sole judge of all contests relating to the election, returns, and qualifications of the President and Vice President.”

The OSG also argued that this importance of the chief justice post has been proven by recent history, which shows that there is no vacancy in the post that lasted more than one day.

For these reasons, the OSG asked the SC to declare that Mrs. Arroyo has the power to appoint the next chief justice.

As for the second issue, the OSG said the JBC should be compelled to submit the shortlist to the President and should not be allowed to decide when it will submit the shortlist, which is a ministerial act.

It is also on this premise that the JBC cannot be compelled by the SC to exclude the names of nominees who accepted nominations on certain conditions, the OSG said.

As for the petition of lawyer Jaime Soriano, the OSG said it is incorrect to claim that the SC has the power to appoint the chief justice.

It can be recalled that the JBC told the SC that it would await its ruling on the consolidated petitions before deciding when it would submit the shortlist of final nominees to the Palace.

No need

Meantime, Lakas-Kampi-CMD standard-bearer and Bar topnotcher Gilbert Teodoro Jr. believes there is no need for President Arroyo to appoint the next SC chief.

Teodoro emphasized that for now, despite mounting calls, the SC cannot intervene in the appointment of the next chief justice because there is no case to rule with regard the issue.

The Harvard-trained lawyer said the vacancy will occur in May and “there is no vacancy so there’s no appointment.”

Nacionalista Party standard-bearer Sen. Manuel Villar Jr., on the other hand, urged Mrs. Arroyo to await and respect the decision of the SC on the appointment of the next chief justice.

At the proper time

President Arroyo’s spokesman said yesterday she would make her decision on whether or not she would appoint the country’s next chief justice when the proper time comes.

Deputy presidential spokesman Gary Olivar said Mrs. Arroyo will wait for the shortlist of those who could succeed Puno.

He added that the debate on the matter is whether the President is allowed to appoint a chief justice within the banned period of 60 days before her term expires on June 30.

“She is studying this and she is getting advice from many people. She will do what is best for the interest of the country,” Olivar said. - With Jaime Laude, Christina Mendez and Paolo Romero

Chief News Editor: Sol Jose Vanzi

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