The controversial appointment of Chief Justice Renato Corona on 17 May 2010 geared upon the resolution of the apparent conflict between two provisions in the Philippine Constitution--Article VII (Executive Department), Section 15 and Article VIII (Judicial Department), Section 4(1).
Art. VII, Sec. 15 states: "Two months immediately before the next presidential elections up to the end of his term, a President or Acting President shall not make appointmets, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety."
Art. VIII, Sec. 4 (1) goes: "Any vacancy shall be filled within ninety days from the occurrence thereof."
Article VII(15) clearly curtails the "appointive power" of the outgoing president "two months before the presidential elections up to the end of his term (i.e., from March 11-June 30, 2010), and this power certainly covers all appointments in government be it executive or judicial. Apparently, the exception covers only the executive department and only as far as temporary appointment. Judicial appointment had not been explicitly stated exempt from this prohibition of midnight appointments. The logic appears to be clear in case public risk exists--the outgoing president may only appoint "executive positions" and only "temporary appointments."
Now, Article VIII (4.1) demands that "within 90 days" from vacancy, it must be filled. So if Chief Justice Ricardo Puno retires on 17 May 2010, 90 days will end on 15 August. This means that if the new president starts his job as chief executive of the country on July 1, the appointment period very well falls within his first 46 days in the job, as opposed to the 45 days of the outgoing president, which this provision explicitly prohibit any exercise of the appointive power.
Assuming there is basis for a public in danger, and should we assume that both provisions of the Constitution be respected equally as they are, according to the Valenzuela doctrine ("the court should seek to avoid any conflict in the provisions of the statute by endeavoring to harmonize and reconcile every part so taht each shall be effective... What appears to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled."), it is explicit in Article VII(15) that the outgoing president has been prevented from using his appointive power to all appointments, and that includes any vacancy in the judiciary department, even in the Supreme Court, and should the exemption be exercised, an appointment can only be done on a "temporary" basis, as far as the spirit of the Constitution granting the exemption is concerned. This can mean only that an Acting Chief Justice may be appointed as an allowed exemption. And the permanent Chief Justice may be appointed only by the incoming president.
The fact that the Judicial article (VIII) follows the Executive article (VII) indicates that an assumption already exist that the prohibition in Art. VII, Sec. 15 was a sweeping prohibition of the appointive power of the President on all appointments, other than the exemptions mentioned. And the fact that no qualification of this appointive prohibition in the succeeding Article VIII indicates that the framers of the Constitution wanted the prohibitions of such power in Article VII be followed with regards to appointments in Judicial Department.
One complication to the issue at hand was the question of when should the Judiciary and Bar Council (JBC) submit the list of at least three nominees to the president for appointment. For vacancy in the lower courts, Art. VIII, Sec. 9 requires only that: "the President shall issue the appointments within ninety days from the submission of the list." There is no explicity provision that answers the question proposed above. However, if Art. VIII, Sec. 4 (1) requires that the vacancy be filled within 90 days of vacancy, then the JBC list must be submitted to the appointive President at the day the vacancy exists, in the present case on 17 May 2010. There is no provision in the Constitution that requires the submission of the short list for nominees before the vacancy occurs.
Another complication was the confirmation made to the JBC by former Senior Associate Justice Florenz Regalado that the prohibition "not being intended to apply to the appointments to the Judiciary" contradicts the clear wordings of Art. VII (15) which deprives the President of his appointing power without mentioning any Judiciary appointment as an exemption. In the Intent of the Constitution that recorded approval of the Commission without discussion indicates an intent that this provision may not be interpreted otherwise.
In short, the effect of possibilities would look like this:
1. To allow an OUTGOING President to make Judiciary appointment after May 17, 2010 will violate the provisions in Art. VII, Sec. 15 because his executive power to appoint had been prohibited during this period, but NOT that of the Art. VIII, Sec. 4 (1) because the period belongs to the earlier part (first 14 days) of the 90 days requirement to fill the vacancy.
2. To allow an INCOMING President to make the Judiciary appointment after May 30 will NOT violate Art. VII, Sec. 5 because the executive power to appoint is already allowed in the beginning of his presidency, and also will NOT violate Art. VIII, Sec. 4 (1) because it also complies with the 90 days requirement to fill the vacancy. In fact, the new President will have 76 days available to fill the vacancy.
Between the two options, it is clear that the second option allows for harmony between the two provisions, according to the Valenzuela doctrine (Crawford, Earl T., The Construction of Statutes, Thomas Law Book Company, St. Louis, Missouri, 262-264 (1940).
The JBC can still submit the list of nominees to the new President on Day 1 (June 1, 2010) without violating the provisioni in Article VIII, Section 9.
The fact that the Judicial article (VIII) follows the Executive article (VII) indicates that an assumption already exist that the prohibition in Art. VII, Sec. 15 was a sweeping prohibition of the appointive power of the President on all appointments, other than the exemptions mentioned. And the fact that no qualification of this appointive prohibition in the succeeding Article VIII indicates that the framers of the Constitution wanted the prohibitions of such power in Article VII be followed with regards to appointments in Judicial Department.
One complication to the issue at hand was the question of when should the Judiciary and Bar Council (JBC) submit the list of at least three nominees to the president for appointment. For vacancy in the lower courts, Art. VIII, Sec. 9 requires only that: "the President shall issue the appointments within ninety days from the submission of the list." There is no explicity provision that answers the question proposed above. However, if Art. VIII, Sec. 4 (1) requires that the vacancy be filled within 90 days of vacancy, then the JBC list must be submitted to the appointive President at the day the vacancy exists, in the present case on 17 May 2010. There is no provision in the Constitution that requires the submission of the short list for nominees before the vacancy occurs.
Another complication was the confirmation made to the JBC by former Senior Associate Justice Florenz Regalado that the prohibition "not being intended to apply to the appointments to the Judiciary" contradicts the clear wordings of Art. VII (15) which deprives the President of his appointing power without mentioning any Judiciary appointment as an exemption. In the Intent of the Constitution that recorded approval of the Commission without discussion indicates an intent that this provision may not be interpreted otherwise.
In short, the effect of possibilities would look like this:
1. To allow an OUTGOING President to make Judiciary appointment after May 17, 2010 will violate the provisions in Art. VII, Sec. 15 because his executive power to appoint had been prohibited during this period, but NOT that of the Art. VIII, Sec. 4 (1) because the period belongs to the earlier part (first 14 days) of the 90 days requirement to fill the vacancy.
2. To allow an INCOMING President to make the Judiciary appointment after May 30 will NOT violate Art. VII, Sec. 5 because the executive power to appoint is already allowed in the beginning of his presidency, and also will NOT violate Art. VIII, Sec. 4 (1) because it also complies with the 90 days requirement to fill the vacancy. In fact, the new President will have 76 days available to fill the vacancy.
Between the two options, it is clear that the second option allows for harmony between the two provisions, according to the Valenzuela doctrine (Crawford, Earl T., The Construction of Statutes, Thomas Law Book Company, St. Louis, Missouri, 262-264 (1940).
The JBC can still submit the list of nominees to the new President on Day 1 (June 1, 2010) without violating the provisioni in Article VIII, Section 9.
That is of course only the understanding of a humble citizen of the Republic of the Philippines.
(Click to read the en banc decision G.R. 191002)
WHAT OTHERS SAY
Father Joaquin Bernas, SJ
One thing is sure today: popular confidence in the integrity and independence of the Court has been severely sapped. [Full article]
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