Jurisprudence Review: The case behind the chaos

De Castro v. Judicial and Bar Council, G.R. No. 191002 (S.C. Mar. 17, 2010), available at http://sc.judiciary.gov.ph/jurisprudence/2010/march2010/191002.htm.

Given the controversy in Manila over the “midnight appointment” of a new Chief Justice, I thought it’d be worthwhile to actually analyze the Supreme Court case involved. Too often, pundits and politicians talk about these cases without reading them. I certainly can understand the reluctance to read such cases – this one is quite long and has legalese. Nonetheless, I think it’s incumbent upon us to actually understand the Court’s reasoning before either supporting or attacking the decision. As such, I’ve read it and summarized a few key points below.


Basically, this entire controversy was caused by an inconvenient birthday. Chief Justice Reynato Puno will turn 70 on May 17, 2010. Under the Philippine constitution, any justice must retire upon reaching the age of 70, so Justice Puno will step down from the court and leave a vacancy. Const. (1987), Cap. VIII, § 11, (Phil.). However, another section of the constitution seems to prohibit the president from making any appointments two months before the next election and up to the end of her term in office. Const. (1987), Cap. VII, § 15, (Phil.). Since the next election will be held on May 10 – just a week before Justice Puno retires – the question arises of whether current President Arroyo could fill the vacancy on the Supreme Court. In De Castro v. Judicial and Bar Council, the Supreme Court 9-1 that Arroyo could appoint a new chief justice before stepping down.

Legal Standing

First, the Supreme Court had to decide whether the petitioners involved could even challenge the president’s right to appoint a new justice. I won’t get bogged down in the details here, but suffice it to say the Supreme Court found that they had legal standing (locus standii) to bring the lawsuit as citizens or taxpayers in the general interest. The justices interpreted standing broadly, saying that 

Indeed, the issues affect everyone (including the petitioners), regardless of one’s personal interest in life, because they concern that great doubt about the authority of the incumbent President to appoint not only the successor of the retiring incumbent Chief Justice,

Justiciability/Ripeness
Another legal hurdle the petitioners faced was whether the case was ripe for adjudication. The Judicial and Bar Council (JBC), a joint committee of government officials and private lawyers who recommend nominees for the Supreme Court, has not yet interviewed or proposed nominees. Theoretically, this might make it to early to decide whether the president could appoint a new justice because nothing has actually happened. However, the Supreme Court decided that the outcome of the case:

will not be an abstraction, or a merely hypothetical exercise. The resolution of the controversy will surely settle – with finality – the nagging questions that are preventing the JBC from moving on with the process that it already began

Substantive Merits
After addressing those technicalities, the Supreme Court addressed the substantive merits of the case. The main provision in question is Chapter VII, Section 15, which reads:

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. Const. (1987), Cap. VII, § 15, (Phil.).

On its face, this would ban the president from making any appointments between March 11 and June 30, 2010. However, the justices also pointed to an equally firm mandate in Chapter VIII, Section 4(1):

Any vacancy [on the Supreme Court] shall be filled within ninety days from the occurrence thereof. Const. (1987), Cap. VIII, § 4(1), (Phil.).

First, the justices applied a facial reading to the 1987 Constitution to see if it could resolve the question based strictly on the text. The § 15 prohibition is located under Chapter VII, which deals with the Executive branch of government, not the Judiciary (Chapter VIII). They noted that, “Had the framers intended to extend the prohibition… to the appointment of Members of the Supreme Court, they could have explicitly done so.” Moreover, the debate in the Constitutional Commission in 1986 shows that the 90-day period for appointing a new justice was a firm mandate on the president.

Next, the Court considered the context of both provisions. The § 15 prohibition is right next to two other sections in Chapter VII concerning appointments that clearly apply only to the Executive, not the Judiciary. The justices reasoned that, “The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department.” It would have been out of place to lodge a constitutional provision on government-wide appointments in between two more limited provisions without making that distinction clearer.

The Supreme Court also considered the purpose of the § 15 prohibition and whether it makes sense to apply it to the Supreme Court.  The justices reasoned that the constitutional drafters had included this prohibition in order to prevent “midnight appointments” intended to 1) buy votes or 2) influence the outcome of the election. During previous presidencies, there had been “midnight appointments” of unqualified cronies that simply caused headaches for the next president. However, under the 1987 Constitution, the JBC screens and nominates all judicial candidates. The Supreme Court believes:

the intervention of the JBC eliminates the danger that appointments to the Judiciary can be made for the purpose of buying votes in a coming presidential election, or of satisfying partisan considerations… Indeed, the creation of the JBC was precisely intended to de-politicizethe Judiciary…

The Court also argued that, contrary to critics, were a new president to appoint the justice, that appointee might feel beholden to an incumbent president. This situation could potentially be more dangerous to judicial independence than an appointee indebted to a former president without the levers of power.
Finally, the Court addressed a counterargument, namely that there would still be around 45 days after the new president assumes office but before the 90-day deadline for appointing a new justice. Here, the justices noted that Puno’s retirement meant not only appointing a new chief justice, but also possibly a new associate justice. Chapter VIII, § 4(1) applies to every vacancy. This means that there is a real risk there would not be enough time for the new president to appoint a new justice. While in this case, with Justice Puno retiring on May 17, there might be enough time, it is certainly conceivable that a justice could retire near the beginning of the § 15 prohibition period. The prohibition period could last between 105-115 days, several days longer than the 90-day period to fill a court vacancy. Were a justice to retire 5 days after the beginning of the prohibition period, it would be legally impossible for the new president to fill the vacancy. The Supreme Court reasoned that the constitutional drafters would not have risked such a gap.
Overall, the justices make some interesting points in the opinion. Certainly nothing as outrageous as Arroyo’s opponents claim. I think the structural and contextual arguments about the constitution make good sense. One constitutional drafter, Christian Monsod, has already publicly proclaimed that the drafters did not intend to exclude the Judiciary from § 15. However, it’s always best to treat such latter-day proclamations of intent carefully. More puzzling to me is why Chief Justice Puno could not have retired earlier to avoid this controversy. I also don’t by the Court’s last argument about letting the new president appoint the justice. The chances of a Supreme Court justice retiring within the few days when § 15 and § 4(1) would overlap seem rather small. Had that been the only argument supporting their decision, I could understand the public outcry. But, it’s not.
A word about the vote count. Only one justice dissented from the opinion. Three others wrote separate or concurring opinions, but also joined the majority. The three most involved in the controversy, Chief Justice Puno himself and his two likely successors, Justices Carpio and Corona, abstained. This left 11 out of 15 justices supporting the Supreme Court’s conclusions (not counting Justice Corona, the man Arroyo will likely choose given the outcome of the case). This is not unanimous, but certainly isn’t a close split.

So what does this mean for the future of the Philippine Supreme Court and the 1987 Constitution? It’s difficult to tell, but it seems only to exclude the Judiciary from § 15. It doesn’t weaken the § 15 prohibition in any other way, so presumably it won’t leave a large loophole for other “midnight appointments.” Moreover, I don’t imagine many justices will retire during the § 15 time period simply to allow the president to make “midnight appointments” to the judiciary. Rather, the real implications are political. President Arroyo will likely have one more ally on the Supreme Court during her retirement (or possibly as a congresswoman from Pampanga).
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