Section 15. 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.Nothing would seem to be clearer or more definite, and yet on March 17, 2010 the Philippines Supreme Court ruled that appointments to the Supreme Court are exempt from this ban in a Decision penned by J. Bersamin GRP191002
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.But it required a breath taking somersault and the dusting off of some hitherto unknown "framers' intentions" from the darkened folios and dim recollections of the 1986 Constitutional Commission:
In its March 17 decision, 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.“Like so many others who have read this SCoRP decision, I'm disgusted with the Corona Supreme Court for exempting itself from the long-standing Midnight Ban on Election-Period Appointments by the President in a brazen demonstration of SELF-SERVICE that I believe amounts to a grave abuse of juridical and logical discretion. Well so much for stare decisis non movere? So much for Final Arbiter?
Consider this bit of prose in the Bersamin Ponencia GRP191002:
"...that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the President’s power to appoint members of the Supreme Court to ensure its independence from “political vicissitudes” and its “insulation from political pressures,” such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice."The clause I've highlighted in red in the above paragraph contains a very deceptive and sly piece of reasoning about why the Judicial Department might be exempt from the midnight ban on appointments. It is based on the purely facile observation that the ban is not mentioned in Article VIII on the Judicial Branch of government, but in Article VII on the Executive Branch. But what could be more obvious? The 1987 Constitution places the ban on election period appointments in the Executive Branch (1987 Article VII Section 15) for the obvious reason that the appointing power is the Chief Executive. Even more clearly, the ban applies to all presidential appointments to all branches of government, except as noted in the same 1987 provision.