Wednesday, August 22, 2012

On the Appointment of Chief Justice by the President

NOTE: The following article was written by Prof. Alan F. Paguia on a topic that has been active on Twitter and social media ever since Chief Justice of the supreme Court Renato J. Corona was appointed by Gloria Macapagal Arroyo to that position and subsequently removed by impeachment and trial in the House and Senate of the Congress of the Philippines. -- DJB

Presidential appointment of the Chief Justice is unconstitutional

by Alan F. Paguia

Professor of Constitutional Law
Pamantasan ng Lungsod ng Maynila
Chief Justice Claudio Teehankee Professorial Chair in Constitutional Law and Human Rights Ateneo Law School
August 21, 2012

Does President Benigno Simeon Cojuangco Aquino III have constitutional authority to appoint the Chief Justice of the Supreme Court?

It is respectfully submitted the proper answer is NO. The Law

1. The 1987 Philippine Constitution materially provides that:
“The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or, in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.” (Sec. 4 (1), ART. VIII)
“The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.” (Sec. 9, ibid. Underscoring supplied.)
“The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive department, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for, by law, and those whom he may be authorised by law to appoint. The Congress may, by law vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the Congress, whether voluntary or involuntary, but such appointments shall be effective only until after disapproval by the Commission on Appointments or until the next adjournment of the Congress.” (Sec. 16, ART VII)

2. The law is clear. The appointing power of the President vis-à-vis the Supreme Court is categorically LIMITED to the MEMBERS.

3. There are 15 MEMBERS who may sit altogether en banc or in divisions of 3, 5, or 7 MEMBERS. One of the fifteen is designated as Chief Justice and the rest are designated as Associate Justices. The Chief, as leader, is not necessarily superior to the Associates. Such leadership is dictated by the logical requirements of administrative order and convenience in collegial bodies. Thus, he is known as primus inter pares, or first among equals.

4. When a MEMBER - whether Chief or Associate Justice - dies, retires, resigns, is permanently incapacitated, or is removed by conviction in a valid impeachment proceeding, a VACANCY naturally arises in the 15-MEMBER Court.

5. Who has the authority to appoint the person who shall fill up such vacancy? The President. According to the Constitution, the “Members of the Supreme Court (and judges of lower courts) shall be appointed by the President.”

6. When Chief Justice Renato C. Corona was removed through impeachment proceedings, he VACATED two (2) positions – as:
(a) Member, and as (b) Chief Justice.

7. With respect to the VACANCY pertaining to the position of Member, it is CLEAR that the same shall be filled by the APPOINTEE of the President. This is expressly provided by Sec. 9, ART. VIII

8. With respect to the VACANCY pertaining to the position of Chief Justice, it is NOT CLEAR whether the same shall be filled by the APPOINTEE of the President. The Constitution is SILENT as to how such VACANCY shall be filled.

9. The rule is - where the law is NOT CLEAR, it must be CONSTRUED and APPLIED accordingly.

10. Considering that the position of Chief Justice refers to the leadership of a co-equal branch of the tripartite system of government, it ought to follow that a reasonable CONSTRUCTION must observe the principle of SEPARATION OF POWERS between the legislative, executive, and judicial branches. Their INSTITUTIONAL INDEPENDENCE with respect to each other must be maintained in order to keep the principle of CHECKS AND BALANCE alive and effective.

11. It thus becomes significant to observe how the Constitution determines the leadership of the two Houses of Congress – the Senate and the House of Representatives. The first has the Senate President; the second has the Speaker of the House. These two leaders are:
(a) NOT APPOINTEES of the Chief Executive.
(b) ELECTED by their colleagues from among themselves. (c) CHOSEN to strengthen their respective INSTITUTIONAL INDEPENDENCE.

12. Thus, it would not seem reasonable to have the leadership of the Supreme Court be determined differently. In other words, the logic of the Constitution would appear to indicate that the Chief Justice MUST:
(a) NOT BE AN APPOINTEE of the Chief Executive.
(b) BE ELECTED by the 15 Magistrates from among themselves. (c) BE CHOSEN to strengthen the High Court’s INSTITUTIONAL

13. To rule otherwise would:

14. The Constitution of the United States of America materially provides that the President “shall nominate, and by and with the Advise and Consent of the Senate, shall appoint... Judges of the Supreme Court...” (Clause 2, Sec. 2, ART. II). Does the 1987 Philippine Constitution have a substantially identical equivalent provision? NO. The Philippine President’s power to appoint the Members of the Supreme Court does not require the approval of the Philippine Senate. Thus, while the US President’s power to appoint is subject to the check and balance by the US Senate, the Philippine President’s power to appoint is NOT subject to the check and balance by the Philippine Senate. In other words, such power to appoint on the part of the Philippine President - while apparently limited to the shortlist of nominees screened by the Judicial and Bar Council - appears to be ABSOLUTE, that is, NOT subject to any legal restriction. The constitutional objection is, therefore, grounded upon the UTTER DISREGARD for the principle of checks and balance, which is the indispensable twin of the principle of separation of powers.

15. May tradition be properly invoked to justify the presidential, albeit unconstitutional, practice of appointing the Chief Justice of the Supreme Court? NO. The Constitution and the laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary (Art. 7, CIVIL CODE).

16. Even the Magistrates of the Supreme Court seem inclined to take the view that the Chief Justice ought to be elected from among themselves. Why? Because if they truly believe it is the President who has the authority to appoint the Chief Justice, they should have – to be consistent - asked the President to appoint the Acting Chief Justice to fill up in the meantime the vacancy created by the removal of Chief Justice Corona. They did not. Instead, they elected from among themselves Associate Justice Antonio Carpio as such Acting Chief Justice. And President Aquino did not object.


17. Whoever shall be appointed Chief Justice by President Aquino would be working under a dark constitutional cloud of doubt. The same may be said of the rest of the Magistrates who, with their silence on the matter, would appear to leave to the present and future generations of Filipino legal scholars a legacy of dubious acquiescence.