By LALA ORDENES
THE conviction of Renato Corona, the first time in the country’s history a chief justice is removed from office by impeachment, has thrown the Supreme Court and even the Judicial and Bar Council into uncharted waters, forcing the High Tribunal to contradict itself and act against its own pronouncements.
Associate Justice Antonio Carpio was designated Acting Chief Justice the day after Corona was convicted on May 29, he being the most senior justice among the remaining 14 justices.
Yet the Supreme Court itself, deciding in 2010 in De Castro vs. Judicial and Bar Council, questioned the designation of an acting chief justice and asserted that no one is ever appointed in an acting capacity to such a position. De Castro is a consolidation of cases challenging the right of the incumbent president to appoint the successor of a retiring chief justice within two months before the presidential elections.
The same ruling eventually paved the appointment of Corona as chief justice by then President Gloria Macapagal-Arroyo amid criticisms over his “midnight appointment.” Corona was appointed on May 17, 2010, barely a month before she stepped down from office.
Ironically, Corona’s midnight appointment was one of the grounds for his impeachment.
Also for the first time in its history, the Judicial and Bar Council, the body tasked by the 1987 Constitution to nominate qualified candidates to the judiciary, including the chief justice, to the appointing power, the President, is headed by an acting chairperson who is himself a contender for the post. The chief justice is the ex-officio chair of the JBC.
On May 29, the Senate sitting as an impeachment court convicted Corona by a vote of 20-3 for culpable violation of the Constitution and betrayal of public trust for failure to disclose to the public his statement of assets, liabilities, and net worth. He was disrobed not just as a Supreme Court justice but, more importantly, as the chief magistrate of the land.
Carpio’s designation, according to acting Supreme Court spokesperson Ma. Victoria Gleoresty Guerra, is “by operation of law because he’s the senior justice.”
The law Guerra referred to, although she didn’t say specifically, is the Judiciary Act of 1948 which states in Section 12: “In case of a vacancy in the office of Chief Justice of the Supreme Court or of his inability to perform the duties and powers of his office, they shall devolve upon the Associate Justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed and duly qualified. This provision shall apply to every Associate Justice who succeeds to the office of Chief Justice.”
But in the De Castro case, the court made its displeasure of an acting chief justice known: “With reference to the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment is never in an acting capacity.” The court further stressed that the express reference in the Constitution of a “Chief Justice,” separating it from the 14 Associate Justices, “abhors the idea that the framers contemplated an Acting Chief Justice to head the membership of the Supreme Court.”
The Supreme Court, it seems, did not anticipate the current scenario when it further opined: “For sure, the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting or temporary capacity.”
It did concede, however, that Section 12 of the Judiciary Act of 1948 could still find an application under the 1987 Constitution but only in “a rare situation in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is unable to perform the duties and powers of the office.”
Still, although it may seem like the Supreme Court is now in a quandary, the decision in De Castro has a caveat on the application of Section 12 in the present Constitution, considering that the Chief Justice appointed under the 1935 Constitution was subject to the confirmation of the Commission on Appointments, and the confirmation process might take longer than expected.
In the present Constitution, the appointment of the chief justice needs no confirmation.
Corona’s removal also effectively deprived the JBC of its ex-officio chairman. The council is tasked by the 1987 Constitution to nominate qualified candidates to the judiciary to the appointing power, the President.
As acting chief justice, Carpio was also logically the acting chair of the JBC. Although this was not specifically provided either by the Constitution or by any of the JBC rules, Senator Francis Escudero has said in an interview that “whoever heads the SC automatically heads the JBC, whether as OIC or acting, he is head. Therefore, there will be no void in the law.”
To construe otherwise, Escudero said, would create a perpetual paralysis in the operation of the JBC, “Walang Chief Justice, walang head ang JBC then the JBC cannot convene. The JBC cannot nominate the Chief Justice. But that’s just one theory. Whoever heads the SC ipso facto automatically heads the JBC. Therefore the JBC is going to be operational.” Escudero is also an ex-officio member of the JBC.
University of the Philippines law professor Theodore Te holds a different opinion. In a Facebook post, he said: “The Acting Chief Justice is NOT the Chief Justice and, thus, there may be a question as to whether he may even sit to preside over the JBC deliberations because it is by reason of office that the Chief Justice sits as Chair of the JBC.”
Te said the power vacuum could create a Constitutional impasse. Since the Constitution specified that it is the Chief Justice who must chair the JBC, no one from the other JBC members can do so. “Any internal rule that allows any of the JBC members to Chair the JBC would be unconstitutional because that post and the authority that it confers belongs to the Chief Justice ex officio.”
On June 4, the Judicial and Bar Council convened to officially open the application and nomination for the position of Chief Justice. The JBC Rules state that “the occurrence of any vacancy in the Supreme Court … opens, ipso facto, the vacant position for filling and acceptance of applicants therefor.”
Traditionally, the five most senior justices are automatically considered for nomination by the JBC. These are Carpio, Presbitero Velasco, Teresita de Castro, Arturo Brion and Diosdado Peralta.
Although Carpio was the one who called for a meeting of the JBC, and was supposedly its acting chair, he has inhibited himself from the deliberations of the chief justice post, creating another problem for the JBC. Justice Secretary Leila De Lima, another ex officio member, also inhibited. Both Carpio and De Lima are reportedly being considered for the post.
The council set the deadline for application and nomination on June 18.
The Constitution provides that any vacancy in the Supreme Court shall be filled within ninety days from its occurrence. If the vacancy was created on the day the decision was transmitted to the Supreme Court on May 30, the President is already deprived of 20 of the 90 days to make an appointment by June 18, a no-no, according to the De Castro ruling.
The court said that it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the Supreme Court within the 90-day period from the occurrence of the vacancy.
Clearly, the Supreme Court never envisioned the situation it finds itself in now, when it penned De Castro. The court said: “The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment.”
Doing so, the Court said, will “illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment.”
