SC can block Arroyo's appointment of new Chief Justice: Bernas

MANILA, Philippines - Even without a formal petition filed before it, the Supreme Court (SC) on its own could put an end to the raging controversy surrounding President Gloria Macapagal Arroyo’s possible naming of a chief justice during the period covered by the election appointment ban, according to constitutionalist Fr. Joaquin Bernas.

In a forum organized by the watchdog group Supreme Court Appointments Watch (SCAW), Bernas, dean emeritus of the Ateneo de Manila Law School, said the SC, motu propio or on its own accord, could rule on the constitutionality of Arroyo’s selection of a replacement for Chief Justice (CJ) Reynato Puno.

If Arroyo forces the issue and appoints the next chief justice, he said the SC could strike it down without waiting for a party to lodge a petition.

Puno will retire on May 17, and Mrs. Arroyo would then have 44 days left in office.

Under the 1987 Constitution, an outgoing president is barred from making appointments two months before an election and until the end of his or her term. In the case of Mrs. Arroyo, she cannot issue midnight appointments from March 10 to June 30.

Precedent cases

Citing the case involving the disputed appointments of judges Mateo Valenzuela and Placido Vallarta to the Regional Trial Court (RTC) in May 1998, Bernas stressed that the SC en banc went ahead on its own and invalidated the judges’ appointments since these were well within the period covered by the election appointment ban.

Sen. Franklin Drilon, a former Judicial and Bar Council (JBC) member, said that in this particular case, no other party was involved, and the SC treated it as an administrative matter right after then Chief Justice Andres Narvasa received the letters from Malacañang appointing Valenzuela and Vallarta to the RTC.

However, Drilon said he doubts the current SC would, on its own initiative, take this step. He noted that 14 out of the 15 sitting justices were appointed to the High Court by Mrs. Arroyo.

Puno was appointed to the bench by former President Fidel Ramos, but he was named Chief Justice by President Arroyo in December 2006.

Surprised with Puno's stand

Puno’s stand on the matter would have been instructive on how SC will handle the issue, but Bernas admitted he "cannot understand" why the chief justice made a recent statement supporting the argument that the chief justice post should not be left vacant during the election period.

Puno said having a chief justice is crucial once election cases start to roll in. The chief justice chairs the Presidential Electoral Tribunal, which resolves disputes involving the presidential race.

JBC member Rep. Matias Defensor, a known Arroyo ally, gave the same reason when he proposed that the JBC hold an early nomination for Puno’s replacement. He did not attend the forum although he confirmed that he would.

Bernas shook his head at this opinion, noting that an acting chief justice could head the Presidential Electoral Tribunal. “All I can say is I cannot understand why Puno is saying that,” he said.

Constitutional crisis feared

In the event the JBC does not submit a list and President Arroyo appoints a chief justice during the period of the appointment ban, Bernas said this would trigger a constitutional crisis as this would be a blatant violation of the Constitution.

He said the worst-case scenario is widespread protest in response to Arroyo's midnight appointment. Asked if he would join the protest, Bernas said: "Why not?"

Drilon said the Integrated Bar of the Philippines (IBP), which comprises all those who passed the bar, should lead the protest.

IBP chief of staff and general counsel Rodolfo Urbiztondo said the IBP does not have an official stand yet on the issue.

'Accessory to the crime'

Bernas said that a justice who accepts an appointment under these circumstances would be an "accessory to the crime" since the appointment would constitute a "culpable violation of the Constitution," and this means the new chief justice may be impeached.

Drilon urged the JBC not to submit a list of nominees during the period of the election appointment ban since Mrs. Arroyo will surely take advantage of it and appoint a new chief justice.

In case this happens, Drilon said he will seek an injunction from the Supreme Court. He supported Bernas' view that the SC, motu propio or on its own, may stop the JBC from submitting its list of nominees to the president.

Possible compromise

Bernas said it is possible to implement the two contradictory provisions in the Constitution on the election appointment ban and the need to fill the vacancy in the Supreme Court within 90 days from time Puno retires on May 17.

The solution, Bernas said, is to prevent President Arroyo from naming the next chief justice and to just let the next president make the appointment. He noted that the next chief executive would still have 45 days left or until August 15 to choose the next chief justice from the time he or she assumes office on June 30, 2010.

This way, Bernas said the two provisions in the Constitution would be followed.

Bernas and Drilon said no less than the credibility of the Supreme Court is at stake, especially if the next president does not recognize Arroyo's appointment of the new chief justice.

Stop the JBC

Meanwhile, amid a heated debate over the issue, the JBC last Wednesday opened the application for the next chief justice with more than 100 days to go before Puno leaves the top post in the judiciary.

SCAW executive director Vincent Lazatin decried that this move is highly "abnormal" since the JBC usually starts accepting applications 40 days before a vacancy is created.

Bernas said, however, that opening the selection process does not violate the Constitution.

The legal problem only arises when the JBC transmits its shortlist to the Office of the President. Bernas noted that Arroyo would still have ample time to appoint the Chief Justice if the list is submitted right after Puno's retirement.

But Bernas said the JBC may be prevented from submitting its list if the SC issues a temporary restraining order.

SC urged to revoke martial law in Maguindanao

MANILA (2nd UPDATE) - Several petitions were filed Monday before the Supreme Court (SC) seeking to declare as unconstitutional President Arroyo’s Proclamation No. 1959, which placed most areas in the province of Maguindanao under martial law.

The first petition was filed by Maguindanao 1st District Rep. Didagen Dilangalen, whose daughter is related by marriage to the Ampatuans.

In his petition for certiorari and inhibition before the High Tribunal, Dilangalen questioned the grounds cited by Malacañang to declare martial law in the province.

The congressman said that under the 1987 Constitution, the President can only declare martial law in the Philippines or any part thereof in case of rebellion or invasion when the public sector requires it.

"It is very clear that it says actual rebellion or invasion. There is no such thing as imminent threat of rebellion or looming rebellion. There is no such thing as armed or public uprising in the area," he said in an ANC interview.

The other petitions were filed by the Ampatuans' lawyer, Philip Sigfrid Fortun; Albert Lee Angeles; human rights lawyers belonging to National Union of People’s Lawyers (NUPL); activist groups Bayan Muna, Gabriela, and Bagong Alyansang Makabayan (BAYAN); former Senator Jovito Salonga and several lawyers led by University of the Philippines (UP) law professor Harry Roque; and, law student Joseph Nelson Loyola.

The petitioners are seeking the High Court’s issuance of a temporary restraining order (TRO) against the enforcement of martial law in Maguindanao.

SC spokesman Jose Midas Marquez said all petitions relating to the Maguindanao incident would be discussed by the SC magistrates during its regular en banc session Tuesday.

“It will be included in tomorrow’s [Tuesday] agenda of the en banc. We will try to include all others in tomorrow’s agenda as well. Most probably, they will all be consolidated,” Marquez said in a text message.

Section 18 of Article VII of the Constitution states that the SC “may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereon within thirty days from its filing.”

Other petitions

In his petition, Fortun argued that the declaration of martial law in Maguindanao has no factual basis as no actual rebellion or invasion exist, and that the local judicial system that has jurisdiction over Maguindanao is fully operational, contrary to Justice Secretary Agnes Devanadera's claim.

He also cited Section 18 of the Constitution which allows the President to suspend the privilege of the writ of habeas corpus or place the country under martial law for a period not exceeding 60 days “in case of invasion or rebellion, when the public safety requires it.”

Fortun insisted that even imminent danger of rebellion does not exist in Maguindanao considering that the government has assured that it has full control of the situation following the declaration of a state of emergency and the corresponding take over of the province by government authorities.

Fortun also noted that the Ampatuans had already signified that they were willing to cooperate with the authorities in connection with the massacre of 57 civilians, including 30 journalists.

“No danger of retaliation or tumultuous uprising from the Ampatuans could therefore be expected. Thus, the claim of the government that supporters of, or the Ampatuans were brewing a plan to publicly rise and take up arms against it is pure speculation and conjecture,” Fortun said.

'No sufficient factual basis'

On the other hand, the NUPL and its co-petitioners argued that the claim of the government that there were heavily-armed groups that have established positions in some areas in Maguindanao has not been confirmed by other sources except by military and executive officials.

“As of this filing, however, no arrest or even a single encounter has happened between military troops and the so-called ‘heavily armed groups in the province of Maguindanao that have established positions to resist government troops, thereby depriving the Executive of its powers and prerogatives to enforce laws and to maintain public order and safety’ claimed by Malacañang to be present in the province and used as a reason in the issuance of Proclamation No. 1959,” the petitioners said.

They noted that even the full text of Proclamation No. 1959 fails to state any sufficient factual basis for the declaration of martial law.

The petitioners said mere allegations about the alleged deterioration of the condition of peace and order in Maguindanao, to the extent that the local judicial system and other government mechanisms in the province are not functioning, are not enough bases for a declaration of martial law.

The petitioners also stressed that there was no instance, since the Maguindanao massacre happened, wherein President Arroyo as been deprived of any of her powers or prerogatives since she was able to exercise her powers as commander-in-chief of the Armed Forces of the Philippines by issuing Proclamation No. 1946.

“The proclamation of martial law and suspension of the privilege of the writ of habeas corpus are not a substitute for the incompetence of the authorities in the immediate arrest and detention of the butchers in the Ampatuan town massacre,” the petitioners said.

“Abuse of discretion”

Meanwhile, Salonga’s group also maintained that President Arroyo abused her discretion in declaring martial in Maguindanao considering that the massacre in Ampatuan town is a police matter already addressed by her earlier declaration of a state of emergency, which also covered the province.

“There is no one to blame for the breakdown of government functions in Maguindanao but the Arroyo administration itself, since from November 27, 2009, it had shut down government offices in the province and placed them under the control and supervision of Interior and Local Government Secretary Ronaldo Puno," they argued.

They noted that the alleged acts of rebellion by the Ampatuans had already been quashed with the confiscation by the police and the military of huge caches of arms, explosives and ammunition.

Rebellion charges filed

Meanwhile, Devanadera said the Philippine National Police has already filed a formal complaint of rebellion against 24 individuals including former Maguindanao Gov. Andal Ampatuan Sr. and Autonomous Region in Muslim Mindanao (ARMM) Gov. Datu Zaldy Ampatuan.

Devanadera said a panel of prosecutors led by Senior State Prosecutor Leo Dacera are still conducting inquest proceedings to determine whether there is probable cause to file rebellion charges against them before the trial court.

“The prosecutors are still conducting inquest proceedings. I don’t want to preempt their findings. If the evidence would warrant the filing of a case, then we will file it. If not, then they will be released,” she said.

The prosecutors have three days or until Tuesday to “judicially charge” those persons arrested during the implementation of martial law.

Aside from the petitions seeking the lifting of Proclamation No. 1959, the other issues to be tackled by the SC are the petitions filed by ARMM Gov. Ampatuan and other ARMM officials on the following:

• seeking to enjoin government authorities from taking control of the region and suspending local officials and employees accused of having involvement in the November 23 massacre;
• the petition of the Ampatuans seeking the issuance of TRO to enjoin authorities from arresting them without a warrant; and,
• the motion of the Department of Justice seeking the transfer of the court proceedings involving the Maguindanao massacre to any court in Metro Manila.