Corona’s “Midnight” Appointment: Legal or not?

Views and Recent Histories

View of former Chief Justice Reynato Puno

The compulsary retirement of former Chief Justice Reynato Puno was scheduled on May 17, 2010.  This was an obligatory retirement because of the age limit of justices was set at 70 years old.  Now,  that would leave the position of Chief Justice vacant in a time of presidential elections.

The former Chief Justice Puno, in a Philippine Daily Inquirer interview, even said that the position of the Chief Justice should not be left vacant in an election year.  He said this because during an election year, the Chief Justice sits as the chair of the Presidential Electoral Tribunal, a body that resolves election law disputes on the positions for the President and Vice-President.  Chief Justice Puno when asked in the same interview  if the former President can be allowed to name a Chief Justice 90 days prior to the end of her term, even said that it was “a non-legal issue” and that he did not want to present an opinion on the matter.

The JBC, even prior to the date of Puno’s retirement, had submitted a recommended list to the then-President Arroyo, who in turn made a decision and announced Corona’s appointment as Chief Justice on May 12, 2010 – two days after the election.  By that time, everybody knew that then Senator Benigno Aquino III was going to be President-elect. The submission of the list, according to CJ Puno, was expected, as reported in the Inquirer interview.

Opposing Views of Senator Juan Ponce Enrile and Franklin Drilon

Senate President Juan Ponce Enrile (who is now Presiding Chair of the Impeachment Court) even suggested to then President Arroyo that she can dispense with the JBC recommendation and name Puno’s successor after his retirement from the existing members of the Supreme Court.

Speculations arose, given the fertile minds of politicians and lawyers, that Mrs. Arroyo conferred the appointment to CJ Corona in order to ensure that she be exempt from any criminal accountability for her alleged corruption.    Senator Franklin Drilon opposed the appointment, considering his oppositional party-line views against the Arroyo administration.  President Aquino belongs to the Liberal party as well as the following Senate-jurors in the ongoing impeachment trial:  Franklin Drilon, Kiko Pangilinan, TG Guingona and Ralph Recto.

Views from Philippine Bar Association

Despite the public inputs from Chief Justice Renato Puno and the suggestion of Sen. Juan Ponce Enrile, the Philippine Bar Association opposed the move citing Section 12 of the Judiciary Act of 1948 (which also known as Republic Act 296) which states that the function of the CJ will devolve to the highest ranking Associate Justice. 

The problem in PBA’s argument is three-fold.  One,  RA 296 had been replaced with the the Judiciary Re-Organization Act of 1980 (BP 129).  Nevertheless, Section 12 of RA 296 was not repealed and is still indicated as Section 5 of BP 129.  It calls to the view that if the PBA can’t even cite the right name of the law, one is tempted to dismiss their legal opinion.  Secondly,  a question then arises what law needs to be followed:  Article VII Section 15, Article VIII Section 4.(1) and 8.(5) or BP 129?  Third,  the PBA may have needed to be reminded that the 1987 Philippine Constitution was created as a result of thenPresident Corazon Aquino’s Constitutional Commission, which reversed the 1973 laws and although imperfect, have placed us in this quandary in the first place.

President Aquino’s Executive Order No. 2

President Aquino assumed the office of the Presidency in June 2010.  In exercising his Executive power to revoke appointments by the former President Arroyo, his office published last July 30, 2010 Executive Order No. 2 which defined midnight appointments and effectively terminating the 977 appointments made by the former President.  However, in a statement by Presidential Chief Legal Counsel Eduardo De Mesa to the press, he said that EO No. 2:

“…only covers appointments in departments, agencies, and government owned and controlled corporations and does not include the judiciary.”

There is a particular reason why the judiciary was not included in the list.  By the time EO 2 was made, an earlier Supreme Court ruling already decided that the revocation does not include the Judicial branch.  

In the next page, i shall summarize the ruling of the Supreme Court and provide insight on whether CJ Corona’s appointment was constitutional .

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