Appointment Power Is An Executive Privilege


Photo courtesy of ABS-CBNNEWS.COM

I am a Supreme Court basher for two reasons; I am a Jeffersonian in thought and,  I was castigated by the court maliciously and I want to return it back.

I could have joined with unrestrained glee the cacophony of protests against the SCORP for its recent ruling paving the way for President Gloria Macapagal Arroyo to appoint a replacement of a chameleon jurist,  CJ Reynato Puno, but this time, I am in full agreement with the ruling, though I do not agree with the court’s  reasoning. 

The recent uproar over the ruling highlights the pervasive patronage-system  our nation has become and we cease to see legal issues from purely academic viewpoint but for their practical results. The ruling will allow GMA to appoint a new Chief Justice and therefore it is unconstitutional but it would  not have been if we have a Chief Executive whose integrity is beyond question.  We have lost our capacity to see the bigger picture and become indignant at others for our own myopic perceptions. 

Let us have a President whose image is an approximation of an angel, then we can all choir our approval and hail the decision as the zenith of judicial wisdom and unequalled statesmanship.

This is how simplistic our thought process could be as we miss yet another constitutional reality that even a constitutional perversion by our Court becomes the binding law of the land.

The power to appoint judges and justices is the prerogative of the President and any contrivance to short-circuit this power is anathema to a Republican form of government of tripartite bodies with clearly delineated function but with effective check and balance mechanism in place.  The 9 Supreme Court magistrates who voted  to uphold the power of the President to appoint a replacement  for retiring CJ Reynato Puno could have looked back in time and expound the greater constitutional paradigm that Congress, the Court and the Executive are co-equal  bodies and therefore one is powerless to encroach on the power reserved for the other. 

As it is now, the JBC, which I have occasion to expound as a constitutional anomaly turns out to be a separate power enclave of the Supreme Court or the Chief Justice who heads it and he is using this body to checkmate the President.  The recent decision is a sudden turn around, perhaps because CJ Puno had been seen by his colleagues in the bench in a proper light as a “chameleon”  and had tried to disinfect themselves from the general perception that they are all chameleons by coming up with this ruling.  But of course, those who swear for Puno’s uprightness, will find it easy to point to the other 9 magistrates the real oriental lizards whose color is as fickle as their principles. 

The Court though, did not go far enough to present the constitutional oddity of the JBC whose four memberships are designated ex-oficio members, including the Chief Justice as the chairman of the body.

Any law or constitutional provision creating an agency with predetermined membership is a constitutional anomaly because it deprives the President of her administrative power of appointment.  In case of a law, Congress arrogated unto itself the power of appointment  that belongs exclusively to the President and in the case of the JBC, the framers of the Constitution had appropriated for themselves some of the appointments in the JBC which is constitutionally conceded to the President.

I have yet to see the constitutionalists in our midst argue for the abolition of the JBC.

The Supreme Court has done little in looking at the bigger constitutional issue by disposing Sec. 15, Art. VII as not applicable to judicial appointments and the framers of the constitution had intended it to be so instead of categorically making a position that the JBC must serve only as a “clearing house” for possible appointees to the judiciary but it could not short-circuit this power of appointment by refusing to submit its short-list of candidates for the judiciary to the President.

And while the midnight appointment ban, is a policy directional designed to prevent the outgoing President from distributing the “spoils of the war” because technically, it should be her successor who must distribute the spoils already, such does not detract from the fact that withholding this power while she is still in Office is the greatest constitutional anomaly in our times.

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2 thoughts on “Appointment Power Is An Executive Privilege

  1. Imagine “who will judge the judge” Mr jcc when you wrote this article parang alam mo na ang mangyayari…now the senators are the judges & the representatives are the prosecutors. The court house is like a ring circus…you have the last laugh on the Phl. judiciary…you have the very good reason not to come back…but still you want to, hoping the country will change for the good…but kailan pa kaya?:(

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