Renato Corona’s ouster as chief justice by impeachment could hamper the task of the very same constitutional body which vets all nominees for presidential appointment to each and every judicial position in Philippine courts.

 

How can the Judicial and Bar Council (JBC) begin the search for Corona’s replacement when in order to convene for business it must be chaired by none other than the chief justice?

 

The JBC is a body created under the 1987 Constitution to come up with three nominees each for every vacant judicial position in all courts. The President can only appoint judges and justices from the short list of nominees submitted by the JBC.

 

Up until he received the notice of his removal, Corona served as the JBC’s ex officio chairman. “Ex officio” means he became part of the JBC because of the position he had held – namely, as then chief justice.

Three legislators, who all played major roles in the impeachment and removal of Corona, have three different views to solve this constitutional conundrum.

 

Enrile: No JBC if no CJ to preside

Senate President Juan Ponce Enrile, who had presided over the historic Corona impeachment trial at the Senate, reiterated his stand which he had made as early as 2010 that the JBC cannot function without a chief justice presiding over it.

 

On Wednesday, Enrile told the host of a television morning show that the lack of a functioning JBC limits the options of President Benigno Aquino III in appointing Corona’s successor.

 

“The President cannot appoint an outsider because right now there is no JBC,” said Enrile.  “The President cannot fill the vacancy that is now open because of the conviction of the chief justice.”

He explained further: “That means that there is a vacant position out of the 15 members of the (Supreme) Court. One position is vacant and it so happens that that position is of the chief justice. So, since there is no JBC, so to speak, because the chief justice is the chairman of the JBC, the President, by force of necessity, must appoint a chief justice among those incumbent justices of the Supreme Court, the 14 remaining justices.”

 

Under the internal rules of the Supreme Court (SC), the most senior associate justice assumes the administrative functions of an incapacitated chief justice. Thus, SC Associate Justice Antonio Carpiotook over the administration of the high court as its “Acting Chief Justice”.

But Enrile drew an important distinction: “There is no one that can act as a chief justice, not even the whole court can appoint an acting chief justice. Only the President can appoint a chief justice. ‘Acting chief justice’ is not authorized under the 1987 Constitution unlike under the 1935 Constitution.”

 

Tupas: CJ is not the JBC, any member can preside

Iloilo Representative Niel Tupas Jr., who had served as House lead prosecutor in the Corona impeachment trial, agrees with Enrile on this point.

 

“The [most] senior justice yung mag-a-assume ng administrative [functions] parang officer-in-charge but he cannot sit as chairman of the JBC,” Tupas told another anchor of a later morning show on the same cable channel Wednesday.

 

“The Constitution is specific,” he pointed out. “Only a chief justice can sit. Si Justice Carpio would be acting [chief justice] so he cannot sit.”

 

But Tupas differs sharply with Enrile’s assertion that the absence of a chief justice to preside renders as inert the JBC.

 

“With due respect to Senate President Enrile, I disagree because the JBC is composed of seven or eight members. The JBC is composed not just the chief justice – it is a collegial body,” explained Tupas, who also sits in the JBC as an ex officio member representing the House of Representatives. “Kahit tanggalin mo dyan ang chief justice, it [the JBC] functions.”

 

The congressman explained: “We may designate or elect one of the members to temporarily preside for the purpose of screening applicants para sa chief justice of the Supreme Court. And it happened before during the time of President Fidel Ramos. He wrote a letter for the JBC to convene. Eh, wala ang chief justice noon – ewan ko kung nag-abroad – basta ‘di sya available. But nag-convene ang JBC without the chief justice and as long as may quorum sila, they [got to] designate one of their members to preside.”

 

But Tupas conceded that the present situation is different because Corona was permanently removed from office as the chief justice.

 

“The earlier the President appoints a new chief justice, the better for the country,” he said.

 

Chiz: Acting chief justice to convene JBC on June 4

Aside from Tupas, the JBC has one other ex officio member from Congress and this is Senator Francis “Chiz” Escudero, who also sat as a senator-judge in the impeachment trial and voted to convict Corona.

 

On Thursday, Escudero disclosed in a television interview that Acting Chief Justice Carpio had already called on the JBC to convene on June 4 (Monday).

 

Escudero disagrees with Tupas that Carpio cannot preside, much less, call on the JBC to convene simply because the magistrate is only the “acting chief justice”.

 

“The law always abhors a vacuum. Not because the SC lost its chief justice, we stop functioning as a council. We need to continue with our work as usual, and part of it is to immediately look for someone to fill the vacancy in the highest court,” the senator explained.

 

Unlike Enrile, the younger senator wants to see “an outsider” replace Corona and hopes President Aquino would also choose to appoint someone not in any way identified to him or any particular group.

 

When the JBC convenes, Escudero said he would move to require all applicants and nominees to execute a waiver on bank secrecy and their SALN in favor of the JBC so that it can be opened anytime, if necessary.

 

Justice Secretary to the rescue?

As regards Enrile’s hardline stand and the somewhat moderate stand of Tupas that Acting Chief Justice Carpio would be ineligible to preside over the JBC, University of the Philippines law professor Theodore Te offers a solution.

 

“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. It becomes even more complicated should he be nominated to be Chief Justice,” Te posted on his Facebook page on Wednesday.

 

Apparently, Te alluded to the high probability that Carpio himself would be nominated by the JBC, considering the Supreme Court’s tradition to have the most senior associate justice appointed as chief justice in succession.

 

“None of the other JBC members can sit as Chair because the Constitution specifies that it is the Chief Justice ex officio who must chair the JBC. 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,” Te wrote, which would dispense with the suggestion of Tupas that some other JBC member could somehow temporarily preside over the council.

 

“The Supreme Court has no jurisdiction, nor inclination, to issue advisory opinions. Thus, the duty to advise the President and the members of the JBC on this matter properly falls within the domain of the legal counsel of the government, the Secretary of Justice (who is also ex officio a member of the JBC),” the law professor concludes, referring to Justice Secretary Leila De Lima. — RSJ, GMA News