MANILA, Philippines?Reinterpreting the constitutional provision against an outgoing president?s so-called midnight appointments, the Supreme Court Wednesday gave President Gloria Macapagal-Arroyo the authority to appoint the next Chief Justice.

Nine of the 15 justices voted to allow Ms Arroyo, who steps down from office on June 30, to appoint the successor of Chief Justice Reynato Puno, who retires on May 17. According to the nine, Section 15 Article VII that prohibits midnight appointments does not apply to the Supreme Court.

The high court ordered the Judicial and Bar Council (JBC) to submit the short list of nominees for Chief Justice to Malacañang ?on or before May 17.? But it did not say whether Ms Arroyo could appoint Puno?s successor before the vacancy occurs.

Of the nine justices who voted in favor of Ms Arroyo appointing the next Chief Justice, five interpreted the Constitution as exempting the entire judiciary from the ban and four made a special case to exempt only the high court.

The five justices who concurred that Ms Arroyo could appoint all vacancies in the entire judiciary until June 30 were Associate Justices Lucas Bersamin (who wrote the decision), Teresita Leonardo-de Castro, Roberto Abad, Martin Villarama Jr. and Jose Perez.

Those who separately concurred that Ms Arroyo could appoint only to vacancies in the high court during the election ban but said the lower courts remained subject to the ban were Associate Justices Arturo Brion (who wrote a separate opinion), Diosdado Peralta, Mariano del Castillo and Jose Mendoza.

Lone dissenter

The lone dissent against lifting the ban on midnight appointments for either the Supreme Court or the judiciary was posed by Associate Justice Conchita Carpio-Morales.

According to Morales, the Constitution provides for checks and balances against the President?s appointing power and the establishment of the JBC ?is not sufficient to curtail the evils of midnight appointments in the judiciary.?

A separate dissent was made by Associate Justices Antonio Nachura and Presbitero Velasco Jr., who said the case was premature because the JBC had yet to come up with a short list of nominees.

Chief Justice Reynato Puno took no part in the deliberations along with the high court?s two most senior members, who are also the top contenders for his post?Associate Justices Antonio Carpio and Renato Corona.

Puno, who deferred the start of his two-week ?sabbatical leave? in order to preside over the special en banc session Wednesday, inhibited himself because he chairs the JBC.

Carpio and Corona, Ms Arroyo?s former legal adviser and former chief of staff, respectively, were present in the deliberations but took no part.

?I suppose they decided to inhibit because they will be affected by the decision of the court,? said Midas Marquez, the Supreme Court administrator and spokesperson.

Three other senior justices are considered candidates for the Chief Justice post?Morales, De Castro and Brion. Sandiganbayan Senior Associate Justice Edilberto Sandoval is also a candidate.

Article VIII

Until Wednesday, the President had been prevented from making further appointments starting on March 10 (or two months immediately before the May 10 presidential election) and until the end of her term on June 30.

In exempting the judiciary from the ban on midnight appointments, the Supreme Court gave more weight to Sections 4 and 9 Article VIII, which gives the President 90 days to fill vacancies in the Supreme Court and the judiciary.

In the 55-page decision written by Bersamin, the high court said the framers of the 1987 Constitution could not have meant to include the judiciary in the prohibition on midnight appointments because the provision was placed under Article VII on the executive department, and not under Article VIII on the judicial department.

?Had the framers intended to extend the prohibition contained in Section 15 Article VII to the appointment of members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15 Article VII as being equally applicable to the appointment of members of the Supreme Court in Article VIII itself,? it said.

Regalado?s opinion

The high court particularly cited the opinion of retired Associate Justice Florenz Regalado, a member of the 1986 Constitutional Commission, that the prohibition was not intended to apply to appointments to the judiciary.

It went on to say that the Constitution provided for the JBC to screen nominees for the judiciary so that appointments made during an outgoing president?s last days in office ?would not suffer from such defects? of partisanship or wanting to subvert the policies of an incoming president.

The high court also declared that the appointment of a Chief Justice ?is never in an acting capacity.?

?The appointment of the next Chief Justice by the incumbent President is preferable to having the associate justice who is first in precedence take over,? it said.

?For sure the framers intended the position of Chief Justice to be permanent, not one to be occupied in an acting or temporary capacity. In relation to the scheme of things under the present Constitution, Section 12 of the Judiciary Act of 1948 only responds to 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,? it said.

?Conflicting ruling?

But while the justices voted to exempt the Supreme Court from the prohibition, it did not make a ?definitive? ruling on whether Ms Arroyo can also appoint all other vacancies in the judiciary until her last day in office.

Due to the lack of a majority ruling, the high court?s doctrine against midnight appointments for trial court judges that was established in 1998 in the Valenzuela and Vallarta case held.

In that case, the high court nullified the appointment made by outgoing President Fidel Ramos of Judges Mateo Valenzuela and Placido Vallarta due to the ban under Section 15 Article VII.

?Much of the unfounded doubt about the President?s power to appoint during the period of prohibition in Section 15 Article VII could have been dispelled since its promulgation on Nov. 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado,? the high court said in its decision.

Spokesperson Marquez admitted there was a ?conflicting ruling? on whether Ms Arroyo could also appoint all vacancies in the judiciary up to the end of her term.

?There is no doctrine on that issue because while five justices said that the Vallarta doctrine should be reversed or overturned, five said [it] stays,? he said.

Marquez said the justices were concerned only about the upcoming vacancy in the Chief Justice post.

?That is why the court is only clear on whether or not the incumbent President can appoint the successor to the Chief Justice. The definitive ruling only covers appointments to the Supreme Court,? he said.

The main issue

But should Ms Arroyo use the decision to appoint other vacancies in the judiciary, the issue may be raised in ?another petition or case,? Marquez said.

?The main issue here is whether or not the President can appoint the successor of the Chief Justice. Appointments to the lower courts are just collateral issues; therefore, the court need not be clear on that issue,? he said.

The decision also did not touch on whether the JBC should also submit a short list for the other vacancy to be created in the high court when Puno retires.

Marquez said such a vacancy would have to go through the JBC.

?[But] as it is, the JBC is not yet even done with the vetting for the appointment of the Chief Justice,? he said.