Just six weeks before Filipinos go to the polls, a recent Supreme Court decision and a poorly timed birthday have caused yet another constitutional crisis. Under the 1987 Constitution, all Supreme Court justices must retire when they reach the age of 70. Current Chief Justice Reynato Puno will turn 70 on May 17. However, Chapter VIII, § 15 seems to prohibit the president from making any appointments two months before the next election (May 10) up until the end of her term in office. This means the Supreme Court would have to wait at least eight weeks for the next president to fill the vacancy. When incumbent President Gloria Macapagal Arroyo decided to proceed with the nomination process anyway, critics cried foul.
As is so often the case in the Philippines, the Supreme Court was asked to settle the dispute. In De Castro v. Judicial and Bar Council, G.R. No. 191002 (S.C. Mar. 17, 2010), the justices concluded that the § 15 prohibition against “midnight appointments” did not include judicial appointments. The ban is located under Chapter VII, which deals with the Executive branch, whereas the Judiciary falls under Chapter VIII. Moreover, sections 14 and 16 both deal exclusively with Executive appointments; if § 15 had had a broader scope, the constitutional drafters would have made the distinction explicit.
Second, the Supreme Court noted that Section 4(1) of Chapter VIII requires the president to fill any vacancy on the Supreme Court within 90 days. However, in some cases it would be impossible for a president to comply with both this mandate and the Chapter VII, § 15 prohibition. If an incumbent justice retired early in the election season, for example, 90 days might pass before a new president could replace him.
Finally, the constitutional drafters included the § 15 prohibition in order to avoid “midnight appointments” intended to buy votes or influence the outcome of the election. However, under the constitution, the Judicial and Bar Council screens and nominates judicial candidates in order “de-politicize the Judiciary.” Furthermore, the justices felt there would be less risk of a new justice feeling indebted to a retiring president than to a newly elected one.
Nine of the fifteen justices joined the majority opinion, while two justices who voted to dismiss on other grounds appeared to sympathize with the outcome. Three justices, Chief Justice Puno and his two most likely successors, abstained. Only one dissented.
As soon as the Supreme Court announced the verdict, it came under attack. Several members of the 1986 Constitutional Commission publicly stated that they had never intended to exclude the Judiciary from § 15. Some Filipinos have even accused Arroyo of seeking to appoint a chief justice in order to have an ally on the court who could thwart any attempts to prosecute her for corruption or human rights violations.
Meanwhile, the Arroyo administration defended the decision as necessary in case the Supreme Court has to decide disputes over the election results. Estelito Mendoza, a former solicitor general, dismissed fears that the new justice would be personally loyal to Arroyo by pointing out that the current justices, all of whom were appointed by Arroyo, have frequently ruled against her.
Indeed, over the years, the Supreme Court has announced sweeping decisions in favor of environmentalists and human rights activists. Progressive lawyers and activists have become the court’s strongest stakeholders. However, the De Castro v. JBC opinion threatens to undermine this alliance. The same lawyers who supported the court’s progressive policy goals are also Arroyo’s most vocal critics. They seem to view De Castro solely as a political vote of support for Arroyo. Furthermore, many of them considered Chief Justice Puno a champion of their causes, but view his likely successor with suspicion.
The Supreme Court also lacks allies among the main presidential contenders, who have attacked the De Castro decision so forcefully as to make President Obama’s State of the Union Address appear a model of decorum. Benigno Noynoy Aquino III, a senator and current frontrunner, even threatened to impeach the justices in the majority. Whoever wins on May 10 will not be pleased that the Supreme Court “robbed” him of the opportunity to appoint the next chief justice.
This whole imbroglio raises several fascinating questions about constitutions and judicial politics. How do constitutional courts interpret judicial appointment procedures and maintain an appearance of impartiality? Do “midnight judicial appointments” risk reducing the legitimacy of the court? What motivates courts to abandon certain stakeholders or support retiring politicians? The Philippines’ frequent constitutional crises have unfortunately stunted its political and economic development, but make it a fascinating place to study constitutionalism.
Editors note: Dominic J. Nardi, Jr. is a visiting research fellow at the Governance Institute. He holds a J.D. from Georgetown Law and a Masters in Southeast Asian Studies from Johns Hopkins SAIS. He has worked in the Philippines on several occasions with public interest organizations.