Revisiting Midnight Appointment Cases

When the Supreme Court, under a new leadership, resumed session last Tuesday, it was confronted once again with the nagging issue on the power of the outgoing president to appoint retired Chief Justice Reynato S. Puno's replacement, with the filing by the Philippine Bar Association of a second motion for reconsideration of the decision in De Castro v. JBC. I can only surmise the uncomfortable situation Chief Justice Renato Corona must have found himself in when he presided over the Court to tackle the question on the legitimacy of his appointment.

The widely criticized De Castro was of course the March 17 decision that paved the way for CJ Corona's appointment by lameduck President Gloria Macapagal-Arroyo (GMA). The case involves the applicability of the constitutional ban on the appointing power of an outgoing president, particularly with respect to vacancies in the judiciary, two months prior to and until the end of her term. This is known as the ban on midnight appointments.

Penned by my former law professor, now Justice Lucas Bersamin, the De Castro ruling held that the ban does not apply to appointments in the judiciary because of a specific command in the Constitution for the president to fill any vacancy in the Supreme Court within 90 days from its occurence. The decision goes on to say that failure of the president to make such appointment would amount to a disobedience of the Constitution. Justice Bersamin raciocinated that had the framers of the Constitution intended to make the ban applicable to the judiciary, they could have expressly stated so under the article dealing with the judiciary; that by appearing on the article dealing with the presidency, the ban applies only to the executive department.

But Justice Conchita Carpio-Morales was unimpressed by the majority's ruling and filed a strong dissent by characterizing Justice Bersamin's reasoning as specious, weak and without legal mooring. She attacked Justice Bersamin's reliance on the structural arrangement of the Constitution in justifying the decision and for failure of the decision to resort to basic rules on the interpretation of the Constitution. For example, the lady justice pointed out that it is basic in constitutional interpretation that where there is no ambiguity the Constitution should be interpreted according to its plain meaning. According to her the prohibition on the president to make any appointment within the prohibited period, except when public service would be prejudiced, is a plain and simple blanket prohibition. She also cited the rule that when the law does not distinguish no distinction should be made, and true enough the ban on midnight appointment does not distinguish as to what branch of government it applies.

The dissent also takes exception to the observation that the failure to fill a vacancy in the Supreme Court within the 90-day period amounts to dereliction of duty by the president. It argues that legal impossibility exempts non-compliance with this requirement and the two-month ban precisely excuses such non-compliance and suspends the running of the 90-day period until the ban ends.

Finally, Justice Carpio-Morales laments Justice Bersamin's failure to cite any particular deliberation of the drafters of the Constitution in claiming that the intent of the framers support the conclusion reached by the majority.

De Vera is in sharp contrast with the much earlier decision in Aytona v. Castillo, wherein the Supreme Court ruled that after a newly-elected president has been proclaimed, the incumbent and outgoing president is nothing more than a caretaker whose duty is to see to the smooth transition of power from the old to the new president. Interestingly, Aytona involves the withdrawal by then President Disodado Macapagal, GMA's father, of the 350 midnight appointments made by his predecessor President Carlos P. Garcia in 1961. A day before Macapagal's assumption to office, Garcia issued appointments to both executive and judicial positions.

The Supreme Court upheld the validity of President Macapagal's order canceling or recalling the appointments made by President Garcia without distinguishing between the types of positions involved. Of course, Aytona was decided under the 1935 Constitution which allows reelection of the president.

A much later case, In Re Valenzuela (promulgated in 1998), decided under the present Constitution, likewise did not distinguish between executive and judicial positions when it comes to the application of the ban on midnight appointments. This case involves the appointment of judges. Having fallen within the two-month ban, and there being no justification for the urgency of the appointments, the Supreme Court struck down the appointments as invalid.

Clearly then De Castro departed from the Aytona and Valenzuela decisions. It is worth noting that the Supreme Court, as the final authority to declare what the law is, can reverse itself and even overturn long established principles of law laid down in a particular case. De Castro is definitely such an instance. It is highly unlikely, however, that the Supreme Court will reconsider De Castro, given the fact that CJ Corona has already assumed office. I don't think the Supreme Court is about to strip one of its members of his just conferred primus inter pares status.