Sounding BoardWhat constitutional crisis?By Fr. Joaquin G. Bernas, S.J.Philippine Daily InquirerFirst Posted 02:01:00 02/08/2010Filed Under:SC appointments,Judiciary (system of justice) EVERY indication coming from the Palace is that, come hell orhigh water, President Gloria Macapagal-Arroyo will reject the1962 lesson given by the late President Diosdado Macapagaland will appoint the next chief justice once Chief Justice ReynatoPuno retires come May 17.But then we really are not so sure that she will. At least, I amnot so sure. Did not a life changing experience happen to Paul of Tarsus on the road to Damascus, when he heard a voice saying, “Paul, Paul, why are you persecuting me?” That road toDamascus is still open. And the voice might once again beheard.We have not heard from her personally. We have only beentreated to the wisdom of Palace spokespersons. Who knows, butit could be that the Palace oracle has simply been commissionedto float trial balloons to see what the reaction of the publicmight be.But there are those who are instigating the fear that should shefail to appoint a chief justice and leave the Office of Chief Justicevacant until a new president is sworn in, a constitutional crisiswill arise. Frankly, I am not sure they themselves believe whatthey are mouthing.What constitutional crisis? Let us calmly look at that.What normally happens is, whenever a chief justice is absent, orthere is as yet no chief justice, the most senior among theassociate justices acts as the chief. In the history of our country,nothing unusual happened any time there was an acting chief.The Supreme Court continued to function normally. After all,

associate justices are men and women of tested mettle.As a matter of fact that is the procedure prescribed by theJudiciary Act. I myself have doubts about the constitutionality of that procedure because the presence of the statutoryprescription amounts to a designation of a temporary chief justice by Congress, which is a no-no under separation of powers. However, the procedure, which antedates the presentConstitution, has not been proscribed by the Constitution, andthe Court itself has accepted it as a wise procedure. It willremain that way until the Court itself changes it, and therenever will be a time when no one will be around to perform thefunctions of a chief justice.But then it is said that the times are unusual. It is election timewhen a new automated system of elections will be used, whichmight lead to a presidential election contest. Who will presideshould the Presidential Electoral Tribunal (PET) be called toadjudicate?In the first place the Constitution does not speak of a PET. TheConstitution simply says that in such a situation, the SupremeCourt itself will adjudicate. And who will preside? Who else butthe designated chief from among the fourteen Indians. It wouldbe an insult to the associate justices if one were to say thatnone of them could, or they collectively could not, handle the job.It is also said that, without a chief justice, there will be no oneto certify that the correct procedure has been followed indeciding cases. They must be kidding. There will be the actingchief. As a matter of fact, even the chief justice, in decisionspromulgated by divisions, simply awaits the attestation of thechairman of the division. I have never heard of a chairman’sattestation being rejected by the chief justice.One may also ask, who would preside should the president betried on impeachment? The Constitution says that the chief justice should preside. And you can be sure that if there shouldever be an impeachment trial of a president after the current

presidential term, there will already be a regular chief justice.What all these come down to is that there never will be a timewhen no one will be there to perform the duties of a chief justice. So where can the constitutional crisis come from?First, it definitely is being propagated by the fertile imaginationof some.Second, it can come from what might happen in the Judicial andBar Council process. What do I mean? In choosing the personsto be nominated to the Supreme Court, the Judicial and BarCouncil normally awaits a non-binding recommendation of theCourt. The Court, therefore, would be expected to deliberate onwhom to recommend to the JBC. Can you imagine what thespectacle will be like when the justices deliberate as to who theywould be willing to recommend as chief justice?It is by now obvious that the justices are divided on the issue of whether or not President Arroyo may appoint a chief justice.Two have already indicated that they will not accept anappointment from Ms Arroyo, while two others are willing to benominated and be submitted to Ms Arroyo without condition,even if they have not said that they will accept. I doubt that therest of the justices have a unanimous view.Third, the crisis can more likely come about if the President, nothaving been graced with a salutary Pauline Damascusexperience, should decide to appoint a chief justice. It will be nosurprise if the President should appoint one of the currentassociate justices. What a spectacle it will be when the justicesare asked to decide whether the appointment of one of them astheir chief is valid. The deliberation of the Court on the subjectwill be one for the books, and whoever succeeds in getting theinside story will have a best seller.Of course, as I indicated in an earlier column, the incumbentChief Justice might be tempted to retire more than two monthsbefore the election and make things easy for an embattledPresident. If that happens, why he chose to cap his legal career