STATEMENT

The Supreme Court’s decision allowing Gloria M. Arroyo to appoint the next Chief
Justice is a two-faced animal.1 The decision pretends to “interpret” the Constitution, but
really rewrites it. The decision claims to “uphold” the doctrine of separation of powers, but
effectively paves the way for its destruction. The decision pretends to “protect” judicial
independence, but actually gives it away to the President—on a silver platter at that.

Decision rewrites the Constitution. No court—not even the Supreme Court—has the
power to rewrite the Constitution. Where the constitutional provision is plain and capable of
only one meaning, the courts have no choice but to apply it as worded, without interpretation
or qualification:

“[W]hen the law is clear, it is not susceptible to interpretation and must be

applied regardless of who may be affected, even if the law may be harsh or onerous.”

--Pascual v. Pascual-Bautista, G.R. No. 84240, 25 March 1992.

The language of Section 15, Article VII of the 1987 Constitution is simple and
straightforward:

“Two months immediately before the next presidential elections and up to the
end of his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety.”

Section 15 does not say that an outgoing President cannot make executive
appointments during the election ban; it uses the term “appointments” in a general sense,
without distinction or qualification. Section 15, in addition, consists of two parts: the general
rule imposing an election ban on presidential appointments, and an exception allowing the
President to make temporary appointments to executive positions. Courts, when construing a

1
In Re Applicability of Section 15, Article VII of the Constitution to Appointments to the Judiciary, Estelito P.
Mendoza, Petitioner, A.M. No. 10-2-5-SC.
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general rule containing an exception, may not curtail the general rule or add to the exception
by implication.2

Moreover, as Justice Carpio-Morales pointed out in her dissenting opinion—

“To hold that the ban on midnight appointments applies only to executive
positions, and not to vacancies in the judiciary and independent constitutional bodies,
is to make the prohibition practically useless. It bears noting that Section 15, Article
VII of the Constitution already allows the President, by way of exception, to make
temporary appointments in the Executive Department during the prohibited period.
Under this view, there is virtually no restriction on the President’s power of
appointment during the prohibited period.”3

The Supreme Court, while supreme, cannot rewrite the Constitution on the pretext of
interpreting it. Especially where—as here—doing so will water down the constitutional ban
on presidential appointments to nothing.

Decision effectively destroys the doctrine of separation of powers. The doctrine of

separation of powers holds that the executive, legislative and judicial branches of government
“are separate, co-equal and supreme within their respective spheres, but imbued with a
system of checks and balances to prevent unwarranted exercise of power.”4 In fulfilling its
role, the judiciary is mandated “to keep the political branches of government within
constitutional bounds in the exercise of their respective powers and prerogatives” in order to
“preserve the stability of our democratic institutions and uphold the Rule of Law.”5

The framers of the Constitution banned presidential appointments during the election
period because they saw the danger of an outgoing President indirectly perpetuating herself in
power by appointing her people to highly sensitive government posts. As aptly observed by
then Commissioner (and later Chief Justice) Hilario Davide--

MR. DAVIDE: The idea of the proposal is that about the end of the term
of the President, he may prolong his rule indirectly by appointing people
to these sensitive positions, like the commissions, the Ombudsman, the
JUDICIARY, so he could perpetuate himself in power even beyond his
term of office; therefore foreclosing the right of his successor to make
appointments to these positions. We should realize that the term of the
President is six years and under what we had voted on, there is no
reelection for him. Yet he can continue to rule the country through
appointments made about the end of his term to these sensitive positions.6

By allowing President Arroyo to appoint the next Chief Justice, the Supreme Court
has created the conditions needed for her to perpetuate her power beyond the end of her term.

2
Samson v. Court of Appeals, No. L-43182, November 25, 1986, 145 SCRA 654, 659.
3
Dissenting opinion of Justice Carpio-Morales, p. 8, in G.R. Nos. 191002, 191032, 191057, 191149, 191342,
191420 and A.M. No. 10-2-5-SC.
4
Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No. 180643, 25 March
2008.
5
Id.
6
RECORD OF THE 1986 CONSTITUTIONAL COMMISSION, Vol. 2, July 31, 1986, RCC No. 44.
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Thus, instead of upholding the separation of powers doctrine, the Court has actually paved
the way for its destruction.

Decision surrenders judicial independence to the Chief Executive.

The doctrine of separation of powers cannot work without an independent judiciary. But is
our Supreme Court truly independent?

Already, President Arroyo has appointed 14 of the 15 justices of the Supreme Court.
With the appointment of the next Chief Justice, President Arroyo will have appointed every
single member of the Court. What kind of independence can the people expect from a Court
packed with Arroyo appointees, and led by an Arroyo-appointed Chief Justice?

The Supreme Court’s mandate—its very reason for existence—is to keep our
democratic institutions stable by observing constitutional principles at all times and to see to
it that “the political branches of government [stay] within constitutional bounds in the
exercise of their respective powers and prerogatives.”7

By allowing President Arroyo to appoint the next Chief Justice, the Court has, in one
stroke, abdicated its mandate, rewritten the Constitution, destroyed the separation of powers
and vanquished judicial independence.

The FREE LEGAL ASSISTANCE GROUP (FLAG), therefore, calls upon the
Supreme Court to reconsider its ruling; the President, to abandon her desire to appoint the
next Chief Justice; and the people, to relentlessly clamor for a judiciary that will truly serve
as the backbone of our democratic society.

21 March 2010, Quezon City, Philippines.

Jose Manuel I. Diokno

Chair
Free Legal Assistance Group (FLAG)

7
Id..