Sacrificial fly

There has to be a way out of this emerging Catch-22 situation relating to the impending retirement of Supreme Court Chief Justice Reynato Puno.

The situation arises out of a unique, completely unanticipated condition that brings two provisions of the Constitution into conflict. One provision bars the sitting President from making any appointment in the twilight of her term of office. The other provision commands to President to immediately fill up the post of Chief Justice.

President Arroyo has indicated she will not abdicate her constitutional responsibility to make an appointment based on a list of nominees submitted by the Judicial and Bar Council. Not everybody agrees she should. Those who do agree with her think it is more prudent to have a proper chief justice in place during the critical time when a transition of power happens. The chief justice, after all, officiates over the swearing in of the next President.

There are enough voices, both among lawyers’ groups and the political factions, who are demanding that the appointment of the next chief justice be done by the next President — whoever that might be.

I do not quite see the logic behind that. Within the framework of separation of powers and on the principle of checks-and-balances, wouldn’t a chief justice appointed to the post by an outgoing president be more independent of the successor-president under whom he will serve much of his term?

Apart from the routine job of signing all Supreme Court decisions, the chief justice sits as ex-officio chair of the Judicial and Bar Council and presides over an impeachment court. Considering that we have made a habit out of impeaching the President annually, it might actually be a good idea for the predecessor rather than the successor to appoint the next Chief Justice.

I do not see the reason why opponents of President Arroyo are trying to prevent her from appointing the next chief justice. If they do file suits against her after she steps down, as they have threatened, these suits are not likely to be of a constitutional character. They will be criminal suits more likely.

I am no constitutional lawyer. The way I see it, there is no hierarchy in the constitutional provisions. One provision is equal to the other. If there are two constitutional provisions that contradict each other, then that is that. One cannot, except I suppose by a High Court ruling, give superiority to one over the other.

Candidate Noynoy Aquino has said that if he is elected president, he will not recognize a Chief Justice appointed by his predecessor. I don’t know if, under the separation of powers, he could even do that. If he insists (assuming he is elected), then we would have a constitutional crisis on the very first day of his presidency.

Over the past few weeks, we have seen position papers of every sort put out by every interest group in the issue. President Arroyo has said she will carefully consider the points raised by these position papers. From all indications so far, it seems she is still bent on discharging her duty to appoint the next Chief Justice within the prescribed period.

A number of lawyers I have discussed with lately offer an out-of-the-box solution to this impasse.

This is how we can wiggle out of the deadlock: Chief Justice Puno may offer to resign his post before the ban on presidential appointments. That means he resigns a few weeks before his mandatory retirement and after the JBC has submitted a list of nominees for President Arroyo to choose from.

That will clear the way for the President to make the appointment without violating the constitutional ban. That will remove the conflict between the two constitutional provisions caused by the accident of Justice Puno’s birthday falling within the period of the ban. It will be a most gracious way of resolving a testy issue that threatens to throw the whole nation into a constitutional crisis.

After all, the next Chief Justice will have no political value for the outgoing President. She could be most judicious in her choice, taking to heart the nation’s best interest.

Even the nominees who were impolitic enough to declare they would not want to be appointed by the incumbent President can have their way. They will simply not be chosen.

It is a formula that rests entirely on Justice Puno’s graciousness. He will choose to retire little prematurely. In exchange, he will unplug a potential constitutional crisis. A thorn will be taken out of the nation’s throat.

That seems to be excellent return on a small investment of goodwill.

In baseball, there is something called a “sacrificial fly.” That happens when the player at bat hits a fly ball that allows a teammate on third base to reach the home plate before that outfielder catches the ball and takes out the batter. The batter responsible for the sacrificial fly gains nothing for himself; but the act causes his team to win a point.

I am sure there is enough grace and patriotism on the part of Justice Puno to consider this Solomonic formula. No one, least of all the framers of the 1987 Constitution, would have foreseen that his mandatory retirement day would fall right smack into the electoral period for the next president.

President Arroyo need not abdicate on her responsibility to appoint Puno’s successor without violating the ban. A new chief justice will be securely in place as we enter the election’s most critical phases. The next chief justice will not be an appointee of the incoming president and will thus have an additional patina of independence.

Consider the formula and all that may be gained from it, Mr. Chief Justice. It is the only plausible way we could avert a constitutional crisis. Then act with the nation at heart.