MANILA, Philippines?I do not know if it is because I do not have a law degree, or if it is simply a question of age, experience and intellect, but I cannot understand how the Supreme Court can read the 1987 Constitution and say President Gloria Macapagal-Arroyo can appoint the next chief justice. ?Two months immediately before the next presidential elections and up to the end of his term,? says Article 7, Sec. 15, ?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.?

The provision took force on March 10, almost two weeks ago. On March 17, the Supreme Court declared that the President is permitted to name a replacement for Chief Justice Reynato Puno, whose retirement falls on May 17, within the appointment ban.

The Court believes that the position of the chief justice is an exception. The decision, penned by Justice Lucas Bersamin, implies that the role is so important, the position so vital that whether or not Sec. 15 explicitly made an exception, the position by its nature is an exception. ?The Chief Justice performs functions absolutely significant to the life of the nation.? It is so important that the Court cannot permit the traditional and constitutional appointment of the next associate justice as acting chief justice until an official and permanent appointment can take place.

I do not see how the sky will fall with a vacancy in the Court, but I also did not know this Court thought so little of itself that it cannot function without an official chief justice. The Constitution had more faith in the Supreme Court when it said that it would allow 90 days for a president to make an appointment. If the Supreme Court decided that the power to appoint belonged to the next administration, the new president would still have 45 days to make the appointment.

Sufficient time is needed for a president to make a decision, said the Bersamin decision when it justified Ms Arroyo?s power to appoint, and yet in the same breath enumerated how presidents have been capable of appointing chief justices within a day of the vacancy. When Chief Justice Narvasa retired, Justice Hilario Davide Jr. was sworn into office the following early morning. When Chief Justice Artemio Panganiban retired, Justice Reynato S. Puno took his oath as chief justice at midnight of the same day. Anarchy has not broken out yet, even with Senior Associate Justice Antonio Carpio now acting as chief justice, in place of Chief Justice Puno who is on sabbatical and wellness leave.

Court decisions are made by the majority, even the chief justice has only one vote. One less vote does not remove the minimum for a quorum, the gentlemen of the Supreme Court managed their majority in this decision even with three justices who refused to participate. In the dissenting opinion of Justice Conchita Carpio Morales, she argues that the Court?s decisions are not the decisions of one man. ?As a member of the Court, I strongly take exception to the ponencia?s implication that the Court cannot function without a sitting Chief Justice.?

The fact that the Judicial and Bar Council is there, claims the Bersamin decision, ?eliminates the danger that appointments to the judiciary can be made for the purpose ? of satisfying partisan considerations.? And yet the same decision argues that there is no need for the JBC when the choices come from within the current Court, essentially saying Ms Arroyo can appoint any associate justice as she pleases.

The reason the Constitution bans midnight appointments is to protect the Court in spite of the people?s faith in that Court?s independence. The Supreme Court says the Constitution never explicitly banned the judiciary from midnight appointments. ?Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so.?

The prohibition is explicit, ?no appointments? to any position ?except temporary appointments to executive positions.? As far as I understand English, this is explicit. What makes the Court so special?or so recalcitrant?that it demands a specific mention to believe it is on the same footing as the rest of the government? Besides, the framers themselves were explicit when they discussed the intent of the rule during the Constitutional Commission?s deliberations. Former Chief Justice Hilario Davide, then a constitutional commissioner, said the ban is there to prevent a president from continuing ?to rule the country through appointments made about the end of his term? through the appointment of people in sensitive positions, ?like the commissions, the Ombudsman, the judiciary.? This is especially ominous with Ms Arroyo, who may stand before that same chief justice she will so benevolently appoint. The public outcry is not because we have no faith in the Court, it is because we have no faith in Gloria Macapagal-Arroyo, and because the Constitution is clear in its demand.

And still the Court insists that the position of chief justice demands immediate appointment by a president?preferably Ms Arroyo. It claims that to allow the next president to appoint undermines the independence of the judiciary. ?To have the new President instead of the current incumbent President appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority.?

This is the most frightening reasoning of all. This is a concession by the Court itself that a chief justice is dependent on the whims of an appointing power. Why allow any president to appoint at all? Why permit Puno to be chief justice, knowing that his stay would run the length of the President?s term? If the Supreme Court itself admits that a chief justice, or any justice at all, will be beholden to an appointing power, on any occasion, whether during elections or outside of it, it is a Court claiming it cannot be independent.

We are aware that the president appoints the chief justice. We are aware that the president appoints justices. We are aware that the next president may have a hold on its choice of chief justice. We are willing to accept all this because we have given our faith to the men and women in black robes, that they will not permit appointments and loyalties to intervene in their decisions, and on occasions that this is inevitable, to inhibit themselves. And yet this Court, one that claims its only intent is independence, has reversed decisions and ignored the Constitution. By stripping off its robes to show off its balls, the Court has announced it is incapable of independence.

It does not matter how much the Constitution imposes its checks and balances, or how often Marites Vitug writes books questioning the justices. The burden of proving the Court?s integrity does not rest on the public, it rests on the justices, who have now demonstrated how little they deserve the honor the black robes confer.