THE black letter of the fundamental law is clear. Article VII, Section 15 of the Constitution specifically forbids an outgoing president from making what have come to be called ?midnight appointments.? The section, in its entirety, reads: ?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.?

Thus, by express provision of the Constitution, President Macapagal-Arroyo can no longer name appointees, except temporary postings in the Executive branch, beginning March 9 and until her successor takes his oath on June 30 this year.

Chief Justice Reynato Puno retires on May 17; his 70th birthday falls right in the middle of the period of prohibition. Any other person with a healthy respect for the rule of law and the processes of democracy, not to mention a strong sense of delicadeza, would understand the national interest in a straightforward way: Puno?s successor should be named by the next President of the Philippines.

President Arroyo?s allies in the administration coalition, however, have found a rationalization for her to violate the Constitution. Rep. Matias Defensor, the representative of the House in the Judicial and Bar Council, has proposed that the JBC, which has the constitutional duty to nominate candidates for the Supreme Court, recommend a short list of replacements for Puno even before he retires?in order, Defensor said, to avoid leaving the position ?vacant even for a day.?

In a letter to his fellow JBC members, Defensor emphasized the importance of the chief justiceship: its occupant is not only the fifth in the line of presidential succession, but also the head of both the JBC and of the Presidential Electoral Tribunal. The eight-person JBC will meet today to discuss Defensor?s proposal.

Politics, we think, is behind this unusual request to fast-track the appointment of the next Chief Justice. Ms Arroyo?s allies want her to circumvent the restriction on appointments by allowing her to name the next Chief Justice before March 9. But both law and history are against Defensor?s indefensible suggestion.

Compared to the congressman?s frantic proposal, the Constitution is a monument of massive calm. The pertinent provision, from Article VIII, Section 4 (1), states that ?Any vacancy [in the Supreme Court] shall be filled within ninety days from the occurrence thereof.? In other words, the government has until mid-August to name Puno?s replacement.

At a time of rising political passions, with national attention increasingly focused on the presidential elections, the wisdom of the Constitution?s 90-day deadline appears even more prescient. Precisely because of the importance of the position, there is no excuse to rush the nomination.

The settled law on midnight appointments, under the 1987 Constitution, is anchored on the exact same provision that pertains to the JBC?s power to nominate a Supreme Court justice. The first paragraph of Article

VIII, Section 9 reads: ?The Members of the Supreme Court and judges of the lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.? The defining case of Valenzuela and Vallarta rejected the midnight appointments of two ?judges of the lower courts.? Its scope, thus, must also cover ?Members of the Supreme Court.?

Not least, the history of the Court itself belies Defensor?s contention that the office of Chief Justice had never been vacant, not even for a day.

But the greater rule at stake concerns the proper role of an outgoing president. Both law and history are clear: That role is properly of a caretaker, a custodian who ensures that the transition of power, the defining characteristic of a republican democracy, takes place as scheduled. Defensor?s proposal tells us what President Arroyo?s last State of the Nation Address confirmed: this President continues to struggle against the responsibilities of transition, and is loathe to let power go.