Time is of the essence

The prickly issue of congressional representation in the Judicial and Bar Council comes to a head today with the opening of oral arguments at the Supreme Court. The issue is simple but of urgent importance: Should there be one or two representatives of Congress in the council that vets nominees for the position of chief justice and other members of the judiciary, as well as the Office of the Ombudsman? It is imperative that the high court resolve the issue with finality before the JBC conducts its final deliberations and submits, for President Aquino’s consideration, a short list of nominees for the post of chief justice vacated by the ouster of Renato Corona.

This is how things stand. Francisco Chavez, a former solicitor general, filed a suit at the Supreme Court questioning why a senator (Francis Escudero) and a congressman (Niel Tupas Jr.) are sitting in the JBC when, he pointed out, the Constitution provides for only one representative of the legislature in the council. On July 17 the high court upheld Chavez’s position, prompting Senate President Juan Ponce Enrile and House Speaker Feliciano Belmonte to announce Congress’ withdrawal from the JBC deliberations. Today’s oral arguments will dwell on the motion for reconsideration filed by Solicitor General Francis Jardeleza on July 23 in behalf of Escudero and Tupas, and on Chavez’s opposition, filed on July 25, to the former’s motion. The JBC has reset its final deliberations, originally scheduled today, to Aug. 7.

The question naturally arises: Why is the Supreme Court tarrying on Jardeleza’s motion for reconsideration when time is of the essence? The observer attentive to the fact that the 90-day period for the President to appoint the next chief justice expires on Aug. 27 is moved to consider a worst-case scenario that may just throw a monkey wrench into the appointment of the next chief justice.

The high court, in upholding Chavez’s position, had said that its ruling was “immediately executory.” But because it has allowed oral arguments today, in effect bending over backward, it may hold that the ruling is no longer so. Thus, it is quite possible for the high court, in the guise of accommodating Congress, to maintain the status quo, meaning both Escudero and Tupas will get to vote separately in the JBC’s short-listing of the next chief justice. (Indeed, former Sen. Rene Saguisag has pointedly said that “Congress and the people are entitled to full, not half, representation.”) But what if, a little over three weeks from today, with the JBC having voted on the short list and the President having appointed Corona’s replacement, the high court resolves Jardeleza’s motion for reconsideration and rules that Congress was entitled to only one vote, after all? It can very well rule that the council that produced the short list of nominees had not been validly constituted, that the President had selected from an improperly made short list, and that the entire selection process should be done afresh.

This will be the supreme irony in the turn of events that was sparked by the showdown between the President and the Supreme Court on the latter’s ruling removing former President Gloria Macapagal-Arroyo from the travel watch-list orders, and that culminated in the impeachment and subsequent removal of Corona on May 29. The story began with the political branches of the government working together to put the Arroyo-controlled Supreme Court in its place—and it may end with the tribunal reasserting its primacy over both the President and the two chambers of Congress by exercising a de facto veto over the single highest appointment that the President can make, when he chooses the head of a coequal branch of the government.

The Supreme Court must now break the impasse on who gets to vote in the JBC, and resolve the issue categorically and immediately. The Senate and the House may think that they have won the battle should they be allowed to vote separately in the JBC, but they shall have lost the war if the high court, having granted them that concession, reserves the power to resolve Jardeleza’s motion for reconsideration after a new chief justice shall have been chosen by the President.